01-000783 City Of Jacksonville vs. Department Of Environmental Protection And Kimmins Recycling Corporation Status: Closed Recommended Order on Friday, September 7, 2001.

Summary: Kimmins provided reasonable assurances entitling it to use a General Permit to operate a solid waste transfer station in the City of Jacksonville.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF JACKSONVILLE, )

)

Petitioner, )

)

vs. ) Case No. 01-0783

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION and KIMMINS )

RECYCLING CORPORATION, )

)

Responde nts. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Charles A.

Stampelos, the assigned Administrative Law Judge of the Division

of Administrative Hearings, on June 14 and 15, 2001, in

Jacksonville, Florida.

APPEARANCES

For Petitioner City of Jacksonville:

Gregory K. Radlinski, Esquire

Assistant General Counsel

City of Jacksonville

City Hall at St. James, Suite 480

117 West Duvall Street

Jacksonville, Florida 32202

For Respondent Kimmins Recycling Corporation:

Peter L. Breton, Esquire

Thomas A. Sheehan, III, Esquire

Moyle, Flanigan, Katz, Raymond

& Sheehan, P.A.

625 North Flagler Drive, Ninth Floor

Post Office Box 3888

West Palm Beach, Florida 33402-3888

For Respondent Department of Environmental Protection:

W. Douglas Beason, Esquire

Assistant General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

The issue presented is whether Respondent, Kimmins Recycling

Corporation (Kimmins), is entitled to use the General Permit

issued under Rule 62-701.801, Florida Administrative Code (the

General Permit) of the Department of Environmental Protection

(Department) to operate a solid waste transfer station in the

City of Jacksonville (the City).

PRELIMINARY STATEMENT

On December 12, 2000, Kimmins submitted a Notice of Intent

to Use General Permit to the Department and on December 22, 2000,

published the requisite newspaper notice of its intent to use the

General Permit. The City timely requested an administrative

hearing. Thereafter, this cause was transferred to the Division

of Administrative Hearings (Division) to conduct a final hearing.

North Riverside Community Association also filed a timely

challenge in DOAH Case No. 01-0784, but voluntarily dismissed its

challenge.

Kimmins presented the testimony of : Hugh Gauntt, Greg

Mathes, Juanita Clem, and Carolyn McCreedy. The Department

offered no additional witnesses, but adopted the testimony of the

Kimmins' witnesses. The City presented the testimony of Mary C.

Nogas, L. Chris Pearson, and Diane Kerr. Additionally, Kimmins'

exhibits identified as a through m, including Exhibit i-1

(submitted after the hearing by stipulation of the parties) were

admitted in evidence. The Department's Composite Exhibit

numbered 1 and the City's Exhibits numbered 1 through 3 were

admitted in evidence. The City's Composite Exhibit 4, consisting

of photographs taken by Ms. Kerr depicting flood conditions in

and around McCoys Creek, after objection, was not admitted into

evidence and has been proffered. The photographs were not

revealed to Kimmins prior to hearing nor were they listed on the

City's exhibit list. Kimmins claimed prejudice when Ms. Kerr was

questioned about the photographs, and the undersigned agreed.

The City did not request a continuance until the filing of its

Memorandum of Law. Ms. Kerr testified regarding the flood

conditions without restriction and her testimony has been

considered herein. The City's request to continue the final

hearing is denied.

A Transcript of the final hearing was filed with the

Division on June 29, 2001. After receiving an extension of time,

the parties filed Proposed Recommended Orders. Kimmins and the

City filed Memoranda of Law. Kimmins filed a Motion to Strike

several proposed findings and conclusions from the City's

proposed recommended order and the City filed a Response. The

Motion to Strike is denied. All of these filed post-hearing

documents have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

Background

1. On December 12, 2000, Kimmins filed a Notification of

Intent to Use a General Permit to Construct and Operate a Solid

Waste Transfer Station (Notice of Intent) pursuant to Rules 62-

701.801 and 62-4.530, Florida Administrative Code, using DEP Form

62-701.900(4). The Notice of Intent includes revised documents

which appear in the record.

2. Kimmins filed an addendum to its Notice of Intent on

December 21, 2000, substituting a service agreement between

Kimmins and Peninsular Pest Control Services, Inc. (Peninsula)

dated December 19, 2000, providing for insect and vector control

at the proposed facility. This addendum also contained an

Emergency Services Spill Response Agreement with Environmental

Remediation Services , Inc. dated January 1, 2000. Kimmins also

supplemented its Notice of Intent with a revised pest control

service agreement with Peninsular dated January 19, 2001.

3. Kimmins published a Public Notice of Application for a

General Permit in the Florida Times Union , Jacksonville, Florida,

on December 22, 2000.

4. On January 11, 2001, the Department issued a

"Notification of Use of a General Permit to Construct and Operate

a Solid Waste Transfer Station from the Kimmins Recycling

Corporation General Permit Number 0017894-002-50." The

Department did not object to the use of the general permit,

provided several changes were made to the project. The evidence

indicates that these changes have been incorporated by Kimmins.

See , e.g. , Findings of Fact 5 and 6.

5. As part of its Notice of Intent submitted to the

Department, Kimmins submitted a Site Plan and a Floor Plan,

Figures 2 and 3, respectively. In response to the Department's

Notice of Use, Kimmins submitted amended Figures 2 and 3 for the

Notice of Intent. The revised site plan added two notes (i)

regarding the base flood elevation at McCoys Creek and the

elevations of the developed portions of the site, and (ii) a

notation that "the site shall be designed and managed in such a

way to divert stormwater [or] floodwaters away from the solid

waste storage area," and showing the one-hundred (100) year flood

plain delineation.

6. The revisions to the floor plan contain the same note

with respect to diversion of stormwater or flood waters and shows

a three-inch by eighteen-inch rounded curb along the north end of

the building.

7. The facility depicted in the Notice of Intent and the

revised Site and Floor Plans is a graphical description of

Kimmins' intent to operate the facility, although these plans

were sealed by a professional engineer, Mr. Gauntt.

8. The service area for the facility extends from just

south of Savannah, Georgia, to Dade City, Florida, inland from

the Atlantic Ocean in an arch almost reaching the Gulf of Mexico

and passing north through Chiefland, Florida, and further north

to Valdosta and Odom, Georgia.

Proposed Solid Waste Transfer Station

Location/Surrounding Area

9. The facility site for the proposed transfer station is

located at 140 Stockton Street in Jacksonville, Florida.

10. The area to the east, and north of the facility to

Beaver Street, is generally industrial in nature, although there

is an open portion of property immediately north of the facility.

Residential homes appear on the north side of Beaver Street.

There is a commercial truck business on the southwest corner of

Beaver Street and Stockton. There are also industrial buildings

to the west of the facility.

11. By stipulation, the existing building on the proposed

facility site is located north and 214.7 feet from the top of the

nearest (northern) bank of McCoys Creek (Creek). A minority

residential neighborhood, the closest residential area to the

facility, is located south of the Creek and McCoys Creek

Boulevard (Boulevard). The Boulevard is the northern boundary of

this neighborhood. (The Creek and the Boulevard are referred to

herein as "McCoys," see Transcript, page 430, notwithstanding the

different spelling used through the Transcript, Exhibit i-1, and

post-hearing submissions.)

