STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ESCAMBIA COUNTY, )

)

Petitioner, )

)

vs. ) Case NO. 89-3760

)

TRANS PAC, INC., AND )

DEPARTMENT OF )

ENVIRONMENTAL REGULATION, )

)

Respondents, )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on March 5, 1990.

APPEARANCES

The parties were represented as follows:

For Petitioner: C. Anthony Cleveland

2700 Blairstone Road Suite C

Tallahassee, Florida 32301

For Respondent: Thomas K. Maurer

Trans Pac, Inc. 111 North Orange Avenue

Suite 1800

Orlando, Florida 32801 and

Steven Andrews 24081 Tamiami Trail

Bonita Springs, Florida 33923

For Respondent: E. Gary Early

Department Department of Environmental Regulation

2600 Blairstone Road

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES

The issue at the hearing was whether Respondent, Trans Pac, Inc. is entitled to a construction permit to build a hazardous waste treatment and storage facility in Escambia County, Florida.

PRELIMINARY STATEMENT

On November 29, 1988, Respondent, Trans Pac, Inc., applied for a construction permit to build a hazardous waste storage and treatment facility in Escambia County, Florida. By Notice of Intent, dated May 19, 1989, and published May 26, 1989, the Department informed the public that it intended to issue the permit to Trans Pac, Inc. Petitioner, Escambia County, requested a formal administrative hearing on the Department's intended action. The request for hearing was forwarded to the Division of Administrative Hearings.

During the pre-hearing process, the parties were able to resolve all factual disputes regarding Petitioner's petition for an administrative hearing except those issues raised in subparagraph 6an, relating to the issue of need for the facility in Escambia County, and subparagraph 6ao, relating to the issue of whether Trans Pac, Inc.'s., possible sale of the facility constitutes a failure of the applicant to give reasonable assurances that the facility will be operated in accordance with the statutes and regulations governing the operation of such facilities. Except for the issues outlined above, all issues relating to whether the proposed facility meets the statutory and rule requirements governing hazardous waste facilities were removed from consideration in this proceeding. 1/

At the hearing, the parties did not present any witnesses, but presented closing legal arguments. The parties offered into evidence a joint stipulation of facts which contained six exhibits and contained several agreements as to additional permit conditions which are to be incorporated in any permit issued in this case. The joint stipulation, along with the additional permit conditions, is made a part of this Recommended Order.

The public comment portion of the hearing was held during the evening of March 5, 1990. Approximately, 150 to 200 persons were present during this portion of the hearing. None of the persons present favored the issuance of the permit under consideration in this case. Some members of the public testified during the public comment portion of the hearing and variously offered three exhibits into evidence. The comments generated during the public comment portion of the hearing showed a heartfelt reverence for the condition of the planet we live on. These sentiments were particularly voiced by the children and young adults who spoke at the hearing, who want to make Pensacola their home and have their children grow up in a clean, healthy environment. The consensus among the speakers was that need should be a consideration in the permitting and siting of a hazardous waste facility. Great concern was raised over a governmental system that did not consider such need and would ride roughshod over the people who have the most to lose by the forced siting of this facility. These comments have been considered and utilized in the preparation of this Recommended Order.

Petitioner and Respondents did not file formal Proposed Recommended Orders.

However, on March 5, 1990, Petitioner and Respondent, Trans Pac, Inc., filed legal memorandums, briefing the issues raised in the joint stipulation. The Department orally adopted the legal memoranda of Trans Pac, Inc.. The parties' legal memoranda have been considered and utilized in the preparation of this Recommended Order.

FINDINGS OF FACT

1. On November 29, 1988, Respondent, Trans Pac, Inc., (Trans Pac), a development company, filed its initial application for a construction permit to build a hazardous waste treatment and storage facility in Escambia County, Florida. Trans Pac's stock is owned by James Dahl of Los Angeles, California. Trans Pac's president is Steven Andrews. Steven Andrews is also president of The Andrews Group, d/b/a Chemical Development Company. Chemical Development Company is in the business of developing hazardous waste facilities.

   
   

2. Sometime after filing its application, Trans Pac advertised for interested persons to contact it about the possible sale of the facility. At the time of the hearing, Trans Pac had not had any serious offers for the property and had not finally decided whether it will sell the facility. Trans Pac is seriously considering a joint venture arrangement, although no specifics as to such an arrangement have been formalized or finalized. When consideration is given to the unripe nature of this "proposed sale", it cannot be concluded that the above facts constitute competent and reliable evidence which would support the conclusion that Trans Pac had failed to give such reasonable assurances that the facility would be operated in accordance with Florida law. Too much speculation is required before such a conclusion can be reached.

   
   

3. However, Trans Pac has stipulated that it will publish a notice of any sale prior to the closing of that sale if that event should occur. The notice would be published in accordance with the provisions and time periods established in Rule 17-103.15, Florida Administrative Code, and should afford an affected person a reasonable time to challenge the sale before the sale closes. Any contract of sale would incorporate the notice requirements and the sale would be made contingent upon compliance with the above conditions. Such a notice would afford any affected person the opportunity to challenge the ability of the transferee to operate the facility. With the above stipulation made a part of any permit, there is no failure by Trans Pac to provide reasonable assurances that the facility will be operated in accordance with Florida law.

   
   

4. Escambia County is within the West Florida Planning Region. The West Florida Planning Region consists of Bay County, Escambia County, Holmes County, Okaloosa County, Santa Rosa County, Walton County and Washington County. The proposed site for the facility is just outside the community of Beulah, on County Road 99, northeast of and adjacent to the Perdido Landfill. The site is not within, but adjacent to the area designated by the West Florida Regional Planning Council as an area on which a hazardous waste temporary storage and transfer facility could be located. 2/ The proposed site is approximately one mile away from the Perdido River, an outstanding Florida water. The area is primarily a rural area.

   
   

5. When the proposed location of this facility was announced in the local news, the value of property around the proposed site decreased. One person, who was within a few miles of the proposed site, lost the contract of sale on his property and was advised by the purchasers that no reduction in price would renew their interest. Another individual's property in the same area decreased in value by approximately $10,000. Many people in the Beaulah area had their dreams and the quiet enjoyment of their property threatened by the location of this facility. Some cannot afford to sell their property and relocate. At present there is no mechanism by which any of the property owners in proximity to the proposed site can recoup their losses. Some property owners believe that such a mechanism should include the establishment of some type of independent trust fund funded with enough money to cover an estimate of such losses, and an

   independent review of any disputed claims of loss. However, there is no provision under Florida law to impose a permit condition which establishes a procedure to cover the pecuniary losses of property owners close to the facility.

   
   

6. The proposed facility will be a permanent storage and treatment facility and will have a maximum waste storage capacity of 106,000 gallons and a maximum treatment capacity of 2,000 gallons per day for neutralization, 5,000 gallons per day for organic separation, 2,000 gallons per day for ozonation, and 4,000 gallons per day for solidification.

   
   

7. Hazardous waste is a solid waste which exhibits one or more of the following characteristics: a) ignitability, b) corrosivity, c) reactivity, d) EP toxicity. Such waste can be further classified as a toxic waste or as an acute hazardous waste. 3/ An acute hazardous waste is a solid waste which has been found to be fatal to humans in low doses or, has been shown in studies to have an oral, inhalation or dermal toxicity to rats or rabbits at a certain level, or has been shown to significantly contribute to an increase in serious irreversible, or incapacitating reversible, illness. A toxic waste is any waste containing any one of a number of specified constituents. A "characteristic" of hazardous waste is identified and defined only when a solid waste with a certain type of characteristic may: a) cause or significantly contribute to, an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness, or b) pose a substantial present or potential hazard to human health or the environment when it is improperly treated, stored, transported, disposed of or otherwise managed, and the characteristic can be:

   a) measured by an available standardized test, or b) can be reasonably detected by generators of solid waste through their knowledge of their waste. Put simply, hazardous waste is very dangerous to both humans and the environment and will kill or permanently incapacitate living beings and/or make the environment unlivable. Such waste has the potential to create a hazardous waste desert.

