STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
TUXEDO FRUIT COMPANY, )
)
Petitioner, )
)
vs. ) CASE NO. 89-1121
) FLORIDA SUN CEMENT CO. INC., ) AND STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondents. )
) CITY OF ST. LUCIE VILLAGE, )
)
Petitioner, )
)
vs. ) CASE NO. 89-1271
) FLORIDA SUN CEMENT CO. INC., ) and STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, a final hearing in the above-styled matter was held on July 10-14, 1989, in Ft. Pierce, Florida, before Joyous D. Parrish, a Hearing Officer of the Division of Administrative Hearings. The parties were represented in this cause as follows:
APPEARANCES
For Petitioner Paul H. Amundsen
Tuxedo Fruit Blank, Hauser & Amundsen Company: 204-B South Monroe Street
Tallahassee, Florida 32301
For Petitioner Bram D.E. Canter
City of St. Haben & Culpepper, P.A. Lucie Village: 306 North Monroe Street
Tallahassee, Florida 32301
For Respondent Sylvia Morell Alderman Florida Sun Paul R. Ezatoff
Cement Company, Katz, Kutter, Haigler, Alderman, Eaton, Inc.: Davis & Marks, P.A.
215 South Monroe Street, Suite 400 Tallahassee, Florida 32301
For Respondent Wayne L. Schiefelbein Department of Gary C. Smallridge Environmental Carol A. Forthman Regulation: Twin Towers Office Building
2600 Blair Stone Road Tallahassee, FL 32399-2400
STATEMENT OF THE ISSUES
The central issue in this case is whether the permit to construct a Cyclonaire Docksider pneumatic unloading system, permit no. AC 56-157174, which was requested by Florida Sun Cement Company, Inc., should be approved.
PRELIMINARY STATEMENT
This case began on February 7, 1989, when the Department of Environmental Regulation (Department) entered an Intent to Issue which gave notice of its intent to approve a permit to construct an air pollution source consisting of a barge-mounted bulk cement unloading system which had been
Thereafter, on February 21, 1989, Tuxedo Fruit Company (Tuxedo) filed a Petition for Formal Administrative Proceedings and challenged the proposed agency action. The City of St. Lucie Village (City) also filed a petition challenging Florida Sun's entitlement to the permit and the cases were consolidated for formal hearing.
At the hearing, Florida Sun presented the testimony of the following witnesses: Roger C. Charles president of Florida Sun; Don Baker, president and CEO of Cyclonaire Corporation and Cyclonaire Bulk Cargo Systems, Inc.; C.B. Ganatra, an employee of W.L. Gore and Associates, who was accepted as an expert in chemical engineering, particulate matter, filtration technology and air pollution control technology; John B. Koogler, Ph.D., president of Koogler and Associates, who was accepted as an expert in air pollution management, atmospheric dispersion modeling, air pollution control strategy development, ambient air quality monitoring, air pollution emission measurement, and air pollution impact assessment; Norris Lee Roeder, general manager of the general products group for Fuller Company; Stephanie S. Brooks, a Department Engineer IV, Senior Air Permitting Engineer, who was accepted as an expert in the application of Department rules and regulations related to air pollution permit processing; and Thomas G. Rogers, the Department's section administrator of the Modeling and Data Analysis Section for the Bureau of Air Quality Management, who was accepted as an expert in meteorology and in computer modeling of atmospheric dispersion of air pollution. Florida Sun's exhibits numbered 1, 2, 3(a), 3(b), 4(a), 4(b), 5(a), 5(b)(1), 5(b)(2), 7, 8(a), 8(b)1, 8(b)2, 8(c)1, 8(c)2, 8(c)3,
8D, 8E, 10A, 10B, 10C, 10D, 11, 12, 13, 14, 15, 18, 19(a), 19(b), 19(c), 20, 21,
22, 23, 24(a), 24(b), 25, 30, and 31 were admitted into evidence.
Mrs. Brooks and Mr. Rogers testified on behalf of the Department and its exhibits numbered 1 through 6 were admitted into evidence.
The following witnesses testified on behalf of Tuxedo and the City: John Arnold Scotto, secretary of Tuxedo, who was accepted as an expert in citrus fruit packing and shipping; Mohamed A. Ismail, Ph.D., who was accepted as an expert in postharvest citrus fruit physiology; John D. Yocom, vice-president and chief consulting engineer with TRC Environmental Consultants, who was accepted as an expert in air pollution engineering, control and measurement; and Gale Frederick Hoffnagle, vice-president and technical director for TRC Environmental
Consultants, who was accepted as an expert in air pollution computer modeling and meteorology. Tuxedo's exhibits designated as A, B, C, D, E, F, G, H, I, and
22 were admitted into evidence and were adopted by the City.
The transcript of the proceedings was filed with the Division of Administrative Hearings on August 10, 1989. Thereafter, the parties requested an extension of time to file their proposed recommended orders which was construed as a waiver of the provisions of Rule 28-5.402, Florida Administrative Code, and which was granted by order entered on August 18, 1989. All parties filed proposed recommended orders which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.
FINDINGS OF FACT
Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:
Florida Sun is a Florida corporation whose address is 4550 Glades Cutoff Road, Fort Pierce, St. Lucie County, Florida 34949.
