Findings Of Fact Patco proposes to build a dock offshore of a condominium it is now constructing on Anna Maria Key in Manatee County, Florida. At the proposed dock, condominium residents could moor 22 boats in Watson's Bayou, which opens onto Sarasota Pass (also known as Anna Maria Sound). A house owned by Mildred S. Mansfield, petitioner Peter's mother, sits on a waterfront lot on the north shore of Watson's Bayou. The main part of the proposed dock would parallel the edge of the bayou, running 248 feet in a north-south direction, 30 to 45 feet offshore. Some 47 marine pilings six inches in diameter would support the decking on the main part, which would be elevated four feet above mean sea level. At its mid- point, the main part of the dock would be joined to the land by a perpendicular- access walkway with the same open substructure and at the same height as the main part of the dock. Of the ten pilings planned as the foundation for the access walkway, six would be seaward of the mean high water line. Eleven catwalks or finger piers are planned to extend perpendicularly into the bayou from the main part of the dock, at intervals of 24 to 28 feet. Two six inch marine pilings would support each catwalk or finger pier at a height of slightly more than three feet above mean sea level. Between every pair of finger piers, two boat slips are planned; and slips are planned on either side of every finger pier. Between every pair of slips not separated by a finger pier, Patco proposes to place a mooring piling, equidistant from the two finger piers nearest it. These ten mooring pilings would stand seaward of the finger piers, but no more than 70 feet seaward of the mean high water line. Patco also plans to put in two pilings along each of two imaginary lines, running shoreward from either end of the main part of the dock, and perpendicular to the main part of the dock. The purpose of these pilings, which would be about eight feet apart, would be to discourage boat traffic between the main part of the dock and the shore. Two boulders would be placed in shallow water for the same purpose. A water system and electrical service are planned for the dock, but neither fuel nor lubricants are to be dispensed and no waste or sewage system is planned. Patco plans to operate the facility, including emptying containers it intends to provide for trash, until it sells the dock to an association of slip owners, who will take over its management. Patco will not allow people to live aboard boats moored at the dock and a condition of any sale to an association will be that the association not allow live-aboards. With occasional breaks, there is a fringe of black, white and red mangroves along the shore opposite the main part of the proposed dock. Louise Robertson testified without contradiction that mangroves bordering Patco's property have been trimmed and in some cases cut down. The access walkway is planned for one of the natural breaks in the mangrove fringe, however, a spot where there are no mangroves. Applicant's Exhibit No. 6. The waters of Watson's Bayou are Class III waters. Experience with a similar dock built by Patco near the proposed site some 15 months before the hearing indicates that the proposed dock would not violate DER's water quality standards. Shortly before the hearing, a biologist's superficial examination of waters in the vicinity of the dock that has been built revealed no water quality problems as a result of the dock. Increased boat traffic in the vicinity would result in additional oils and greases in the water but, after reasonable opportunity for mixture with the waters of Watson's Bayou, oils and greases would probably not exceed 15 milligrams per liter, or otherwise violate the criteria set forth in Rule 17-3.05(2)(r) Florida Administrative Code. Patco plans to engage a subcontractor to put the pilings in. The subcontractor would "jet" the pilings by using a pump mounted on a barge to force water down to the bottom through a hose. This process would result in sand being temporarily suspended in the water. Patco proposes to curtain off or "diaper" the area where pilings are to be jetted in, so as to contain the turbidity, and so as to keep silt out of an oyster bed nearby. The parties stipulated that the project would not violate turbidity standards, if such precautions are taken. The parties also stipulated that the proposed dock would not violate DER's dissolved oxygen or biochemical oxygen demand standards. The evidence established that DER has reasonable assurance that none of its water quality standards would be violated by the dock Patco proposes to build. At mean sea level, there is ample water at the site of the proposed slips to float any vessel capable of entering Watson's Bayou from the waters outside. The channel into Watson's Bayou from Sarasota Pass is only three feet deep at low tide. This shallow channel prevents boats drawing more than a few feet from entering the Bayou through the channel, but a 46 foot ketch once came in on a high tide. In the proposed slips, mean sea level depths would range from six or seven feet at the seaward end of the finger piers to three or four feet at the landward end of the slips. Mean low water depths are about seven/tenths of a foot lower. With a spring tide, the water may fall six inches below mean low water levels. There is virtually no danger that boats would run aground in the proposed slips. The bottom underneath the proposed dock is sandy and wholly devoid of grasses or other marine vegetation. Between the shore and the main part of the dock however, there is an oyster bed whose northern edge is approximately five or ten feet south of the site proposed for the access walkway. This oyster bed extends about 280 feet in a southerly direction, but does not extend as far west as the site proposed for the main part of the dock. Jetting in the proposed pilings would not result in the death of a single oyster. As long as boats stay on the seaward side of the main part of the proposed dock, the oysters would not be harmed by boat traffic. Other fauna at the site include some benthic polychaetes, tunicates and other arthropods. The jetting in of pilings would injure and displace any of these creatures who were in the immediate vicinity, but their mobility is comparable to that of fishes and they would soon reestablish themselves. Once in place, the pilings would afford a habitat for barnacles and related marine life. A public boat launching ramp is situated 150 to 200 feet from the southern end of the proposed dock. The ramp is far enough away from the proposed dock that construction of the dock would not interfere with launching boats. The water in this part of Watson's Bayou is deep enough that the proposed dock would not create a serious impediment to navigation. Under certain wind conditions, however, a sailboat beating into the main part of Watson's Bayou from the ramp might have to make an additional tack or two if the proposed dock is built. Conversely, with southerly winds, a boat under sail making for the ramp from the main part of Watson's Bayou might have to tack more often if Patco builds the dock it proposes. The dock Patco plans to build would not create a navigational hazard nor cause erosion of the shoreline. The parties stipulated that the dock would not substantially alter or impede the natural flow of navigable waters. The State of Florida owns the bottom into which Patco plans to jet pilings. Respondent DER contacted Florida's Department of Natural Resources about the proposed dock in October, 1978. By letter dated November 21, 1978, the Department of Natural Resources advised the DER that the project would "not require a lease . . . as this application is considered a private dock." DER's Exhibit No. 1. On the strength of biological and ecological surveys and repeated visits to the site by Linda Allen, an environmental specialist in DER's employ, the DER gave notice of its intent do issue the permit Patco seeks. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER grant Patco's application for permit on the following conditions: That no submerged or transitional vegetation be destroyed in constructing the dock. That the construction area be diapered so as to restrict siltation to the smallest practicable space and, in any event, so as to separate the work area from the oyster bed. That no dredging by any method be used to gain access to the dock. That the owner of the dock allow no docking except in slips seaward of the main part of the dock. That the owner of the dock maintain lines and floats between the ends of the main part of the dock and the landward pilings; and take other appropriate steps to discourage boat traffic between the main part of the dock and the shore. That the owner of the dock forbid living on board boats moored at the dock; forbid the discharge of sewage and garbage into the water; and furnish trash receptacles for the dock. DONE and ENTERED this 6th day of June, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 APPENDIX Paragraphs one through eleven, thirteen through seventeen and nineteen through twenty-two of respondent Patco's proposed findings of fact, have been adopted, in substance. Paragraph twelve of respondent Patco's proposed findings of fact has been adopted insofar as the plan for pilings and boulders. The evidence did not establish that this, without more, would suffice to protect marine life on the bottom between the shore and the main part of the dock. Paragraph eighteen of respondent Patco's proposed findings of fact reflects the evidence in that it was shown that the proposed dock would not degrade water quality below minimum standards for Class III waters; but degradation of water quality as a result of oils and greases can be expected, within lawful limits. COPIES FURNISHED: Dewey A. Dye, Jr., Esquire Patricia A. Petruff, Esquire Post Office Box 9480 Bradenton, Florida 33506 Alfred W. Clark, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Peter W. Mansfield 1861 Meadow Court West Palm Beach, Florida 33406