12. The Creek is a tidally influenced creek, which floods

at the intersection of Stockton Street and the Boulevard, when

the incoming tides coincide with heavy rainfall. See also

Findings of Fact 104-114.

13. There are trees which act as a buffer between the

facility and the residential area to the south. Looking south

from the facility at ground level, nothing can be seen other than

trees.

14. In response to concerns about the traffic impact of the

proposed transfer station on the residential area south of the

facility, Kimmins submitted a revised transfer route that would

bring collection vehicles and transfer vehicles in and out of the

facility by way of Stockton Street north of the residential area

and south of the facility. The transfer vehicles will utilize a

route to the landfill that will avoid residential areas. The

trucks leaving the facility with waste will travel north on

Stockton Street to Beaver Street, travel west to McDuff Avenue,

then south and access I-10. This is generally considered an

industrial route.

15. In terms of siting a solid waste transfer station, the

Stockton Street facility is an acceptable location as it is

located close to waste generation and centrally located in the

City of Jacksonville, making it an acceptable transition point

for solid waste. Further, it is located near major traffic

corridors, I-95 and I-10, and there is a large amount of acreage

available for the proposed land use and adequate buffering and

screening from the standpoint of vegetation.

Prior Use

16. The building proposed to be used as a transfer station

has previously been utilized by Kimmins as a

construction/demolition debris recycling center.

17. The center also handled and stored municipal solid

waste (MSW). Municipal solid waste coming onto the facility and

under the City of Jacksonville's Ordinance could remain on site

for up to ninety (90) days.

18. The recycling center was operated in a way that caused

excessive noise in the neighborhood, e.g. , a chipping machine

operated outside, and also caused other problems due to the way

in which it was operated, including causing offensive odors and

attracting vectors. Ms. Kerr noticed garbage washed from the

facility into McCoys Creek during heavy rains.

19. Kimmins has not had any operations at the site for

approximately three and one-half (31/2) years. The problems

associated with the former facility are not indicative of the

manner in which Kimmins expects to operate the transfer facility.

Change in Ownership/Management

20. Kimmins was a wholly-owned subsidiary of Eastern

Environmental, but was acquired by Waste Management in December

1998, when Eastern was acquired. No former Kimmins managers or

employees will be employed at the transfer station.

21. Kimmins Recycling Corporation is owned by Waste

Management Holdings, Inc., which in turn is owned by Waste

Management Incorporated. Waste Management Holdings, Inc., also

owns Waste Management, Inc. of Florida.

Proposed Operations

22. The facility is proposed to be operated as a solid

waste transfer station, which involves smaller solid waste

collection vehicles transporting their loads to the facility,

where the waste is segregated as either MSW or construction and

demolition (C & D) waste. This waste is deposited on the floor

of the transfer station and loaded by excavator or backhoe (and

potentially a front-end loader) into larger transfer trucks,

which then take the waste to one of the landfills designated in

the Notice.

23. The average daily volume of the transfer station is

expected to be 300 tons of waste, although it is designed to

handle up to 1,000 tons per day. If the facility reached its

emergency capacity volume, Kimmins has the right to refuse the

waste. Absent emergency conditions, the maximum waste storage

time will be twenty-four (24) hours. On an emergency basis such

as the aftermath of a hurricane, waste, which would be

principally C & D waste, could be held for up to three (3) days.

24. The proposed building is fairly common in design, other

than the fact that it is larger than normal. The additional size

is sufficient to allow separate vehicles on the tipping floor for

the two different types of waste (MSW and C & D) with separate

entrances for those trucks. There are no apparent restrictions

on vehicle movement.

25. In the event that waste can not be properly processed,

due to equipment failure and the inability to secure backup

equipment or adverse weather conditions, waste would not be

accepted at the transfer station. The purpose of the proposed

transfer station is to more effectively and efficiently transport

waste to the landfill, i.e. , rather than a large number of

smaller collection vehicles traveling 30 to 40 miles to the

landfill, a much smaller number of large transfer vehicles would

deliver the waste from the transfer station to the landfill. In

this manner, truck traffic would be reduced at the landfill.

26. The result of the efficiencies derived from the

transfer station may result in lower cost in delivering solid

waste to the landfill, cost reductions that would be realized by

Waste Management and, if the City of Jacksonville chose to

utilize the transfer station, would be shared by the City and its

taxpayers.

27. There is an additional benefit because fewer trucks

will travel the lengthy route to the landfill and the overall air

emissions for the City of Jacksonville are expected to be

generally reduced, although the specific reductions were not

quantified.

Rule Requirements not in Dispute

28. A review of the Pre-hearing Stipulation reveals that

the following subsections of Rule 62-701.801, Florida

Administrative Code, are not in dispute: (2), (2)(c)(1),

(2)(c)(6), (3)(a), (3)(d), (3)(e), (4)(b), and (4)(e)-(g).

Rule Requirements in Dispute

Rule 62-701.801(2)(c )2., Florida Administrative Code-

Machinery and Equipment

29. Section 4.2 of the Notice of Intent describes the

machinery and equipment to be used and specifically names the

loader, excavator, and transfer trailers and their respective

cubic yard capacity.

30. Table 2 of the Notice of Intent specifically sets forth

the loading capacities of the excavator and loader, including

cubic yards per hour, tons per hour and tons per day. The

loading capacities of either the excavator or wheel loader

individually (respectively 1,166 and 1,604 tons per day) exceeds

the anticipated handling capacity of approximately 1,000 tons per

day.

31. The requirements of the rule with respect to machinery

and equipment have been met.

Rule 62.701.801(2)(c )3., Florida Administrative Code-

Transfer Plan

32. Section 4.3 of the Notice of Intent, in conjunction

with the revised transfer route in Kimmins' Exhibit j, sets forth

the proposed transfer plan.

33. The transfer plan sufficiently describes the transfer

route, which has been amended to avoid having collection vehicles

and transfer vehicles traverse the neighborhood south of the

facility. The new route generally transgresses an industrial

area.

34. Kimmins will ensure that this specified route will be

followed by controlling Waste Management's own trucks; contract

provisions with other users of the facility; and video monitoring

to ensure that trucks enter and leave Stockton Street north of

the facility. Ultimately, a carrier's failure to comply with

this requirement will result in the withdrawal of that carrier's

right to use the transfer station.

35. The types of transfer vehicles to be used are described

in Section 4.3.2. While the average number of trucks can be

determined by dividing the average expected daily volume of 300

tons per day by the legal limit of 22 tons per transfer trailer,

it is anticipated that volume will vary. To meet this varying

demand, Kimmins will subcontract out the hauling of waste by

transfer trailers, so that trucks will be available on an as-

needed basis.

36. With respect to the timing of the transfer of solid

waste, Section 4.1.3.4 provides that waste will be handled "on a

first-in, first-out basis to the extent practicalansfer

trucks will be loaded as soon as waste is available."

37. Kimmins has provided a transfer plan meeting the

requirements under the rule for the General Permit.