Tuxedo is a Florida corporation whose address is 1110 North Second Street, Fort Pierce, Florida 34950.
The City is an incorporated municipality with a boundary located approximately one and one-half miles north of the Tuxedo packing house.
On November 15, 1984, the Department issued permit number AC-56-86471 to Roger Charles, President of Manatee Cement Co., Inc. This permit authorized the construction of a cement bulk terminal/ship unloading facility which would include two 10,000 metric ton silos for the storage of Portland cement which would be vented by one common baghouse. The location for the facility was to be at Port Avenue and Harbor Street in Fort Pierce, Florida. This location is directly across the street from the Tuxedo packing house.
On November 15, 1984, the Department issued permit number AC-56-873l0 to Roger Charles, President of Manatee Cement Co., Inc. This permit authorized the construction of a cement Co., Inc. This permit authorized the construction of a cement bulk terminal/truck loading and packhouse which would include one
240 ton storage bin vented to one baghouse, two truck loading spouts vented to two baghouses, and one packing facility which would also be vented.
On November 25, 1985, the Department extended the expiration dates for the permits identified in paragraphs 4 and 5 until November 15, 1989. Later, on August 11, 1987, the Department transferred the permits to Roger Charles, president of Florida Sun.
On November 14, 1988, Florida Sun filed an application for a barge- mounted pneumatic Portland Cement unloader. This unloader, a Cyclonaire Docksider, was proposed to be used in connection with the facilities previously permitted. Florida Sun sought to utilize the pneumatic unloader to extract cement from the holds of ships moored at the Fort Pierce port which is adjacent to the mainside silo facility. From the dock area the cement would then be conveyed through a sealed pipeline to the storage silos. From the silos, the cement would be loaded into trucks and transported away from the site.
Under the 1984 permits' proposal, Florida Sun intended to unload the cement via self-unloading ships which did not require a permit. The 1988 request for the barge-mounted unloader would allow more types of ships to unload at the facility.
On February 7, 1989, the Department issued an Intent to Issue which announced its intent to issue the permit.
On February 12, 1989, the notice of the Intent to Issue was published in the News Tribune, a newspaper published at Fort Pierce, St. Lucie County, Florida. Tuxedo and the City timely filed petitions challenging the proposed permit. Neither petitioner had timely challenged the permits which had been issued in 1984.
The pneumatic unloader which is the subject of the permit request is to be manufactured by Cyclonaire Bulk Cargo Systems, Inc. (Cyclonaire). The Cyclonaire Docksider unit will be attached to a free-floating barge which will be secured to the dock. The barge will be capable of movement in an east-west direction to allow access to each opening of the ship's hold. The Cyclonaire Docksider operates by extending an arm into the hold of the ship. The arm is equipped with a pneumatic device which extracts the cement from the ship and conveys it through a pipeline.
The Cyclonaire utilizes two diesel engines which operate the extraction and conveying portions of the device. The Cyclonaire is vented through filter cartridges manufactured by W.L. Gore and Associates.
Cyclonaire has executed a warranty for the Docksider pneumatic unloading system which provides, in pertinent part:
Not more than .02 grains of particulate matter shall be contained in each dry standard cubic foot of air discharged into the atmosphere from the vacuum pump exhaust ports during normal operation of ice system, as measured using the applicable test methods specified by the State of Florida Department of Environmental Regulation. The opacity of emissions measured across the vacuum pump exhaust ports during normal operation shall not exceed 5o/o when measured using the applicable test method specified by the State of Florida Department of Environmental Regulation.
The opacity of emissions measured across the top of the hold of the vessel being discharged by the DOCKSIDER system shall not exceed 5o/o during normal operation of the system, when measured using the applicable test method specified by the State of Florida Department of Environmental Regulation.
There shall be no leaks or fugitive emissions from the unloader suction line(s), from the filter vessel, from the cement receivers, from the cement discharge line(s), from the supply line(s) to the vacuum pump, or from the vacuum pump itself.
Cyclonaire has also executed a warranty for the conveying lines to the silos which provides, in pertinent part:
Not more than .02 grains of particulate matter shall be contained in each dry standard cubic foot of air discharged into the atmosphere from the vacuum pump exhaust ports of the system during normal operation of the system, as measured using the applicable test methods specified by the State of Florida Department of Environmental Regulation. The opacity of emissions measured across the vacuum pump exhaust ports during normal operation shall not exceed 5o/o when measured using the applicable test method specified by the State of Florida Department of Environmental Regulation.
The opacity of emissions measured across the top of the hold of the vessel being discharged by the Docksider system shall net exceed 5o/o during normal operation of the system, when measured using the applicable test method specified by the State of Florida Department of Environmental Regulation.
Not more than 0.02 grains of particulate matter shall be contained in each actual cubic foot of air discharged by the baghouse at the silos per performance warranties of the Fuller Company as measured using applicable test methods specified by the State of Florida DER. The opacity of emissions measured across the baghouse exhaust shall not exceed 5o/o when measured using the applicable test method specified by the State of Florida DER.
There shall be no leaks or fugitive emissions from the unloader suction line(s), from the filter vessel, from the cement receivers, from the cement discharge line(s), from the supply line(s) to the vacuum pump, or from the vacuum pump itself.
This warranty does not apply to situations which result due to factors beyond the reasonable control of Seller, e.g., equipment malfunctions, improper maintenance, improper operations or wind gusts in excess of 35 miles per hour.
