STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

CROSS TIE MOBILE HOME )

ESTATES SUBDIVISION, )

)

Petitioner, )

vs. ) CASE NO. 90-7381

) BIO-MED SERVICES, INC. and DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

)

JOHN C. OLDFORD, )

)

Petitioner, )

and )

)

SARAH BOWMAN, )

) CASE NO. 90-8052

Intervenor, )

vs )

) BIO-MED SERVICES, INC. and DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

)

HENDRY COUNTY BOARD OF )

COUNTY COMMISSIONERS, )

)

Petitioner, )

and )

)

CITY OF LABELLE, )

) CASE NO. 91-0276

Intervenor, )

vs. )

) BIO-MED SERVICES, INC. and DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on January 27-31, 1992, in LaBelle, Florida.

APPEARANCES

For Petitioners

Cross Tie Mobile Home Estates Subdivision,

Hendry County Board of

County Commissioners, Douglas M. Wyckoff, Esq.

and Intervenor City of 13180 N. Cleveland Ave., Suite 213 LaBelle: North Fort Myers, FL 33903

For Petitioner Cross John A. Yaun, Esq.

Tie Mobile Home 848 West Ventura Avenue Estates Subdivision: Clewiston, FL 33440

Owen L. Luckey, Jr., Esq.

110 North Main Street LaBelle, FL 33935

For Petitioner John C. Oldford, pro se

John C. Oldford: P. O. Box 1792 LaBelle, FL 33935

For Petitioner E. Dan Stevens, Esq. Hendry County Board of P. O. Box 1760 County Commissioners: LaBelle, FL 33935

For Intervenor Sarah Bowman, pro se

Sarah Bowman: 4090 Rainbow Circle LaBelle, FL 33935

For Intervenor James D. Sloan, Esq. City of LaBelle: 461 South Main Street

LaBelle, FL 33935

For Respondent Mary F. Smallwood, Esq.

Bio-Med Services, Inc.: Monroe Park Tower, Suite 1010

101 North Monroe Street Tallahassee, FL 32301

For Respondent

Department of W. Douglas Beason, Esq.

Environmental 2600 Blair Stone Road

Regulation: Tallahassee, FL 32399-2400 STATEMENT OF THE ISSUE

Whether the Department of Environmental Regulation should issue a permit to Bio-Med Services, Inc., for the construction of a biohazardous waste incineration facility to be located in LaBelle, Florida.

PRELIMINARY STATEMENT

On September 24, 1990, the Department of Environmental Regulation issued a Notice of Intent to Issue an air construction permit to Bio-Med Services, Inc., to construct a biohazardous waste incineration facility in LaBelle, Florida.

Petitions objecting to the permit were filed by Cross Tie Mobile Home Park Estates Subdivision, the Hendry County Board of County Commissioners, John C.

Oldford, and the City of LaBelle. The City's petition was dismissed as untimely. The City of LaBelle thereafter petitioned to intervene in the proceeding. Said petition was granted, as was Sarah Bowman's Amended Petition to Intervene. The case was transferred to the undersigned on July 23, 1991.

At the hearing, Petitioner Cross Tie Mobile Home Estates Subdivision, Petitioner Hendry County Board of County Commissioners, and Intervenor City of LaBelle jointly presented the testimony of Paul Chrostowsky, Frank Cross, James Lape, Larry Bennett, William H. Blankenship, Gladys S. Bunning, Frank Lee, Sylvia Power, and Ralph Beschel, and had exhibits numbered 2-3, 5, 7-10, 12, and

16 (including the deposition testimony of Dr. Stuart Brooks) admitted into evidence.

Petitioner John C. Oldford presented the testimony of Clarence Marsden, had exhibits numbered 7, 31, 41, 51, 63-64, 66- 67, 87, 106 and 110 admitted into evidence, and adopted the joint case presented by Cross Tie Mobile Home Estates, Hendry County, and City of LaBelle.

Intervenor Sarah Bowman testified on her own behalf, had one exhibit (the deposition testimony of Dr. William J. Rea) admitted into evidence and adopted the joint case presented by Cross Tie Mobile Home Estates, Hendry County, and City of LaBelle.