Findings Of Fact The applicant proposes to construct a concrete boat ramp on the south bank of the Eau Gallie River in Brevard County. The Eau Gallie River is a tributary of the Indian River and is a Class III water body as defined in Chapter 17-3, Florida Administrative Code (F.A.C.). 1/ The ramp would be 17 feet wide and 64 feet long. Approximately half the length would extend into waters of the Eau Gallie River over which DER has. Jurisdiction under Chapters 403 and 253, F.S. The construction would involve the removal of 47 cubic yards of soft bottom material waterward of ordinary high water and the filling of 35 cubic yards of compacted material also waterward of ordinary high water. In addition, 38 cubic yards would be excavated landward and 72 cubic yards would be filled landward of ordinary high water. The boat ramp is to be a private facility not once to the general public. The applicant sought this permit in conjunction with the upland development of its river front property. The applicant's property extends for approximately one-half mile along the north bank of the Eau Gallie River. At build out, the applicant estimates that the property will contain several hundred apartment units which may eventually be converted to condominiums. The lessees or condominium owners would have access to the proposed boat ramp. Petitioner, Tom Hall, is an adjacent property owner who is concerned that increased boat traffic on the Eau Gallie River in the vicinity of the boat ramp would adversely impact manatee and other wildlife and marine resources. At various times of the year, manatees can be observed in the Eau Gallie River in the vicinity of the proposed boat ramp. The river also contains a variety of fish and supports a local population of water fowl. The river in the vicinity of the proposed boat ramp is generally not more than one to two feet in depth. The boat ramp is designed to launch only small craft such as canoes, rowboat or jonboats with small trolling motors. The application does not request the issuance of a permit to dredge a navigational channel to enable the beat ramp to accommodate larger power craft. The testimony of DER's expert witness established that the small craft which could be launched from the boat ramp would not pose a threat to the manatees that frequent the area. Rather, it is the larger power boats that endanger this marine mammal. There are no other wildlife or marine resources which would be impacted significantly by the construction of the boat ramp. Additionally, it should be noted that this project would benefit the several hundred residents of Brevard County who would eventually have access to the boat ramp. The testimony of DER's expert witness established that there would be no long-term violations of DER water quality standards as a result of the construction and use of the boat ramp. Short-term impact during construction would be minimal since turbidity screens are to be employed. Thus, the applicant has provided reasonable assurance that the short-term and long-term effects of the construction and use of the boat ramp will not result in violation of DER's water standards. It is important to note that, as long as no dredging of filling is involved, there is no legal impediment preventing riparian landowners from launching boats from their river front property or engaging in recreational boating activities in the portion of the boat ramp could cause continuous turbidity problems and damage valuable habitat along the river front. By confining the alteration of the littoral zone to such a small area as that involved in the application and thus guaranteeing adequate, comfortable access for the riparian owner, the survivability of the remaining littoral in its natural state would be significantly enhanced. Petitioner Hall theorizes that boats who would otherwise use downstream public boat ramps will instead launch at the site of the proposed ramp. However, there was no evidence submitted to support this theory. Given the ease with which small boats could be launched without any ramp at this site, it does not appear that the ramp itself would generate additional activity involving canoes and other small craft. Since the launching of power boats is not feasible because of the shallow river depth, such traffic is not likely to be affected by construction of the proposed ramp.
Findings Of Fact Respondent Felo McAllister and his wife Dorothy own a home and dock on Texar Bayou off Escambia Bay in Pensacola, Florida. A storm sewer with a diameter of 15 to 18 inches empties into the Bayou near the dock. The silt- laden outflow from the storm sewer has resulted in a sand bar or berm two or three feet wide paralleling the shoreline from the McAllisters' property line to the dock. This sand bar separates a ditch caused by the outflow from Texar Bayou. Over the years, silt has accumulated underneath the dock. The McAllisters originally applied for a permit to dredge boat slips at the dock. Andrew Feinstein, an environmental specialist II in respondent Department's employ, evaluated the original application and recommended denial, because he felt extending the dock was preferable to dredging. The McAllisters then modified their application so as to seek a permit for dredging at the mouth of the storm sewer in order that the silt already deposited there would not wash underneath the dock. Mr. Feinstein and Michael Clark Applegate, an environmental specialist III and dredge and field supervisor employed by the Department, testified without contradiction that the Department has reasonable assurances that the proposed project will not violate any applicable rules. The permit DER proposes to issue contemplates that the berm will not be breached. The bottom on which the dredging is proposed to take place belongs to the City of Pensacola. Although under water, it is a part of a dedicated roadway. The City itself does maintenance dredging to ensure the efficiency of storm sewers, but is glad for assistance from private citizens in this regard. J. Felix, City Engineer for Pensacola, is authorized allow dredging on this road right of way, and has done so. See also respondent's exhibit No. 2. The site proposed for placement of the spoil is a low area affected by flooding. Fill there would affect drainage onto neighbors' property.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent DER issue respondent McAllister the permit it proposed to issue in its letter of September 14, 1979, upon condition that the spoil be placed at least 100 feet from the water's edge. DONE and ENTERED this 12th day of February, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: William L. Hyde, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Larry Jay Sauls and Ms. Harriett Tinsley Sauls 14 West Jordan Street Pensacola, Florida 32501 Felo McAllister 2706 Blackshear Pensacola, Florida 32503