   
   

8. A solid waste has the characteristic of ignitability if: a) it is a liquid, other than an aqueous solution containing 24 percent alcohol, which has a flashpoint of 60.C (140.F), b) it is not a liquid and is capable, under standard temperature and pressure, of causing fire through friction, absorption of moisture or spontaneous chemical changes and, when ignited burns so vigorously and persistently that it creates a hazard, c) it is an ignitable compressed gas, or d) it is an oxidizer.

   
   

9. A solid waste has the characteristic of corrosivity if: a) it is aqueous and has a pH less than or equal to 2 or greater than or equal to 12.5 (strong acids or bases), or b) it is a liquid and corrodes steel at a rate greater than 6.35 millimeters (0.250 inch) per year at a test temperature of 55.C (130.F).

   
   

10. A solid waste has the characteristic of reactivity if: a) it is normally unstable and readily undergoes violent change without detonating, b) it reacts violently with water, c) it forms potentially explosive mixtures with water, d) when mixed with water, it generates toxic gases, vapors or fumes in a quantity sufficient to present a danger to human health or the environment, e) it is a cyanide or sulfide bearing waste which, when exposed to pH conditions between 2 and 12.5, can generate toxic gases, vapors or fumes in a quantity sufficient to present a danger to human health or the environment, f) it is capable of detonation or explosive reaction if it is subjected to a strong initiating source or if heated under confinement, g) it is readily capable of

    detonation or explosive decomposition or reaction at standard temperature and pressure, or h) it is a forbidden or Class B explosive as defined in another federal rule.

    
    

11. A solid waste has the characteristic of EP toxicity, if, using certain test methods, the extract from a representative sample of the waste contains certain contaminants (arsenic, barium, cadmium, chromium, lead, mercury, selenium, silver, endrin, lindane, etc.) at a concentration greater than or equal to specified levels for that contaminant.

    
    

12. Although the above definitions sound exotic, the wastes which are defined are more often than not the waste generated by routine, normal living. Such waste is the result of almost any type of motor vehicle or machinery maintenance, such as oil and battery changes, metals manufacturing and finishing services, including auto body repair services, transportation services, construction and building repair services, medical and laboratory services, boat building and repair services, dry cleaning, printing of newspapers and 4/ magazines or agriculture, such as gardening. Further, such waste is generated by almost every commercial business category. Almost every person is either directly responsible through use or manufacture, or indirectly responsible through demand for a product or life-style, for the generation of hazardous waste in small quantities. These small individual quantities of hazardous waste add up to a significant portion of all the hazardous waste generated in this state and a significant portion of this waste is not disposed of properly. Improper disposal includes sending the waste to a local landfill or pouring such waste down the drain.

    
    

13. Trans Pac's proposed facility will not be permitted for radioactive waste. The types of waste which will be treated and/or stored at the proposed facility are:

    
    

    Singularly or in any combination:

    
    

    D002 Waste --- A solid waste that exhibits the

    characteristic of corrosivity, but is not listed as a hazardous waste in Subpart D of 40 CFR 261.

    D003 Waste --- A solid waste that exhibits the

    characteristic of reactivity, but is not listed as a hazardous waste in Subpart D of 40 CFR 261.

    D004 Waste --- EP toxicity, contaminant arsenic D005 Waste --- EP toxicity, contaminant barium D006 Waste --- EP toxicity, contaminant cadmium D007 Waste --- EP toxicity, contaminant chromium D008 Waste --- EP toxicity, contaminant lead D010 Waste --- EP toxicity, contaminant mercury D011 Waste --- EP toxicity, contaminant silver

    
    

    Singularly or in any combination:

    
    

    F001 Waste --- TOXIC -- Spent halogenated solvents used in degreasing: tetrachloroethylene trichloroethylene,

    1,1, 1-trichloroethane, methylene chloride, carbon tetrachloride, and

    chlorinated fluorocarbons, all spent solvent mixtures/blends used in degreasing containing, before use,

    10 percent or more of one or more of the above halogenated solvents or those listed in F002, F004, or F005; still bottoms from the recovery of these solvents and mixtures

    F002 Waste --- TOXIC -- Spent halogenated solvents: tetrachloroethylene, methylene chloride, trichloroethylene, 1,1,1- trichloroethane, chlorobenzene,

    1, 1, 2-trichlor-1, 2, 2-trifluoroethane, ortho-dichlorobenzene trichlorofluoromethane, 1, 1, 2 - trichloroethane, spent solvent mixtures/blends containing, before

    use, a total of 10 percent or more of one of the solvents listed in F001, F004, F005; and still bottoms from the recovery of these spent solvents and mixtures

    F003 Waste --- IGNITABLE -- Spent non-halogenated

    solvents: xylene, acetone, ethyl acetate, ethyl benzene, ethyl ether, methyl isobutyl ketone, n-butyl alcohol, cyclohexanone, methanol, all spent solvent mixtures/blends containing, before use, one or more of the above non-halogenated solvents and a total of 10 percent or more of the solvents listed in F001, F002, F004, F005; and still bottoms from the recovery of these spent solvents and mixtures

    F004 Waste --- TOXIC -- Spent non-halogenated

    solvents: creosols and cresylic acid, nitrobenzene, spent solvent mixtures/blends containing, before use, a total of 10 percent or more

    of the above non-halogenated solvents or the solvents listed in F001, F002, F005; and still bottoms from the recovery of these spent solvents and mixtures

    F005 Waste --- IGNITABLE, TOXIC -- Spent non-

    halogenated solvents: toluene, methyl ethyl ketone, carbon disulfide, isobutanol, pyridine, benzene, 2-ethoxyethanol, 2- nitropropane, spent solvent Mixtures/blends containing, before use, a total of 10 percent or more

    of the above non-halogenated solvents or those solvents listed in F001,

    F002, F004; and still bottoms from the recovery of these spent solvents and mixtures

    F006 Waste ---TOXIC -- Wastewater treatment sludges from electroplating from certain specified processes

    
    

    Singularly or in any combination:

    
    

    F007 Waste --- REACTIVE, TOXIC -- Spent cyanide

    plating bath solutions from electroplating operations

    F008 Waste --- REACTIVE, TOXIC -- Plating bath

    residues from the bottom of plating baths from electroplating operations where cyanides are used in the process

    F009 Waste --- REACTIVE, TOXIC -- Spent cleaning and stripping bath solutions from electroplating operations where cyanides are used in the process

    F010 Waste --- REACTIVE, TOXIC --Quenching bath

    residues from oil baths from metal heat treating operations where cyanides are used in the process

    F011 Waste --- REACTIVE, TOXIC -- Spent cyanide

    solutions from salt bath pot cleaning from metal heat treating operations

    F012 Waste --- TOXIC --Quenching wastewater

    treatment sludges from metal heat treating operations where cyanides are used in the process

    
    

    Singularly or in any combination:

    Petroleum refining:

    
    

    K048 Waste --- TOXIC -- Dissolved air flotation

    (DAF) float from the petroleum refining industry

    K049 Waste --- TOXIC -- slop oil emulsion solids

    from the petroleum refining industry K050 Waste --- TOXIC -- heat exchanger bundle

    cleaning sludge from the petroleum refining industry

    K051 Waste --- TOXIC -- API separator sludge from

    the petroleum refining industry

    K052 Waste --- TOXIC --- tank bottoms (leaded) from the petroleum refining industry

    
    

    Iron and steel:

    
    

    K062 Waste --- CORROSIVE, TOXIC -- spent pickle

    liquor generated by steel finishing operations of facilities within the iron and steel industry

    Ink formulation:

    
    

    K086 Waste --- TOXIC -- solvent washes and sludges, caustic washes and sludges, or water washes and sludges from cleaning tubs and equipment used in the formulation of ink from pigments, driers, soaps and stabilizers containing chromium and lead

    
    

    Secondary lead:

    
    

    K100 Waste --- TOXIC -- wastewater leaching solution from acid leaching of emission control dust/sludge from

    secondary lead smelting

    
    

14. The federal law which governs hazardous waste is the Resource Conservation and Recovery Act (RCRA) and its amendments. The RCRA was part of the initial federal effort to manage hazardous waste and expressed a clear preference for the reduction of hazardous waste over managing such wastes at treatment, storage or disposal facilities. The Act required EPA to develop a national plan to manage and regulate hazardous waste and provide states with incentives to develop state hazardous waste management plans. Most of the incentives were based on the availability of federal funds. The federal funds were contingent on the states assuring EPA that a particular disposal site would be available for disposal of any waste generated by a remedial action taken under the Act.

