STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANATEE CHAPTER ISAAK WALTON ) LEAGUE OF AMERICA, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 78-2250

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, STATE OF FLORIDA AND ) MANATEE ENERGY COMPANY, )

)

Respondents. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Bradenton, Florida, on April 26-27, 1979, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Paul Amundsen, Esquire

One Biscayne Tower

Two South Biscayne Boulevard, Suite 3636 Miami, Florida 33131

For Respondent: Mary F. Clark, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

For Respondent: Ronald C. LaFace, Esquire Manatee Energy Post Office Box 1752 Company Tallahassee, Florida 32302

ISSUE PRESENTED

Whether construction permit No. AC41-6819 issued to Manatee Energy Company, dated June 8, 1978, should be amended, as proposed in construction permit No.

AC41-6819A, dated November 7, 1978.

FINDINGS OF FACT

1. The parties stipulated to the following facts:

   
   

   1. The Manatee Chapter of the Isaak Walton League of America ("Isaak Walton League") is a non-profit corporation, organized and existing under Florida law. The Isaak Walton League's address is 5314 Bay State Road, Palmetto, Florida 33561.

   2. Manatee Energy Company ("Manatee Energy") is a Florida corporation, whose address is 108 Appleyard Drive, Post Office Box 867, Tallahassee, Florida 32302, and was formerly a subsidiary of Belcher Oil Company.

      
      

   3. The State of Florida Department of Environmental Regulation ("DER") is an agency of the State of Florida charged with the regulation and control of air and water pollution under Chapter 403, Florida Statutes, whose address is Twin Towers Office Building, 2600 Blair Stone Road, Tallahassee, Florida 32301.

      
      

   4. The specific agency action at issue in this proceeding is DER's issuance of a revised permit to Manatee Energy to modify a crude oil splitting facility and modified or additional rundown tankage at Port Manatee, Florida.

      
      

   5. The facility at issue will be located in North Manatee County near the Hillsborough/Manatee County line in Port Manatee.

      
      

   6. On November 7, 1978, DER issued Manatee Energy Permit No. AC41- 6819A. The validity of the permit is disputed by the Petitioner.

      
      

   7. Manatee Energy has undertaken construction of the crude oil splitter and associated tankage under either Permit No. AC41-6819 and Permit No. AC41-6819A. (Exhibit 1)

      
      

2. On June 8, 1978, after administrative proceedings conducted under Chapter 120, Florida Statutes, DER issued construction permit AC41-6819 to Manatee Energy for the construction of a 15,000 BPSD crude oil splitter at Port Manatee, Florida. The permit stated that the oil splitter is to separate crude oil by distillation into three fractions; i.e., LPG, jet fuel and bunker "C." It further provided that combustion devices were to be fired with LPG or fuel oil with a sulfur content of 0.7 percent or less. Various conditions were attached to the issuance of the permit, including analysis of samples of fuels to be burned in the furnace and boiler, performance testing of stacks after startup of the facility, emission limits for the furnace and boiler, and

   periodic monitoring and reporting of heat content and sulfur content of fuel oil combusted in the boiler and furnace. In addition, condition 5 required that all fugitive dust generated at the site be adequately controlled, and conditions 12-

   13 required that steps be taken in conjunction with the Manatee Port Authority to correct any ambient particulate violations, such as paving of roads, parking lots and the like, prior to issuance of an operating permit. The Chapter 120 administrative proceedings resulted in a determination that the proposed facility would not release air pollutants exceeding ambient air quality standards, or significantly degrade applicable base line air quality. (Exhibits 1-2)

   
   