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the parties' stipulations of fact, the following relevant facts are found: In 1985, petitioner Linder Truck Center, Inc. (Linder) purchased Lakeland Frame and Axle, which was then a General Motors Corporation (GMC) Truck dealer in Lakeland, Florida. In July of 1985, Linder entered into a Dealer Sales and Service Agreement with GMC, and thereafter, entered into a replacement Agreement effective November 1, 1985. Under the terms of the Dealer Agreement and various addenda, Linder was granted a non-exclusive right to buy, sell and service certain specified light duty, medium duty and heavy duty trucks marketed by GMC. The provisions of the Agreement between Linder and GMC provide that GMC may discontinue any product at any time and its only obligation is to manufacture and deliver to the dealer accepted orders which the dealer does not elect to cancel. The Dealer Agreement and addenda delineate Linder's areas of primary responsibility (APRs) for the three types of trucks. The APRs are different for light, medium and heavy duty trucks because of the different volume base for each category. Since the volume base for heavy duty trucks is smaller, the APR for such trucks is larger in order to provide the dealer with sufficient volume base to make economically viable the dealer's heavy duty marketing and after- market support. On or about November 1, 1985, GMC certified to the Florida Department of Highway Safety and Motor Vehicles (DHSMV) that Linder was authorized as a dealer to sell and service new motor vehicles commonly known and designated as GMC Trucks. On or about September 10, 1986, GMC notified all its truck dealers of the anticipated creation by AB Volvo and GMC of a joint venture company which would manufacture and distribute heavy duty trucks. On or about November 7, 1986, Linder received from GMC four Motor Vehicle Addenda to the Dealer Sales and Service Agreement which superseded prior addenda. At the same time, GMC delivered a letter informing Linder that GMC had agreed to form a joint venture with AB Volvo which would manufacture, assemble and distribute heavy duty trucks in the United States, and that GMC would discontinue and no longer distribute or market heavy duty trucks in the United States. The letter also stated that it was anticipated that Linder's Heavy Duty Motor Vehicle Addendum would be cancelled no later than December 31, 1987. This same letter was sent to all GMC truck dealers. By letter dated December 23, 1986, GMC notified Linder that GMC would cease offering heavy duty trucks for sale in North America on December 31, 1987, and that, consequently, the current Heavy Duty Motor Vehicle Addendum would expire on that date. The Department of Highway Safety and Motor Vehicles was likewise informed of this action. During the period ending December 31, 1987, GMC manufactured and distributed three heavy duty truck products: the Brigadier, the Astro and the General. Prior to the early 1980's, GMC held a relatively strong position in the heavy duty truck industry, with its market share being in excess of 16 percent. Its share of the market for heavy duty trucks declined precipitously to 8 percent thereafter and the manufacture and sale of its heavy duty truck models became increasingly unprofitable for GMC. It balanced the alternative of completely liquidating its hard assets formerly devoted to the manufacture and distribution on its heavy duty truck models against that of utilizing those assets as contribution with another manufacturer in a joint venture operation. Considering that it then had approximately 170,000 heavy duty trucks on the road and desiring to assure coverage and availability of service parts, GMC determined to contribute its heavy duty truck assets and other assets to form a joint venture with AB Volvo, to be known as the Volvo GM Heavy Truck Corporation. As it did with Linder, GMC provided to all its heavy duty truck dealers approximately a year's notice of the joint venture agreement with Volvo, as well as notice that GMC would cease offering heavy duty truck products for sale in North America on December 31, 1987. It also notified its dealers that a priority for the joint venture would be the selection of a dealer network to sell and service the joint venture's products. GMC's heavy duty truck dealers were advised that not all would obtain a dealer agreement for heavy duty trucks from the joint venture. At the time of the joint venture, Volvo had approximately 200 to 210 dealers for heavy duty trucks, and GMC had approximately 350 heavy truck dealers. In January of 1988, approximately 240 dealerships were awarded on behalf of the joint venture. While Linder actively sought to be selected as a Volvo GM Heavy Truck Corporation dealer, it was notified by letter dated July 30, 1987, from Volvo GM that it had not been selected as a joint venture dealer. There was no evidence adduced at the hearing to establish how many of the dealerships awarded by the joint venture were formerly GMC or formerly Volvo heavy duty truck dealers. Likewise, there was no evidence as to whether or not a dealership was awarded for Linder's former area of primary responsibility for the sale and/or service of heavy duty trucks. Pursuant to the joint venture agreement, GMC owns a 24% stock interest in Volvo GM Heavy Truck Corporation, and the remaining 76% interest is owned by Volvo North America Corporation. GMC has the option to purchase an additional 11% of the stock in 1993. GMC is a Class B stockholder, and holds 3 of the 10 seats on the Board of Directors. By majority vote of the GMC Directors, GMC does have veto powers over some 18 out of the ordinary-type decisions, such as a change in the vehicle nameplates, waivers of dividends and a sale of the company. The business of Volvo GM is to manufacture and market Class 8 vehicles (heavy duty trucks) and to sell the Volvo Line of medium duty trucks. The joint venture calls for the discontinuance by GMC of the manufacture of all heavy duty truck models, with the temporary exception of the Brigadier model. Had the Brigadier model not been manufactured during 1988, Volvo GM would not have been able to meet the demand for heavy duty trucks in 1988. That model was manufactured by GMC during 1988 under exclusive contract to the joint venture, Volvo GM Heavy Truck Corporation, for distribution by the joint venture under its own nameplate (White GMC Brigadier) and warranty. The manufacture of the Brigadier trucks was discontinued on or about December 16, 1988. Thereafter, the joint venture will design, produce and market a completely different vehicle as a replacement to sell into the market that the Brigadier previously sold into. During 1988, GMC had no involvement in the marketing of the Brigadier heavy duty truck. The joint venture had the responsibility for everything beyond production. Approximately 4,000 Brigadiers were produced in 1988, as compared with 7,000 or 8,000 during 1986 and 1987. Linder's GMC Dealer Sales and Service Agreement continues in effect, and Linder remains an authorized dealer of General Motor's light duty and medium duty trucks.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Department of Motor Vehicles and Highway Safety enter a Final Order determining that GMC's cancellation or termination of petitioner's heavy duty truck addendum to its Dealers Sales and Service Agreement as of December 31, 1987, was not unfair or prohibited, and that petitioner's third amended complaint be dismissed. Respectfully submitted and entered this 13th of March, 1989, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1989. APPENDIX Case No. 87-5007 The parties' proposed findings of fact have been fully considered and are accepted and/or incorporated in this Recommended Order, with the following exceptions: Petitioner 30 - 49. These proposed findings are accepted as factually correct with respect to the terms of the various agreements and documents, but are not included as irrelevant and immaterial to the ultimate issues in dispute. 73, 74. Rejected as contrary to the greater weight of the evidence. 76. Rejected as an improper factual finding, and discussed in the Conclusions of Law. Respondent 10. Rejected as irrelevant and immaterial to the issues in dispute. 19. Rejected as irrelevant and immaterial to the issues in dispute. COPIES FURNISHED: Stanley H. Eleff and Richard M. Hanchett, Esqs. Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, P.A. 2700 Barnett Plaza Post Office Box 1102 Tampa, FL 33601 Dean Bunch, Esquire Rumberger, Kirk, Caldwell, Cabaniss, Burke & Weschler, P.A. 101 North Monroe Street Suite 900 Tallahassee, FL 32301 Charles J. Brantley, Director Division of Motor Vehicles Room B439 Neil Kirkman Building Tallahassee, FL 32399-0500
The Issue The issues presented for consideration by the hearing officer were as follows: Whether the project would adversely the public health, safety, or welfare or the property of others; Whether the project would adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project would adversely affect navigation; Whether the project would adversely affect the fishing or recreational values in the vicinity of the project; Whether the project would be of a temporary or permanent nature; and Whether the project would adversely affect the current condition and relative value of functions being performed by areas affected by the proposed activity.
