STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SOUTHEAST HILLSBOROUGH CIVIC ) ASSOCIATION, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 83-2378
) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION; and ) HILLSBOROUGH COUNTY, FLORIDA, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on October 24 through 26, 1983, in Tampa, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: Thomas W. Reese, Esquire
123 Eighth Street, North
St. Petersburg, Florida 33701
For Respondent, William W. Deane, Esquire and Department of Douglas MacLaughlin, Esquire Environmental Twin Towers Office Building Regulation: 2600 Blair Stone Road
Tallahassee, Florida 32301
For Respondent, Jacob D. Varn, Esquire and Hillsborough David S. Dee, Esquire
County, Florida: Suite 410, Lewis State Bank Building
Post Office Drawer 190 Tallahassee, Florida 32302
In February 1983, Hillsborough County applied to the Department of Environmental Regulation (DER) for a permit to construct as well as to operate a sanitary landfill in the southeast portion of that county. Hillsborough County also applied at that time for a permit for certain dredge and fill activities, as well as a permit for a storm water drainage system. The facilities described in these permit applications were to be built and operated in conjunction with the landfill applied for. In July 1983, DER gave notice of its intent to issue the permits sought by Hillsborough County.
On July 26, 1983, the Southeast Hillsborough Civic Association, Inc. (SEHCA), filed a petition for a formal administrative hearing to challenge DER's proposed agency action. The case was referred to the Division of Administrative
Hearings and the undersigned Hearing Officer appointed to hear the cause. On October 14, 1983, a prehearing conference was conducted at which a prehearing stipulation was filed with the Hearing Officer by the parties. The prehearing stipulation was accepted and incorporated in a prehearing order entered October 20, 1983.
On October 24 through 26, 1983, a formal administrative hearing was conducted in Tampa, Florida. At the final hearing, Hillsborough County called six witnesses: Robert Hauser, Jr.; Clarence Beatty; David Clary; Dr. John Garlanger; Warren Smith; and Dr. Emmet Bolch. Hillsborough County offered and had admitted 52 exhibits on its behalf. The Department of Environmental Regulation called as its witnesses Edward Snipes, Patrick Lewis, and William Kutash. The Department offered six exhibits, which were admitted into evidence without objection. The Petitioner called witnesses Larry Hutchison, Thomas Holland, Robert Carnahan, Steve Boyes, and Howard Barnes. Petitioner had admitted 13 exhibits on its behalf. Seven members of the public testified at the final hearing.
During the course of the hearing, three matters were taken under advisement by the Hearing Officer: the Petitioner's Motion for Directed Verdict; the Petitioner's Motion to Strike the Testimony of Robert Hauser; and Hillsborough County's Objection to the Admissibility of two exhibits concerning radiation- related issues. The parties were required to submit written briefs on these three matters. Additionally, subsequent to the time originally set for filing proposed findings of fact and conclusions of law, and on the last day of an eight-day extension on filing proposed findings of fact and conclusions of law granted in favor of the Petitioner, the Petitioner moved for official recognition of certain items. These were: certain rules of the Hillsborough County Environmental Protection Commission; a report of the Office of Radiation Control for the Department of Health and Rehabilitative Services; Section Eight of the Hillsborough County Zoning Regulations; Section Nine of those regulations; Section Four of those regulations; a proposed rule concerning hazardous waste relating to phosphate rock mining contained at 43 Fed. Reg.
59015; a proposed rule regarding radiation exposure, reported at 48 Fed. Reg. 15,078-9; and other such documents concerning radionuclides as hazardous air pollutants reported at 44 Fed. Reg. 76,738. Resolution of these matters will be treated in the Conclusions of Law.
The issue in this case concerns whether affirmative reasonable assurances have been provided by the permit applicant establishing that the provisions of Chapter 403, Florida Statutes, and Chapter 17-3, 17-4 and 17-7, as well as Section 17-25.04(5), Florida Administrative Code, and Chapter 17-9, Florida Administrative Code, will not be violated by the construction and operation of the subject landfill, and thus whether the above-described permits should be granted.
At the conclusion of the proceedings, the parties requested a transcript of the proceedings and availed themselves of the right to file proposed findings of fact and conclusions of law. Proposed findings of fact and conclusions of law were initially due November 22, 1983. Upon motion by the Petitioner, and after a telephonic conference call motion hearing thereon, an extension of time to and including December 1, 1983, for filing the Petitioner's proposed findings of fact and conclusions of law was granted. All proposed findings of fact and conclusions of law and memoranda were thus timely filed on or before December 1, 1983. All proposed findings of fact, conclusions of law and supporting arguments have been considered. To the extent the proposed findings and conclusions submitted are in accordance with the findings, conclusions and views
stated herein, they have been accepted. To the extent that such proposed findings and conclusions and such arguments made are inconsistent herewith, they have been rejected. Certain proposed findings and conclusions have been omitted as not relevant or as not necessary to a proper determination of the material issues presented. To the extent that the testimony of various witnesses is not in accord with the findings herein, it is not credited. 1/
FINDINGS OF FACT
The Petitioner, Southeast Hillsborough Civic Association, Inc. (SEHCA), is a corporate entity. The majority of its members reside in southeast Hillsborough County in the vicinity of the proposed landfill site. The Respondent, Department of Environmental Regulation (DER), is a state agency charged with regulating the construction and operation of sanitary landfills pursuant to Chapter 403, Florida Statutes, and Chapters 17-3, 17-4, 17-7, 17-9 and 17-25.04(5), Florida Administrative Code. The Respondent, Hillsborough County, Florida, is a political subdivision of the State of Florida. It is a local government entity which serves the areas within its geographical boundaries with traditional types of government services designed to promote and protect the public health, safety and welfare, including the collection and disposal of solid waste.
Hillsborough County currently disposes of its solid waste at the Hillsborough Heights Landfill. The Hillsborough Heights Landfill is, however, nearing capacity, and the County is under a mandate, pursuant to a stipulation and settlement agreement executed with DER, to close the Hillsborough Heights Landfill by October 31, 1984. Accordingly, Hillsborough County must put in train the initial phases of construction of a new sanitary landfill in early 1984, once an appropriate site in terms of environmental considerations and other considerations is approved and the appropriate construction and operating permits issued.
In August 1981, with a view toward the upcoming necessity to obtain a new sanitary landfill site, Hillsborough County hired the consulting and engineering firm of Camp, Dresser and McKee (CDM) to assist Hillsborough County in studying, identifying, evaluating, and ultimately selecting a new sanitary landfill site. CDM is an engineering consulting firm employing a team of engineers that specialize in the technical aspects of solid waste disposal and management and related landfill design and construction. Ardaman and Associates, Inc. (Ardaman), is an engineering and geotechnical consulting firm with extensive experience in geotechnical investigation and engineering pertinent to the construction of solid waste disposal facilities in Florida and elsewhere in the world. It employs engineers specializing in those functions. CDM and Ardaman, as well as certain Hillsborough County employees, conducted a detailed investigation of the subject site, collecting numerous soil samples and installing 22 monitoring or inspection wells. A multitude of analyses and tests were performed on the soil and water samples taken with the resulting information being used to prepare the designs for the landfill and concomitant data incorporated in the permit applications sub judice.
