STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. COMPANY, INC., and D. W. ) KNAPPEN and BETTY T. KNAPPEN, ) his wife, )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 78-1389RX

   ) STATE OF FLORIDA, DEPARTMENT ) OF ENVIROMENTAL REGULATION, )

   )

   Respondent. )

   and )

   ) JACKSONVILLE TRANSPORTATION ) AUTHORITY, )

   )

   Intervenor. )

   )

   )

   
   

   FINAL ORDER

   
   

   Petitioners have filed a "Petition for Determination of Invalidity of Administrative Rule" under the authority of Section 120.56, Florida Statutes (1977). The case was assigned to the undersigned Hearing Officer by Order entered August 11, 1978. The final hearing was originally scheduled to be conducted on September 6, by notice dated August 14, 1978. Upon the stipulation of the parties, the final hearing was rescheduled to be conducted on September 12, 1978. The Jacksonville Transportation Authority filed a Motion to Intervene, which was granted by Order entered September 11, 1978.

   
   

   APPEARANCES

   
   

   For Petitioners: Kenneth G. Oertel

   Tallahassee, Florida

   
   

   For Respondent: Joe W Fixel

   Tallahassee, Florida

   
   

   For Intervenor: Robert M. Rhodes

   Tallahassee, Florida

   
   

   Petitioners contend that certain policies and practices of the Department of Environmental Regulation ("DER" hereafter) are in effect rules, which have not been properly promulgated as rules. Petitioners contend that the alleged effort to operate under rules which have not been properly promulgated constitutes an invalid exercise of delegated legislative authority. DER contends that Petitioners have erroneously classified the policies and practices, that they do not rise to the dignity of rules, and that they are

   consistent with rules that have been properly promulgated. The Intervenor supports the contentions of DER.

   
   

   FINDINGS OF FACT

   
   

   1. DER is the agency that has been charged by statute with the responsibility of administering programs to advance the legislative policy to preserve and protect air quality. Chapter 403, Florida Statutes (1977). DER has adopted what is commonly called its "Complex Air Source Rule". The Rule has been codified in Chapter 17-2, Florida Administrative Code. A copy of Chapter 17-2 was received into evidence at the hearing. The Complex Air Source Rule requires that a permit be obtained before certain potential sources of air pollution are constructed or operated. An applicant for a permit is required to provide reasonable - assurances that the proposed project will not violate DER's air quality standards. The rule establishes air quality standards for the following pollutants: sulphur dioxide, particulate matter, carbon monoxide, photochemical oxidants, hydrocarbons, and nitrogen dioxide.

      
      

   2. The Petitioners own property along Gulf Boulevard in Treasure Island, Pinellas County, Florida. The Department of Transportation has applied to DER for a complex air source permit to engage in a road widening project along Gulf Boulevard. Petitioners are parties to an administrative proceeding currently pending before the Division of Administrative Hearings. The issue in that proceeding is whether DER should grant the Department of Transportation the requested permit.

      
      

   3. The parties have stipulated that the Petitioners have standing to maintain the instant action.

      
      

   4. In its Motion to Intervene the Jacksonville Transport tation Authority alleged that it is proposing construction of an expressway system in Duval County, Florida. The Intervenor alleges that it will need to obtain a complex source permit from DER in order to engage in the construction. The Intervenor presented no evidence respecting these allegations at the hearing.

      
      

   5. DER's rule 17-2.05(3), Florida Administrative Code, provides for complex air source permits. A "complex source" is defined in Rule 17- 2.05(8)(a)(1) as follows:

      
      

      Any facility or group of facilities, which is a source of air pollution by reason that it causes, directly or indirectly, significant increases or emissions of pollutants into the atmosphere or which reasonably can be expected to cause an increase in the ambient air concentrations of pollutants, either by itself or in association with mobile sources.

      
      

      Roadways and widened roadways constitute complex sources under the definition. Permits must be obtained from DER before new roads, or road modifications can be constructed. Rule 17-2.05(8)(c) 3-5. Rule 17-2.05(8)(b) provides:

      
      

      No person shall construct or modify or operate or maintain any complex source of air pollution which results

      in or causes an increase in ambient pollutant concentrations in violation of the ambient air quality standards.

      
      

      DER may not issue a complex air source permit unless it is reasonably assured that the proposed project will not violate the ambient air quality standards set out in Rule 17-2.06, and in Table 3 thereof. The applicant is required to submit such information as DER requires to make its determination. Rule 17- 2.05(8)(d) provides:

      
      

      Any person seeking a permit shall submit such information that is necessary for the Department to determine that the complex source will not cause a violation of Ambient Air Quality Standards and submit to the Department such information that shall include, but not

      be limited to:

      
      

      1. The nature and amounts of pollutants to be emitted or caused to be emitted by the complex source, or by associated mobile sources, and an air quality impact statement.

