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                                BEFORE THE STATE OF FLORIDA

In re, Onyx Environmental Services, Inc.                            OGC File No. 05-2554
4317L Fortune Place
West Melbourne, FL 32904                                            FLD984262790
                                                                    Brevard County
Petition for Variance

                                 FINA L ORDE R GRA NTING PETITION FOR
                                VARIA NCE FROM SECTION 403.7211(6), F.S.

    On October 24, 2005, Onyx Environmental Services, Inc. (OES) filed a petition for variance under
section 403.201, Florida Statutes (F.S.) The petition requested relief from section 403. 7211(6), F.S. which
provides that a hazardous waste transfer facility may not relocate wit hout meeting the siting criteria of
section 403.7211(2)(c).
    The Florida Department of Environmental Protection (the Department) has jurisdiction under Chapter
403, F.S.
    Notice of the Department’s intent to issue this Order was published purs uant to section 403.201(3),
F.S. in Florida Today, a newspaper published in Brevard County, Florida, on December 23, 2005, and on
the Department’s Official Notice website, pursuant to section
120.551, F.S., on December 23, 2005. No comments or petitions were received by the Department in
response to the published notices.
        The Department finds the following facts and conclusions of law on which this Order is based:
        1. OES is a transporter of hazardous waste who has registered with the Department pursuant to
Rule 62-780.170, Florida Administrative Code (F.A.C.) and established financial assurance in accordance
with section 403.724(3), F.S.
        2. Since 1994, OES has operated a haz ardous waste transfer facility in the Fortune Place
Industrial Park, West Melbourne, Florida. OES’s current address is 4317L Fortune Place, West
Melbourne, FL 32904. The facility hazardous waste identification number is FLD984262790.
        3. The current transfer facility location is within 1000 yards of one or more residences.
        4. OES serves a customer base of more than 1500 hazardous wast e generators within the central
Florida region. The vast majority are small businesses and/or small quantity generators of haz ardous
waste. OES operates the only hazardous waste transfer facility on Florida’s east coast between
Jacksonville and Ft. Pierce.
        5. In 1998, the Florida Legislature enacted section 403.7211, F.S. In pertinent part, this statute
provides as follows:
             (2) The department shall not issue any permit under s. 403.722 for the construction, initial
             operation, or substantial modification of a facility for the disposal, storage, or treatment of
             hazardous waste generated offsite which is proposed to be located in any of the following
             locations: ….

                  c) Any location within 1,000 yards of any residence; ….
             (5) No person shall construct or operate a transfer facility for the management of hazardous
             waste unless the facility meets the siting requirements of subsection (2).

             (6) This section shall not prohibit the operation of existing transfer facilities that have
             commenced operation as of the effective date of this section, if the trans fer facility is not
             relocated or if there is no substantial modification in the structure or operation of the facility
             after the effective date of this section.

        6. OES was scheduled to lose its lease at the current location on December 31, 2005.
        7. OES made commercially reasonable efforts to find and rent a location in Brevard County,
Florida, that is zoned for hazardous waste management activities and is more than 1000 yards from any
        8. OES was not able to locate an alt ernate facility that met the requirements. OES was notified by
credible real estate professionals and local government officials that no such location is available in
Brevard County.
        9. OES is able to get a lease in a neighboring building in the Fort une Plac e Industrial Park. The
address is 4301H Fortune Plac e, West Melbourne, FL 32904. This location is also within 1000 yards of
one or more residences, the same residences that are within 1000 yards of the current transfer facility
        10. Section 403.201, F.S. provides in pertinent part as follows:

             (1) Upon application, the department in its discretion may grant a variance from the
             provisions of this act or the rules and regulations adopted pursuant hereto. Variances and
             renewals thereof may be grant ed for any one of the following reasons:

                   (a) There is no practicable means known or available for the adequate control of the
                   pollution involved.

                   (b) Compliance wit h the particular requirement or requirements from which a variance
                   is sought will necessitate the taking of measures which, because of their extent or cost,
                   must be spread over a considerable period of time. A variance grant ed for this reason
                   shall prescribe a timetable for the taking of the measures required.

                   (c) To relieve or prevent hardship of a kind ot her than those provided for in paragraphs
                   (a) and (b). Variances and renewals thereof granted under authority of this paragraph
                   shall each be limited to a period of 24 months, except that variances granted pursuant
                   to part II may extend for the life of the permit or certification.