Rule 62.701.801(2)(c )5., Florida Administrative Code-

Staffing

38. Section 4.5 of the Notice of Intent describes the

personnel procedures for the proposed transfer station and sets

forth the hiring plan in Section 4.5.1 and the training plan in

Section 4.5.2.

39. The minimum personnel listed in the Notice of Intent is

based on the average of 300 tons per day. If that amount of

waste were exceeded, the number of trained employees would be

increased to meet the increased load.

40. Waste Management encourages its employees to become

certified and, to encourage that training, it not only pays for

the training, but also provides a wage incentive. As a result

that program is typically utilized by its employees.

41. The laborer listed in Section 4.5.1 as part of the

staffing component would be a person trained as a "spotter,"

i.e. , a person who could identify unauthorized waste as well as

putting trucks in the correct area to dump their load.

42. In addition to the training described by Mr. Mathes,

there is periodic retraining of employees including review of

prohibited and restricted material as well as emphasis on

compliance with permits.

Rule 62-701.801(3)(b), Florida Administrative Code-

Ventilation for Tipping, Processing, Sorting, Storage, and

Compaction Areas

43. Section 4.7.2 of the Notice of Intent describes the

ventilation system design and states that all tipping, storage

and loading areas are located within the building.

44. The facility is completely open on its north face which

serves as ventilation. Additionally, there are three (3) fans

that can be utilized to provide ventilation for the facility,

either drawing air in or drawing out as needed. The ventilation

system for the facility, although minimal from an equipment

standpoint, complies with the requirements for the General

Permit.

Rule 62-701.801(2)(c )4., Florida Administrative Code-

Drainage

45. Section 4.4 of the Notice of Intent describes the

drainage and water supply systems for the proposed facility,

which also serves as the leachate control system. See also

Kimmins' Exhibit f (revised site plan). The following discussion

regarding drainage overlaps significantly with the later

discussion of the leachate control system and potential

contamination of McCoys Creek. Some of the findings are repeated

in light of the specific issue discussed.

46. The purpose of the leachate control system is to

collect all liquids that come in contact with the waste to be

routed through some form of treatment process, in this case an

oil/water separator and then into the sanitary sewer system for

ultimate treatment at the publicly-owned wastewater treatment

plant. All of the concrete floors in the facility will be

finished to provide a positive slope to the floor drains, which

will have traffic bearing clean-outs and gutters. The building

walls and the three-inch curb will also serve to confine leachate

within the building and prevent it from mixing with stormwater.

See also Findings of Fact 54-68.

47. The system, which utilizes an eight-inch pipe for ease

of operations to clean out and for maintenance, is more than

adequate to handle the anticipated liquids. If the pipe were

sized to handle the amount of leachate generated, it would need

to be only two-to-three inches in diameter.

48. The stormwater management system is planned to prevent

rainwater from being directed from the parking area into the

building. Instead, rainwater is expected to be diverted around

the building into the existing retention pond. The parking area

"apron" slopes up to the building to prevent water from flowing

inside the facility. It is expected that the rainwater will flow

east or west to the stormwater retention pond. Additionally, the

proposed three-inch curb would prevent stormwater from flowing

into the facility, notwithstanding the slope.

49. Ms. Clem, an expert in stormwater design and

permitting, noted that she has reviewed the existing stormwater

permit and, because no additional impervious area is being

proposed to be added near the site, believes there is no reason

that a permit modification would be required, nor would the

change in use require permit modification.

50. Fires at transfer stations are not at all common. With

the updated and modernized sprinkler system anticipated to be

part of the building improvements, there would be zoning of the

sprinkler system and the ability to shut off a leaking source

from the system.

51. If a fire occurred during the day, there would be

people on-site to deal with the fire and there would be appear to

be very little sprinkler water involved.

52. Even if a fire were to happen at night, there are

approximately one to two hours of storage capacity within the

facility even if the drains were blocked, and if the drainage

systems were operating, it is anticipated that they would be able

to adequately handle the sprinkler water without overflowing the

curb, although the design has not yet been completed.

53. There is no reason to believe that the stormwater

management system would not operate as required to keep

stormwater out of the facility and to drain into the permitted

retention pond, which is south of the facility. Further, the

stormwater system, which will be maintained and operated by

facility personnel, is sufficient to prevent the mixing of

leachate with stormwater and will prevent contamination of McCoys

Creek.

Rule 62-701.801(3)(c), Florida Administrative Code- Leachate

Control

54. Section 4.7.3 of the Notice of Intent generally

describes the leachate control system, i.e. , catch basins located

in the central portion of the unloading area and one catch basin

located in the center of the loading area (where the transfer

vehicles will park). The floor of the building will be sloped to

drain toward the catch basin, and the liquids thus collected will

be directed through pipes to an oil/water separator and then the

system will be connected to an existing sanitary sewer system.

See also Finding of Fact 46.

55. By definition, the term leachate means that the

substance leaches through or moves through a body.

56. There is a significant difference between the

composition of the leachate at a landfill versus a solid waste

transfer facility. The transfer station leachate is

substantially weaker and less concentrated in strength than

leachate from a landfill. There are very few liquids generated

by the waste in a transfer station as most of the water which

comes in contact with the floor is wash water and, at days end,

the floor is washed down, which constitutes the majority of the

water travelling into the system.

57. The Kimmins' leachate control system has been designed

to keep all leachate within the building, to be ultimately

transported through the leachate control system to the sanitary

sewer system. The system is designed to be more than adequate to

handle the small amounts of leachate that would be generated at a

transfer station.

58. The leachate control system is comprised of the

concrete transfer station floor, which is sloped toward the floor

drains, the walls of the facility, and the three-inch curb that

would confine the leachate to the facility. The substance flows

into collection gates at two locations on the floor.

59. The effect of the system is that water, including water

contaminated by leachate, cannot leave the facility other than

through the floor drains or by overflowing the three-inch curb.

60. Given the large storage capacity of the floor and the

"pit," where the transfer trucks pull into the facility, the only

scenario under which water might overflow into the retention pond

from the facility would be if a fire occurred at the facility at

night and the drains for the leachate control system were

blocked. If that were to occur, the retention pond has the

capacity to contain the water produced by the worse case scenario

with respect to fire. Any leachate that overflowed into the

retention pond could be held until tested and if it was

unacceptable to go into McCoys Creek, it could be handled in a

number of ways, such as pumping into a nearby sanitary sewer

system.

61. There is an oil/water separator included as part of the

leachate control system to remove oil and any chemicals that

might cling to the oil. The system, however, is not designed nor

required to treat leachate. The leachate will be treated at the

publicly-owned wastewater treatment plant. See also Finding of

Fact 46.

62. The connection of the leachate system to the sanitary

sewer system is an appropriate way to collect, treat, and dispose

of the leachate in accordance with the rules for General Permit

for a Transfer Station.

63. The sanitary sewer system is operated by the local

wastewater utility, JEA, and it is unclear at this time whether

an industrial wastewater permit will be required for the

facility. If such a permit were required, it would be obtained,

assuming one were necessary, before the facility began operation.

There is no requirement that Kimmins obtain a permit from JEA

prior to requesting the General Permit.

