Judges: G. STEVEN PFEIFFER
Agency: Department of Environmental Protection
Latest Update: Dec. 27, 1979
Summary: Petitioner entitled to variance concerning above ground composting of yard trash within 200 feet of water.
79-1569.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CITY OF NAPLES, )
)
Petitioner, )
)
vs. ) CASE NO. 79-1569
)
FLORIDA DEPARTMENT OF )
ENVIRONMENTAL REGULATION, )
)
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 the above matter on October 10, 1979, in Naples, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: David W. Rynders
Naples, Florida
For Respondent: H. Ray Allen
Tallahassee, Florida
On or about March 12, 1979, the City of Naples applied to the Department of Environmental Regulation for a variance from the Department's rules respecting disposal of horticultural yard trash. The Department's rules prohibit placement of any solid waste in or within 200 feet of a natural or artificial body of water, or in the ground water. Through its application the City is seeking a variance from these requirements so that it can continue to dispose of horticultural yard trash in the ground water adjacent to the Gordon River. The variance request was filed pursuant to the Department's Rule 17-1.57, Florida Administrative Code. The Department responded to the variance application with a request for additional information. The additional information was forwarded by letter dated April 19, 1979. By letter dated June 21, 1979, the Department issued, its Notice of Intent to grant the variance request respecting disposal of solid waste within 200 feet of a natural body of water, and to deny it with respect to the request to place solid waste in the ground water. The Department's action was noticed in the September 21, 1979, issue of the "Florida Administrative Weekly". The City thereafter filed a petition for formal administrative hearing. On or about July 23, 1979, 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 hearing in accordance with the provisions of Section 120.57(1)(b)3, Florida Statutes. The final hearing was scheduled as set out above by notice dated August 7, 1979.
At the final hearing the City called the following witnesses: William F. Savidge, the Director of the City's Public Works Department; John McCord, the
City's Engineer; and William E. Nicholson, the Assistant Supervisor of the City's Waste Water Treatment Plant. The Department called the following witnesses: Newton Babcock, an environmental specialist on the staff of the Department's Deputy Director of Environmental Permitting; Marshall Mott-Smith, an environmental specialist employed in the Department's Fort Myers office; Rodney S. DeHan, the Administrator of the Department's ground water section; and Jeremy Craft, the Administrator of the Department's permit section. The City offered exhibits designated Petitioner's Exhibits 1 and 2 into evidence, and these were received. The Department offered exhibits designated as DER Exhibits
1 through 10, and these were received. The City has submitted a posthearing Memorandum of Law, and the Department has submitted Proposed Findings of Fact, Conclusions of Law and Recommended Order.
FINDINGS OF FACT
As a part of its solid waste disposal program, the City of Naples operates a yard trash compost site adjacent to the Gordon River within the city limits. A fifteen (15) acre site has been leased from a private owner, and the lease requires that the City operate the site in compliance with permitting requirements. The site is intended to received only horticultural yard trash. The City picks up such trash in trucks, and delivers it to the site. Cells, or ditches, have been excavated at the site to a depth of approximately six (6) feet. The trash is deposited into the cells. The cells are excavated to a depth below the ground water level, so the trash is placed directly into the ground water. Although only horticultural yard trash is intended to be disposed of at the site, and although the City attempts to enforce this intention, household garbage including food waste frequently finds its way into the cells. The City has been utilizing this site in this manner for approximately fifteen
(15) years, and for at least the past ten (10) years has operated under all required local and state permits. The City is presently operating the site in accordance with a permit issued by the Department of Environmental Regulation on December 31, 1976. The permit expires on January 1, 1980.
Sometime in February, 1979, the Department first gave notice to the City that the yard trash compost site was not being operated in conformity with all applicable rules and regulations. Specifically the Department advised the City that the site violated the provisions of Rule 17-7.04(2)(a), Florida Administrative Code, because solid waste was deposited within 200 feet of a natural water body (the Gordon River) and Rule 17-7.04(2)(f), because solid waste was deposited in an area where the water table was less than five (5) feet below the normal ground surface. Rule 17-7.04(2)(f) was modified during the course of this variance application proceeding. The rule now requires that solid waste not be deposited directly into the ground water. The City's site neither conformed with the rule in effect in February, 1979, nor with the present modified rule. The Department and the City agreed that the City could continue to operate the site pending the completion of this proceeding, and, until all present cell excavations are filled.
