08-004546 Kate Wright; Esteban Moriyon; Joehe Hill; Jimmy Walker; Et Al. vs. Tla-Cambridge, Llc, And Miami-Dade County Department Of Environmental Resources Management Status: Closed Recommended Order on Wednesday, April 1, 2009.

Summary: Respondent permit applicant proved reasonable assurance that the project will be built and operated within standards of cited rules and statute. Petitioner failed to adduce preponderant evidence that the facility will cause violations of relevant rules.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KATE WRIGHT, ESTEBAN MORIYON, )

JOETTE HILL, AND JIMMY WALKER, )

)

Petitioners, )

)

vs. ) Case No. 08-4546

)

MIAMI-DADE COUNTY DEPARTMENT OF ENVIRONMENTAL RESOURCES )

MANAGEMENT, AND TLA-CAMBRIDGE, )

LLC, ) )

)

)

Respondents. )

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal proceeding

and hearing before P. Michael Ruff, a duly-designated

Administrative Law Judge of the Division of Administrative

Hearings. A formal hearing was conducted on January 21 and 22,

2009, in Miami, Florida. The appearances were as follows:

APPEARANCES

For Petitioners: John J. Quick, Esquire

Michelle D. Vos, Esquire

Weiss Serota Helfman Pastoriza

Cole & Boniske, P.L.

525 Ponce de Leon Boulevard, Suite 700

Coral Gables, Florida 33134

For Respondent Miami-Dade County Department of

Environmental Resources Management:

Peter S. Tell, Esquire

Assistant County Attorney

Miami-Dade County

111 Northwest 1st Street, Suite 2810

Miami, Florida 33128

For Respondent TLA-Cambridge, LLC:

David S. Dee, Esquire

Young Van Assenderp, P.A.

225 South Adams Street, Suite 200

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns

whether a permit should be issued, pursuant to Florida

Administrative Code Chapter 62-701, Florida Administrative Code,

authorizing TLA-Cambridge, LLC (“Cambridge”), to construct and

(“site”) located in Miami-Dade County, Florida.

PRELIMINARY STATEMENT

On January 4, 2008, Cambridge filed an application for a

Permit with the Miami-Dade County Department of Environmental

Resources Management (DERM). On August 18, 2008, DERM gave

notice of its intent to approve the application (draft permit).

On September 4, 2008, 18 Petitioners filed a petition

challenging DERM’s proposed agency action. Subsequently, 15

Petitioners voluntarily dismissed their claims and were

dismissed from this proceeding. Only three Petitioners remain

as parties.

The Petition was transmitted to the Division of

Administrative Hearings. On September 29, 2008, Cambridge filed

a motion to strike certain immaterial and irrelevant allegations

in the Petition. On October 14, 2008, the Administrative Law

Judge (ALJ) (Bram D.E. Canter) issued an order granting the

motion and striking allegations concerning: land use and zoning

issues; whether the Facility required an air general permit;

truck traffic; and noise. The case subsequently was transferred

to the undersigned ALJ on October 3, 2008, and an Order of Pre-

hearing Instructions was entered. On December 2, 2008,

Cambridge filed a Motion in Limine concerning the Petitioners’

allegations about the public interest. A discovery dispute also

engendered a Motion to Compel by the Respondent and an Order was

entered on December 16, 2008, granting it and imposing an

additional discovery schedule. On January 7, 2009, the ALJ

issued an order granting Cambridge’s Motion in Limine.

On January 21 and 22, 2009, a formal administrative hearing

was conducted pursuant to Sections 120.569 and 120.57(1),

Florida Statutes. At the hearing, Cambridge called four expert

witnesses: Leonard Enriquez (accepted as an expert concerning

the planning, development, and implementation of solid waste

management facilities, including transfer stations); Kenneth

Cargill (accepted as an expert concerning the design,

construction, operation, and permitting of solid waste

management facilities); David Buff (accepted as an expert

concerning air pollution issues); and Hardeep Anand (accepted as

an expert concerning solid waste management issues, including

the procedures used by the Florida Department of Environmental

Protection (DEP) when evaluating applications for a solid waste

permit pursuant to Florida Administrative Code Chapter 62-701).

Cambridge introduced 65 exhibits into evidence (Exhibits 1-52,

56A and 56B, 59, 63-65, and 67-73). DERM did not call any

witnesses or introduce any exhibits. The Petitioners presented

the testimony of the three Petitioners and one expert witness,

Joseph Fluet (accepted as an expert in the design of solid waste

facilities, the permitting process for solid waste facilities,

and the analysis, application, and interpretation of applicable

DEP rules). The Petitioners introduced 11 exhibits (Exhibits 1-

6, 9, 19, and 22-24). With regard to all of the exhibits

admitted by Petitioners and Cambridge, the parties stipulated to

the authenticity of the exhibits, and further stipulated that

the exhibits were admitted into evidence pursuant to exceptions

to the hearsay rule, without the necessity of calling witnesses

to establish the foundation for the hearsay exception.

Upon conclusion of the hearing, the parties ordered a

transcript of the proceeding, which was filed on February 2,

2009. The parties filed timely Proposed Recommended Orders on

February 23, 2009. The Proposed Recommended Orders have been

considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioners (Kate Wright, Joette Hill, and Jimmy

Walker) are individuals who live in Miami-Dade County. The

Respondent, DERM, is a division of Miami-Dade County. The

Respondent, Cambridge, is a limited liability company authorized

to do business in Florida.

2. On January 4, 2008, Cambridge filed an application with

DERM pursuant to Florida Administrative Code Rule 62-701.710,

for the Permit authorizing the construction and operation of the

facility. Cambridge’s application was reviewed by DERM pursuant

to an agreement (“Operating Agreement”) that delegates certain

authority from DEP to Miami-Dade County. The Operating

Agreement requires DERM to follow DEP’s rules and procedures

when determining whether to issue a permit for a waste

processing facility. On August 18, 2008, DERM issued its

("Intent to Issue") the Permit to Cambridge.

The Site

3. Cambridge intends to construct and operate the facility

on a site that is approximately 5.7 acres in size and located at

3250 N.W. 65th Street, in unincorporated Miami-Dade County,

Florida. The site is owned by Florida East Coast Railway L.L.C.

(“FEC”). Cambridge has entered into a 20-year lease agreement

with FEC that authorizes Cambridge to use the site for the

proposed facility.

4. The site is located in an industrial warehouse

district. Warehouses are adjacent to the north, south, and west

sides of the site. The warehouses are served by trucks and

railcars. A railroad track is adjacent to, and enters the south

end of the site. Other warehouses, rail yards, and railroad

tracks are located west of the site. The industrial district

extends north, south, and west of the site.

