STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

REPRESENTATIVE BETTY S. )

HOLZENDORF, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0532

)

CITY OF JACKSONVILLE and ) STATE OF FLORIDA DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondents. )

) ROBIN G. LEIGH and GERALDINE ) LEIGH, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0569

)

CITY OF JACKSONVILLE, )

NORTH LANDFILL and STATE )

OF FLORIDA, DEPARTMENT OF )

ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in these cases before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on September 5, 6 and 7, 1989, in Jacksonville, Florida.

APPEARANCES

For Petitioner Representative Betty S. Holzendorf:

Lacy Mahon, Jr., Esquire Mark H. Mahon, Esquire Russell L. Healey, Esquire

Lacy Mahon, Jr. & Mark Mahon, P.A. 1120 Blackstone Building

Jacksonville, Florida 32202

For Petitioners Robin G. Leigh and Geraldine Leigh:

Robin G. Leigh and Geraldine Leigh, pro se

6026 Heckscher Drive

Jacksonville, Florida 32226

For Respondent State of Florida Department of Environmental Regulation:

William H. Congdon Assistant General Counsel

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

For Respondent City of Jacksonville:

Daniel D. Richardson, Esquire Robin A. Deen, Esquire

Office of General Counsel Environmental Law Division City of Jacksonville Towncentre, Suite 715

421 West Church Street Jacksonville, Florida 32202

STATEMENT OF THE ISSUES

1. Whether the City of Jacksonville has provided reasonable assurances that a proposed modification of its permit to operate the City of Jacksonville North Sanitary Landfill by allowing an additional 35 feet of waste to be disposed of in Phase IIIb of the City of Jacksonville North Sanitary Landfill will not cause pollution in violation of any of the provisions of Chapter 403, Florida Statutes, or the rules promulgated thereunder?

   
   

2. Whether the City of Jacksonville proposed modification of its permit to operate the City of Jacksonville North Sanitary Landfill by allowing an additional 35 feet of waste to be disposed of in Phase IIIb of the City of Jacksonville North Sanitary Landfill should be denied because of alleged violations of the City of Jacksonville's permit or Florida law?

PRELIMINARY STATEMENT

On August 3, 1988, the City of Jacksonville filed an application with the State of Florida Department of Environmental Regulation (hereinafter referred to as the "Department"), for a modification of its permit for the operation of the City of Jacksonville North Sanitary Landfill. The Department issued a Notice of Proposed Agency Action and its Intent to Issue on January 12, 1989, indicating a decision to grant the application.

Representative Betty S. Holzendorf filed a letter dated January 18, 1989, with the Department contesting its proposed action on behalf of "residents of New Berlin Road."

Robin G. Leigh and Geraldine Leigh filed a letter dated January 30, 1989, with the Department also contesting its proposed action.

The Department filed a Request for Assignment of Hearing Officer and Notice of Preservation of Record with the Division of Administrative Hearings forwarding Ms. Holzendorf's challenge and Mr. and Mrs. Leigh's challenge. On May 22, 1989, the two cases were consolidated.

Ms. Holzendorf subsequently filed an amended petition in which she based her standing upon her capacity as a member of the Florida House of Representatives and her proximity to the City of Jacksonville North Sanitary Landfill. The portion of Ms. Holzendorf's amended petition concerning her challenge of the Department s proposed action based upon her capacity as a member of the Florida House of Representatives was struck by order dated July 5, 1989.

At the formal hearing the City of Jacksonville presented the testimony of George Rusling Knecht, Kirk Arthur McIntosh, Lawrence Martin Phelps, III, Malcolm Neil Aikenhead, II, Wayne Edward Tutt, Stephen Ray Lienhart and David Edward Deane. The City of Jacksonville also presented Mr. Knecht's testimony and the testimony of Sheila Darlene Dunn and Stephen Ray Lienhart in rebuttal. The City of Jacksonville offered 21 exhibits. They were marked as City exhibits and accepted into evidence.

Ms. Holzendorf testified on her own behalf and presented the testimony of Anita James, Ernest Edwin Frey and Geraldine Heidi Leigh. Ms. Holzendorf offered 24 exhibits. "Holzendorf" exhibits 1, 5, 8 and 11-24 were accepted into evidence. The others were rejected.

Mr. and Mrs. Leigh testified on their own behalf and presented the testimony of John Bowen, Alfred Mintz, Ann Poston, Curtis Moore, Karen Reynolds, Ms. Holzendorf, Janice Whatley and Mr. Knecht. The Leighs offered 27 exhibits. "Leigh" exhibits 1- 6, 10, 12-13, 15, 17-18, 20-23, 25 and 27 were accepted into evidence.

Official Recognition was taken of Rules 17-2, 17-3, 17- 4, 17-25, 17-103, 17-550 and 17-701, Florida Administrative Code, and Chapter 376 of the Jacksonville Municipal Ordinance Code. All of the parties except Mr. and Mrs. Leigh have filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. Introduction.

   
   

   1. The City of Jacksonville North Sanitary Landfill.

      
      

      1. The City of Jacksonville (hereinafter referred to as the "City") operates two solid waste disposal facilities. One, the City of Jacksonville North Sanitary Landfill (hereinafter referred to as the "North Landfill"), is located at the intersection of New Berlin Road and Island Drive in the northern part of the City and Duval County, Florida.

         
         

      2. The North Landfill is operated pursuant to permit #SC16-12205 (hereinafter referred to as the "Permit"), issued by the Department on June 6,

         1988. The Permit was issued "for operation of the City of Jacksonville North Sanitary Landfill, Phases I, II, and 111a; and of a new disposal area at the North Sanitary Landfill, Phase IIIb."