    
    

15. In 1980, Congress passed the Comprehensive Emergency Response Liability Act (CERCLA). The Act granted EPA the authority and funds to respond to uncontrolled site cleanup, emergency remedial activities, spills and other incidents due to hazardous waste. 5/ As of November, 1989, five such remedial sites are located in Escambia County. The Act also defines the liability of businesses that generate, transport and dispose of hazardous waste. Generators of hazardous waste, generally, have "cradle to grave" liability for the waste they generate.

    
    

16. In 1980, the Florida Legislature enacted the state's first hazardous waste law. The law primarily adopted the federal regulations and guidelines on hazardous waste and established separate procedures for permitting and site selection of hazardous waste facilities. The act also directed DER to develop and implement a state hazardous waste management plan. The portions of the 1980 law relative to site selection (403.723, Florida Statutes) provided a cabinet override of a local decision adverse to the location of a hazardous waste facility. In order to obtain a cabinet override, the facility had to have been issued a permit by DER. Need for a hazardous waste facility was not addressed in either the permitting or site selection processes of the Act.

    
    

17. In 1983, the legislature passed the Water Quality Assurance Act. The Act amended 403.723, Florida Statutes, to provide that each county prepare a Hazardous Waste Facility Needs Assessment and "designate areas within the County at which a hazardous waste storage facility could be constructed to meet a demonstrated need." The Act further provided in 403.723, Florida Statutes, that, after the counties had completed their assessments, each regional planning

    council, likewise, would prepare a regional Hazardous Waste Facility Needs Assessment and "designate sites at which a regional hazardous waste storage or treatment facility could be constructed."

    
    

18. The regional Assessment included a determination of the quantities and types of hazardous waste generated in the region, a determination of the hazardous waste management practices in use within the region, a determination of the demand for offsite hazardous waste management services, a determination of existing and proposed offsite management capacity available to hazardous waste generators, a determination of the need for additional offsite hazardous waste facilities within the region, and the development of a plan to manage the hazardous waste generated in the region and/or to provide additional offsite hazardous waste treatment or storage facility needs. As noted earlier, these plans and designations were required to be made part of the county and regional comprehensive plans.

    
    

19. The regional Assessment was completed by the West Florida Regional Planning Council in August of 1985. The assessment was based on a survey of suspected hazardous waste generators in the region. An overall response rate of

    76.8 percent was received.

    
    

20. The study showed that all types of hazardous waste, except for cyanide waste, are generated within the West Florida Planning Region. 6/ The quantity of hazardous waste produced annually within the region was estimated to be 14,245,064 pounds. The estimates for each County were as follows: Escambia County, 4,582,872 pounds; Okaloosa County, 3,203,534 pounds; Bay County, 2,433,343 pounds; Santa Rosa County, 1,866,831 pounds; Holmes County, 381,840 pounds; Walton County, 229,984 pounds; and Washington County, 170,244 pounds. Based on the survey responses, the study estimated that 11,903,738 pounds (83.6%) of hazardous waste generated annually within the region was not being properly treated or disposed of. The vast majority of the waste (78.1%) found to be improperly treated was a combination of waste oils and greases, spent solvents, and lead-acid batteries. Neither the waste oil and greases or lead- acid batteries are wastes which will be managed at the proposed Trans Pac facility. The study found that a recycling or reuse market existed for waste oil and greases, spent solvents and lead-acid batteries; and therefore, there was no need for a transfer/temporary storage facility. The remaining 2,602,630 pounds of hazardous waste not being properly managed was generated by both large and small quantity generators and is subject to a variety of appropriate waste management methods. The management plan adopted by the West Florida Regional Planning Council sought to encourage first waste reduction, second waste recycling, reuse or recovery, third onsite treatment or incineration methods, and fourth transporting wastes to offsite temporary storage facilities.

    
    

21. One of the goals of the plan was to discourage, as much as possible, the importation of hazardous waste from outside the region, and particularly, with the close proximity of the Alabama state line, from outside the state. The plan concluded that due to the small quantity of mismanaged hazardous waste in the region there was no need for a permanent treatment and storage facility.

    The only need found to exist within the region was for a temporary transfer and storage facility. That need has since been met by a temporary transfer and storage facility located in Pensacola, Florida. 7/

    
    

22. However, Escambia County issued a Certificate of Need for a hazardous waste transfer, storage and treatment facility to Trans Pac on February 28, 1989. The Certificate of Need was issued pursuant to County Ordinance Number

    85-7. The ordinance provides in relevant part that a Certificate of Need may be

    issued upon the Board's determination that the service or facility for which the certificate is requested "answers a public need, is necessary for the welfare of the citizens and residents of the county, is consistent with any solid waste management plan adopted pursuant to [this ordinance], and will not impair or infringe on any obligations established by contract, resolution, or ordinance." The ordinance further provides that no Certificate of Need may be denied solely on the basis of the number of such certificates in effect at the time. The issuance of that certificate appears to have been granted on the sole representations of need given by Trans Pac to gain issuance of the certificate and at a time when the Board's attention and consideration of the facility was on matters other than the true need as established in the regional plan or the exact service Trans Pac would actually provide. The evidence suggests that no formal or informal investigation of Trans Pac's representations or on the actual need of the region was conducted by the Board. Such an investigation was informally conducted by some of the Board members after the proposed facility became apparent to members of the public. The members of the public raised a great hue and cry of opposition towards the construction of the facility and prompted a closer look at Trans Pac's representations. The Board members who did conduct the informal investigation found there was no need for the facility within the county or region and discovered that the Certificate of Need had been issued in error. No evidence was presented that the County had ever formally rescinded the issuance of Trans Pac's certificate. However, the evidence did show that there was a de facto rescission of Trans Pac's certificate when the County authorized the filing of this administrative action. 8/

    
    

23. Trans Pac would have the ability to treat and store some of the waste generated in the region and some waste which is not generated in the region. Trans Pac would not treat or store a large part of the waste generated in the region. The small amount of regional waste which Trans Pac would be capable of handling would not be profitable. In order to be profitable, most of Trans Pac's waste would have to come from outside the region and/or the State.

    
    

24. In 1986, Congress passed the Superfund Amendments and Reauthorization Act (SARA). The Act amended CERCLA to provide that, three years after the Act's effective date, a state could not receive any superfund monies unless the state entered into an agreement with the President providing assurance of the availability of hazardous waste treatment or disposal facilities which would have enough capacity for the treatment, disposal or storage of all hazardous waste generated within the state over the next 20 years.

    
    

25. SARA was enacted because Congress did not believe that Superfund money should be spent in states that were taking insufficient steps to avoid creation of more superfund sites. Such steps included some provision for the future secure disposal or management of hazardous waste generated within that state.

    It was feared that certain states, because of public opposition and political pressure, could not create and permit enough hazardous waste facilities within their borders to properly manage, either through disposal or treatment, the hazardous waste generated within those states. Put simply, SARA requires each state to keep its own house clean and be responsible for the hazardous waste generated within its borders.

    
    

26. SARA did not require the states to develop or permit hazardous waste facilities. The Act only required that each state provide assurances that the state possessed the capacity to manage or securely dispose of hazardous waste produced in that state over the next 20 years. Such assurances could take the form of developing hazardous waste treatment and storage facilities within that state's borders or by exporting its waste to another state. However, in order

    to provide adequate assurances of capacity if a state chose to export its hazardous waste, that state must enter into an interstate or regional agreement with the importing state. Such agreements could include contracts to ship hazardous waste to public or private facilities. Other assurances of capacity could be obtained through programs for the reduction of hazardous waste within the state. Whatever method of assurance adopted by a state, the goal of SARA was to force the states to provide assurances that their legislative program for the management of hazardous waste generated within their borders could work and would be used.

