STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CUDJOE GARDENS PROPERTY OWNERS ) ASSOCIATION, INC. and VINCENT )

M. DROST, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1231

)

MONROE COUNTY, FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on September 1, 1977, in Key West, Florida.

The following appearances were entered: Vincent Drost, representing himself; Harold B. Thompson and Oscar MacMillan, representing the Petitioner, Cudjoe Gardens Property Owners Association, Inc.; Richard G. Payne, Key West, Florida, representing the Respondent, Monroe County, Florida; and Terry Cole, Tallahassee, Florida, representing the Respondent, Florida Department of Environmental Regulation.

On July 1, 1977, the Cudjoe Gardens Property Owners Association, Inc. and Vincent M. Drost ("Petitioners" hereafter) forwarded a Petition for Formal Hearing to the Department of Environmental Regulation ("Department" hereafter). The Petitioners were seeking a formal hearing respecting an application to construct a sanitary landfill which had been filed by Monroe County, Florida ("County" hereafter) with the Department. By letter dated June 22, 1977, the Department advised the Petitioners that it intended to issue a final agency order granting the permit requested by the County. The Petitioners were advised of their rights to seek a formal hearing.

Petitioners thereafter filed their petition, and on July 14, 1977, the Department forwarded the petition to the office of the Division of Administrative Hearings for the assignment of a hearing officer and the scheduling of a final hearing. The final hearing was originally scheduled by notice dated July 23, 1977 to be conducted on October 3 and 4, 1977. The County and the Department filed motions for expedited hearing, which were granted by order entered August 16, 1977. The hearing was rescheduled to be conducted on September 1 and 2.

Petitioners called the following witnesses at the final hearing: Vincent Drost, a resident of Cudjoe Key; Harold B. Thompson, a resident of Cudjoe Key; Captain Oscar D. MacMillan, a resident of Cudjoe Key; Mrs. Virginia MacMillan, a resident of Cudjoe Key; Harless Parmelee, a resident of Cudjoe Key; Richard Horn, a resident of Cudjoe Key; Lovenia Cook, a resident of Cudjoe Key, and Dr.

1. J. Norman, a resident of Cudjoe Key. The County called Charles B. Aguero,

   the manager of the County's Municipal Service District as its only witness. The Department called the following witnesses: Fred Bartleson, the head of the Department's South Florida District Office: and Glenn Boe, an engineer in charge of the Department's Key Marathon Office. Don Kosin, who is employed by the United States Fish and Wildlife Service as the Refuge Manager for lower keys national wildlife refuges, appeared as an interested member of the public, and testified. Hearing Officer's Exhibits 1-5, Petitioner's Exhibits 1-20, County Exhibits 1 and 2, Department Exhibit 1, and Public Exhibit 1 were offered into evidence and were received. Official notice was taken at the hearing of the Department's rules respecting resource recovery and management, Chapter 17-7, Florida Administrative Code. Accompanied by the parties' representatives, the undersigned Hearing Officer viewed the proposed landfill site during the evening of September 1, 1977.

   
   

   The Petitioner Vincent Drost, and several members of the Petitioner Cudjoe Gardens Property Owners Association, Inc. have submitted letters summarizing their position. The Respondent County has submitted a Post Hearing Proposed Order.

   
   

   FINDINGS OF FACT

   
   

   1. The Board of County Commissioners of Monroe County is responsible for maintaining a solid waste management program for the unincorporated areas of the county. The portion of the Florida Keys known as the "lower keys" between Pigeon Key on the north and Key West on the south is such an area. Prior to July 1, 1977, solid waste from this area was dumped at a site located on Middle Torch Key. Until approximately two years prior to the hearing, the Middle Torch Key dump site had been operated by private companies. The private companies apparently could not operate the site profitably under rules and regulations promulgated by the Department, and the County took over operation of the site. The site served as the solid waste dump for the lower keys until July 1, 1977. The Department had issued a temporary operating permit for the site, and open burning was permitted. The temporary permit expired on July 1, 1977.

      
      

   2. The Middle Torch Key dump site was never operated in full compliance with the Department's rules. The temporary operating permit was issued for the apparent purpose of allowing the County an opportunity to develop a system that could be operated accordance with the Department's rules. The County purchased a site on Cudjoe Key in the lower keys with the intention of utilizing it as a sanitary landfill. The instant proceeding is the culmination of the County's effort to obtain a permit to operate the Cudjoe Key site. The County has been utilizing the Cudjoe Key Site as a sanitary landfill since July 1, 1977.

      
      

   3. The Petitioners are homeowners in a residential subdivision which is located between three fourths of a mile and one mile from the proposed landfill site on Cudjoe Key. They object to operation of a sanitary landfill in such close proximity to their homes.

      
      

   4. In order to meet its obligation to maintain a solid waste disposal system, and in order to comply with DER regulations, the County needed to locate a landfill site in the area of the lower keys. The County lacks resources to truck solid waste from the lower keys to any sites in the upper keys, or on the mainland. Tie Cudjoe Key site was chosen for a sanitary landfill for two reasons. First, it was relatively isolated and had been used as a dump before. Secondly, it was for sale, and the County could afford to purchase it. The Cudjoe Key landfill site is not visible from any highway or from any residences or businesses. The site adjoins other public property, and is next to electric

      company property. The average height of the site is seven to eight feet above sea level. The site is located in close proximity to a borrow pit, and fill is thus obtainable at a fairly inexpensive rate. The County's plan of operation basically is to place solid waste on the site, and to cover it with six inches of landfill at the end of each working day. The site, if used in this manner, would have a useful life of approximately three years. If incineration techniques are eventually permitted, the life expectancy of the site would be increased to approximately twenty years.