On February 28, 1983, Hillsborough County filed an application for DER permits to construct and operate a solid waste resource recovery and management facility, as well as accompanying permit applications for the dredge and fill activities and storm water discharge facilities involved. After an extensive review process by DER in conjunction with the Hillsborough County Environmental Protection Commission (HCEPC) as well as the Southwest Florida Water Management District (SWFWMD), and after further responses and information in response to
DER inquiry were filed by the permit applicant, DER gave notice of its intent to issue the permits to Hillsborough County for the proposed landfill, storm water drainage system, and related dredge and fill activity. The Petitioner, SEHCA, timely requested an administrative hearing concerning its opposition to the issuance of these permits.
The proposed landfill will serve all the unincorporated portions of Hillsborough County, as well as the cities of Tampa, Temple Terrace, and Plant City. The current population of the County is approximately 650,000. The population of the County is expected to grow to 950,000 by the year 2000, and 1,375,000 by the year 2020. The landfill is expected to provide for the waste disposal needs of the County for a minimum of 34 to a maximum of 40 years and is proposed to be the County's only landfill until approximately the year 2020.
The proposed landfill would occupy approximately 175 acres out of a total of 1,100 acres at the proposed site, such that there is land available at the site that can be used for landfill purposes after the ultimate completion of the landfill at issue herein.
Hillsborough County must presently dispose of approximately 2,000 tons of solid waste per day, or approximately 650,000 tons per year. By the year 2015, the County will be required to dispose of in excess of a million tons of solid waste per year. The proposed landfill would receive only nonhazardous, solid waste. It would not accept hazardous or toxic waste, infectious material, hospital waste, liquid waste, septic tank or sewer plant sludges, or similar toxic or hazardous material. The material placed in the landfill would consist of only domestic waste, debris from demolition, construction debris, and other nonhazardous items. In 1987, Hillsborough County and the City of Tampa will both have resource recovery incineration facilities in operation. These facilities will burn approximately 85 percent of the solid waste generated in Hillsborough County and the City of Tampa, with concomitant energy generation. After these resource recovery facilities are placed in operation, the proposed landfill would receive mostly ash from the resource recovery incineration process, as well as some nonburnable waste such as construction debris and demolition debris, and any solid waste which may be generated by the various cities and County which exceeds the capacity of the resource recovery incineration facilities. Thus, since the resource recovery facilities will reduce the volume of the County's solid waste to ash, that volume entering the landfill will be reduced by as much as 90 percent by 1987 or shortly thereafter.
The Site
The landfill site is in a remote area of southeast Hillsborough County approximately 25 miles from downtown Tampa. The site is two miles northwest of the community of "Picnic," which lies at the intersection of County Road 39 and County Road 672. The nearest paved county road is approximately a half-mile from the site. The site contains approximately 1,100 acres of land within the boundaries. The remainder of the property in excess of the 175 acres used for the proposed landfill will be used for buffer zones, borrow areas, and ancillary facilities as well as land which could be used for an additional landfill facility in the remote future. Hillsborough County also has acquired land to be used as a buffer zone on the southeast corner of the site and land which will be used for the access road to the landfill from County Road 672. The site is located in a large phospate mine, which was started in 1945 and abandoned since 1965. The site is surrounded by a buffer zone consisting of citrus groves, woods, rangeland, and other phosphate mining areas. The orange groves and trees on the southern side of the property create an effective visual barrier between the site and the nearest public road. The closest residence is in excess of
1,000 feet from the site boundary and at a greater distance from the actual landfill site, which lies some distance inside the site boundary. The two closest homes, lying slightly over 1,000 feet and approximately 1,500 feet from the subject property boundaries, both use deep wells in the Floridan Aquifer for potable water. There are only 17 to 20 residences within a mile of the property boundary. Most of these homes are located south of the landfill site along County Road 672. A few additional residences are located a mile or more from the site east along Counts Road 39. The character of the land within several miles of the site is essentially rural, with no large residential subdivisions or commercial development within several miles of the site. The County zoning at the site is "A" and "AA," and is such that a government-owned and operated landfill will be permitted in both of these zoning districts.
Landfill Design
The design of the landfill includes three major components: a clay liner; a permanent leachate collection system; and a storm water drainage system. The landfill will be built on an unmined clay settling area which was constructed and filled with clay during the former mining operation on the site. Starting in 1945, clay from the phosphate mine was pumped into the settling area together with water obtained by the mining operation from deep wells in the Floridan Aquifer. It was pumped into the clay settling area in a liquid or
semi-liquid state and allowed to consolidate and solidify. The clay will provide an appropriate liner for the bottom of the landfill. The site investigation by Ardaman reveals that the clay has a very low permeability (10- 8, or .00000001 cm. per second). The landfill and solid waste deposited therein will be placed only in areas with a minimum thickness of clay liner of at least four feet. The clay liner ranges in thickness at the precise landfill site from a minimum of four feet, up to 21 feet. In comparison, many landfills of acceptable design have a liner of 18 inches to two feet thick. By limiting the landfill to areas where the clay is a minimum of four feet in thickness, the liner's depth and continuity across the landfill is assured in terms of providing protection for groundwater resources from landfill leachate percolation. The clay will prevent leachate (water percolating through the landfill which picks up suspended or dissolved pollutants from the solid waste) from moving out of the landfill. Due to the clay's extremely low permeability there is an insignificant likelihood of any leachate ever escaping through the clay liner.
As the construction of the landfill progresses, the clay will settle and further consolidate under the weight of the refuse. The clay will then in effect form a large bowl that will collect leachate. To insure the structural stability of the clay underlying the landfill, the landfill will be built in several phases. A planned sequence of "loading" operations will be carried out to allow the clay to settle in a carefully controlled manner. Ardaman's calculations in evidence establish that the sequence of loading operations will have a large safety factor in that the structural strength of the clay will be greater than necessary to support the weight of the proposed landfill. As the clay consolidates, the water in the clay will be squeezed out, and approximately one-half of the groundwater in the clay at the present time will migrate upward into the leachate collection system. The other 50 percent or so of the water content of the clay will migrate in a downward direction into the surficial groundwater aquifer over a period of the entire 40-year estimated life of the landfill. Since water will be flowing upward from the clay into the leachate collection system, it was undisputed that leachate will not be able to flow downward into the clay during the active life of the landfill because of the positive, upward hydraulic head developed (aside from the impermeable nature of
the clay). The leachate will thus be somewhat diluted by the groundwater migrating upward from the clay liner.
The leachate will be automatically pumped out of a collection sump as long as the landfill operation is going on and after it is completed. Once the landfilling operations are completed, the landfill will be covered with a clay or "synthetic cap" to prevent any water from entering the landfill and forming leachate in the future after the landfill operation is phased out. Should any leachate enter the clay liner, the clay would act as a filter and partial treatment medium for any liquid that moves through it. For example, clay will remove heavy metals from the leachate such that the fluid emerging ultimately from the bottom of the clay liner would be filtered and partially treated. Thus, the clay liner has very low permeability, is continuous and homogenous, and provides long-term protection for ground and surface waters by preventing any leachate from escaping from the landfill itself.