         
         

      3. The area in which the North Landfill is located is generally commercial property, with some rural and residential property:

         
         

         1. The North Landfill is bounded on the north by unimproved land owned by the City. This property stretches to Cedar Point Road. A few parcels within the property owned by the City to the north of the North Landfill are owned by others, including Mr. and Mrs. Leigh.

            
            

         2. The property to the east of the North Landfill is also unimproved property. It is owned by the St. Johns River Power Park.

            
            

         3. The St. Johns River Power Park is a power plant facility operated as a joint venture by the City, the Jacksonville Electric Authority and Florida Power and Light. The plant is located on the southern boundary of the North Landfill.

            
            

         4. The west boundary of the North Landfill is New Berlin Road. The property to the west of New Berlin Road is owned by a number of persons, including M & M Dairy.

            
            

         5. Phase IIIb of the North Landfill is located in the northeast quadrant of the landfill.

            
            

      4. The North Landfill primarily serves northern, and a part of western, Duval County. Approximately 3,000 tons of solid waste is disposed of each day in Jacksonville. Approximately 55% of the solid waste is disposed of at the North Landfill.

         
         

      5. The solid waste disposed of at the North Landfill consists primarily of mixed municipal solid waste and commercial solid waste.

         
         

      6. The North Landfill is open seven days a weeks from 5:00 a.m. to 11:00

         p.m.

         
         

      7. All phases of the North Landfill are permitted to a height of 75 feet.

         The land on which the North Landfill is located is approximately 25 to 30 feet above sea level. Therefore, approximately 45 to 50 feet of solid waste can be disposed of at the North Landfill.

         
         

      8. All phases of the North Landfill have some remaining capacity for the disposal of additional solid waste.

         
         

   2. The Petitioners.

      
      

      1. Ms. Holzendorf's residence is approximately ten miles from the North Landfill. Her office is located approximately seven miles from the North Landfill. She does not own any real property located in the immediate vicinity of the North Landfill.

         
         

      2. Ms. Holzendorf can smell the odor from the North Landfill at her residence when the wind is blowing from the North Landfill toward her residence.

      3. Ms. Holzendorf is a Florida State Representative for District 16. District 16 includes the population of approximately one-third of Duval County, The North Landfill is located within District 16.

         
         

      4. Ms. Holzendorf has received complaints from some of her constituents about the North Landfill.

         
         

      5. Ms. Holzendorf drives by the North Landfill approximately twice a week. She has visited the site on several occasions.

         
         

      6. Robin G. and Geraldine Leigh own real property adjacent to Cedar Point Road. The land is unimproved except for a well. The Leigh's land is located north of the unimproved City property located adjacent to the northern boundary of the North Landfill. The Leighs' land is approximately three-fourths of a mile from the North Landfill.

         
         

   3. The City's Proposal.

1. On August 3, 1988, the City filed an application with the Department for a modification of its Permit. In its application the City requested a "construction permit modification" of its Permit consisting of "extending the height of Phase IIIb of the North Landfill to a constructed elevation including final cover of no greater than 110 feet, NGVD."

   
   

2. The City's requested modification of the Permit will provide the City with an additional six months of solid waste disposal capacity.

   
   

3. The Department proposed to grant the City's requested modification. The Department issued a proposed Permit modification (hereinafter referred to as the "Modified Permit").

   
   

   1. Structural Design of Phase IIIb.

      
      

      1. Leachate Control System.

         
         

4. Waste dumped at the North Landfill is covered daily. Rain falling on the site is disposed of either as "leachate" or stormwater.

   
   

5. Leachate is liquid which passes through, and emerges from, solid waste.

   
   

6. Leachate on Phase IIIb of the North Landfill is collected and disposed of by a control system which was designed by George Knecht. Mr. Knecht described the leachate control system as follows:

   
   

   The leachate collection system consists of a two-foot drainage layer placed on top of the plastic liner.

   In this case the city used a plastic liner rather than a clay liner. It's HDPE, which is high-density polyethylene, and that collects the liquid and lets it flow downhill in this drainage layer to the central point, at which point the city has installed a six-inch perforated pipe which is wrapped in a filter media, which is

   basically a stone, a rock, which in turn is wrapped in a filter media which is porous cloth, and the purpose is that the liquid coming through the landfill gets into this drainage layer, runs downhill in the drainage layer, goes through the filter cloth, and the filter cloth keeps the sand from penetrating into the granular rock, goes through the rock and into the pipe, and then pipes are laid in a sloping downhill

   direction so that the fluid, once it gets in there, runs downhill.

   It's collected in manholes at the end of each one of these pipes.

   
   

   Transcript of Formal Hearing, page 49, lines 4-23.

   
   

7. The leachate control system of Phase IIIb was properly installed and designed. Although the Petitioners raised questions concerning the manner in which the leachate control system was installed and designed, they did not offer sufficient evidence to contradict the evidence presented by the City that the system was properly installed and designed.

   
   

8. The evidence also failed prove that the addition of 35 feet of solid waste to Phase IIIb will adversely affect the operation of the leachate control system. The addition of 35 feet of solid waste to Phase IIIb will probably ultimately have a beneficial effect on the leachate control system of Phase IIIb of the North Landfill. When Phase IIIb reaches its currently authorized height of 75 feet, the leachate depth on the liner of the control system is expected to be an average of approximately three inches. If an additional 35 feet of waste is added to Phase IIIb, the leachate depth on the liner of the control system is expected to decrease to an average of approximately two inches.

