A. BRAY, BRAY LANDFILL, )
vs. ) CASE NO. 77-1225
Respondent. )
Pursuant to notice, an administrative hearing was held before Michael R.N. McDonnell, Hearing Officer for the Division of Administrative Hearings, at 9:00 a.m., on January 12, 1978, in Room 297, Federal Building, U. S. Courthouse, 80 North Hughey, Orlando, Florida.
For Petitioner: Davisson F. Dunlap, Esquire, and
Robert L. Young, Esquire Carlton, Fields, Ward, Emmanuel,
Smith & Cutler, P. A. Post Office Box 1171 Orlando, Florida 32802
For Respondent: Segundo J. Fernandez, Esquire
Department of Environmental Regulation 2562 Executive Center Circle East Montgomery Building
Petitioner (hereafter Bray) filed an application with Respondent (hereafter DER) to operate a solid waste resource recovery and management facility on his property in Orlando, Florida. Bray here seeks review of DER's intention to adopt a final order denying his permit application. He contends that his method of landfill operation is not a present or potential threat to the public health, safety and welfare and that, therefore, an operation permit should issue notwithstanding Bray's intention to operate the site without daily cover, intermediate cover and compaction as required by Section 17-7.05(3), Florida Administrative Code. On the other hand, DER contends that Bray has failed to establish that his landfill operation will not pose a threat to the public health, safety and welfare.
In a case consolidated with the instant one, 1/ Bray attacks the rule as an invalid exercise of delegated legislative authority on the ground that there is no reason for daily cover and compaction for landfills when the solid waste is limited to non-putrescible substances. However, in that case the rule was
upheld due to Bray's failure to establish that non-putrescible substances do not constitute a threat to public health, safety and welfare.
Bray is the owner of and lives on property located at 5550 Pine Hills Road, Orlando, Florida. He operates a solid waste disposal site on this property.
By application dated June 6, 1977, and revised June 13, 1977, Bray applied to DER for an Operation Permit for a Solid Waste Resource Recovery and Management Facility pursuant to Chapter 17-7, Florida Administrative Code. At that time, Bray held a Temporary Operating Permit which had been issued on February 4, 1976. In Bray's application materials, which included the application dated June 6, 1977 and revised June 13, 1977, and letters from Bray to DER dated June 8, 1977, and June 30, 1977, Bray proposed an alternate procedure pursuant to Rule 17-7.05(3) (q) for operation of his landfill which procedure would permit Bray to cover, spread and compact the fill material in a manner different from that specifically set forth in Rule 17-7.05, Florida Administrative Code. DER did not consider Bray's request for an alternate procedure, but responded by letter stating that Bray must apply for a variance pursuant to Rule 17-1.25, Florida Administrative Code, and recommended denial of Bray's application for a permit for the following reasons:
No provisions were made for daily cover.
Refuse was not spread in two (2) foot layers.
No intermediate cover was applied within one week of cell completion.
No cover materials were stockpiled.
During the testimony presented, DER acknowledged that the fourth reason given for denial of the permits-no cover materials were stockpiled-is not a requirement of the Rules and is not a valid reason for denial of a Permit Application. This Hearing Examiner agrees and finds that Chapter 17-7, Florida Administrative Code only requires that the site have an adequate quantity of acceptable earth cover available. See Rule 17-7.05(1) (c)3, Florida Administrative Code. Bray presented adequate testimony demonstrating that sufficient acceptable cover material was available at his site.
Bray conceded at the hearing that it was still his intention to operate the landfill site without daily cover, intermediate cover and compaction as required by DER.
Bray's principal contention is that compaction and daily cover are not necessary for a landfill which accepts only non-putrescible waste. Bray urges that the attenuation of leachate, prevention of fires, prevention of settling and ponding of water which provide breeding grounds for mosquitoes and other vectors and reducing the area of land needed to dispose of solid waste are justifications for the requirements of compaction and daily cover of solid waste which may not be present at non-putrescible landfills. Bray concludes that the absence of these problems at his landfill obviates the necessity for the application of the provisions of the rule requiring daily and intermediate cover and compaction. However, Bray has not met his burden of establishing that non- putrescible waste does not require compaction and daily cover.