3. On October 27, 1978, Manatee Energy applied to DER for revision of the existing permit. The proposed revision was prompted primarily by the fact that Manatee Energy had been sold by its parent company, Belcher Oil Company, and had become an independent operator subsequent to the issuance of the original permit. This change in ownership created a need for accurate recording and accounting of product volume and quality before its transfer to Belcher's storage tanks which are adjacent to the crude oil splitter facility. To accomplish this purpose, Manatee Energy proposed the addition of two 10,000 barrel JP-4 "rundown" tanks for jet fuel, and one 10,000 barrel diesel "rundown" tank in lieu of previously permitted tank No. 410. Also, a 33,000 barrel slop oil tank to temporarily receive and hold off-specification product, and a 40,000

   barrel waste water tank replacing a 35,000 barrel tank previously permitted (tank No. 409), were proposed to be added. In view of the above proposed changes, the nine storage tanks owned by Belcher (tanks Nos. 401-409), four of which are leased by Manatee Energy (tanks Nos. 406-409), will store different products except for tanks Nos. 405 and 407 which will remain unchanged. Under the original permit, two 80,000 gallon tanks were to be used to store JP-4, (tanks Nos. 403-404), but under the new proposed arrangement, only one will be used for that purpose (tank No. 406). Tank No. 403 will be used exclusively by Belcher for asphalt storage. Tank No. 409 will he converted from a waste water tank to a No. 6 fuel oil tank.

   
   

4. Based on revised determinations of hydrocarbon emission factors by the Environmental Protection Agency after Manatee's application for the original permit, secondary seals on internal floating roof tanks will be deleted, but existing floating roof tank No. 407 is proposed to be modified by adding secondary seals to reduce such emissions. Revised calculations by the applicant as to hydrocarbon emissions show that the proposed changes in tank service and design will offset expected emissions from the proposed new tanks. Such emissions from the revised facility are expected to be 16.8 tons less than the currently permitted tankage emission rate of 75.4 tons per year. (Testimony of Hutchinson, Borie, Exhibits 4, 6-9)

   
   

5. Additional modifications to the existing permit proposed by Manatee Energy are to relocate the emergency flare stack, move the process heater, boiler and control room approximately 150 feet each from their previously contemplated locations, and to raise the crude tower approximately 16 feet. The tower produces no emissions and the change is designed to improve the distillation process. Movement of the flare stack and the other process equipment and control room are proposed for safety reasons and do not alter the process configuration or increase emissions. Finally, a Merox treating unit was added for the purpose of extracting impurities from jet fuel. This process does not involve any emissions. (Testimony of Hutchinson, Borie, Larsen, Exhibits 4, 6, 14-15)

   
   

6. The revised permit application consisted of engineering drawings by the firm of Marsco Engineering Corporation, Tyler, Texas which was employed subsequent to issuance of the original permit, and a report concerning the proposed changes prepared by Walk, Haydel and Associates, Inc., an engineering consultant and design firm of New Orleans, Louisiana. A complete DER application form was not submitted or required by DER. Only a revised page 4 of the standard application form was submitted. There was no certification of the project by a professional engineer registered in Florida, although such a certification is required by DER rules.

   
   

7. The application was reviewed and recommended for approval to DER by the Manatee County Pollution Control Director. Personnel of DER's Southwest District Office reviewed the application and determined that the applicant's calculations showing that proposed hydrocarbon emissions would be less than those projected under the original permit were correct. They further found that concentrations of sulfur dioxide and particulate emissions would be unchanged by the modifications to the facility. The latter determination was supported by the results of an air quality computer model programed under standard EPA criteria to estimate the impact of such emissions from pollutant sources on ambient air quality standards at ground level. The model determined the maximum impact of sulfur dioxide pollutants which would emanate from the relocated stacks at receptor points approximately .7 to .8 kilometers south of the facility. It was found that the maximum pollutant impact during the worst

   twenty-four hour period would not change significantly from the former configuration of the stacks and would be well within state ambient air standards of 260 micrograms per cubic meter. A separate computer model relative to particulates was not required because such emissions when extrapolated from the sulphur dioxide model would result in basically unchanged emissions compared to the originally permitted configuration. Manatee County Pollution Control has operated an air quality monitor at Port Manatee for a number of years. This device, which is used for monitoring emission of particulates, has reflected excessive emissions on a number of occasions during 1978 and 1979. However, it is a "source" monitor which is not located in an appropriate place under EPA standards to monitor ambient air quality and, accordingly, DER does not consider the site to be "ambient oriented" or the data to be usable for determinations involving air quality standards. There have been no violations of ambient air quality revealed by monitoring at other stations in Manatee County during the past year. In fact, Manatee County's annual geometric mean for 1978 for suspended particulates were the lowest ever recorded at 33.8 micrograms per cubic meter which was significantly lower than the air quality standard of 60 micrograms per cubic meter. (Testimony of George, McDonald, Williams, Koogler, Subramani, Exhibits 4, 11-13, 16-21)

