The Issue The issues considered at final hearing were those issues set out in Petitioners' Amended Petition For A Formal Hearing. At the conclusion of the final hearing the parties were given an opportunity to file a proposed recommended order and memorandum in support thereof. Such memorandum and proposed recommended order was received by the Hearing Officer from the Department of Environmental Regulation on November 10, 1976, from Leon County on November 12, 1976, and from the Citizens' Committee to Preserve Lake Lafayette on November 15, 1976. Having fully considered the matters presented herein, the Hearing Officer enters the following:
Findings Of Fact Respondent, Leon County, Florida, has applied for a construction permit to construct a sanitary landfill in Sections 4 and 5, Township 1 South, Range 2 East, Leon County, Florida. The proposed site consists of 79.9 acres off of U.S. Highway 27 South. The application is in proper form and contains all information required by the Department of Environmental Regulation. The area to be served by the proposed sanitary landfill is Leon County, Florida, with a projected average population of 155,200. The responsible operating authority as set forth in the application is Leon County. The evidence presented did not establish that the proposed sanitary landfill will attract high concentrations of rodents, insects, or birds which would do serious damage to the land and crops surrounding the site or which would adversely affect the health and welfare of the residents near the site. The application proposes a program for the extermination of any rats discovered on site and further proposes that the working faces of the landfill area will be kept as small as possible with all exposed waste materials covered as frequently as practical to minimize the problem of flies and insects during hot, humid periods. Evidence was presented indicating that construction of the proposed sanitary landfill site could adversely affect surrounding property value. However, the evidence was not sufficient to conclusively establish the extent of this affect nor the time at which it would occur or for which it would endure. As designed the proposed sanitary landfill would not cause any solid waste to be disposed of by being placed in or within 200 feet of any natural or artificial body of water or on the watershed of any surface water supply. Lake Lafayette is hydraulically connected to the Floridan Aquifer. The proposed sanitary landfill site is located at least 500 feet from the flood prone area of Lake Lafayette and 1,000 feet from Lake Lafayette proper. As designed the proposed sanitary landfill will not cause any solid waste to be disposed of by being placed in a sink hole or in the immediate area thereof. Solid waste will be disposed of by being placed in a trench and covered over with successive lifts similarly covered. There are no active sink holes on or in the immediate area of, the proposed sanitary landfill site. Three ponds exist in the immediate vicinity of the site, one of which is to be used for surface water runoff. These ponds were probably formed by past sink hole activity but from the site topography and water elevations it appears that the ponds are now stable and are probably not hydraulically connected with the Floridan Aquifer. No limestone or gravel pits exist on site. The entire proposed site is well above the +50' MSL contour line below which are found flood prone areas in the vicinity of the site. The water table of the site is more than 5 feet below normal ground surface. As designed the proposed sanitary landfill will not require the disposal of solid waste in an area immediately adjacent to or within the cone of influence of a public water supply. As designed the proposed sanitary landfill will not require the disposal of solid waste within 200 feet of any habitation or place of business served by a public water supply system or within 1,000 feet of any habitation or place of business served by an individual potable shallow water supply well with the following exceptions. There are three wells located on the property which would be owned by Leon County that may be within 1,000 feet of the disposal site for solid waste. Of these three wells one has been abandoned and will be sealed. A second is located south of the proposed site at an existing house and will be used as a source of non-potable water and for monitoring the potable aquifer. The third well is located on the northwest portion of the county property and will be maintained as a standby source of potable water. There are two other wells located on the property to be owned by Leon County which are more than 1,000 feet from the proposed disposal site for solid waste and could be used to monitor the Floridan Aquifer. There is a well which serves a private residence and farm located plus or minus 1,200 feet west of the proposed site for the disposal of solid waste. No solid waste shall be disposed of in any area open to public view from any major thoroughfare. The proposed site in not on any public highway, road, alley or the right-of-way thereof. The Lake Lafayette drainage basin is approximately six miles long elongated in a west-northwest, east-southeast direction. The width varies between one-quarter to one-half mile. The western end of the basin contains many sink holes which probably have open connections to the underlying bedrock. The eastern end of the basin, near the proposed landfill site, is swampy and contains many cypress trees. The Lake Lafayette drainage basin appears to be an area of recharge to the Floridan Aquifer. The proposed sanitary landfill site is not located in the Lake Lafayette drainage basin. The engineering firm of Ardaman & Associates, Inc., conducted a subsurface investigation of the hydrologic and soil conditions at the site of the proposed sanitary landfill. As part of their investigation they performed ten soil borings and installed seven deep ground water monitoring wells. The results of the investigation of Ardaman & Associates, Inc., indicates a low probability of sink hole occurrence. In the course of their investigation, Ardaman & Associates, Inc., discovered a depression in the ground water level at Test Hole No. 9. The significance of this ground water low is that it may be a localized area of recharge. However, as shown by the testimony of the engineers who conducted the investigation for Ardaman & Associates, Inc., as well as by the report of their investigation, this depression creates no realistic danger with regard to the introduction of pollutants into the aquifer or ground water supply, so long as no putrescible wastes are placed within a distance of 1,000 feet of Test Hole No. 9. The hydro-geologist testifying on behalf of the Petitioners stated that he believed the radius of influence of the depression at Test Hole No. 9 may actually be less than 1,000 feet and that maintaining 1,000 feet distance from Test Hole No. 9 is a conservative distance. As designed, the proposed sanitary landfill will not dispose of any solid waste or other putrescible waste within 1,000 feet of Test Hole No. 9. The soils found on the proposed sanitary landfill site are of low permeability and suitable for a sanitary landfill. The low permeability of the soils will limit both the lateral and vertical seepage of leachate. The vertical flow of potential leachate to the Floridan Aquifer has been estimated at a rate of 1.0 to 1.5 feet per year. The lateral flow rate of such leachate through the soils overlying the bedrock in the Lafayette drainage basin has been estimated at the rate of 2 feet per year. As has been noted above, the proposed sanitary landfill site is located approximately 1,000 feet from Lake Lafayette, and 500 feet from the +50' MSL contour line which has been used to describe the perimeter of the flood prone area of the Lake Lafayette drainage basin. At the estimated flow rate it would therefore take several hundred years for any leachate produced by the sanitary landfill to reach the Lake Lafayette drainage basin. The Floridan Aquifer underlies all of Leon County at depths of 100 to 500 feet. As designed the proposed sanitary landfill will have test wells constructed throughout the site to provide a means of detecting any lateral migration of contaminants from the landfill operation should such occur. Periodic samples will be taken from these test wells and analyzed. The monitoring wells will be set up in such a manner that regardless of the direction of flow of subsurface water they will pick up and detect any pollutants that may be passing from the landfill. Some of these test wells will be placed in close proximity to the proposed sanitary landfill site to give early warning of the existence of any leachate flow. If there is any problem with the flow of leachate from the proposed site it will be detected easily within the first five years of operation. Since it would take several hundred years to reach the Lake Lafayette drainage basin at the estimated flow rates this should provide adequate warning and reaction time for the alleviation of any potential pollution problem. A significant flow of leachate is not expected. The existing pond which will receive the surface runoff from the sanitary landfill site is likely of sink hole origin but after a reasonable investigation it appears that the pond is now stable and not hydraulically connected to the Floridan Aquifer. It is estimated that the pond can contain at least a 25 year storm rainfall though there might be some flooding from the pond in a 100 year storm rainfall. As designed, no significant amount of leachate, if any, will reach the surface water runoff retention pond. Petitioners' hydro-geologist did not state that the site is unsuitable for a sanitary landfill. Rather he testified that on the information he had reviewed, which information was that available to the Department of Environmental Regulation, it was his opinion that the Department of Environmental Regulation lacks sufficient information to determine if the proposed site is suitable from a water quality standpoint. Based upon all the testimony and evidence it appears as a matter of fact that the information available to the Department of Environmental Regulation is reasonably sufficient to determine the suitability of the proposed site. There has been no showing of a necessity for alining the proposed trenches which will receive the solid waste. The Planning Director for the Tallahassee-Leon County Planning Department, in a letter to the Department of Environmental Regulation stated that the use of the proposed site for landfill purposes is not inconsistent with the land use plan. He further stated his concern for traffic on U.S. Highway 27, the possible adverse aesthetic impact which he felt could be minimized and his concern that Lake Lafayette be protected from landfill leachate through engineering design. In their Amended Petition Petitioners raised the question of the present zoning of the proposed site. No evidence was presented by Petitioners to show that the site is not properly zoned. Based upon the testimony and evidence presented there appears little possibility that the proposed sanitary landfill will pollute or seriously damage Lake Lafayette, the Floridan Aquifer or any other source of public or private water supply. The proposed sanitary landfill as designed is not likely to cause any significant water pollution or to degrade water quality below those standards set by the Department of Environmental Regulation. None of the prohibitions set out in Section 17-7.04, F.A.C, exist so as to require the denial of the application for a construction permit for a sanitary landfill by Respondent, Leon County. The sanitary landfill criteria set out in Section 17-7.05, F.A.C., have been met by Respondent, Leon County.
The Issue Whether permit application SWO 13-5152, should be granted under Chapter 403, Florida Statutes. This case involves the application of Respondents City of North Miami and Munisport, Inc. to Respondent Department of Environmental Regulation (DER) for an operating permit under the provisions of Chapter 403, Florida Statutes, and Chapter 17-7, Florida Administrative Code, to operate a sanitary landfill located in North Miami, Florida. DER granted provisional approval of the application by the issuance of a Notice of Intent to issue the permit on January 27, 1978. Petitioners filed the instant petition of February 13, 1978, challenging the issuance of the proposed permit. Final hearing herein was originally scheduled for April 7, 1978, but at the instance of the parties was continued and reset to commence on October 18, 1978. During the course of the final hearing, 29 witnesses presented testimony, including six public witnesses. (List of public witnesses - Hearing Officer's Exhibit 3) A total of 35 exhibits were admitted in evidence. Three exhibits (Exhibits 5, 13 and 15) were rejected by the Hearing Officer.