    
    

27. In October, 1979, Florida entered into a Capacity Assurance Plan (CAP) with the President. The CAP established and implemented the statewide management plan required under the state statutes described earlier and under the SARA. The CAP is made up of four major components and includes a regional agreement between Florida and the other EPA Region IV Southeastern States. The four major components of the CAP are: 1) an assessment of past hazardous waste generation and capacity at facilities within or outside of Florida; 2) documentation of any waste reduction efforts that exist or are proposed for the future; 3) future projections of waste generation and capacity either within or outside of Florida and an assessment of any capacity shortfalls; and 4) descriptions of plans to permit facilities and a description of regulatory, economic, or other barriers which might impede or prevent the creation and permitting of such new facilities. The data gathered for the CAP showed that Florida currently has and will have a shortfall in its capacity to properly manage and dispose of its own hazardous waste. Therefore, Florida must provide and implement a way to increase its capacity for the management and disposal of the waste it now generates and will generate in the future or lose its funding for cleanup of superfund sites. Florida's plan to meet that shortfall consists of the interstate agreement, a commitment to a multistate treatment and storage facility and underfunded and understaffed incentives to reduce the generation of hazardous waste.

    
    

28. The interstate agreement between the EPA Region IV Southeastern States is an effort at cooperative planning between these states for the management of hazardous waste. In reality, every state, including Florida, imports some hazardous waste from other states. Florida's imports are predominantly spent solvents and waste which can be burned as fuel. All of the imported waste was treated at recovery facilities located within the state. The majority of these imports came from Alabama, Georgia, Louisiana, Virginia and South Carolina. However, even with these imports, Florida is primarily an exporter of hazardous waste. The main recipients of Florida's exports are Alabama and South Carolina. 9/ The agreement, therefore, includes provisions on applicable interstate waste flow characteristics and quantities and on projected exports and imports between and among the participating states. The agreement provides that hazardous waste facilities presently exist or will be created and permitted to manage such exported waste.

    
    

29. Besides the interstate agreement, Florida's plan includes a commitment to permit a multipurpose hazardous waste storage and treatment facility. The site selected for the facility is located in Union County. The permit has not yet been issued for this facility. However, the application for the facility is being processed by DER under the special statutes dealing with the Union County facility. Trans Pac's proposed facility is not required for the state to meet its assurances under the CAP entered into with the President.

30. The hoped for benefit of the commitment to a statewide multipurpose facility is to allow Florida to reduce the amount of waste requiring export, but, at the same time allow enough waste to be exported, in accordance with the interstate agreement, to supply a sufficient waste stream to facilities in other states which need such additional waste in order to stay open.

    
    

31. Florida's CAP also includes a waste reduction plan. The waste reduction plan is embodied in its Waste Reduction Assistance Program. The philosophy of the program is that recycling (particularly waste oil) and reduction of hazardous waste will produce greater long term across-the-board cost savings to both business and government, as well as the obvious benefit of having less of this very dangerous pollutant around in the environment. The program is not mandatory and is information-oriented. It consists of technical assistance, limited economic incentives (some of which have not been funded by the legislature), research and development, education and a waste exchange program operated by FSU and the Chamber of Commerce. The waste exchange program puts businesses in touch with other businesses who can use their waste for recycling or recovery.

    
    

32. Additionally, in conjunction with Florida's CAP, the legislature passed Senate Concurrent Resolution #1146. The resolution states in part that, except for the siting of the Union County facility, "the Legislature has not and does not intend to enact barriers to the movement of hazardous waste and the siting of hazardous waste facilities for the storage, treatment, and disposal, other than land disposal, of hazardous waste."

    
    

33. As can be seen from an overview of Florida's CAP, Trans Pac's proposed facility, while not being directly a part of the CAP, will have an impact on the implementation of that plan should state need not be a criteria for the issuance of a permit. A few of these potential impacts are listed below. First, a facility the size of Trans Pac's proposed facility has the potential to divert some waste away from the proposed Union County facility and may cause that facility to be unprofitable and inoperable. Second, Trans Pac's proposed facility may enable the State to handle more of its waste within its borders, thereby reducing its exports and Florida's dependency on the good offices of other states. Such reduction may or may not have an adverse impact on the interstate agreement contained in the CAP if Florida cannot meet the amount of waste established for export under that agreement. Third, Trans Pac's proposed facility has the potential to decrease the effectiveness of the State's hazardous waste reduction program by encouraging the use of its facilities instead of reduction, recycling or recovery methods. Such a decrease would be highly dependent on the prices charged by various hazardous waste facilities vis. a vis. reduction, recycling or recovery expenses, the cost of transportation to the various types of facilities, and the ease of use among the various types of facilities and reduction methods. Fourth, not considering at least the needs of the State for a hazardous waste facility allows the state to become a dumping ground for hazardous waste generated in other states. 10/ No evidence was presented on any of these points and because of the conclusions of law such an issue is not ripe for consideration in this case.

    
    

    CONCLUSIONS OF LAW

    
    

34. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. 120.57(1), Florida Statutes.

35. As mentioned earlier, the County has raised two issues for determination in this proceeding. The issues are:

    
    

    1. Whether the application fails to comply with Florida Administrative Code Chapters 17-4 and

       17-730 in that Trans Pac has advertised the sale of the proposed facility; and therefore, cannot give reasonable assurances that the facility will be operated in accordance with Florida law; and

    2. whether the application fails to comply with 403.723, Florida Statutes, in that Trans Pac has failed to demonstrate that its proposed facility will meet a demonstrated need for a hazardous waste facility.

       
       

36. To say the least, the determination of this case has been an agonizing and emotional process due to the very dangerous nature of the substances being proposed to be shipped to and located in Escambia County. The consequences of being wrong and allowing this facility to exist substantially increases the risk of an accident capable of killing people or damaging the environment so as to make it unlivable. Those consequences will not be visited on those making this decision, but on the people living close to the facility. Even the less serious impact of land devaluation due to the facility's presence is visited only on those owning land in northern Escambia County. 11/ Because of this very real danger, a heavy burden was placed on the applicant and the Department to demonstrate, within legal parameters, that they should prevail on the issues for determination in this proceeding. See Department of Transportation v T.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

    
    

37. In order to permit a hazardous waste facility, Rule 17-4.070, Florida Administrative Code, provides that the applicant provide reasonable assurances that the facility will not "discharge, emit, or cause pollution in contravention of Department standards or Rules."

    
    

38. There are no facts in evidence which indicate that Trans Pac's efforts at advertising the facility for sale will result in such pollution. To conclude that such efforts do constitute the failure to give reasonable assurances would require speculation that the facility will be sold and that the sale will be approved by the Department, the new owner would not be competent or capable to operate the facility, the new owner would not comply with permit requirements, and that such noncompliance would result in pollution. So much speculation far exceeds what may be considered in the context of reasonable assurances. See McCormick v. The City of Jacksonville, 90 ER-FALR 006 (Final Order dated January 22, 1990) and Pacetti v. Department of Environmental Regulation, 8 FALR 4050 (Final Order dated April 18, 1986).

    
    

39. Apart from the evidence being to speculative to be reliable or competent, the sole issue as presented on these facts is not ripe for determination. Rule 17-730.300, Florida Administrative Code, provides that permits may be transferred only upon Department approval. The fact that the Department's approval must be given for transfer of a permit means that the Department must take some agency action. At that time any affected person would be entitled to a clear point of entry to challenge the agency action. Manasota-

    88 Inc. v DER, 417 So. 2d 846 (Fla. 1st DCA 1982); Henry v DOA, 431 So. 2d 677 (Fla. 1st DCA 1983): and Highsmith v DPR, 499 So. 2d 19 (Fla. 1st DCA 1986). Since DER's rules do not provide for any notice of such a transfer to be published, such a requirement should be made part of the permit. Such a

    condition has been agreed to by Trans Pac. Therefore, an affected person has a way to protect his or her interests should a sale occur and at a time when more concrete facts are known about a potential purchaser.