A system similar to the proposed Florida Sun Cyclonaire Docksider is located in Tampa, Florida. When tested, the Tampa unloading system resulted in an average particulate concentration of .0043 gr/dscf and the average particulate emission rate was .21 lb/hr at an average cement unloading rate of
236 tons per hour. The visible emissions were found to be less than 5 percent opacity.
Florida Sun proposes to vent emission sources by use of baghouses. These filtering systems vent dust-laden air by extracting the particles which fall, by gravity, while the air is released through a filter to the outside.
The filters are cleaned by a jet of air which is pulsed on the outside of the filter unit. The Florida Sun facility will have baghouses to vent the silos and the truck loadout spouts.
The Fuller Company manufactures retractable loading spouts which will convey the cement from the storage silos to the transporting trucks. The truck loading process will take place within an enclosed silo. The truck will be positioned under the spout and a cone will be extended down into an opening on the top of the vehicle. Proper operation requires the spout to connect to the truck so that particles are not released into the air. The spout allows the cement to flow into the truck while air is displaced back into a venting system. Each loading spout will have its own venting system.
The Fuller Company performance warranties provide, in pertinent part:
Fuller Company warrants, when the equipment covered by this agreement, is adjusted and operates at the design operating conditions, as specified within the specifications, and as enumerated in Section A hereafter; that the maximum solid particulate emissions exiting the baghouse will not exceed 0.02 Gr/ACF excluding condensibles.
The potential sources of air pollutant emissions associated with the Florida Sun cement facility are as follows: unconfined and unquantifiable particulate matter emitted from the hold of the ship during the unloading process; the emissions from the Cyclonaire unit (the venting required to separate the dust-laden air in order to pass the cement into the conveyor line); emissions from two diesel engines which generate energy for the extraction and conveying unit; the baghouse which vents the silos as they are being loaded; the truck spout venting units; and the unconfined but quantifiable particulate matter generated by truck traffic. The total of the quantifiable emissions for the Florida Sun facility will be 19 tons per year.
The Florida Sun facility will not contain the 240 ton cement storage bin authorized by the 1984 permits. Based upon Florida Sun's stipulation to that effect, potential emissions from that source have not been considered.
The Florida Sun facility will not contain the packhouse authorized by the 1984 permits. Based upon Florida Sun's stipulation to that effect, potential emissions from that source have not been considered.
The stipulated Florida Sun annual throughput of cement for this facility will be 279,000 tons per year, plus or minus 10 percent.
In addition to the equipment to be utilized to limit the expected emissions, Florida Sun intends to pave or grass its entire facility. Regular maintenance of this area will provide reasonable precautions that unconfined particulate matter will not be released into the atmosphere. Further, training of personnel will aid in the proper operation and maintenance of the equipment. Operation of the Cyclonaire should not occur during wind conditions exceeding 35 miles per hour.
While helpful to determine air quality impacts, air quality modeling is not required by rule for permit approval for minor projects with a non-toxic source. To be helpful, an air quality model must be based upon assumptions of fact likely to occur. All parties utilized the Industrial Source Complex Short- Term model. That model is an EPA approved model for general air quality analysis. In this case, the model submitted by Tuxedo and the City contained numerous emission factor errors which rendered their model's results unreliable. Among the errors were: the assumption that the truck loading activities would occur twenty-four hours a day, 365 days a year; the by Tuxedo and the City contained numerous emission factor errors which rendered their model's results unreliable. Among the errors were: the assumption that the truck loading activities would occur twenty-four hours a day, 365 days a year; the assumption that the truck loading activities would result in a spillage of cement material at a rate of 1.2 grams per second for twenty-fours a day, 365 days a year; and the assumption that truck loading would occur outside of the enclosed silos.
The air quality models run by Dr. Koogler and Mr. Rogers corroborated the other forms of assurances given by Florida Sun.
The Tuxedo packing house is located directly across the street to the north from the Florida Sun facility. There is also another citrus packing house located directly across the street to the south from the Florida Sun property. The Tuxedo packing house boxes a variety of fresh citrus fruits for the fresh market. Citrus fruit is sensitive to skin abrasion which can result in a premature decay of the fruit and limited shelf-life of the fruit. As a result, prudent packers take every precaution to avoid abrasive particles from coming in contact with fresh fruit. Cement is an abrasive material. The Tuxedo packing house is ventilated by large doors located around the building and an opening at the top of the structure. In general, Tuxedo is located downwind from the Florida Sun facility.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
Rule 17-2.210, Florida Administrative Code. provides, in pertinent part:
17-2.210 Permits Required. The owner or operator of any source which emits or can reasonably be expected to emit any air pollutant shall obtain an appropriate permit from the Department prior to beginning construction, modification, or initial or continued operation of the source unless exempted pursuant to Department rule or statute. Issuance of a permit does not relieve the owner or operator of any source from complying with applicable emission limiting standards or other requirements of Chapter 17-2, or any other requirements under federal, state, or local law.
Air Construction Permits--An air construction permit shall be obtained by the owner or operator of any proposed new or modified source prior to commencement of
construction or modification, in accordance with all applicable provisions of Chapter 17- 2, Part V, and Chapter 17-4, Florida Administrative Code. The construction permit shall be issued for a period of time sufficient to allow construction or modification of the source and operation while the new or modified source is beginning operation and conducting tests to determine whether the source is in compliance with applicable emission limiting standards.