64. To the extent that a JEA permit is required and there

is a testing requirement, it would not have to be done on a batch

sampling, but could be done in a manner that would allow

continuous operation of the leachate control system. Kimmins is

more likely than not to be able to comply with JEA's requirements

if they are applicable, particularly given the fact that leachate

generated at a transfer station is extremely diluted, i.e. ,

"primarily wash water."

65. The facility and its stormwater management system are

designed to prevent stormwater from mixing with the leachate by

preventing water outside of the building from entering the

building and preventing leachate from exiting the building.

There is asphalt paving approximately twenty feet to the north of

the building, sloping up to the northern entrance into the

building. This system includes the walls of the building and the

three-inch curb at the north end of the building that would keep

out water. The water is expected to flow to the east or west of

the building to the stormwater retention pond to the south of the

building. See also Findings of Fact 46-47.

66. There was some suggestion by the City that there would

be a problem resulting from leachate leaking from trucks onto the

facility’s parking area. It was noted, however, that seals on

trucks are standard requirements. Additionally, there is an

economic incentive for haulers of waste to the facility, which

are weighed and pay a fee based on weight, not to pay for

processing water. The hauler would be required to correct the

problem in order to continue to use the facility.

67. At worst, leachate falling onto the parking area would

flow through the stormwater management system and be treated in

the swales and retention pond. As Ms. Nogas stated, she did not

consider this significant, stating that it would be "the same

kinds of things that fall on roadways that presently drain in

McCoys Creek, nothing particular or special."

68. The overall effect of the system is to divert

stormwater around the facility to the retention pond at the south

end of the site. The facility has thus been designed with a

leachate control system that would prevent discharge from

leachate and the mixing of leachate with stormwater as required

by rule.

Rule 62-701.801(4)(a), Florida Administrative Code-

Unauthorized Waste

69. Section 4.1.3.1 of the Notice of Intent states that

"Any unauthorized or prohibited wastes will not be accepted at

the site," and explains that "[I ]f the unauthorized waste is

encountered following unloading, that waste will be immediately

returned to the delivery vehicle. If the vehicle is not

available, then the prohibited waste will be temporarily stored

in a [forty-yard capacity box] designated as 'unauthorized waste'

on the Floor Plan (Figure 3)ansport and disposal of the

unauthorized waste would be performed by Environmental

Remediation Services, Inc."

70. This description of the operating procedure was

confirmed by Mr. Mathes who stated that there are certain types

of waste that would be unauthorized and not accepted at the

facility. To the extent that a problem is discovered in time,

the truck that delivered it would take it back. If that course

of action was not available, it would be put aside in the forty-

yard container and the environmental remediation service would

remove the waste. The service contract with Environmental

Remediation Services, Inc. includes emergency services and states

that the company will be available on a "24/7 basis" with a

contact number to be reached at "any time."

71. Further, the City has a "household hazardous waste"

program. In light of these programs, there is a small, and

decreasing, amount of hazardous waste encountered in solid waste.

72. The proposed method for dealing with unauthorized waste

would result in it being handled in a way that would satisfy rule

requirements.

Rules 62-4.530(2) and 62-701.801(4)(c) and (d), Florida

Administrative Code- Air Quality; Litter, Odor, and Vectors

Overview

73. Section 4.1.3.3 of the Notice of Intent to Use

describes how litter, insect, odor, and vector control will be

handled. It states that all waste transfer activities will be

within the closed area of the building thus minimizing litter.

The facility will utilize, as necessary, extermination services

of Peninsular Pest Control Services, Inc. to control flies, rats,

or other vectors. Odor control will be implemented through daily

maintenance of the building area; storage times will be kept to a

minimum to eliminate the potential for litter, odor, vectors or

insects.

74. The parties stipulated that the Notice of Intent

included both an "odor control program" and an "insect and vector

control program."

Litter

75. Section 4.7.2 of the Notice of Intent again reiterates

that all tipping storage and loading areas are located within the

building so that litter is expected to be minimal and facility

staff will maintain the facility to keep all litter within the

building.

76. Kimmins did not describe a litter control program in

its Notice of Intent to control on and off-cite litter. However,

Kimmins expects a minimal amount of litter to be generated

outside of the building from the waste transfer activities, which

are planned to be conducted in the enclosed area of the building.

Kimmins does not expect litter to be generated from the transport

vehicles, either arriving at or leaving the facility. The

facility will be maintained by staff to keep all litter within

the building.

77. The Department representative, Ms. Nogas, a licensed

professional engineer in Florida, was satisfied with the proposal

to prevent litter from washing into the retention pond. To the

extent that litter entered the retention pond, she noted that it

would be picked up by the facility operator as part of its normal

daily operations and would not wash into McCoys Creek. "It's

part of their housekeeping. It's part of what they do daily."

78. Consistent with the Notice of Intent, the engineer of

record testified that he anticipated little if any litter to be

generated outside the building during normal operations,

consistent with his experience at other facilities operated by

Waste Management. The references in the Notice of Intent as to

how litter will be handled were consistent with his experience of

how it is handled at other transfer stations.

Air Quality; Odors

79. While the issue of what applicable air quality

standards might be applied to solid waste transfer stations will

be discussed in the Conclusions of Law, the only relevant

evidence concerning this matter dealt with (i) odors and (ii)

dust.

80. MSM includes waste which can generate offensive odors.

However, the parties stipulated that "[o ]dors at a solid waste

transfer station can be controlled by proper waste handling and

sanitation procedures."

81. To the extent odors are present, there are a number of

ways to control the odors. For example, waste that is considered

inappropriate from that standpoint could be rejected; specific

loads could be deodorized upon arrival. Moving the waste in and

out quickly would prevent odors from becoming a problem as it is

primarily an operational issue.

82. The specific plans and procedures that would be

utilized to deal with potential objectionable odors would be

first and foremost housecleaning, i.e. , as waste comes in it is

immediately loaded onto trucks and transported to the landfill.

Thus, waste will not remain on the floor long enough to develop

odors. At night there would be no waste left on the tipping

floor, the floor would be cleaned and washed down with water at

the end of the day. Cutoff time for accepting certain types of

waste could be established to coordinate with the landfill

closing times in order to ensure daily removal of waste from the

tipping floor.

83. To the extent that waste would remain in the facility

overnight, it would be loaded into the transfer vehicles and

would be tightly tarped to contain odors.

84. With respect to particular loads that are odoriferous,

there are chemical mists or gels that could be applied to

neutralize the odor. Additionally, it could be mixed with other

waste material to encapsulate it temporarily until it is loaded

out. Mr. Mathes also noted that if there is a commercial carrier

for garbage routinely bringing odoriferous loads to the facility,

that carrier would not be allowed to continue to use the transfer

station.

85. The facility would have available to it the resources

of Waste Management, and specifically its corporate-based odor

initiative group that reviews technology and chemicals that have

been used successfully and that knowledge base would be available

to managers in Florida.

86. With respect to suggestions of the City as to how odor

might be better controlled, these were shown to be impractical or

unworkable. For example, designing a facility with negative air

pressure would not be practical or reasonable; entirely enclosing

the facility, if it were in fact possible, would require

ventilation and might in fact be more detrimental than natural

dispersion; the lack of a deodorizing system is of little

significance and it is very rare that a transfer station would

have such a system. Ms. Nogas indicated that while "most

transfer stations have huge doors on them to let the trucks in,"

every transfer station she saw "had large open areas that are

open during the time that the transfer station is operating."