Findings Of Fact By application dated November 14, 1977, Respondent City of North Miami, Florida, as owner, and Respondent Munisport, Inc. as the "responsible operating authority" requested Respondent DER to issue a permit to operate a solid waste resource recovery and management facility consisting of 345.90 acres located at 14301 Biscayne Boulevard, North Miami, Florida. The site, known as the North Miami Recreation Development, had been operating as a sanitary landfill under temporary operating permits (TOP) issued by the DER on May 8, 1975 and September 21, 1976. The 1976 TOP provided for an expiration date of July 1, 1977, and contained various conditions designed to give the permittees a reasonable period of time to conform to the DER regulations relative to sanitary landfills. These included standard requirements such as the rendering of reports on the operation of the facility and prohibiting the deposit of raw and infectious waste, or hazardous waste that had not been rendered safe and sanitary prior to delivery. Additionally, the permit conditions required the facility to be so operated that it would cause minimum adverse effects on the environment, such as objectionable odors, contaminated storm water runoff, or leachates causing degradation of surface of ground waters. Further, the permit provided for a three-month review program after its issuance to consider the feasibility of dumping solid waste in 63 acres of submerged land subject to previous filling with clean fill and/or construction debris, filling of land above mean high water with garbage either above clean fill or above trenches filled with wood and construction debris and covered with clean fill, and a six-week period of weekly water quality monitoring at agreed to sites for analysis by both permittees and the Dade County Environmental Resources Management (DERM). The permit further prohibited the placement of refuse waterward of the mean high water line or in trenches cut below the natural ground water table. (Exhibits 1, 4). By letter of January 27, 1978, DER gave notice to the applicant of its intent to issue the requested operation permit for the solid waste disposal facility and stated therein the following reasons for its determination: The solid waste disposal site is in the public interest. The Department feels that the site will not substantially affect the water quality or interfere with the area's wildlife. The applications and plans for this facility have been evaluated and found to be in conformance with Chapter 403, F.S., Chapter 17-4, FAC, and Chapter 17-7, FAC. The letter stated standard conditions to which the permit would be subject, including special conditions that had been noted in the 1976 TOP. It also prescribed specific conditions that no solid wastes could be placed within 30 feet of any existing or future lake area, no dumping below water at any time nor in any dewatered excavations, and that a quarterly water quality monitoring program at monitoring wells No. 4 through 12 be sampled for specified substances. Proposed Condition 16 stated as follows: Solid waste shall be deposited in locations consistent with those approved in the Army Corps of Engineers' dredge and fill permit #75B-0869. No solid waste shall be deposited in the areas commonly known as the wetlands and transitional zones of said wetlands, as shown on the attached map. Subject to the Corps approval of proposed modifications to permit #75B-0869, a revised DER solid waste permit will be issued consistent with the approved modifications. A sketch of the landfill site purporting to designate the landfill deposal area, wetlands and transitional zone, and mean high water line was attached. (Exhibit 3) The Petitioners consist of the Florida Audubon Society, which has some 2,000 members residing in Dade County, Tropical Audubon Society, which is affiliated with Florida Audubon Society; Keystone Point Homeowners Association, Inc., comprised of approximately 425 owners of mostly waterfront or canal homes in North Miami within a mile of the landfill site; Thomas Pafford, North Miami, Florida, who uses the waters of Biscayne Bay and nearby wetlands for recreational purposes; and Maureen B. Harwitz, who resides within a half mile of the landfill site and uses Biscayne Bay and the mangrove preserve adjacent to the landfill site for recreational purposes. Members of the above-named organizational groups use the waters surrounding the landfill site for recreational purposes and are concerned that the waters and fish and animal life therein will be adversely affected if the operation permit is granted. (Testimony of Lee, Brown, Pafford, Lippelman, Harwitz) Munisport has been operating the North Miami landfill under a lease with the City of North Miami since approximately 1974. The ultimate aim is to convert the area into a recreational complex consisting of golf courses, club house, and other sports facilities. The site was used as an unregulated dump for many years prior to initiation of the Munisport operation. The site has been the subject of previously issued state and Corps of Engineer dredge and fill permits which are not the subject of this proceeding. The landfill site occupies an area generally between Northwest 135th Street on the south and Northwest 151st Street on the north. It lies between Biscayne Boulevard on the west, and state mangrove preserves and land of Florida International University on the east. It is less than a mile to Biscayne Bay on the east side of the landfill. The nearest point of entry is in the southeast area where Arch Creek empties into the Bay. At this time, Munisport has filled approximately 210 acres at the site with ten feet or more of fill material. A final cover has been completed over about 70 acres of this land and a golf course is presently being constructed. Pursuant to the dredge and fill permits, five lakes approximately 35 feet deep are nearly completed and some six or seven more are to be dug in the future pursuant to those permits. These lakes are separated from the solid waste by a 30 foot wide dike of clean fill. Although some cover material has been trucked to the site, about 1.6 million cubic yards of fill from the excavated lakes have been or will be utilized in cover operations for the landfill. The solid waste layer averages 15 feet in depth and lies about two feet above the ground water table. About 230 acres lie within the upland fill area above the mean high water line which is not within the area of jurisdiction of the Army Corps of Engineers. The mean high water line has been established by appropriate procedures under Chapter 177, F.S., and the surveying procedures were approved by the Department of Natural Resources on April 6, 1978. Although not stated in the Notice of Intent to issue the requested permit, DER intends to restrict the life of any permit to the time when the Metropolitan Dade County Resources Recovery Facility commences operation in approximately two years. The applicants and Dade County also have a memorandum of understanding to this effect. (Testimony of Stotts, Checca, Exhibits 1, 2, 35, 36, Hearing Officer's Exhibit 1) Munisport receives solid waste from a variety of firms, institutions, and surrounding municipalities. Its procedures are for vehicles to enter and exit the site from an access road leading to Biscayne Boulevard. A sign is located along the road indicating the operating hours, fee schedule, waste restrictions and other pertinent information. A large portion of the site is virtually inaccessible due to dense mangroves and mosquito control canals and ditches. At the check-in gate, a cursory inspection of vehicle loads is made by Munisport personnel who check the contents for quantity. Each load is directed to a designated place at the site where Munisport employees spread and compact the waste. At this stage, they are instructed to look for any unauthorized materials, such as hazardous and infectious waste. If such wasted is found, the offending party is required to remove it from the site. compactors and bulldozers push the solid waste to the face of the landfill and spread it out to facilitate compaction. During the hours of 6:00 P.M. to 6:00 A.M., a watchman is on duty at the site to accommodate customers. If less than four or five truckloads arrive during the night hours, the material is not processed. If a larger quantity is involved, a Munisport employee moves and covers the material prior to the following workday. Due to the high ground water tabled, the area method is used for filling the site. This is a procedure by which refuse cells are constructed in lifts not to exceed ten feet in vertical height. They are composed of cells which constitute a one-day quantity of refuse. Six inches minimum cover of clean fill is applied daily, and a one foot intermediate cover is applied within a year after compaction. The cells are compacted in two-foot layers and, upon completion of a particular area, a minimum of two feet of final cover is applied. A dike constructed of compacted limerock borders the east side of the site and basically constitutes the present mean high water line. It is designed to protect the adjoining 129 acres of mangrove preserve and Biscayne Bay from any adverse water quality which might occur from runoff of degraded waters from the landfill site in the event of contamination. (Testimony of Haddad, Checca, Exhibit 1, 9) The shallow soil underlying the landfill at depths ranging to almost ten feet consists of a combination of organic matter and debris from prior dump use, muck, and sand. Soil borings taken at the site show that limestone or calcareous rock known as Miami oolite is about eight feet below the soil layer. At this depth is found the Biscayne aquifer that carries the unconfined ground water in the area. The aquifer is approximately 160 feet deep under the site and constitutes the major source of water supply in Dade County. The gradient of the water table for the landfill site runs in a southeasterly direction toward Biscayne Bay. Approximately 75% of the surface soil layer consists of organic muck, whereas in approximately 25% of the area, which was previously filled in the southern and westerly portions before commencement of the Munisport operation, the soil is primarily of a sandy type. (Testimony of Checca, Pitt, Exhibit 1) Leachate is produced in sanitary landfills by precipitation that percolates down through decomposing refuse cells and picks up polluting substances created from the decaying solid waste. It can form a "plume" or "bubble" that takes the course of least resistance in flowing laterally or vertically through a landfill site. The strength and concentration of the leachate is dependent upon various factors including the composition, compaction, and the age of decomposing refuse, and the amount of water being introduced into the area. As it passes slowly through the soil beneath the solid waste material, the unsaturated soils act as filters and permit ion exchange which reduces the quantity of contaminants. Dilution takes place where leachate comes in contact with ground water and leachate movement occurs gradually through the ground water aquifer in its direction of the flow. The presence and movement of leachate normally can be detected by analysis of ground water samples taken at various places throughout the landfill site. (Testimony of Checca, Pitt, Coker, Exhibit 1) Commencing in 1975, a monitoring program was instituted at the sanitary landfill to determine its effects on the ground water regime. A number of monitoring wells at various depths were constructed at different sites at the landfill, and samples were withdrawn and evaluated periodically to determine the types and degrees of pollution being generated by the landfill. Background samples were also obtained from wells off the site to establish the general character of water quality in the area and to compare these samples with those obtained from the site. Additionally, "grab" samples were taken of water from the bay and nearby canals and wetlands. Locations of the background and sampling wells were established by the applicants in conjunction with the DER and the Environmental Protection Agency. To determine the amount of leachate that probably would be generated at the site, the "water balance method" of computing the estimated time required to produce leachate, as well as the quantity that probably would be generated upon completion of the landfill, was made by representatives of the EPA in 1975 utilizing specific climatological and surface conditions at the site. This study indicated that percolation of surface water would increase during the operation of the landfill and before final soil and vegetative cover were in place, and that leachate would occur in about a year in larger quantities than would be produced by a completed landfill. Tests conducted during the ensuing three-year period of both surface and ground water through the monitoring program have failed to produce evidence that water quality is not within acceptable parameters or that water quality in the area surrounding the landfill site has been degraded. No significant differences in the concentrations of various ground water constituents were found between samples obtained at the disposal site and those collected in the adjacent mangrove forest or background areas. Neither was any evidence of contamination from leachate found in samples of surface water collected in the vicinity of the landfill or in nearby natural areas. (Testimony of Checca, Pitt, Linett, Perez, Exhibit 1, Exhibit 33) Three basic factors have undoubtedly accomplished reduction in the amount of leachate generated at the landfill. These are (a) attenuation and filtration of pollutants by unsaturated soils between and beneath the refuse cells, (b) biological assimilation by organisms living within the refuse cells and underlying soils, and (c) dilution upon contact with the ground water. A hydrogeologic study shows that the uppermost 14 feet of the aquifer immediately below the landfill represents only 0.2% of the total discharges with a ground water velocity of less than 0.1 foot per day. This part of the aquifer therefore provides considerable detention time for the water that percolates through the landfill. The strata, as well as the overlying organic marine soils, provide the absorption and assimilation that removes pollutants from the water. After water percolates through this layer, it reaches the highly permeable Miami oolite that carries about 43% of the ground water flow. The effects of soil absorption, filtration through the upper 14 feet of the aquifer, and dilution within the aquifer have demonstrably been sufficient to assimilate the water that percolates through the landfill. It is estimated that the time of travel of ground water from the landfill site to the closest discharge point in Biscayne Bay is approximately 68 years. Although the attenuation capability of the organic muck soil underlying the greater part of the landfill is high, the older area of the site in the southwestern portion which had been filled before the Munisport operation commenced, has no muck and consists primarily of sand with a higher rate of permeability. (Testimony of Checca, Pitt, Teas, Exhibits 1, 33) The fact that the organic muck material under the landfill is not uniform throughout the site, plus the fact that there have been various breaches in the permeable oolite layer below the soil, will, in the opinion of some experts, eventually lead to the generation and movement of a leachate plume into such breaches and ultimately to Biscayne Bay. These breaches consist of the deep lakes at the site, the Arch Creek Canal to the south of the site and a dredged excavation at the exit of that body of water into the bay some 3,600 feet distant from the landfill. Additionally, these experts postulate that the dike located on the eastern border of the site will not prevent leachate from moving into the surrounding mangrove area. It is therefore estimated that in the above ways, large amounts of leachate would enter the bay and adjacent wetlands within a period of five to ten years. (Testimony of Coker, Hudson, Pasley, Browder, Exhibits 12, 14, 29, 30) Although water monitoring at various levels in and at probable discharge points near the site have not found degradation of water quality, the applicants propose to address any future leachate problems in a variety of ways. These include continuous periodic testing of water quality and monitoring wells, excavation of a canal on the upland side of the site to intercept leachate and treatment of any contaminated water therein or by pumping the water to an interior lake for treatment. Based on the particular type of any degradation, chlorination and precipitators would be utilized. Long-range problems will be further reduced by the ultimate construction of the golf courses and placement of final soil and vegetative cover to reduce percolation of surface water. This will be aggravated to an undetermined degree, however, by periodic irrigation of the golf courses. (Testimony of Checca, Pitt, Kelman, Exhibits 1,33) During the early years of the Munisport operation, a number of violations of the conditions of the temporary operating permit occurred, but for the most part these were caused either through simple negligence of landfill personnel, breakdown of equipment, or introduction of unauthorized materials to the site by Munisport customers. In these situations, Munisport usually took prompt and effective action to prevent recurrence and to remedy the problem. For example, on one occasion in 1977, some 12 drums containing residue of a chemical substance deemed to constitute "hazardous waste" was brought into the site by persons unknown and was found leaking into the ground. A number of violations and warning notices were issued to Munisport by the Dade County Department of Environmental Resources Management (DERM), primarily in 1976, involving the placement of tree cuttings and wood scraps into excavations containing water at the south end of the site. These occurred, however, during a period when Munisport was engaging in tests to determine the suitability of such operations in conjunction with DER. Additionally, in 1976 and 1977, Munisport was advised of violations in the placement of garbage in exposed water, uncovered garbage, and delivery of garbage after hours. Munisport has had a continuing problem over the years with the unauthorized delivery of hospital wastes from various customers to the landfill in spite of letters written to hospital facilities and delivery firms cautioning them concerning the prohibition against the introduction of such material to the landfill. DERM personnel concede, however, that the operation has been continuously improved and that it is well-conducted in comparison with other landfills in the country. However, they believe that lakes should not exist in landfills and that the North Miami landfill is too close to the wetlands. (Testimony of Morrissey, Karafel, Sobrino, Haddad, Checca, Exhibits 6-11, 17, 18, 20-24, 27, supplemented by testimony of Pafford and Exhibit 16) In a letter of January 17, 1977, DERM expressed concerns about the Munisport operation to DER. One of these concerns was that leachate would migrate to proposed golf course lakes and the resulting pollution would produce poor water quality. Although 1976 testing of then existing lakes at the site reflected unusually high amounts of fecal coliform, subsequent tests in late 1978 showed very little, but tests again in January, 1979, showed that several lakes were again somewhat high in coliform. Coliform is not considered to be a strong parameter in assessing the presence of leachate and amounts vary considerably from day to day in lake areas. Additionally, great numbers of birds are normally present on the landfill site during operations and contribute in raising coliform readings to some extent. Dade County has a current policy that does not permit lakes to be excavated on landfills operated by the county. (Testimony of Checca, Morrissey, Sobrino, Karafel, Kosakowski, Linett, Newman, Kelman, Perez, Exhibits 17, 19, 20, 24, 25, 31, 32, 37, 38)
Recommendation That a permit be issued to the City of North Miami, Florida and Munisport, Inc. to operate the solid waste disposal facility as described and under the conditions stated in the letter of the Department of Environmental Regulation, dated January 27, 1978, wherein it gave notice of its intent to issue the said permit. DONE and ENTERED, this 13th day of April, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David Gluckman, Esquire 5305 Isabelle Drive Ken VanAssenderp, Esquire Tallahassee, Florida Smith, Young and Blue, P.A. Post Office Box 1833 Josepy D. Fleming, Esquire 620 Ingraham Building Marvin Sadur and 25 Southeast Second Avenue Richard J. Potash, Esquires Miami, Florida 33131 2000 L Street NW - Suite 612 Washington, D.C. 20036 Silvia Alderman, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue Whether the City of Jacksonville has provided reasonable assurances that a proposed modification of its permit to operate the City of Jacksonville North Sanitary Landfill by allowing an additional 35 feet of waste to be disposed of in Phase IIIb of the City of Jacksonville North Sanitary Landfill will not cause pollution in violation of any of the provisions of Chapter 403, Florida Statutes, or the rules promulgated thereunder? Whether the City of Jacksonville proposed modification of its permit to operate the City of Jacksonville North Sanitary Landfill by allowing an additional 35 feet of waste to be disposed of in Phase IIIb of the City of Jacksonville North Sanitary Landfill should be denied because of alleged violations of the City of Jacksonville's permit or Florida law?