Respondent Bio-Med Services, Inc., presented the testimony of Gary Marsden, Robert A. Baker, Ben McLean and Christopher M. Teaf, and had exhibits numbered

4-8, 10-11, and 21 admitted into evidence.

Respondent Department of Environmental Regulation presented the testimony of Arthur E. Lyall and had exhibits numbered 1-2 and 4 (including the deposition testimony of Cleveland George Holladay, III, and John Glunn) admitted into evidence.

A transcript of the hearing was filed on February 19, 1992. All parties filed proposed recommended orders. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.

The appendix also includes rulings on objections to the Holladay and Glunn depositions, filed ten days after the hearing pursuant to the stipulation of the parties.

FINDINGS OF FACT

1. On or about August 4, 1990, Bio-Med Services, Inc., (hereinafter "BMS") submitted to the Department of Environmental Regulation (hereinafter "DER"), an application for the construction of a biohazardous waste incineration facility (hereinafter "facility") to be located on approximately 5.5 acres in the City of LaBelle Industrial Park. The application was prepared, signed and sealed by Robert A. Baker, Professional Engineer, and was signed by Gary V. Marsden, president of BMS.

   
   

2. BMS is a wholly owned subsidiary of Bio-Med Management, Inc., (hereinafter BMM), and was formed for the express purpose of making application for construction of the facility at issue in this case. Gary V. Marsden has held the position of president of BMS for approximately one and one-half years. Prior to becoming BMS president, Gary Marsden was a telephone equipment salesman.

3. Gary Marsden's father, Clarence, is president of BMM, and a director of BMS. The BMS business plan indicates that Clarence Marsden was integral to the formation of BMS, was the primary contact between BMS and engineer Baker, and will act as salesman for BMS. Clarence Marsden has been convicted approximately four times on felony counts related to illegal drug activities.

   
   

4. Neither Marsden has any experience related to construction or operation of biohazardous waste incineration facilities.

   
   

5. According to the first application, the incinerator facility will utilize two "Consumat-1200" incinerators and one "U-Burn 12060" incinerator. 1/ The Consumat-1200 units are each capable of incinerating approximately 2,000 pounds of waste hourly. The U-Burn incinerator is capable of incinerating 250 pounds of waste hourly. The total waste incineration capacity of the facility is approximately 50 tons daily.

   
   

6. The waste to be incinerated consists of biological and biohazardous wastes, primarily from hospitals and medical offices. The facility would not be authorized to incinerate hazardous or radioactive wastes.

   
   

7. The application seeks approval to construct an incinerator facility which could operate 24 hours daily, seven days weekly, on a year-round basis. Although the incinerators would be shut down for maintenance and repairs, the applicant hypothesized the constant operation of the facility for the purpose of predicting emissions levels.

   
   

8. The air pollution control (hereinafter "APC") system proposed in the first application includes venturi scrubbers, caustic scrubbers, and a 50 foot tall, 30 inch diameter discharge stack.

   
   

9. On or about April 19, 1991, BMS submitted amendments to the first application. The amendments, (hereinafter the "second application") were prepared and signed by Mr. Baker. The amendments deleted the venturi scrubbers/caustic scrubbers and substituted dry hydrated lime injection scrubbers and baghouses. The amendments also altered the discharge stack dimensions to provide for a stack height of 65 feet and a diameter of 40 inches. The second application also included a bypass stack to provide for APC system malfunctions. Such bypass stacks provide for uncontrolled discharge of emissions into the atmosphere, when such emissions could further damage a malfunctioning APC system.

   
   

10. On or about September 24, 1991, an application was submitted by Eastern Grading, Inc. 2/ for a permit to construct a biohazardous waste incineration facility to be located on a site outside the City of LaBelle, rather than at the LaBelle Industrial Park. According to the third application, the incinerator facility still proposes to utilize two "Consumat- 1200" incinerators and one "U-Burn 12060" incinerator. The third application deleted the bypass stack system intended to handle emergency situations and substituted a proposed crossover mechanism. The Eastern Grading application, (hereinafter the "third application") prepared and signed by Mr. Baker and signed by Gary Marsden as president of Eastern Grading, Inc., is the application at issue in this proceeding.