87. Ms. Nogas noted that controlling odors basically

involved good housekeeping and she determined that the odors

could be controlled adequately. Many transfer stations have one

open side.

88. To the extent that complaints are received about odors,

the management can be expected to resolve the problems.

89. With respect to design issues, the engineer for the

Notice of Intent stated that dust control is usually an

operational issue and that he did not believe that dust could be

better controlled if air filters had been included as part of the

design. The Department's expert also considered the absence of

air filters not to be significant.

90. Moreover, there is nothing in Rule 62-701.801, Florida

Administrative Code, requiring solid waste transfer stations to

specifically control dust, and it is not a typical design feature

in transfer stations. Mr. Gauntt stated, however, that placing

C & D material in back of the building helps the ability to

control dust.

91. Operationally, the Notice of Intent referenced that the

"[t ]he facility will maintain on-site at all times adequate

equipment to perform" "[d]ust control," and the person ultimately

in charge of operations of the facility stated that a street

sweeper would be present for dust control.

92. Additionally, there were a number of operational

methods described for controlling dust including : not allowing

dusty MSW into the facility as a first line of defense; putting

up mesh screens at open bay areas; placing other material on top

of a dusty load; and wetting down a dusty load if needed.

93. The Department, in its review of the Notice of Intent,

reasonably believed that Kimmins could adequately control dusty

material.

Vectors and Vermins

94. Pests and other vectors are not normally a serious

problem in a transfer station due to housekeeping techniques.

95. Mr. Mathes reiterated that the best control of vermin

and other pests is through good housekeeping methods and making

sure the tipping floor is cleaned on a daily basis.

96. In addition, a pest control service will provide vector

and vermin control, utilizing bait and traps for vermin and for

vectors using a gel-type material to put in cracks and crevices

where insects would be expected to be. If needed for any

problems, the pest control service could be called on. The

ability to have the pest control company come out as needed,

above and beyond the quarterly treatments, is set forth in the

contract.

97. The experience of those with extensive involvement with

transfer stations indicates that generally traps or baits for

rodents is adequate. Even Mr. Pearson agreed that vectors can be

controlled without spraying by maintaining good sanitary

procedures.

98. The facility can be operated in such a way that pest

and vermin can be adequately controlled.

Rule 62-701.801(4)(d), Florida Administrative Code- Waste

Handling/Cleaning

99. Section 4.1.3.4 of the Notice of Intent addresses waste

handling and cleaning, noting that waste "will be handled on a

first-in, first-out basis to the extent practical" and

"[t ]ransfer trucks will be loaded as soon as waste is available.

All waste storage areas shall be cleaned at the end of daily

operations or during continuous operation, as necessary to

prevent odor and vector problems. All floors will be free of

standing liquids; any liquids will be directed to the catch

basins along the center of the floor (Figures 2 and 3). The

catch basins are part of the leachate collection system described

in Section 4.7.3."

100. As Section 4.7.3 notes, the leachate collection system

connects to a sanitary sewer system so that the drainage from

cleaning areas is discharged into a sanitary sewer system.

101. These statements made in the Notice of Intent were

confirmed by Mr. Mathes, who testified that "[a ]s waste comes in,

it will be immediately loaded onto the trucks and transported to

the landfill. At night there would be no waste left on the

tipping floor."

102. With respect to cleaning, the floors would first be

cleaned utilizing the loader which has a rubber-type strip at the

bottom of the bucket to scrape any waste and get it off the

floor. The floor would then be washed with water at sixty pounds

of pressure with the water running to the leachate collection

system, all done on a daily basis.

103. A similar description of the cleaning, i.e. , an

initial "dry clean-up" removal of waste and then washing down the

floor was also provided by Ms. Clem. She stated that the water

would be entering the leachate collection system and then into a

sanitary sewer. This is appropriate to meet the requirements of

the rule.

Rules 62-701.801(1) and 62-701.300(2)(g), Florida

Administrative Code- Proximity to Residential Neighborhood

and Potential Contamination of McCoys Creek

104. The primary objection of the City to the Kimmins

project is that the proposed transfer station is located too

close to a residential neighborhood, particularly given the

potential odor, noise, and pests that the City anticipates from

the operation of the transfer station. Contrary to the City's

position, there was ample evidence that transfer stations can be

operated, without problems, in close proximity to residential

neighborhoods.

105. Another issue raised by the City is the potential for

contamination of McCoys Creek should the General Permit be

granted.

106. Mr. Gauntt testified that he has designed and visited

a number of operational solid waste transfer stations in very

close proximity to residential areas. In one case, the adjacent

property was near an apartment complex and in another area was

within sight of "some very high-valued homes." In these cases,

there did not seem to be any serious odor problem.

107. Mr. Mathes testified that it is not unusual to have

residential neighborhoods near waste transfer stations. He

identified a large facility in downtown Denver processing 4,000

to 5,000 tons of waste a day near a residential neighborhood and

a facility in the Houston area with neighbors right next door,

within 200 to 300 feet.

108. Ms. McCreedy testified that there are solid waste

transfer stations in Florida in similar proximity as the Stockton

Street facility is to residential areas and that those facilities

have had no noise, odor or vermin complaints.

109. With respect to the issue of noise, there is nothing

specific in the General Permit rule that addresses noise or

requires noise studies to be conducted. Nevertheless, the

orientation of the building, which opens to the north and closes

to the south, and the fact that the southeast and southwest and

east walls and roof are insulated will abate noise to the south.

110. With respect to operations, all heavy equipment will

operate inside of the building, the facility will comply with

local and federal noise requirements, if applicable, and back-up

alarms on trucks using the facility will either be muffled or

disengaged on a temporary basis to comply with the facility’s

operating rules to minimize noise.

111. The parties stipulated that the existing building is

located 214.7 feet from the top of the nearest bank of McCoys

Creek. There was no evidence presented that there would be a

change to the dimensions of the existing building. The Notice of

Intent indicates that all storage of solid waste, including the

tipping and loading areas, will occur within the building that is

enclosed on three (3) of its four (4) sides and will thus be more

than 200 feet from McCoys Creek.

112. There was extensive testimony by Ms. Kerr, an active

member of the community, to the effect that McCoys Creek

Boulevard is frequently flooded after rain events and the water

overflows the bank and becomes a lake. Ms. Kerr, familiar with

the prior operation on the site, also observed litter and garbage

flowing into the Creek, under dry and flood conditions. She has

also observed flood waters from the Creek flowing into the

property connected with the facility, but not onto or into the

facility. Flood waters have also caused the Creek beds to erode,

undermining the tree line.

113. However, the weight of the evidence indicates that

this flooding would not adversely effect vehicles entering the

transfer station from the north along Stockton Street, which is

elevated north of McCoys Creek to the entrance to the facility.

Ms. Kerr also admitted that there were other entrances to

Interstate I-10, west of McCoys Creek, besides the planned

entrance from McDuff. Ms. Kerr admitted that the facility did

not cause the flooding and would not affect the flooding that had

been occurring. She also agreed that the flooding was not caused

by Kimmins or its predecessors operating a facility on Stockton

Street.