Findings Of Fact Introduction. The City of Jacksonville North Sanitary Landfill. The City of Jacksonville (hereinafter referred to as the "City") operates two solid waste disposal facilities. One, the City of Jacksonville North Sanitary Landfill (hereinafter referred to as the "North Landfill"), is located at the intersection of New Berlin Road and Island Drive in the northern part of the City and Duval County, Florida. The North Landfill is operated pursuant to permit #SC16-12205 (hereinafter referred to as the "Permit"), issued by the Department on June 6, 1988. The Permit was issued "for operation of the City of Jacksonville North Sanitary Landfill, Phases I, II, and 111a; and of a new disposal area at the North Sanitary Landfill, Phase IIIb." The area in which the North Landfill is located is generally commercial property, with some rural and residential property: The North Landfill is bounded on the north by unimproved land owned by the City. This property stretches to Cedar Point Road. A few parcels within the property owned by the City to the north of the North Landfill are owned by others, including Mr. and Mrs. Leigh. The property to the east of the North Landfill is also unimproved property. It is owned by the St. Johns River Power Park. The St. Johns River Power Park is a power plant facility operated as a joint venture by the City, the Jacksonville Electric Authority and Florida Power and Light. The plant is located on the southern boundary of the North Landfill. The west boundary of the North Landfill is New Berlin Road. The property to the west of New Berlin Road is owned by a number of persons, including M & M Dairy. Phase IIIb of the North Landfill is located in the northeast quadrant of the landfill. The North Landfill primarily serves northern, and a part of western, Duval County. Approximately 3,000 tons of solid waste is disposed of each day in Jacksonville. Approximately 55% of the solid waste is disposed of at the North Landfill. The solid waste disposed of at the North Landfill consists primarily of mixed municipal solid waste and commercial solid waste. The North Landfill is open seven days a weeks from 5:00 a.m. to 11:00 p.m. All phases of the North Landfill are permitted to a height of 75 feet. The land on which the North Landfill is located is approximately 25 to 30 feet above sea level. Therefore, approximately 45 to 50 feet of solid waste can be disposed of at the North Landfill. All phases of the North Landfill have some remaining capacity for the disposal of additional solid waste. The Petitioners. Ms. Holzendorf's residence is approximately ten miles from the North Landfill. Her office is located approximately seven miles from the North Landfill. She does not own any real property located in the immediate vicinity of the North Landfill. Ms. Holzendorf can smell the odor from the North Landfill at her residence when the wind is blowing from the North Landfill toward her residence. Ms. Holzendorf is a Florida State Representative for District 16. District 16 includes the population of approximately one-third of Duval County, The North Landfill is located within District 16. Ms. Holzendorf has received complaints from some of her constituents about the North Landfill. Ms. Holzendorf drives by the North Landfill approximately twice a week. She has visited the site on several occasions. Robin G. and Geraldine Leigh own real property adjacent to Cedar Point Road. The land is unimproved except for a well. The Leigh's land is located north of the unimproved City property located adjacent to the northern boundary of the North Landfill. The Leighs' land is approximately three-fourths of a mile from the North Landfill. The City's Proposal. On August 3, 1988, the City filed an application with the Department for a modification of its Permit. In its application the City requested a "construction permit modification" of its Permit consisting of "extending the height of Phase IIIb of the North Landfill to a constructed elevation including final cover of no greater than 110 feet, NGVD." The City's requested modification of the Permit will provide the City with an additional six months of solid waste disposal capacity. The Department proposed to grant the City's requested modification. The Department issued a proposed Permit modification (hereinafter referred to as the "Modified Permit"). Structural Design of Phase IIIb. Leachate Control System. Waste dumped at the North Landfill is covered daily. Rain falling on the site is disposed of either as "leachate" or stormwater. Leachate is liquid which passes through, and emerges from, solid waste. Leachate on Phase IIIb of the North Landfill is collected and disposed of by a control system which was designed by George Knecht. Mr. Knecht described the leachate control system as follows: The leachate collection system consists of a two-foot drainage layer placed on top of the plastic liner. In this case the city used a plastic liner rather than a clay liner. It's HDPE, which is high-density polyethylene, and that collects the liquid and lets it flow downhill in this drainage layer to the central point, at which point the city has installed a six-inch perforated pipe which is wrapped in a filter media, which is basically a stone, a rock, which in turn is wrapped in a filter media which is porous cloth, and the purpose is that the liquid coming through the landfill gets into this drainage layer, runs downhill in the drainage layer, goes through the filter cloth, and the filter cloth keeps the sand from penetrating into the granular rock, goes through the rock and into the pipe, and then pipes are laid in a sloping downhill direction so that the fluid, once it gets in there, runs downhill. It's collected in manholes at the end of each one of these pipes. Transcript of Formal Hearing, page 49, lines 4-23. The leachate control system of Phase IIIb was properly installed and designed. Although the Petitioners raised questions concerning the manner in which the leachate control system was installed and designed, they did not offer sufficient evidence to contradict the evidence presented by the City that the system was properly installed and designed. The evidence also failed prove that the addition of 35 feet of solid waste to Phase IIIb will adversely affect the operation of the leachate control system. The addition of 35 feet of solid waste to Phase IIIb will probably ultimately have a beneficial effect on the leachate control system of Phase IIIb of the North Landfill. When Phase IIIb reaches its currently authorized height of 75 feet, the leachate depth on the liner of the control system is expected to be an average of approximately three inches. If an additional 35 feet of waste is added to Phase IIIb, the leachate depth on the liner of the control system is expected to decrease to an average of approximately two inches. The depth of leachate on the liner of the leachate control system of Phase IIIb will not exceed one foot. Specific Condition 3 of the Permit required that the City arrange for Department representatives to inspect the facility in the company of the Permittee, Engineer, and onsite operator after completion of construction activities. Cells I and II of the leachate control system of Phase IIIb were not inspected by the Department. The Department was provided with a certification from a registered professional engineer that the installation was inspected and met state requirements. The Department normally relies upon such certificates. Stormwater Disposal System. Rainwater which does not percolate through the waste, thus becoming leachate, runs off in the form of stormwater. Stormwater will consist primarily of rain which strikes the sides of the pyramid formed by the waste deposited on Phase IIIb of the North Landfill. The existing stormwater disposal system of all phases of the North Landfill consists of a series of ditches which collect stormwater and channel the stormwater to other ditches which surround the perimeter of the North Landfill. Stormwater travels through the ditches to collecting ponds located at the northeast corner of the North Landfill. Water reaching the holding ponds is treated by sunlight, oxidation and sedimentation. Ultimately, water reaching the holding ponds runs into Brown's Creek. The existing stormwater collection system of Phase IIIb is in compliance with the Department's permitting requirements. The proposed increase in height of Phase IIIb should not have any appreciable impact on the quality of stormwater eventually emptied into Brown's Creek. Phase IIIb will be capped with an impermeable cap when it is closed. The City has had a stormwater management system designed to take into account the effect of the cap on stormwater disposal. The stormwater collection system which will be installed when Phase IIIb is closed will consist of ditch blocks which will separate the stormwater collection system of Phase IIIb from the other phases of the North Landfill. Stormwater from Phase IIIb will be directed to a new holding pond. Stormwater will eventually be discharged into Brown's Creek. The stormwater collection system which will be installed when Phase IIIb is closed will meet the requirements of Rule 17-25, Florida Administrative Code, and the St. Johns River Water Management District. The system will actually have a positive impact on water quality. Foundation. The earth beneath the leachate control system of Phase IIIb, because of the weight of the solid waste to be deposited above it, is expected to settle approximately twelve inches under 75 feet of solid waste. The addition of 35 feet of solid waste to Phase IIIb is expected to cause the earth beneath the leachate control system to settle an additional six inches for a total of one and one-half feet. The additional 35 feet of solid waste will not adversely affect the structural integrity or functional capacity of the leachate control system of Phase IIIb. The proposed 35 foot addition of solid waste should not affect the ability of the earth beneath Phase IIIb to support the loads and stress it will be subjected to. III Alleged Violations. Water Quality There is a marsh located to the northeast of the North Landfill. The marsh forms the headwaters of Brown's Creek. Brown's Creek flows into the St. Johns River, south of the North Landfill. Alfred Mintz, the former owner of Clapboard Creek Fish Camp, a fish camp located approximately four miles from the North Landfill, testified about a "black gooey substance" which was on the surface of Clapboard Creek and Brown's Creek. Clapboard Creek flows to the northeast and east of the North Landfill. It eventually flows into the St. Johns River. The substance came from the direction of the North Landfill. Mr. Mintz did not know what the substance was and was unable to identify the source of the substance. The evidence failed to prove what the substance was or that the North Landfill was the source of the substance. Anita James, a commercial fisher, testified about a "film" which she saw on Brown's Creek near the St. Johns River. The substance was not identified. Nor was the source of the substance identified. Ms. James' belief that the film came from the North Landfill is not sufficient to support a finding of fact that the film whatever it was, came from the North Landfill. Mr. Mintz and Ms. James also testified about dead and diseased fish, and a dead dolphin and a dead manatee which they had seen in Clapboard Creek, Brown's Creek and other waters in the vicinity. No competent substantial evidence was presented to prove that the deaths or the disease was caused by waste disposed of at the North Landfill. No evidence concerning what killed the fish, dolphin or manatee, or what caused the diseased fish, was presented. Specific Condition 13 of the Permit requires the City to monitor water at three points along the stormwater disposal system of the North Landfill. One of the three monitoring points is approximately one-tenth of a mile east of the North Landfill in Brown's Creek. During approximately ten years of monitoring of water conditions only two parameters, iron and coliform, have been found in excess of state standards. The evidence did not prove what the cause of the excess iron and coliform was. It is possible that the excesses were caused by leachate from Phases I, II and 111a, which do not have lined leachate control systems like Phase IIIb, seeping into the stormwater disposal system. Leachate from Phase IIIb does not aggravate the problem because the leachate control system of Phase IIIb is lined. The City and the Department entered into a Consent Agreement on July 14, 1989 (hereinafter referred to as the Consent Order). Pursuant to the Consent Order the City is required to update its monitoring of stormwater. Quarterly monitoring of 37 parameters will be required. Specific Condition 19 A 2) of the Modified Permit also specifies that 37 parameters are to be analyzed quarterly. Specific Condition 13 A 2 of the Permit only required analyses of 14 parameters. The requested modification of the Permit should not contribute or extend any adverse affect of the North Landfill on water quality. The Consent Order and Specific Condition 20 C of the Modified Permit require that the City analyze 35 parameters quarterly at four wells located inside the North Landfill. The City has contracted for the preparation of a groundwater monitoring plan consistent with the Consent Order and with the requirements of Rule 17-701.050, Florida Administrative Code. Based upon a review of a well inventory conducted by the City and groundwater studies, wells in the vicinity of the North Landfill, including the well on Mr. & Mrs. Leigh's property and the M & M Dairy, are not at risk of contamination. The requested modification of the Permit should not increase the risk of contamination of wells in the vicinity of the North Landfill. Violation of Height Limits. In 1988 the City filled some portions of Phases I, II and IIIa above their 75 foot limit. The City did not, however, intentionally violate the Permit height limits. The City exceeded the height limit of the Permit only because it believed that solid waste placed on the landfill in excess of 75 feet would eventually settle to less than 75 feet and that this was consistent with the Permits limits. The Department disputed the City's actions in exceeding the 75 foot limit for Phases I, II and IIIa in an administrative action separate from this proceeding. On July 14, 1989, the City and Department settled their dispute and entered into the Consent Order. Pursuant to the Consent Order, the City paid a fine of $1,800.00. The City also built a laser tower for use in measuring the height of the North Landfill and agreed to use it to make more frequent surveys of the landfill. The City was not required to immediately remove the excess height. The City has been allowed to wait until closure. Prior to closure the City can request permission from the Department to leave the excess height. In the modification of the Permit at issue in this proceeding, Specific Condition 3 specifically provides for the manner in which waste may be disposed of in Phase IIIb in an effort to avoid the problems with excessive height experienced with Phases I, II and IIIa. B. Litter. Specific Condition 17 of the Permit provides that [l]itter control devices shall be installed as necessary to prevent litter from leaving the disposal area. Litter outside of the perimeter of the North Landfill along the roads leading to the landfill comes primarily from trucks bringing waste to the North Landfill. A small amount of the litter also comes from the site itself. Although the trucks are not City trucks, the City's litter collection efforts have been extended to cover the main portions of the roads leading to the North Landfill. Litter around and on the North Landfill has been a problem. The City has taken a number of steps to control the amount of litter in and around the landfill: Waste deposited at the North Landfill is covered with six inches of soil. Although the City is not required to do so, six months before the formal hearing of these cases the City began covering the area of the landfill where waste is being deposited (hereinafter referred to as the "working surface") with six inches of dirt. The working surface is also located away from wind. Fences have been installed around the perimeter of the North Landfill. Fences are also placed around the working surface on windy days. Prior to 1989 the City patrolled the immediate vicinity around the North Landfill to collect litter which had not been covered. Collection was performed on a variable time schedule. Only three part-time employees participated in the collection patrols. Beginning in early 1989, the City expanded its litter collection patrols. The roads surrounding the North Landfill (New Berlin Road, Faye Road, Alta Road and Island Drive), are now patrolled daily by five full- time employees. The extent of the patrols prior to 1989 and since early 1989 is depicted on City exhibit 8. The inside of the perimeter of the North Landfill is patrolled for litter collection five days a week and on the weekend, as needed. The stormwater ditches are inspected on a daily basis. At the time of the formal hearing of these cases the stormwater ditches and retention ponds were being excavated. This process had been going on for approximately