Leachate Collection System
A permanent leachate collection system will be used in the operation of the landfill. The system is designed to collect and remove all leachate resulting from percolation of rainfall through the refuse in the landfill before it can percolate to groundwater or move in a lateral direction so as to enter the ground or surface waters of the state. The leachate collection system is based on conservative design assumptions, in that it is designed to collect and remove all water moving up from the clay as the clay liner consolidates, as well as water which has moved downward through the landfill. The water will move into the leachate collection system for the entire 40-year life of the landfill and beyond, but the design parameters for the leachate collection system were based upon the conservative assumption that all the water from the clay-settling area would migrate upward into the leachate collection system during the first ten years of landfill operations. Thus, the calculations upon which the leachate collection system design was predicated included this intentionally inflated prediction about the amount of leachate that will be generated and handled by the system. The amount of leachate actually produced will be substantially less than the amount predicted and the leachate collection system was shown to be based on sound engineering principles.
The leachate collection system will be constructed by placing from three to eight feet of sand over the clay liner of the landfill. Trenches two feet wide by two feet deep will then be dug at 200-foot intervals and filled with drainfield rock averaging 1 1/2 inches in diameter. The trenches thus serve as conduits to collect leachate percolating downward through the landfill refuse and drain it to a central sump where the leachate will be pumped out by automatic pumps which operate when the leachate level in the sump reaches a certain height. Backup pumping capacity is provided to avoid overflow of leachate out of the sump and out of the side of the landfill in the event of mechanical breakdown.
No leachate is expected to be generated for approximately the first three years of landfill operation since the refuse will act in the nature of a sponge to soak up and retain water entering the landfill for approximately that period of time. Once leachate is produced and collected in the sump, however, it will be pumped into active areas of landfill for recirculation through the landfill. Recirculating leachate was established to be an acceptable form of pretreatment or partial treatment for leachate. Recirculation by percolating leachate back through the refuse in the landfill evaporates some water and causes some of the pollutants to be absorbed by the refuse and soil in the
landfill, reducing the total amount of leachate produced which must be removed from the landfill site. In the instant situation, any excess liquid leachate will be pumped out of the sumps, stored in storage tanks and periodically removed and trucked to a county wastewater treatment facility for treatment.
Wastewater treatment plants of the secondary treatment mode are capable of adequately treating landfill leachate. The County, however, expressed a willingness to construct a treatment plant at the landfill site for specifically treating leachate from the landfill as an alternative to trucking leachate to a nearby county wastewater treatment plant should this method be more efficacious in preventing landfill leachate causing a deleterious effect on surface waters of the state, either at the landfill site or as a component of effluent from a nonspecifically designed wastewater treatment plant.
Storm Water Drainage System
In addition to the actual construction permit application for the landfill itself, the county has submitted an application for construction and operation of a storm water drainage system to be used in conjunction with the landfill operation. The DER performance standards for storm water drainage systems are contained in Rule 17-25.04(5), Florida Administrative Code. In effect, such a storm water system must drain and filter runoff from the first one inch of rainfall which falls on a given area within 72 hours. This rule presumes that such a capacity provides reasonable assurances that all applicable DER water quality standards will thus be met. In point of fact, it was established that primary pollutants carried by storm water runoff are flushed from the surface of land and in effect "bound up" in the first one-half inch of rainfall. The proposed storm water system to be used in conjunction with the landfill will meet this performance standard. It was undisputed that the storm water system will indeed collect, detain, and filter the runoff from the first inch of rainfall within 72 hours at the site. The system can handle and filter larger amounts of rainfall and, indeed, when initially installed, the system will filter runoff from the first inch of rainfall occurring within 24 to 36 hours.
The storm water drainage system is designed to keep storm water completely separate and physically apart from the landfill itself and thus to prevent leachate from entering the storm water drainage system and vice versa. Rainwater falling on the active landfill itself will move through the landfill vertically, percolate through the refuse and soil, and be collected as leachate in the leachate collection system, with subsequent treatment. Rainfall falling on the surrounding portions of the landfill site will not contact refuse, but, rather, will flow laterally into the storm water drainage system basins, where it will be filtered to remove silt, sediment, and other degradatory materials. Thus, the water entering the storm water system will be rainwater, together with any sediments or other materials nicked up during the course of its drainage over soil and land, with no contact with refuse or related pollutants.
The filter medium in the storm water basins will consist of clean sand. The basins will consist of berm walls and at least two feet of clean sand in the bottom as the filter medium. The approximately six basins and drainage swales will serve as a filtration-treatment mode, as well as retention ponds, as a method of storm water treatment. A drainage swale will be used to filter storm water runoff from the access road. This method of storm water filtration and treatment has been shown to be acceptable on other landfills similarly designed and to be the most effective method of filtration and treatment of storm water related to such a landfill operation. The storm water system will thus reduce the potential for pollution in the streams near the site which will
receive the filtered storm water after it is ultimately discharged from the basins and retention ponds and swales. Presently, the sand, sediment, clay, and other materials on the site are washed into the streams by storms. After the landfill is constructed and operating, the storm water flowing off the sites will also be filtered and treated in accordance with DER standards. Particulate matter in the storm water runoff will be collected in the basins. Periodic monitoring of the effectiveness of the storm water treatment basins and swales should be performed to ensure the filter medium continues to function effectively as opposed to becoming clogged with silt deposits with resultant overflow of unfiltered storm water over the tops of the basin berms.
Water Quality
Hillsborough County has conducted a ground and surface water monitoring program to evaluate the existing water quality at the site. This was done through the installation of monitoring wells and concomitant sampling of the water in those wells for water quality parameters in accordance with DER rules. The ground and surface water at the site will be regularly monitored throughout the life of the landfill through the use of monitor wells and other means. Parenthetically, it should be noted that the DER rules require a minimum of three monitor wells to be installed at Class I landfills such as this. Hillsborough County has installed nine monitor wells and performed evaluation and testing of water quality of water samples collected from all nine of those wells. That monitoring program included tests for "indicators," that is, substances that would reveal whether a need for further testing existed. Such tests were performed both at the groundwater monitoring well sites, as well as surface water sampling locations over the entire landfill site. The tests indicated elevated concentrations of total organic carbon in the groundwater. Steve Boyes, an employee of DER, was tendered and accepted as an expert on water quality at phosphate mine sites. He established that the total organic carbon concentrations found in certain groundwater samples came from naturally occurring organic material in the groundwater. Test data supported that conclusion. The wells with elevated levels of total organic carbon collected water from an area in the soil which contained roots and other decomposing organic matter. The organic carbon concentration noted in certain groundwater monitoring wells is a naturally occurring instance. There is no DER water quality standard extant in the rules for total organic carbon. It was not demonstrated to have any deleterious effect on human health, and the installation and operation of the landfill was not shown to cause or enhance any deleterious effect on surface or ground waters of the state (or its citizens) which might be occasioned by the elevated carbon concentrations in groundwater at portions of the site.