   
   

9. The depth of leachate on the liner of the leachate control system of Phase IIIb will not exceed one foot.

   
   

10. Specific Condition 3 of the Permit required that the City arrange for Department representatives to inspect the facility in the company of the Permittee, Engineer, and onsite operator after completion of construction activities.

    
    

11. Cells I and II of the leachate control system of Phase IIIb were not inspected by the Department. The Department was provided with a certification from a registered professional engineer that the installation was inspected and met state requirements. The Department normally relies upon such certificates.

    
    

    1. Stormwater Disposal System.

       
       

12. Rainwater which does not percolate through the waste, thus becoming leachate, runs off in the form of stormwater. Stormwater will consist primarily of rain which strikes the sides of the pyramid formed by the waste deposited on Phase IIIb of the North Landfill.

13. The existing stormwater disposal system of all phases of the North Landfill consists of a series of ditches which collect stormwater and channel the stormwater to other ditches which surround the perimeter of the North Landfill.

    
    

14. Stormwater travels through the ditches to collecting ponds located at the northeast corner of the North Landfill. Water reaching the holding ponds is treated by sunlight, oxidation and sedimentation. Ultimately, water reaching the holding ponds runs into Brown's Creek.

    
    

15. The existing stormwater collection system of Phase IIIb is in compliance with the Department's permitting requirements.

    
    

16. The proposed increase in height of Phase IIIb should not have any appreciable impact on the quality of stormwater eventually emptied into Brown's Creek.

    
    

17. Phase IIIb will be capped with an impermeable cap when it is closed. The City has had a stormwater management system designed to take into account the effect of the cap on stormwater disposal.

    
    

18. The stormwater collection system which will be installed when Phase IIIb is closed will consist of ditch blocks which will separate the stormwater collection system of Phase IIIb from the other phases of the North Landfill. Stormwater from Phase IIIb will be directed to a new holding pond. Stormwater will eventually be discharged into Brown's Creek.

    
    

19. The stormwater collection system which will be installed when Phase IIIb is closed will meet the requirements of Rule 17-25, Florida Administrative Code, and the St. Johns River Water Management District. The system will actually have a positive impact on water quality.

    
    

    1. Foundation.

    
    

20. The earth beneath the leachate control system of Phase IIIb, because of the weight of the solid waste to be deposited above it, is expected to settle approximately twelve inches under 75 feet of solid waste.

    
    

21. The addition of 35 feet of solid waste to Phase IIIb is expected to cause the earth beneath the leachate control system to settle an additional six inches for a total of one and one-half feet. The additional 35 feet of solid waste will not adversely affect the structural integrity or functional capacity of the leachate control system of Phase IIIb.

    
    

22. The proposed 35 foot addition of solid waste should not affect the ability of the earth beneath Phase IIIb to support the loads and stress it will be subjected to.

    
    

    III Alleged Violations.

    
    

    1. Water Quality

       
       

23. There is a marsh located to the northeast of the North Landfill. The marsh forms the headwaters of Brown's Creek. Brown's Creek flows into the St. Johns River, south of the North Landfill.

24. Alfred Mintz, the former owner of Clapboard Creek Fish Camp, a fish camp located approximately four miles from the North Landfill, testified about a "black gooey substance" which was on the surface of Clapboard Creek and Brown's Creek. Clapboard Creek flows to the northeast and east of the North Landfill. It eventually flows into the St. Johns River. The substance came from the direction of the North Landfill. Mr. Mintz did not know what the substance was and was unable to identify the source of the substance. The evidence failed to prove what the substance was or that the North Landfill was the source of the substance.

    
    

25. Anita James, a commercial fisher, testified about a "film" which she saw on Brown's Creek near the St. Johns River. The substance was not identified. Nor was the source of the substance identified. Ms. James' belief that the film came from the North Landfill is not sufficient to support a finding of fact that the film whatever it was, came from the North Landfill.

    
    

26. Mr. Mintz and Ms. James also testified about dead and diseased fish, and a dead dolphin and a dead manatee which they had seen in Clapboard Creek, Brown's Creek and other waters in the vicinity. No competent substantial evidence was presented to prove that the deaths or the disease was caused by waste disposed of at the North Landfill. No evidence concerning what killed the fish, dolphin or manatee, or what caused the diseased fish, was presented.

    
    

27. Specific Condition 13 of the Permit requires the City to monitor water at three points along the stormwater disposal system of the North Landfill. One of the three monitoring points is approximately one-tenth of a mile east of the North Landfill in Brown's Creek.

    
    

28. During approximately ten years of monitoring of water conditions only two parameters, iron and coliform, have been found in excess of state standards.

    
    

29. The evidence did not prove what the cause of the excess iron and coliform was. It is possible that the excesses were caused by leachate from Phases I, II and 111a, which do not have lined leachate control systems like Phase IIIb, seeping into the stormwater disposal system. Leachate from Phase IIIb does not aggravate the problem because the leachate control system of Phase IIIb is lined.

    
    

30. The City and the Department entered into a Consent Agreement on July 14, 1989 (hereinafter referred to as the Consent Order). Pursuant to the Consent Order the City is required to update its monitoring of stormwater. Quarterly monitoring of 37 parameters will be required. Specific Condition 19 A

    2) of the Modified Permit also specifies that 37 parameters are to be analyzed quarterly. Specific Condition 13 A 2 of the Permit only required analyses of 14 parameters.