four to six months. The Modified Permit contains Specific Condition 13, which is essentially the same as Specific Condition 17 of the Permit. Additionally, the Modified Permit contains Specific Condition 8, which provides: The Permittee shall maintain litter controls to prevent litter from entering the collection ditches and from leaving the landfill site. In addition to litter control fences, the Permittee shall provide daily manual collection of litter entering collection ditches and leaving the site. Litter can best be controlled by compacting the waste, picking up litter regularly and using fences. The City has employed these methods of litter control. The City's efforts have been reasonable. The proposed increase in height of Phase IIIb will not adversely affect the amount of litter associated with the North Landfill or the City's litter collection efforts. The City is not required to continue to patrol the roads leading to the North Landfill which it is currently patrolling to pick up litter that is attributable to trucks bringing waste to the North Landfill. Odor. There is no dispute that there is undesirable odor associated with the disposal of solid waste. This is true of the North Landfill. There is undesirable odor associated with the North Landfill most of the time. The nature of the odor associated with landfill's generally, and the North Landfill in particular, was described at the formal hearing as follows: Q The odor that you noticed, is it to some degree all the time? A Some days it won't, but that's very rare. Usually it may be more. Some days it may be in the afternoon, it may not smell in the morning, it may be in the afternoon. Some days it may be in the morning and may not be in the afternoon. Q Could you quantify what percentage of the time? A Probably about 75 percent of the time. Q And you indicate that at times it's much stronger than at other times? A Yes. Q You mentioned odor from the landfill. This was back in time now a good way. When did you start noticing an odor from that landfill? A When did I first start noticing it? Q Yes. A The very day they started dumping. Q And that odor has persisted since then? A Not every -- not every single day, but yes. Q Some days you will have it, some days you won't? A Yes. Q How many years are we talking about since they opened approximately? A Well, we have been out there 17 years. . Q So, over that 14 or 15 years, is it fair to say that basically you have an odor, and some days it will be worse than the average odor, and some days `it will be better than the average odor? A Yes. Transcript, page 511, lines 9-15, page 514, lines 9-13, page 516, line 25, and page 517, lines 1-21. Specific Condition 16 of the Permit provides that 1[o]bjectionable odors originating from the site shall be effectively controlled during all phases of operation. The most effective method of dealing with undesirable odor associated with landfills is to cover the waste daily and minimize the contact of waste with water. The City has been covering the waste disposed of at the North Landfill on a daily basis. The City's efforts have resulted in the North Landfill being as odor free as a "well run" landfill can be. A City ordinance provides for citizen participation in controlling odors in Jacksonville. This ordinance is enforced by the City's Bio- Environmental Services Division. As part of enforcing the odor ordinance the City provides a 24-hour telephone service which citizens can call and complain about odors. Since January, 1988, the City has received 5,500 complaints--an average of 280 complaints a month. Complaints received about odor are investigated by nine inspectors employed by the City. If five or more validated complaints are received about an odor producer during a 90-day period, the City issues a citation. Since January, 1988, the City has received only three complaints about the North Landfill from citizens. No citations have been issued against the North Landfill. Specific Condition 16 of the Permit is included in the Modified Permit as Specific Condition 15. The Modified Permit also includes Specific Condition 6, which provides: The Permittee shall apply no less than 6 inches of compacted initial cover to the top and sides of each cell by the end of each working day, except on the working face which may be left uncovered if additional solid waste will be placed on the working face within 18 hours. An intermediate cover of one (1) foot of compacted earth, in addition to the six (6) inch initial cover, shall be applied within seven (7) days of cell completion if final cover or an additional lift is not to be applied within 180 days of cell completion. The Permittee shall ensure that an adequate quantity of acceptable cover material is available for use during each day of operation of the landfill. The modification of the Permit will not increase the odor associated with the North Landfill. It will, however, extend the period of time that odors emanate from the North Landfill. Access to the North Landfill and Dust. Specific Condition 20 of the Permit provides that "[d]ust free, all- weather access roads to the site and active disposal area, or alternative wet weather disposal area shall be maintained." This condition has been complied with by the City. This condition is included as Specific Condition 12 in the Modified Permit. The roads used to access the North Landfill are paved, two-lane roads. The lanes are twelve feet wide. The speed limit on the access roads is 45 m.p.h. Appropriate turn lanes are available. During December, 1988, New Berlin Road and the North Landfill were able to effectively handle 600 trucks per day, an average of 80 to 90 trucks an hour during peak hours. Normally, the North Landfill effectively handles approximately 300 garbage trucks and 100 cover-dirt trucks a day with a peak of approximately 60 trucks per hour. The unpaved right-of-way on the side of the roads leading to the North Landfill is worn and the source of dust. Dust associated with the North Landfill comes from the roads leading to the landfill. The evidence failed to prove that dust comes from within the perimeter of the North Landfill. Tire Storage. Whole tires have been stored and processed at the North Landfill. At the time of the formal hearing there were more than 1,000 tires at the landfill. The evidence failed to prove how long any specific quantity of tires had been stored at the North Landfill. The City has not allowed the disposal of any whole tires at the North Landfill since July 1, 1989. The City has been shredding tires at the North Landfill. At the time of the formal hearing the City had contracted for the shredding of all the tires which had been located at the North Landfill at the time the contract was entered into in early July, 1989. The contract in existence at the time of the formal hearing was scheduled to expire in October, 1989. The City, however, expected to enter into a follow-up contract to continue shredding tires. In February or March, 1989, the previous tire- shredder contractor walked off the job. Mosquitoes at the North Landfill are managed by the City's Bio- Environmental Services Mosquito Control Division. Spraying is only done "as needed", however. F. Hazardous Waste, Oil Recycling and Infectious Waste. The City has not established an independent hazardous waste disposal program, a used oil recycling program or a infectious waste disposal program. The City attempts to prevent disposal of hazardous waste, used oil and infectious waste through educating the public with signs posted at the North Landfill entrance and periodic inspections of waste disposed of at the North Landfill. The evidence failed to prove that hazardous waste, used oil or infectious waste is being disposed of at the North Landfill. The evidence also failed to prove that approval of the Modified Permit will cause the disposal of hazardous waste, used oil or infectious waste on Phase IIIb of the North Landfill. Specific Condition 5 of the Modified Permit prohibits the disposal of hazardous waste and infectious waste at Phase IIIb of the North Landfill. This condition also requires that the City provide a minimum of one spotter for each working fact of Phase IIIb to watch for unauthorized waste.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Department approving issuance of the Modified Permit, modified by the inclusion of a Specific Condition requiring that the City continue its litter patrols as represented at the formal hearing. DONE and ENTERED this 3rd day of January, 1990, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1990. APPENDIX Case Numbers 89-0532, 89-0569 All of the parties except the Petitioners in case number 89-0569, have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Ms.'s Holzendorf's Proposed Findings of Fact Proposed Finding Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection See 49-52. The Consent Order was entered into on July 14, 1989. The last sentence is not supported by the weight of the evidence. See 49. 80. Whether a violation of Chapter 17- 711, Florida Administrative Code, has occurred is a conclusion of law. The weight of the evidence failed to prove that there is not program for the disposal of tires. The last paragraph of this proposed finding of fact is not supported by the weight of the evidence. IV See 54-55, 61-63, 73 and 77. IV-Hazardous Waste: 86. See 87-89. The second sentence is not supported by the weight of the evidence. Argument. Not supported by the weight of the evidence. V-Used Oil Recycling Plan: 86. See 87-89. The second sentence is not supported by the weight of the evidence. 86. See 87-89. The last paragraph is not supported by the weight of the evidence. Not supported by the weight of the evidence. Not relevant to this proceeding. The Modified Permit only involves a lined portion of the North Landfill. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-3. 2 2. 3 15. 4 18-19 and 26. 5 20. 6 22-23. 7 34-36. 8 26-29. 9 32-33. 10 30. 11 41-42. 12 43. 13 37-40. 14 49. 15 61-62 and 64. 16 55. 17 56 and 58. 18 74-78. 19 80 and 82-83. The City's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection Contrary to testimony of Ms. Holzendorf. Statement of law. 3-4 Hereby accepted. 5 Statement of law. 6 10. 7-8 13. 9 9. 10 1-2. 11 1-2 and 7. 12 4. 13 5. 14 1. 15 6. 16-19 3. 20 14. 21 Hereby accepted. 22 7. 23 8 and 49. 24 16. 25-26 20. 27-28 Hereby accepted. 29-30 25. 31 Hereby accepted. 32-35 22. 36-43 Hereby accepted 44 35-36. 45 Hereby accepted. 46 35. 47 See 36. 48-49 Hereby accepted. 50 44. 51-52 46. 53-58 Hereby accepted. 59 47. 60 48. 61 46. 62-63 Hereby accepted. 64 27. 65-66 43. 67 31. 68 Hereby accepted. 69 33. 70 Hereby accepted. 71 33. 72 30. 73 32. 74 43. 75 30. 76-77 26. 78 42. 79 Not relevant to this proceeding. 80 45. 81-82 Hereby accepted. 83-84 44. 85-86 49-51. 87 49. 88 52. 89 Hereby accepted. 90 55-56. 91-93 56. 94 50. 95 56. 96 59. 97-100 56. 101 55. 102 Hereby accepted. 103 58. 104-112 These proposed findings of fact correctly quote testimony presented the formal hearing. at 113 61 and 64-65. 115 72. 116 66. 117 Hereby accepted. 118 67. 119 Hereby accepted. 120 69. 121 70. 122-123 70 and hereby accepted. 124 See 65. 125 65. 126-129 See 61-62. 130-131 77. 132 Hereby accepted. 133 75. 134 Not relevant to this proceeding. 135 77. 136 79. 137-139 These proposed findings of fact correctly quote testimony presented at the formal hearing. 140 80. 141 82-84. 142 84. 143 81. 144 85. 145-147 Hereby accepted. 148 Cumulative. 149 37-38. 150-152 38. 153-155 40. 156 39-40. 157-161 Hereby accepted. COPIES FURNISHED: Lacy Mahon, Jr., Esquire Mark H. Mahon, Esquire Russell L. Healey, Esquire Lacy Mahon, Jr. & Mark Mahon, P.A. 1120 Blackstone Building Jacksonville, Florida 32202 Robin G. Leigh and Geraldine Leigh 6026 Heckscher Drive Jacksonville, Florida 32226 William H. Congdon Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel D. Richardson, Esquire Dale H. Twachtmann, Secretary Robin A. Deen, Esquire Department of Environmental Office of General Counsel Regulation Environmental Law Division 2600 Blair Stone Road City of Jacksonville Tallahassee, FL 32399-2400 Towncentre, Suite 715 421 West Church Street Jacksonville, Florida 32202
The Issue Good Fella’s raises four issues on appeal. Two of those issues involve the administrative hearing process that resulted in the Order: (1) whether the county administrator should have recused himself from acting as the hearing officer in the case below; and (2) whether the Board improperly denied Good Fella’s a hearing on its asserted request to transport solid waste outside of the county. For the reasons explained below, Good Fella’s contentions as to these issues lack merit. Two of the issues raised by Good Fella’s are substantive; (3) whether, by virtue of its contract with the Citrus County School Board (School Board), Good Fella’s is not subject to the restrictions of section 82-78 when disposing of the solid waste generated by the School Board; and (4) whether the findings of fact in the Order were based on competent substantial evidence. Because issue (3) is dispositive of the merits of the case, there is no need to reach issue (4).
The Issue The issue to be determined in this proceeding is whether Angelo's Aggregate Materials, LTD ("Angelo's") is entitled to permits from the Department of Environmental Protection ("Department") to construct and operate a Class I landfill in Pasco County.
Findings Of Fact The Parties The Department is the state agency with the power and duty under chapter 403, Florida Statutes, to review and take action on applications for permits to construct and operate solid waste management facilities, including landfills. Angelo's is a Florida limited partnership authorized to conduct business under the name Angelo's Recycled Materials. Angelo's filed the permit applications which are the subject of this proceeding. Angelo's owns the property on which the proposed landfill would be constructed and operated. Crystal Springs Preserve is a Florida corporation that owns approximately 525 acres in Pasco County, Florida on which is located Crystal Springs, a second magnitude spring that flows into the Hillsborough River. The property is about 10 miles south of Angelo's proposed landfill site. Crystal Springs Preserve's primary business activities are selling spring water for bottling for human consumption and operating an environmental education center that focuses on Crystal Springs and the Hillsborough River. Crystal Springs Preserve hosts approximately 50,000 visitors annually at the environmental education center. Crystal Springs Preserve holds a water use permit which authorizes it to withdraw up to 756,893 gallons of water per day (annual average) from Crystal Springs for production of bottled water. The water is transported about three miles to a water bottling facility operated by Nestlé. Nestlé is a private corporation engaged in the business of bottling and selling spring water. Nestlé purchases spring water from Crystal Springs Preserve. Nestlé's "Zephyrhills Spring Water" brand is composed of approximately 90 percent Crystal Springs water and 10 percent Madison Blue Spring water. The only water treatment applied by Nestlé is filtering the water to remove gross contaminants and passing the water through ultraviolet light or ozone to kill any potential bacteria before bottling. Nestlé has established "norms" for its spring water and would not be able to use the water from Crystal Springs if its chemical composition varied significantly from the norms. WRB is a Florida corporation that owns 1,866 acres in Pasco County known as Boarshead Ranch. Boarshead Ranch is adjacent to the east and south of Angelo’s property and is approximately 3,000 feet from the proposed landfill at its closest point. Boarshead Ranch is currently being used for agricultural, recreational, residential, and conservation purposes, including wildlife management. Nearly all of Boarshead Ranch is subject to a conservation easement held by the Southwest Florida Water Management District (SWFWMD). The conservation easement allows WRB to continue agricultural operations. Numerous agricultural water wells are located on Boarshead Ranch. WRB holds a water use permit which authorizes the withdrawal of 820,000 gallons per day (gpd) (annual average) for a number of uses, including production of agricultural products, animal drinking water, and personal use. The City of Zephyrhills is located in Pasco County and is a municipal corporation. Zephyrhills' water service area encompasses Zephyrhills and portions of Pasco County. Zephyrhills owns, operates, and maintains a water distribution and transmission system of pipes, pump stations, and storage tanks within the City and its service area. Zephyrhills holds a water use permit which authorizes nine potable water supply wells with a combined withdrawal of 2.9 million gallons per day ("mgd") (annual average). Zephyrhills has two new production wells located about two miles southeast of the proposed landfill. The City of Tampa owns and operates the David L. Tippin Water Treatment Plant, the Hillsborough River dam, and the City of Tampa reservoir on the Hillsborough River. Flows from Crystal Springs make up a substantial amount of the water in the Hillsborough River, especially during drought conditions when the spring flow accounts for about 50 percent of the flow. The