The phosphate mine which formerly operated at the subject site was known as the Boyette Washer Mine. Initially, in the first years of its operation, it used what is called a "single stage washing process" to separate the phosphate from clay. In this process, the clay, sand, and phosphate were separated simply by hydraulic means, that is, being washed with water from deep wells in the Florida Aquifer. The clay and water was then pumped into a clay- settling area. No chemicals were used for separation of the phosphate in this process. The clay-settling area in which the clay and process water was pumped is now the subject landfill site, the clay being naturally consolidated over time and which will be further consolidated in the construction process of the landfill into the "clay liner."
After several years (approximately in 1955), the mine operators built a first-stage flotation plant which used caustic soda, tall oil (fatty acids),
and fuel oil to separate the fine clay materials from the phosphate. Tom Holland, a witness for the Petitioner, worked as the mine supervisor for a substantial number of years. He established that most of the clay discharge in the clay-settling area came from the washer process as opposed to the flotation process. The clay-settling area was almost full of clay before the flotation plant began operation.
Dr. Garlanger is a former professor at the Massachusetts Institute of Technology and was tendered and accepted as an expert witness on clay waste disposal. He presented a study of water quality data collected from six phosphate mines using the same treatment processes. Clay samples were taken out of these similar or typical phosphate mines for purposes of comparison to the water-clay characteristics of landfill sites. For purposes of that study, the water was squeezed from clay taken from those six representative clay-settling areas. The data from those sites showed that normally the water embodied in the clay meets the Department's primary and secondary drinking water standards. At the proposed landfill site, the water squeezed from clay samples taken from the bottom of the clay-settling area would be the same or better quality than those from other mine locations, since only clay and water were pumped into the settling area for several years before any flotation process was begun at the mine. During that time the only substances going into the bottom of the clay- settling area were clay and drinking water obtained from deep wells in the Florida Aquifer, the primary source of potable drinking water for this portion of the state. Thus, any water migrating downward from the bottom of the clay- settling area, or clay liner, would be uncontaminated water which meets drinking water standards, inasmuch as the high impermeability of the clay liner would prevent pollutants migrating from above in the form of landfill leachate. It would be a better quality than the water collected at the six other mine sites because the samples collected from those clay-settling areas were collected at the top and thus contained the process water from the flotation plants at those mines. Even so, those samples still met DER's primary and secondary drinking water standards.
Data collected from this landfill site confirms these findings. Hillsborough County performed water quality analyses for "priority pollutants" on water samples taken from a number of locations around the site. These analyses were designed to identify any pollutant which might have been deposited at the site in the mines' process water, including benzine and kerosene compounds. Hundreds of analyses were performed, and all of the priority pollutant tests were negative. There are no priority pollutants such as benzine or kerosene in the groundwater at the landfill site.
The results of this detailed investigation, in evidence, establish that the quality of water in the clay at the site, if squeezed out of the bottom of the clay liner in the present clay-settling area of the old mine, will not contribute to any water quality violations of pertinent rules. To ensure this result, the County has agreed to regularly monitor and test the ground and surface water at the site throughout the life of the landfill.
The Petitioner presented no contrary water quality data. Two lay witnesses living near the site have fished in the mine-cut lakes near the landfill site, but which are not involved in the landfill construction and operation. These witnesses have noted a kerosene-like flavor in fish consumed which were caught from these "mine-cut lakes." The cause of that peculiar taste in the fish was not demonstrated, and no evidence was presented to establish that the taste was caused by water from the clay-settling area, which is the only part of the former phosphate mine site involved in this proceeding.
Radioactivity
In the course of performance of the water quality analyses referred to above, the radioactivity in the groundwater at the site was evaluated. Levels of radium 226 in the filtered water sample were within DER standards. There were, however, elevated levels of gross alpha radiation in two of the test wells. Dr. Emmett Bolch, a professor of radiation-related studies at the University of Florida, and Dr. John Garlanger established that the elevated levels of gross alpha radiation are caused by naturally occurring deposits of radioactive minerals in the "leach zones" on top of the "Bone Valley formation" lying beneath the landfill site. The leach zone is the weathered, fissured surface of this Bone Valley formation, which was weathered during exposure to the atmosphere and elements at remote geologic times. Radioactive minerals were then deposited by alluvial action in the fissured surface, and at later geologic times, the leach zone of the Bone Valley phosphate-bearing formation was covered with sand, silt, and other materials. The Petitioner's expert witness agreed that gross alpha radiation in the groundwater was a naturally occurring phenomenon.
Excessive levels of gross alpha radiation do not typically occur in clay-settling areas such as the one where the landfill would be built. Dr. Bolch has substantial experience with the study of radiation levels at phosphate mines throughout Florida. The radiation level in water contained in clay- settling areas is normally well within the applicable Department standards, but, in any event, the radioactive material in clay-settling areas is primarily bound up in the particles and sediment. Once water moves through the ground in clay- settling areas, these radioactive particles are filtered out, thus no significant level of radioactivity could leave the clay-settling area in the groundwater. Although unfiltered samples containing radioactive sediment and particles may demonstrate elevated radioactivity, filtered water samples from clay-settling areas routinely meet DER standards for radiation. These filtered samples of water are more representative of typical drinking water which citizens would obtain from the surficial aquifer, to the extent that they use shallow wells.
This thesis by Drs. Bolch and Garlanger is factually established by the water quality data obtained at the instant site. Test Hole 28, one of the County's monitor wells, is located hydrologically down-gradient from the clay- settling area. Water flows from the clay-settling area and passes through Test Hole 28. The water quality in Test Hole 28 is representative of the water quality in the clay-settling area. Nonetheless, the filtered sample collected from Test Hole 28 on October 14, 1983, contained 11.6 pci/liter of gross alpha radiation [see Exhibit 84(c)]. This is well within the DER standard of 15 pci/liter. Thus, the water quality tests for these sites establish that groundwater flowing out of the clay-settling area does not contain elevated levels of gross alpha radiation.
On the other hand, high levels of gross alpha were found in Test Hole 22, which lies up-gradient (hydrologically upstream) from the clay-settling area. Since the water from a clay-settling area would not flow in an uphill direction, the high gross alpha content in Test Hole 22 would not have come from the clay-settling area, nor would the higher level of radiation found in that test hole leave the clay-settling area and migrate off the landfill site. It is noteworthy that Test Hole 22 is located on land that has not been mined. The higher level of radiation found in that well is clearly naturally-occurring, and its concentration has not been enhanced by any man-made technological process.
Accordingly, it has been established that the water coming from the bottom of the clay liner will meet DER primary and secondary drinking water standards. It will not have elevated levels of radioactivity. Steve Boyes, a DER hydrologist and expert witness on groundwater impacts of the phosphate mining process, established that there is a very low, extremely remote possibility that the landfill will ever have any effect on any drinking water supply.