    
    

31. The requested modification of the Permit should not contribute or extend any adverse affect of the North Landfill on water quality.

    
    

32. The Consent Order and Specific Condition 20 C of the Modified Permit require that the City analyze 35 parameters quarterly at four wells located inside the North Landfill. The City has contracted for the preparation of a groundwater monitoring plan consistent with the Consent Order and with the requirements of Rule 17-701.050, Florida Administrative Code.

33. Based upon a review of a well inventory conducted by the City and groundwater studies, wells in the vicinity of the North Landfill, including the well on Mr. & Mrs. Leigh's property and the M & M Dairy, are not at risk of contamination.

    
    

34. The requested modification of the Permit should not increase the risk of contamination of wells in the vicinity of the North Landfill.

    
    

    1. Violation of Height Limits.

    
    

35. In 1988 the City filled some portions of Phases I, II and IIIa above their 75 foot limit. The City did not, however, intentionally violate the Permit height limits. The City exceeded the height limit of the Permit only because it believed that solid waste placed on the landfill in excess of 75 feet would eventually settle to less than 75 feet and that this was consistent with the Permits limits.

    
    

36. The Department disputed the City's actions in exceeding the 75 foot limit for Phases I, II and IIIa in an administrative action separate from this proceeding. On July 14, 1989, the City and Department settled their dispute and entered into the Consent Order.

    
    

37. Pursuant to the Consent Order, the City paid a fine of $1,800.00. The City also built a laser tower for use in measuring the height of the North Landfill and agreed to use it to make more frequent surveys of the landfill.

    
    

38. The City was not required to immediately remove the excess height. The City has been allowed to wait until closure. Prior to closure the City can request permission from the Department to leave the excess height.

    
    

39. In the modification of the Permit at issue in this proceeding, Specific Condition 3 specifically provides for the manner in which waste may be disposed of in Phase IIIb in an effort to avoid the problems with excessive height experienced with Phases I, II and IIIa.

    
    

    B. Litter.

    
    

40. Specific Condition 17 of the Permit provides that [l]itter control devices shall be installed as necessary to prevent litter from leaving the disposal area.

    
    

41. Litter outside of the perimeter of the North Landfill along the roads leading to the landfill comes primarily from trucks bringing waste to the North Landfill. A small amount of the litter also comes from the site itself. Although the trucks are not City trucks, the City's litter collection efforts have been extended to cover the main portions of the roads leading to the North Landfill.

    
    

42. Litter around and on the North Landfill has been a problem. The City has taken a number of steps to control the amount of litter in and around the landfill:

    
    

    1. Waste deposited at the North Landfill is covered with six inches of soil. Although the City is not required to do so, six months before the formal hearing of these cases the City began covering the area of the landfill where waste is being deposited (hereinafter referred to as the "working surface") with six inches of dirt. The working surface is also located away from wind.

    2. Fences have been installed around the perimeter of the North Landfill.

       
       

    3. Fences are also placed around the working surface on windy days.

       
       

    4. Prior to 1989 the City patrolled the immediate vicinity around the North Landfill to collect litter which had not been covered. Collection was performed on a variable time schedule. Only three part-time employees participated in the collection patrols. Beginning in early 1989, the City expanded its litter collection patrols. The roads surrounding the North Landfill (New Berlin Road, Faye Road, Alta Road and Island Drive), are now patrolled daily by five full- time employees. The extent of the patrols prior to 1989 and since early 1989 is depicted on City exhibit 8.

       
       

    5. The inside of the perimeter of the North Landfill is patrolled for litter collection five days a week and on the weekend, as needed.

       
       

    6. The stormwater ditches are inspected on a daily basis. At the time of the formal hearing of these cases the stormwater ditches and retention ponds were being excavated. This process had been going on for approximately four to six months.

    
    

43. The Modified Permit contains Specific Condition 13, which is essentially the same as Specific Condition 17 of the Permit. Additionally, the Modified Permit contains Specific Condition 8, which provides:

    
    

    The Permittee shall maintain litter controls to prevent litter from entering the collection ditches and from leaving the landfill site. In addition to litter control fences, the Permittee shall provide daily manual collection of litter entering collection ditches and leaving the site.

    
    

44. Litter can best be controlled by compacting the waste, picking up litter regularly and using fences. The City has employed these methods of litter control. The City's efforts have been reasonable.

    
    

45. The proposed increase in height of Phase IIIb will not adversely affect the amount of litter associated with the North Landfill or the City's litter collection efforts.

    
    

46. The City is not required to continue to patrol the roads leading to the North Landfill which it is currently patrolling to pick up litter that is attributable to trucks bringing waste to the North Landfill.

    
    

    1. Odor.

       
       

47. There is no dispute that there is undesirable odor associated with the disposal of solid waste. This is true of the North Landfill. There is undesirable odor associated with the North Landfill most of the time.

48. The nature of the odor associated with landfill's generally, and the North Landfill in particular, was described at the formal hearing as follows:

    
    

    Q The odor that you noticed, is it to some degree all the time?

    A Some days it won't, but that's very rare. Usually it may be more. Some days it may be in the afternoon, it may not smell in the morning, it may be in the afternoon. Some days it may be in the morning and may not be in the afternoon.

    Q Could you quantify what percentage of the time?

    A Probably about 75 percent of the

    time.

    Q And you indicate that at times it's much stronger than at other times?

    A Yes.

    Q You mentioned odor from the landfill. This was back in time now a good way.

    When did you start noticing an odor from that landfill?

    A When did I first start noticing it? Q Yes.