City of Tampa holds a water use permit which authorizes the withdrawal 82 mgd (annual average). The City of Tampa owns, operates, and maintains a water distribution and transmission system of pipes, pump stations, and storage tanks within the City and its service area. Carl Roth, Marvin Hall, and Louis Potenziano own property in Pasco County near the proposed landfill site. Roth's property is 3.5 miles west of the proposed landfill site; Hall's property is located approximately one mile southwest of the site; and Potenziano's property is 1.6 miles to the south/southeast of the site. Roth, Hall, and Potenziano have water wells on their properties. The record does not establish that John Floyd owns property in the area. Floyd and Associates, Inc., owns about 55 acres in the area and holds a water use permit authorizing the withdrawal of water for agricultural uses. The Stipulated Agreement On March 1, 2010, Angelo's filed with DOAH a "Stipulated Agreement" signed by all parties. The Stipulated Agreement states in relevant part: Angelo's shall provide a final design, revised complete permit application and site investigation (referred to jointly as "Revised Submittal") to DEP with copies to all Parties and DEP shall make a completeness determination prior to this proceeding being set for a new final hearing date. * * * Angelo's shall not revise its permit application or supporting information beyond the Revised Submittal prior to or during the final hearing except in response to issues raised by DEP. It appears that the Aligned Parties did not remember the Stipulated Agreement until the commencement of the final hearing. They did not object before then to any of the evidence which Angelo's had prepared or intended to prepare for hearing on the basis that it violated the terms of the Stipulated Agreement. At the commencement of the hearing, Nestlé argued that the Stipulated Agreement barred Angelo's from revising its application or presenting new support for its project at the final hearing. The Stipulated Agreement is unusual and the necessity for Angelo's to make any concessions to the Aligned Parties in order to obtain their agreement to an abeyance was not explained. Allowing an applicant time to amend a permit application is usually good cause for an abeyance. The Stipulated Agreement allowed Angelo's to continue to respond to issues raised by the Department. Angelo's contends that all of the evidence it presented at the final hearing qualifies as a response to issues raised by the Department. The Proposed Landfill Angelo's applied to construct and operate a Class I landfill with associated buildings and leachate holding tanks. Application No. 22913-001-SC/01 corresponds to the construction permit application and Application No. 22913-001-SO/01 corresponds to the operation permit application. A Class I landfill is a landfill authorized to receive Class I waste, which is solid waste from households and businesses. Class I waste does not include hazardous waste, yard waste, or construction and demolition debris. See Fla. Admin. Code R. 62-701.200(13) and (14). The proposed landfill would be approximately 30 acres in size. It is part of a 1,020-acre parcel owned by Angelo's that is west of County Road 35 and south of Enterprise Road in Pasco County. The site is currently leased for cattle grazing and hay and sod production. There are also spray fields, orange groves, and a pond on the 1,020-acre parcel. Angelo's would construct the landfill by first clearing the 30-acre site. It would then excavate and fill to create the design subgrade or floor of the landfill with slopes required for the liner system. The subgrade would be compacted with a vibratory roller. After the subgrade compaction, the grouting plan would be implemented. The grouting plan calls for grouting 39 subsurface locations on the site that have voids, loose soils, or other unstable characteristics. A liner system would be installed after the grouting is completed and the subgrade is finished. From the bottom upward, the liner system would begin with a 12-inch layer of clay, over which a reinforcement geotextile would be installed, followed by another 12-inch layer of clay. This reinforcement geotextile is in addition to the double liner system required by Department rule. Its purpose is to maintain the integrity of the liner system in the event that a sinkhole occurs beneath the landfill. Installed above the reinforcement geotextile and clay layer would be a 60-millimeter high-density polyethylene ("HDPE") geomembrane, followed by a HDPE drainage net. These last two components comprise the secondary leachate collection system. Above the HDPE drainage net would be the primary leachate collection system, consisting of another 60-millimeter HDPE geomembrane and HDPE drainage net, followed by a geotextile, then a 12-inch sand layer for drainage, and an additional 12-inch sand layer for protection against puncture of the HDPE liner. A 48-inch layer of selected waste, free of items that could puncture the liner, would be the first waste placed over the primary leachate collection system. "Leachate" is "liquid that has passed through or merged from solid waste and may contain soluble, suspended, or miscible materials." See Fla. Admin. Code R. 62-701.200(66). Leachate would be collected through a system of perforated pipes that empty into a sloping trench with a leachate collection pipe. The leachate collection pipe would run down the center of the landfill to the lowest point where a pump would send the collected leachate through a force main 0.25 miles to storage tanks. Five above-ground storage tanks would be installed on a concrete pad with capacity to store 90,000 gallons of leachate. The stored leachate would be periodically transported to an offsite location, such as a wastewater treatment facility, for disposal. Sinkholes and Karst The terms "sinkhole" and "sinkhole activity" are not defined by Department rule, but the statutory definitions in chapter 627, a chapter dealing with insurance coverage for homes and other buildings, are generally consistent with the scientific meanings of these terms. The term "sinkhole" is defined in section 627.706(2)(h) as: a landform created by subsidence of soil, sediment, or rock as underlying strata are dissolved by groundwater. A sinkhole forms by collapse into subterranean voids created by dissolution of limestone or dolostone or by subsidence as these strata are dissolved. The term "sinkhole activity" is defined in section 627.706(2)(i) as: settlement or systematic weakening of the earth supporting the covered building only if the settlement or systematic weakening results from contemporaneous movement or raveling of soils, sediments, or rock materials into subterranean voids created by the effect of water on a limestone or similar rock formation. Sinkholes occur throughout Florida. There have been many reported and confirmed sinkholes in Pasco County. The more common type of sinkhole that has occurred on the Brooksville Ridge is a "cover subsidence" sinkhole, which is caused by voids in the limestone and the downward movement--"raveling"--of overlying soils into the cavity. Eventually, the loss of soils in the raveling zone will propagate upward until the soils at the ground surface also move downward and a depression is formed at the surface. Cover subsidence sinkholes develop slowly and are usually small, less than ten feet in diameter. Less common are "cover collapse" sinkholes, which can form in a matter of days or hours as the result of the collapse of the "roof" of a dissolved cavity in the limestone. These sinkholes are usually large and deep. The occurrence of a sinkhole does not always mean that areas near the sinkhole are unstable. However, the occurrence of a sinkhole is reasonable cause for concern about the stability of nearby areas and a reasonable basis for the Department to require thorough geologic investigations. "Karst" refers to limestone that is undergoing dissolution and it is common in Florida. A sinkhole forms in karst. "Epikarst" is limestone that was weathered while exposed above sea level millions of years ago before being submerged again. It is generally softer and more permeable than unweathered limestone. "Paleokarst" refers to karst that is very old in geologic time. Paleosinks are old sinkhole features in the paleokarst. A paleosink may no longer be unstable because it has been filled in for thousands or millions of years. A "lineament," or a "photolineament," is a relatively straight line seen in the topography or aerial photographs of the ground surface in an area. It might be defined by soil color, sloughs, ponds, wetlands, or other land features that follow a linear path. Lineaments are sometimes, but not always, associated with subsurface fractures in the bedrock where one would expect to also find active karst, sinkholes, and relatively rapid groundwater flow. Even where there is no lineament, there can be fractures in limestone that, when extensive enough, will allow for "fractured," "preferential," or "conduit flow" of groundwater. Fractured flow can occur in a small area or may go on for miles. Springs in Florida are usually associated with fractured flow or conduit flow that allows groundwater to move through the aquifer a long distance relatively rapidly, in weeks rather than decades. Geotechnical Investigation The Department's rules require subsurface conditions to be explored and described, including soil stratigraphy, soft ground, lineaments, and unstable areas, but the rules do not require the application of any particular geologic testing technique. An applicant's testing program is primarily a function of the professional judgment of the applicant’s geologist in cooperation with Department staff. The amount of geological testing done by Angelo's during its initial testing was similar to what was done for recent landfill applications. Angelo's conducted additional testing to respond to Department concerns and to prepare for the final hearing in this case, making the total amount of testing at Angelo's proposed site more extensive than is usual for a proposed landfill. The geologic investigation conducted by Angelo's experts to determine subsurface features, including any sinkholes, employed several technologies. Split Spoon Penetrometer Test (SPT) or SPT borings were drilled with a drill rig that advances a split spoon sampler into the ground with a 140 pound hammer. The hammer is dropped 30 inches and the number of blows required to drive the sampler each successive 12 inches is referred to as the "N" value and indicates soil strength and density. The higher the N value, the denser the soil. When the material is so dense the drill rod cannot (essentially) be hammered deeper, the N value is shown as "R," which stands for "refusal." SPT Bore logs also note any observed "weight of hammer," "weight of rod," or "loss of circulation." These terms describe areas where the drilling encounters very soft material or voids. Weight of rod, for example, means the weight of the drilling rod, by itself, with no hammer blow, was enough to cause the rod to fall deeper through the soil or rock. Cone Penetrometer Test ("CPT") borings were also conducted. CPT borings are relatively shallow, performed with a hand-held rod and special tip that the operator pushes into the ground. The CPT equipment continuously measures and records tip resistance and sleeve resistance as the rod moves downward through soils. It is helpful in some applications, but is less precise in determining soil type, strength, and compressibility than SPT borings and cannot be used to explore deep zones. Ground penetrating radar ("GPR") studies were used. GPR equipment transmits pulses of radio frequency waves into the ground. The manner in which the radio waves are reflected indicates the types of soil and rock encountered. It can also detect cavities and other features that would suggest karst activity. When the GPR identifies geologic features of interest, they can be further investigated with SPT borings. Another investigative tool used by Angelo's was Multiple Electrode Resistivity ("MER"). MER uses a grid of wires and electrodes and the equipment interprets the resistivity of electrical signals transmitted through the subsurface. MER data can be displayed in a two dimensional or three dimensional format, depending on the software program that is used to process the data. Like GPR, MER is useful for indentifying geologic features of interest that can be further explored with SPT borings. However, GPR generally has good resolution only near the ground surface, while MER has good resolution to a depth of 100 feet. The Regional Geology The proposed site is in a geologic transition zone on the eastern flank of a regional, geological feature known as the Brooksville Ridge. It is a transition zone for both the Suwannee Limestone and Hawthorn Group. The Brooksville Ridge was formed when it was part of the coastline. In its geologic past, the Brooksville Ridge experienced sea level changes, weathering, erosion of sediments, and beach reworking. The general layering of geologic features on the Brooksville Ridge, from the top down, begins with topsoil and a layer of sand. Under the sand layer is the Hawthorn Group, an older geologic layer consisting of a heterogeneous mix of limestone, clays, and sands which generally range in depth from slightly under 60 feet to 80 feet or more. It was formed by river and wind erosion, flushing, and re-deposition in a beach dune environment. Below the Hawthorn Group is the Suwannee Limestone Formation, which is present throughout eastern Pasco County. The upper surface of the Suwannee Limestone Formation is undulating, due to a gradual chemical weathering of its upper surface, representing a "paleokarst environment." Underlying the Suwannee Limestone Formation is the Ocala Limestone Formation. It extends throughout most of Florida. It is composed of nearly pure limestone and is considered the Floridan Aquifer. It extends across the site’s subsurface. Angelo's used the Florida Geologic Survey's data base to determine there are six sinkholes within five miles of the proposed landfill. A seventh sinkhole, not in the data base, is the 15- foot sinkhole at the Angelo's Enterprise Road Facility landfill, a Class III landfill (yard waste and construction and demolition debris) about a mile northwest of the proposed site. Angelo's contends that the sinkhole at its Class III landfill was "induced" during construction of the facility by the diversion of stormwater runoff to an area where overburden had been removed. The average diameter of the seven sinkholes is 11.9 feet. The Geology of the Proposed Site Rule 62-701.410(2)(c) requires a geotechnical site investigation and report, which shall: Explore and describe subsurface conditions including soil stratigraphy and ground water table conditions; Explore and address the presence of muck, previously filled areas, soft ground, lineaments, and sinkholes; Evaluate and address fault areas, seismic impact zones, and unstable areas as described in 40 C.F.R. 258.13, 258.14 and 258.15; Include estimates of the average and maximum high ground water table across the site; and Include a foundation analysis to determine the ability of the foundation to support the loads and stresses imposed by the landfill. It may include geotechnical measures necessary to modify the foundation to accommodate the imposed loads and stresses. The foundation shall be analyzed for short-term, end of construction, and long-term stability and settlement conditions. Considering the existing or proposed subgrade conditions and the landfill geometry, analysis shall include: Foundation bearing capacity; Subgrade settlements, both total and differential; and Subgrade slope stability. Angelo's conducted a geotechnical site investigation, but it was not adequate, as discussed below and in sections I. and J. The proposed landfill site is geologically complex, having features that are discontinuous horizontally and vertically. The site has karst features or areas where the limestone has dissolved. There is a clay layer in some areas, but it is not continuous and its depth and thickness vary. There are deposits of hard and soft sands at various depths. There are pinnacles of limestone surrounded by softer materials. Photographs from a quarry called the Vulcan Mine, located on the western flank of the Brooksville Ridge, show exposed features in the top 20 to 30 feet of the Suwannee Limestone in the region. The features at the Vulcan Mine are roughly similar to features at the Angelo's site. There are a number of shallow depressions on the surface of the ground on the Angelo's site. The origin and significance of these depressions was a matter of dispute. The Aligned Parties believe they represent sinkhole activity, but the evidence presented did not rise to the level of proof. However, Angelo's did not prove they were unassociated with geotechnical issues that could affect the proposed landfill. Angelo's offered no reasonable explanation for the depressions. Determining the exact cause of the depressions may not be possible even with more extensive investigation, but it was Angelo's responsibility as the permit applicant, pursuant to rule 62-701.410(2)(c), to make a greater effort to account for them. Angelo's initial permit application