         
         

      2. The location, design, construction and operation of such facility.

         
         

   6. The Petitioners contend that DER has a practice of requiring applicants for complex source permits to submit information, and to provide the requisite reasonable assurances only with respect to projected emissions of carbon monoxide. It is alleged that DER does not require applicants to submit data respecting other pollutants, or to provide any reasonable assurances with respect to the other pollutants described in DER's Ambient Air Quality Standards. It is further alleged that DER evaluates only expected emissions of carbon monoxide when evaluating an application for a complex air source permit. These allegations are not supported by the evidence.

      
      

   7. DER has a policy of requiring applicants for complex air source permits to submit in the initial application only data respecting projected carbon monoxide emissions. With respect to automobile related pollutants, carbon monoxide is known as a controlling pollutant. Automobile related pollutants essentially are carbon monoxide, hydrocarbons, and nitrogen oxides. A decrease of carbon monoxide emissions causes a greater decrease in hydrocarbon emissions. A decrease in carbon monoxide emissions causes a decrease of nitrogen oxide emissions at a slightly reduced percentage. Changes in ambient levels of these related pollutants can be predicted by considering carbon monoxide data. Furthermore, high concentrations of carbon monoxide are a localized problem. High carbon monoxide readings generally reflect one or just a few sources of carbon monoxide emissions within a localized area. High readings of hydrocarbons, nitrogen dioxide, and photochemical oxidants, on the other hand, are not localized, but rather reflect a number of pollutant emitting activities over a broad area. DER has established monitoring stations, where concentrations of pollutants are measured. Data obtained from these stations is utilized to provide DER with information as to areas that experience high concentrations of hydrocarbons, nitrogen oxides, and photochemical oxidants.

      When a project is proposed in such an area, DER requires applicants to submit ad ditional data respecting projected emissions of these pollutants that would result from the project. Such additional data has been requested by the Department in several cases. Where there is no indication that concentrations of these pollutants are occuring in an area, DER is able factually to assure itself that a given project will not result in violations of the standards respecting these pollutants by considering the carbon monoxide data. It is for this reason that applicants are not initially required to submit data respecting pollutants other than carbon monoxide. DER is able to assure itself that roadway projects will have no impact upon concentrations of sulphur dioxide and particulate matter because these are not pollutants that are associated with automobiles.

      
      

   8. DER's policy of not requiring applicants to submit data respecting pollutants other than carbon monoxide does not relieve an applicant of its duty to provide information necessary for DER to determine that the proposed project will not cause violations of any of the ambient air quality standards. The Department utilizes its own data in making such determinations, and if a project is proposed in an area where there are high concentrations of pollutants other than carbon monoxide, DER requires the submission of further data. DER's practices and Policies are thus not contrary to its rules, and the practices and policies do not constitute rule making.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction over the subject matter of this Proceeding and over the parties. Section 120.56, Florida Statutes (1977).

      
      

   10. Intervenors in Section 120.56 proceedings are required to establish facts sufficient to show that they are substantially affected by the rules being challenged. Section 120.56(5). It can be gleaned in this case that the Intervenor is responsible for improving, maintaining, and operating an express- way system in Duval County, Florida. Chapter 49, Florida Statutes (1977). The Intervenor offered no evidence, however, to establish that it is presently, or will, in the future, engage in any project which would require a complex source permit from DER. The Intervenor has therefore not established its substantial interest in this proceeding, and will be dismissed as a party.

       
       

   11. The Petitioner has failed to establish that the practices and policies of DER that are the subject of this action are contrary to the provisions of DER's rules, or otherwise constitute rules that have not been properly promulgated. The practices and policies do not constitute a deviation from the Department's complex air source rules. Chapter 17-2, Florida Administrative Code. To the extent that data provided by a complex source permit applicant, and additional data gathered by DER in connection with an application is insufficient to provide the reasonable assurance required by DER's rules that the ambient air quality standards for all listed pollutants will not be violated by a project, that determination can be made only on a case by case basis in proceedings conducted in accordance with the provisions of Section 120.57 Florida Statutes (1977)

FINAL ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

ORDERED:

1. The Intervenor is hereby dismissed as a party to this proceeding.

   
   

2. The relief requested by the Petitioners is hereby denied, and the Petition for Determination of Invalidity of Administrative Rule is hereby dismissed.

DONE and ORDERED this 27th day of September, 1978, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings

101 Collins Building

Mail: 530 Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Kenneth G. Oertel, Esquire Truett & Oertel, P. A.

646 Lewis State Bank Building Tallahassee, Florida 32301

Joe W. Fixel, Esquire Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Robert M. Rhodes, Esquire

P. O. Box 1876 Tallahassee, Florida 32302

Carroll Webb, Executive Director Administrative Procedures Committee Room 120 Holland Building Tallahassee, Florida 32304

Ms. Liz Cloud Department of State The Capitol

Tallahassee, Florida 32304

Docket for Case No: 78-001389RX

Orders for Case No: 78-001389RX