STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TUXEDO FRUIT COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3309

)

FLORIDA DEPARTMENT OF ) ENVIRONMENTAL REGULATION, and ) FLORIDA SUN CEMENT COMPANY, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

THIS CAUSE came before the undersigned on a Motion to Dismiss or, in the alternative, Motion to Strike filed by Florida Sun Cement Company, Inc. (Florida Sun), and a Motion to Dismiss filed by the Department of Environmental Regulation (Department) The parties have been represented in this matter as follows:

APPEARANCES

For Petitioner Bram D.E. Canter Tuxedo Fruit Haben & Culpepper, P.A.

Company: 306 North Monroe Street Tallahassee, Florida 32301

Paul H. Amundsen

Blank, Hauser & Amundsen 204-B South 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 Carol A. Forthman Department of Deputy General Counsel

Environmental Department of Environmental Regulation Regulation: Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUES

At issue is an agency decision which concluded that proposed alterations to the Florida Sun bulk cement transfer facility to be located in Ft. Pierce, St.

Lucie County, Florida, do not constitute "modifications" or "substantial modifications" as those terms are defined by rule.

PRELIMINARY STATEMENT

On June 6, 1989, Tuxedo Fruit Company, Inc. (Tuxedo) filed a Petition for Formal Proceedings which sought to challenge the decision reached by the Department that alterations to the Florida Sun bulk cement transfer facility did not require a modification of the 1984 permits which had allowed construction.

Tuxedo has alleged that the letter dated May 25, 1989, from Scott Benyon of the Department should be considered agency action since it describes why a permit modification is not required under the applicable rules. That decision, issued in response to an inquiry from Tuxedo's counsel, arguably offered Tuxedo a point of entry to challenge the factual conclusions reached by the Department pursuant to Rule 17-150.155(5), Florida Administrative Code. Both the Department and Florida Sun have filed motions to dismiss the petition challenging the "modifications." The Tuxedo to show cause why this case should not be dismissed since the disputed issues of material fact had been addressed in DOAH case NO.

89-1121. All parties responded to that order and provided additional argument for their positions.

FINDINGS OF FACT

1. Mr. Benyon's letter of May 25, 1989, to counsel for Tuxedo provided, in pertinent part:

   
   

   The alterations are as follows:

   1. The plans delete the construction of the packhouse and rail unloading

      facilities. . . This change completely eliminates particulate discharges previously approved under the 1984 permit for the above mentioned facilities totaling 0.47 tons per year.

   2. The truck loadout facility has been moved from outside the silos, where it was exposed to the ambiant air, to inside the silos where it is fully enclosed. This change has eliminated the bin atop the truck loadout as a source of ambient emissions. Emissions from the bin were projected as 05 tons per year on the 1984 applications. As a result of this change, silo configuration and location has changed slightly to accommodate

      the trucks. . . There will be no emission points from the moved silo.

      * * *

   3. The model of the Fuller baghouse unit

      atop the silos has changed from Fuller Plenum 48-7-3500 to Fuller Jet 196 CI0FM. The outlet emissions of the unit remains the same (i.e. 0.02 gr/acf).

   4. Convey lines from ship to silo will now be 12" and 14" vis a vis a uniform 12", with

      the 12" portions being those located over water on floats or on the barge. This change has no effect on environmental efficiency of the system.

      * * *

      Although it is the Department's determination that the changes in design are not modifications that give rise to a point of entry because they decrease the emissions from the facility and provide improved air pollution controls, if you wish to contest that finding, a petition must be filed (received) in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400 within 14 days of your receipt of this notice.

      
      

2. Upon receipt of the Benyon letter, Tuxedo timely filed the petition challenging the Department's determination which is the subject of this case.

   
   

3. Official recognition has been taken of the record in DOAH case No. 89- 1121. In DOAH case No. 89-1121, Tuxedo challenged the Intent to Issue a permit for a barge-mounted unloading device for the same Florida Sun facility. The petition in DOAH case No. 89-1121 was filed with the Department on February 21, 1989. The permit challenged in DOAH case No. 89-1121 related to the unloading system which Florida Sun intended to utilize for the facility permitted in 1984. On April 12, 1989, the undersigned ruled on a motion to dismiss in DOAH case No. 89-1121, and found:

   
   

   Florida Sun and the Department have correctly concluded that Petitioner may not challenge the permits issued to Florida Sun in 1984.