Rule 17-103.155(1)(a), Florida Administrative Code, provides, in pertinent part:
(1)(a) Any person whose substantial interests may be affected by proposed or final agency action by the Department may file a petition for formal administrative hearing in accordance with this rule if the
person disputes the material facts upon which the Department's action is based.
Tuxedo has established standing in this matter as it has substantial interests which will be affected by the approval of the Florida Sun permit. Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1982)
The City has standing pursuant to Section 403.412(5), Florida Statutes, to challenge the subject permit.
Rule 17-4.070, Florida Administrative Code, provides, in pertinent part:
17-4.070 Standards for Issuing or Denying Permits; Issuance; denial.
A permit shall be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results, installation of pollution control equipment, or other information, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit, or cause pollution in contravention of Department standards or rules. However, for discharges of waste to water, the Department may issue temporary operation permits under the criteria set forth in Section 403.088(3), F.S.
* * *
(3) The Department may issue any permit
with specific conditions necessary to provide reasonable assurance that Department rules can be met.
* * *
The issuance of a permit does not relieve any person from complying with the requirements of Chapter 403, F.S., or Department rules.
An applicant for a permit bears the burden of establishing, by a preponderance of the evidence, that it has provided reasonable assurances that the proposed activity will not cause a violation of the air quality standards. In Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981) the court found:
If the petitioner fails to present evidence, or fails to carry the burden of proof as to the contraverted facts asserted--assuming that the applicant's preliminary showing before the hearing officer warrants a finding of "reasonable assurances" -then the permit must be approved. In making this preliminary showing of "reasonable assurances" before the hearing officer, the applicant is required to provide credible and credited evidence of his entitlement to the permit. This having been done, the hearing officer would not be authorized to deny the permit unless contrary evidence of equivalent quality is presented by the opponent of the permit.
Pertinent to this case are the following definitions found in Rule 17- 2.100, Florida Administrative Code:
"Air Pollutant"--Any substance (particulate, liquid, gaseous, organic or inorganic) which if released, allowed to escape, or emitted, whether intentionally or unintentionally, into the outdoor atmosphere may result in or contribute to air pollution.
"Air Pollution"--The presence in the outdoor atmosphere of the state of any one or more substances or pollutants in quantities which are or may be harmful or injurious to human health or welfare, animal or plant life, or property, or unreasonably interfere with the enjoyment of life or property, including outdoor recreation.
* * *
(61) "Emission"--The discharge or release into the atmosphere of one or more air pollutants.
* * *
"Major Facility"--Any facility which emits, or has the potential to emit 5 tons per year or more of lead or lead compounds, measured as elemental lead, or 100 tons per year or more of any other air pollutant subject to regulation under Chapter 403, Florida Statutes.
"Major Source"--A stationary source
which emits or has the potential to emit 5 tons per year or more of lead or lead compounds, measured as elemental lead, or 100 tons per year or more of any other air pollutant subject to regulation under Chapter 403, Florida Statutes.
* * *
"Minor Facility"--Any facility that is not a major facility.
"Minor Source"--Any source that is not a major source.
* * *
(131) "Nonattainment Area"--Any area not meeting ambient air quality standards and designated as a nonattainment area under Rule 17-2.410 of this chapter. Such an area may be designated as a particulate, sulfer dioxide, nitrogen dioxide, carbon monoxide or ozone nonattainment area, depending on which ambient standard has been violated. An area may be designated as nonattainment for more than one air pollutant.
* * *
(135) "Opacity"--A condition which renders material partially or wholly impervious to rays of light causing obstruction of observer's view.
* * *
(143) "Particulate Matter"
With respect to concentrations in
the atmosphere, particulate matter means any airborne finely divided solid or liquid material.
With respect to emissions,
particulate matter means all finely divided solid or liquid material, other than uncombined water, emitted to the atmosphere as measured by applicable reference methods, or an equivalent or alternative method, specified in 40 CFR 60 Appendix A and adopted as part of this rule.
* * *
(150) "Potential Emissions" or "Potential
to Emit"--The maximum capacity of a source or facility to emit pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the source or facility to emit a pollutant, including air pollution control equipment and any federally enforceable restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design. The potential emissions of a source or facility do not include any secondary emissions that may be associated with the source or the facility.
* * *
(170) "Secondary Emissions"--The emissions which occur as a result of the construction or operation of a facility or a modification to a facility, but which are not discharged into the atmosphere from the facility itself. Secondary emissions may include but are not limited to emissions from ships or trains coming to or leaving a new or modified facility and emissions from any off-site support facility which would not otherwise be constructed or increase its emission except as a result of the construction or operation of the new or modified facility. Secondary emissions must be specific, well defined, quantifiable, and impact the same general area as the facility or modification which causes the secondary emissions.
* * *
(179) "Source" or "Stationary Source"--An identifiable piece of equipment (or the smallest integral combination of pieces of equipment, structures and necessary appurtenances) that is used as a complete unit to accomplish a specific purpose or to produce a specific product; and which:
Includes at least one activity or operation which is the point of origin of an air pollutant from process or other materials or accomplishes the conversion of all or part of various materials or fuels into a pollutant;
Has at least one emission or discharge point; and
Exists at or is designed to be operated as a unit at a fixed location,
although parts of the source may move while the source is in operation.