    A The very day they started dumping.

    Q And that odor has persisted since then?

    A Not every -- not every single day, but yes.

    Q Some days you will have it, some days you won't?

    A Yes.

    Q How many years are we talking about since they opened approximately?

    A Well, we have been out there 17 years. .

    Q So, over that 14 or 15 years, is it fair to say that basically you have an odor, and some days it will be worse than the average odor, and some days `it will be better than the average odor?

    A Yes.

    
    

    Transcript, page 511, lines 9-15, page 514, lines 9-13, page 516, line 25, and

    page 517, lines 1-21.

    
    

49. Specific Condition 16 of the Permit provides that 1[o]bjectionable odors originating from the site shall be effectively controlled during all phases of operation.

    
    

50. The most effective method of dealing with undesirable odor associated with landfills is to cover the waste daily and minimize the contact of waste with water.

51. The City has been covering the waste disposed of at the North Landfill on a daily basis. The City's efforts have resulted in the North Landfill being as odor free as a "well run" landfill can be.

    
    

52. A City ordinance provides for citizen participation in controlling odors in Jacksonville. This ordinance is enforced by the City's Bio- Environmental Services Division.

    
    

53. As part of enforcing the odor ordinance the City provides a 24-hour telephone service which citizens can call and complain about odors. Since January, 1988, the City has received 5,500 complaints--an average of 280 complaints a month.

    
    

54. Complaints received about odor are investigated by nine inspectors employed by the City.

    
    

55. If five or more validated complaints are received about an odor producer during a 90-day period, the City issues a citation.

    
    

56. Since January, 1988, the City has received only three complaints about the North Landfill from citizens. No citations have been issued against the North Landfill.

    
    

57. Specific Condition 16 of the Permit is included in the Modified Permit as Specific Condition 15. The Modified Permit also includes Specific Condition 6, which provides:

    
    

    The Permittee shall apply no less than 6 inches of compacted initial cover to the top and sides of each cell by the end of each working day, except on the working face which may be left uncovered if additional solid waste will be placed on the working face within 18 hours. An intermediate cover of one (1) foot of compacted earth, in addition to the six

    (6) inch initial cover, shall be applied within seven (7) days of cell completion if final cover or an additional lift is not to be applied within 180 days of cell completion. The Permittee shall ensure that an adequate quantity of acceptable cover material is available for use during each day of operation of the landfill.

    
    

58. The modification of the Permit will not increase the odor associated with the North Landfill. It will, however, extend the period of time that odors emanate from the North Landfill.

    
    

    1. Access to the North Landfill and Dust.

       
       

59. Specific Condition 20 of the Permit provides that "[d]ust free, all- weather access roads to the site and active disposal area, or alternative wet weather disposal area shall be maintained." This condition has been complied with by the City. This condition is included as Specific Condition 12 in the Modified Permit.

60. The roads used to access the North Landfill are paved, two-lane roads. The lanes are twelve feet wide.

    
    

61. The speed limit on the access roads is 45 m.p.h.

    
    

62. Appropriate turn lanes are available.

    
    

63. During December, 1988, New Berlin Road and the North Landfill were able to effectively handle 600 trucks per day, an average of 80 to 90 trucks an hour during peak hours. Normally, the North Landfill effectively handles approximately 300 garbage trucks and 100 cover-dirt trucks a day with a peak of approximately 60 trucks per hour.

    
    

64. The unpaved right-of-way on the side of the roads leading to the North Landfill is worn and the source of dust.

    
    

65. Dust associated with the North Landfill comes from the roads leading to the landfill. The evidence failed to prove that dust comes from within the perimeter of the North Landfill.

    
    

    1. Tire Storage.

    
    

66. Whole tires have been stored and processed at the North Landfill. At the time of the formal hearing there were more than 1,000 tires at the landfill. The evidence failed to prove how long any specific quantity of tires had been stored at the North Landfill.

    
    

67. The City has not allowed the disposal of any whole tires at the North Landfill since July 1, 1989.

    
    

68. The City has been shredding tires at the North Landfill. At the time of the formal hearing the City had contracted for the shredding of all the tires which had been located at the North Landfill at the time the contract was entered into in early July, 1989.

    
    

69. The contract in existence at the time of the formal hearing was scheduled to expire in October, 1989. The City, however, expected to enter into a follow-up contract to continue shredding tires.

    
    

70. In February or March, 1989, the previous tire- shredder contractor walked off the job.

    
    

71. Mosquitoes at the North Landfill are managed by the City's Bio- Environmental Services Mosquito Control Division. Spraying is only done "as needed", however.

    
    

    F. Hazardous Waste, Oil Recycling and Infectious Waste.

    
    

72. The City has not established an independent hazardous waste disposal program, a used oil recycling program or a infectious waste disposal program.

    
    

73. The City attempts to prevent disposal of hazardous waste, used oil and infectious waste through educating the public with signs posted at the North Landfill entrance and periodic inspections of waste disposed of at the North Landfill.

74. The evidence failed to prove that hazardous waste, used oil or infectious waste is being disposed of at the North Landfill. The evidence also failed to prove that approval of the Modified Permit will cause the disposal of hazardous waste, used oil or infectious waste on Phase IIIb of the North Landfill.

    
    

75. Specific Condition 5 of the Modified Permit prohibits the disposal of hazardous waste and infectious waste at Phase IIIb of the North Landfill. This condition also requires that the City provide a minimum of one spotter for each working fact of Phase IIIb to watch for unauthorized waste.

    
    

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction and Standing.

