FLORIDA AUDUBON SOCIETY, TROPICAL ) AUDUBON SOCIETY, KEYSTONE POINT ) HOMEOWNERS ASSOCIATION, INC., ) THOMAS F. PAFFORD, AND MAUREEN )
B. HARWITZ, )
vs. ) CASE NO. 78-316
) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, STATE OF FLORIDA, ) CITY OF NORTH MIAMI, FLORIDA and ) MUNISPORT, INC., )
Respondents. )
A hearing was held in the above captioned matter, after due notices, on October 18, 1978, December 7 and 8, 1978, January 15-19 and 23, 1979, and March 1, 1979, at North Miami, Florida, before the undersigned Hearing Officer.
For Petitioners Joseph D. Fleming, Esquire Florida Audubon 620 Ingraham Building Society and Maureen 25 Southeast Second Avenue
B. Harwitz: Miami, Florida 33131
For Respondent Silvia Alderman, Esquire Department of Assistant General Counsel Environmental 2600 Blair Stone Road Regulation: Tallahassee, Florida 32301
For Respondent City Ken VanAssenderp, Esquire of North Miami: Smith, Young and Blue, P.A.
Munisport, Inc.: Richard J. Potash, Esquires
Washington, D.C. 20036
Whether permit application SWO 13-5152, should be granted under Chapter 403, Florida Statutes.
This case involves the application of Respondents City of North Miami and Munisport, Inc. to Respondent Department of Environmental Regulation (DER) for an operating permit under the provisions of Chapter 403, Florida Statutes, and Chapter 17-7, Florida Administrative Code, to operate a sanitary landfill located in North Miami, Florida. DER granted provisional approval of the application by the issuance of a Notice of Intent to issue the permit on January 27, 1978. Petitioners filed the instant petition of February 13, 1978, challenging the issuance of the proposed permit.
Final hearing herein was originally scheduled for April 7, 1978, but at the instance of the parties was continued and reset to commence on October 18, 1978. During the course of the final hearing, 29 witnesses presented testimony, including six public witnesses. (List of public witnesses - Hearing Officer's Exhibit 3) A total of 35 exhibits were admitted in evidence. Three exhibits (Exhibits 5, 13 and 15) were rejected by the Hearing Officer.
By application dated November 14, 1977, Respondent City of North Miami, Florida, as owner, and Respondent Munisport, Inc. as the "responsible operating authority" requested Respondent DER to issue a permit to operate a solid waste resource recovery and management facility consisting of 345.90 acres located at 14301 Biscayne Boulevard, North Miami, Florida. The site, known as the North Miami Recreation Development, had been operating as a sanitary landfill under temporary operating permits (TOP) issued by the DER on May 8, 1975 and September 21, 1976. The 1976 TOP provided for an expiration date of July 1, 1977, and contained various conditions designed to give the permittees a reasonable period of time to conform to the DER regulations relative to sanitary landfills. These included standard requirements such as the rendering of reports on the operation of the facility and prohibiting the deposit of raw and infectious waste, or hazardous waste that had not been rendered safe and sanitary prior to delivery. Additionally, the permit conditions required the facility to be so operated that it would cause minimum adverse effects on the environment, such as objectionable odors, contaminated storm water runoff, or leachates causing degradation of surface of ground waters. Further, the permit provided for a three-month review program after its issuance to consider the feasibility of dumping solid waste in
63 acres of submerged land subject to previous filling with clean fill and/or construction debris, filling of land above mean high water with garbage either above clean fill or above trenches filled with wood and construction debris and covered with clean fill, and a six-week period of weekly water quality monitoring at agreed to sites for analysis by both permittees and the Dade County Environmental Resources Management (DERM). The permit further prohibited the placement of refuse waterward of the mean high water line or in trenches cut below the natural ground water table. (Exhibits 1, 4).
By letter of January 27, 1978, DER gave notice to the applicant of its intent to issue the requested operation permit for the solid waste disposal facility and stated therein the following reasons for its determination:
The solid waste disposal site is in the public interest. The Department feels that the site will not substantially affect the water quality
or interfere with the area's wildlife. The applications and plans for this facility have been evaluated and found to be in conformance with Chapter 403, F.S., Chapter 17-4, FAC, and Chapter 17-7, FAC.