5. The eastern side of the site is bounded by N.W. 32nd

Avenue, a four-lane road that runs in a north-south direction.

Across the street from the site, on the east side of N.W. 32nd

Avenue, is a business district. Even farther to the east is a

residential area where the Petitioners live.

6. The site previously was paved with asphalt and enclosed

with a chain-link fence. An old gatehouse is located at the

entrance to the site, where N.W. 65th Street dead-ends into the

site.

The Facility

7. Cambridge intends to construct: (a) a one-story

building (“transfer station”) that will be used to receive and

story office building; (c) a weigh station for weighing trucks;

(d) extensions of the existing railroad tracks; and (d) a new

railroad track that will pass through the transfer station.

Cambridge also will renovate the gatehouse. The existing

pavement on the site will remain intact, except where the new

improvements will be located. The chain-link fence will be

retained and enhanced to restrict access to the siteees and

shrubs will be planted along N.W. 65th Street and N.W. 32nd

Avenue to screen the public’s view of the facility and to help

alleviate airborne dust.

8. The Transfer Station will be approximately 30,000

square feet in size. It will have a roof, 4 walls, and a

concrete floor that is 10 inches thick. The north side of the

transfer Station will have 10 bay doors to allow access for

trucks and one smaller utility door. There also will be one

door on the southeast side and one door on the west side of the

Transfer Station to allow railcars to move through the building.

Proposed Operations

9. C&D debris is the material that is generated when a

building is constructed, renovated, or demolished. C&D debris

includes concrete, lumber, wallboard, asphalt shingles, metal

pipes, glass, plastic, and similar materials. Other types of

solid waste cannot be accepted by the facility; they are

prohibited by the Draft Permit.

10. Cambridge’s customers will deliver C&D debris to the

facility in trucks. The trucks will approach the facility from

the west (i.e., the industrial district) on Northwest 65th

Street and they will enter the site at the gatehouse. There

will be no access to the site from Northwest 32nd Avenue.

11. A trained attendant will perform a preliminary visual

inspection of the trucks and interview the truck drivers at the

gatehouse to determine whether the trucks are carrying C&D

debris. If the gatehouse attendant determines that the truck is

hauling garbage or other types of solid waste that cannot be

accepted at the Transfer Station, the truck will be denied

access to the site.

12. Upon entering the site, some trucks will be weighed on

the truck scales and then directed to the transfer station.

Trucks that do not require weighing will proceed directly to the

transfer station. A Cambridge employee will direct the truck to

an appropriate bay door for entry into the transfer station.

The truck then will back up an inclined grade into the transfer

station, the tarpaulin (tarp) will be removed from the truck’s

load, and the truck will dump the load onto the floor (i.e.,

processing of C&D debris will only occur inside the transfer

station.

13. Cambridge will employ trained spotters and operators

to process the C&D debris. DEP’s rules require that at least

one spotter and one operator must be present whenever C&D debris

is received at the facility. By comparison, Cambridge typically

will have 4 to 6 spotters present whenever the facility is

receiving C&D debris.

14. Cambridge employees will spread the load on the

tipping floor with mobile equipment and then determine how the

load should be processed. “All incoming C&D debris shall be

tipped, processed and stored entirely under roof in the enclosed

building . . . and . . . evaluated through visual inspection by

trained spotter(s) for any unacceptable solid waste (e.g.,

furniture, tires, etc.) or prohibited wastes (e.g., garbage,

treated or painted wood, hazardous wastes, etc.)” in compliance

with the Draft Permit. Unacceptable and prohibited wastes will

be removed from the C&D debris and placed in separate containers

(e.g., metal dumpsters), which will be removed from the site and

taken to appropriate disposal facilities. Dense non-recyclable

material (e.g., asphalt shingles) will be moved to an area on

the tipping floor where it will be loaded directly into a

railcar for transportation to a disposal site. Potentially

recyclable material will be processed in a shredder, which will

reduce the material to a size of approximately 12-inches by 12-

inches. After the material is shredded, smaller pieces will be

removed from the C&D debris with a mechanical screen and placed

in a bunker with non-recyclable material. The remaining, larger

materials will be placed on a conveyor belt. Recyclable

materials (e.g., aluminum, copper, ferrous metal, clean lumber)

will be removed from the conveyor by hand, placed in separate

bunkers, and then hauled off-site and sold to recycling

facilities. Materials that are not removed from the conveyor

will be placed in a bunker with other non-recyclable materials.

If necessary, Cambridge employees will drive a compactor over

the non-recyclable materials to reduce the size and increase the

density of the material. The non-recyclable materials will then

be loaded into railcars inside the transfer station.

15. The facility is designed to process C&D debris at a

rate of 100 tons per hour, which equates to 1,000 tons

(approximately 4,000 cubic yards) during a 10-hour operating

day. The Draft Permit prohibits Cambridge from accepting more

than 4,000 cubic yards per day.

16. The facility has the capacity to process all of the

C&D debris on the same day that it is delivered to the facility,

so that the tipping floor can be empty at the end of each day.

The Draft Permit requires Cambridge to process all of the C&D

debris within 48 hours after it is delivered to the facility. .

17. Recyclable and non-recyclable materials will be

removed from the site quickly. Each container of recyclable

material will be removed from the site when the container is

filled, which typically will occur several times each week.

When a railcar is filled with non-recyclable material, the

railcar will be removed from the transfer station and staged on

a railroad track on the south end of the site. The filled

railcars will be removed from the site by FEC on a daily basis,

Monday through Friday.

18. The railcars will be taken to a landfill in Alabama

where the C&D debris will be disposed. If rail service to the

facility is interrupted and cannot be resumed in a timely

manner, any railcars that are staged on the site will be taken

back inside the transfer station. Cambridge will unload the

cars and arrange for the C&D debris to be shipped by truck to an

appropriate disposal facility. Under such circumstances,

Cambridge will stop receiving C&D debris at the facility until

rail service is resumed.

19. Cambridge expects to recycle at least 9% of the C&D

debris and hopes to recycle as much as 30%. The exact amount of

material that will be recycled will depend on market conditions—

i.e., whether there is a viable market for the materials in the

C&D debris.

