STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MR. & MRS. DAVID BRENNER, )

)

Petitioners, )

)

vs. ) CASE NO. 88-6009

) THE DAVID J. JOSEPH COMPANY, and ) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

The final hearing in this case was held on April 5 and May 2, 1989, in Tampa, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioners: John W. Wilcox, Esquire

Katherine Harasz, Esquire

100 South Ashley Drive Suite 1650

Tampa, FL 33602

For Respondents: William D. Preston, Esquire

Thomas M. DeRose, Esquire

123 South Calhoun Street Tallahassee, FL 32301 (David J. Joseph Co.)

Richard T. Donelan, Jr., Esquire Twin Towers Office Building

2600 Blair Stone Road Tallahassee, FL 32399-2400 (Department of Environmental Regulation)

STATEMENT OF THE ISSUES

The issue in this case is whether the Department of Environmental Regulation (Department) should issue a solid waste construction permit to the David J. Joseph Company (Applicant) to construct lined cells at its existing Class I solid waste landfill in Tampa, Hillsborough County, Florida. It is the position of the applicant and the Department that all statutory and rule criteria for the issuance of said permit have been met, while Mr. & Mrs. David Brenner (Petitioners) contend that the application fails to meet the criteria for the issuance of this permit.

PRELIMINARY STATEMENT

At the hearing, the applicant presented the testimony of four witnesses and introduced seventeen exhibits. The Department called one witness and introduced one exhibit. The Petitioners presented testimony from six witnesses and introduced fifteen exhibits, while one exhibit offered by the Petitioners was rejected.

The transcript of the final hearing was filed on May 12, 1989, and the parties were given until May 30, 1989, to file their proposed recommended orders, including proposed findings of fact. Through a misunderstanding by counsel for the Petitioners, the Petitioners' proposed recommended order was not filed until June 9, 1989, and the applicant and the Department have moved to strike this late filed proposed recommended order. However, the Petitioners' proposal has been considered, although it was admittedly filed late, since no prejudice to the applicant or the Department results from such consideration. A ruling on each proposed finding of fact is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The applicant filed an application for a solid

   waste construction permit with the Department on May 2, 1988. This application was given permit number S029-77041. The applicant proposes to expand its existing solid waste Class I sanitary landfill located near Kingsway Road and Interstate 4, east of Tampa, Hillsborough County, Florida, through the construction of a lined addition. This entire site consists of approximately 16 acres, but the lined portion for which this permit is sought comprises about eight acres. This site was purchased by the applicant in 1978, to landfill shredder waste, or "fluff", produced at its Tampa shredder. In fact, the applicant has operated this site as a landfill since 1978, under two previous permits issued by the Department in 1978 and 1983, and approximately nine acres of the site have already been filled.

   
   

2. The Department gave notice of its intent to grant this permit on September 23, 1988, subject to specified conditions. The Petitioners, thereafter, timely requested this administrative hearing.

   
   

3. The applicant is engaged in the ferrous scrap business at fourteen locations throughout the United States, and provides steel mills with raw material for their use in the production of new steel. It operates a large shredding plant in Tampa, Florida, which consists primarily of an automobile shredder and related equipment. The shredder is a large crushing and grinding piece of equipment which, in approximately 20 seconds, grinds scrap autos into small chunks of scrap the size of a man's fist. A conveyor system separates the scrap produced in the shredding process into three streams. The first stream consists of steel scrap that is sold to a steel mill. Approximately 80% of automobile scrap is steel. The second stream consists of non-ferrous material, primarily aluminum, zinc, copper, brass and other non-steel items found in autos, which are then sold to dealers in that particular type of metal. The third stream is waste material, or "shredder fluff". Approximately 17% of the material in automobile scrap is fluff.

   
   

4. Guidelines have been established by the applicant which limit the type of material which will be accepted at the shredder facility as feedstock for the shredder operation. These guidelines prohibit acceptance of lead-acid

   batteries, gas tanks, tires, catalytic converters, and loose mufflers and tail pipes.

   
   

5. Automobiles which are accepted by the applicant at its Tampa plant have already been crushed at separate locations by other companies engaged in the car crushing business prior to their purchase by the applicant. In the crushing process, most automobile fluids are liberated, but oil and other fluids not liberated during the crushing process are then liberated in the shredding process, and are intermingled with all three product streams produced at the shredder mill.