The letter stated standard conditions to which the permit would be subject, including special conditions that had been noted in the 1976 TOP. It also prescribed specific conditions that no solid wastes could be placed within 30 feet of any existing or future lake area, no dumping below water at any time nor in any dewatered excavations, and that a quarterly water quality monitoring program at monitoring wells No. 4 through 12 be sampled for specified substances. Proposed Condition 16 stated as follows:
Solid waste shall be deposited in locations consistent with those approved in the Army Corps of Engineers' dredge and fill permit #75B-0869. No solid waste shall be deposited in the areas commonly known as the wetlands and transitional zones of said wetlands, as shown on the attached map. Subject to the Corps approval of proposed modifications to permit #75B-0869, a revised DER solid waste permit will be issued consistent with the approved modifications.
A sketch of the landfill site purporting to designate the landfill deposal area, wetlands and transitional zone, and mean high water line was attached. (Exhibit 3)
The Petitioners consist of the Florida Audubon Society, which has some 2,000 members residing in Dade County, Tropical Audubon Society, which is affiliated with Florida Audubon Society; Keystone Point Homeowners Association, Inc., comprised of approximately 425 owners of mostly waterfront or canal homes in North Miami within a mile of the landfill site; Thomas Pafford, North Miami, Florida, who uses the waters of Biscayne Bay and nearby wetlands for recreational purposes; and Maureen B. Harwitz, who resides within a half mile of the landfill site and uses Biscayne Bay and the mangrove preserve adjacent to the landfill site for recreational purposes. Members of the above-named organizational groups use the waters surrounding the landfill site for recreational purposes and are concerned that the waters and fish and animal life therein will be adversely affected if the operation permit is granted. (Testimony of Lee, Brown, Pafford, Lippelman, Harwitz)
Munisport has been operating the North Miami landfill under a lease with the City of North Miami since approximately 1974. The ultimate aim is to convert the area into a recreational complex consisting of golf courses, club house, and other sports facilities. The site was used as an unregulated dump for many years prior to initiation of the Munisport operation. The site has been the subject of previously issued state and Corps of Engineer dredge and fill permits which are not the subject of this proceeding. The landfill site occupies an area generally between Northwest 135th Street on the south and Northwest 151st Street on the north. It lies between Biscayne Boulevard on the west, and state mangrove preserves and land of Florida International University on the east. It is less than a mile to Biscayne Bay on the east side of the landfill. The nearest point of entry is in the southeast area where Arch Creek empties into the Bay. At this time, Munisport has filled approximately 210
acres at the site with ten feet or more of fill material. A final cover has been completed over about 70 acres of this land and a golf course is presently being constructed. Pursuant to the dredge and fill permits, five lakes approximately 35 feet deep are nearly completed and some six or seven more are to be dug in the future pursuant to those permits. These lakes are separated from the solid waste by a 30 foot wide dike of clean fill. Although some cover material has been trucked to the site, about 1.6 million cubic yards of fill from the excavated lakes have been or will be utilized in cover operations for the landfill. The solid waste layer averages 15 feet in depth and lies about two feet above the ground water table. About 230 acres lie within the upland fill area above the mean high water line which is not within the area of jurisdiction of the Army Corps of Engineers. The mean high water line has been established by appropriate procedures under Chapter 177, F.S., and the surveying procedures were approved by the Department of Natural Resources on April 6, 1978. Although not stated in the Notice of Intent to issue the requested permit, DER intends to restrict the life of any permit to the time when the Metropolitan Dade County Resources Recovery Facility commences operation in approximately two years. The applicants and Dade County also have a memorandum of understanding to this effect. (Testimony of Stotts, Checca, Exhibits 1, 2, 35, 36, Hearing Officer's Exhibit 1)