Findings Of Fact On February 21, 1985, the Respondent, John Spang, applied to the Department of Environmental Regulations, Department of natural Resources and the Army Corp. of Engineers for permits necessary to construct two docking facilities, one on each side of the east end of Coronado Bridge, commonly known as the "North Bridge" on the Indian River, north in New Smyrna Beach, Volusia County, Sections 55 and 9, Township 17 South, Range 34 East. The proposed docks include a total of 24 boat slips. The proposed docks are within 25 feet of the right-of-way of the Coronado Bridge on both the north and south sides. The proposed docks consist of four piers. The piers, from south to north, are 101 feet, 102 feet, 122 feet and 122 feet in length respectively. See Respondent's Exhibit #2. The piers south of the bridge are 75 to 80 feet from the east edge of the channel of the Intracoastal Waterway. The piers north of the bridge are 60 to 65 feet from the east edge of the channel of the Intracoastal Waterway. The proposed docking facilities shall service commercially zoned properties `to which they shall be attached and, in particular, the Riverview Hotel and Charlie's Blue Crab Restaurant, at the Riverview. The Petitioners, Grover Ryan and Margaret Ryan, own the commercially zoned property adjacent to the subject property to the south, located at 100 West Columbus Avenue, New Smyrna Beach, Florida. The Ryans operate a commercial business. On March 17, 1986, the Ryans filed a petition for an administrative hearing. Panet E. and Jerrie L. Peterson of 200 Canova Drive, New Smyrna Beach, Florida own the real property located on the river adjacent to the Ryans but not adjoining the proposed docking area or the property of the applicant. On April 15, 1986, the Ryans filed a petition for an administrative hearing. On February 14, 1986, the Department of Environmental Regulation issued Permit Number 64-099806-4, to construct the proposed docking facilities, subject to specific modifications and conditions to those applications. Issuance of the permit was based upon the following: The Army Corp. of Engineers assessed the proposed docking facilities and determined that the project will not impede navigation or otherwise cause danger to the health, safety or welfare of vessels and persons traveling in the Intracoastal Waterway. On April 18, 1986, the Army Corp. of Engineers issued Permit No. 85IPL-20644 for construction of piers pursuant to the applicant's proposal for docking facilities. The harbor and dockmaster for the City of New Smyrna Beach determined that the proposed docking facilities would not impede or endanger navigation of the river and Intracoastal Waterway, if pilots entering and leaving the docking area carefully follow the rules of road. Actual testing of the proposed site by the Department of Environmental Regulation revealed no seagrasses or rooted macrophytes which might be destroyed by the proposed docks. Flushing in the river was found to be excellent and would alleviate any short-term turbidity problems and would further mitigate against any pollutants from the docking areas to the extent that no water quality violations were anticipated. The United States Department of Interior, Fish and Wildlife Service determined that the area of the proposed docking facility would not have an adverse affect on the manatee otherwise endanger them. Although the dock will restrict fishing from the bridge between the shore and channel, it will not significantly affect adversely the recreational uses. Generally, bridge fishing is being restricted in Florida due to the hazards to fishermen from traffic. The fishing from boats will be unaffected. There is no marine production in the area. The boat traffic in the vicinity of the proposed docking facility is considered heavy, and there are no restrictions on boating speed. The bridge is raised frequently, but heavy traffic requires boats to wait on weekends. The bridge fenders and concrete abutments of the bridge block the lateral view of boaters as they approach, pass under and leave the Coronado Bridge, and likewise obscures the boats in the bridge area from boaters in the proposed dock area. The closest dock to the south of the proposed docks is owned by the Ryans. Mr. Ryan has used his dock for forty-seven (47) years and uses it to dock his large commercial shrimp boat. Mr. Ryan operates a wholesale/retail seafood store on the property which he owns adjoining the Spang's property. As originally proposed, the southernmost dock sought by the Spang's would interfere with Ryan docking his boat at Ryan's dock. The next dock to the south of the proposed docks and Mr. Ryan's dock is owned by the Petersons. This a forty (40) foot dock which is used for noncommercial purposes. Because it does not protrude as far into the water as Ryan's dock, there is no hazard created by the proposed docks. A conditioned modification to the application was the reduction in size of the southernmost docking facility by 15 feet and the construction of handrails on the outer edges of each dock to prevent mooring of boats along the outer edges. The reduction of the southernmost dock by 15 feet, together with handrails and prevention of mooring of boats on the outside of the docks provided reasonable assurance that there was no impediment to navigation, to include Ryan docking his boat. However, the design of the exits to the two proposed docking areas promotes direct entry at right angles into the Intracoastal Waterway. This is potentially hazardous. Petitioner Ryan has an easement over the Spang property to permit public access to Ryan's property from the right-of-way of the bridge and highway. Spang's restaurant, which has already been built at the site, actually traverses the easement, not the proposed docking facility. The proposed facility does not interfere with the easement the Ryans hold landward of the mean high waterline from the highway right-of-way south to the Ryan's business.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Regulation issue Permit No. 64-099806-4 with the size limitation and requirements for handrails established by the agency and that the layout of the docks be modified as drawn in Appendix B to discourage exiting the docking areas at right angles to the channel of the Intracoastal Waterway. DONE AND ORDERED this 18th day of July 1986 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July 1986. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-0992 The following action was taken with regard to the proposed findings of fact submitted in behalf of John Spang: Adopted as Recommended Order paragraph 9. Adopted as Recommended Order paragraph 2. Rejected. Paragraph 5 of Ryan's proposed findings of fact adopted as more complete and accurate. Adopted as Recommended Order paragraph 6. 5,6. Adopted and combined as Recommended Order paragraph 7. Adopted as Recommended Order paragraph 9. Adopted substantially as Recommended Order paragraph 7. Adopted as Recommended Order paragraph 8. 