* * *
(205) "Unconfined Emissions "--Emissions which escape and become airborne from unenclosed operations or which are emitted into the atmosphere without being conducted through a stack.
* * *
"Visibility Impairment" or "Impairment to Visibility"--Any humanly perceptible change in visibility (visual
range, contrast, coloration) from that which would have existed under natural conditions.
"Visible Emission"--An emission greater than 5 percent opacity or 1/4 Ringelmann measured by standard methods.
Based upon the foregoing, Florida Sun is a minor source which will be located in an attainment area.
Rule 17-2.500, Florida Administrative Code, provides in pertinent part:
17-2.500 Prevention of Significant Deterioration. The provisions of this rule generally apply to the construction or modification of air pollutant emitting facilities in those parts of the state in which the state ambient air quality standards are being met.
* * *
(2) Applicability
This subsection establishes the criteria
for determining whether or not a proposed new facility or modification to a facility is subject to the new source review (NSR) requirements of this section, either in whole or in part. The NSR requirements of this section include the applicable provisions of: 17-2.500(4), General Provisions; 17-2.500(5), Preconstruction Review Requirements; and 17- 2.500(6), Construction/Operation Permit Requirements; all as modified by the applicable provisions of 17-2.500(3), Exemptions and Exclusions.
A proposed new facility or modification that is not subject to the NSR requirements
of this section, either in whole or in part, may be subject to review requirements under other sections of this Part.
* * *
New and Modified Facilities.
1. New Minor Facilities.
A proposed new minor facility shall not be subject to the NSR requirements of this section.
* * *
New source review under the prevention of significant deterioration rule is not applicable to minor sources; consequently, that standard is not applicable to the Florida Sun facility.
Rule 17-2.600, Florida Administrative Code, provides, in pertinent part:
17-2.600 Specific Source Emission Limiting Standards. No person shall cause, let, permit, suffer or allow to be discharged into the atmosphere emissions from the following sources greater than the emission limiting standards specified below. Where work practice standards, including requirements for specific types of pollution control equipment, are provided for in this section, such standards shall be of the same force and effect as emission limiting standards.
* * *
General Visible Emissions Standard. Permit, (a) No person shall cause, let, suffer, or allow to be discharged
the atmosphere any air pollutants from new, or existing sources, the density of which is equal to or greater than that designated as Number 1 on the Ringelmann Chart the opacity of which is equal to or greater than 20 percent.
* * *
Unconfined Emissions of Particulate Matter.
Permit, (a) No person shall cause, let, suffer or allow the emissions of
unconfined particulate matter from any source whatsoever, including, but not limited to, vehicular movement, transportation of materials, construction, alteration, demolition or wrecking, or industrially related activities such as loading, unloading, storing or handling, without taking reasonable precautions to prevent such emission.
The proper standard to apply in this case is found in Rule 17-2.610(2) and (3), Florida Administrative Code. Florida Sun has provided reasonable assurances that it will not exceed the 20 percent opacity on visible emissions and will take reasonable precautions for handling unconfined emissions.
Florida Sun has provided reasonable assurances in the form of Dr. Koogler's certification regarding the expected emissions, warranties by the manufacturers of the devices to be utilized, and actual test performance results from a similar facility. Moreover, the air quality models run by Dr. Koogler and Mr. Rogers corroborated the applicant's position. Petitioners, Tuxedo and the City, have failed to offer contrary evidence of an equivalent quality.
Evidence offered by Tuxedo and the City was based upon erroneous assumptions of fact which resulted in incorrect emission factors. Little weight has been afforded the conclusions related to the spillage associated with truck loading. Since the volume of cement to be loaded through this facility is capped, it is apparent that the machinery will not run 24 hours a day, 365 days a year. Further, it is also apparent that the spillage calculated by Mr. Yocum would result from improper operation of the equipment. That spillage would result in a violation of the permit terms. Finally, the fugitive, unconfined emissions expected from the ship's hold are not quantifiable. No reliability has been given to the "best guess" theory of calculation by any party.
Based on the foregoing, it is RECOMMENDED:
That the Department of Environmental Regulation enter a final order approving the application for permit no. AC 56-157174 with special conditions to include the prohibition of loading via the Cyclonaire Docksider during wind speeds in excess of 35 miles per hour, proper and routine inspection and
maintenance of the equipment to assure it is operated in accordance with the manufacturers' directives, and training for operators of the Cyclonaire to assure compliance with manufacturer's guidelines equipment to assure it is operated in accordance with the manufacturers' directives, and training for operators of the Cyclonaire to assure compliance with manufacturer's guidelines.
DONE and ENTERED this 4th day of October, 1989, in Tallahassee, Leon County, Florida.
JOYOUS D. PARRISH
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32301
(904)488-9675
Filed with the Clerk of
the Division of Administrative
Hearings this 4th day of October, 1989.
APPENDIX TO CASE NOS. 89-1121 AND 89-1271
RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY TUXEDO:
Paragraphs 1 through 19 are accepted.
Paragraph 20 is rejected as contrary to the weight of the evidence; during normal and proper operation of the truck loading spouts, spillage should not occur. Incidents of spillage would suggest a violation of the permit conditions and require immediate correction.