    
    

40. Sections 403.721 and 403.722, Florida Statutes, govern the issuance of permits for hazardous waste facilities. Neither section contains any permit requirement based on the applicant demonstrating a need for the proposed facility within the region in which the facility's site is located. The only criteria which DER reviews in relation to a project's site are criteria relating to environmental considerations. In fact, the issuance of a permit does not authorize or preempt any local laws, regulations or requirements which may relate to such facilities, e.g. building permits or comprehensive plans. See 403.722 (8) and 403.7225 (4) and (5). "Zoning" considerations are relegated to a separate hazardous waste facility siting process. The siting process is set forth in 403.723, Florida Statutes.

    
    

41. Section 403.723, Florida Statutes, states in part:

    
    

    Siting of hazardous waste facilities.-- It is the intent of the Legislature to facilitate siting of proper hazardous waste storage facilities. In each region and any additional storage, treatment, or disposal facilities as required. The Legislature recognizes the need for facilitating disposal of waste produced by small generators, reducing the volume of wastes generated in the state, reducing the toxicity of wastes generated in the state, and providing treatment and disposal facilities in the state. (emphasis supplied)

    1. Each county shall complete a hazardous waste management assessment and designate areas within the county at which a hazardous waste storage

       facility could be constructed to meet a demonstrated need.

    2. After each county designates areas for storage facilities, each regional planning council shall designate one or more sites at which a regional hazardous storage or treatment facility could be constructed.

    3. The department, within 30 days of receipt of a completed application . . ., shall notify each unit of local government within 3 miles of the proposed facility that a permit application has been received and shall publish notice in a newspaper of general circulation in the area of the proposed facility that a complete permit application has been received.

    4. Upon request by a person who has applied for a hazardous waste facility permit . . ., the local government having jurisdiction over the proposed site shall, within 90 days of such request, determine whether or not the proposed site is consistent and in compliance with adopted local government comprehensive plans, local land use ordinances, . . . and other local ordinances in effect at the time a hazardous waste facility construction or modification permit application is

       made or is an area or site designated for the purpose of such facility .

    5. If the local government determines within 90 days of the request that construction or modification of the facility does not comply with such plans, ordinances, . . ., or area or site designations . . ., the person requesting the determination may request a variance .

    6. If the variance requested by the applicant is denied by local government or if there is no determination made by local government . . . within

    90 days of the request, . . . or request for the variance, The person requesting such determination or variance may petition the Governor and Cabinet for a variance from the local ordinances, . plans, or area and site designations.

    
    

42. The basic scheme of the siting process is simple. The process affords the local government input into the siting of a hazardous waste facility and the first opportunity to approve the location of such a facility. Since the application's submittals are tied to the proposed site, a wise applicant will request the local government to approve the facility's proposed location, during the processing of his application. Otherwise, the applicant runs the risk of obtaining a permit without a usable site. If the local government does not approve the site, the applicant must request a variance from the local government. If the local government does not grant a variance or does nothing regarding the variance request, the applicant is entitled to ask the Governor and Cabinet to override the decision of the local government.

    
    

43. Importantly, in order for the Governor and Cabinet to override a local decision adverse to the siting of a hazardous waste facility, the proposed facility must first obtain a permit from DER. 403.723(7), Florida Statutes. It is apparent from this statute that need has a limited effect within the Florida scheme for dealing with hazardous waste.

    
    

44. When interpreting statutes, the words in a statute must be given their plain and ordinary meaning. Brooks v. Anastasia Mosquito Control District, 148 So. 2d 64 (Fla. 1st DCA 1963). However, the language of a statute should not be construed in such a way so as to extend or modify the reasonable and obvious implications of a statute. Holly v Auld, 450 So. 2d 217 (Fla, 1984); Commercial Coatings v. DER, 548 So. 2d 677 (Fla. 3d DCA 1989). In essence, everything that is said by the legislature through its statutes must be taken in context with the statutory scheme which embodies that language.

    
    

45. The language at issue here is the phrase "demonstrated need" used in 403.723, Florida Statutes. The quoted phrase has a purpose. However, that purpose is defined by the intent of the legislature in enacting the statute and the statutory scheme in which that statute is found. As mentioned earlier, it is apparent that the intent of the legislature was to leave the issue of need to the siting process. Need is not mentioned in any other provision relating to hazardous waste. However, the most important indicator of the legislature's intent is embodied in Senate Concurrent Resolution #1146. That resolution specifically states that the legislature has not in the past and will not in the future impose barriers to the movement of hazardous waste. In essence, waste may be imported or exported in Florida. Such language presupposes that a barrier, such as the demonstration of need in a given locality for the issuance of a permit, does not exist and should not be imposed through the aegis of

    statutory interpretation. The foregoing is especially true when there is no statute defining the geographical area in which need is to be considered. This interpretation is further supported by the existence of the interstate agreement contained within Florida's CAP.

    
    

46. After analyzing all the relevant statutory, regulatory and historical data on the issue of need, the only honest conclusion is that need is not a requirement for the issuance of a permit to construct a hazardous waste facility. The mention of "demonstrated need" in 403.723 is directed to the counties and the region and is related only to the siting of a hazardous waste facility at locations designated by the region for such a purpose. The language does not pertain to the permitting of such a facility. 12/ Trans Pac's proposed site for its facility is not contained within one of the areas designated for such purposes, but is adjacent to such an area. Moreover, Trans Pac's proposed facility is not the type of facility which the Perdido Landfill site was designated for, i.e; a temporary transfer and storage facility. Such a designation as well as the region's hazardous waste plan, was required to be incorporated into the region's comprehensive plan. Since Trans Pac does not meet the specifics of the site's designation and does not comply with the region's comprehensive plan, it may be that Trans Pac has not obtained the necessary approval for the use of its proposed site. 13/

    
    

47. It is readily apparent from the facts that Escambia County objects to the siting of this facility because the facility does not meet the specifics of the site designated next door, is not needed, would import waste from out of the region and state, some of which is waste not present in the region, and would violate the county's or region's hazardous waste plans. It is also apparent that the county would not be amenable to granting a variance for the location of the proposed facility.

    
    

48. However, the approval or disapproval of a proposed site for a hazardous waste permit under the context of 403.723 rests first with the local government responsible for the area in which the proposed facility is to be located. That decision is not within the discretion of DER for permitting purposes. The anomalous situation of a proposed facility with a potentially unusable site is a direct result of bifurcating the permitting and siting procedures for hazardous waste facilities. The next step which may have to be taken by Trans Pac would be to petition the Governor and Cabinet for such a variance through the state override mechanisms of 403.723(6), (7), (8) and (9), Florida Statutes. 14/ Issues relating to the siting of the facility under 403.723 are not ripe for consideration in this proceeding since no petition has been filed with the Governor and Cabinet.

    
    

49. Since Trans Pac has otherwise met the requirements for the issuance of a hazardous waste permit and has given reasonable assurances that the facility will be operated in accordance with applicable law and permit conditions, the application of Trans Pac for the issuance of a hazardous waste construction permit should be granted subject to a permit condition requiring a pre-sale notice as described in this Recommended Order.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a final

order granting the application of Trans Pac, Inc., for a permit to construct a hazardous waste treatment and storage facility in Escambia County, Florida subject to a permit condition requiring a pre-sale notice as described in this Recommended Order.

DONE and ENTERED this 16th day of April, 1990, in Tallahassee, Florida.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 16th day of April, 1990.

ENDNOTES

1/ The removal of these issues was primarily due to the strategy utilized by Trans Pac in this proceeding. That strategy consisted of discovering the County's expert's opinions on why the facility did not meet Florida law and how those experts would correct those perceived deficiencies and bring the facility into compliance. Trans Pac then amended its application to incorporate the testimony of the County's experts and eliminated the grounds, not to mention any evidence of noncompliance, on which the experts based their opinions.

2/ The site designated by the West Florida Regional Planning Council as a site for a temporary storage and transfer facility was the Perdido Landfill. The site is owned by the County. The site designations are required, by statute, to be made part of the comprehensive plans of the county and the region.

3/ In 1985, EPA had identified approximately 300 chemical compounds that possess one or more of the characteristics of hazardous waste. See 40 CFR Part 261, Subparts C and D. Additionally, EPA had identified several industrial processes that are related to these chemical compounds. Florida has adopted EPA's definition of hazardous waste.