There are multiple reasons for the requirement of compaction and daily cover of solid waste. When solid-waste is spread to approximately a 2-foot
thickness and then compacted to a 1-foot thickness, followed by the daily application of a cover of 6 inches of compacted earth, a layering effect is created which helps attenuate, if not prevent, the formation of leachate from both putrescibles and non-putrescibles which may be contained in the waste.
Leachate is a liquid that has percolated through solid waste, usually originating as rain, which contains dissolved or suspended material that may contaminate ground water supply. Leachate occurs in landfills that accept putrescible material as well as landfills that accept only non-putrescibles. Compaction and daily cover consequently slow, if not prevent, the contamination of ground water supplies.
The formation of leachate containing various chemicals which would have adverse affects on the human body is expected when water percolates through strictly non-putrescible waste Commonly discarded non-putrescibles such as metals, plastics, ashes, rocks and dirt from an industrial site, miscellaneous organics, heavy metal solutions and sludges, organic solvents and oils, caustic and acid solutions, inorganic chemical solutions and sludges, pesticides and fungicide wastes, paint and ink wastes, asphalt roofing and paving material, explosive waste and radioactive waste are probable sources of leachate contamination. The process of leachate formation from non-putrescibles involve the physical and chemical reaction of compounds in the non-putrescibles with the water percolating through them.
The contamination of ground water supplies by leachate from either a putrescible or non-putrescible site constitutes a threat to the health, safety and welfare of the public as many of the contaminates are toxic and have adverse affects on the human body. In particular, leachate from non-putrescibles may contain toxic metal solutions, carcinogenic pesticides and other organic compounds as well as toxic inorganic compounds.
Another reason for compacting and daily cover is the prevention of fires. Exposed, non-putrescible wastes can ignite and result in serious dump fires. Daily cover, if applied, serves as a fire break and eliminates the fire hazard created by exposed combustible non-putrescible wastes. Furthermore, compaction and daily cover prevent settling and ponding which would contribute to both downward flow' of water through the solid waste and the creation of breeding grounds for mosquitoes and other vectors. Compaction and daily cover contribute to the general aesthetics of the site and reduce the area of land needed to dispose of solid waste
Bray has attempted to show that his method of operation effectively screens putrescible wastes from the site and otherwise adequately protects the public health, safety and welfare. However, the evidence which belies the assertion, shows that putrescibles have, in fact, been dumped at Bray Landfill. Coliform readings obtained in samples from monitoring wells at the Bray property can reasonably be attributed to putrescible matter on site. Birds have been observed feeding on site and these would not be feeding on non-putrescible wastes. The policing techniques are largely ineffectual. The site contains unopened trash bags with undisclosed contents as well as observed putrescible garbage. Trucks enter the site and dump their loads without inspection. Two major dump fires have occurred at the Bray Landfill during the past four years.
CONCLUSIONS OF LAW
Any person seeking to construct, operate, maintain, or expand a solid waste disposal facility must do so only pursuant to a permit issued by DER. The permitting standards of DER are found in Section 17-4.07, Florida Administrative
Code, which provide in pertinent part that (1) a permit may be issued to an applicant only if the applicant affirmatively provides DER with reasonable assurances based on plans, test results and other information that the activity for which the hermit is sought will not discharge, emit or cause pollution in contravention of DER standards, rules or regulations, and (2) if, after reviewing the application and all submitted information, DER determines that the proposed operation of the installation will not be in accord with applicable laws, rules or regulations, DER shall deny the permit.
The operation requirements which are objected to by Bray in the instant case are contained in Section 17-7.05(3), and in particular Subsections (h), (j) and (1). They require the spreading of waste in layers of approximately 2 feet in thickness and its compaction into approximately 1 foot in thickness, the daily covering of waste with 6 inches of compacted earth and the application of a 1 foot thick intermediate cover within seven days of cell completion. Bray desires a permit which would allow him to operate his landfill without compliance with these three particular requirements of the rules.
Bray has not secured a variance which would exempt it from the provisions of the cited rule. If the desired permit were issued, it would not be in accordance with the applicable laws, rules and regulations of DER and, in fact, would be in direct contravention thereof. Bray has not met his burden of affirmatively demonstrating reasonable assurance that the operation of this landfill will not discharge, emit or cause pollution in contravention of DER standards, rules or regulations. Accordingly, DER has no authority to issue the requested permit to Bray. It is, therefore,