Paragraph 21 is rejected as comment or irrelevant.
It is accepted the loading spouts have a tolerance of approximately one-half inch; the balance of paragraph 22 is rejected as irrelevant, embellished comment, or argument.
The first four sentences of paragraph 23 are accepted; the balance is rejected as comment, recitation of testimony, irrelevant, or argument.
Paragraph 24 is accepted.
With regard to paragraphs 25 and 26, it is accepted that Dr. Koogler visited the Tampa Cyclonaire facility on two occasions, that the winds on the first visit were approximately 2-5 miles per hour, that on the first visit he observed no visible emissions, that on the second visit the winds were 5-10 miles per hour, and that on the second visit he observed visible emissions while a front-end loader scraped the cement off the bottom of the hold to the center for the Cyclonaire to extract it; otherwise, the paragraphs are rejected as comment, argument, embellishment on fact, or irrelevant.
Paragraph 27 is accepted.
Paragraphs 28 and 29 are accepted.
Paragraph 30 is rejected as contrary to the weight of the credible evidence. While the barge will be free-floating and capable of being located along side the hold to be unloaded, the barge will not be in motion during unloading, no assumption to the contrary has been made.
Paragraph 31 is rejected as contrary to the weight of the evidence.
Paragraph 32 is accepted.
Paragraph 33 is rejected as repetitive, comment, unnecessary. See 7 above.
Paragraphs 34 and 35 are accepted.
With regard to paragraph 36, it is accepted that Dr. Koogler and Mr. Yocum used the same emission factors for the four sources identified and listed in the paragraph; otherwise, the paragraph is rejected as comment or irrelevant.
It is accepted that Mr. Yocum utilized the AP-42 to compute the emission factors used for the diesel engines; otherwise the paragraph is rejected as irrelevant.
It is accepted that Dr. Koogler utilized data from the diesel engine manufacturer to compute the emission factors he used; otherwise the paragraph is rejected as irrelevant.
Paragraph 39 is rejected as irrelevant, immaterial, argument, or comment.
Paragraph 40 is rejected as irrelevant, immaterial, argument, or comment.
Paragraph 41 is rejected as contrary to the weight of the evidence. That individuals attempted to quantify the fugitive emissions from the hold does not render such attempts reliable for purposes of determining air quality impact. Such "best guesses" are only estimates which, in this case, do not suggest the project should not be permitted.
Paragraph 42 is rejected as contrary to the weight of the evidence.
Paragraph 43 is rejected as unsupported by the weight of the evidence to the extent that it suggests such occurrences would be under normal and proper operating conditions. Incidents of such operation would be a violation of the permit terms.
With regard to paragraph 44, it is accepted that the spout's ability to collect the cement dust and route it up to the baghouse is not warranted; however, it should be noted that during that function the truck loading will take place within an enclosed silo. With that clarification, the paragraph may be accepted.
Paragraph 45 is rejected as irrelevant; spillage is not anticipated under normal and proper operating conditions. Further, truck loading occurs within an enclosed silo.
Paragraph 46 is rejected as a recitation of testimony/
Paragraph 47 is rejected as repetitive (see p. finding 15).
Paragraph 48 is accepted to the extent that it recites Mr. Yocum's process for computing an emission factor; that factor, however, is rejected as unreliable and contrary to the weight of the evidence.
Paragraph 49 is accepted but is irrelevant to the resolution of the issues of this case.
With regard to paragraph 50, it is accepted that all parties attempted to model sources in connection with this application; otherwise, the paragraph is rejected as argument, comment, or irrelevant.
Paragraph 51 is accepted.
Paragraph 52 is rejected as irrelevant.
Paragraph 53 is rejected as recitation of testimony, comment, or irrelevant.
Paragraph 54 is rejected as irrelevant.
Paragraph 55 is rejected as irrelevant.
Paragraph 56 is rejected as argument, comment, or irrelevant.
Paragraphs 57 and 58 are rejected as contrary to the weight of the evidence.
Footnote 5 of paragraph 59 is accepted; the balance is rejected as irrelevant or contrary to the evidence.
Paragraph 60 is accepted.
Paragraph 61 is rejected as argument, comment or irrelevant.
Paragraph 62 is rejected as irrelevant.
Paragraph 63 is rejected as irrelevant.
Paragraph 64 is rejected as irrelevant.
Paragraph 65 is rejected as irrelevant.
When modeling is required, paragraph 66 is accepted as the proper standard; otherwise, rejected as irrelevant.
Paragraphs 67 through 69 are rejected as irrelevant.
Paragraph 70 is accepted.
Paragraph 71 is accepted.
With the clarification that there would also be receptors with lower concentrations, paragraph 72 is accepted.
Paragraphs 73 through 75 are rejected as irrelevant or contrary to the weight of the evidence.
Paragraph 76 is rejected as argument, comment, or irrelevant.
Paragraph 77 is rejected as irrelevant.
Paragraphs 78 through 80 are rejected as contrary to the weight of the evidence or irrelevant.
Paragraph 81 is accepted.
Paragraphs 82 through 83 are accepted.
Paragraphs 84 through 92 are rejected. The paragraphs accurately recite what Hoffnagle did; however, the facts proffered are rejected as contrary to the weight of the credible evidence, irrelevant, or unsupported by the record.