4/ The above-listed businesses produce more than three-quarters of the hazardous waste generated in Florida by medium and small businesses. The types of waste generated by these businesses are primarily waste oils and lubricants, potentially recoverable heavy metals, lead-acid batteries, spent solvents and still bottoms and ignitable waste paints. These wastes are particularly amenable to waste reduction efforts, recycling or recovery for reuse.

5/ The funds available under the Act are maintained in a trust fund known as the "Superfund."

6/ It should be noted that Trans Pac's proposed facility would be permitted to treat cyanide waste. Since cyanide waste is not generated in the West Florida Region it can only be concluded that such waste would be imported into the region from other Florida regions or from other states which produce such waste.

7/ There is also a hazardous waste temporary storage and transfer facility located in Tallahassee, Florida.

8/ The argument has been raised that Escambia County should be estopped from asserting a position contrary to the issuance of its Certificate of Need.

Ordinarily, such a situation as this would be an appropriate occasion for the application of the estoppel doctrine. See Florida Companies v Orange County,

411 So. 2d 1008 (Fla. 5th DCA 1982); and Monroe County v New Port Largo Inc.,

467 So. 2d 757 (Fla. 3rd DCA). Estoppel is an equitable doctrine. One of its elements is that its application not harm the public health and welfare. Because of the inadequacy of the County's determination of need and with evidence demonstrating that the County officials did not have any conception of the very complicated area they were dealing with, the public interest would not be served in this case by application of the doctrine of estoppel. Put simply,

the increased risk of harm to the public created by the permitting and siting of a hazardous waste facility far outweighs the reasons for applying the equitable doctrine of estoppel. It has also been argued that the certificate should be treated as an admission by the County that there is need within the county for such a facility. Even given such a designation, an admission is only one fact to be weighed with other facts in this case. The facts demonstrate that the need established in the regional plan was met by the siting of a temporary transfer and storage facility in Pensacola and that no new need within the region was established.

9/ The actual data is based on information gathered during 1987 and processed using a Dbase computer program following the guidelines established in the January Technical Reference Manual. The results of the analysis showed that 518,000 tons of hazardous waste was generated in Florida. About 455,000 tons of the waste generated was managed or disposed of onsite and 63,000 tons was managed or disposed of offsite, mostly out-of-state. About 18,000 tons were generated on a onetime basis. One company accounted for 412,000 tons of the waste managed onsite. The company's waste consists of corrosive waste which it injects into deep wells. The other major onsite treatment categories consisted of neutralization of corrosive waste (35,000 tons) and incineration of liquid waste (2,700 tons). Approximately 59,000 tons of waste were exported to other states for treatment and disposal. The main recipients of this waste were Alabama - 21,450 tons; South Carolina - 15,550 tons; Louisiana - 5,600 tons; Pennsylvania - 4,062 tons; Ohio - 3,350 tons; and Michigan - 3,030 tons.

Conversely, Florida imported approximately 19,300 tons of hazardous waste. The primary generators of these imports were Alabama - 8,460 tons; Georgia - 7,440 tons; Louisiana - 1,105 tons; Virginia - 750 tons; and South Carolina - 470 tons. About 800 tons of the total waste imported was recovered as a solvent and about 18,500 tons was burned as a fuel.

10/ That is not to say that the term "need" be defined to relate only to the amount of hazardous waste generated in Florida. The term "need" could very well cover the amount of imported waste needed to meet the contractual representations of the State under the interstate agreement.

11/ Although there is a theoretical possibility, no evidence was produced which would show that the Perdido River would be affected in the event of a disaster. In the case where such a situation could occur, such a happenstance would have effects and importance outside the region.

12/ However, that language may very well be a ground on which a local government or the Governor and Cabinet may tell a hazardous waste facility to find another site.

13/ The evidence did not demonstrate whether 403.723 (3), (4), (5) and (6) were complied with by either the applicant, DER or the local government. Since no evidence was submitted on these time frames, no conclusions are formulated regarding whether a failure to meet these time frames is jurisdictional to the Cabinet's consideration should a belated objection be raised by a local government.

14/ Another course of action potentially available to Trans Pac is a civil action in the Circuit Court should it have the evidence that the County is acting arbitrarily in the exercise of its duties in relation to the siting of this facility. However, exhaustion of administrative remedies through the Governor and Cabinet may be required before such a suit could be instituted.

COPIES FURNISHED:

C. Anthony Cleveland 2700 Blairstone Road Suite C

Tallahassee, Florida 32301

Thomas K. Maurer

111 North Orange Avenue Suite 1800

Orlando, Florida 32801

Steven Andrews 24081 Tamiami Trail

Bonita Springs, Florida 33923

1. Gary Early

   Department of Environmental Regulation

   2600 Blairstone Road

   Tallahassee, Florida 32399-2400

   
   

   Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road

   Tallahassee, Florida 32399-2400

   =================================================================

   AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA

   DEPARTMENT OF ENVIRONMENTAL REGULATION

   
   

   ESCAMBIA COUNTY,

   
   

   Petitioner,

   
   

   vs. DOAH CASE NO. 89-3760

   OGC CASE NO. 89-0704

   TRANS PAC, INC., and

   STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,

   
   

   Respondents.

   /

   
   

   FINAL ORDER

   
   

   On April 16, 1990, a Hearing Officer from the Division of Administrative Hearings ("DOAH") submitted to me and all parties her Recommended Order, a copy of which is attached as Exhibit A. On May 1, Respondent Trans Pac, Inc., ("Trans Pac") filed timely exceptions to the `Recommended Order. On May 2, Petitioner, Escambia County, ("County") filed exceptions, which are considered timely as a result of an agreement between the parties to extend the time for the filing of the County's exceptions by one day. A timely response to the exceptions was filed by Trans Pac. Thereafter, the matter came before me as Secretary of the Department of Environmental Regulation ("Department") for final agency action. Because of the previous one day extension, the Department requested and received from Trans Pac a one day extension in which to render the agency's decision.

   
   

   BACKGROUND

   
   

   On May 19, 1989, the Department's Northwest District Office issued a Notice of Intent to Issue permit no. 147682 to Trans Pac to construct a hazardous waste storage and treatment facility in Escambia County. The County then filed a request pursuant to Section 120.57(1), Florida Statutes, for a formal administrative proceeding concerning that Notice. The request was forwarded to DOAH for assignment of a Hearing Officer.

   
   

   Shortly before the scheduled final hearing, the parties executed a stipulation, in which the parties agreed "that of all of the disputed issues of material fact set forth in paragraph 6 of the Petition for Hearing, only those legal issues listed in subparagraphs 6an and 6ao remain for adjudication." A copy of the stipulation is attached as Exhibit B. In the stipulation the parties also resolved all factual disputes, removed from consideration the issue whether the proposed facility would meet the statutory and rule requirements for issuance of a hazardous waste facility permit, and agreed to convert the proceeding into an informal proceeding pursuant to Section 120.57(2), Florida Statutes. The parties further agreed that Hearing Officer Diane Cleavinger

   would preside over the informal proceeding, and that "an informal public meeting" would be held to allow members of the general public to comment on the proposed permit.

   
   

   According to the Hearing Officer, at the final hearing the following occurred: The parties offered the stipulation into evidence, neither party presented any testimony, some members of the public testified during the public meeting, and three exhibits were offered into evidence by members of the public. The public comments were considered and utilized by the Hearing Officer in her Recommended Order. (Recommended Order at p. 4)

   
   

   The Recommended Order contained 33 Findings of Fact, in consecutively numbered paragraphs, and 16 Conclusions of Law, not consecutively numbered. For purposes of this Order, I shall treat the Conclusions of Law as if they were consecutively numbered. The two legal issues to be decided, the "transfer of permit" issue and the "need" issue, are set forth in subparagraphs 6an and 6ao of the County's petition and at page 28 of the Recommended Order:

   
   

   1. Whether the application fails to comply with Section 403.723, Florida Statutes, in that Trans Pac has failed to demonstrate that its proposed facility will meet a demonstrated need for a hazardous waste facility; and

   2. Whether the application fails to comply with Florida Administrative Code Chapter 17-4 and

17-730 in that Trans Pac has advertised the sale of the proposed facility; and therefore cannot provide reasonable assurances that the facility will be operated in accordance with Florida law.