114. The preponderance of the evidence indicates that any

flooding of McCoys Creek would not adversely impact the

operations of the facility and that the operation of the facility

is not likely to contaminate McCoys Creek as long as Kimmins

maintains the facility in the manner presented in this

proceeding. See also Findings of Fact 45-68.

Kimmins' Compliance Program

115. The facility is configured in such a way that it could

be operated in compliance with the Department's rules and that

Kimmins would be able to operate the facility in such a way as to

meet the appropriate requirements.

116. Waste Management, under Mr. Mathes' direction,

operates Trail Ridge Landfill under contract for the City of

Jacksonville. The same type of environmental compliance that

Waste Management utilizes at that landfill would be applied to

the proposed transfer station. Even the City's representative

admitted that his experience with Waste Management's operation at

Trail Ridge Landfill has been satisfactory. The Landfill Gas

management that Mr. Pearson was not satisfied with has not been

owned by Waste Management for more than three (3) years.

117. Additionally, Kimmins is now a Waste Management entity

and would be subject to the Waste Management compliance program

headed by Ms. McCreedy in Florida. That compliance program, puts

the responsibility on the district manager (in this case Mr.

Mathes) for overseeing the facility. Nevertheless, Ms. McCreedy

reviews permits periodically to ensure that a facility operates

in compliance with the permit through site inspections and

periodic review of permit applications, operating records and any

applicable maintenance records. There is also a compliance

assurance system creating a database of permits, permit

conditions and periodic recording responsibilities that she is

responsible for reviewing, along with the district managers. Her

experience in Florida in compliance includes overseeing thirteen

(13) solid waste transfer stations and this compliance

responsibility would extend to the Stockton Street facility if it

is permitted.

118. With a newly-permitted facility there is a start-up

procedure that would include putting operating permit

requirements into the compliance database, ensuring that

operators are properly trained and that personnel have received

training on specific operation plans within the permit

application, all of which would be reviewed periodically. With

respect to the Stockton Street facility she did not see any

proposed practices or contingencies that would create compliance

problems.

119. In addition to the submission of the Notice for the

General Permit, there would be additional steps taken before

operations could occur, i.e. , detailed construction plans and

specifications, overseeing of construction by an engineer,

preparation of as-built drawings and certification by an engineer

that construction has been done in compliance with the General

Permit, with the as-built drawings and certification being

submitted and accepted by the Department prior to operations

beginning.

120. Additionally, other permits would be required that if

not obtained, would preclude the facility from becoming

operational, including the City of Jacksonville's certificate of

need permitting procedure.

Kimmins' Experience

121. The witnesses presented by the City objecting to the

proposed transfer station have no experience or familiarity with

transfer station operations. Mr. Pearson has never obtained a

permit for, operated, or managed a transfer station.

122. His familiarity with transfer stations consists

primarily of visiting three (3) facilities in northeast Florida,

none of which were controlled by Waste Management. With respect

to the two (2) stations handling MSW, he was not aware of the

procedures they use to control vermin and odors, and conceded

that facilities in relatively rural locations (as those stations

were) might have different procedures for controlling odor and

vermin than one located on Stockton Street, and agreed that he

had not reviewed the permits for those stations and thus has no

idea what DEP was told as to how they would operate.

123. Ms. Kerr has never visited an operating transfer

station, and her only information is derived from speaking to

people from Marietta where there were problems with a transfer

station where procedures were not followed, and the problems were

the result of the failure to follow procedures.

124. In contrast, the witnesses supporting the proposed

transfer station have substantial experience with the permitting

and operation of solid waste transfer stations.

125. Mr. Gauntt, who prepared the engineering plan for the

Notice of Intent to Use, has designed and permitted transfer

stations in a number of states, including Florida, and was

accepted as an expert in solid waste transfer station design and

permitting.

126. Mr. Mathes is an expert in solid waste management and

has visited a number of operating Waste Management transfer

stations.

127. Ms. Clem, accepted without objection as an expert in

solid waste management design and permitting and stormwater

design and permitting, has had experience in reviewing solid

waste transfer station permits when she was with the Department

and is familiar with the permitting requirements for such

transfer stations.

128. Ms. McCreedy, accepted without objection as an expert

in solid waste facility siting and permitting, permit compliance

and solid waste management has been involved with the above-

described compliance program for Waste Management's transfer

stations within the State of Florida.

129. Ms. Nogas is a solid waste section supervisor for the

Northeast District Office for the Department and in that capacity

is responsible for permit review for all solid waste permits and

has been since 1989.

130. Those supporting the proposed transfer station and

testifying as to its compliance with the requirements of the

General Permit and its ability to operate in compliance with

those requirements have extensive experience with solid waste

transfer stations, while those who would suggest that there may

be problems in operating a solid waste transfer station,

particularly one proximate to a residential neighborhood, totally

lack such experience and expertise.

CONCLUSIONS OF LAW

131. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

proceeding pursuant to Sections 120.569 and 120.57(1), Florida

Statutes.

132. The City, by stipulation, has standing to bring this

proceeding to challenge Kimmins' proposed use of the General

Permit.

133. Section 403.814(1), Florida Statutes, authorizes the

Department "to adopt rules establishing and providing for a

program of general permits under chapter 253 and this chapter for

projects, which have, either singly or cumulatively, a minimal

adverse environmental effect. Such rules shall specify design or

performance criteria which, if applied, would result in

compliance with appropriate standards adopted by the commission.

Except as provided for in subsection (3), any person complying

with the requirements of a general permit may use the permit 30

days after giving notice to the department without any agency

action by the department."

134. General permits, including the one at issue in this

proceeding, are not "issued" by the Department. General permits

are established by rule adoption and the rule, itself is the

general permit. The Department in Safe Harbor Enterprises, Inc.

v. Robbie's Safe Harbor Marine Enterprises, Inc. and Department

of Environmental Protection , DOAH Case Number 98-3695, 1999 WL

402501, *4 n.1 (Fla. Dept. Env. Prot. March 12, 1999) stated:

Unlike other types of permits, general

permits . . . are not "issued" by the

Department. General permits are established

by rule adoption and the rule, itself, is the

general permit. See, e.g., Rule 62-

701.801(1), F.A.C. A general permit rule

authorizes persons to undertake an activity

if: (a) the activity comes within the

parameters of and complies with the criteria

and conditions of the rule establishing the

general permit; (b) the person submits to the

Department a notice of intent to conduct

activities under the authorization of the

general permit rule with required supporting

documents 30 days prior to conducting such

activities; and (c) the Department does not

take agency action within the 30-day period

determining that the proposed activities are

not authorized by the general permit rules

relied upon by the persons giving notice.

See § 403.814(1), F.S.; Rule 62-4.530, F.A.C.

135. The parties stipulated that Section 403.814, Florida

Statutes, and Rules 62-4.510 through 62-4.540, 62-701.300, and

62-701.801, Florida Administrative Code, are applicable in this

proceeding. (The issues regarding disputed statutes and

regulations will be addressed below.)