   The point of entry for a challenge to those permits is long past. In denying the motion to dismiss, the petition has been considered only as a challenge to the permit for the barge-mounted unloader and the potential damages which may result from that installation. It is anticipated that discovery will clarify issues of fact regarding how the present permit conflicts, if at all, to the previously approved permits. (e.s.)

   
   

4. Paragraph 11 of the petition filed in case No. 89- 1121 alleged that Florida Sun's proposed cement terminal "has materially and substantially changed and in fact has been drastically modified to be different from what was permitted in 1984." Tuxedo then itemized examples of the differences between the proposed facility and the one permitted in 1984. The examples itemized included, in pertinent part:

   
   

   1. The proposed location of the 1984 permitted facilities is ambiguous;

      placing the facilities on a 4.78 acre lot, closer to where the facilities are now proposed. However, Florida Sun now states that the lot is less than one acre.

   2. The proposed silos are different from those presented in 1984, and are at different locations in relation to one another and in relation to Tuxedo Fruit Company. The immense silos will be only 15 feet from the property line and right-of-way along Port Avenue

   3. The proposed truck loadout facility is completely different than originally proposed

      ... Moreover, the truck loadout has been relocated to areas beneath each silo.

   4. Air pollution control devices and some control methods have changed.

   5. Air pollutants will be released at different heights and at different locations than originally permitted.

   6. There will be a dramatic increase in airborne contaminants emitted over that which was originally permitted and reviewed by DER in 1984.

   7. The facilities as now proposed will offload, store, and load onto trucks almost twice as much cement as was contemplated by Manatee Cement Co.'s 1984 permit application as reviewed by DER.

   8. The vastly increased product throughput, physical changes, process changes, truck unloading, truck traffic, and operating hours will result in more emissions of pollutants from point sources, more pollutant emissions from unconfined sources of particulate matter, fugitive particulate, increased secondary emissions of particulate matter, and increased nuisance dust all of which will occur near or right next to Tuxedo Fruit.

   
   

   It is apparent from these allegations that Tuxedo considered the changes in the intended operation of the Florida Sun facility to be "modifications" as defined by the rule.

   
   

5. During the hearing of DOAH case No. 89-1121, evidence was offered regarding the planned operation of the Florida Sun facility, the emissions which may be expected to result from its operation, and the impact on Tuxedo and others which may be expected. Specific alterations to the facility as permitted in 1984, with the resulting ramifications, were included in the evidence presented. Whether the alterations constitute "modifications" or "substantial modifications" as those terms are defined was implicit since the emissions resulting from the facility, as altered, were included in the presentation.

   
   

6. Paragraph 13 of the petition filed in DOAH case 89-3309 set forth the differences between the facility to be built by Florida Sun and the one permitted in 1984. Those differences included:

   
   

   1. The parcel size is reduced from over four acres to less than one acre.

   2. The two silos are now located in

      east/west direction along Port Avenue and are

      both within 15 feet of the right-of-way. A provision is made for constructing a third silo. A different baghouse has been specified for the top silo, a Fuller Jet Pulse Dust Collector Model Size 196C10, to be located on the top of the western most silo.

   3. Separate structures no longer exist for the truck loadout operation or the bagging operation.

   4. The silo height has been increased to 178 feet in order to install a truck load-out operation underneath each silo. Thus, there are now two truck load out facilities. Each loadout spout would be controlled by Fuller Jet Pulse Dust Collector, Model 36DS8. Both the loading spout and bag house are of different design than originally proposed.

   5. The detailed plans no longer show a packing facility to be built at the site now as a 1,750 square foot two story office building.

   1. There will be an increase in ship unloading rates from 264 tons per hour in the 1984 permits to 400 tons per hour in the 1988 application. This would result in an increased through-put of 220,160 tons per year. The increase in either the hourly or annual through-put would result in increase in actual omissions (sic) from the side bag house.

   2. The bag house specified in the building plans are different than those specified in the permits granted by the Department in 1984, thus affecting the emission characteristics of the stack discharge.

   3. The increase in annual through-put would require additional truck loading. The 1984 permits would require 933 trucks per month or 11,198 trucks per year. The 1988 through-put requires 1,667 trucks per month for 20,004 trucks per year. This would be an increase of 734 trucks per month or 8,808 trucks per year. This increase would result in increased actual emissions from both' the truck load-out bag houses and the silo' bag house.

   4. Increase in truck traffic would increase the amount of fugitive and nuisance dust. There would be an increase in fugitive and nuisance dust due to the increase in number of trucks being loaded.