   
   

6. Shredder fluff consists largely of automotive components such as upholstery, plastic, glass, rubber, dirt, and other non-magnetic and non-ferrous materials. The applicant's shredder operation in Tampa generates approximately seven to eight tractor trailer loads of fluff per day which are deposited at their current landfill. During 1988, the fluff from approximately 200,000 autos was disposed at this site.

   
   

7. The existing landfill is located approximately 550 feet off of the roadway, and is accessible by an entrance road leading to the main gate of the site. The landfill is completely fenced with barbed wire around its perimeter, and there is a locked gate at the access road. There is a full time manager on site. Only shredder fluff produced by the applicant's Tampa shredder is deposited at this site. The applicant delivers its waste to this landfill using its own equipment and personnel. The applicant has taken reasonable steps to insure that only authorized persons enter the landfill site, and that there will be no unauthorized dumping.

   
   

8. In order to continue using this landfill site, the applicant proposes to construct a liner system and leachate collection system for the remaining unfilled portion of the landfill, and also to establish a stormwater management system serving the entire site.

   
   

9. A geotechnical and foundation investigation has been performed on the site to determine the physical and chemical characteristics of site soils, and the ability of those soils to support the landfill construction. The potential for movement in foundation soils was specifically addressed. It is to be noted that the applicant has been operating a landfill at this site for ten years without any sinkhole or foundation problems. There are no active sinkholes on the site, nor was there competent substantial evidence that any sinkhole had historically existed on this site. While the site geology is complex, the soils and subsurface geology will support the proposed project. Thus, the site is suitable for construction of lined Class I landfill cells.

   
   

10. Beneath a surficial sand layer of approximately 30 feet in depth, lies an interbedded layer of sands, clay and heavily weathered limestone lenses approximately 40 feet thick, under which lies the Floridan Aquifer. The applicant will excavate below the level of the existing pit floor to remove any limestone protrusions which could adversely affect liner integrity. A dense clay layer, graded to remove rocks and other protrusions, will be used as a secondary barrier to retard the movement of contaminants into groundwater, and to further minimize the potential impact from limestone pinnacles upon liner integrity.

    
    

11. The primary containment system will be a liner system constructed of a thick, high density, 60 millimeter polyethylene membrane, applied to both the bottom and sides of the landfill. Below-grade portions of the landfill will be

    lined completely. A layer of geotextile material is placed between the synthetic liner and clay layer to act as a cushion against stresses on the liner. The liner will be constructed in 30 foot wide strips with welded seams, every inch of which is vacuum tested. Laboratory testing is also conducted on sample coupons of welded seams to insure that the seams are as strong, or stronger, than the original material, and the areas from which coupons are taken are then extrusion welded and vacuum tested.

    
    

12. The liner system is designed to withstand stresses, and any differential settlement, that are reasonably expected to occur at this site. It will minimize the risk of leakage of leachate to the environment, as was recognized by Dr. Richard Strom, an expert in hydrogeology called by Petitioners, who stated this is an improvement in the previous unlined operations at this site, and decreases, although it does not completely eliminate, the possibility of ground water pollution.

    
    

13. The applicant's project design includes a leachate collection system which will allow leachate generated in the landfill to flow through a 12 inch thick gravel layer, which will act as a drain in the base of the landfill. Fluids will run to low spots and will then be channeled to sumps, where leachate is collected so that it can be disposed of by pumping away from the liner system and spraying onto the active face of the landfill. Natural evapotransporation will then reduce the volume of the leachate.

    
    

14. An approved groundwater monitoring program is currently in place, and is being operated at the applicant's existing landfill. It consists of an upgradient well in the northeast corner of the site, and three down gradient wells, one in the southwest corner, one on the west and one on the south sides of the property. These down gradient wells are adequately placed to intercept groundwater flow from the site since the predominate groundwater flow is from the northeast to southwest. These wells all monitor the Floridan Aquifer. The applicant's groundwater monitoring program is adequate and appropriate to detect any leachate or other contaminates emanating from the landfill which might pollute the groundwater, and provides reasonable assurance that water quality standards will not be violated by the landfill operations.