Operation and Maintenance of Landfill
Most of the refuse was brought to the landfill in a closed transfer truck from transfer stations set up by the County. The refuse will be inspected at the transfer station before it is loaded on the trucks for transportation to the landfill. At the entrance to the landfill, trucks will be weighed and inspected for chemical or hazardous wastes which cannot be placed in the landfill and then will he directed to the active "working face" of the landfill. Two full-time employee-inspectors will be on duty at the working face to visually inspect the refuse as it is placed on the landfill. The refuse will be spread across the working face and compacted in layers. At the end of the working day, at least six inches of daily cover material will be placed over the refuse. A 12-inch layer of intermediate cover material will be placed over areas not to be used again for several months. After an area of "lift" has been filled to its maximum elevation, a two-foot layer of final, permanent cover will be placed over it. All cover material is available on the site. The daily cover material will consist primarily of sand obtained from the sand tailings pile at the mine site. The sand material was established to be an appropriate daily cover material. It is readily workable and, unlike clay, can be used under adverse weather conditions, such as prolonged rainfall. A sand-clay mix would not be an adequate cover material for daily use; it is not as easily workable, especially when wet, and would create a relatively impermeable cap, which could cause methane to build up beneath it in the landfill.
When a new lift or cell is built on the landfill, additional refuse is placed over the preceding daily cover. If sand is used for daily cover, any leachate in the new material can readily pass through the sand and appropriately enter the leachate collection system. If a sand-clay or all-clay mix were used, the leachate would not be able to percolate downward and would form pockets or pools at various levels in the landfill rather than flowing downward into the leachate collection system. These pools of leachate would then break out of the sides of the landfill and possibly pollute surface waters of the state by entry into the storm water system or otherwise.
Routine maintenance practices at the landfill will prevent potential problems such as this from developing. Regular frequent inspections will be made around the entire landfill. Movable litter fences will be erected around the working face to retard dispersal of windblown litter. Work crews will regularly pick up any litter on access roads, which problem will largely be prevented initially through the use of covered trucks for transportation of refuse into the landfill. The storm water basin and drainage system must be regularly inspected and maintained to prevent sedimentation clogging. The most likely operational problems typically occurring at such a landfill can largely be prevented by regular inspection and routine maintenance. In this connection, the sanitary engineer's office of the county should maintain a qualified county employee in sanitary landfill operations to oversee the correct operation of the
landfill, especially if operation of the landfill is performed by a private contractor or agent.
Methane Gas
As organic material such as discarded food, grass clippings, etc., decomposes, it produces methane gas. The ash and residue from the resource recovery facilities, once they become operational, will not produce methane gas when deposited in the landfill, since that refuse would already be burned. Since there will be limited amounts of organic solid waste going into the landfill after 1987, the potential for methane gas generation is limited. The daily cover material of sand is highly permeable and will allow methane gas generated to escape to the atmosphere in a harmless fashion. If methane gas is seen to accumulate in an adverse manner inside the landfill, the County will construct vents at appropriate locations on the landfill to allow methane to escape to the atmosphere. As established by Dr. Urone, the Petitioner's own expert on air pollution, the release of methane gas to the atmosphere will not violate any air quality standards or cause human health problems.
Odor
Odor at landfills is caused by decomposition of organic matter. As in the case of methane gas, the potential for odor generation will be greatly reduced after 1987 because the landfill will only receive limited quantities of unburned organic waste. Potential odor problems at landfills normally are eliminated by appropriate and regular application of the daily cover material over the refuse. If daily cover material is properly used, there will be no noticeable odor beyond the site boundary of the landfill.
The applicant should be required, as a condition to a grant of the subject permits, to agree to weekly inspections by both the Hillsborough County Environmental Protection Commission and/or DER to ensure that the landfill is operated in compliance with all the permit conditions, including the condition that odor be unnoticeable beyond the site boundary. If an odor problem develops, the Department should require Hillsborough County to place additional thicknesses of cover material over the solid waste daily, as well as to require a different cover material should the sand cover material prove inappropriate.
Dust Control
Dust control of the site will be accomplished by water spraying which will be used on access roads, working roads within the landfill itself, and at the working face and all construction areas. The roads on the site will be paved or coated with soil cement to reduce airborne dust. Further, the size of the working face and the borrow area will be kept to a minimum to reduce the potential for airborne dust. Petitioner's expert on air pollution, Dr. Urone, acknowledged that these standard, well-known dust control practices would be sufficient to control airborne dust problems.
Airborne Radiation
Hillsborough County's radiation expert, Dr. Bolch, calculated the potential radiation caused by dust emissions at the site due to landfill operations. His calculations are based on a "worse case" scenario concerning dust-borne radiation emissions. Radiation from dust emissions at the landfill site will be insignificant. Currently, radon gas is released from the clay- settling area and the sand tailings pile. When the landfill is built, however,
the sand and clay obtained from the sand tailings pile and clay in the clay liner will be buried at the bottom of the landfill, except for the sand deposited as daily cover at the current working face. By the burying of the other sand and clay used in the landfill beneath the landfill, the landfill itself will actually create a barrier to prevent radon gas from entering the atmosphere beyond that minute amount present in the daily cover material on an active landfill "lift." Thus, the landfill will actually somewhat reduce the current radon gas emissions naturally occurring at the site. The radon gas was not demonstrated to have any health impact on people working at the site nor on surrounding residents. Nor were existing levels of gamma radiation at the site shown to have any human health impact.
Sink Holes
The likelihood of a sink hole occurrence at the proposed landfill is very low. Dr. John Garlanger of Ardaman and Associates was accepted without objection as an expert in the area of soil mechanics, clay waste disposal, hydrogeology, and sink hole formation. He is a member of the advisory board for sink hole research at the University of South Florida and has published numerous papers and articles on the remediation of sink holes and their causes. He directed the subsurface hydrogeologic investigation at the landfill site preparatory to filing the permit applications. The overburden soil at the immediate site of the landfill is approximately 22 feet thick, with the phosphate bearing Bone Valley formation underlying that, for a depth of approximately 20 feet. Below that formation is the dense Hawthorne formation of an approximate 105-foot thickness, before the Tampa Limestone strata, which encompasses the Floridan Aquifer, is reached. Because of the great thickness of the Hawthorne formation, which is quite dense and which serves to protect the limestone underlying it from fissure development caused by percolation of ground water (which can ultimately result in sink hole formation), there is a scant likelihood of sink holes developing beneath or in the immediate vicinity of the landfill which could cause a deleterious impact on ground water supplies in the area. The likelihood of a sink hole developing at the proposed site is much lower than in other areas of Hillsborough County to the north, northeast, and northwest. The fact is corroborated by the investigation of Southwest Florida Water Management District which establishes that indeed the site has a low potential for sink hole development (DER Exhibit 5). 2/
Dredge and Fill Activities
The proposed dredge and fill activities at the landfill consist of the installation of several culverts for road crossings and similar minor activities. The proposed activities were designed to minimize any potential impacts on state waters. Hillsborough County will use turbidity curtains and other recognized techniques for controlling erosion, sedimentation and other impacts from these activities. In this regard, there is no contiguous connection between the clay-settling area where the landfill will be constructed and any surface water body. A culvert is located passing through a berm or dike on the southwest side of the clay-settling area, but the culvert only discharges water on rare occasions of extreme rainfall. The vegetation near the culvert shows that the rainwater standing on the clay-settling area rarely rises to a level which would cause a discharge from that basin. Similarly, with regard to the lakes on the southeast side of the county's property, which are not involved in the area of the proposed landfill construction and operation, there is no contiguous surface water connection between those lakes and the surface waters located off the site. There is some groundwater seepage from the foot of a dike, but no regular flow over the top of the dike connecting to any surface
water body was established. In any event, the proposed activities would have no significant short- or long-term adverse impacts on water quality.