   
   

8. In 1978, subsequent to the issuance of the original permit but prior to the filing of the revision application, certain rules of the DER contained in Chapter 17-2, Florida Administrative Code, were changed. Rule 17-2.03 required the DER to make a determination of the Best Available Control Technology (BACT) after receipt of an application for a permit to construct an air pollution facility in certain instances under specific criteria stated in the rule, after public notice had been given of an application which required such a determination. DER did not make a BACT determination as to the permit revision application concerning hydrocarbon emissions since it determined that there was an existing emission limiting standard for volatile organic compounds in Rule

   17-2.05(5), which required known vapor emission control devices or systems in the processing and use of such substances. DER also determined that Rule 17- 2.04(6) concerning Prevention of Significant Deterioration (PSD) did not require a BACT determination as to hydrocarbon emissions because the Rule does not apply to hydrocarbon emissions. Also, DER determined that neither the BACT nor the PSD rules were applicable to the modified facility as to sulfur dioxide and particulates because the ambient concentration of those emissions would be unchanged by the proposed modifications. (Testimony of Williams, Exhibit 13)

   
   

9. On November 13, 1978, DER issued construction permit No. AC41-6819A to Manatee Energy for the proposed modifications. Conditions attached to the permit were the same as those of the original permit, plus conditions setting forth the modifications of the facility. Notification of the issuance of the permit revision was not made to Petitioner who had been a party to the Chapter

   120 proceedings involving the original permit. Neither were the public notice provisions of Rule 17-2.04(9) complied with by DER prior to the issuance of the revised permit. The parties stipulated that opportunity for public participation and comment at the hearing held herein would cure any procedural defect in this regard. (Exhibit 5)

   
   

10. Condition 12 of the proposed permit provides that before any startup of the facility, steps must be taken in conjunction with the Manatee Port Authority to correct any fugitive particulate problems and condition 13 states that an operating permit will not be issued until such time as the Port Authority has eliminated the "present violation of the ambient air quality standard with regard to particulates." Identical conditions were set forth in the prior permit based on findings that ambient particulate violations existed

    from fugitive dust created by road traffic at Port Manatee. As heretofore found above, the particulate violations at Port Manatee are not deemed to constitute violation of ambient air quality standards. Nevertheless, since the original permit was issued, various steps have been taken to reduce such emissions in the Port area by the use of a sweeper, paving of roadway, parking and driveway areas, planting of vegetation, grass, and shrubbery in critical areas, and the like. Although these efforts have shown little success, reasonable efforts are continuing to reduce the problem. (Testimony of McDonald, Subramani, Exhibit 18)

    
    

11. Eight public witnesses testified at the hearing. Their concerns primarily focused on such subjects as lack of technology to prevent emission of hydrocarbons, oil spills, inefficiency of small facilities, opposition to "dirty industry" in the county, lack of adequate state rules for storage of hazardous waste, and the accumulation of emissions generally in the Tampa Bay area. One witness pointed out the presence of eagle and pelican habitats in the Bay area near the site in question. A statement on behalf of Sarasota County expressed the view that the modified facility should be subject to the review process of Chapter 380, Florida Statutes, concerning developments of regional impact prior to the issuance of a modified construction permit. (Testimony of Burger, Chiefari, Fernald, H. Greer, Blankenship, Morris, M. Greer, Lincer, Exhibit 22, Hearing Officer Exhibit 1)

    
    

    CONCLUSIONS OF LAW

    
    

12. Chapter 17-2, Florida Administrative Code, implements the air pollution provisions of the Florida Air and Water Pollution Control Act set forth in Chapter 403, Florida Statutes. Chapter 17-4, F.A.C., contains the general standards for issuance or denial of permits issued pursuant to Chapter

403. Rule 17-4.07(3) provides that the DER shall issue a permit to construct or modify an installation reasonably expected to be a source of pollution only when it determines that it is provided or equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with departmental standards.