    
    

15. The applicant has proposed a stormwater management system for the entire site which is designed to separate non- contact stormwater from that water which actually falls on, or comes into contact with, the waste material. All rainwater coming in contact with waste will be treated as leachate, and handled through the leachate collection system. The non-contact stormwater will be collected in a series of bermed drainage ditches around the site, and will be drained away to retention ponds for infiltration. During times of normal rainfall, there will be sufficient capacity in retention ponds to store all non- contact stormwater on site until it either evaporates or percolates into the ground. During extreme storm events, excess stormwater can be channeled off site to a nearby sinkhole for discharge. Routine monitoring will be conducted to ensure that water in the system has not been contaminated with leachate. The Department has delegated stormwater plan approval authority to the Southwest Florida Water Management District, which reviewed and approved the applicant's stormwater management system through the issuance of a permit in 1988.

    
    

16. Noxious odors do not emanate from the existing landfill operations, although there is a slight odor similar to an auto garage service bay close to the disposal materials. This is not a sickening or noxious odor, as acknowledged even by Dr. Strom. The applicant has provided reasonable assurance that leachate sprayed on the active face of the landfill, after having been

    collected through the leachate collection system, will not result in, or cause, noxious odors at the landfill site.

    
    

17. The applicant has established that this project to enlarge its existing landfill with a lined addition will not release contaminants into the underlying soils and groundwater.

    
    

    CONCLUSIONS OF LAW

    
    

    The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes.

    
    

18. As the applicant for a permit, the applicant in this case has the burden to demonstrate its entitlement to the permit. Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981). The Department has issued an intent to approve this permit application, and at hearing the applicant and the Department initially established prima facie cases in support of their positions. The Petitioners, who challenge the issuance of this permit, then proceeded with their case. Finally, the applicant and the Department offered rebuttal evidence.

    
    

19. This proceeding is governed by Chapter 403, Florida Statutes, and in particular Section 403.707, as well as Rule Chapters 17-4 and 17-701, Florida Administrative Code. The applicant has affirmatively provided the Department with reasonable assurance that the issuance of this permit, and related construction and operation activities, will not cause pollution in violation of applicable statutes, rules and regulations of the Department. See Rule 17-4.070 and Sections 403.087(4) and 403.707(6), Florida Statutes.

    
    

20. The Petitioners contend that the site of this landfill is not suitable, but this ignores the fact that the applicant has been operating an unlined landfill in this location for ten years without any evidence of a violation of the Department's rules, or any sinkhole activity on site. The proposed addition to this landfill will be lined, and will have a leachate collection system, groundwater monitoring program and stormwater management system, and these factors will decrease the risk of pollution on site. The proposed landfill meets or exceeds the criteria of Chapter 403, Part IV, Florida Statutes, and Rule 17-701, Florida Administrative Code.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Department of Environmental regulation enter a Final Order approving the application of the David J. Joseph Company and issuing permit number S029-77041.

DONE AND ENTERED this 21st day of June, 1989 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1989.

APPENDIX

(DOAH Case No. 88-6009)

Rulings on the Petitioners' Proposed Findings of Fact:

1. Rejected in Findings 1, 9-12.

2. Rejected in Findings 10-14.

3. Rejected in Finding 16.

4. Rejected in Finding 16, but Adopted in part in Finding 13.

5. Rejected in Findings 10-12.

6. Rejected in Finding 15.

7. Rejected in Finding 14.

Rulings on the Respondents' Proposed Findings of Fact:

1. Adopted in Findings 1, 2. 2-3. Adopted in Finding 3.

1. Adopted in Finding 4.

2. Adopted in Finding 5.

3. Adopted in Finding 6. 7-8. Adopted in Finding 1. 9-10. Adopted in Finding 7.

11. Adopted in Finding 8.

12-15. Adopted in Findings 9-11.

1. Adopted in Finding 12.

2. Adopted in Finding 9.

3. Adopted in Finding 13. 19-21. Adopted in Finding 14.

1. Adopted in Finding 15.

2. Adopted in Findings 9 and 16.

3. Adopted in Finding 17.

COPIES FURNISHED:

John W. Wilcox, Esquire Katherine Harasz, Esquire

100 South Ashley Drive Suite 1650

Tampa, FL 33602

William D. Preston, Esquire Thomas M. DeRose, Esquire

123 South Calhoun Street Tallahassee, FL 32301

Richard T. Donelan, Jr., Esquire Twin Towers Office Building

2600 Blair Stone Road Tallahassee, FL 32399-2400

Dale Twatchmann, Secretary

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, FL 32399-2400

Daniel H. Thompson, Esquire General Counsel

2600 Blair Stone Road Tallahassee, FL 32399-2400

Docket for Case No: 88-006009

Orders for Case No: 88-006009