vs. ) CASE NO. 80-1168
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly- designated Hearing Officer, William E. Williams, held a public hearing in this cause on December 15, 1980, in Miami, Florida.
For Petitioner: William P. White, Jr.
For Respondent: Willard K. Splittstoesser, Esquire (City) 776 Northeast 125th Street
For Respondent: Marvin P. Sadur, Esquire (Munisport) 2000 L. Street Northwest, Suite 612
Washington, D.C. 20036
By Complaint for Revocation of Permits dated May 15, 1980, the Department of Environmental Regulation ("DER" or "Petitioner") seeks to revoke permits numbered SWO-13-5152 and 13-31-028GM on which the City of North Miami, Florida and Munisport, Inc. ("Respondents") are co-permittees as to the former permit, with City of North Miami being the sole permittee on the latter. The original complaint, containing two counts, sought revocation of the permit for alleged violation of permit conditions concerning a setback requirement, and a separate condition requiring the deposit of a performance bond or other security acceptable to DER to cover the cost of monitoring and final closing procedures at the project site.
By amended complaint dated July 25, 1980, DER added a third count, alleging that Respondent had caused pollution of ground and surface waters of the State associated with runoff from its project site.
Neither Respondent filed any pleadings in response to either the initial or amended complaint.
Final hearing in this cause was scheduled for December 15 and 16, 1980, by Third Amended Notice of Hearing dated September 30, 1980.
Because of certain stipulations entered into between the parties at final hearing, no witnesses were called to testify, nor were any exhibits offered by either of the parties.
The Department of Environmental Regulation is an administrative agency of the State of Florida created by Chapter 75-22, Laws of Florida, and vested with the power and duty to implement and enforce the provisions of the Florida Air and Water Pollution Control Act, Part I, Chapter 403, Florida Statutes. Pursuant to these Acts, the Department is authorized to regulate the construction and operation of solid waste disposal facilities and stationary installations reasonably expected to be sources of pollution.
Respondent, City [of North Miami], owns the property on which is located a solid waste facility known as "Munisport Sanitary Landfill" located at 14301 Biscayne Boulevard, North Miami, Dade County, Florida; latitude 25 degrees 54' 9" North, longitude 80 degrees 9' 5" West in Sections 21 and 22, Township 52 South, Range 42 East. Respondent, Munisport, operates a solid waste disposal facility under contract with the City.
On March 7, 1977, the Department issued to the City of North Miami permit/certification number 13-31-028GM (hereinafter "dredge and fill permit") which modified and superseded permit/classification number 13-31-0286. The permit was issued under the provisions of Sections 253.123, 253.124, and 403.087, Florida Statutes, and Chapter 17-4, Florida Administrative Code. The permit also provided water quality certification required by Public Law 92-500.
The dredge and fill permit was issued for the purpose of constructing a continuous 5,000 foot-long earthen dike with a modified top width of 12 feet aligned waterward of the mean high water line such that the waterward toe of the dike would be on or landward of the property line. Approximately 6,000 cubic yards of material would be dredged from the 63-acre tract located behind the dike and waterward of the mean high water line. Portions of the tract would be excavated to minus 35 feet mean low water to form nontidal lakes. Approximately 1,000,000 cubic yards of fill material would be enplaced as follows:
Clean fill to be utilized to produce an elevation of a minimum of two feet above
the calculated ground water table, after which fresh refuse and a two-foot final cover of clean fill would be placed.
Within a zone of 100 feet from the landward crest of the dike, yard trash and construction debris would be the only types of
solid waste acceptable as fill, and
A ten-foot wide by three-foot deep circulation canal would be dredged on the outside perimeter of the dike.
General condition 13 of the dredge and fill permit provides that the permit does not indicate an endorsement or approval of any other Department permit/approval that may be required for other aspects of the total project. A solid waste operation permit would also be required.
On June 8, 1979, the City and Munisport received from the Department Operation Permit No. SWO-13-5152 (hereinafter "solid waste operation permit"). The purpose of the solid waste operation permit was to allow and regulate the placement of solid waste (refuse, yard trash and construction debris) in the area behind the dike described above and on adjacent uplands in order to generate an appropriate elevation for a golf course.
General condition number two of the solid waste operation permit states that:
This permit is valid only for the specific processes and operations indicated in the attached drawings or exhibits. Any authorized deviation from the approved drawings, exhibits, specifications, or conditions of this permit shall constitute grounds for revocation and enforcement action by the Department (emphasis added).
Specific condition number six of the solid waste operations permit provides that the subject facility be operated at all times at the maximum level of efficiency so as to minimize the adverse effect on the environment of contaminated storm water runoff or leachates which cause degradation of surface or ground waters.