1. Petitioner maintains that the DER should have made a determination of Best Available Control Technology pursuant to Rule 17-2.03, and also applied the provisions of Rule 17-2 concerning Prevention of Significant Deterioration.

   DER, on the other hand, contends that neither rule is applicable to the modified facility and that, in any event, the rules which became effective after issuance of the original permit should not be controlling for such permit modifications. The latter contention is resolved by the Sexton Cove Estates, Inc. v. State Pollution Control Board, 325 So.2d 468 (Fla. 1st DCA 1976), which held that the standards and regulations in existence at the time an application is filed are controlling. Here, the application for a revised or modified permit necessarily invokes a new agency licensing process for the amendment of an existing permit as contemplated under Sections 120.52(8) and 120.60, F.S. The evidence, however, shows that DER is correct in its claim that Rules 17-2.03 and 2.04 do not apply in this particular case. The agency properly found that a prior BACT determination was not required as to hydrocarbon emissions because vapor emission control devices, as required by Rule 17-2.05(5)(a), utilized by the facility, and that the PSD rule does not apply to such emissions. Neither a BACT determination nor application of the PSD rule is required as to sulfur dioxide and particulate emissions because the modifications would leave concentrations of such pollutants virtually unchanged from the amounts determined under the existing permit. The evidence further establishes that the applicant has provided the DER with reasonable assurances that the modified

   facility will not cause a violation of the applicable ambient air quality standards contained in Rule 17-2.06.

   
   

2. Petitioner had expressed concern over the fact that five of the storage tanks will be owned and operated by Belcher Oil Company, add that, therefore, Manatee Energy cannot control the method in which they are utilized. Although the proposed permit cannot control the operations of any one other than the permittee, the conditions attached to the permit specify that the tanks in question will be utilized in the manner stated in the permit application. Therefore, if Belcher Oil Company elects to store a different product in a particular tank, a condition of the permit would be violated and appropriate action in respect thereto could be undertaken by DER. Similarly, as to Petitioner's contention that the splitter would have an increased output over that which was originally permitted and is proposed to remain the same, any actual increase in this regard would again provide a basis for a new modification to the permit for enforcement action by DER.

   
   

3. Petitioner is correct in its contention that Manatee Energy did not submit a proper permit application to DER for the modifications to the facility. Rule 17-4.05, F.A.C., requires any person desiring to obtain a permit to make application on forms prescribed by the Department. Although perhaps both Manatee Energy and DER reasonably were of the opinion that only an amended page

   4 of the standard application was necessary to reflect the proposed modifications to the existing permit, the fact remains that modification of an existing permit is deemed to initiate a new licensing process and a completed departmental form should have been executed by the applicant, including the mandatory certification of a professional engineer registered in the State of Florida, as required by Rule 17-4.05(4). There was no showing at the hearing that such a certification was submitted by the applicant with respect to the application for a revised permit. It is considered, however, that this procedural defect may be cured by late submission as a precondition to issuance of the revised permit.

   
   

4. The other matters set forth in briefs and proposed findings of fact submitted by the parties have been fully considered, and, where not incorporated herein, are deemed either unwarranted or inapplicable under the facts and law of the case.

RECOMMENDATION

That a permit for the construction of modifications to the facility which is the subject of this proceeding be granted to the Manatee Energy Company, subject to the conditions heretofore proposed by the Department of Environmental Regulation, dated November 7, 1978, and with a precondition that the applicant fully complies with the provisions of Rule 17-4.05, Florida Administrative Code, prior to such issuance.

DONE and ENTERED this 22nd day of May, 1979, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Mary F. Clark, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Ronald C. LaFace, Esquire Post Office Box 1752 Tallahassee, Florida 32302

Paul Amundsen, Esquire One Biscayne Tower Suite 3636

Two South Biscayne Boulevard Miami, Florida 33131

Docket for Case No: 78-002250

Orders for Case No: 78-002250