identified two intersecting lineaments on Angelo's property, based on aligned lowlands, enclosed valleys, and ponds. Angelo's contends the lineaments do not reflect an unstable subsurface or fractured limestone. The Aligned Parties contend that the lineaments are regional features and reflect fractures in the bedrock. They also contend that the onsite pond, which is located along the lineament, is an old sinkhole. The Aligned Parties did not prove the proposed landfill site is above an area of fractured bedrock, but the evidence presented by Angelo's was incomplete and insufficient to show there are no fractures. The limestone on the site was not adequately investigated for voids and fractures. Angelo's did not refute the possibility that the lineaments reflect a significant subsurface feature that could affect both site stability and groundwater movement. The Regional and Local Hydrogeology Rule 62-701.410(1) requires a hydrogeological investigation and site report, which shall: Define the landfill site geology and hydrology and its relationship to the local and regional hydrogeologic patterns including: Direction and rate of ground water and surface water flow, including seasonal variations; Background quality of ground water and surface water; Any on site hydraulic connections between aquifers; For all confining layers, semi-confining layers, and all aquifers below the landfill site that may be affected by the landfill, the porosity or effective porosity, horizontal and vertical permeabilities, and the depth to and lithology of the layers and aquifers; and Topography, soil types and characteristics, and surface water drainage systems of the site and surrounding the site. Include an inventory of all the public and private water wells within a one-mile radius of the proposed landfill site. The inventory shall include, where available: The approximate elevation of the top of the well casing and the depth of each well; The name of the owner, the age and usage of each well, and the estimated daily pumpage; and The stratigraphic unit screened, well construction technique, and static water levels of each well. Identify and locate any existing contaminated areas on the landfill site. Include a map showing the locations of all potable wells within 500 feet of the waste storage and disposal areas to demonstrate compliance with paragraph 62- 701.300(2)(b), F.A.C. Angelo's conducted a hydrogeological investigation, but it was not adequate, as discussed below. Angelo's and the Aligned Parties disputed the hydrogeological characteristics of the proposed landfill site and region. The principal disputes related to the direction and velocity of groundwater flow. Angelo's contends that groundwater flows from the landfill site to the west, making the proposed landfill site part of the Withlacoochee River groundwater basin. The Aligned Parties contend that groundwater flows south toward Crystal Springs and, therefore, the site is within the "springshed" of Crystal Springs. A United States Geological Survey map of the Crystal Springs springshed shows Angelo's proposed landfill site within the springshed. A springshed study done for SWFWMD also indicates the site is within the Crystal Springs springshed, but the District has not always been consistent in its statements about the groundwater basin boundaries in this area. A water chemistry analysis of the groundwater in the area of Angelo's proposed landfill indicates that the site is an area of higher recharge and within the Crystal Springs springshed. The springshed boundary can shift, depending on rainfall. Angelo's hydrogeological evidence was not sufficient to refute the reasonable possibility that the proposed landfill site is within the Crystal Springs springshed. Therefore, the Department's determination whether Angelo's has provided reasonable assurances must account for the threat of contamination to Crystal Springs and the other public and private water supply sources to the south. There are no creeks or streams and only a few lakes in the area between Crystal Springs and the Angelo's site. The absence of surface runoff features indicates it is an area of high recharge to the groundwater. Crystal Springs is in an area of conduit flow. The hydrologic investigation conducted by Angelo's was not thorough enough to characterize surficial aquifer flow and flow between aquifers. The preponderance of the evidence shows more groundwater recharge to the Floridan Aquifer in the area than estimated by Angelo's. Angelo's hydrogeological investigation was inadequate to refute the possibility of fractured flow or rapid groundwater movement at the proposed landfill site. Angelo's contends there is a continuous clay confining layer that would prevent contamination from moving into deep zones, but the preponderance of the evidence shows discontinuity in the clay and large variations in thickness and depth. The landfill's impermeable liner will impede water movement downward from the landfill, but groundwater will still recharge from outside the landfill to carry any contaminants deeper. If fractured flow or conduit flow extends south from the proposed landfill site, any leachate released into the groundwater beneath the landfill could travel rapidly toward the water supply sources of the City of Zephyrhills, Crystal Springs, Nestlé, and the City of Tampa. Whether the Proposed Landfill is in an Unstable Area Rule 62-701.200(2)(a) prohibits the storage or disposal of solid waste "[i]n an area where geological formations or other subsurface features will not provide support for the solid waste." However, the Department has adopted by reference a federal regulation, 40 C.F.R. 258.15, which allows a landfill to be constructed in a geologically unstable area if the permit applicant can demonstrate that engineering measures are incorporated into the design to ensure that the integrity of the landfill’s structural components "will not be disrupted." The parties presented evidence on many disputed issues of fact at the final hearing, but most of the case involved two ultimate questions: whether the proposed landfill site is unstable and, if so, whether Angelo's has proposed measures that would eliminate the unstable conditions and make the site suitable for a landfill. as: An "unstable area" is defined in 40 C.F.R. § 258.15 A location that is susceptible to natural or human-induced events or forces capable of impairing the integrity of some or all of the landfill structural components responsible for preventing releases from a landfill. Unstable areas can include poor foundation conditions, areas susceptible to mass movements, and Karst terrains. There is overwhelming evidence that the proposed landfill site is an unstable area. A considerable amount of evidence presented by Angelo's supports this finding. For example, Angelo's experts agreed there are loose soils, evidence of raveling, and sinkhole activity. These conditions make the site susceptible to natural or human-induced events or forces capable of impairing the integrity of some or all of the landfill structural components responsible for preventing releases from the proposed landfill. The Department's landfill permitting staff requested a sinkhole risk assessment from the Florida Geologic Survey ("FGS"). The State Geologist and Director of the FGS, Dr. Jonathan Arthur, believes the potential for sinkhole formation at the proposed site is moderately high to high. That potential is consistent with the characterization of the area as unstable. Whether the Proposed Engineering Measures Are Adequate Because the site is unstable, Angelo’s must demonstrate that engineering measures have been incorporated into the landfill's design to ensure that the integrity of its structural components will not be disrupted. See 40 C.F.R. § 258.15(a). The engineering measures proposed by Angelo's are discussed below. Because it was found that Angelo's hydrogeological and geotechnical investigations were not sufficient to characterize all potentially unstable features of the subsurface, it was not demonstrated that the proposed engineering measures would overcome the instability and make the site suitable for a landfill. Roller Compaction Angelo's would use roller compaction on the graded floor of the landfill to compact the soils to a depth of about five feet and eliminate any voids within that depth. The Aligned Parties did not contradict Angelo's evidence that its proposed roller compaction will be done in a manner exceeding what the Department usually requires as far as roller force and the number of roller "passes." However, roller compaction will not affect deep voids. Liner System In order to ensure that the landfill’s liner system components will not be disrupted in the event of a sinkhole, Angelo’s proposes to include the reinforcement geotextile discussed above. The Department previously approved the use of geotextile reinforcement, combined with grouting, to demonstrate site stability for the Hernando County Northwest Landfill, which had a comparable risk of sinkhole formation according to the Department. The reinforcement geotextile can span a 15-foot diameter sinkhole without failure. As found above, the average diameter of the seven sinkholes within five miles of the proposed landfill is 11.9 feet. Angelo's proved that the proposed liner system meets all applicable criteria, except the requirement of rule 62- 701.400(3)(a) that the liner be installed upon a geologically stable base. Grouting Plan Angelo's grouting plan would be implemented to fill voids and stabilize areas of loose or weak material. The grouting plan was first designed to grout all locations where there was a Weight of Hammer, Weight of Rod, Loss of Circulation, or loose sands, as indicated by a low blow count. Angelo's revised the grout plan to include several more areas of concern identified later, for a total of 39 locations. Each grout location would have seven grout points, one in the center and six others equally-spaced on a ten-foot radius from the center. If more than ten cubic yards of grout is needed, additional grout points further outward would be injected until the void or loose soils are filled or stabilized. Although Angelo's proposes to grout every boring of concern, that still ties the integrity of the grouting plan to the thoroughness of the borings. The geologic evidence indicates that there are unstable areas which the grouting plan does not address. The Aligned Parties' MER analysis was persuasive in identifying potential areas of instability that were omitted from Angelo's investigation and from its grouting plan. There are other unstable areas existing on the site that should be grouted or otherwise engineered to provide support for the landfill. The grouting plan does not provide reasonable assurance that the integrity of the structural components of the landfill will not be disturbed. Other Issues Raised by the Aligned Parties The Aligned Parties raise a number of other issues, some of which begin with the assumption that the site is unstable and a large sinkhole would form at the landfill. This sometimes mixes issues inappropriately. It has been found that Angelo's did not provide reasonable assurance that the site will support the proposed landfill, but other project elements must be reviewed on their own merits where possible, assuming the site was engineered for stability. Leachate Collection System There is a single leachate collection trench in the center of the two landfill cells, which makes the landfill operate much like a single cell. The two halves of the cell slope toward the center, so that leachate will drain to the leachate collection trench, and the entire landfill slopes to the west, so that the trench will drain to a sump from which the leachate is pumped to storage tanks. At full capacity, the landfill will generate about 40,000 gallons of leachate per day. Careful cutting and grading of the earth is necessary to create the slopes that are essential to the proper functioning of the project’s leachate collection system. Settlement analyses are necessary to assure that the slopes are maintained. Rule 62-701.410(2)(e) requires a foundation analysis which must include a study of "subgrade settlements, both total and differential." "Total settlement" refers to the overall settlement of a landfill after construction and the loading of solid waste. "Differential settlement" compares settlement at two different points. Angelo's did not meet its burden to provide reasonable assurance on this point. The settlement analysis conducted by Angelo's was amended two or three times during the course of the final hearing to account for computational errors and other issues raised by the Aligned Parties. The analysis never came completely into focus. The final analysis was not signed and sealed by a professional engineer. The settlement analysis is dependent on the geologic analysis, which is inadequate. Without adequate settlement and geologic analyses, it cannot be determined that leachate collection would meet applicable criteria. Storage Tanks The Aligned Parties contend that the leachate storage tanks cannot be supported by the site. Because it was found that Angelo's geologic investigation was not adequate to identify all unstable areas, it is also found that Angelo's failed to provide reasonable assurance that the site would support the leachate storage tanks. In all other respects, the Aligned Parties failed to refute Angelo's demonstration that the storage tanks would meet applicable criteria. Groundwater Monitoring Plan The Aligned Parties contend that there is an insufficient number of monitor wells proposed by Angelo's to detect a leak from the landfill and the wells are too shallow. Because it was found that Angelo's did not adequately characterize the geology and hydrology of the proposed landfill site, the monitoring plan does not provide reasonable assurance of compliance with applicable criteria. Cell Design The Aligned Parties contend that the "mega-cell" design proposed by Angelo's provides less flexibility to respond to and isolate landfill problems than other landfill designs with smaller cells, and the mega-cell design could generate more leakage. No evidence was presented to show whether Angelo's design was one that had been approved or rejected in the past by the Department. Although it is not the best landfill design, the Aligned Parties did not show that the proposed design violates any permitting criteria. Operation and Closure The evidence presented by the Aligned Parties in support of their issues regarding the operation of the proposed landfill, such as noise, odor, and traffic, was not sufficient to refute Angelo's evidence of compliance with applicable criteria, with one exception: Angelo's has not provided an adequate contingency plan to show how it would respond to a sinkhole or other incident that required the landfill to be shut down and repaired. Assuming the site was engineered to support the landfill, there is nothing about the Closure Plan that the Aligned Parties showed does not meet applicable criteria.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection deny Angelo's Permit Application Nos. 22913-001-SC/01 and 22913- 002-SO/01. DONE AND ENTERED this 28th day of June, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2013. COPIES FURNISHED: Carl Roth, Qualified Representative 8031 Island Drive Port Richey, Florida 34668-6220 Christopher M. Kise, Esquire Foley and Lardner, LLP 106 East College Avenue, Suite 900 Tallahassee, Florida 32301-7732 Wayne E. Flowers, Esquire Lewis, Longman and Walker, P.A. Suite 150 245 Riverside Avenue Jacksonville, Florida 32202-4931 Janice M. McLean, Esquire City of Tampa 7th Floor 315 East Kennedy Boulevard Tampa, Florida 33602-5211 Joseph A. Poblick, Esquire City of Zephyrhills 5335 8th Street Zephyrhills, Florida 33542-4312 Doug Manson, Esquire William Bilenky, Esquire Brian A. Bolves, Esquire Manson Bolves, P.A. 1101 West Swann Avenue Tampa, Florida 33606-2637 Jacob D. Varn, Esquire Linda Loomis Shelley, Esquire Karen A. Brodeen, Esquire Fowler, White, Boggs, P.A. 101 North Monroe Street, Suite 1090 Tallahassee, Florida 32302-1547 David Smolker, Esquire Smolker, Bartlett, Schlosser, Loeb and Hinds, P.A. Suite 200 500 East Kennedy Boulevard Tampa, Florida 33602-4936 Stanley Warden, Esquire Christopher Dale McGuire, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 William D. Preston, Esquire William D. Preston, P.A. 4832-A Kerry Forest Parkway Tallahassee, Florida 32309-2272 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Matthew Z. Leopold, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The ultimate issue to be resolved in this proceeding is whether the Department of Environmental Regulation should issue a permit to Broward County authorizing construction of the proposed Cell 14 extension of the Broward County landfill located in the Town of Davie, Florida. Broward County and the Department of Environmental Regulation contend that Broward County has provided reasonable assurance that the proposed facility will meet the requirements of the Department's rules and regulations and not cause pollution in contravention of the Department's standards. The Town of Davie contends that the proposed facility will not meet the Department's requirements and will result in pollution in contravention of the Department's standards.