       
       

76. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987). The Leighs proved that they have standing to participate in this proceeding.

    
    

77. Ms. Holzendorf also proved that she had standing to participate in this proceeding based upon her testimony that she can smell odor from the North Landfill at her residence. As pointed out by the City, Ms. Holzendorf failed to respond to a request for admission from the City which, if deemed admitted, indicates that Ms. Holzendorf cannot smell odors from the North Landfill at her residence. Ms. Holzendorf was, however, allowed to testify about this issue at the formal hearing and, therefore, her testimony will not be ignored.

    
    

78. The evidence presented by Ms. Holzendorf concerning her status as a member of the Florida House of Representatives for the area in which the North Landfill is located does not provide Ms. Holzendorf with standing to participate in this proceeding.

    
    

    1. Reasonable Assurances.

       
       

       1. General.

          
          

79. Section 403.707(1), Florida Statutes, provides, in pertinent part, the following:

    
    

    No resource recovery and management facility or site may be operated, maintained, constructed, expanded, modified, or closed without an appropriate and. currently valid permit issued by the department. . .

    
    

    Rule 17-701.030(1), Florida Administrative Code, provides that expansions or modifications of resource recovery and management facilities or sites are to be made only with a permit issued by the Department in accordance with Chapter 17- 4, Florida Administrative Code. The North Landfill is a resource recovery and management facility. See Section 403.703(7), Florida Statutes. Therefore, the City is required to obtain a permit in order to extend the height of solid waste which may be disposed of at Phase IIIb of the North Landfill.

    
    

80. Before an appropriate and currently valid permit may be issued by the Department, the Department must receive "reasonable assurance that the

    installation will not cause pollution in violation of any of the provisions of Chapter 403, F.S., or the rules promulgated thereunder." Rule 17-4.030, Florida Administrative Code. In this case the City has the burden of providing the assurances required by Rule 17-4.030, Florida Administrative Code. Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

    The essence of the City's burden of proof in this case, where the City is seeking a modification of an existing, valid permit, was described as follows in Friends of the Everglades, Inc. v. Department of Environmental Regulation, 496 So. 2d 181, 183 (Fla. 1st DCA 1986):

    
    

    the "reasonable assurance" requirement found in Rule 17-4.28(3) focuses on the activity for which permitting is presently sought, and does not (as appellant's interpret the rule) cast upon the applicant the burden of providing "reasonable assurances" anew with respect to the original project already constructed in accordance with a valid permit.

    
    

81. At issue in this proceeding is the City's request that its existing, valid Permit to operate the North Landfill be modified to allow an expansion of the height of Phase IIIb of the North Landfill from 75 feet to 110 feet. The City was, therefore, only required to provide assurances that the increase of 35 feet in height of Phase IIIb of the North Landfill will not cause pollution in violation of any of the provisions of Florida law. The City was not required to provide reasonable assurances anew with respect to the original project [Phases 1, II and 111a and the first 75 feet of Phase IIIb] already constructed in accordance with a valid permit.

    
    

    1. Leachate Control System.

    
    

82. Among the assurances which the City was required to provide, was assurances that the leachate control system of Phase IIIb of the North Landfill will comply with Rule 17-701.050(4), Florida Administrative Code. Rule 17- 701.050(4)(a)-(d), Florida Administrative Code, provides requirements concerning the design of leachate control systems. Rule 17-701.050(4)(e)-(f), Florida Administrative Code, provides requirements concerning leachate control performance standards. The evidence presented by the City established that the leachate control system of Phase 111b is designed and has been operated in compliance with these rules The evidence proved that the affect of allowing an additional 35 feet of waste to be disposed of at Phase IIIb will probably be to reduce the amount of leachate from an average of three inches to an average of only two inches on the leachate control system liner, well below the maximum one foot limit of the Departments rules. The evidence also proved that the additional waste should not adversely affect the structural integrity or functional capacity of the leachate control system of Phase IIIb. Although the Petitioners questioned the leachate control system of the North Landfill, they did not indicate what specific part, if any, of the Department's rules the City's proposed modification of its Permit fails to comply with. Nor did the Petitioners present sufficient evidence to prove that the approval of the Modified Permit will adversely affect the design or operation of the leachate control system of Phase IIIb.

    B. Stormwater Disposal System.

    
    

83. The Petitioners also raised questions concerning the treatment of stormwater. Surface water management system performance standards are provided for in Rule 17-701.050(4)(g)- (h), Florida Administrative Code. These rules require that landfills have a stormwater runoff control system designed, constructed, operated and maintained to collect and control stormwater to meet the requirements of Chapter 17-25, Florida Administrative Code. At issue in this proceeding is the effect of allowing the addition of 35 feet of waste to be disposed of at Phase IIIb on the stormwater control system of the North Landfill.

    
    

84. The weight of the evidence in these cases proved that the stormwater control system will comply with the requirements of Chapter 17-25, Florida Administrative Code, if the Modified Permit is approved. III. Alleged Violations.

    
    

    1. General.

       
       

85. The Petitioners have alleged that the Modified Permit should be denied because of past violations of Florida law and the conditions of the Permit by the City in its operation of the North Landfill. This position is evidently based upon Section 403.707(9), Florida Statutes, which provides:

    
    

    (9) The department may refuse to issue a permit to an applicant who by past conduct is this state has

    repeatedly violated pertinent statutes, rules, or orders or permit terms or conditions relating to any solid waste management facility and who is deemed to be responsible as defined by department rule. . .