Garbage

20. The facility will receive only “de minimis” amounts of

garbage as essentially accidental, very minor contents of loads

of C&D debris. Cambridge’s gatehouse attendant and spotters

will reject any truck that contains identifiable quantities of

garbage. Nonetheless, a bag or small quantity of garbage may be

hidden in a load of C&D debris that is dumped onto the tipping

floor. If that occurs, the garbage will be removed from the C&D

debris and placed in an enclosed container inside the transfer

station. If garbage is mixed with a load of C&D debris on the

tipping floor, the affected part of the load will be placed in

an enclosed container. The garbage will be taken off-site for

disposal, as quickly as necessary to ensure that the garbage

does not generate objectionable odors. In all cases, Cambridge

must remove the garbage (“Class I waste”) from the site within

48 hours, in compliance with the Draft Permit and related rules.

Odors

21. The facility will not cause objectionable odors in any

off-Site areas because the C&D debris, recyclable materials, and

non-recyclable materials received at the facility will not

generate objectionable odors. Incidental garbage could be a

potential source of objectionable odors, but garbage is

prohibited at the facility, the facility will receive very

little garbage, and Cambridge’s plan to segregate and quickly

remove garbage will ensure that objectionable odors are not

created inside the transfer station. In the unlikely event that

objectionable odors occur outside of the transfer station,

Cambridge will use a deodorizing or odor-neutralizing agent to

treat any odorous portions of the tipping floor. If necessary,

Cambridge also will use the "DustBoss," water-misting machines

to spray odor control agents throughout the transfer station.

The Petitioners’ expert witness, Joseph Fluet, agreed that

Cambridge’s odor control plan, as described in the Respondent's

testimony by Mr. Enriquez, would be adequate, if implemented.

This is in addition to the operational plan proposed to DERMA

and should be required to be implemented as a permit condition.

Vectors

22. The facility is not expected to attract rats, bugs, or

other disease-carrying vectors because C&D debris is not a food

source for vectors. Nonetheless, Cambridge will hire a

professional pest control firm to take all necessary measures to

control vectors on the site. These measures, combined with the

other components of Cambridge’s operations plan, will control

disease-carrying vectors on the site and thus ensure that the

facility does not pose a public health hazard.

Dust

23. The Draft Permit provides that “dust resulting from

the processing operation is not allowed beyond the property

system shall be utilized to eliminate dust throughout the

storage and working areas [inside the transfer station].”

Cambridge will comply with these requirements by implementing a

comprehensive dust control program at the facility.

Dust Control Inside the Transfer Station

24. The transfer station is fully enclosed on four sides

and thus it can effectively control any dust that is generated

by the activities conducted inside the transfer station. In

order to minimize the potential for dust to escape from the

transfer station, Cambridge will: (a) keep all of the transfer

station’s doors closed at night and when the facility is not

operating; (b) minimize the number of doors open during

operations; and (c) require its staff to be judicious when

deciding whether to open doors, and to give due regard to wind

direction and velocity. Only three bay doors will be open

during normal conditions when the facility is receiving and

processing its maximum C&D volume of 1,000 tons per day (i.e.,

an average of approximately 15 trucks per hour). Fewer doors

will be open when there are fewer delivery trucks or the wind

hinders Cambridge’s ability to control the dust generated inside

the facility.

25. Cambridge will use two "DustBoss" machines to

eliminate dust generated inside the transfer station. The

DustBoss machines will spray a fine mist (fog) of water, which

will physically impact and knock-down the dust in the air. The

DustBoss machines will be deployed inside the transfer station,

near the bay doors, but they can be moved within the building to

where they are most effective. The DustBoss machines are fully

adjustable--they can oscillate automatically or be directed

toward a specific location where dust is being generated. The

amount of mist generated by the DustBoss can be increased or

reduced, as necessary. Each DustBoss machine is designed to

blow mist up to 200 feet and control dust in an area up to

20,000 square feet. The two DustBoss machines in the transfer

station will have the combined capacity to control dust in an

area of approximately 40,000 square feet, which is substantially

more capacity than is needed in the transfer station (30,000

square feet).

Dust Control Outside Of The Transfer Station

26. In order to minimize the potential for dust outside of

the transfer station, Cambridge normally will require a hauler

to keep its load of C&D debris covered with a tarp until the

hauler’s truck is completely inside the transfer station.

Cambridge may allow a hauler to remove its tarp immediately

before the hauler’s truck enters the transfer station, but this

will only occur if there are trucks waiting to enter and the

winds are calm. The removal of a tarp, by itself, will not

release a significant amount of dust because any dust that may

have been on the tarp at a job site will be blown off while the

truck is driving to the facility.

27. To further minimize the potential for dust, Cambridge

will use a piece of mobile equipment to collect and remove dust

from the pavement outside of the building. This mobile

equipment will be fitted with a moist broom and a water tank,

thus allowing it to function like a street sweeper. Cambridge

will use this equipment as often as necessary to control dust

outside the transfer station. Mr. Fluet, the Petitioner's

expert, agreed that using a "moist broom" to remove soil and mud

on the site “would deal with virtually all the issues”

concerning the control of dust outside the transfer station.

Dust From Railcars

28. Railcars will enter and leave the transfer station

through two doors. These doors normally will be open only when

Cambridge is bringing railcars into the building for loading or

taking them outside after they are filled. The DustBoss misting

system will prevent dust from escaping out of these railroad

doors.

29. The C&D debris will not be loaded above the sides of

the railcars and thus will not be exposed to the wind when the

railcars are taken outside the transfer station. In addition,

the filled railcars will be covered with a mesh tarp before they

are taken outside. The mesh tarp will prevent dust from blowing

out of the railcars while they are staged on the railroad track

next to the transfer station.

The Ventilation System

30. The transfer station will be equipped with an

emergency ventilation system to prevent the build-up of carbon

monoxide (“CO”) or nitrogen dioxide (“NO 2 ”) on the tipping floor.

The ventilation system will discharge CO and NO 2 through exhaust

fans located approximately 30 feet above the tipping floor on

the north wall of the transfer station. Fresh air will be drawn

into the building through louvers located approximately 27 feet

above the tipping floor on the south side of the building.

31. The ventilation system will turn on automatically if

CO or NO 2 sensors detect unsafe levels on the tipping floor. It

is anticipated that such levels will not be reached and the

ventilation system will operate “rarely, if ever.” The

ventilation system also could be operated manually, but

Cambridge does not intend to do so.

32. Dust will not be emitted from the louvers at the

transfer station. The DustBoss misting system will knock-down

the dust inside the transfer station before the dust reaches the

louvers, which are high above the tipping floor. Moreover, the

louvers will be covered with a mesh that will further reduce the

potential for dust emissions. Finally, the prevailing winds at

the site are from the south/southeast and they will blow into

the louvers (not out) most of the year, thus preventing dust

from escaping.