        11. OES has demonstrated a hardship within the meaning of section 403.201(1)(c), F.S. If its
transfer facility operations cannot move into the neighboring building in Fort une Plac e Industrial Park,
OES will be forced to discontinue trans fer facility operations in Brevard C ounty. This will cause the loss of

three jobs and increased hazardous waste disposal costs for hazardous waste generators in central
           12. An adequate net work of hazardous waste trans fer facilities is a crucial component of the
state’s hazardous waste management infrastructure.
           WHEREFORE, IT IS HEREBY ORDE RED by the State of Florida Department of Environmental
Protection that Petitioner, Onyx Environmental Services, Inc., is granted a variance under section
403.201(1)(c), F.S. from the prohibition against relocating a transfer facility as set forth in section
403.7211(5) and (6), F.S., with respect to moving from its current location at 4317L Fortune Place West
Melbourne, FL to its new location at 4301H Fortune Place, West Melbourne, FL. This varianc e is subject
to the following conditions.
           a.   Except as otherwise set forth in this order, the variance established by this order shall expire
                on December 31, 2007.
           b.   Section 403. 201(1)(c), F.S. allows renewal. Each renewal shall be limited to a two-year
                period. If OES intends to renew, it shall submit a petition for renewal of this varianc e no later
                than August 30, 2007.
           c.   OES shall inspect all hazardous waste storage areas at least once per working day, and keep
                a logbook of such inspections, noting the day, time, inspector, observations, and corrective
                actions, if any.
           d.   Within 60 days of the effective date of this order, OES shall submit an enhanced contingency
                plan to the Department for review and approval. The contingency plan shall address
                emergency respons e and evacuation procedures, notification, reporting and recordkeeping,
                emergency equipment, and coordination with local authorities.
           e.   No later than March 31, 2006, OES shall establish an employ ee training program that meets
                the following conditions:
                    a.   all employees handling or managing hazardous waste will successfully complete a
                         program of classroom instruction or on-the-job training.
                    b.   The training shall ensure that all employees are thoroughly familiar with proper waste
                         management procedures relevant to their responsibilities during normal facility
                         operations and emergencies. The training shall include response to releases
                    c.   Current employees shall successfully complete the training program by March 31,
                         2006. Employees hired or assigned after the effective dat e of this Order shall
                         successfully complete the training program within three mont hs after the dat e of their
                         employment. Newly hired employees shall not work uns upervis ed until they have
                         completed the training requirements.
                    d.   OES employees shall take part in an annual review of the initial training and OES
                         shall ensure that the annual review is available to the employees.

                 e.   OES shall document the training given to an employee. The doc uments shall include
                      the employee’s name, signature, date of hire or assignment, date of training, and
                      type of training. The training documents shall be kept at OES’s facility for at least
                      three years.
        f.   No later than July 1, 2006, OES shall install a fire suppression system in all hazardous waste
             storage areas, which consist of three trucks and a warehouse. OES shall complete its
             research of available systems no later than March 21, 2006, and purchase the system(s) no
             later than May 31, 2006.
        g.   If OES fails to complete the requirements of subparagraphs d., e., or f. above, then t he
             variance established by this order will expire on December 31, 2006. Failure to comply with
             the conditions of this order shall be grounds for denial of a request for extension of the
        h.   OES shall allow all authorized representatives of the Depart ment access to the property and
             facility at reasonable times for the purpose of determining compliance with the terms of this
             Order and the rules and statutes of the Department.
        i.   Entry of this Order does not relieve OES of the need to comply with applicable federal, state
             or local laws, regulations or ordinances.
        j.   The terms and conditions set forth in this Order may be enforced in a court of competent
             jurisdiction pursuant to §120.69 and §403.121, F.S.
        This Order is a final order of the Department pursuant to §120.52(7), F.S., and effective on the
date filed wit h the Clerk of the Department.
        Any party to this Order has the right to seek judicial review of it under §120. 68, F.S., by filing a
notice of appeal under Rule 9.110 of the Florida Rules of Appellate Procedure with the clerk of the
Department in the office of General Counsel, Mail Station 35, 3900 Commonwealth Boulevard,
Tallahassee, Florida 32399-3000, and by filing a copy of the notice of appeal accompanied by the
applicable filing fees wit h the appropriate district court of appeal. The notice must be filed (received)
within thirty days aft er this order is filed with the clerk of the Department.
        DONE AND ORDERE D this _____ day of January, 2006 in Tallahassee, Florida.

                                                     STA TE OF FLORIDA DEPARTMENT
                                                     OF ENVIRONME NTAL PROTECTION

                                                     Mary Jean Yon, Director
                                                     Division of Waste Management
                                                     2600 Blair Stone Road, MS #4500
                                                     Tallahassee, Florida 32399-2400
                                                     (850) 245-8705

                                   FILING AND ACK NOWLE DGEMENT
                                     and CERTIFICA TE OF SERVICE

The undersigned duly designated deputy clerk hereby certifies that this FINAL ORDE R GRANTING
VARIA NCE was FILED, on this dat e, pursuant to §120.53, Florida Statutes, with the designated Agency
Clerk, receipt of which is hereby acknowledged. All copies were mailed before the close of business on
the date below to the persons listed.

_________________________                       _____________________
Clerk                                           Date

Copies furnished to:
Tom Lubozynski, DEP Central District
John Price, DEP Hazardous Waste Management
Doug Outlaw, DEP Hazardous Waste Regulation
Augusta Posner, DEP OGC


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