Findings Of Fact Broward County presently operates a landfill known as the Davie Landfill on a tract of land comprising 200 acres within the Town of Davie, Broward County, Florida. The existing sanitary landfill includes 13 cells which cover approximately 20 acres on the northeastern portion of the site. The landfill had an original design elevation of50 feet. The Department of Environmental Regulation, in a separate permitting proceeding, has authorized an increase to the height of the existing landfill to 90 feet. The permit authorizing increasing the height of the existing landfill has been challenged by the Town of Davie and is the subject of a separate proceeding before the Division of Administrative Hearings. The site which includes the landfill also has a sludge lagoon and trash landfill located in close proximity to the sanitary landfill. The sludge lagoon was used until sometime in 1981 for disposal of septic tank clean-out, sludges, grease trap waste, and wastewater treatments. The trash landfill was designed primarily for disposal of yard trash. The existing landfill has vertical side slopes of 3.5 to l. In other words, the height of the landfill increases along sides by i foot for every 3.5 feet traveled horizontally. Through this application, Broward County is seeking approval to expand its sanitary landfill by adding a proposed Cell 14. Cell 14 would constitute a Class I landfill since it will receive in excess of 20 tons of solid waste per day. The proposed Cell 14 would be constructed along the existing western face of Cells 1 through 13. It would ultimately be constructed to a height of 90 feet and would be capped with an impervious substance. The western side slope of the proposed cell would also be 3.5 to 1. Cell 14 would cover approximately 11 acres, bringing the total size of the sanitary landfill to just over 30 acres. With Cell 14, the sanitary landfill would continue to operate until approximately 1986. Containing leachate and preventing it from entering surface or ground waters is a most important consideration in determining whether to permit sanitary landfills. Leachate is water that has passed through refuse and been contaminated by the refuse. If significant amounts of leachate from Cell 14 enters into surface and ground waters, violations of the Department's water quality standards would be likely. Several features have been designed into Cell 14 to prevent introduction of leachate into surface and ground waters. The base of the cell would have a high density polyethylene liner to prevent percolation of Leachate that collects at the bottom of the cell into groundwater. A leachate collection system consisting of pipes and manholes has been devised. As leachate collects at the base of the cell, it will be dumped into tank trucks and carried to nearby wastewater disposal plants where it will be treated. A stormwater collection system has been designed so that initial stormwater runoff will be pumped to the leachate collection system and tested. If significant pollutants are contained in the stormwater runoff, it can continue to be pumped into the leachate collection system and ultimately removed to off-site treatment plants. If there are not significant pollutants in the runoff, runoff will be collected in a swale system and ultimately percolate into groundwater. Water that leaves the site in this manner is not likely to cause violations of Department of Environmental Regulation standards either in surface or ground waters. Numerous technological advances have occurred since Cells 1 through 13 of the Davie Landfill were designed and constructed. These cells have a designed-in leachate collection system. The system presently functions adequately, except that the liners under the earlier cells appear to be breaking down. It is apparent that the liner under Cells 1 through 4 has deteriorated to the extent that all leachate from these cells is not collected in the leachate collection system, but enters the groundwater below the landfill. Leachate from a landfill of this sort and magnitude that enters groundwater is likely to cause pollution in violation of the Department's standards. Leachate is presently entering the groundwater from Cells 1 through 4. The nature of the liner under the remaining original cells is not known. It is thought to be made of asphalt. Many forms of asphalt, obviously including the kind that was used to line Cells 1 through 4, are not capable of containing Leachate for an extended period of time. If the liner breaks down, the leachate collection system under all of the original cells will no longer function, and leachate will enter the groundwater, causing violations of Department of Environmental Regulation standards. There will not be an impervious liner between the existing cells of the Davie Landfill and the proposed Cell 14. It has been estimated that the cost of such a liner would be prohibitive. There will be limerock placed between the existing cells and the proposed cell; however, limerock is permeable. Some Leachate from Cell 14 will seep into the existing cells. Some of the leachate from the proposed Cell 14 that enters the existing Cells 1 through 4 will find its way into groundwater under the landfill. Leachate that enters the remaining cells will also find its way into groundwater if the liner under these cells breaks down as the liner under Cells 1 through 4 has broken down. If Leachate from the proposed Cell 14 enters groundwater under the site of the landfill, it is likely to cause pollution in violation of Department of Environmental Regulation standards. Groundwater in the area of the Davie Landfill flows generally from the northwest to the southeast. Some of the groundwater from the site of the sanitary landfill is likely to find its way into a canal which is located just to the south of the site. this is the C-11 Canal. If leachate from the proposed Cell 14 enters groundwater under the site of the landfill, it is likely to ultimately cause violations of Department of Environmental Regulation standards in the C-11 Canal. Except for the fact that the liners under the existing cells of the sanitary landfill are subject to deterioration, the leachate collection system can function appropriately. The leachate collection system for the proposed Cell 14 can also function without allowing introduction of leachate into surface and ground waters. The leachate collection systems utilize pipes that are presently buried under the existing landfill and will be further buried by the construction of Cell 14. The pipes that are presently being used, and are proposed to be used, are designed to withstand pressure greater than would be imposed on them. Furthermore, they are being placed in such a manner (surrounded by rock and utilizing ball joints) as to reduce the pressure imposed upon them. It is possible that one of the pipes could break and that leachate could thus escape from the Leachate collection system. This possibility is not a likely one, however, given the design parameters of the pipes and the nature of their installation. The fact that the leachate collection system for existing cells of the Davie Landfill would be buried under the proposed Cell 14 does not raise a significant danger that the system will break down. Again, the design parameters of the pipes and the nature of their installation render breakage unlikely. The sludge pit that is located just to the southwest of the sanitary landfill and the trash landfill that is located just to the south of the sanitary landfill offer potentially severe threats to the integrity of ground and surface waters on and off of the site. The sludge pit is a hazardous waste site. The trash landfill is not designed to prevent substances placed on the landfill from percolating into groundwater. It does not appear that construction of the proposed Cell 14 addition to the sanitary landfill would increase the risk of pollution that the sludge pit and trash landfill present. It does not appear that construction of the proposed Cell 14 would cause significant additional surface or ground water flows that would increase the risk of material from the sludge pit or the trash landfill from entering surface or ground waters. The applicant has failed to provide reasonable assurance that its proposed addition to the Davie Landfill will not result in violations of Department of Environmental Regulation standards contained in Chapters 17-3, 17- 4, and 17-7, Florida Administrative Code. While the proposed cell has been designed with appropriate liners and with an appropriate leachate collection system, its location abutting an existing landfill which does not have an adequate liner preventing percolation of leachate into groundwater increases the risk of that occurring. It appears that the only means of preventing or reducing that risk is either to close off the existing cells, or to place a liner between the existing cells and any addition in order to prevent flows of Leachate from new landfill activities into the existing cells.
Findings Of Fact On November 16, 1983, Lamar Advertising Company submitted it's applications for permits for outdoor advertising signs to be located on the north side of Interstate Highway 10 in Escambia County Florida, 4.8 miles west of the intersection of I-10 and U.S. Highway 90A facing east, and the other to be located on the west side of I-10, 5.08 miles west of its intersection and U. S. 90A facing east. By letter dated November 28, 1983, the Department rejected these applications, stating: In unpermitable zoning. No commercial business visible. Escambia County, Florida, owns the land where the proposed signs would be located. This parcel contains approximately from the Perdido River, the state bounds almost to County Road 99 on the east, with frontage of I-10 for a distance of approximately one mile * Station is located on the south side of I-10 opposite center of this parcel. In January of 1981, the construction of a sanitary landfill this property, known as the Perdido Landfill. permanent buildings located there, one of which house which includes computer equipment and two commercial scales. Another houses p* equipment. Another is used for employee loc* of supplies. Another is the main office. all office facilities and a major garage automotive and heavy equipment. sanitary landfill is used for disposal of solid waste through escavation and burial. Excavation removes soil which is later used to cover waste placed into the hole created by the NOTE: Page 2 of the Recommended Order on file with DOAH has missing or unreadable text and is therefore not available in this ACCESS document. excavation. When a filling operation has been completed in a particular area, there will be built up heights exceeding the existing grade by as much as 50 feet. Before the landfill activity began, the parcel in question was rolling landscape, mostly in pasture land with some timber. It sloped to the west to the Perdido River. It also sloped from north to south towards the north edge of Interstate 10. Escambia County has approximately thirty pieces of equipment on the Perdido Landfill. This equipment consists of two landfill compactors, two bulldozers, three self-elevating scrapers, a frontend loader, a number of dump trucks, a road grader, a hydraulic backhoe, three tractor trailer rigs, a rented dragline, and numerous cars and pickup trucks. Normally there are five pieces of this equipment in operation on any given day. In addition to the equipment operated by Escambia County, approximately 500 vehicles per day visit the landfill to dump solid waste Monday through Friday, of which about 300 are commercial and 200 are private vehicles. On Saturday approximately 800 to 1,000 vehicles visit the landfill to dump waste. These dumping operations on the Perdido Landfill are taking place about 800 to 1,000 feet from the north right-of-way of I-10. In addition, the County has leased 10 acres on the north boundary of this property to a private company which operates a treatment facility for the processing of septic waste material to produce fertilizer. This facility is located between 2,000 and 3,000 feet from the south boundary of the County property. The County has constructed and maintains an earth barrier approximately 100 feet wide along the south boundary of this property on I-10 to hide the landfill operation from traffic on the interstate. This earth barrier also places the private septic waste facility beyond the line of sight from the interstate. In addition, there are trees and other natural growth along the south boundary of the County property which obscures the site from view. Photographs admitted into evidence show that the activities taking place on the landfill are not clearly visible to traffic moving on I-10. None of the vehicles can be seen except the top portion or boom of a crane. The area is hidden by trees and by the earth barrier except for one or two small openings which reveal the crane's boom. A motorist traveling east on I-10 can see through these openings for approximately one second, and traveling west for only a couple of seconds. Nevertheless, some portion of the equipment being used on the landfill property is visible from the interstate. Most of the area of Escambia County outside of the City of Pensacola is not zoned. There are some areas in the vicinity of the University of West Florida in the northwestern part of the county and on Perdido Key in the southwestern part of the county that are zoned. The area in which the Perdido Landfill is located is not zoned. The Petitioner presented the former County Attorney for Escambia County who testified that the activities conducted at the landfill are compatible with an industrial zoning classification. No further evidence on this point was presented by the Petitioner. The Department presented the Administrator Director for zoning and inspection in Okaloosa County, Florida, who testified that there are four sanitary landfills in Okaloosa County, two located on federal land and two located on county property. Okaloosa County is located about 39 miles east of Escambia County, and the four landfills there are operated and maintained by the County. Okaloosa County has county-wide zoning, and sanitary landfills are classified as public service facilities in agricultural areas predominantly. Under the existing Okaloosa County ordinance,, a landfill would be classified as Agricultural or Agricultural Restricted, regardless of the type of landfill it is. The Department also presented a letter from the Land Use Administrator of the Tallahassee-Leon County Planning Department which indicates that Leon County considers sanitary landfills as "resource development activities" which are permitted as a restricted use only in agricultural zoned areas. This hearsay evidence is not of sufficient quality to support a finding of fact, but it corroborates the evidence presented by the Okaloosa County zoning director, and was admitted for this purpose.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order denying the application of Lamar Advertising Company for permits to erect two signs on the north side of I-10 in Escambia County, at points 4.80 miles and 5.08 miles west of U.S. 90A, facing east. THIS Recommended Order entered this 8th day of June, 1984, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1984. COPIES FURNISHED: ROBERT P. GAINES, ESQUIRE P. O. BOX 12950 PENSACOLA, FLORIDA 32576 VERNON L. WHITTIER, JR., ESQUIRE DEPARTMENT OF TRANSPORTATION HAYDON BURNS BUILDING, M.S. 58 TALLAHASSEE, FLORIDA 32301-8064
Findings Of Fact Respondent, Textron Petroleum Products Company, Inc., has applied for a construction permit to construct a sanitary landfill in Sections 3 and 10, Township 1 North, Range 2 East, Leon County, Florida. The proposed site consists of ninety (90) acres and is approximately 2,000 feet from U.S Highway 90 at Its closest point to that highway. The application is in proper form and contains all information required by the Department of Environmental Regulation. towns and areas to be served by the application are the City," of Tallahassee and Leon County. The facility is designed to serve a population of 135,000 people. Although evidence was presented for the purpose of showing that the City of Tallahassee and Leon County, as governmental entities, do not intend to use the proposed sanitary landfill as an "official" landfill site for those governmental bodies, this evidence did not establish that the area to be served and the population to be served by the proposed sanitary landfill is other than that stated above. The applicant, Textron Petroleum Products Company, Inc. does not have a franchise from any county, municipality or other governmental agency with regard to solid waste resource recovery and management responsibilities. The applicant, Textron Petroleum Products Company, Inc., had not, at the time of hearing, posted a performance bond or other approved security with the agency within whose jurisdiction the proposed site is located. The "owner" as that term is used in Section 17-4.21(1)(d), F.A.C., is the applicant, Textron Petroleum Products Company, Inc. The unrebutted evidence presented,at hearing established that the applicant has a net worth of $1 million and is financially responsible. The evidence presented did not establish any violation of the State Resource Recovery And Management Program set out in Part II, Chatper 17-7, F.A.C. There is a public supply well located in the Homestead Ridge area. This system serves 38 or more customers at an averave rate of about 200,000 gallons per month. The well is located more than 2,700 feet from the site boundary of the proposed sanitary landfill. As found by the Northwest Florida Water Management District, even if the consumption of that well system were increased to 2.16 million gallons of water per month, the drawdown at a radius of 2,000 feet would be 0.13 feet. Therefore, it was concluded that the cone of influence of the public water supply does not extend under the proposed sanitary landfill site. As a condition for issuance of a construction permit the Department of Environmental Regulation proposes the requirement of a monitoring system of wells which would include a deep well located between the proposed site and the Homestead Ridge public supply, the purpose of which would be to detect the potential intrusion of leachate or other contaminants into the public water supply from the sanitary landfill. It is improbable that the proposed sanitary landfill will produce any significant quantity of leachate. However, the application proposes that if monitoring indicates that lechate control is needed, a well point system will be installed in the completed cells and underground pipe drains installed in the new cells. It further provides that, dependent upon the quantities involved, the leachate.will be transported to the City of Tallahassee Sewage Treatment Facilities for disposal or it will be treated on-site by transporting the leachate to the settling pond which will at that time be equipped with suitable aeration and chlorination equipment for treatment of the leachate. The proposed design of the sanitary landfill provides that all final discharge from the sedimentatlon pond will conform to the water quality standards set out in Chapter 17-3, F.A.C, even though this may require the constrjction of treatment equipment by the applicant. The application, at pages 12 and 14,.provides for the equipment to be used on-site in the operation of the proposed sanitary landfill as well as for the method of providing adequate site supervision. No evidence was presented showing these provisions to be other than adequate. The evidence presented did not establish that the utilization of U.S. Highway 90 by vehicles transporting waste to the proposed sanitary landfill would create any unusual 0rincreased traffic and safety hazard. The application, at page 3, proposed the installation of electronic signalization equipment to alleviate any hazard which might be created by traffic using the proposed site. No evidence was presented showing this proposal to be inadequate. According to a letter to Mr. James Barrineau, Leon County Department of Pollution Control, from Mr. Mark Stamps, Assistant Zoning Director, Tallahassee Leon County Planning Department, the proposed site is currently zoned Agricultural 2. The letter further states that an Agricultural 2 zoning allows a sanitary landfill as a permitted use. A small portion of the proposed sanitary landfill site is open to public view from,U.S. Highway 90 which is a major thoroughfare. It was estimated by a witness that the distance to the proposed site from that section of U.s. Highway 90 from which the site was open to public view was one (1) mile. An examination of the plot plan of.the proposed site contained in the application shows that at the closest point, the site boundary is approximately 2,000 feet from U.5 Highway 90. The site is screened from public view from most places on Highway 90 by the existing topography and ground cover.