Specific condition number nine of the solid waste operation permit provides that "no solid waste shall be placed within thirty feet of any existing or future lake".
Prior to the issuance of the solid waste operation permit, Respondents' permit application was subjected to a de novo review during a Section 120.57(1), Florida Statutes, hearing requested by the Florida Audubon Society and others. The record of these proceedings explained and expanded upon the application and, therefore, became a part thereof. Respondents' consultant testified in these proceedings as follows:
We have an agreement with the Department of Environmental Regulation that goes back several years that we would not dig up any old land fill material nor would we place any land fill material in an area that would eventually become a lake.
Testimony of Mr. Thomas Joseph Checca on October 18, 1978; Transcript of proceedings in Florida Audubon Society, et al. v. State of Florida, Department of Environmental
Regulation, City of North Miami, Florida and Munisport, Inc., DOAH Case No. 78-316.
On October 25, 1979, an inspection of the above-described facility was made by Mr. Scott Quaas, an employee of the Department, who observed that two lakes had been constructed in old waste on the site without the required 30-foot setback as required by the aforementioned permit conditions. A letter of notice was issued by the Department regarding that and other violations on November 16, 1979.
On December 18, 1979, a follow-up inspection of the subject facility was made by Mr. Quaas, at which time it was observed that two more lakes had been excavated through waste previously deposited at the site, thereby causing such waste to come in direct contact with the water in the lakes adjacent thereto. It was also observed that no 30-foot setback was provided at the new lakes. Notice of these additional violations was provided to Munisport on January 16, 1980.
An on-site meeting regarding the above-described violation was held on January 24, 1980, at which time it was agreed that Respondents would reply by February 1, 1980, as to whether corrective actions would be taken regarding the aforementioned violations. As of the date of final hearing in this cause, corrective action had been taken to eliminate these violations.
Specific condition number 13 of the solid waste operation permit requires the posting of a performance bond or other security acceptable to the Department which adequately covers the cost of monitoring and final closing procedures required under the permit and Chapter 17-7, Florida Administrative Code, and procedures listed in the application for permit which may become necessary to correct any pollution detected at the site in violation of Department rules. No such bond or security has been posted with the Department.
Extensive discussions between the Department and representatives of the City and Munisport have failed to produce agreement regarding the terms of a performance bond or security. The parties were notified of this violation and were given an opportunity to respond.
Leachate (runoff containing pollutants) has been allowed to enter lakes on the site. A leachate plume containing ammonia has been detected beneath the subject sanitary landfill site, which plume has reached ground waters of the State and is being observed to be moving off the site in an east- southeast direction, toward Biscayne Bay.
This leachate plume contains total Ammonia-Nitrogen (NH3-N) in amounts which are substantially in excess of the water quality standards of .5 milligrams per litre for Dade county, Florida. See, Chapters 24-11(4), Dade County Code.
It was not anticipated when Operation Permit Number SWO-13-5152 was issued that leachate would be allowed to enter the lakes or that a leachate plume would form in the manner which is presently being observed.
In addition to being a pollutant, Ammonia-Nitrogen is the first substance generally observed when a leachate plume forms. There exists a significant possibility that other pollutants contained in solid waste deposited at the site will also begin to reach ground waters of the State and the waters of Biscayne Bay.
General condition number eight of the solid waste operation permit states that:
This permit does not relieve the permittee from liability for harm or injury to human health or welfare, animal, plant, or aquatic life or property and penalties therefore caused by the construction or operation of this permitted source, nor does it allow
the permittee to cause pollution in contravention of Florida Statutes and department rules, except where specifically authorized by an order from the department granting a variance or exception from department rules or state statutes.
Specific condition number 15 of the solid waste operation permit states that:
These permit conditions do not exempt the applicant from complying with pollution control requirements of other Federal, State, Municipal, County or Regional water pollution control rules, regulations, ordinances or codes, nor does it authorize any violation thereof.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.
The unauthorized excavation of lakes in areas on the site where waste had been previously deposited and the failure to provide the required 30-foot setback between solid waste and any existing or future lakes constitutes a violation of general condition number two and specific conditions numbers six and nine of the solid waste operation permit.
The failure to secure a performance bond or other security which is acceptable to the Department constitutes a violation of specific condition number 13 of the solid waste operation permit.
Section 403.087(6), Florida Statutes, provides that: [n]o stationary installation which will
reasonably be expected to be a source of
air or water pollution shall be operated, maintained, constructed, expanded or modified without an appropriate and current valid permit issued by the
Department, unless exempted by Department rule.