Yard trash compost sites such as that operated by the City do not involve as profound a threat to water quality as do more generalized solid waste disposal sites. Nonetheless placing of large quantities of yard trash at or in water bodies will cause infusion of large quantities of nutrients into the water body. The composting or breaking down of yard trash can take place under either aerobic or anaerobic conditions. Aerobic decomposition takes place where vegetation is exposed to oxygen. Anaerobic decomposition takes place where there is no oxygen. If vegetation is covered by water or soil it will not have oxygen. The materials will only partially decompose through a process called
fermentation. Such material, when not fully decomposed, cannot be fully compacted nor reduced in volume as would happen with aerobic decomposition. The system utilized by the City of Naples therefore will result in a springy texture to the area. When decomposition takes place above ground, and vegetation is exposed to oxygen, the Vegetation can break down into its primary elements, resulting in a humus material which can be utilized to condition soil, and which will become part of the soil and stabilize the soil. The City's method of disposal introduces very concentrated amounts of organic substances into the ground water. There is thus a large increase in nitrogen and phosphates in the ground water. Placing such large quantities of organic material into the ground water effectively pollutes the ground water. There is a shallow water aquifer below the surface level at the trash compost site. Below this aquifer is a layer of sand, marl and rock which is not highly permeable. Below this layer lies a second aquifer which is an important source of drinking water in the area. Trash at the compost site under the City's present system is deposited directly into the upper aquifer. This water flows either into the Gordon River adjacent to the site, or more slowly permeates down into the lower aquifer.
Placing the organic materials into the ground water thus constitutes a serious source of pollution either to the Gordon River, or to the lower aquifer, or to both. Certainly it serves to profoundly degrade the water quality of the ground water.
The City has operated two (2) test wells adjacent to the site for the past eighteen (18) months. Results of samples taken from these test sites are inconclusive, and do not reveal that the City's disposal system has caused any pollution whatsoever. This does not mean, however, that no adverse impact could have been detected, or that none has taken place. The City's test wells were not placed so that they would intercept the flow of ground water from the site. Even if they had been so placed, testing has taken place only every six (6) months, and not in a manner so that any viable conclusions can be reached. The Department has recently installed test wells, and although data from them is not complete, it does reveal a definite flow of pollutants from the site to the test wells. Although the flow of ground water will serve to dilute the pollutants to some degree, it is inevitable that the ground water supply itself will be degraded, and that eventually either the waters of the Gordon River or of the lower aquifer will also be adversely affected.
Under its present system the City estimates that it will be able to utilize the compost site for eight more years. The City has contended that operating the site as an above ground compost site would effectively cut in half the time period over which the site could be utilized and would increase the cost of maintaining the site by requiring additional equipment, and eventually requiring additional equipment for the transporting of yard trash to a remote site. These contentions are not supported by the evidence. In the first place the City could save money in operating the site as an above ground composting site because it would not be necessary to make excavations. Furthermore, above ground composting of the materials would result in usable compost which could be sold as land fill. This could constitute a source of revenue, and also open the site for additional usage.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties. Sections 120.57(1), 120.60, Florida Statutes.
Section 403.201, Florida Statutes provides in pertinent part:
Upon application the department in its discretion may grant a variance from the provisions of this act or the rules and regulations adopted pursuant hereto. Variances and renewals thereof
may be granted for any one of the following reasons:
There is no practicable means known or available for the adequate con- trol of the pollution involved.
Compliance with the particular requirement or requirements from which a variance is sought will necessitate the taking of measures which, because of their extent or cost, must be spread over a con- siderable period of time. A variance granted for this reason shall prescribe a timetable for the taking of the measures required.
To relieve or prevent hardship of a kind other than those provided for in paragraphs
(a) and (b). Variances and renewals thereof granted under authority of this paragraph shall each be limited to a period of 24 months except that variances granted pursuant to part II may extend for the life of the permit or certification.