Reasonable Precautions To Prevent Fugitive Emissions

33. DEP Florida Administrative Code Rule 62-296.320(4)(c),

requires “reasonable precautions” to be used to control fugitive

emissions of PM, such as the dust generated by truck traffic on

the site. Cambridge will satisfy this requirement by: (a)

having pavement on the site in areas where there will be truck

traffic; (b) using mobile equipment and a moist broom to remove

dust from the paved areas of the site; (c) planting vegetative

buffers on the site; (d) placing mesh tarps on the railcars

before the railcars are taken outside the transfer station; (d)

limiting the height of the C&D debris in the railcars; and (e)

keeping tarps on the delivery trucks when the trucks are outside

the transfer station during windy conditions.

Analysis Of Potential Airborne Emissions

34. Dust may be generated inside the transfer station when

C&D debris is unloaded, moved, processed, or loaded into trucks

or railcars. Dust may be generated outside the station by

vehicular traffic on the site.

35. Cambridge quantified these potential PM emissions by

using standard procedures and reference documents approved by

analysis was based on conservative (“worst-case”) assumptions,

which were designed to overestimate the actual emissions from

the facility. Using this approach, Cambridge determined that

the maximum emissions of PM from the entire facility will be

approximately 4 pounds per hour during those hours when the

facility is operating.

36. Four pounds per hour is approximately one ounce per

minute. The insignificance of this emission rate can be

appreciated by imagining three people standing in the bay doors

of the transfer station (i.e., one person in each of the three

open bay doors during normal operations) while each person pours

one-third of one ounce (1/3 oz.) of flour into the air over a 60

second interval. This emission rate will result in total annual

emissions of approximately 6 tons per year (TPY), but the

instantaneous emissions will be negligible.

37. Facilities that emit less than 10 TPY of PM are exempt

from the DEP requirement to obtain an air permit. Consequently,

Cambridge will not need a DEP air permit for the facility. A

comparable facility would be a fast food restaurant, which has

airborne emissions from cooking, but is not required to obtain a

DEP air permit.

38. The facility’s emissions of PM will be so small that

Cambridge will not be required by DEP to prepare an analysis of

the facility’s impacts on ambient air quality. An impacts

analysis would not be required unless the facility’s PM

emissions were expected to be greater than 250 TPY.

39. There are no ambient air quality standards or other

DEP requirements applicable to the airborne emissions from the

facility, except for the requirement to use reasonable

precautions to control fugitive emissions in the areas of the

site located outside of the transfer station. There are no DEP

emission limits or other standards applicable to the CO and NO 2

emissions, if any, from the facility’s ventilation system.

Florida Administrative Code Rule 62-296.711 governs crushing and

grinding operations in certain areas of the state, but this rule

is not applicable in Miami-Dade County. Similarly, DEP does not

consider tailpipe emissions from mobile equipment and trucks on

the site when DEP evaluates the airborne emissions from the

facility.

40. DERM will regulate the opacity (visible emissions) of

the facility’s PM emissions (dust) at the property line. DERM

also will regulate the mass emissions from the facility. The

applicable DERM limit for opacity is 20% and the limit for mass

emissions of PM is 40 pounds per hour. The facility will comply

with these DERM standards. As noted above, there will be no

visible emissions of PM at the property line or beyond and the

mass emissions will be no more than 4 pounds per hour under

worst-case conditions.

41. The facility will have an insignificant impact on air

quality on Northwest 32nd Avenue. The facility’s impacts on the

ambient air quality on Northwest 32nd Avenue will not be

measurable or discernable.

42. The prevailing winds in Miami-Dade County are from the

east and southeast most of the year. When the wind is from the

east or southeast, the wind at the site will blow away from the

Petitioners’ residences, which are located east-northeast of the

site. For these reasons, it will be physically impossible for

any dust or odor from the Site to reach the Petitioners’

residences approximately 90% of the time.

43. The prevailing winds in Miami-Dade County blow from

the north only about 4% or 5% of the year. Consequently, 95% or

96% of the time the facility will have no impact on the air

quality at the Martin Luther King Park, which is located south

of the site.

Petitioners’ Allegations Regarding Dust

44. The Petitioners’ witness, Mr. Fluet, acknowledged that

“judicious use of the misters [DustBoss] and the door positions

will effectively provide reasonable assurance” concerning the

dust inside the transfer station. Nonetheless, the Petitioners

are concerned because nothing explicitly prohibits Cambridge

from opening more than three of the bay doors to the transfer

station and causing excessive emissions of dust. The

Petitioners’ concerns about this issue are not established by

preponderant evidence, however, because (a) the Draft Permit

prohibits Cambridge from causing visible emissions beyond the

property boundary, (b) Cambridge has demonstrated that it will

operate the facility in compliance with the Draft Permit, and

(c) DERM will inspect the facility at least once each month to

ensure that the facility is operated properly. Cambridge’s

obligation to comply with the Draft Permit will effectively

limit the number of doors that are open and the amount of dust

that is emitted at any given time. Even if the bay doors are

open, the enclosed design of the building prevents the wind from

blowing through the transfer station. Further, Cambridge’s

expert on air issues (David Buff) explained that, when the wind

is calm, Cambridge will be able to control dust emissions

effectively with the DustBoss machines, even if all the bay

doors are open. His testimony in this regard, is accepted as

persuasive.

45. Mr. Fluet opined that Cambridge may manually turn on

the ventilation system if the temperature inside the transfer

station becomes too hot. Mr. Fluet acknowledged, however, that

misting systems are used to cool the public at amusement parks

and the mist from the DustBoss machines will have the same

cooling effect in the transfer station. This acknowledgment

somewhat belies his suggestion that the ventilation system will

need to be activated. Mr. Fluet’s opinion also is countered by

the fact that Cambridge’s application and witnesses have

confirmed that the ventilation system will be used only for

emergencies, and not for hot weather ventilation or evacuation

of dust. Finally, even if it is assumed, hypothetically, that

the ventilation system may be turned on for Cambridge’s

convenience, the Petitioners failed to prove that the operation

of the ventilation system will cause violations of any

applicable air quality standard. Should such become the case,

as revealed by the monthly inspections, the use of the filters

referenced by Mr. Fluet should be implemented.

46. Mr. Fluet expressed concern that contamination

problems may occur if painted or treated wood is shredded at the

facility. This concern has been alleviated because the Draft

Permit and the Respondent's testimony shows that the acceptance

for processing of painted or treated wood will be prohibited.

Prohibited and unacceptable waste must be removed from the C&D

debris stream and taken off-site for disposal.