10,11. Adopted as Recommended Order paragraph 9(a). Rejected as conclusion of law and irrelevant because the current proceeding is a de novo proceeding. Rejected as conclusion of law and irrelevant because the current proceeding is a de novo proceeding. Adopted as Recommended Order paragraph 9 (d). Adopted as Recommended Order paragraph 9 (b). Irrelevant. Effect on the persons named is not a basis for review. The following action was taken with regard to the proposed findings of fact submitted in behalf of the Ryans and Petersons: Adopted as Recommended Order paragraph 1. Rejected because the applicants' finding cited 24 which was adopted thereby binding the applicant to the lower number. Adopted as Recommended Order paragraph 3. Adopted as Recommended Order paragraph 4. Adopted as Recommended Order paragraph 5. Adopted in part and included in Recommended Order paragraph 12. 7,8. Rejected in favor of Recommended Order paragraph 11. 9. Adopted as Recommended Order paragraph 11. 10,12. Adopted as Recommended Order paragraph 13. 11,13. Adopted as Recommended Order paragraph 14. Adopted as Recommended Order paragraph 11. Adopted as Recommended Order paragraph 12. Rejected as a list of actors without any conclusion stated. 18,19. Rejected in favor of Recommended Order paragraph 10 which more accurately summarizes the more credible facts regarding fishing. 20,21,22. Rejected in favor of paragraph 9(d) which more accurately summarizes the more credible facts regarding danger to manatees. Rejected as contrary to the facts. Rejected as contrary to the facts. Adopted in part in Recommended Order paragraph 16. Rejected as contrary to the facts. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. The following action was taken with regard to the Agency's proposed findings of facts. Adopted as Recommended Order paragraph 1. Adopted in part in Recommended Order paragraph 16 and in part in Recommended Order paragraph 10. 1st sentence: Rejected as irrelevant in light of the Agency's subsequent issuance. Remainder: Adopted as Recommended Order paragraph 9(c). Adopted generally as Recommended Order paragraph 16. 5,6. Adopted generally as Recommended Order paragraph 14. Adopted generally as Recommended Order paragraph 15. Adopted as Recommended Order paragraph 9(d). Adopted as Recommended Order paragraph 9(a). Adopted as Recommended Order paragraph 9(b). Adopted as Recommended Order paragraph 17. COPIES FURNISHED: Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mary F. Smallwood, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 William F. Hathaway, Esquire Post Office Drawer H New Smyrna Beach, Florida 32070-1586 Vivian F. Garfein, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Hal Spence, Esquire 221 N. Causeway Post Office Box 1266 New Smyrna Beach, Florida 32070-1266
Findings Of Fact Respondent, Clyde Vetter (hereafter Vetter), has made application to the Respondent, Department of Environmental Regulation (hereafter DER), for maintenance dredging and construction of boat docks on his property located in Isle of Capri, Collier County, Florida. Petitioner, Rosanna Loach (hereafter Loach), requested a hearing on the permit request and objected to the issuance of the permit on the grounds that the proposed project would create an offensive odor. The uncontradicted evidence shows that the proposed project poses no serious impediment to navigation and will create no adverse environmental impact. DER has recommended approval of the permit application. Loach presented the testimony of herself and other residents of the area which testimony established that each witness was concerned about possible trash from boats using the proposed facilities, noise, odors, additional boat traffic, the creation of an eyesore and resultant danger to sport fishing. There was no evidence presented which would, in fact, demonstrate that the proposed project would have an adverse environmental impact or would constitute a serious impediment to navigation.
The Issue Whether Respondent should be disciplined for violating Sections 489.129(1)(h) and (m), Florida Statutes?
Findings Of Fact At all times relevant, Respondent was licensed as a certified building contractor in the State of Florida, holding license number CB C033338, and doing business under the name of Mark V. Ansley Building Contractors. On April 17, 1987, Respondent entered into a Construction Agreement with Mr. Kersey. The Agreement called for Respondent to build a house containing two bedrooms, one and one- half baths and a one-car garage in exchange for $31,860. Under the Agreement, construction was to begin on April 21, 1988. However, due to a problem with the lot on which the house was going to be built, there were delays. Mr. Kersey then decided to build the house on a lot across the street from the original lot. The lot was cleared on May 1, 1987, by Mr. Morris Snell. The septic tank permit was issued on June 17, 1987. The construction permit was issued on June 22, 1987. Construction of the residence began a week later and the slab was poured the second week of July, 1987. After the slab was poured, Mr. Kersey determined that the foundation was approximately 890 square feet instead of the 944 contracted for. After some negotiations between Mr. Kersey and Respondent, they agreed that Respondent would add a Florida room to make up the difference in square footage. The foundation for the Florida room was built four inches lower than the main house. There were problems with the roof trusses and with the framing which were corrected by Respondent. The company which manufactured the roof trusses sent the wrong trusses to the house. Mr. Kersey, who was present at the house when the trusses were being installed, noticed they were the wrong ones and stopped work on the house. After Respondent was informed, he notified the truss company and the correct trusses were delivered approximately ten days later and installed. The initial framing of the house was deficient and did not pass inspection. Respondent fired the persons who had done the framing, fixed the problems, and the framing passed inspection. Also, the persons framing the house left out a closet in one room of the house, but upon being informed, this was corrected. By this time, Mr. Kersey had made two payments to Respondent pursuant to their agreement. The first payment was for $3,100 and the second for $4,000. After the house was framed, Respondent expected to be out of town for two to three weeks. Respondent told Mr. Kersey that he was having problems collecting money from other jobs and that he would be unable to meet the construction schedule unless he had the money to pay for the necessary supplies right on the spot rather than waiting until Mr. Kersey returned. Mr. Kersey gave Respondent $15,000 in advance to allow Respondent to continue working on the house while he was gone. At this same time, July 18, 1987, Respondent and Mr. Kersey agreed that the house should be completed by September 15, 1988. Mr. Kersey returned from his trip in about 10 days and noticed that nothing had been done on the house. Mr. Kersey was unable to contact Respondent for two weeks, even though he wrote Respondent a letter and left messages with Respondent's secretary and on a telephone answering machine. During this period of time, Mr. Kersey hired an attorney. On August 1, 1987, Mr. Kersey finally spoke with Respondent about the lack of progress on the house. The Respondent told Mr. Kersey that it had rained almost constantly for 10 days and needed materials