   
   

7. From a review of the foregoing, the similarity in the allegations in DOAH case No. 89-1121 and DOAH case No. 89-3309 is obvious. Since the evidence related to the facility has been offered in DOAH case No. 89-1121, additional evidentiary hearing would appear unnecessary.

8. More specific to the questions regarding emissions expected from this facility are the following findings of fact made in DOAH case No. 89-1121:

   
   

   1. 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.

   2. 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.

   3. 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.

   4. The stipulated Florida Sun annual throughput of cement for this facility will be 279,000 tons per year, plus or minus 10 percent.

   5. 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.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

10. The Department has permitting authority pursuant to Chapter 403, Florida Statutes, to require a permit modification for a proposed activity which is modified subsequent to the issuance of a construction permit.

    
    

11. Rule 17-103.155 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.

    * * *

    (5) When there has been no publication of notice of agency action or notice of proposed agency action as prescribed in Rule 17- 103.150, F.A.C., a person who has actual knowledge of the agency action or has knowledge which would lead a reasonable person to conclude that the Department has taken final agency action, has a duty to make further inquiry within 14 days of obtaining such knowledge by contacting the Department to ascertain whether action has occurred.

    The Department shall upon receipt of such an inquiry, if agency action has occurred, promptly provide the person with notice as prescribed by Rule 17-103.150, F.A.C.

    Failure of the person to make inquiry with the Department within 14 days after obtaining such knowledge may estop the person from obtaining an administrative proceeding on the agency action.

    
    

12. Rule 17-2.100, Florida Administrative Code, provides, in pertinent part:

    
    

    Definitions. The following words and phrases when used in this chapter shall, unless content clearly indicates otherwise, have the following meanings:

    * * *

    1. "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.

    2. "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.

    * * *

    (120) "Modification"--Any physical change in, change in the method of operation of, or addition to a stationary source or facility which increases the actual emissions of any air pollutant regulated under this Chapter, including any not previously emitted, from

    any source or facility. A physical change or change in the method of operation shall not include:

    Routine maintenance, repair, or

    replacement of component parts of a source;

    1. An increase in the hours of

       operation or in production rate of a source, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975; or

    2. A change in ownership of a source or facility.

    
    

13. The emissions expected from the Florida Sun facility as permitted in 1984 cannot be challenged at this time. The alterations to the facility would result in the 1984 permits having to be formally modified if such alterations would result in an increase in emissions. It defies logic to suggest that the elimination of a permitted source (such as the packhouse) will result in an increase in emissions. Further, since the emissions expected from truck traffic would be generated by the same volume of traffic as allowed by the throughput expected by the 1984 permits, it is impossible to argue that that source has increased. It is not expected that the unloading speed of the Cyclonaire Docksider will increase emissions since the warranted level (.02 gr/acf) remains constant (that is the rated efficiency of the filtering system). Indeed, the Docksider may result in lower emissions since the time for unloading will be shorter at the higher volume. Regardless, that source, the Cyclonaire, was the subject of the 1988 permit request. Its "permitability" was considered as an addition to the emissions expected to be generated by the 1984 facility. Finally, since the loading of the trucks will occur within an enclosed area under the silos, emissions will not be released into the air as expected by the 1984 permits. Consequently, that source cannot be greater. The review of all emission sources related to the Florida Sun facility (which were identified and included in DOAH case No. 89-1121) would suggest that Tuxedo's remaining allegations do not constitute sources of potential emission (e.g., the size of the lot).

    
    

14. The purpose expected of Rule 17-103.155, Florida Administrative Code, is to allow those affected persons, who otherwise did not have a point of entry to challenge agency action, an opportunity to dispute the factual conclusions reached by the Department. In this case, Tuxedo raised, in substance, the same points in case No. 89-1121. Accordingly, it has had its day. That it failed to

go forward on the allegations set forth in its paragraph 11 (DOAH case No. 89- 1121), does not give rise to a second opportunity here.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Department of Environmental Regulation enter a final order dismissing the petition filed in DOAH case No. 89-3309 as that case has been rendered moot since the disputed issues were addressed in DOAH case No. 89-1121.

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 32399-1550

(904)488-9675

FILED with the Clerk of the Division of Administrative Hearings this 4th day of October, 1989.

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

Blank, Hauser, & Amundsen 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

Dale H. Twachtmann, Secretary 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

Docket for Case No: 89-003309

Orders for Case No: 89-003309