Ultimately, the Hearing Officer determined that the possible transfer of a permit is not relevant in a construction permit context, and "need" is not a prerequisite for issuance of such a permit. She therefore recommended that the permit be issued.

RULINGS ON EXCEPTIONS

The County filed exceptions to nine Findings of Fact and twelve Conclusions of Law. Trans Pac filed sixteen exceptions, three of which dealt with Conclusions of Law. Neither party filed a transcript of the proceedings with the Department.

Before ruling on the parties' various exceptions, I must make an observation about the type of administrative proceeding held in this case. A formal administrative proceeding held pursuant to subsection (1) of Section 120.57, Florida Statutes, differs from an informal administrative proceeding held pursuant to subsection (2), in that the former involves "disputed issues of material fact." (Emphasis added.) It is incumbent upon a petitioner to put at issue such disputed issues of material fact. Department of Transportation v.

J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Here, the County agreed that it did not dispute any issues of material fact. Rather, it disputed the Department's legal determination that the issues of "transfer" and "need" are not relevant to the issuance of a permit to construct a hazardous waste storage and treatment facility. With the agreement of the other parties, the County properly chose to dispute that legal decision in an informal administrative proceeding pursuant to subsection (2).

1. Exceptions to Findings of Facts

   
   

   In a formal administrative proceeding, where material facts are in dispute, findings of fact can be overturned only when not supported by competent substantial evidence. Section 120.57(1)(b)10., Florida, Statutes. Rule 17- 103.200(1), F.A.C., requires that "[a]ny exception disputing a finding of fact must be accompanied by a complete transcript of the hearing." The function of a transcript is to allow me to make a determination concerning competent substantial evidence. The Department has consistently rejected exceptions to findings of fact when such exceptions cannot be tested against a complete transcript. See, e.g., Chipola Basin Protection Group, Inc. v. DER, 11 FALR 467 (Final Order dated December 29, 1988); Brown, et al. v. The U.S. Naval Air Station and DER, 9 FALR 5592 (Final Order dated October 1, 1987). The policy embodied in thin rule has been judicially approved. Booker Creek Preservation, Inc. v. DER, 415 So.2d 750 (Fla. 1st DCA 1982).

   
   

   In an informal proceeding, where material facts are not in dispute and have no reason to be overturned, there is no procedure similar to the one set out in Section 120.57(1)(b)10., Florida Statutes. However, during the course of a Section 120.57(2) proceeding, if material facts become disputed, the informal proceeding can be converted into a formal one. See E.N. Watkins' Co. v. Board of Regents, 414 So.2d 583 (Fla. 1st DCA 1982).

   
   

   The parties' stipulation contained agreed facts relating to the issues of need and transfer. (Exhibit B at Paragraphs 3 and 4) The parties did not agree that these were all of the facts relevant to those issues; and it is doubtful whether such an agreement, if entered, would be binding on the officer presiding over a Section 120.57(2) proceeding. See Section 120.57(2)(a)2., Florida Statutes (affected persons can present oral or written evidence to a hearing officer in an informal administrative proceeding).

   
   

   It is not clear from the Recommended Order whether the Hearing Officer considered the testimony of members of the public to be evidence from affected persons, or whether she considered it as "public comment" (Recommended Order at

   p. 3) of the kind described by Trans Pac in paragraph 4 of its Exceptions to Recommended Order. Either way, in light ,of my ruling of the relevancy of the contested Findings of Fact, this point is moot.

   
   

   Here, both parties take exception to, and thus dispute, many of the facts found by the Hearing Officer. Since both parties are estopped from challenging facts to which they stipulated, it is apparent that the disputed facts are based on the testimony and exhibits presented by the public, or upon the contents of the documents attached as Exhibits B through E to the stipulation.

   
   

   If the facts disputed by the parties are material, then it would be appropriate for me to convert the proceeding to a formal one and remand the case to DOAH for a full evidentiary hearing. See City of Jacksonville v. Florida, Public Employees Relations Commission, 371 So.2d 1045 (Fla. 1st DCA 1979). If these facts are not material, then they are of no legal import, but rather serve as background information which assists the Hearing Officer in explaining the issues presented in this matter.

   
   

   A material fact is one which is at issue and is of consequence to the determination of the outcome of a given proceeding. Ehrhardt, Florida Evidence, Section 401.1 (2d Ed. 1984). Here, by stipulation, the issues have been very narrowly drawn, and can not properly be enlarged. As noted in Sanders v. Bureau of Crimes Compensation, 474 So.2d 410, 411 (Fla. 5th DCA 1985):

   We think [the stipulation] is conclusive. Clearly, both the parties and deputy commissioner are bound by the stipulation. (Citations omitted.) Further, a finder of fact may not rule upon issues which are outside the record and beyond the scope of the hearing. (Citations omitted.)

   
   

   See also Gandy v. Department of Offender Rehabilitation, 351 So.2d 1133, 1134 (Fla. 1st DCA 1977); and Manatee County v. Florida Public Employees Relations Commission, 387 So.2d 446 (Fla. 1st DCA 1980).

   
   

   My review of the Findings of Fact portion of the submitted Recommended Order indicates that findings to which exceptions were taken go beyond the stipulated issues of permit transfer or need, and are not necessary to reach conclusions on the legal issues involved. Therefore, those findings are not relevant to the Hearing Officer's decision and should be considered as background information only.

   
   

   Most of the exceptions relate to typographical errors or perceived incomplete, and therefore inaccurate, statements in the Finding of Fact paragraphs. In light of my ruling on the relevancy of the Findings of Fact excepted to, these errors or omissions, when present, are harmless. However, to the extent that Findings of Fact numbers 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,

   13, 14, 15, 20, 21, 22, 23, 27, 28, and 33 go beyond the scope of the stipulation, those portions of the Findings shall not be adopted as part of this Final Order. In this regard, it should be noted that no party at any time during the proceedings, including the filing of exceptions, requested that this matter be changed from a Section 120.57(2) to a Section 120.57(1) proceeding.

   Therefore, I see no prejudice to any party in not adopting these findings, nor should this action have any bearing on the outcome of this proceeding.

   
   

2. Exceptions to Conclusions of Law County Exceptions 10 and 11

   The County's exceptions to Conclusions of Law numbers 5 and 6 attack the determination that a possible transfer of the construction permit at issue is irrelevant to the granting of that permit. This transfer concern is based upon the far that a permit transferee will operate the facility in violation of the permit. It is summed up by the County's assertion that "if an applicant is not committed to operating a hazardous waste facility, it should not be permitted to construct a hazardous waste facility." This assertion is legally unsupportable, and the Hearing Officer's conclusion on this issue is correct.

   
   

   Any construction permit from the Department authorizes the permittee, for a relatively short period of timed to operate and test the constructed facility.

   Rule 17-4.210(3), F.A.C. The proposed permit specifically authorizes the permittee "to perform the work or operate the facility shown on the application and approved drawing(s), plans and other documents attached hereto or on file with the Department..." Such operational aspects of a construction permit do not require a concurrent inquiry into the fitness of possible transferees to comply with conditions of the permit.

   The fitness of possible transferees is addressed in two separate Department rules which govern transfers: Rule 17-4.120, F.A.C., which regulates the transfer of permits generally; and Rule 17-730.300(2), F.A.C., which considers specifically the transfer of hazardous waste permits. Department approval is required for transfers under either rule. Such approval would be granted, unless the Department determines that the proposed transferee cannot provide reasonable assurances that it will meet the conditions of the permit being transferred. As an additional safeguard, Rule 17-730.300(3), F.A.C., requires the permit holder/transferor to continue to comply with the financial responsibility requirements contained in 40 CFR 265 Subpart H until the transferee has demonstrated financial responsibility under that Subpart. As pointed out by the Hearing Officer, challenges to a permit transfer become ripe only when the Department takes action on a requested transfer, not before.