Leachate

47. Water that comes in contact with C&D debris is deemed

to be “leachate.” Since C&D debris is generally non-hazardous

and not water soluble, C&D debris is not expected to produce

leachate that is harmful to groundwater.

48. The transfer station has been designed with a roof and

four walls. The design of the station will minimize the

potential for generating leachate and minimize the potential for

standing water inside the facility. Cambridge’s “design

strategy for the facility is to prevent contact between rainfall

or stormwater and C/D materials [C&D debris] at all times,

thereby entirely preventing the generation of leachate.”

49. C&D debris is relatively dry material. If a container

of C&D debris is exposed to rain before the container is brought

to the facility, the rainwater typically will (a) be absorbed by

the C&D debris or (b) leak out of the container before the

container reaches the facility, because the containers used to

collect C&D debris are not water-tight. Even if some liquid is

spilled on the tipping floor with a load of C&D debris, the

liquid will be absorbed by the C&D debris when the load is moved

across the floor.

50. Liquids normally will not be tracked into the transfer

station by trucksucks will enter the transfer station by

slowly backing up an inclined grade, through the bay doors, and

onto the tipping floor. Although some rainwater may be tracked

into the station by the trucks or truck tires, it will only be a

negligible amount. Even less water will be tracked out of the

transfer station.

51. The mist from the DustBoss machines is not likely to

cause puddles to form on the tipping floor. The C&D debris will

absorb any mist that lands on it. Mist landing on the tipping

floor will be absorbed when the C&D debris is pushed across the

floor.

52. After each truck unloads, the tipping floor must be

cleared to make space for the next truck. If there is a puddle

on the floor, the C&D debris will be pushed through the puddle

to absorb it. In the alternative, the puddle will be pushed

into the C&D debris.

53. Cambridge employees will monitor the tipping floor for

liquids. The employees will use mobile equipment (i.e., a skid-

steer) fitted with a rubber-edged blade to push the liquids,

like a squeegee, if necessary. Since the facility will receive

up to 1,000 tons of C&D debris per day, there will be a

substantial amount of material available to absorb any liquids

on the floor.

54. The tipping floor will be equipped with a sump that

can hold approximately 359 gallons of liquid. In the event

there are liquids on the tipping floor, Cambridge’s employees

can push the liquids into the sump by using the rubber-edged

blade on the skid-steer equipment.

55. The sump will be used rarely, if ever. One of

Cambridge’s solid waste experts, Kenneth Cargill, testified that

he had never seen liquids in the floor drain (sump) at a C&D

debris transfer station in Ft. Myers, even though that transfer

station is open on one side (170’ wide and 40’ high) and rain

can blow onto the tipping floor. The sump in Ft. Myers is empty

during the rainy season, as well as the dry season.

56. If any liquids are collected in the facility’s sump, a

third party contractor will pump the liquids out of the sump, as

frequently as necessary, to ensure that the sump is never

overtopped. Any liquids removed from the sump will be taken by

the contractor to a permitted disposal facility, such as a

not expected to upset the operation of the WWTP, so the DEP does

not require the liquid to be tested before it is delivered to

the WWTP.

57. The railcars used to transport C&D debris from the

facility will be fully sealed at the bottom. The railcars will

not leak if rainwater falls into them.

58. Mr. Cargill, Mr. Leonard Enriquez (Cambridge’s General

Manager), and Mr. Hardeep Anand (the Chief of DERM’s Pollution

Regulation and Enforcement Division (“PRED”)) collectively

established that the Transfer Station is well-designed and has a

generally satisfactory leachate control system. The leachate

will be controlled and contained inside the Transfer Station by

using an enclosed building, a concrete floor, a sump, a good

operating plan, and diligent employees.

Petitioners’ Contentions Regarding Leachate

59. Mr. Fluet contended that (a) the leachate control

system is not adequate, (b) leachate will escape from the

transfer station and enter the environment, and (c) the tipping

floor will not minimize standing water. According to Mr. Fluet,

all of these problems will occur primarily because the tipping

floor is flat—i.e., it is not sloped toward a drain and has no

lip, berm or raised edge to contain liquids. It was undisputed,

however, that the DEP rules do not require a sloped floor.

Although Mr. Cargill always designs transfer stations with a

sloped floor, he concluded that Cambridge’s transfer station is

“well designed” and can be operated successfully by using

conscientious employees. Indeed, even Mr. Fluet acknowledged he

could operate the transfer station in compliance with the FDEP

rules, without having a sloped floor. Mr. Fluet would install a

transfer station could be operated in compliance with the

applicable rules.

60. Petitioners contend that the tipping floor must be

washed weekly, and allege that this activity may result in water

escaping from the transfer station. This contention is fatally

flawed because (a) the DEP rules do not require routine washing

of the floors at C&D debris transfer stations, (b) washing is

not necessary to control odors, and (c) Cambridge plans to use

other odor control measures, rather than washing, in the

unlikely event there are odors at the facility.

61. When asked whether Cambridge had provided reasonable

assurances that it would minimize the amount of leachate

produced in the Transfer Station, Mr. Fluet implied the answer

is yes, “to a great extent by the fact that it’s [the transfer

station] enclosed.” He also agreed that the design of the

building (i.e., the roof) will minimize the amount of standing

water on the tipping floor.

62. Nonetheless, Mr. Fluet suggested that the use of the

DustBoss machines may be inconsistent with Florida

Administrative Code Rule 62-701.710(3), which requires an

applicant to minimize standing water in a waste processing

facility. He raised the possibility that liquids may accumulate

on the tipping floor because the two DustBoss machines are

capable of using approximately 30,000 gallons of water per hour

while producing mist. He acknowledged, however, that “a lot” of

the mist (water) will evaporate before it reaches the tipping

floor.

63. Mr. Fluet’s concerns about this issue are not entirely

supported by the preponderance of the evidence. Mr. Cargill and

Mr. Enriquez established that the mist will evaporate or be

absorbed by the C&D debris. Moreover, the DustBoss machines can

be adjusted to reduce the amount of mist that is produced and

thus reduce the potential for creating puddles on the tipping

floor. The DustBoss machines presumably will not need to run

continuously at maximum capacity because the two machines have

the combined capacity to cover approximately 40,000 square feet

of building space, and the transfer station is only about 30,000

square feet.

64. On balance, in consideration of this testimony

concerning flexibility in use and management of the DustBoss

machines, and Mr. Fluet's concern about standing water on the

tipping floor, reasonable assurances can best be established by

a slight design alteration to provide for a lip or berm around

the tipping floor. The fact that the rail track traverses the

building also serves to render this appropriate. The permit

should be so conditioned.