The instant variance is being sought under the provisions of paragraph (1)(c) of the statute. The City has contended that compliance with the Department's rules would cause an economic hardship. This contention has been established with respect to Rule 17-7.04(2)(a). The City has no economically viable site for yard trash disposal other than that presently utilized. The contention has not been established with respect to Rule 17-7.04 (2)(f). It does appear that the site can be operated as an above ground composting site at little or no cost beyond the cost of operating the site as at present. Furthermore, it appears that with proper planning the site can be utilized as an above ground composting site for as long or longer a period as would be possible under the present system.
The Department has indicated its willingness to grant a variance from the provisions of Rule 17-7.04(2)(a) respecting the disposal of solid waste within 200 feet of a natural body of water. This variance is supported by the evidence. If the variance is not granted the City will need to undertake a very expensive program of carrying yard trash to a remote site. It does not appear that operating the site as an above ground composting site constitutes any known profound threat of pollution to the Gordon River.
The City has contended that the Department has failed to comply with the mandate of Florida Statutes Section 403.704(15). The section provides:
[The department shall] promulgate rules for solid waste disposal areas limited exclusively to yard trash, for solid
waste disposal areas limited exclusively to construction and demolition debris, and for solid waste disposal areas limited exclusively to trash. Such
rules shall take into account the reduced environmental threat caused by the segregated disposal of these solid wastes. Reduced requirements for engineering, location, covering, monitor- ing wells, or forced draft burning may
be allowed for such solid waste disposal areas, providing the requirements will not allow a threat to the public health or environment to exist and providing the requirements are consistent with all other state or local laws, ordinances, rules, regulations, or orders.
It does not appear that the Department has adopted rules in compliance with the statute; however, the instant proceeding is not a petition to adopt a rule under Section 120.54(5), Florida Statutes. Furthermore, it is apparent from the Department's willingness to exempt the City from the requirements of Rule 17- 7.04(2)(a), and to allow it to compost the yard waste above ground that the Department is taking a more lenient approach toward separate disposal of yard trash than it would take with respect to solid waste generally.
The variance application should be granted as to the requirements of Rule 17-7.04(2)(a), and denied as to Rule 17-7.04(2)(f).
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED:
That a final order be entered granting the variance application filed by the City of Naples with respect to its request to be relieved from the requirements of Rule 17-7.04(2)(a), with conditions imposed as set out in the Department's notice dated June 21, 1979 (DER Exhibit 4).
That a final order be entered denying the exemption request filed by the City of Naples with respect to the requirements of Rule 17-7.04(2)(f).
RECOMMENDED this 28th day of November, 1979, in Tallahassee, Florida.
STEVEN PFEIFFER Assistant Director
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
COPIES FURNISHED:
David W. Rynders City Attorney City of Naples
735 8th Street South Naples, Florida 33940
Ray Allen
Assistant General Counsel Department of Environmental
Regulation
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CITY OF NAPLES, )
)
Petitioner, )
)
vs. ) CASE NO. 79-1569
)
FLORIDA DEPARTMENT OF )
ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
APPENDIX TO RECOMMENDED ORDER, RULINGS IN ACCORDANCE WITH FLORIDA STATUTES SECTION 120.59(2)
The Department of Environmental Regulation has submitted Proposed Findings of Fact and Conclusions of Law. Rulings upon the proposed findings and conclusions are set out herein in accordance with Section 120.59(2), Florida Statutes.
The Department's Proposed Findings of Fact numbered 1-6 and 13-19 have been substantially adopted In the Recommended Order, and are hereby adopted to the extent that they are not inconsistent with the findings of fact set out in the Recommended Order. Paragraphs 7 and 10-12 are supported by the evidence to the extent that it is clear that the overload of nutrients placed in the site under the present system would eventually move either to the Gordon River or downward to the lower aquifer. The degree to which the water of the Gordon River or of the lower aquifer would be harmed is not revealed from the evidence.
The Department's Conclusions of Law 1, 2, and 3 have been substantially adopted in the Recommended Order, and are hereby adopted to the extent that they have not been.
ENTERED that 28th day of November, 1979, in Tallahassee, Florida.
STEVEN PFEIFFER Assistant Director
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
COPIES FURNISHED:
David W. Rynders City Attorney City of Naples
735 8th Street South Naples, Florida 33940
Ray Allen
Assistant General Counsel Department of Environmental
Regulation
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CITY OF NAPLES,
Petitioner,
vs. CASE NO. 79-1569
FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondent.