Munisport receives solid waste from a variety of firms, institutions, and surrounding municipalities. Its procedures are for vehicles to enter and exit the site from an access road leading to Biscayne Boulevard. A sign is located along the road indicating the operating hours, fee schedule, waste restrictions and other pertinent information. A large portion of the site is virtually inaccessible due to dense mangroves and mosquito control canals and ditches. At the check-in gate, a cursory inspection of vehicle loads is made by Munisport personnel who check the contents for quantity. Each load is directed to a designated place at the site where Munisport employees spread and compact the waste. At this stage, they are instructed to look for any unauthorized materials, such as hazardous and infectious waste. If such wasted is found, the offending party is required to remove it from the site. compactors and bulldozers push the solid waste to the face of the landfill and spread it out to facilitate compaction. During the hours of 6:00 P.M. to 6:00 A.M., a watchman is on duty at the site to accommodate customers. If less than four or five truckloads arrive during the night hours, the material is not processed. If a larger quantity is involved, a Munisport employee moves and covers the material prior to the following workday. Due to the high ground water tabled, the area method is used for filling the site. This is a procedure by which refuse cells are constructed in lifts not to exceed ten feet in vertical height. They are composed of cells which constitute a one-day quantity of refuse. Six inches minimum cover of clean fill is applied daily, and a one foot intermediate cover is applied within a year after compaction. The cells are compacted in two-foot layers and, upon completion of a particular area, a minimum of two feet of final cover is applied. A dike constructed of compacted limerock borders the east side of the site and basically constitutes the present mean high water line. It is designed to protect the adjoining 129 acres of mangrove preserve and Biscayne Bay from any adverse water quality which might occur from runoff of degraded waters from the landfill site in the event of contamination. (Testimony of Haddad, Checca, Exhibit 1, 9)
The shallow soil underlying the landfill at depths ranging to almost ten feet consists of a combination of organic matter and debris from prior dump use, muck, and sand. Soil borings taken at the site show that limestone or calcareous rock known as Miami oolite is about eight feet below the soil layer. At this depth is found the Biscayne aquifer that carries the unconfined ground
water in the area. The aquifer is approximately 160 feet deep under the site and constitutes the major source of water supply in Dade County. The gradient of the water table for the landfill site runs in a southeasterly direction toward Biscayne Bay. Approximately 75% of the surface soil layer consists of organic muck, whereas in approximately 25% of the area, which was previously filled in the southern and westerly portions before commencement of the Munisport operation, the soil is primarily of a sandy type. (Testimony of Checca, Pitt, Exhibit 1)
Leachate is produced in sanitary landfills by precipitation that percolates down through decomposing refuse cells and picks up polluting substances created from the decaying solid waste. It can form a "plume" or "bubble" that takes the course of least resistance in flowing laterally or vertically through a landfill site. The strength and concentration of the leachate is dependent upon various factors including the composition, compaction, and the age of decomposing refuse, and the amount of water being introduced into the area. As it passes slowly through the soil beneath the solid waste material, the unsaturated soils act as filters and permit ion exchange which reduces the quantity of contaminants. Dilution takes place where leachate comes in contact with ground water and leachate movement occurs gradually through the ground water aquifer in its direction of the flow. The presence and movement of leachate normally can be detected by analysis of ground water samples taken at various places throughout the landfill site. (Testimony of Checca, Pitt, Coker, Exhibit 1)
Commencing in 1975, a monitoring program was instituted at the sanitary landfill to determine its effects on the ground water regime. A number of monitoring wells at various depths were constructed at different sites at the landfill, and samples were withdrawn and evaluated periodically to determine the types and degrees of pollution being generated by the landfill. Background samples were also obtained from wells off the site to establish the general character of water quality in the area and to compare these samples with those obtained from the site. Additionally, "grab" samples were taken of water from the bay and nearby canals and wetlands. Locations of the background and sampling wells were established by the applicants in conjunction with the DER and the Environmental Protection Agency. To determine the amount of leachate that probably would be generated at the site, the "water balance method" of computing the estimated time required to produce leachate, as well as the quantity that probably would be generated upon completion of the landfill, was made by representatives of the EPA in 1975 utilizing specific climatological and surface conditions at the site. This study