    
    

86. The evidence presented in this proceeding proved that have been problems associated with the North Landfill. The weight of the evidence failed to prove, however, that there have been repeated violations of Florida laws or conditions of the Permit or that any violations of Florida law or conditions of the Permit will be extended by approval of the Modified Permit. At best, the Petitioners proved that solid disposal sites such as the North Landfill are not pleasant. The problems associated with the operation of the North Landfill, such as odor and traffic, however, do not constitute grounds for denying approval of the Modified Permit.

    
    

    1. Water Quality

       
       

87. The evidence presented in this proceeding failed to prove that the violations of water quality standards were attributable to Phase IIIb of the North Landfill. At best the -evidence proved that water quality standard violations were attributable to Phases I, II and IIIa. Those Phases of the North Landfill are not the subject of the Modified Permit. The evidence also failed to prove that the Specific Conditions of the Modified Permit and the requirements of the Consent Order will not prevent violations of water quality standards through the operation of Phase IIIb under the Modified Permit.

    1. Violation of Height Limits.

       
       

88. The Petitioners proved that the City exceeded the height limit of the Permit for Phases I, 11 and 111a. This problem was the subject of a dispute between the City and the Department in a separate action. The City did not believe that its actions was in violation of the Permit. The City's action, if it did constitute a violation of its Permit, was therefore not willful. The City has also taken steps, as agreed upon with the Department in the Consent Order entered into by the City and the Department, to avoid exceeding the height limitations of its Permit. Finally, the Department has included Specific Condition 3 in the modified Permit which specifically provides for the manner in which waste may be disposed of in Phase IIIb.

    
    

89. The evidence also failed to prove any violation of water quality standards for wells in the vicinity of the North Landfill or that approval of the Modified Permit will adversely affect well water quality.

    
    

    1. Litter.

       
       

90. Specific Condition 17 of the Permit provides that "[l]itter control devices shall be installed as necessary to prevent litter from leaving the disposal area." [Emphasis added]. The Petitioners proved that litter has been a problem in the area surrounding the North Landfill. Most of the litter,' however, comes off of trucks traveling to the landfill and not from within the landfill site. Therefore, the City has not violated the Specific Condition 17 of the Permit.

    
    

91. The Modified Permit contains Specific Condition 13, which is the same as Specific Condition 17 of the Permit. Additionally, the Modified Permit contains Specific Condition 8 which provides the following:

    
    

    The Permittee shall maintain litter controls to prevent litter from entering the collection ditches and from leaving the landfill site. In addition to litter control fences, the Permittee shall provide daily manual collection of litter entering collection ditches and leaving the site.

    
    

92. The evidence proved that the City has taken additional steps to reduce the litter problems associated with the North Landfill. Not all of those steps, however, are required as specific conditions of the Modified Permit at issue in these cases. In particular, the City is not required to continue picking up litter along the roads leading to the North Landfill which the City began cleaning in early 1989. Although the evidence proved that most of the litter along these roads comes off trucks and not from the landfill site, the litter would not be there but for the North Landfill. Therefore, even though the evidence failed to prove that the City has violated a condition of the Permit with regard to its litter control efforts, the Modified Permit should include a Specific Condition requiring the City to continue to pick up litter along the roads the City is currently patrolling.

    
    

    1. Odor.

       
       

93. Specific Condition 16 of the Permit provides that [o]bjectionable odors originating from the site shall be effectively controlled during all

    phases of operation." This condition is also contained as Specific Condition 15 in the Modified Permit. Additionally, the Modified Permit provides in Specific Condition 6 the following:

    
    

    The Permittee shall apply no less than 6 inches of compacted initial cover to the top and sides of each cell by the end of each working day, except on the working face which may be left uncovered if additional solid waste will be placed on the working face within 18 hours. An intermediate cover of one (1) foot of compacted earth, in addition to the six

    (6) inch initial cover, shall be applied within seven (7) days of cell completion if final cover or an additional lift is not to be applied within 180 days of cell completion. The Permittee shall ensure that an adequate quantity of acceptable cover material is available for use during each day of operation of the landfill.

    
    

94. The evidence proved that there is odor associated with the North Landfill. At issue is the question of whether the odors are being "effectively controlled." The City has taken the steps which it could take to minimize the odor associated with a solid waste disposal site. The weight of the evidence failed to prove that the City has violated the Specific Conditions of the Permit or Florida law.

    
    

    1. Access to the North Landfill and Dust.

       
       

95. Rule 17-701.050(2), Florida Administrative Code, requires that disposal sites be easily accessible by collection vehicles, automobiles and, where applicable, transfer vehicles. The evidence proved that the North Landfill has been in compliance with this rule. Evidence concerning traffic problems associated with the landfill did not prove that the landfill is in violation of any statute or Department rule.

    
    

96. Specific Condition 20 of the Permit provides that [d]ust free, all- weather access roads to the site and active disposal area, or alternative wet weather disposal area shall be maintained. This condition is continued as Specific Condition 12 of the Modified Permit. The evidence proved that this condition has been complied with. The roads leading to the landfill are paved, all-weather roads.

    
    

    1. Tire Storage.

       
       

97. Section 403.707, Florida Statutes, and Chapter 17-711, Florida Administrative Code, govern the disposal of whole tires. Chapter 17-711 was effective February 19, 1989. Pursuant to Rule 17-711.200, Florida Administrative Code, the North Landfill is either a waste tire site or a "waste tire processing facility." Pursuant to Rule 17-711.300, Florida Administrative Code, the City was required to request a permit or permit modification to operate a waste tire processing facility within ninety days after February 19, 1989. The City has complied with this requirement.