/
FINAL ORDER
BY THE DEPARTMENT:
On November 28, 1979, the duly appointed Hearing Officer in the above- styled matter completed and submitted to the Department and all parties a Recommended Order. A copy of that Order is attached hereto as Exhibit "I",
Pursuant to Section 17-1.68, Florida Administrative Code and Section 120.57(1)(b)8, Florida Statutes, the parties were allowed ten (10) days in which to submit written exceptions to the Recommended Order. Neither the Petitioner nor the Respondent submitted exceptions. The Recommended Order therefore came before me as head of the Department for final agency action. Having considered the Recommended Order submitted herein and being otherwise fully advised it is therefore,
ORDERED that:
The Findings of Fact contained in the Hearing Officer's Recommended Order (Exhibit "I") be and are hereby adopted and approved.
The Conclusions of Law contained in the Hearing Officer's Recommended Order (Exhibit "I") he and are hereby adopted and approved with the exception of Paragraph 4, which is hereby stricken from the Recommended Order in that the Department as of May 25, 1979, has adopted rules in compliance with Section 403.704(15), Florida Statutes. See Chapter 17-7.02, 17-7.03, 17-7.05, Florida Administrative Code. All remaining Conclusions of Law entered by the Hearing Officer be and are hereby adopted and approved.
The recommendations of the Hearing Officer contained in the Recommended Order (Exhibit "I") be and are hereby adopted and approved with the clarification that Rule 17-7.04(2)(a), Florida Administrative Code, has been renumbered as Rule 17-7.04(3)(c), Florida Administrative Code, and that Rule 17- 7.04(2)(f), Florida Administrative Code has been renumbered as Rule 17- 7.04(3)(b), Florida Administrative Code.
Accordingly, the variance shall be issued within fifteen (15) days by the Department of Environmental Regulation subject to the following six (6) conditions:
A soil berm shall be maintained between the site and the Gordon River (or any other affected off-site body of water) in such a manner that it is sufficient to prevent the surface runoff of the Naples Yard Trash Com- post Site during a 25-year, 24-hour storm event from leaving the site and entering the Gordon River.
Such horticultural materials as are per- mitted to be disposed of at this site are to be spread only on the surface of this site. These materials are to be windrowed and/or turned periodically to expedite aerobic decomposition.
Monitoring Program - Continue current program of biannual sampling from the two existing monitor wells. To the existing analysis parameters of COD, BOD, TOC, pes- ticides, conductivity, and fecal-coliforms, the addition of analyses for nitrates and chlorides would increase the value of the current data now collected.
This variance shall commence on January 1, 1980, and run concurrently with the site's operation permit. (The current operation permit and a recent consent order will expire at the end of this calendar year and the per- mit must therefore be applied for and reissued effective January 1, 1980.)
This variance shall run for the maximum time period of twenty-four (24) months as allowed by Section 17-1.57(1)(b)3, Florida Administrative Code. The operation permit on this site shall be governed by this same
two year period. Any subsequent applications for permit renewals and variances shall also
be considered to run concurrently. Such appli- cations for permit and/or variance shall be individually considered on their own merit.
Contamination of this site with materials other than the permitted horticultural trim- mings shall subject the City to possible enforcement action.
DONE and ENTERED this 21st day of December 1979, at Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
JACOB D. VARN
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing "Final Order" was furnished by first class mail to G. STEVEN PFEIFFER, Hearing Officer, Division of Administrative Hearings, Room 101, Collins Building, Tallahassee, Florida 32301 and a true and correct copy of the foregoing was furnished by first class mail to DAVID W. RYNDERS, ESQUIRE, City Attorney, City of Naples, Petitioner, 735 8th Street South, Naples, Florida 33940, this 21st day of December, 1979.
H. RAY ALLEN
Assistant General Counsel State of Florida Department of
Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Telephone: (904) 488-9730
Docket for Case No: 79-001569
Orders for Case No: 79-001569
| Issue Date |
Document |
Summary |
|
Dec. 21, 1979 |
Agency Final Order
|
|
|
Nov. 28, 1979 |
Recommended Order
|
Petitioner entitled to variance concerning above ground composting of yard trash within 200 feet of water.
|