65. Mr. Fluet postulated that the DEP rules will be

violated if rainwater (a) drips off of the C&D debris in the

delivery trucks while the trucks are on the site and then (b)

flows into the stormwater management system on the site or

enters the groundwater. According to Mr. Fluet, the rainwater

will constitute leachate, because the water came into contact

with C&D debris, and the DEP rules prohibit the mixing of any

leachate with stormwater or groundwater. Mr. Fluet conceded,

however, that the same problem occurs at every transfer station

in Florida when rainwater/leachate drips from delivery trucks.

66. Mr. Fluet claimed that the C&D debris in Miami-Dade

County will contain more demolition debris and residential waste

than the C&D debris in other parts of Florida and thus the C&D

debris in Miami-Dade County will produce worse leachate.

However, Mr. Fluet acknowledged the C&D debris in Miami-Dade

County already is being handled in the County’s existing C&D

debris facilities and he has no evidence of groundwater

contamination at any of those facilities. Moreover, Mr. Fluet

could not identify any C&D transfer station where there were

violations of DEP standards for groundwater or surface water

because of the scenarios he described, or the concerns he raised

about Cambridge’s Facility.

67. Mr. Fluet's opinions were based on his expertise and

experience. The Petitioners offered no empirical data to

support their claims or concerns. Mr. Fluet admitted that he

did “not perform any studies, calculations, or engineering

analyses” concerning the proposed Facility. Mr. Fluet and the

Petitioners did not quantify the amount of leachate that

allegedly will be released into the environment from the tipping

floor, or the amount of leachate that will drip from delivery

trucks, or the amount of water that may accumulate on the

tipping floor when the DustBoss machines are operating. They

presented no information concerning the chemical constituents or

chemical concentrations in any of the liquids that allegedly

will be released under any of their potential scenarios. No

data was presented concerning the quality of the liquids

collected in the sumps at other transfer stations. They did not

present any evidence demonstrating that DEP’s groundwater or

surface water quality standards will be violated as a result of

the quantity or quality of the leachate that allegedly will

enter the environment as a result of the facility’s operations.

68. Mr. Anand explained that DEP does not evaluate the

possibility that rainwater will drip from delivery trucks, or

that trucks will track liquids out of a transfer station, when

DEP is determining whether to issue a permit for a waste

processing facility pursuant to Florida Administrative Code

Chapter 62-701. Even if these impacts were considered, the

likelihood of these events causing contamination is

“negligible.”

69. Mr. Anand testified that DERM currently has eight (8)

C&D debris transfer stations in Miami-Dade County. Groundwater

monitoring data are collected at some of the sites, but DERM has

no evidence of groundwater contamination at any of those sites.

Similarly, Mr. Cargill was unaware of any cases in Florida where

a transfer station for C&D debris caused contamination of

groundwater or stormwater as a result of liquids dripping from

the trucks that are entering or leaving the facility.

70. C&D debris is not expected to be water soluble or

hazardous. The leachate from C&D debris is not expected to

cause groundwater contamination. Accordingly, the DEP rules do

not require C&D debris to be placed inside water-tight

containers when the C&D debris is stored at a job site. The DEP

rules do not prohibit the permanent disposal of C&D debris in

unlined disposal facilities. There is nothing to prevent

rainwater from passing through the C&D debris and entering

directly into the groundwater at a job site or an unlined C&D

disposal facility.

71. Given all of the foregoing facts, Mr. Cargill and

Mr. Anand testified that the Cambridge Facility should have

“little or no impact” on the quality of the soils, surface

water, or groundwater at the site. Their testimony is credible,

persuasive, and accepted.

Comparison To Other Transfer Stations

72. The design of the Cambridge Facility is a significant

improvement over the typical design of a C&D debris transfer

station. The measures that Cambridge will use to control dust

and liquids at the facility are superior to the measures used to

control dust and liquids at typical C&D transfer stations.

73. There are 8 C&D debris transfer stations lawfully

operating in Miami-Dade County. Only one of these facilities is

enclosed. Some C&D debris facilities have a roof, but no walls.

A transfer station within one mile of the site has no roof and

no walls. At most transfer stations, dust is controlled by

manually spraying the C&D debris with a hose. None of the

transfer stations in Miami-Dade County use DustBoss machines to

control dust. None of the facilities in Miami-Dade County use a

moist broom and sweeper equipment on a routine basis to control

dust. Although the existing facilities in Miami-Dade County

comply with the DEP rules, the Cambridge facility has gone

beyond the minimum requirements established by DEP.

Stormwater Permits

74. DEP issued an Environmental Resource Permit for the

construction and operation of a stormwater management system

serving the facility. Miami-Dade County issued a Class VI

Drainage Permit for the construction and operation of an

exfiltration trench that will handle the stormwater from the

facility. No one challenged or otherwise appealed the DEP

Environmental Resource Permit or the Miami-Dade County Class VI

permit.

Site Assessment

75. A “Phase I” (preliminary) environmental assessment of

the site was conducted by Cambridge and further investigations

were recommended; however, Cambridge has not yet conducted a

“Phase II” assessment or collected any field data. Mr. Fluet

speculated about potential “indications” of contamination, but

he had no data to prove that any contamination actually exists.

In the absence of any field data, he admitted that “we don’t

to whether the site is contaminated.

Financial Assurance

76. The cost of closing the facility was estimated by

Cambridge to be approximately $231,000. Cambridge’s estimate

did not include the cost of pumping the liquids (if any) out of

the sump, which may be $2,000 to $3,000 (i.e., less than 1% of

the financial assurance provided by Cambridge). This omission

is insignificant, it can be corrected before Cambridge commences

operations of the facility, and it does not warrant the denial

of Cambridge’s application for the Permit.

Irresponsible Applicant

77. Cambridge Project Development, Inc., is the minority

partner in Cambridge. TLA-Miami, Inc., is the managing partner.

TLA-Miami, Inc., is an affiliate of Transload America, Inc.

(“TLA”). None of these entities or their affiliates have

previously owned or operated a solid waste management facility

in Florida, or violated any environmental laws, permits, or

other requirements in Florida.

78. Pursuant to Florida Administrative Code Rule 62-

701.320(3), DEP considers the applicant’s prior operations in

Florida when determining whether an applicant for a solid waste

processing facility permit is an “irresponsible applicant.”

The applicant’s operations in other states are not considered.

In this case, DERM properly concluded that Cambridge is not an

irresponsible applicant.

Cambridge’s Operating Plan And Building Design

79. Cambridge submitted a written operating plan (the

“Operating Plan”) with its application to DERM. The Operating

Plan sets forth Cambridge’s plan for operating the facility in

compliance with the applicable DEP requirements. Additional

details concerning Cambridge’s method of operation were provided

by preponderant evidence at the hearing, in a de novo context.