The Petitioner relied on the testimony of two expert witnesses, Drs. Carnahan and Urone. Drs. Carnahan and Urone collected no soil, water, or air samples and performed no laboratory tests nor independent calculations or analyses. Dr. Carnahan read the permit application less than a week before the final hearing and visited the site only on the day before his testimony. Dr. Urone never visited the landfill site. Dr. Urone was proffered as an expert in air pollution, but he has no prior experience with the construction and operation of landfills in terms of their air pollution potential. Dr. Urone opines that there could be a potential odor problem at the landfill, but has done no analysis or investigation regarding this potential problem at the subject landfill site, or any other similar landfill, to calculate the amount of potential odor which could be generated. He admittedly is not an expert concerning the use of soil cover to control odors at landfills. He refrained from expressing an opinion about the suitability of the proposed daily, intermediate, and final soil covers. Further, Dr. Urone acknowledges that the methane gas in itself, in the concentrations to be expected from such a landfill, would have no significant impact on air quality. He further admitted he was unable to estimate what would occur at the subject site in terms of airborne dust emissions, but acknowledged that they could be controlled by using well-known dust control techniques such as those found above. Finally, Dr. Urone admits that if the landfill was operated in a manner described in the permit application documents which he reviewed, then there should be no health problem as that is defined by current health standards, nor did he expect any violation of air quality standards.
Based on a limited review of the permit application materials, both Drs. Carnahan and Urone expressed only general concerns about the effects of the proposed project. Finally, Dr. Carnahan admitted the thoroughness of the investigation and site evaluation performed by Respondent's expert witnesses in these subject areas and did not dispute the result of their investigations (in evidence). Thus, the testimony of the expert witnesses presented by the County in the above subject areas is accepted.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes (1981).
Section 403.707, Florida Statutes (1982 Supp.), provides that no resource recovery facility such as a landfill may be constructed or operated without a permit issued by the Department of Environmental Regulation. Rule 17- 7.03(2)(a), Florida Administrative Code, requires that sanitary landfills must be operated in compliance with a DER permit issued pursuant to Chapter 17-4, Florida Administrative Code.
Section 17-4.07, Florida Administrative Code, provides, as follows:
A permit may be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results and other information, that the construction,
expansion, modification, operation, or acti- vity of the installation will not discharge, emit, or cause pollution and contravention of the Department's standards or rules . . . .
* * *
(3) The Department shall issue permits to construct, operate, maintain, expand, or modify an installation which may reasonably be expected to be a source of pollution only when it determines that the installation is provided or equipped with pollution control or facilities that will abate or prevent pollution to a degree that will comply with the standards or rules promulgated by the Department except as provided in Chapter 403.088, Florida Statutes.
Having considered all the evidence presented and in view of the above findings of fact, it is concluded as a matter of law that Hillsborough County has provided reasonable assurances, based on plans, test results, and other information in evidence, that the installation and operation of the proposed sanitary landfill, including the storm water drainage system, and the dredge and fill activities related thereto, will not pollute the waters of the state or otherwise cause pollution in violation of applicable DER regulations. In this regard, unrefuted, competent, substantial evidence has been presented which demonstrates that the proposed landfill will not violate the prohibitions contained in Section 17-7.04, Florida Administrative Code. That rule provides for the disposal of solid waste only in sanitary landfills; that permanent leachate control methods be installed; that no solid wastes will be placed in the immediate vicinity of a sink hole, limestone, or gravel pit, or adjacent or within 500 feet of a shallow water supply well; in a "de-watered pit" nor in an area subject to periodic flooding. The rule further requires that no solid waste be placed in any water body or within 200 feet of any body of water which discharges from the site; nor in any area open to public view from a major thoroughfare; nor within 10,000 feet of a runway of an airport used by turbojet aircraft, nor within 5,000 feet of a runway used by piston-engine-type aircraft. The rule finally precludes disposition of hazardous wastes or infectious waste in a sanitary landfill.
The permit applicant has affirmatively established that these prohibitions will be complied with by the installation and operation of the landfill as proposed and as found above. Additionally, extensive testimony in evidence adduced by the permit applicant, and unrefuted by the Petitioner, establishes that the extensive criteria listed in Rule 17-7.05, Florida Administrative Code, will be complied with. For instance, all appropriate soil and hydrogeologic surveys have been made. All investigations, plans, and mapping have been performed. The County has installed nine, instead of the required three, monitoring wells to monitor groundwater quality on and in the vicinity of the site pursuant to this rule. In short, compliance with the various criteria contained in that rule during the design, construction, and operation of the landfill, including sampling of water quality background parameters, the design and proposed installation of dust control methods and an appropriate method for collecting, treating, and controlling leachate emanating from the landfill, among the other enumerated criteria, have been established to be appropriately complied with. That sampling and investigation, unrefuted in evidence, established that the water and air quality standards in Chapters 17-2 and 17-3, Florida Administrative Code, will be met.
The storm water system was established to be capable of collecting and treating the runoff from the first inch of rainfall, which renders it in compliance with Section 17-25.04(5) Florida Administrative Code. With the installation of turbidity curtains and other measures to control siltation and runoff from the proposed dredge and fill activities, involving installation of culverts and construction of the access road, it was established that there will be no short- or long-term violations of water quality standards contained in Chapter 17-3, Florida Administrative Code, and accordingly the requirements of Section 17-4.28(3), Florida Administrative Code, have been satisfied. While it is true that the background levels of radiation in some of the test wells are above the DER standard of 15 pci/liter, however, these levels are naturally occurring, were not taken from the landfill site itself, and were not shown to be enhanced or hazardously distributed by activity associated with the construction and operation of the landfill as proposed.
The Petitioners adduced extensive testimony regarding unsatisfactory conditions at other landfills in Hillsborough County. Those conditions have tangential relevance to the instant situation; however, if such unsatisfactory conditions as described at other landfills should be allowed to develop through inappropriate operations at the proposed landfill, then Hillsborough County would not be operating the landfill in accordance with its permit application or permit. Should that situation occur, the Department could proceed with appropriate enforcement action. See, Hillsborough County v. DER, 3 FALR 2081-A.