indicated that percolation of surface water would increase during the operation of the landfill and before final soil and vegetative cover were in place, and that leachate would occur in about a year in larger quantities than would be produced by a completed landfill. Tests conducted during the ensuing three-year period of both surface and ground water through the monitoring program have failed to produce evidence that water quality is not within acceptable parameters or that water quality in the area surrounding the landfill site has been degraded. No significant differences in the concentrations of various ground water constituents were found between samples obtained at the disposal site and those collected in the adjacent mangrove forest or background areas. Neither was any evidence of contamination from leachate found in samples of surface water collected in the vicinity of the landfill or in nearby natural areas. (Testimony of Checca, Pitt, Linett, Perez, Exhibit 1, Exhibit 33)
Three basic factors have undoubtedly accomplished reduction in the amount of leachate generated at the landfill. These are (a) attenuation and
filtration of pollutants by unsaturated soils between and beneath the refuse cells, (b) biological assimilation by organisms living within the refuse cells and underlying soils, and (c) dilution upon contact with the ground water. A hydrogeologic study shows that the uppermost 14 feet of the aquifer immediately below the landfill represents only 0.2% of the total discharges with a ground water velocity of less than 0.1 foot per day. This part of the aquifer therefore provides considerable detention time for the water that percolates through the landfill. The strata, as well as the overlying organic marine soils, provide the absorption and assimilation that removes pollutants from the water. After water percolates through this layer, it reaches the highly permeable Miami oolite that carries about 43% of the ground water flow. The effects of soil absorption, filtration through the upper 14 feet of the aquifer, and dilution within the aquifer have demonstrably been sufficient to assimilate the water that percolates through the landfill. It is estimated that the time of travel of ground water from the landfill site to the closest discharge point in Biscayne Bay is approximately 68 years. Although the attenuation capability of the organic muck soil underlying the greater part of the landfill is high, the older area of the site in the southwestern portion which had been filled before the Munisport operation commenced, has no muck and consists primarily of sand with a higher rate of permeability. (Testimony of Checca, Pitt, Teas, Exhibits 1, 33)
The fact that the organic muck material under the landfill is not uniform throughout the site, plus the fact that there have been various breaches in the permeable oolite layer below the soil, will, in the opinion of some experts, eventually lead to the generation and movement of a leachate plume into such breaches and ultimately to Biscayne Bay. These breaches consist of the deep lakes at the site, the Arch Creek Canal to the south of the site and a dredged excavation at the exit of that body of water into the bay some 3,600 feet distant from the landfill. Additionally, these experts postulate that the dike located on the eastern border of the site will not prevent leachate from moving into the surrounding mangrove area. It is therefore estimated that in the above ways, large amounts of leachate would enter the bay and adjacent wetlands within a period of five to ten years.
(Testimony of Coker, Hudson, Pasley, Browder, Exhibits 12, 14, 29, 30)
Although water monitoring at various levels in and at probable discharge points near the site have not found degradation of water quality, the applicants propose to address any future leachate problems in a variety of ways. These include continuous periodic testing of water quality and monitoring wells, excavation of a canal on the upland side of the site to intercept leachate and treatment of any contaminated water therein or by pumping the water to an interior lake for treatment. Based on the particular type of any degradation, chlorination and precipitators would be utilized. Long-range problems will be further reduced by the ultimate construction of the golf courses and placement of final soil and vegetative cover to reduce percolation of surface water. This will be aggravated to an undetermined degree, however, by periodic irrigation of the golf courses. (Testimony of Checca, Pitt, Kelman, Exhibits 1,33)
During the early years of the Munisport operation, a number of violations of the conditions of the temporary operating permit occurred, but for the most part these were caused either through simple negligence of landfill personnel, breakdown of equipment, or introduction of unauthorized materials to the site by Munisport customers. In these situations, Munisport usually took prompt and effective action to prevent recurrence and to remedy the problem.