Findings Of Fact On November 16, 1988, Industrial Waste Service, Inc. (IWS), obtained approval to provide garbage and trash collection services to the City of Pembroke Pines (City) when the City passed and adopted Resolution No. 1876 approving the assignment of the contract for such services between the City and Citywide Sanitation Company, Inc. (Citywide), to IWS. Citywide's contract was to expire June 30, 1993. On November 6, 1991, the city amended Chapter 112 of its Code and passed and adopted a solid waste franchise ordinance, called the "City Solid Waste Franchise Ordinance," Ordinance No. 975, effective November 6, 1991. The Ordinance provides in pertinent part: Sec. 112.39 FRANCHISE REQUIRED TO OPERATE; RESTRICTIONS ON OPERATING IN THE CITY; AWARD OF FRANCHISE It shall be unlawful to commence or engage in the business of collecting and disposing of solid waste originating in the city without a franchise issued by the franchising authority in accordance with the provisions of this subchapter. It shall be unlawful for any hauler operating in the city to dispose of solid waste collected in the city at any location other than to the Resource Recovery System transfer station or facilities designated in the plan of operation under the Solid Waste Disposal Agreement, as defined in section 94.22 of the code, the City's Flow Control Ordinance. (Underscore and strike through omitted) On February 13, 1992, the City and IWS entered into a "Solid Waste Collection & Disposal Agreement" (Agreement). The Agreement provides in pertinent part: 2. DEFINITIONS Contract Collection Area shall include all of the City of Pembroke Pines, Florida, as the boundaries of said City shall exist at all times during the life of this Contract. * * * 4. TERM & EFFECTIVE DATE The term of this Contract shall be for a five (5) year period beginning February 1. 1992 and termi- nating January 31, 1997. This Agreement shall become effective upon execution by the parties hereto. On April 1, 1992, the Agreement was amended, "First Amendment to Solid Waste Collection & Disposal," which provides in pertinent part. DEFINITIONS * * * Commercial Service shall mean the collection and disposal of Garbage, trash, Solid Waste and Processable Waste for all Business, Commercial, Industrial, hospital, school, governmental and quasi-governmental establishments, including the collection and disposal of Construction and Demolition Debris. * * * Processable Waste shall mean that portion of Waste Stream that is capable of being processed in the Corporation's resource recovery and compost facility, including but not limited to materials which are recyclable and all acceptable Waste other than Non- Processable Waste (as defined herein). * * * Solid Waste shall mean all waste accumulations consisting of garbage, residential/household trash, commercial/business trash and construction and demolition debris, including but limited to all materials which are recyclable. * * * CONTRACTOR'S RIGHTS (D) The City further grants to Contractor the exclusive right to service all Residential Curbside, Apartment, Condominium, Business, Industrial, and Commercial establishments that are certified for occupancy after February 1, 1992, provided, however, a certificate of occupancy issued as a result of remodeling with no change in ownership shall not require the owner to change service to the Contractor except for the Solid Waste (i.e. Construction Demolition and Debris) created thereby. * * * The City grants to the Contractor the exclusive right to provide Solid Waste collection and disposal services to any Residential Apartment, Business, Commercial or Industrial establishments for the following customers as of February 1, 1992: For CONTRACTORS's existing customers; and For customers that have a change in ownership after the City's approval of the Agreement; and For customers which received Solid Waste collection and disposal services in the City prior to the City's approval of the Agreement and whose contract for such services expires and is not renewed with the same provider in the future. (Underscore and strike through omitted) On November 4, 1992, the City passed and adopted an ordinance, Ordinance No. 1016, amending Chapter 94 of its Code providing for a new subchapter entitled "Garbage Collection" and providing new sections. The Ordinance provides in pertinent part: Sec. 94-10 Agreement with Private Collector. The City acting by and through its City Commission, and in accordance with the provisions of Section 112.37 through 112.41 of the Code, approved a Solid Waste Collection & Disposal Franchise Agreement dated January 15, 1992, as amended by the First Amendment dated April 1, 1992 ("Agreement") between the City and Industrial Waste Service Inc. ("Collector"). All providers of Solid Waste collection and disposal services other than Collector who provide such services within the City boundaries shall be referred to herein as "Haulers". All terms not otherwise defined in this Subchapter shall have the meaning ascribed thereto in the Agreement. The Agreement is specifically made a part hereof as Appendix A, and a copy of same will be maintained at the City Clerk's Office at City Hall. Pursuant to the Agreement the City has granted the Collector the following rights and obligations to provide Solid Waste collection and disposal services: * * * The exclusive right and obligation to provide solid waste collection and disposal services within the City boundaries, present and future, for all Residential Curbside, and all Apartment, Condominium, Business, Industrial and Commercial establishments that are certified for occupancy after February 1, 1992, and govern- mental establishments to the extent permitted by law, provided, however, that a certificate of occupancy issued as a result of remodeling with no change in ownership of the property shall not require the Customer to change to Collector except for construction/remodeling demolition and debris created thereby; and The exclusive right and obligation to provide solid waste collection and disposal services within the City boundaries for all construction or remodeling demolition and debris within the City; and As of February 1, 1992, the exclusive right and obligation to provide solid waste collection and disposal services within the City boundaries for; [sic] Collector's existing Customers; Customers/property owners in the City that have a change in ownership; and customers/property owners whose contract for solid waste collection and disposal services expires and is not renewed with the same provider. Sec. 94.14 Certain Acts Prohibited. * * * (C) It shall be a violation of this subchapter for any person, firm, corporation or other entity, other than Collector to collect and/or dispose of Solid Waste originating in the City except to the extent the same is specifically permitted by the terms of this subchapter. (Underscore and strike through omitted) By letter dated June 10, 1992, IWS notified South Florida State Hospital that it (IWS) was the exclusive contractor for solid waste collection and disposal. South Florida State Hospital (Hospital) is a state mental health treatment facility operated and administered by the Division of Health and Rehabilitative Services (HRS) pursuant to Chapter 394, Florida Statutes. The Hospital is located on state property and is situated within the city limits of the City of Pembroke Pines (City), Broward County, Florida. In December 1993, HRS published an Invitation To Bid (ITB) on Bid # 595-591 for waste disposal services at the Hospital. Browning Ferris Industries, IWS, and Southern Sanitation Service submitted bids. On December 8, 1993, a pre-bid conference was held which included an opportunity for questions and answers. At this conference, HRS pointed out, among other things, that the City had an exclusive contract with IWS for waste disposal services but it (HRS) was also obligated by Florida Statutes to ensure the bidding remained competitive and that all waste collected from the Hospital had to be deposited at land fill sights designated by the City. In or around January 1994, HRS notified the bidders of Bid # 595-591 that, due to the bid document being flawed, a contract would not be awarded. All the bidders filed protests but none raised the City's exclusive contract with IWS as an issue. Ultimately, the contract was awarded to IWS but for only a six-month period. In April 1994, HRS published another ITB on Bid # 595-594 for waste disposal services at the Hospital. In the section entitled "SECTION A. INTRODUCTION," the ITB provides in pertinent part: STATEMENT OF NEED [T]he department requires the services of a qualified waste disposal company to provide waste disposal services to maintain sanitary conditions essential to the health, safety and well being of residents and staff living and working at the hospital. STATEMENT OF PURPOSE Pursuant to Florida Statutes, Chapter 287, this Invitation to Bid is being issued by the State of Florida, Department of Health and Rehabilitative Services, South Florida State Hospital, to obtain the services of a suitably qualified provider to enter into a contract for the removal and disposal of garbage from the hospital campus, and related services; in keeping with hospital requirements and the waste flow control ordinance of the City of Pembroke Pines. In the section "SECTION B. ITB SPECIFICATIONS: MINIMUM DEPARTMENTAL REQUIREMENTS," the ITB provides in pertinent part: PROGRAMMATIC REQUIREMENTS Method of Service Delivery 13) The provider will dispose of waste collected from the hospital at disposal site(s) specified by the City of Pembroke Pines, in keeping with the city's waste flow control ordinance. * * * Other Special Requirements * * * 2) Bidders Eligibility Requirements The successful bidder, in order to contract with the department to provide the services requested by this Invitation to Bid, must have all licenses and/or permits in accordance with city and county ordinances, rules, regulations, and provisions. All licenses and/or permits must be obtained at provider's expense. All costs for tests and inspections shall be paid for by the provider. GENERAL INFORMATION * * * Acceptance of Bids [T]he department reserves the right to reject any or all bids or waive minor irregularities when to do so would be in the best interest of the State of Florida. Minor irregularities are those which will not have a significant adverse effect on overall competition, cost or performance. In the section entitled "SECTION E. BID EVALUATION CRITERIA AND BID TABULATION," the ITB provides in pertinent part: 1) Evaluation Committee An evaluation committee of at lest three (3) members will be established to select the lowest responsive and qualified bidder. * * * 3) Evaluation of Bids Following the bid opening, the committee will review bid packages, beginning with the lowest cost bid, for compliance with the ITB requirements. A Fatal Items Checklist (Appendix IX) will be used to evaluate all bid packages. All items on the checklist MUST be met in order for the proposal to be considered. Receipt of a "No" response for any item will result in automatic rejection of the bid. All references will be checked. Only bidders with a good record of satisfactory performance will be considered. The contract will be awarded to the lowest responsive and qualified bidder who meets all the criteria specified in this ITB. The section entitled "General Conditions" of the ITB Contractual Services Bidder Acknowledgment form provides in pertinent part: 7. AWARDS: As the best interest of the State may require, the right is reserved to make award(s) by individual service, group of services, all or none, or a combination thereof; to reject any and all bids or waive any minor irregularity or technicality in bids received. Bidders are cautioned to make no assumptions unless their bid has been evaluated as being responsive. In response to the ITB, HRS received bids from Browning Ferris Industries which had previously bid on Bid # 595-591, Coastal Carting, Ltd., IWS which had also previously bid on Bid #595-591, Son Mar South Sanitation, Inc. (SON MAR), and Southern Sanitation Service which had also previously bid on Bid # 595-591. SON MAR was the apparent lowest bidder with a bid of $72,200.48 for the first year, $79,420.52 for the second year, and $87.362.57 for the third year, totalling $238.983.57, and IWS was the apparent second lowest bidder with a bid of $106,739.84 for the first year, $112,734.46 for the second year, and $121,971.12 for the third year, totalling $341,445.42. Subsequently, IWS' bid was recalculated due to HRS discovering a calculation error by IWS. The recalculation was performed without a reconvening of the Evaluation Committee and resulted in IWS' bid being $113,579.84 for the first year, $119,814.46 for the second year, and $129,291.12 for the third year, totalling $362,685.42. The Evaluation Committee reviewed all the bids and evaluated them using, among other things, the Fatal Items Checklist. If one item in the checklist were not satisfied, a bid would be disqualified. Pertinent to this case, both SON MAR and IWS satisfied the Checklist and all other evaluation criteria used by the Committee. On May 12, 1994, the Bid Tabulation sheet was posted. HRS indicated its intent to award Bid # 595-594 contract to SON MAR as the apparent lowest and responsive bidder. At that time, HRS was aware that SON MAR had no licenses or permits issued by the City. The Evaluation Committee considered the absence of a license or permit as not material to awarding the bid 1/ and were aware that an awardee obtaining a license or permit would involve a simple process of the awardee completing an application for and paying a fee to the City. By letter dated May 20, 1994, HRS requested that the City advise it of any permits and/or licenses required by the City for an awardee to provide waste removal services to the Hospital. HRS did not receive a written response to its letter. Instead, the City orally advised HRS that it (the City) would issue SON MAR a special permit which would be issued upon SON MAR making application for an occupational license and paying a franchise fee. SON MAR was agreeable to complying with the City's terms and conditions. SON MAR dispatched one of its representatives to the City to obtain an application for the license. However, the City refused to provide SON MAR an application. By letter dated June 13, 1994, IWS filed its formal bid protest of Bid # 595-594 with HRS alleging, among other things, that SON MAR did not have a license from the City to provide waste removal services because it (IWS) had the exclusive waste removal contract with the City, that, without a license, SON MAR could not comply with the bid eligibility requirements and that, therefore, the bid should be awarded to it (IWS). On or about June 28, 1994, SON MAR notified the City that its refusal to issue it (SON MAR) an occupational license was unconstitutional per a U.S. Supreme Court case and requested immediate issuance of the license. SON MAR forwarded HRS a copy of this notification and request. By letter dated June 30, 1994, the City notified SON MAR that it would not issue it (SON MAR) a permit to provide waste removal services in the City, as such an action would violate the exclusive franchise agreement that it (the City) had with IWS. On or about June 30, 1994, HRS was aware that the City would not permit SON MAR to provide waste removal services in the City as it received a copy of the City's letter to SON MAR. On July 14, 1995, HRS and IWS settled the protest filed by IWS, without involving SON MAR in the negotiations. The terms of the settlement, which were communicated to SON MAR on July 15, 1995, were that IWS would dismiss its protest if, within ten days, 2/ SON MAR obtained a license/permit from the City, produced the license to HRS and otherwise remain qualified for the award and that, if SON MAR was unable to obtain a license from the City, HRS would declare SON MAR unqualified and declare IWS the lowest responsive and qualified bidder and award the bid to IWS. SON MAR was unable to obtain a license from the City. Moreover, the City refused to provide SON MAR with an application, remaining consistent with its letter of June 30, 1994, to SON MAR. As SON MAR was unable to obtain a license within the prescribed ten- day period, by letter dated July 29, 1994, HRS notified all bidders to Bid # 595-594 that it was declaring SON MAR unqualified and of its intent to award the bid to IWS, as the next lowest and qualified bidder. Further, HRS notified the bidders that the bids of IWS and another bidder were recalculated to correct a calculation error, which would not affect the order of the bids. By letter dated August 9, 1994, SON MAR notified HRS of its intent to file a formal protest. On or about August 24, 1994, SON MAR filed its formal protest. At no time material hereto, has SON MAR pursued any civil action to challenge the validity of the exclusive contract between the City and IWS or the constitutionality of the City's Ordinance.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order awarding Bid # 595-594 to Industrial Waste Service, Inc. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 28th day of March 1995. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March 1995