Hillsborough County has established reasonable assurances that the Hillsborough County Environmental Protection Commission standards will also be satisfied by the proposed design and operation of the landfill. Although the Petitioner argues that the County has a "nondegradation rule" that prohibits any "degradation" of Hillsborough County water, this rule must be read in the context of other Hillsborough County rules. The County allows discharges into its waters so long as the discharges do not violate applicable water quality standards. Similarly, the DER prohibits "pollution," but allows discharges that do not violate its standards. See Sections 403.031(2), 403,087, Florida Statutes (1981). It was not established that the county standard is stricter than those enforced directly by DER such that the county water quality standards would be paramount. The evidence establishes that the proposed landfill facility will not cause, in its construction or operation, any violations of applicable county or DER water quality standards, so there will be no "degradation" or "pollution," to use the DER terminology, which will be violative of the applicable water quality standards of either agency, the County being the administrator of an approved local pollution control program pursuant to Section 403.182, Florida Statutes.
The petitioner has attempted to raise an issue concerning the construction of berms delineating the boundaries of the landfill cells in which refuse will be placed on top of the leachate collection system and clay liner. The Petitioner contends that these berms must be built in accordance with the requirements of Chapter 17-9, Florida Administrative Code. Section 17-9.01, Florida Administrative Code, is a general statement of intent which precedes the substantive portion of that chapter and refers to past failures of earthen dams used for the impoundment of liquid industrial wastes from phosphate mines and processing operations. This section provides that dams designed to impound liquid industrial waste from phosphate mining and processing should be constructed in accordance with certain specifications contained in that chapter. Chapter 17-9, however, does not apply to the proposed berms constructed within the landfill designed to contain solid waste within the landfill cells. The
berms at the landfill will simply hold solid, and not liquid, wastes. The berms will not impound any liquid waste from a phosphate mine, as referred to in Chapter 17-9, Florida Administrative Code. Neither does Chapter 17-9 now apply to the existing dams on the site, inasmuch as the clay in the clay-settling area has solidified. Dr. Garlanger, an expert on clay waste disposal from phosphate mines, established that the dams could be removed and the solidified clay- settling area certified as "abandoned" for purposes of this rule. Abandoned dams are not subject to Chapter 17-9 requirements. None of the existing dikes on the site contain liquid industrial wastes, and thus are not within the purview of Chapter 17-9 criteria for earthen dams. Nevertheless, the County proposes to periodically inspect the dikes and take any remedial measures necessary to ensure their integrity and safety.
The Petitioner has raised another issue concerning the combination of the construction and operation permit applications in the same proceeding. It should be pointed out, however, that a combined construction and operation permit was granted for the Hillsborough Heights Landfill during a prior proceeding before the DOAH. See, Hillsborough County v. DER, 3 FALR 2081-A. The Recommended Order in that case provided that reasonable assurances had been provided by the County that installation and operation of the proposed landfill would meet appropriate standards. Further, the Final Order in that case
provides that the County had applied to DER for a sanitary landfill construction and operation permit. Thus, the combination of construction and operation permit applications in the instant proceeding is consistent with prior practice before the DER and the DOAH. There are a number of practical reasons for issuing the permits in a combined fashion. The landfill would be built in a continuous, nonstop process for at least 34 years. Construction of a landfill actually occurs each day refuse is added to the existing landfill structure. As one lift or cell is filled, other areas are prepared and utilized. Thus, the landfill process cannot be readily separated into a distinct construction and operation phase.
Sometimes an installation which poses a potential pollution discharge occurrence is built pursuant to a construction permit and then issued a temporary operating permit for a limited period of time to see whether emissions meet applicable air or water quality standards. After the discharge or emissions of such an installation, such as a sewer plant or electric power plant, are deemed to be in accordance with state standards, then a five-year permanent operating permit is issued. In a case such as this, however, a landfill cannot be switched on and off to measure its emissions. There are no "emissions" in the traditional sense, since there is no stack, outfall line, or similar method of disposing of effluent or emissions. Solid waste is simply brought in and is buried and, since there are no overt emissions to measure, one of the basic purposes of requiring separate construction and operation permits is missing in the instant case.
Separate construction and operation permits normally give the DER an opportunity to inspect the facility and confirm that it has been built in accordance with the permit application. In the instant case, DER and the county have agreed to permit conditions providing that the engineer of record shall make periodic inspections to ensure the design integrity is complied with and that any deviations shall be reported in writing to the Hillsborough County Environmental Protection Commission within five days. If construction is improperly done, DER would then have authority to proceed in an enforcement action against the county. In this connection, DER should itself inspect the landfill on a frequent basis to ensure that operation is appropriate, since the effectiveness of a landfill such as this, in complying with appropriate air and
water quality standards, depends upon the adherence by the operators to the design and operation parameters, such as ensuring that a six-inch minimum daily cover material or soil is consistently placed over refuse to ensure compliance with the odor criteria. Thus, although DER has issued separate construction and operation permits for landfills in the past, those cases involved complicated or unusual construction practices or design such as the installation and welding of synthetic liners across the entire bottom of a landfill. In the case at bar, however, the landfill only involves standard designs and practices and the undisputed evidence shows that it will be built and operated in accordance with those, standard designs and practices. Finally, Hillsborough County has substantially filled up its existing Hillsborough Heights landfill. If a permit proceeding for a construction permit is accomplished and a bifurcated proceeding for the consideration of issuance of an operation permit were thereafter conducted, a substantial delay would be incurred before issuance of the permits, or review of their denial, was finalized, substantially beyond the time when the county must cease using its Hillsborough Heights landfill, under DER mandate.
In the meantime, the county would continue to have to collect 2,000 tons of solid waste a day, but with no adequate place to dispose of it, with obvious adverse environmental and public health impacts. Thus, in view of all these circumstances, not the least of which was the somewhat belated assertion of this issue after the case was well underway procedurally, the consideration of a combined construction and operation permit application for the subject landfill has been established to be appropriate.
The Petitioner has raised several arguments concerning the "reasonable assurances standard, intimating that the county must prove its case beyond a reasonable doubt. That contention is erroneous. Although SEHCA's petition raises a number of questions concerning radiation, air pollution, and other matters, Petitioners presented little or no affirmative evidence concerning most of these issues. The Petitioner then contends that Hillsborough County has the burden of refuting the Petitioners' allegations. This argument is ill-founded. It is well established that:
"The 'burden of proof' is upon the petitioner to go forward with the evidence to prove the truth of the facts asserted in this petition.
If the petitioner fails to present evidence, or fails to carry the burden of proof as to the contro- verted facts asserted--assuming that the applicant's preliminary showing before the hearing officer warrants a finding of reasonable assurances' then the permit must be approved."
Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 789 (Fla. 1st DCA 1981).
In the instant case, the Petitioner has failed to overcome the permit applicant/Respondent's showing of reasonable assurances that the above-cited pertinent DER standards will be complied with.