could not be delivered to the house. Respondent continued to do work on the house. Respondent contracted with a company to deliver and install windows. The window company in turn hired a subcontractor to install the windows. The subcontractor installed the windows improperly and eight of the sixteen windows had to be replaced by someone other than Respondent. Mr. Kersey agreed with Respondent that he would pay $1300, in addition to the contract price of the house, for the installation of a septic tank and drain field at the original location for the house. Respondent obtained the septic tank permit and arranged to have Mr. Carver of Carver's Septic Tank install the septic tank at the new location. Mr. Carver's estimate for the job was $1,810 and he agreed to do the job on the assurance by Mr. Kersey that he would pay for the job. Mr. Carver placed the septic tank and drain field at a location different from that which had been requested by Mr. Kersey and different from that shown on the survey map on file with the permit application at the Department of Health and Rehabilitative Services. In preparing the ground for the septic tank, Mr. Carver dug up the roots of an existing oak tree to a depth of from three to six feet around three-fourths of the tree's circumference. Also, the septic tank was located in close proximity to a three- inch free-flowing artesian well. The Department of Health and Rehabilitative Services initially gave its approval for the septic tank to be covered up. But after Mr. Kersey met with the Department's staff, the department disapproved the septic tank because it was located too close to the well. Mr. Carver did not finish work on the septic tank because he was not paid for the work he had done. In order to obtain approval for the septic tank, Mr. Kersey had to "abandon" the artesian well. This was accomplished by pouring 12 sacks of concrete into the well and pipe to seal it off. This job cost Mr. Kersey $840.00. Mr. Kersey also hired another company to complete the septic tank and drain field, and had to pay $700 to move the drain field. Sometime in August and September, Mr. Kersey began receiving information that some of the suppliers and subcontractors for the house had not been paid by Respondent and that liens would be placed on the property if they were not paid. Eventually, three companies filed claims of lien against the property. Sometime in September or October, Mr. Kersey posted signs on the house which stated that no further work was to be done on the house. When Respondent contacted Mr. Kersey, he was referred to Mr. Kersey's attorney. Respondent indicated to the attorney that he wanted to complete the job, and he was allowed to continue working on the job. During the next two weeks Respondent had the drywall and cabinets installed, put in the driveway, and painted. However, at a subsequent meeting with Mr. Kersey and his attorney, Mr. Kersey was not satisfied with the way the house was being built and stated he did not want Respondent on the job any more. Respondent did no more work on the house. On November 13, 1987, Mr. Kersey and Respondent met for the purpose of determining which subcontractors and suppliers had not been paid. At that time Respondent indicated that five subcontractors and suppliers had not been paid and that they were owed a total of $12,199. However, there were other subcontractors who had not been paid. In May, 1988, Mr. Kersey hired another contractor to complete the house. Mr. Kersey initially agreed to pay $9,400 for the work of this contractor, but ended up paying $14,000 because the contractor had to do work which was not included in the initial contract. Part of the work done by this contractor consisted of fixing or replacing a six-foot sliding glass door, three interior doors, and one exterior door which had been installed under Respondent's supervision. As mentioned in Findings of Fact 26, supra, three liens were placed on the property by materials suppliers. The three liens were perfected by Davis Windows, the company with which Respondent contracted for the purchase and installation of the windows for $1,888.22; Holmes Lumber Company, a company which provided building materials and supplies, for $4,032.08; and Gator Door for $1,152.93. Mr. Kersey is contesting the lien placed by Davis Windows. He has paid the amount due Holmes Lumber. He has not paid Gator Door. In addition to the companies which filed liens, the company that installed the cabinets was not paid at the time the cabinets were installed. Respondent paid for the cabinets on April 6, 1988. Also, Respondent paid Davis Windows $1,000, in March, 1988 and paid Gator Door $500 sometime in 1988. Finally, Respondent sent $1,500 to Holmes Lumber, ostensibly for Mr. Kersey's account, but the $1,500 was credited to another of Respondent's accounts which was in arrears. Respondent has entered into an agreement with Mr. Kersey to repay the amounts he may be owed due to Respondent's actions.
Recommendation Based upon the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that Petitioner enter a final order imposing a $1,750 fine on Respondent. DONE and ORDERED this 6th day of December, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2746 The Petitioner submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Paragraph 1. True, but not a finding of fact. 2., 3. Accepted generally. RO1. The evidence is unclear as to whether Mr. Ansley's business is incorporated. 4. Accepted. RO2. However, when the 120 days began to run cannot be determined. The original contract had to be amended from the beginning, since no construction took place on the original lot. 5. Subordinate to facts found. See RO3. 6. Accepted. RO 5., 6. 7. Rejected as irrelevant. Also, the evidence presented does not establish that Respondent is responsible for Mr. Kersey paying $1,220 to Mr. Snell. 8. Rejected as not supported by competent evidence. The evidence is contradictory as to when construction would begin. The septic tank and construction permits were not issued until June. 9. Rejected as irrelevant. 10. Rejected as irrelevant. 11. Accepted generally. RO2. 12. Accepted. RO8. Accepted. RO14-l5. Accepted. RO16-18. 15, 16. Accepted. RO20. 17, 18. Accepted as modified in RO 21-25. Second and third sentences of 17 are rejected as not supported by competent evidence. See also discussion of this issue in Conclusions of Law section of this RO. 19. Accepted. RO 27-28. 20., 21., 22. Accepted. RO 26., 30., 33. 23. Accepted generally. RO 29, 31. 24., 25., 27., 28., 29. Rejected as not findings of fact. Also, the opinions of Mr. Adams were based, in part, on evidence which was not presented at the hearing. Additionally, it is unclear that Respondent was charged with some of the violations alleged by Mr. Adams. 26., 30-34. Rejected as irrelevant and a recitation of testimony. COPIES FURNISHED: Elizabeth Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mark V. Ansley 7004 Luke Street Jacksonville, Florida 32210 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue Whether or not Petitioner should be granted a dredge and fill permit for construction of a multi-family dock in either of the two configurations proposed in its application filed pursuant to Section 403.918 Florida Statutes.