For example, on one occasion in 1977, some 12 drums containing residue of a chemical substance deemed to constitute "hazardous waste" was brought into the
site by persons unknown and was found leaking into the ground. A number of violations and warning notices were issued to Munisport by the Dade County Department of Environmental Resources Management (DERM), primarily in 1976, involving the placement of tree cuttings and wood scraps into excavations containing water at the south end of the site. These occurred, however, during a period when Munisport was engaging in tests to determine the suitability of such operations in conjunction with DER. Additionally, in 1976 and 1977, Munisport was advised of violations in the placement of garbage in exposed water, uncovered garbage, and delivery of garbage after hours. Munisport has had a continuing problem over the years with the unauthorized delivery of hospital wastes from various customers to the landfill in spite of letters written to hospital facilities and delivery firms cautioning them concerning the prohibition against the introduction of such material to the landfill. DERM personnel concede, however, that the operation has been continuously improved and that it is well-conducted in comparison with other landfills in the country. However, they believe that lakes should not exist in landfills and that the North Miami landfill is too close to the wetlands. (Testimony of Morrissey, Karafel, Sobrino, Haddad, Checca, Exhibits 6-11, 17, 18, 20-24, 27, supplemented by testimony of Pafford and Exhibit 16)
In a letter of January 17, 1977, DERM expressed concerns about the Munisport operation to DER. One of these concerns was that leachate would migrate to proposed golf course lakes and the resulting pollution would produce poor water quality. Although 1976 testing of then existing lakes at the site reflected unusually high amounts of fecal coliform, subsequent tests in late 1978 showed very little, but tests again in January, 1979, showed that several lakes were again somewhat high in coliform. Coliform is not considered to be a strong parameter in assessing the presence of leachate and amounts vary considerably from day to day in lake areas. Additionally, great numbers of birds are normally present on the landfill site during operations and contribute in raising coliform readings to some extent. Dade County has a current policy that does not permit lakes to be excavated on landfills operated by the county. (Testimony of Checca, Morrissey, Sobrino, Karafel, Kosakowski, Linett, Newman, Kelman, Perez, Exhibits 17, 19, 20, 24, 25, 31, 32, 37, 38)
CONCLUSIONS OF LAW
Section 403.703(7), Florida Statutes, defines "Resource recovery and management facility" to include any solid waste disposal area. Section 403.707(1) prohibits the operation of such a facility without a permit issued by DER. Section 403.708 provides pertinently as follows:
403.708 Prohibition; penalty.--
(1) No person shall:
(a) Place or deposit any solid waste in or on the land or waters within the state except in a manner approved by the department and consistent with applicable approved programs of counties or municipalities....
The above statutory provisions relative to the permitting to sanitary landfills have been implemented in Chapter 17-7, Florida Administrative Code. These rules are designed to protect the public safety, health, and welfare, and enhance the environment by regulation of the design, operation, and monitored disposal of solid waste. (Rule 17-7.01) To achieve this end, Chapter 17-7 required disposal sites being operated as "dumps" to either be eliminated or
converted to sanitary landfills no later than July 1, 1977. (Rule 17.7.07) Chapter 17.7.02 defines "sanitary landfill" as follows:
17-7.02 Definitions.
* * *
(6) "Sanitary landfill" is a disposal facility employing an engineered method of disposing of solid waste on land in a manner which minimizes environmental hazards by spreading the solid wastes in thin layers, compacting the solid waste to the smallest practical volume, and applying cover material once each working day.
Rule 17-7.03(7) provides that a sanitary landfill operation permit shall be issued by the DER when the facility in question meets the criteria of its rules or has corrected deficiencies specified in temporary operating permits. Certain prohibitions are contained in Rule 17-7.04 which are applicable in this case.
These prohibit the deposit of raw infectious waste in any sanitary landfill and require that the owner of hazardous waste render it safe and sanitary prior to delivery to the disposal facility. The rule further provides that, unless otherwise approved by the DER "and/or based on installation of approved control measures" solid waste may not be placed "in or within 200 feet of any natural or artificial body of water," or "where the water table is less then five (5) feet below normal ground surface." Rule 17-7.05(3) prescribes the approved method of operating a sanitary landfill and the manner in which the DER may require the installation of monitoring wells and frequency of samples to be taken. It provides that the DER may waive the requirement of a minimum separation of five feet between solid waste and the ground water table if it finds that adequate controls, such as perimeter ditches or well point systems, are provided. It also requires that operators of landfills must provide for the collection, control and treatment of surface runoff from the site to meet established standards of receiving waters, and that any leachate emanating from a landfill be collected and treated if it is a potential source of water pollution.