The Operating Plan satisfies the DEP requirements.

80. During the hearing, Mr. Enriquez explained that the

design of the transfer station will be better than the design

initially proposed in Cambridge’s application to DERM. The sump

will be bigger, the concrete in the tipping floor will be

thicker, and the strength of the concrete will be greater than

originally proposed.

DEP’s Review Of Permit Applications

81. The Petitioners contend that DEP and DERM should have

evaluated a variety of issues that are of interest to the

Petitioners. However, it was undisputed that DEP does not

consider the following issues when deciding whether to issue a

permit for a solid waste processing facility: zoning and

comprehensive plan designations; land use compatibility;

traffic; noise; public benefits; aesthetics; geotechnical

issues, such as differential settlement; structural design

issues, such as the structural design of a tipping floor or push

wall; the adequacy of a fire control system; the adequacy of a

ventilation system; the economic or ethnic makeup of the areas

near a proposed site; whether the proposed location is the best

site; or whether there is a need for the proposed facility. In

the instant case, many of these issues were addressed by other

governmental entities, such as the Building Department for

Miami-Dade County.

Public Notice

82. Cambridge provided two notices to the public

concerning the facility. On January 15, 2008, notice of

Cambridge’s application was published. On August 26, 2008,

notice of DERM’s proposed agency action was published. These

notices satisfied the applicable DEP requirements.

Reasonable Assurances

83. Cambridge has provided reasonable assurances that the

facility will be constructed and operated in compliance with all

of the applicable DEP requirements in Florida Administrative

Code Chapter 62-701, for a waste processing facility. Cambridge

also has provided reasonable assurances that it will comply with

all of the conditions contained in the Draft Permit, and

established by the preponderant evidence.

CONCLUSIONS OF LAW

84. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2008)

85. The issue for determination in this proceeding is

whether DEP should issue a permit authorizing Cambridge to

construct and operate the facility on the site. Cambridge’s

application was reviewed by DERM, but the Operating Agreement

requires DEP to issue the permit in any case where DERM’s

proposed agency action is challenged in a formal administrative

hearing.

De Novo Proceeding

86. This administrative proceeding is not a review of

DERM’s preliminary decision to issue the Permit. Instead, it is

a de novo proceeding intended to formulate final agency action.

Accordingly, the parties were allowed to present evidence at the

final hearing that was not wholly confined to the matters

proposed in Cambridge’s application to DERM. See Hamilton

County Board of County Commissioners v. FDER , 587 So. 2d 1378,

1387 (Fla. 1st DCA 1991); Florida Dept. of Transportation v.

J.W.C. Company, Inc. , 396 So. 2d 778, 785 (Fla. 1st DCA 1981)

Manasota-88, Inc. v. DEP , DOAH Case No. 06-3288 (RO: Feb. 6,

2007) (DEP Final Order Mar. 22, 2007). The dispositive issue is

whether the evidence presented at the administrative hearing

provides reasonable assurances that the proposed facility will

comply with the applicable DEP rules. See Manasota-88, Inc. ,

supra citing McDonald v. Dept. of Banking and Finance , 346 So.

2d 569, 584 (Fla. 1st DCA 1977).

Burden of Proof

87. As the applicant in this proceeding, Cambridge has the

ultimate burden of providing reasonable assurances that the

facility will comply with DEP’s applicable statutes and rules.

J.W.C. Co., Inc. , 396 So. 2d at 787. Cambridge also has the

initial burden of presenting prima facie evidence that Cambridge

has complied with all of the applicable DEP standards and rules.

See Id. at 788. In order to prevail, the Petitioners must

present “contrary evidence of equivalent quality” proving the

truth of the allegations in their Petition. Id. at 789. The

Petitioners cannot merely rely on speculative concerns about

potential or possible adverse environmental effects. See

Chipola Basin Protective Group, Inc., v. DER , DOAH Case No. 88-

3355, 1988 Fla. Env. Lexis 112 at page 14 (RO: Nov. 14, 1988;

DER Final Order, Dec. 30, 1988); J.T. McCormick v. City of

Jacksonville , 12 F.A.L.R. 960, 971 (DER Final Order, Jan. 22,

1990); Altman v. Kavanaugh , 15 F.A.L.R. 1588, 1576

(DOAH Recommended Order, adopted in pertinent part by DER Final

Order, Nov. 1, 1991).

Reasonable Assurances

88. “Reasonable assurance” means “a substantial likelihood

that the project will be successfully implemented.” See

Metropolitan Dade County v. Coscan Florida, Inc. , 609 So. 2d

644, 648 (Fla. 3d DCA 1992); Save Anna Maria, Inc. v. Department

of Transportation , 700 So. 2d 113, 117 (Fla. 2nd DCA 1997).

Competent substantial evidence based upon detailed site plans

and engineering studies, coupled with credible expert

engineering testimony, is a sufficient basis for a finding of

reasonable assurance. See Hamilton County , 587 So. 2d at 1388.

89. An applicant’s burden of proof is one of reasonable

assurances, not absolute guarantees, that the applicable

conditions for the issuance of a permit have been satisfied.

Metropolitan Dade-County , 609 So. 2d at 648; Hamilton County ,

587 So. 2d at 1388; Florida Chapter of the Sierra Club v.

Suwanee American Cement Co. , DOAH Case No. 99-3096 (RO: Oct. 21,

1999; DEP Final Order May 2000). An applicant is not required

to eliminate all contrary possibilities, however remote, or to

address unlikely theoretical, imperceptible, or negligible

impacts which could not be measured in real life. Caloosa

Property Owners’ Association, Inc. v. DER , 462 So. 2d 523, 526

(Fla. 1st DCA 1985); Putnam County Environmental Council, Inc.

v. DEP , DOAH Case No. 01-2442 (RO: Jul. 3, 2002; DEP Final

Order, Aug. 6, 2002); Pacetti v. DER , DOAH Case No. 84-3810 (RO:

Feb. 28, 1986; DER Final Order 1986); Hoffert v. St. Joe Paper

Company , 12 F.A.L.R. 4972, 4987 (Oct. 29, 1990). An applicant

‘theoretical impacts’ raised by” objectors. Ginnie Springs,

Inc. v. Craig Watson and Department of Environmental Protection ,

DOAH Case No. 98-0258 (RO: Feb. 23, 1999; DEP Final Order

April 8, 1999).