136. Pursuant to Section 403.814, Florida Statutes, the

Department promulgated a specific rule allowing the use of a

general permit to construct and operate a solid waste transfer

station (the General Permit). See Rule 62-701.801, Florida

Administrative Code (repealed May 27, 2001). 1

137. The design and operation of the proposed solid waste

transfer station comes within the ambit of the General Permit.

Kimmins filed a Notice of Intent to Use the General Permit and

published the requisite notice. The Department, in accordance

with Section 403.814, Florida Statutes, did not take agency

action determining the proposed activities were not authorized.

Instead, the Department sent Kimmins a letter noting that it did

not object to Kimmins' proposed use of the General Permit for the

proposed solid waste transfer station, provided that the site was

constructed and maintained in accordance with several additional

requirements.

138. Kimmins, as the applicant, has the burden of proving

entitlement to the General Permit. Department of Transportation

v. J.W.C. Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

However, as noted in City of Newberry v. Watson Construction

Company, Inc. and State of Florida, Department of Environmental

Protection, et. al. , DOAH Case Nos. 95-0752 and 95-0753 (DEP

Final Order Dec. 19, 1996), the initial burden is to present

evidence of compliance with the applicable specific rules and not

"evidence of compliance with every other Department standard or

rule which might possibly be impacted by a proposed facility."

The burden then shifts to the objector, here the City, to

demonstrate that the party, here Kimmins, seeking to use the

general permit, is not likely to comply with these specific rules

or is not likely to comply with air or water quality standards.

As will be discussed below, Kimmins has met its burden of proof,

while the City has failed to demonstrate that Kimmins is not

likely to comply with the rules at issue or with applicable air

or water quality standards.

139. Given the submission of a Notice of Intent to Use that

meets the minimum requirements of Rule 62-701.801, Florida

Administrative Code, the City's challenge to Kimmins’ use of the

General Permit allows any additional information necessary to

provide reasonable assurance of compliance to be properly

provided by Kimmins at hearing in this de novo proceeding.

Hamilton County Board of County Commissioners v. State Department

of Environmental Regulation , 587 So. 2d 1378, 1387 (Fla. 1st DCA

1991).

140. Rule 62-4.070, Florida Administrative Code, which

requires applicants for a permit to demonstrate certain

"reasonable assurances," does not implement Section 403.814,

Florida Statutes, and is not otherwise applicable in this

proceeding. Part I of Rule 62-4 deals with the issuance or

denial of permits generally, whereas general permits are governed

by Part III of Rule 62-4. Compare Rule 62-4.001, Florida

Administrative Code with Rule 62-4.510, Florida Administrative

Code. Moreover, as noted above, a general permit is not "issued"

and there is no "application" in a general permit process. See

Safe Harbor Enterprises, Inc. , 1999 WL 402501, *4 n. 1. While

the right to use a general permit may be denied by the

Department, the general permit itself is not denied. Rule 62-

4.070 is not intended to, nor does it, apply to general permits.

141. The City claims that Chapter 403, Part IV, Florida

Statutes, is applicable in this proceeding. Part IV of Chapter

403 consists of Sections 403.702 through 403.7895, which pertain

generally to the subject of resource recovery and management.

However, to claim that all of Part IV should be applicable is not

appropriate as Part IV deals with such topics as waste tire and

lead-acid battery requirements (Section 403.717), toxics in

packaging (Section 403.7191), used oil disposal (Section

403.751), compost standards (Section 403.7043), and waste-to-

energy facilities (Section 403.7061). None of those sections are

applicable to solid waste transfer stations. The City could have

specified particular sections within Chapter 403, Part IV, as

being applicable to this proceeding, but chose not to do so. Its

claim that Part IV in its entirety should be applicable is not

availing.

142. The City also argues that Section 403.021(8), Florida

Statutes, is applicable to this proceeding. 2 The City focused

particularly on the last sentence of Subsection (8), which

provides: "Furthermore, in reviewing applications for permits,

the department shall consider the total well-being of the public

and shall not consider solely the ambient pollution standards

when exercising its powers, if there may be danger of a public

health hazard."

143. This provision is not applicable for at least two

reasons. First, it applies only when the Department is

"reviewing applications for permits." As previously noted

general permits are issued by rule and there is no "application"

for general permit, but rather a notification of intent to use.

Second, this subsection has no applicability unless and until a

determination has been made that "there may be a danger of a

public health hazard" and there was no evidence presented

establishing a public health hazard would ensue from the

operation of the proposed transfer station. The City has not

referenced any other subsections of 403.021, nor presented

evidence to show that those subsections apply in this proceeding.

144. Rule 701.300(2)(g), Florida Administrative Code,

prohibits the storage of waste within 200 feet of a water body.

By stipulation, the building for the proposed facility is more

than 200 feet from McCoys Creek and all activities including

storage are to take place within the building. Therefore, Rule

62-701.300(2)(g), Florida Administrative Code, is inapplicable.

145. Rule 62-701.801(1), Florida Administrative Code,

refers to Rules 62-4.540 and 62-701.300 (which has already been

discussed). See footnote 1. Under Rule 62-4.540(4), Florida

Administrative Code, a general permit does not permit operation

of the permitted activities when it, among other things, "causes

harm or injury to human health or welfare; causes harm to animal,

plant or aquatic life . . . or cause[s] pollution in

contravention of Florida Statutes and Department rules." A

preponderance of the evidence indicates that this Rule would not

be violated with respect to McCoys Creek or in any other manner.

Kimmins presented substantial evidence that the facility will

have in place a stormwater management system that would prevent

contamination of McCoys Creek.

146. There are no specific applicable air quality standards

referenced under Rule 62-4.530(2), Florida Administrative Code.

However, this subsection provides that: "A proposed project which

may be reasonably expected to violate air quality standards,

water quality standards, or drinking water standards or which

will not meet the public interest requirements set forth in

Chapter 403, F.S., shall not be entitled to use of a general

permit."

147. Rule 62-4.530(2) would seem to require that the party

challenging the proposed use of a general permit must make some

showing of a reasonable expectation that one of the prohibited

actions would occur. To read the rule otherwise would be to

require an entity proposing to use a general permit to prove a

negative. Final orders of the Department, however, in cases

involving geotechnical problems or existing odor problems, have

tended to blur this distinction and suggest that an entity

proposing to use a general permit provide "reasonable assurances"

that it will abide by relevant Department rules and standards

before it is permitted to operate. See , e.g. , Edwards v.

Department of Environmental Protection and Southwest Land

Developers, Inc. , DOAH Case Nos. 95-3712-14, 1995 WL 1053214, *10

(DEP Final Order Feb. 12, 1996) and City of Newberry , supra . The

problems faced by the parties seeking to use a general permit in

those cases do not exist with respect to Kimmins’ proposed use of

the General Permit.

148. The City failed to provide sufficient evidence that

the proposed transfer station "may be reasonably expected" to

violate any air, water or drinking water standards, as noted in

Rule 62-4.530(2), Florida Administrative Code.

149. To the extent that standards with respect to odors or

dust might be applicable, Kimmins presented a variety of methods

that could be reasonably expected to prevent both odors or dust

from becoming a problem.

150. Contrary to the City's assertion, Rule 62-296.320,

Florida Administrative Code, is also not applicable to

determining Kimmins' eligibility to use the General Permit.