   Therefore, these exceptions are rejected. County Exceptions 7 through 15

   The County also takes exception to the Hearing Officer's determination that an applicant is not legally required to demonstrate need for a proposed hazardous waste facility. Section 403.723, Florida Statutes, provides, in pertinent part, that

   
   

   each county shall ... designate areas within the county at which a hazardous waste storage facility could be constructed to meet a demonstrated need.

   
   

   As found by the Hearing Officer, the phrase "demonstrated need" in that section is directed to counties and not to individual permit applicants. A complete reading of Section 403.723, Florida Statutes, makes clear that the section relates to the siting of hazardous waste facilities by local governments, and not to the permitting of such facilities by the Department. The word "need" is also mentioned in Section 403.7225, Florida Statutes. That section is similar to Section 403.723, Florida Statutes, in that it is directed to regional planning councils and to the Department, rather than to individual permit applicants.

   
   

   The Hearing Officer's analysis of the statutory hazardous waste siting scheme is well reasoned and accurate. Need is not a factor to be considered by the Department in the permitting of a hazardous waste facility. Therefore, I reject the County's exceptions to Conclusions of Law numbers 7 through 15.

   
   

   County Exception 16

   
   

   The County's last exception deals with Conclusion of Law number 16, which states that Trans Pac has "met the requirements for the issuance of a hazardous waste permit and has given reasonable assurances that the facility will be operated in accordance with applicable law and permit conditions." In support of this exception, the County refers to the arguments contained in its Statement of Position, a document filed with the Hearing Officer on March 5, 1990, and relied upon by her in rendering her Recommended Order.

   
   

   The Statement of Position addresses the same two issues and contains essentially the same arguments that are set out in the County's exceptions. It does not address any other requirements for permit issuance or reasonable assurances. In light of the stipulation of the parties, this excepion appears to be a "catch-all" challenge to the need and transfer issues, which underlay

   the ultimate Conclusion of Law in number 16. To the extent that this exception goes beyond those two issues, it must be rejected, for failure to "state, with particularity, the basis for asserting that the hearing officer erred." Rule 17-103.200(1), F.A.C. Therefore, the exception is rejected.

   
   

   Trans Pac Exception 17

   
   

   Trans Pac excepts to Conclusion of Law number 17, wherein the hearing officer determined that DOAH has jurisdiction over this matter "pursuant to Section 120.57(1), Florida Statutes." This statutory citation appears as the first conclusion of law in virtually all Section 120.57 recommended orders arising out of proceedings conducted by DOAH. In light of the fact that no parties submitted proposed recommended orders to the hearing officer, it is quite possible that this "boilerplate" citation was included in error. By agreement, this is a Section 120.57(2), informal proceeding. DOAH's jurisdiction oven this matter is based upon that stipulation, and not upon Section 120.57(1). Therefore, Trans Pac's exception is accepted.

   
   

   Trans Pac Exception 18

   
   

   This exception challenges Conclusion of Law number 3, which contains both findings of fact and a conclusion of law. The paragraph appears to discuss factual findings that would properly be the subject of expert opinion, and are outside the scope of the stipulation. Since neither party presented testimony on these factual matters, they can not have been actually litigated. Although the factual statements in Conclusion of Law number 3 elucidate the reason for the heavy burden of proof placed upon the applicant, they are not relevant to the issues in this proceeding. Therefore, for the reasons set forth earlier, the factual findings in Conclusions of Law No. 3 are not adopted as part of this Final Order. To this extent, Trans Pac's exception number 18 is accepted.

   
   

   Trans Pac Exception 19

   
   

   Trans Pac takes exception to Conclusion of Law number 14, also because of the factual nature of the paragraph. The paragraph begins, "It is readily apparent from the facts that Escambia County objects to the siting of this facility because the facility does not ...," and continues by listing certain of the County's concerns about the proposed facility. To the extent that this paragraph merely reiterates the County's concerns, as opposed to finding them to be true, it is appropriate as a preamble to Conclusion of Law number 15. To the extent that it finds the County's concerns to be factually accurate, it is beyond the stipulation and not relevant to the issues herein. Therefore, Trans Pac's exception number 19 is accepted only to the extent that the statement could be considered as containing facts established outside the scope of the stipulations.

   
   

   CONCLUSION

   
   

   The Florida Legislature has recognized that hazardous waste "may pose a substantial present or potential hazard to human health or the environment when improperly ... treated or stored." Section 403.703(23), Florida Statutes.

   Improper treatment or storage of hazardous waste is understandably of concern to the public. With public protection in mind, the Department has adopted stringent rules, at Chapter 17-730, F.A.C., which have been approved by the United States Environmental Protection Agency, to make sure that human health and the environment are protected by the proper construction and operation of hazardous waste storage and treatment facilities. These rules incorporate 40

   CFR Parts 264 and 270, which take up over 150 pages in the Code of Federal Regulations. The rules prohibit facilities such as the one proposed here from discharging hazardous wastes into the air or waters of the State. The rules also require preventative measures to protect against spills and to require such a facility to respond quickly in the event of a spill. By entering the stipulation, the County has, in essence agreed that the facility will comply with these rules. In response to the County's concerns, Trans Pac has agreed to threes pages of amendments to the permit application in order to provide further safeguards at the proposed facility.

   
   

   Stringent rules and safeguards are only effective, however, if there is compliance with them. In recognition of our important responsibility to ensure compliance with hazardous waste rules, I am directing the staff of the Department's Northwest District Office to scrutinize closely the construction of the proposed facility to make sure that it is built in accordance with the plans that have been approved. They are further directed to advise the County of any proposed modification to the construction permit, and of receipt of any application for a permit transfer or for an operation permit for the facility.

   If the Department becomes aware of violations of the permit during the construction or testing of the facility, the County must also be notified, and compliance actions must be promptly initiated. Should Trans Pac file an Application for Transfer of Permit, the Department is directed to scrutinize carefully the transferee's ability to comply with the permit. As the parties have stipulated, the County will be notified of any Department decision and given an opportunity to review the fitness of the transferee.

   
   

   When all is said and done, it is clear that Trans Pac's application meets the Department's requirements for permit issuance, and that there is no factual dispute among any of the parties on Trans Pac's entitlement to a construction permit. As the Hearing Officer concluded:

   
   

   Since Trans Pac has otherwise met the requirements for the issuance of a hazardous waste permit and has given reasonable assurances that the facility will be operated in accordance with applicable law and permit conditions, the application of Trans Pac for the issuance of a hazardous waste construction permit should be granted.

   
   

   Since there is no legal or factual basis for me to reject that conclusion, the permit must issue.

   
   

   Accordingly, based upon the foregoing analysis and conclusions, it is ORDERED:

   
   

   1. The findings of fact and conclusions of law contained in Exhibit A are adopted, except as modified herein.

      
      

   2. The Department shall forthwith issue permit No. 157682, with a condition requiring a pre-sale notice as described in the Recommended Order.

      
      

   3. Trans Pac's permit application is deemed to incorporate the twenty separate items set forth in Exhibit A to the stipulation of the parties (Exhibit B hereto) and is deemed amended in accordance with paragraph 5 of Exhibit B hereto.

   4. The Department's Northwest District Office is directed to provide close scrutiny and notice to the County as set forth in the Conclusion to this Final Order.

Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.

DONE AND ORDERED this 1st day of June 1990, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

DALE TWACHTMANN

Secretary

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Telephone: (904)488-4805

FILING AND ACKNOWLEDGMENT

FILED, on this date, pursuant to s 120.52 Florida statutes, with the designated Department Clerk, receipt of which is hereby acknowledged.

6/1/90

Clerk Date

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to:

C. Anthony Cleveland, Esq. Thomas K. Maurer, Esq.

Oertel, Hoffman, Fernandez, Foley & Lardner, Van Den Berg, and Cole, P.A. Gay, Burke, Wilson & Arkin

Post Office Box 6507 111 North Orange Avenue Ste 1800 Tallahassee, FL 32314-6507 Orlando, FL 32801

by U.S. Mail on this 1st day of June, 1990.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

WILLIAM H. CONGDON

Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Telephone: (904)488-9730

Docket for Case No: 89-003760

Orders for Case No: 89-003760