Findings Of Fact Petitioner Secret Oaks Owners' Association, Inc. is a not-for-profit Florida corporation with its principal place of business in First Cove, St. Johns County, Florida. DER is the State agency charged with the responsibility of reviewing permits under Chapter 403, Florida Statutes and its applicable rules. Martin Parlato and his wife Linda Parlato are the owners of, and reside on, Lot 10, Secret Oaks Subdivision, First Cove, St. Johns County, Florida. They have standing as Intervenors herein under the following facts as found. Petitioner claims rights to dredge and fill pursuant to an easement lying along the southerly boundary of Lot 10 in Secret Oaks Subdivision, which is a platted subdivision in St. Johns County, Florida. The easement runs up to and borders the St. Johns River, a tidal and navigable river in St. Johns County, Florida. Petitioner filed an application for dredge and fill permit with DER on September 18, 1992. The dock was proposed to be five feet wide and 620 feet long including a 20 foot by 10 foot terminal platform and six associated mooring pilings. On November 3, 1992, the Petitioner filed an alternative proposal with DER. That submission proposed construction of an "L" shaped walkway into the St. Johns River to connect the easement with an existing private dock to the north, which dock is owned by the Intervenors. The walkway is proposed to be five feet wide and may extend approximately 80 feet into the river, and then turn north and run parallel to the shoreline a distance of 41 feet to connect with the existing dock. Additionally, the existing dock would be reclassified as multi-family and four mooring pilings would be placed on the south side of the terminal platform. It is undisputed that a DER permit is necessary to construct either dock requested by Petitioner. While Petitioner sought to create an issue regarding a dock that once was located emanating from the easement and connecting with the present dock emanating from Lot 10 in a configuration similar to the Petitioner's proposed auxiliary dock configuration, the previous dock was never permitted and would be subject to DER rules and potential removal orders if it still existed, unless some "grandfathering" legislation or rule protected the structure. No such "grandfather" protections have been affirmatively demonstrated. Instead, it was orally asserted, without any corroborating circuit court orders, that after Petitioner prevailed over Intervenors in circuit court on various real property, riparian rights, and property damage issues due to Intervenors' removal of the old dock, the circuit court had conditioned further relief upon Petitioner obtaining the necessary DER permit. In its Notice of Permit Denial dated January 22, 1993, DER stated several reasons why reasonable assurances had not been given by Petitioners that water quality would not be violated and that the project was not contrary to the public interest, and further stated, by way of explaining how the permit might still be granted, that, "Compliance with Florida Administrative Code Rule 17- 312.080(1) and (2) can be achieved for either proposal by complying with the following requirements: Determine the legal status of the easement to establish ownership and control; Design a structure to provide a sufficient number of slips to accommodate all members in sufficient depth of water so that the grassbeds will not be disturbed by boating activity, or specifically limit only the area of the dock in water greater than three feet to be utilized for mooring boats or boating activity and record this action in a long-term and enforceable agreement with the Department; Obtain documentation from adjacent landowners that demonstrates they fully recognize and consent to the extent of activity which may occur in the water by either proposal (i.e., single dock or access walkway). Subsequent to the denial of Petitioner's application, Petitioner and DER representatives met and discussed DER's recommendations for reasonable assurances outlined in the Notice of Permit Denial. DER representatives have also orally recommended alternatives for hiring a dock-master or creating assigned boat slips, but DER has received no formal submissions of information from the Petitioner. All of Petitioner's and DER's proposals have not been reduced to writing. No long-term enforceable agreement as proposed by DER in the Notice of Permit Denial has been drafted. The project site is located on the eastern shore of the St. Johns River, three-quarters of a mile north of Cunningham Creek and one mile south of Julington Creek, at First Cove, a small residential community in the extreme northwest of St. Johns County, where the St. Johns River is approximately 2.5 miles wide. Located at the proposed project site are submerged grass beds (eel grass) that extend from approximately 100 feet to 450 feet into the St. Johns River in depths of two to three feet of water. The water at the proposed project site is classified as Class III Waters suitable for recreational use and fishing, but the area is not listed as an Outstanding Florida Water. The grass beds at the proposed project site are important for the conservation of fish and wildlife and the productivity of the St. Johns River. They provide detritus for support of the aquatic based food chain and they provide a unique, varied, and essential feeding and nursery habitat for aquatic organisms. They are valuable for the propagation of fish. Endangered West Indian manatees seasonally graze on the eel grass in this locale during their annual migrations. Absent the replacement of the auxiliary dock, lot owners' primary access to the larger dock is by swimming or boating from the upland of the pedestrian easement to the larger dock. This can mean sporadic interaction with the eel grass. However, DER's experts are not so much concerned with the individual and occasional usages of Petitioner's lot owners but with the type of activity common to human beings in congregate situations encouraged by multi- family docks. The proposed construction of the auxiliary dock does not intrude on the eel grass as the dock does not extend 100 feet from the upland. The grassbeds end some 200 feet east of the west end of the dock. DER experts testified that the time-limited turbidity and scouring associated with construction of either proposed configuration would have very minimal impact, but the continual increased turbidity of the water over the eel grass to be anticipated from multi-family use of either dock may detrimentally affect juvenile aquatic life and the Manatees' feeding ground. The auxiliary dock as proposed provides no facilities for docking watercraft. The permit application provides for a maximum of four facilities for docking watercraft, presumably by tying up to four end buoys. Petitioner intends or anticipates that only four boats would ever dock at one time under either configuration because of planned arrangements for them to tie up and due to an Easement and Homeowners Agreement and Declaration recorded in the public records of the county. Among other restrictions, the Agreement and Declaration limits dock use and forbids jet ski use.1 The permit application seeks a multi alternative dock construction. Petitioner intends to control the use of the dock(s) only by a "good neighbor policy" or "bringing the neighborhood conscience to bear." Such proposals are more aspirational than practical. Petitioner also cites its Secret Oaks Owners' Agreement, which only Petitioner (not DER) could enforce and which Petitioner would have to return to circuit court to enforce. Petitioner has proposed to DER that it will limit all boating and water activity to the westward fifty feet of the larger dock, prohibit all boating and water activity on the auxiliary dock, and place warning signs on the docks indicating the limits of permissible activity, but Petitioner has not demonstrated that it will provide any mechanism that would insure strict compliance with the limited use restrictions placed on the homeowners in Secret Oaks by their homeowners' restrictive covenant. Testimony was elicited on behalf of Petitioner that Petitioner has posted and will post warning signs and will agree to monitoring by DER but that employing a dock master is not contemplated by Petitioner, that creating individual assigned docking areas is not contemplated by Petitioner, and that there has been no attempt by Petitioner to draft a long term agreement with DER, enforceable by DER beyond the permit term. The purpose of the dock is to provide access to the St. Johns River for the members of the Secret Oaks Owners' Association which includes owners of all sixteen lots, their families, and social invitees. Although there are currently only three or four houses on the sixteen lots, there is the potential for sixteen families and their guests to simultaneously use any multi-family dock. Although all sixteen lot owners do not currently own or operate boats, that situation is subject to change at any time, whenever a boat owner buys a home or lot or whenever a lot owner buys a boat. All lots are subject to alienation by conveyance at any time. It is noted that this community is still developing and therefore anecdotal observations of boating inactivity among homeowners before the old dock was torn down are of little weight. No practical mechanism has been devised to limit homeowners' use of the dock(s) if a multi-family permit is issued. Also, no practical mechanism has been devised to exclude any part of the boating community at large from docking there. Thomas Wiley, a DER biologist, accepted without objection as an expert in the environmental impacts of dredge and fill activities, and Jeremy Tyler, Environmental Administrator for DER's Northeast District, also accepted without objection as an expert in environmental impacts of dredge and fill activities, each visited the site prior to formal hearing. They concurred that the application to construct the 620 foot long dock presented the potential for a number of boats to be moored or rafted at the pier at any one time, particularly weekends and holidays, and that multiple moorings might greatly exceed the capacity intended by Petitioner. Wiley and Tyler further testified, without refutation, that over-docking of boats could hinder or block the use of the waters landward of the terminal structures by adjoining property owners. Congregations of power boats at marinas and facilities designated for multi- family use also pose a threat to the endangered West Indian manatees. With regard to alternative two of the application to reconstruct the unpermitted "L" shaped walkway, such a configuration would extend 80 feet of the "mean high water line", then run 41 feet parallel to the shoreline of Lot 10 before attaching to the existing pier and that the parallel portion of the walkway lies immediately adjacent to, and inshore of, the extensive submerged grass beds. According to Wiley and Tyler, it can reasonably be expected that boaters would utilize this walkway as a convenient boat loading/off facility rather than walking to and from the terminal end of the existing 620 foot long dock. Water depths vary from two to three feet offshore of the proposed structure, and the operation of boats, jet-skis, and other watercraft would result in prop scouring of the silt/sand bottom and damage to grass bed areas, degrading water quality and adversely impacting important habitat areas. The DER experts concluded that the applicant had not provided reasonable assurances that the proposed structures would not cause hindrances to ingress and egress or the recreational use of State waters by adjacent property owners, including Intervenors at Lot 10, that grass habitat areas will not be adversely impacted or inshore water quality will not be degraded by boating