151. Even if Rule 62-296.320, Florida Administrative Code,

with its prohibition of "objectionable odors" applies, the steps

that Kimmins is proposing to take to prevent odors from occurring

are such that the rule would not be violated. Under the

standards established in Rule 62-296.300(4)(c), Florida

Administrative Code, a violation does not occur simply because an

emission of unconfined particulates occur. The facility operator

must also have failed to take reasonable precautions to prevent

the emissions. Thus, for the City to demonstrate there is a

reasonable expectation that the unconfined particulate standard

will be violated, it must not only show that such emissions will

occur, but that Kimmins has not proposed and will not take

reasonable precautions against the emission. The City has failed

to make such a demonstration.

152. Rule 62-296.320(2) pertains to "objectionable odors."

This term is defined in Rule 62-210.200(181), Florida

Administrative Code, as "[a ]ny odor present in the outdoor

atmosphere which by itself or in connection with other odors, is

or may be harmful or injurious to human health or welfare, which

unreasonably interferes with the comfortable use and enjoyment of

life or property, or which creates a nuisance." Under this

standard, the City must demonstrate there is a reasonable

expectation that the proposed transfer station will create odors

so strong, intense or noxious that they are legally classified as

"objectionable odors" according to this definition. To do so,

the City would have to demonstrate either a reasonable

expectation that the chemical constituents and concentration of

any odors is or may be injurious or harmful to human health or

welfare or would have to show a reasonable expectation that the

nature, strength, frequency and duration of any odors will

unreasonably interfere with the comfortable use and enjoyment of

the life or property of the neighbors or create a nuisance. The

City has failed to make such a demonstration.

153. The other portion of Rule 62-4.530(2), Florida

Administrative Code, referred to above, deals with projects which

"will not meet the public interest requirements set forth in

Chapter 403, F.S." The City cites to Section 403.021(8), Florida

Statutes, in support of its public interest argument, see , e.g. ,

City's Memorandum of Law, page 5, which is not applicable for the

reasons stated herein. Nevertheless, the proposed transfer

station is expected to reduce overall air emissions due to fewer

truck trips to the landfill. While air emissions in the

immediate vicinity of the transfer station might increase, it was

not shown that the surrounding neighborhood as a whole would be

adversely affected, as the trucks using the transfer station

would in all likelihood otherwise be traversing Interstate I-10,

which is within one-half mile of the transfer station facility.

Finally, the economic benefits of a transfer station would be

available to the City of Jacksonville and its taxpayers to some

degree. While these are not issues directly addressed by the

public interest requirements of Rule 62-4.530(2), Florida

Administrative Code, they demonstrate, that in the aggregate, the

proposed transfer station would have benefits to the public.

154. The evidence shows that Kimmins has met the

requirements of Rule 62-701.801(2)(c) 2., 3., 5., and (3)(b),

Florida Administrative Code, dealing with machinery and

equipment, the transfer plan, staffing, and ventilation,

respectively.

155. The drainage/ leachate control system was well

described and, along with the stormwater management system for

the facility, was shown to be sufficient to appropriately deal

with leachate and keep stormwater out of the facility. Kimmins

complies with the requirements of Rule 62-701.801(2)(c) 4.,

Florida Administrative Code.

156. The leachate control system was designed to be more

than adequate to handle the quantity of leachate anticipated and,

through its connection to the sanitary sewer system, will provide

adequate treatment and preclude discharge. The design of the

facility will also meet all reasonable assurances that may be

necessary that leachate will not mix with stormwater. Kimmins

complies with the requirements of Rule 62-701.801(3)(c), Florida

Administrative Code.

157. The requirements of Rule 62-701.801(4)(a), Florida

Administrative Code, that unauthorized waste not be accepted and

that a plan for handling unauthorized waste be addressed, are

again satisfied. The Notice of Intent, as well as the testimony

of Mr. Mathes, makes clear that both unauthorized and prohibited

waste would not be accepted and that contingency plans would be

in place and would be more than adequate to handle any

unauthorized waste that did find its way to the proposed transfer

station.

158. The control of litter, inspects, odor, and vectors to

prevent sanitary nuisance and unsightly appearance, as required

under Rule 62-701.801(4)(c), Florida Administrative Code, was

discussed in some detail. Kimmins has considered these issues

and has proposed methods that meet any requirement of "reasonable

assurance" or "reasonable expectation" that such problems would

not occur at the proposed facility.

159. The requirements of Rule 62-701.801(4)(d), Florida

Administrative Code, regarding waste handling and cleaning, are

met. Waste will be handled on a "first-in, first-out basis to

the extent practicable." The necessary cleaning as required by

the rule and the drainage into sanitary sewers or the equivalent

was more than amply demonstrated by Kimmins.

160. Furthermore, as noted in the Findings of Fact 104-114,

the City's primary objection to the proposed transfer station was

that it is to be located too close to a residential neighborhood

because of the anticipated odor, noise, and pests anticipated

from the transfer station's operations. The concerns regarding,

odor, noise, pests, as well as any potential contamination of

McCoys Creek, have been adequately addressed by Kimmins.

Additionally, there were a number of examples presented by

several witnesses showing that solid waste transfer stations

exist, in similar proximity to residential areas as the Stockton

Street facility, and have been operated without complaints from

their neighbors.

161. Kimmins has provided "reasonable assurances" that it

meets the requirements to use the General Permit in light of the

evidence presented as to the design and operation of the transfer

station and the fairly sophisticated waste management compliance

program that would be available to the Stockton Street transfer

station.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a Final Order be entered finding that

Kimmins' proposed Stockton Street solid waste transfer station

qualifies for the General Permit.

DONE AND ENTERED this 6th day of September, 2001, in

Tallahassee, Leon County, Florida.

____________________________

CHARLES A. STAMPELOS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

850) 488-9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of September, 2001.

ENDNOTES

1 / Rule 62.701.801(1), Florida Administrative Code, provides:

"General Permit: A general permit is hereby granted to any person

for the construction and operation of a solid waste transfer

station that has been designed or will be operated in accordance

with the standards and criteria set forth in Rules 62-540 and 62-

701.300, F.A.C. and this section."

2 / Section 403.021(8), Florida Statutes: "The Legislature further

finds and declares that the public health, welfare, and safety

may be affected by disease-carrying vectors and pests . . ..

Furthermore, in reviewing applications for permits, the

department shall consider the total well-being of the public and

shall not consider solely the ambient pollution standards when

exercising its powers, if there may be a danger of a public

health hazard."

COPIES FURNISHED:

Gregory K. Radlinski, Esquire

Assistant General Counsel

City of Jacksonville

City Hall at St. James, Suite 480

117 West Duvall Street

Jacksonville, Florida 32202

Peter L. Breton, Esquire

Thomas A. Sheehan, III, Esquire

Moyle, Flanigan, Katz, Raymond

& Sheehan, P.A.

625 North Flagler Drive, Ninth Floor

Post Office Box 3888

West Palm Beach, Florida 33402-3888

W. Douglas Beason, Esquire

Assistant General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35

Tallahassee, Florida 32399-3000

Kathy C. Carter, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

Teri L. Donaldson, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

David B. Struhs, Secretary

Department of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.