98. Pursuant to Rule 17-711.400(3), Florida Administrative Code, the City is prohibited from disposing of whole tires at the North Landfill after July 1, 1989. The evidence failed to prove that the City has violated this rule. Although a large number of whole tires have been kept at the North Landfill, the evidence failed to prove that the City has participated in, or allowed, the systematic disposal of whole tires at the North Landfill since July 1, 1989.

    
    

99. Rule 17-711.530, Florida Administrative Code, provides limits on the number of whole tires which may be stored at a waste tire processing facility. Waste tire processing facilities may not store a quantity of tires which is more than 30 times the daily through put of its processing equipment. Also, 75% of waste tires and processed tires at the site at the beginning of each calendar year must be processed and removed for disposal or recycling from the facility by the end of the year, or disposed of on the site in a permitted solid waste management facility.

    
    

100. Rule 17-711.510, Florida Administrative Code, provides limits on the number of whole tires which may be stored at a waste tire site. For waste tired sites there must be an executed contract which assures that all waste tires on the site will be processed every three months. The City has such a contract.

     
     

101. The evidence in this case failed to prove that the limits of Rules

     17-711.510 or 17-711.530, Florida Administrative Code, have been exceeded by the City. Although the Petitioners presented evidence that proved that a large number of tires have been located at the North Landfill they failed to prove how many tires have been stored at the landfill or the period of time over which specific numbers of tires have been stored. The Petitioners have failed to prove that the City has violated Florida law concerning the disposal of whole tires.

     
     

     1. Hazardous Waste, Oil Recycling and Infectious Waste.

     
     

102. The evidence proved that the City has not established an independent hazardous waste disposal program, a used oil recycling program or a infectious waste disposal program. The City has attempted to prevent disposal of hazardous waste, used oil and infectious waste through educating the public with signs posted at the North Landfill entrance and periodic inspections of waste disposed of at the North Landfill.

     
     

103. The evidence failed to prove that the City's efforts have not been effective. The weight of the evidence failed to - prove that hazardous waste, used oil or infectious waste is being disposed of at the North Landfill.

     
     

104. Specific Condition 5 of the Modified Permit prohibits the disposal of hazardous waste and infectious waste at Phase IIIb of the North Landfill and requires that the City provide a minimum of one spotter for each working face of Phase IIIb to watch for unauthorized waste.

     
     

105. Based upon the inclusion of Specific Condition 5 of the Modified Permit and the lack of evidence that hazardous waste, used oil or infectious waste has been disposed of at the North Landfill it cannot be concluded that approval of the Modified Permit will cause the disposal of hazardous waste, used oil or infectious waste on Phase IIIb of the North Landfill.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Department approving

issuance of the Modified Permit, modified by the inclusion of a Specific Condition requiring that the City continue its litter patrols as represented at the formal hearing.

DONE and ENTERED this 3rd day of January, 1990, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1990.

APPENDIX Case Numbers 89-0532, 89-0569

All of the parties except the Petitioners in case number 89-0569, have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

Ms.'s Holzendorf's Proposed Findings of Fact Proposed Finding

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1. See 49-52. The Consent Order was entered into on July 14, 1989. The last sentence is not supported by the weight of the evidence.

2. See 49.

3. 80. Whether a violation of Chapter 17- 711, Florida Administrative Code, has occurred is a conclusion of law. The weight of the evidence failed to prove that there is not program for the disposal of tires. The last paragraph of this proposed finding of fact is not supported by the weight of the evidence.

IV See 54-55, 61-63, 73 and 77.

IV-Hazardous Waste: 86. See 87-89. The second sentence is

not supported by the weight of the evidence.

1. Argument. Not supported by the weight

   of the evidence.

   V-Used Oil

   Recycling Plan: 86. See 87-89. The second sentence is

   not supported by the weight of the evidence.

2. 86. See 87-89. The last paragraph is not supported by the weight of the evidence.

3. Not supported by the weight of the evidence.

4. Not relevant to this proceeding. The Modified Permit only involves a lined portion of the North Landfill.

The Department's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

The City's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1. Contrary to testimony of Ms. Holzendorf.

2. Statement of law.

3-4 Hereby accepted.

5 Statement of law.

6 10.

7-8 13.

9 9.

10 1-2.

11 1-2 and 7.

12 4.

13 5.

14 1.

15 6.

16-19 3.

20 14.

21 Hereby accepted.

22 7.

23 8 and 49.

24 16.

25-26 20.

27-28 Hereby accepted.

29-30 25.

31 Hereby accepted.

32-35 22.

36-43 Hereby accepted

44 35-36.

45 Hereby accepted.

46 35.

47 See 36.

COPIES FURNISHED:

Lacy Mahon, Jr., Esquire Mark H. Mahon, Esquire Russell L. Healey, Esquire

Lacy Mahon, Jr. & Mark Mahon, P.A. 1120 Blackstone Building

Jacksonville, Florida 32202

Robin G. Leigh and Geraldine Leigh 6026 Heckscher Drive

Jacksonville, Florida 32226

William H. Congdon Assistant General Counsel

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Daniel D. Richardson, Esquire Dale H. Twachtmann, Secretary Robin A. Deen, Esquire Department of Environmental

Office of General Counsel Regulation Environmental Law Division 2600 Blair Stone Road

City of Jacksonville Tallahassee, FL 32399-2400 Towncentre, Suite 715

421 West Church Street Jacksonville, Florida 32202

Docket for Case No: 89-000532

Orders for Case No: 89-000532