and related activity. The potential for intensive use of either of the proposed docks could result in a large number of boats and/or water activity at and around the docks. Submerged grass beds occur in waters generally less than three feet deep in areas near the docks. Any boating activity landward of 450 feet from the shore could seriously damage the extensive grass beds that occur there. Boating activity is likely to occur in the areas of the grassbeds if a number of boats are using the dock(s) at the same time or if a boater desires to minimize the length of dock to be walked, in order to reach the uplands. That damage is expected to be from prop dredging and resuspension of bottom sediments onto adjacent grasses. Upon the evidence as a whole, the project is neutral as to the public health, safety, welfare, and property of others, except to the extent it impacts the Intervenors as set out above. The anticipated increase in water-based activities around the proposed dock(s) will cause shifting, erosion and souring that can be harmful to the adjacent grass beds. The anticipated increase in water based activities around the proposed dock will adversely affect marine productivity because the clarity of the water in the area of the grass beds will be decreased. The project may be either temporary or permanent but should be presumed permanent. The project does not affect any significant historical or archeological resources. The current condition of the eel grass beds in the area is lush and valuable as a fish and wildlife habitat. In the course of formal hearing, DER witnesses testified that absent any disturbance of the grassbeds, DER would have no complaints about either proposed project configuration. After considering and balancing the above criteria, it is found that Petitioner has not provided reasonable assurance that the proposed project in either form would not violate state water quality standards and that it would not be contrary to the public interest.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the permit application be denied without prejudice to future applications. RECOMMENDED this 28th day of July, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1993.
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 operate a “waste processing facility” (“facility”) on a site (“site”) located in Miami-Dade County, Florida.
Findings Of Fact 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. 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 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. 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. 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. 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 Cambridge intends to construct: (a) a one-story building (“transfer station”) that will be used to receive and process construction and demolition (“C&D”) debris; (b) a one- 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 site. Trees 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. 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 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. 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. 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. 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., “the tipping floor”) of the transfer station. The unloading and processing of C&D debris will only occur inside the transfer station. 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. 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. 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. 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. . 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. 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. 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 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 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 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 The Draft Permit provides that “dust resulting from the processing operation is not allowed beyond the property boundary [of the site].” The term “dust” in the Draft Permit is synonymous with “visible emissions” or “particulate matter” (“PM”). The Draft Permit also provides that a “dust control 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 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. 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 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. 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 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. 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 The transfer station will be equipped with an emergency ventilation system to prevent the build-up of carbon monoxide (“CO”) or nitrogen dioxide (“NO2”) on the tipping floor. The ventilation system will discharge CO and NO2 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. The ventilation system will turn on automatically if CO or NO2 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. 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 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 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. Cambridge quantified these potential PM emissions by using standard procedures and reference documents approved by the U.S. Environmental Protection Agency (“EPA”). Cambridge’s 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. 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. 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. 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. 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 NO2 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. 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. 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. 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. 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 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. 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. 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 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. 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.” 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. Liquids normally will not be tracked into the transfer station by trucks. Trucks 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. 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. 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. 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. 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. 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. 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 wastewater treatment plant (“WWTP”). The liquid in the sump is 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. 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. 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 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 “lip” (raised edge) around the tipping floor, but he agreed the transfer station could be operated in compliance with the applicable rules. 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. 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. 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. 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. 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. 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. 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. 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. 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.” 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. 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. 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 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. 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 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 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 know” whether the site is a “Brownfield” site and “cannot speak” to whether the site is contaminated. Financial Assurance 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 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. 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 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. 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 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 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 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.
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 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us COPIES FURNISHED: John J. Quick, Esquire Michelle D. Vos, Esquire Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2009. 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
The Issue Whether there is probable cause for petitioner to bring an action against respondents for violation of the Florida Deceptive and Unfair Trade Practices Act?
Findings Of Fact About seven o clock on the morning of May 23, 1983, Michael S. Boyden telephoned the Pensacola offices of Shear Concrete Products, Inc. (Shear Concrete), and asked that 20 cubic yards of concrete be delivered to a construction site at 438 Creary Street. Under construction there was the house Mr. Boyden was building for himself and his family. (He has since finished it and moved in.) During the first conversation, somebody told him the concrete would arrive at half past ten. At eleven, with no concrete in sight, Mr. Boyden again telephoned; Danny Woods or Terry Knowles told him the concrete was on the way. In fact, it was at least five minutes before one before the first Shear Concrete truck was loaded, and this truck reached the site about two in the afternoon. Thirty-five or forty minutes later, the first truck had been emptied of concrete. The second Shear Concrete truck was loaded at quarter past one, but reached the construction site within minutes of the time the first arrived. Mr. Boyden, a concrete finisher and three other men he had hired were all present at the time the second truck arrived. At the finisher's direction, water was added to the concrete in the second truck; and its contents were also eventually emptied, wheelbarrow by wheelbarrow. By half past three, it was clear that a greater quantity of concrete would be needed; but it was evening before the finisher, Caesar Johnson, told Mr. Boyden that the concrete from the second truck was not setting up properly. Once cement, sand, water and gravel are mixed in a concrete mixer, a reaction begins that runs its course regardless of whether the mixture is poured in time. (The time this reaction takes depends on, among other things, how hot the day is.) If mixing is still going on when the concrete "gets hot," the elements of the mixture do not cohere and the batch is no longer useful as concrete. Adding water retards the reaction to the extent it acts as a cooling agent, but it does not reverse the process. By the time the mixture was poured into the Boydens' foundation, it was no longer suitable for its intended use. The other concrete had hardened by the next day, but concrete from the second truck, the one driven by Ronald Lane Thompson, was soft and friable. Mr. and Mrs. Boyden incurred expense in removing the miscongealed concrete. They ordered and received a replacement load on May 31, 1983, which was satisfactory. They have never paid for this load, even though Shear Concrete has billed them and given them a "notice to owner" in an effort to preserve its rights under the mechanics' lien law. Petitioner's proposed findings of fact have been considered and adopted, in substance, for the most part. To the extent they have been rejected, they have been deemed unsupported by the weight of the evidence, immaterial, conclusive or subordinate.