The above regulatory provisions encompass basically the matters raised as points of controversy in the instant proceedings. No question has been raised in this case as to the fundamental compliance by the applicants with requirements as to the compacting and cover of solid wastes or other technical requirements of Rule 17-7.05.
DER's proposed approval of exceptions to its rules prohibiting placement of waste within 200 feet of artificial bodies of water and less than five feet above the water table are considered to be a reasonable exercise of its discretion. Its basis for these determinations is that the lakes will be protected by buffer dikes surrounding each lake and that the attenuating capacity of the muck soil underlying the solid waste is sufficient to prevent such pollution beyond state standards. Its rule permits the agency to waive the five foot separation requirement if it finds that adequate controls are provided. DER has thus found that the attenuating capability of the soil constitutes a sufficient control in this respect. Its preliminary decision is based on test results of water samples taken over a period of years and is supported by the opinions of those experts who are most knowledgeable of the site.
Although no specific criterion for granting the exception regarding the 200 feet separation of solid waste from artificial bodies of water is
prescribed in the regulations, again DER has determined that the controls in the was of perimeter dikes will prevent pollution in excess of state standards.
This, too, is supported by the opinion of the most knowledgeable experts who testified concerning this particular landfill. Accordingly, it can only be concluded that such exceptions are rationally supported and justified by the preponderance of the evidence.
Although at least one incident involving introduction of hazardous waste into the landfill site has been discovered in the past, this was an isolated occurrence that was remedied upon discovery, and there has been no evidence presented that it was other than an unusual situation. Although the operators of the landfill have had difficulty preventing the introduction of infectious waste onto the site, the nature and relatively small quantities of this material make it difficult to identify and segregate. The site is not located on the watershed of any surface water supply and it is doubtful that a large amount of such material has found its way into the compacted layers of waste in view of the continuing program of the applicants to advise its customers of the prohibitions against its delivery to the landfill. It is considered that the problem is not highly significant when measured against the scope of the entire operation.
Petitioners understandably are apprehensive that leachate may be generated in large quantities in the future and ultimately move from the landfill into adjacent wetlands and the bay. The applicants do not discount the fact that leachate exists in landfills and that it could at some future time increase to unacceptable quantities. However the evidence establishes that such has not been the case to the present date based on periodic monitoring from test well sites and other strategic areas near the landfill site. The monitoring requirements that have been established in prior years of operation and which will be continued as conditions to the issuance of the permit provide the best means within the state of the art to determine if and when a water quality problem arises. If this is later determined to be the case, the artificial methods to be used by the applicants for control and disposition of leachate are deemed to represent adequate measures to prevent the escape of contaminants into surrounding waters. If found not to be so adequate, DER has sufficient enforcement capabilities under Chapter 403 and implementing regulations to require necessary compliance with state standards.
Petitioners maintain that DER may not issue the permit because the construction of lakes on the site violates that portion of Section 403.708(1)(a) which prohibits the placement of waste on the land if it is inconsistent with an applicable approved program of the county. It points to testimony from Dade County officials that the county no longer permits the construction of lakes on landfills operated by that entity. However, while this policy of Dade County may be an "approved program" as to its own facilities, there was no showing that it had applicability to other landfills within the county.
It is concluded that the applicants have met the sanitary landfill criteria established in Rule 17-7.05 for the issuance of an operating permit as required by Section 403.707 under the general standards prescribed in Rule 17- 4.07, F.A.C.
Those proposed findings of fact and conclusions of law submitted by the parties which are not incorporated in this Recommended Order have been considered and are deemed to be unwarranted by the law and facts of the case.
That a permit be issued to the City of North Miami, Florida and Munisport, Inc. to operate the solid waste disposal facility as described and under the conditions stated in the letter of the Department of Environmental Regulation, dated January 27, 1978, wherein it gave notice of its intent to issue the said permit.
DONE and ENTERED, this 13th day of April, 1979, in Tallahassee, Florida.
THOMAS C. OLDHAM
Tallahassee, Florida Smith, Young and Blue, P.A. Post Office Box 1833
Josepy D. Fleming, Esquire
25 Southeast Second Avenue Richard J. Potash, Esquires Miami, Florida 33131 2000 L Street NW - Suite 612
Washington, D.C. 20036