      
      

   5. It does not appear that there is any ideal site for a sanitary landfill in the lower keys. There is very little dry land available that has not been previously developed. It appears that the best present alternative for solid waste disposal for the lower keys would be a joint venture with the City of Key West to desalinate salt water through incinerating activities at a site on Stock Island located just south of Key West. Neither the City of Key West, nor the unincorporated areas of the lower keys produce sufficient solid waste alone to make such a project feasible. Thus far a solution of this sort has not been politically feasible. Aside from this possibility, it appears that the proposed Cudjoe Key site is the best location for a sanitary landfill in the lower keys. The site on Middle Torch Key, which was previously operated as a dump would not comply with the Department's rules. The site is under water at high tide. In order to develop the site so that it would comply with the Department's regulation, a very large expenditure would be required.

      
      

   6. A copy of the County's completed application to the Department was received in evidence at the hearing as Department's Composite Exhibit 1. The application is complete, and contains the material required under Rule 17-7.05,, Florida Administrative Code.

      
      

   7. No competent evidence was presented at the hearing from which it could be concluded that the proposed Cudjoe Key landfill site does not comply with statutory requirements, or with the requirements set out in the Department's rules and regulations. Considerable evidence was offered from which it could be concluded that the site has not been operated in full compliance with the Department's regulations since July 1, 1977. Clearly the County has been operating the site since that date without a permit issued by the Department. It is apparent that the Department has not sought to take action against the

      County due to the pendency of this action. Pictures offered at the hearing, and observations made at the view of the site demonstrate that the required daily cover of solid waste has not been applied at the site. These violations could, and should if they continue, result in enforcement action being taken by the Department. The violations, and anticipated violations cannot, however, constitute grounds for denying a permit to operate a sanitary landfill site which complies with the pertinent statutes and rules and regulations.

      
      

      CONCLUSIONS OF LAW

      
      

   8. Division of Administrative Hearings has jurisdiction over the parties to this action and over the subject matter. Sections 120.57(1), 120.60, Florida Statutes (1976 Supp.).

      
      

   9. The County is responsible for providing adequate, safe, and sanitary resource recovery and manage facilities within the unincorporated areas of Monroe County. Rule 17-7.03(1), Florida Administrative Code. In order to operate a sanitary landfill site the County must obtain a permit from the Department. Section 403.707, Florida Statutes (1975). The County's application to operate a sanitary landfill at the Cudjoe Key site as filed and supplemented

      is complete, and contains all of the information required under the provisions of Rule 17-7.05, Florida Administrative Code.

      
      

   10. The Cudjoe Key landfill site meets the criteria and requirements set out in Chapter 17-7, Florida Administrative Code for sanitary landfills. No competent evidence was offered at the hearing from which it could be concluded that the site does not meet the applicable criteria. The County's application for a permit to operate the site should be granted.

       
       

   11. In view of the evidence that the Cudjoe Key site, which has been operated since July 1, 1977, has not been operated in total conformity with the operating plans submitted by the County, and with the rules and regulations of the Respondent, it is appropriate that the permit be issued subject to provisions that the County operate the site in full compliance with its operating plans, and with the rules and regulations of the Department. In the event that the County fails to operate the site in full compliance with its plans and with the Department's rules and regulations, it is important that immediate enforcement action be taken.

       
       

   12. Subsequent to the hearing, several points were raised in letters from members of the Petitioner Home Owners Association which were not raised at the hearing, and which have not been otherwise addressed herein. In a letter dated September 7, 1977, the Petitioner, Vincent Drost, has suggested that the expedited hearing prevented a full development of the facts. There was no objection to the holding of an expedited hearing prior to Mr. Drost's letter. No formal responses to the motions filed by the County and the Department to hold an expedited hearing were filed prior to the hearing. At the hearing Mr. Drost did mention that he felt somewhat handicapped by the holding of an expedited hearing, but he did not formally object thereto, or request any continuance. In his letter of September 7, Mr. Drost does not suggest what

further evidence might have been developed had he had more time to prepare for a hearing. Any motion to reschedule a hearing should be denied. In a letter dated September 14, 1977, Mr. Harold Thompson, a member of the Petitioner Home Owner Association has stated that he feels the Petitioners did not receive a fair hearing. His primary complaint seems to be the Proposed Order submitted by Mr. Payne, Counsel for the County. I have received the Proposed Order submitted by Mr. Payne as in the nature of closing arguments, and post-hearing legal memoranda. The Administrative Procedure Act clearly allows parties the right to submit Proposed Findings of Fact and Recommended Orders, and it would not have been appropriate to deny the County an opportunity to file such recommendations. Section 120.57(1)(b)(4), Florida Statutes (1976 Supp.). I have also received a copy of a newspaper article which indicates that Mr. Aguero may no longer be in charge of the County's waste disposal program. This would have no bearing upon the issues in this matter.

RECOMMENDED ORDER

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

RECOMMENDED:

That the Department of Environmental Regulation issue a permit to Monroe County, Florida, to operate a sanitary landfill at the Cudjoe Key site, provided that such permit be conditioned upon the County's operating the site in full conformance with its plans set forth in its application and with the applicable rules of the Department of Environmental Regulation.

RECOMMENDED this 3rd day of October, 1977, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 1977.

COPIES FURNISHED:

Mr. Harold B. Thompson President

6th Avenue Cudjoe Gardens

Sugarloaf Post Office, Florida 33044

Mr. Vincent M. Drost

Post Office Box 21, Cudjoe Gardens Sugarloaf Post Office, Florida 33044

Richard G. Payne, Esquire Post Office Box 1617

Key West, Florida 33040

Terry Cole, Esquire Department of Environmental

Regulation

2562 Executive Center Circle, East

Montgomery Building Tallahassee, Florida 32301

Docket for Case No: 77-001231

Orders for Case No: 77-001231