90. The issuance of a permit must be based solely on

compliance with the applicable permit criteria. Council of

Lower Keys v. Toppino , 429 So. 2d 67 (Fla. 3d DCA 1983).

91. The Department has authorized discharges of pollutants

into water bodies where the effect on water quality is found to

be negligible. Caloosa Property Owners’ Association, Inc. , 462

So. 2d at 526; Putnam County Environmental Council v. Department

of Environmental Protection , DOAH Case No. 01-2442 (RO: Jul. 3,

2002; DEP Final Order Aug. 6, 2002). Indeed, the Department has

having special meaning within the purview of the de minimis

rationale incorporated into the environmental regulatory law of

this state.” Id. See also Sheridan v. Deep Lagoon Boat Club,

Ltd. , 22 F.A.L.R. 2358, 2366 (DEP 2000); Pacetti v. Smith , 8

F.A.L.R. 4050, 4054-56 (DER 1986). Although the case law

concerning the de minimis rationale has dealt with discharges

into surface water bodies, the rationale also is appropriate in

this case, which deals with potential discharges to stormwater

and groundwater.

92. In this case, Cambridge presented preponderant,

persuasive evidence at the final hearing to demonstrate that

Cambridge will construct and operate the facility in compliance

with all applicable DEP rules and regulations. The Petitioners

failed to present evidence of equivalent quality. The

Petitioners also failed to demonstrate by a preponderance of the

evidence that the facility will cause violations of the DEP

rules. The potential environmental impacts identified by

Petitioners were “negligible” or “ de minimis ” in nature and thus

insufficient to warrant the denial of the Permit.

93. The Petitioners alleged that the water dripping off of

delivery trucks will violate DEP’s Florida Administrative Code

Rule 62-701.710(3)(b), which provides that “the facility shall

be designed with a leachate control system to prevent discharge

of leachate and mixing of leachate with stormwater, and to

minimize the presence of standing water.” The Petitioners’

allegation is based on the assumption that this DEP rule

establishes an absolute prohibition –- i.e., a violation will

occur if any leachate mixes with stormwater or groundwater,

regardless of the quantity or quality of the leachate. Under

the Petitioners’ interpretation of the DEP rule, a violation

would occur if a single drop of rainwater came into contact with

C&D debris on a delivery truck and then dripped off the truck

and entered the stormwater. The Petitioners’ interpretation

presumably would result in a determination that all transfer

stations in Florida are in violation of Florida Administrative

Code Rule 62-701.710(3)(b), because rainwater drips off delivery

trucks at all transfer stations. In this light, it is clear

that the Petitioners’ interpretation of Florida Administrative

Code Rule 62-701.710(3)(b), is unreasonable and must be

rejected.

94. The Petitioners’ interpretation of Florida

Administrative Code Rule 62-701.710(3)(b), also must be rejected

because it fundamentally misconstrues the language and intent of

DEP’s requirement. Florida Administrative Code Rule 62-

701.710(3), establishes design requirements for waste processing

facilities . The Petitioners’ allegations about water dripping

off trucks do not relate to the design of the facility or any

“discharges” from the facility itself. For this reason, DEP

does not consider water dripping from delivery trucks when DEP

determines whether a facility’s design complies with Florida

Administrative Code Rule 62-701.710(3)(b).

95. The Petitioners contend that the tipping floor must be

washed weekly pursuant to Florida Administrative Code Rule 62-

701.710(4)(b), but this results from a mis-reading of the DEP

rule. Florida Administrative Code Rule 62-701.710(4)(b), only

applies to facilities that receive putrescible waste, as

indicated in the first sentence of the rule. Mr. Cargill

explained that the DEP rules do not require weekly washing of

transfer stations that receive C&D debris only.

96. The Petitioners contend Cambridge must provide

reasonable assurances that the facility will be in the public

interest and thus complies with Section 403.021(8), Florida

Statutes, which provides

The Legislature further finds and

declares that the public health, welfare,

and safety may be affected by disease-

carrying vectors and pests. The department

shall assist all governmental units charged

with the control of such 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 danger of a public health

hazard .

(Emphasis supplied.) Cambridge demonstrated that the

construction and operation of the facility will not cause a

public health hazard due to disease-carrying vectors or other

impacts. The Petitioners failed to demonstrate otherwise.

Accordingly, Section 403.021(8), Florida Statutes, is not

applicable in this proceeding. See City of Jacksonville v. DEP ,

DOAH Case No. 01-0783 at 9 (RO: Sept. 6, 2001; DEP Final Order

Oct.18, 2001, at 9).

97. The Petitioners criticized the design and operation of

the facility’s stormwater management systems, including the

exfiltration trench, but these systems are not subject to

challenge in this proceeding. The DEP permit for the stormwater

system and the DERM permit for the exfiltration trench were

issued previously and they were not appealed. The final agency

actions concerning these permits cannot be collaterally attacked

in this case.

98. Finally, the Petitioners complained about the location

of the facility, but their complaints are unavailing in this

proceeding. The DEP does not require an applicant to

demonstrate that it has selected the best location for a

proposed waste processing facility. DEP also does not address

issues involving zoning and land use compatibility. As a

practical matter, the facility will be built in an industrial

district and the environmental impacts (e.g., dust) of the

facility will be controlled on the site, because Cambridge has

gone beyond the minimum requirements in the DEP rules to provide

reasonable assurances and to ensure that potential off-site

impacts are minimized or eliminated. The Petitioners failed to

prove that additional measures, aside from the conditions found

above, are required under the DEP rules or otherwise needed in

this case.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses, and the pleadings and arguments of

the parties, it is, therefore,

RECOMMENDED that Department of Environmental Protection

enter a Final Order granting Cambridge's application to

construct and operate the facility on the site, including the

conditions contained in the Draft Permit and in the above

findings and conclusions, to include a design alteration

providing for a slight lip or berm around the tipping floor, as

supported by the preponderant, persuasive evidence.

DONE AND ENTERED this 1st day of April, 2009, in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of April, 2009.

COPIES FURNISHED :

John J. Quick, Esquire

Michelle D. Vos, Esquire

Weiss Serota Helfman Pastoriza

Cole & Boniske, P.L.

525 Ponce de Leon Boulevard, Suite 700

Coral Gables, Florida 33134

Peter S. Tell, Esquire

Assistant County Attorney

Miami-Dade County

111 Northwest 1st Street, Suite 2810

Miami, Florida 33128

David S. Dee, Esquire

Young Van Assenderp, P.A.

225 South Adams Street, Suite 200

Tallahassee, Florida 32301

Lea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Tom Beason, General Counsel

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Michael W. Sole, Secretary

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

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.