Paragraphs 93 through 98 are accepted.
Paragraph 99 is rejected as irrelevant.
Paragraphs 100 through 106 are accepted.
With the deletion of the word "strikingly" paragraph 107 is accepted.
Paragraphs 108 through 115 are accepted.
Paragraphs 116 through 118 are rejected as irrelevant.
RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE CITY:
Paragraphs 1 through 6 are accepted.
With regard to paragraph 7, the throughput stipulated to was 279,000 tons per year plus or minus 10 percent; otherwise, paragraph 7 is accepted.
See comment p. 2 above, paragraph 8 accepted.
Paragraphs 9 and 10 are accepted.
With the substitution of the phrase "may be" for the word usually," paragraph 11 is accepted. There is no evidence as to whether Florida Sun will use such a system or not.
With the deletion of the word "only" paragraph 12 is accepted.
Paragraphs 13 through 21 are accepted.
Paragraph 22 is accepted; however, there is no evidence which suggests the plant will, in fact, be operated 24 hours a day, seven days a week, 365 days a year. Further, the throughput limitation would suggest to the contrary.
Paragraphs 23 through 31 are accepted.
Paragraph 32 when clarified to include that emissions are sometimes less than the average, is accepted.
Paragraph 33 is accepted.
Paragraph 34 is rejected to the extent that it suggests Mr. Yocum's emission rate should be accepted as fact of this case. While the paragraph accurately states what Mr. Yocum did, his factor is rejected as unreliable or contrary to the weight of the evidence.
Paragraph 35 is accepted.
Paragraph 36 is rejected as irrelevant.
Paragraph 37 is accepted.
Paragraph 38 is rejected as irrelevant; that parties attempted to model the hold emissions does not render the results reliable, such "best guesses" may be noble but have not formed the basis for a finding of fact.
Paragraph 39 is rejected as irrelevant.
Paragraphs 40 through 43 are rejected as irrelevant, see comment in P.
16 above. Further, such fugitive emissions are unquantifiable under the present methodology.
Paragraph 44 is accepted.
Paragraph 45 is rejected as irrelevant.
Paragraph 46 is accepted.
With regard to paragraph 47, it is accepted Dr. Koogler and Mr. Yocum used the same emission factor for the silo baghouse/
Paragraph 48 is accepted.
With regard to paragraph 49, it is accepted Dr. Koogler and Mr. Yocum used the same emission factor for the truck spout filters.
With regard to paragraph 50, it is accepted that the doors to the silos will be closed during truck loading. In their models, both Dr. Koogler and Mr. Yocum assumed otherwise. Consequently, both may have obtained an inflated result.
Paragraphs 51 and 52 are accepted.
To the extent that paragraph 53 suggests spillage may result from improper operation, such paragraph is rejected as irrelevant. Under normal and proper operating conditions, spillage would not occur. If so, it would be a violation of the permit.
Paragraph 54 is accepted.
With regard to paragraph 55, see comment p. 27 above; consequently, the paragraph is rejected as irrelevant.
Paragraph 56 is rejected as contrary to the weight of the evidence.
Paragraph 57 is rejected as irrelevant and erroneous (math error).
The number of trucks per year is limited to the throughput cap; the number which might be filled during a 24 hour period would depend on the factual circumstances at the time (whether the silos were full, etc.).
Paragraphs 58 through 62 are accepted.
Paragraph 63 is rejected as contrary to the weight of the evidence. While the paragraph correctly states what Mr.
Yocum did, no confidence has been given his analysis.
To the extent that Dr. Koogler attempted to tie the daily truck rate to the annual throughput cap, paragraph 64 is accepted; however, for the reasons set forth in p. 31 it is irrelevant.
Paragraphs 65 through 68 are accepted but are unnecessary.
Paragraph 69 is accepted to the extent that it recites Mr. Yocum's finding but is unnecessary and irrelevant. Mr. Yocum's emission factors are unreliable based upon the weight of the evidence in this case. Consequently, little value has been placed on the model results which were based on his factors.
Paragraph 70 is rejected as argument, irrelevant, or contrary to the weight of the evidence.
The last two sentences of paragraph 71 are accepted. The first sentence is rejected as rejected as speculative, irrelevant, or contrary to the weight of the evidence.
The factual matters addressed in paragraphs 72 through 75 are accepted to the extent addressed in my findings of fact; otherwise, the paragraphs are rejected as comment or recitation of testimony.
Paragraphs 76 and 77 are accepted.
With the deletion of the word "much," paragraph 78 is accepted.
With the deletion of the "s" on the word "meter" (used two times), paragraph 79 is accepted.
Paragraph 80 is accepted.
Paragraph 81 is rejected as argument or comment. There might also be receptor locations with smaller concentrations.
Paragraph 82 is rejected as irrelevant.
Paragraph 83 is rejected as irrelevant.
Paragraph 84 is rejected as irrelevant.
Paragraph 85 is accepted but is irrelevant.
Paragraph 86 through 89 are rejected as irrelevant.
Paragraph 90 is accepted.
Paragraphs 91 through 96 are rejected as irrelevant or contrary to the weight of the evidence.
Paragraphs 97 and 98 are accepted.
Paragraphs 99 and 100 are rejected as irrelevant.
Paragraph 101 is rejected as irrelevant.
Paragraphs 102 through 105 are accepted.