Subsection (6) further provides that "[a] permit issued pursuant to this section shall not become a vested right in the permittee", and that the Department may revoke any permit issued thereunder if it finds that the permittee "[h]as
violated law, Department orders, rules, or regulations, or permit conditions". (Emphasis added). Section 403.087, Florida Statutes, is made applicable to solid waste operation permits by Section 403.707, Florida Statutes.
Section 17-1.67, Florida Administrative Code, provides that "[t]he Department may suspend or revoke any Department permit, certification or certificate as provided by Section 403.087, Florida Statutes, and Chapters 17-4 and 17-16, Florida Administrative Code". Section 17-4.10, Florida Administrative Code, provides that "[p]ermits shall be effective until suspended, revoked, surrendered, or expired and shall be subject to the provisions of Chapter 403, Florida Statutes, and rules and regulations of the Department". Subsection (3) thereof further provides that:
A permit issued pursuant to this Chapter shall not become a vested property right in the permittee. The Department may revoke any permit issued by it if it finds that the permit holder or his agent: (b) Has violated law, Department orders, rules, or regulations or permit conditions.
Pursuant to the provisions of Section 403.087(6)(b), Florida Statutes, and Section 17-4.10(3)(b), Florida Administrative Code, the Department is entitled to revoke the solid waste operation permit due to Respondents' failure to comply with general condition number two and specific conditions numbers six, nine, and thirteen of the solid waste operation permit.
Section 403.707, Florida Statutes, provides that after January 1, 1975, no resource recovery and management facility or site shall be operated, maintained, constructed, expanded or modified without an appropriate and currently valid permit issued by the Department. A resource recovery and management facility is defined by Section 403.703(7), Florida Statutes, as any solid waste disposal area, volume reduction plant, or other facility, the purpose of which is resource recovery or the disposal, recycling, processing, or storage of solid waste. Section 403.708(1)(a), Florida Statutes, provides that no person shall place or deposit any solid waste in or on the land or waters located within the State, except in a manner approved by the Department and consistent with applicable approved programs of counties or municipalities.
Section 403.708(1)(c), Florida Statutes, provides that no person shall construct, alter, modify, or operate a resource recovery management facility or site without first having obtained a valid permit from the Department as provided in Section 403.707, Florida Statutes. Provisions governing solid waste operation permits are found in Chapter 17-7, Florida Administrative Code.
The solid waste operation permit was issued to the City of North Miami and Munisport, Inc., for the purpose of operating a sanitary landfill to generate and place solid waste within the area described in the dredge and fill permit.
Without the benefit of a valid solid waste operation permit issued by the Department pursuant to Section 403.707, Florida Statutes, and Chapter 17-7, Florida Administrative Code, Respondents have no authority to place solid waste within the area described in the dredge and fill permit issued pursuant to Section 403.087, Florida Statutes, and Chapter 17-4, Florida Administrative
Code. Accordingly, the dredge and fill permit which called for the use of solid waste should also be revoked.
The pollution of surface and ground waters of the State in violation of the Dade County water quality standards constitutes a violation of general conditions number eight and specific conditions number 15 of the solid waste operation permit, and Section 403.161(1), Florida Statutes.
Section 403.182(6), Florida Statutes, requires the Department to enforce rules, regulations or orders which are adopted by a local pollution control program which are stricter or of a more stringent nature than its own. Consequently, the violation of the Dade County Standards is also a violation of Section 403.161(1), Florida Statutes.
The aforesaid violations constitute grounds for revocation of the permits and water quality certification pursuant to Section 403.087, Florida Statutes.
The modified dredge and fill permit issued pursuant to Chapters 403 and 253, Florida Statutes, is the same in law as the certification of compliance with State Water Quality Standards pursuant to Public Law 92-500, and revocation of either constitutes grounds for the revocation of each, there being nothing to indicate that portions of the permits are severable.
Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered revoking the permits and
lesser action as may be deemed appropriate by the Department in the exercise of its discretion as the State agency charged with the power and duty to control and prohibit the pollution of air and water under Section 403.061, Florida Statutes, and as the agency responsible for the implementation and enforcement of the provisions of the Florida Resource Recovery and Management Act which regulates the appropriate disposal of solid waste and landfill operation in this State.
DONE and ENTERED this 24th day of February, 1981, in Tallahassee, Leon County, Florida.
WILLIAM E. WILLIAMS, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1981.
William P. White, Jr., Esq. Deputy General Counsel Department of Environmental
Willard K. Splittstoesser, Esq. 776 N.E. 125th Street
Marvin P. Sadur, Esq.
2000 L. Street, N.W., Suite 612
Washington, D.C. 20036