Permit Conditions
At the behest of DER, Hillsborough County and DER have agreed to certain permit conditions being imposed. The Hearing Officer has authority to recommend permit conditions in light of evidence presented in a particular case. Hopwood v. Department of Environmental Regulation, 402 So.2d 1296 (Fla. 1st DCA 1981). Thus, the following conditions should be imposed:
Inasmuch as most of the issues raised by the Petitioners are properly resolvable by the appropriate operation and maintenance
of the landfill and since DER has the authority to exercise control over the construction and
operation of the landfill, it should energetically do so. This will be the only Class I landfill in Hillsborough County, and thus the DER should be able to, and should, increase the frequency of its inspections at the landfill and should encourage the Hillsborough County Environmental Protection Commission to do likewise. Thus, one or both of these agencies should inspect the landfill for correct operation on a weekly basis. This is especially important during the first few years
of operation before the resource recovery incinerator facility becomes operational, after which time the potential for many problems raised by the Petitioner will be greatly reduced because the landfill refuse will consist mostly of ash.
The county should have members of its own staff stationed at the landfill. It should have an employee qualified in landfill operation on the site daily to ensure that the landfill is being continuously operated properly. This employee should make regular and frequent inspections of the site and drainage facilities and should also be responsible for daily inspections of the access roads to the site. Further, Hillsborough County and DER should take background water samples from wells of residents who live within a mile of the landfill site before the landfill commences operation. This will provide significant background groundwater quality data to serve as a means of measurement of the later operation of the landfill in terms of its impact, if any, on ground water quality.
Pending Motions
Three issues were taken under advisement at the final hearing:
Petitioners' Motion for Directed Verdict;
Petitioners' Motion to Strike the Testimony of Robert Hauser; and
The county's objection to the admis- sibility of certain radiation-related material.
A motion for directed verdict is not appropriate in administrative proceedings. Such motions are instead treated as motions to dismiss. In the instant case, the evidence establishes that Hillsborough County has met its burden of proof and that motion should be denied.
The Petitioner moved to strike the testimony of Robert Hauser at the conclusion of the hearing because Hauser had some notes and an outline in his possession during the early portion of the hearing (Hearing Officer's Exhibit 1). This motion should be denied. The Petitioner waived its right to complain because it waited for two and a half days, until the end of the hearing, to raise this objection. Counsel for Petitioner, at the time the witness revealed he was using them, stated that he had no objection to Hauser's notes. The outline in Hauser's possession during only the opening moments of his testimony was only used during preliminary testimony concerning his credentials and CDM's involvement in the preparation of the permit application, which preliminary testimonial matters were undisputed anyway. Further, Hauser's testimony on these matters was corroborated by other competent, substantial evidence of record and could therefore be deemed cumulative, if nothing else. The Petitioner was not shown to have been prejudiced by witness Hauser looking at the notes and outline during the preliminary portions of this testimony concerning undisputed background information and therefore the ruling at the hearing is hereby affirmed and the Petitioners' Motion to Strike is denied.
The county objected to the admissibility of certain exhibits introduced by Petitioner because of information therein concerning radiation- related issues. Only the DER standards are at issue in this proceeding, and that standard only concerns radiation in water, which was not shown to be violated. It might be noted, parenthetically, that the legislature has authorized the Department of Health and Rehabilitative Services to develop policies and programs designed to evaluate, determine, and ameliorate the hazards associated with using or disposing of radioactive materials. See Section 404.051(1), Florida Statutes (Supp. 1982). In this regard, however, the legislature, in promulgating the Resource Recovery and Management Act, which is enforced by DER, provided that certain wastes shall not be regulated as hazardous wastes, including the discarded material generated by mining and processing of phosphate rock. Section 403.7045(2)(c), Florida Statutes (Supp. 1982). It is clear, therefore, that discarded phosphate mining materials do not constitute hazardous waste and, in any event (as Petitioner concedes), there are no applicable DER (or DHRS) standards at present for other than water-borne radiation, which will be complied with in the landfill's construction and operation. Thus, the exhibits introduced by the petitioner may only be considered with a view toward this standard.
Finally, the Petitioner has filed, on December 1, 1983, long after the hearing, a "Motion for Official Recognition and Administrative Notice." The Respondent, Hillsborough County, filed its response and objection to that motion on December 2, 1983. In administrative proceedings a Hearing Officer may take official recognition of certain materials pursuant to Section 120.61, Florida Statutes (1981), which provides:
When official recognition is requested, the parties shall be notified and
given an opportunity to examine and test the material.
In the instant case, the Petitioner has not satisfied that requirement, nor the requirement in Section 90.203, Florida Statutes, which provides that each adverse party must be given timely written notice of the request for judicial notice, to enable the adverse party to prepare to meet the request.
Here, the Petitioner's motion is not meritorious because it was not timely. No request for official recognition was filed before the final hearing. Indeed, the Petitioner's motion was not filed until more than a month after the hearing, and more than eight days after the original deadline for proposed orders. It is clear that the parties must be given a meaningful opportunity to respond to and rebut materials offered for official recognition. Peoples Bank of Indian River County v. Department of Banking and Finance, 395 So.2d 521 (Fla.198l), in which the Supreme Court stated that:
". . . We hold that any material information which may have been properly noticed must nonetheless have been available to the parties for rebuttal at some stage of the agency proceedings."
In Poirier v. Division of Health, 351 So.2d 50 (Fla. 1st DCA 1977), the court held that it was error to take judicial notice of materials not furnished to other parties prior to hearing or introduced into evidence at the hearing. In light of these decisions and the peculiar facts of this case, it would be prejudicial to allow the Petitioners thus to place matters into evidence at this late date without the opportunity for the Department and the county to prepare to meet and respond to them. The motion is denied.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,
RECOMMENDED:
That the Department of Environmental Regulation issue permits to Hillsborough County for the construction and operation of the proposed Southeast Hillsborough County landfill and for the attendant storm water drainage system and dredge and fill operations, subject to the following conditions:
That the Hillsborough County Environmental Protection Commission and/or DER ensure that the landfill operation is inspected by duly qualified personnel on a weekly basis;
That the county have a qualified employee on the site daily to ensure that the landfill and storm water drainage system is being consistently operated properly;
That the Department should take background water samples from wells of the residents living within one mile of the site before construction and operation of the landfill commences to establish background data by which to measure the quality and safety of the later landfill operation in terms of any impacts on groundwater quality, which water quality should be periodically monitored in a similar manner thereafter.
DONE AND ENTERED this 29th day of December, 1983, at Tallahassee, Florida.
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
FILED with the Clerk of the Division of Administrative Hearings this 30th day of December, 1983.
COPIES FURNISHED:
Thomas W. Reese, Esquire
123 Eighth Street, North
St. Petersburg, Florida 33701
William W. Deane, Esquire Douglas MacLaughlin, Esquire Department of Environmental Regulation
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Jacob D. Varn, Esquire David S. Dee, Esquire Suite 410, Lewis State Bank Building
Post Office Drawer 190 Tallahassee, Florida 32302
Ms. Victoria Tschinkel Secretary
Department of Environmental Regulation
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Dec. 30, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 30, 1983 | Recommended Order | Petitioner failed to overcome the reasonable assurances given by Respondent that the proposed landfill and well will not violate water quality. |