Paragraph 106 is rejected as irrelevant.
RULINGS ON THE PROPOSED FINDINGS OF FACT, SUBMITTED BY FLORIDA SUN:
To the extent addressed in findings of fact paragraphs 4 and 5, paragraph 1 is accepted otherwise rejected as irrelevant.
Paragraphs 2 through 4 are accepted.
Paragraph 5 is accepted to the extent in findings of fact paragraphs 20 and 21; otherwise, rejected as irrelevant or unsupported by the record.
The first sentence of paragraph 6 is accepted. With regard to the balance of the paragraph it is rejected as irrelevant except to the annual throughput being 279,000 tons plus or minus 10 percent.
Paragraphs 7 through 12 are accepted.
Paragraph 13 is rejected as argument or conclusion of law.
Paragraphs 14 through 23 are accepted.
The second sentence of paragraph 24 is rejected as unsupported by the record. The balance of the paragraph is accepted.
Paragraphs 25 and 26 are accepted.
With the exclusion of the last phrase of the paragraph (which rated the opacity of the emissions on Koogler's second visit), paragraph 27 is accepted.
Paragraphs 28 through 34 are accepted.
To the extent that Dr. Koogler and Mr. Yocum used the same emission factors for the Docksider silo, and spouts, paragraph 35 is accepted. Otherwise, the paragraph is rejected as argumentative, comment, or irrelevant.
The basis for determining the unreliability of Mr. Yocum's factors is addressed.
The first sentence of paragraph 36 is accepted. The balance is rejected as irrelevant or argument.
Paragraph 37 is accepted.
To the extent that a facility which emits less than 100 tons per year is defined to a minor facility, paragraph 38 is accepted. Otherwise, is rejected as argument, comment, or irrelevant.
Paragraphs 39 through the first sentence of paragraph 40 are accepted. The balance of paragraph 40 is rejected as irrelevant.
Paragraphs 41 through 43 are accepted.
Paragraph 44 is rejected as irrelevant.
Paragraph 45 is rejected as recitation of testimony.
The first sentence of paragraph 46 is rejected as contrary to the weight of the evidence. The balance of the paragraph is accepted.
Paragraphs 47 and 48 are accepted.
Paragraphs 49 and 50 are accepted but are irrelevant, immaterial or unnecessary.
Paragraph 51 is rejected as argument.
Paragraph 52 is accepted to the extent that it states this facility is a minor facility located in an attainment area; otherwise, rejected as irrelevant, immaterial, or argument.
Paragraph 53 is accepted.
Paragraphs 54 through 56 are rejected as irrelevant.
Paragraph 57 is accepted.
Paragraph 58 is accepted.
Paragraph 59 is rejected as repetitive.
Paragraph 60 is accepted.
Paragraphs 61 and 62 are accepted.
Paragraph 63 is rejected as irrelevant or unsupported by the record.
Paragraph 64 is rejected as irrelevant or unsupported by the record.
Paragraph 65 is accepted.
The first three sentences of paragraph 66 are accepted; the balance is rejected as contrary to the weight of the evidence.
Paragraph 67 is rejected as outside the scope of the record, contrary to the record, or argument.
RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT:
Paragraphs 1 through 21 were accepted.
Paragraph 22 is rejected as argument.
Paragraphs 23 through the first sentence of paragraph 26 are accepted; the balance of paragraph 26 is rejected as argument, comment or irrelevant.
Paragraph 27 is rejected as irrelevant.
Paragraph 28 is rejected as irrelevant.
Paragraphs 29 through 31 are accepted; however, it should be noted that modeling was not required, by rule in this case, and further, that the modeling performed by Mr. Hoffnagle based upon Mr. Yocum's emission factors is not reliable due to the erroneous assumptions built into the factors.
Paragraph 32 is accepted.
Paragraph 33 is rejected as irrelevant or contrary to the weight of the evidence.
Paragraph 34 is rejected as irrelevant.
Paragraph 35 is accepted.
Paragraph 36 is accepted.
Paragraph 37 is rejected as irrelevant, comment, argument, or immaterial.
Paragraphs 38 and 39 are accepted.
Paragraph 40 is accepted but is irrelevant.
Paragraphs 41 through 44 are accepted.
Paragraphs 45 through 57 are rejected as irrelevant, argument, comment, or recitation of Tuxedo's case-- for the reasons previously stated, the modeling efforts submitted by Tuxedo have not been the basis for a finding of fact.
COPIES FURNISHED:
Bram D.E. Canter
Haben & Culpepper, P.A.
306 North Monroe Street Tallahassee, Florida 32301
Sylvia M. Alderman Paul R. Ezatoff
Katz, Kutter, Haigler, Alderman, Eaton, Davis and Marks, P.A.
215 South Monroe Street, Suite 400 Tallahassee, Florida 32301
Paul H. Amundsen
F. Phillip Blank, P.A. 204-B South Monroe Street
Tallahassee, Florida 32301
Carol A. Forthman Deputy General Counsel
Office of General Counsel Department of Environmental Regulation
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Daniel H. Thompson General Counsel
Department of Environmental Regulation
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
| Issue Date | Proceedings |
|---|---|
| Oct. 04, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 04, 1989 | Recommended Order | Applicant entitled to premit with special conditions challenger has standing to raise issue but failed to rebut permit. |