11. Subsequent to the filing of the third application, BMS has now abandoned plans to locate the facility on the site identified in the third application and instead seeks approval to construct the biohazardous waste incineration facility at the LaBelle Industrial Park site identified in the first application.

    
    

12. The proposed site for the facility is located approximately 4,900 feet from the City of LaBelle Public Water Treatment Facility. The raw water supply comes from shallow wells southwest of the city, and is stored at the treatment plant in open holding areas. After sand-filtering and softening, the water is stored in vented tanks. Based upon the proximity of the water treatment plant to the incineration site, there is high potential for impact on the local water supply by the emissions discharged from the incineration facility.

    
    

13. The site of the proposed facility is located next to the Cross Tie Mobile Home Estates Subdivision, approximately 75 feet from the closest residence, approximately 2,000 feet from a senior citizen service center, and approximately 3,700 feet from a local nursing home. It is likely that some individuals in the nursing home may be regarded as particularly health sensitive, as are a number of residents of Cross Tie Mobile Home Estates Subdivision who suffer from respiratory illnesses and who testified during the proceeding.

    
    

14. The site is approximately 4,600 feet from a local elementary school, approximately 4,400 feet from an intermediate school, approximately 7,400 feet from a middle school, and approximately 8,600 feet from a high school.

    
    

15. Persons with existing respiratory illnesses, elderly persons, and children are regarded as "sensitive receptors" and are substantially more at risk through exposure to airborne chemical pollutants than is the general population. Based upon the proximity of the incineration site to such sensitive receptors, there is high potential for impact on such persons by the emissions discharged from the incineration facility.

    
    

16. There was no site-specific analysis of the proposed facility done by either the applicant during preparation of the application or by the DER during review of the proposal. The applicant has provided no data related to potential heath risks posed by the proposed facility. The DER has not specifically analyzed such health risks.

    
    

17. The third application states that various requirements of the Department will be met. The application provides as follows:

    
    

    "Each incinerator will have the following equipment and operational requirements in order to comply with the requirements of FAC 17-2.600:

    1. Particulate emissions will not to (sic) exceed

       0.020 grains per dry standard cubic foot (gr/dscf) corrected to 7% oxygen (O2).

    2. Hydrochloric acid (HCI) emissions to be reduced by 90% by weight on an hourly average basis.

    3. At least one second residence time at no less than 1800 F. in the secondary combustion chamber.

    4. An air lock system designed to prevent opening the incinerator doors to the room environment and to prevent overcharging.

    5. Carbon monoxide (CO) concentrations in the stack exhaust gases of less than 100 PPMv, dry basis, corrected to 7% 02 on an hourly basis.

    6. The secondary combustion chamber to be preheated to 1800 F. prior to burning and maintained at 1800

       F. or greater during active burning of wastes.

    7. All incinerator operators will be trained by Consumat Systems or another qualified training organization. A training plan for the operators will be submitted to the Florida Department of Environmental Regulation (FDER) prior to the start of operations.

    8. Continuous monitoring and recording of temperatures and oxygen will be maintained at the exit of the secondary combustion chamber. Operating procedures and calibration requirements will be submitted to FDER upon selection of monitoring equipment.

    9. All air pollution control equipment will be functioning properly during operation of the incinerator system.

       
       

       The list of assurances set forth above are a recitation of the requirements of the DER's rules as provided at Chapter 17- 2.600, Florida Administrative Code. The evidence as to specific equipment and operational requirements is insufficient to support the assertion that the facility will meet such standards.

       
       

18. As the applicant's professional engineer, Mr. Baker signed and sealed a statement as follows:

    
    

    This is to certify that the engineering features of this pollution control project have been examined by me and found to be in conformity with modern engineering principles applicable to the treatment and disposal of-pollutants characterized in the permit application. There is reasonable assurance, in my professional judgement, that the pollution control facilities, when properly maintained and operated, will discharge an effluent that complies with all applicable statutes of the State of Florida and the rules and regulations of the department. It is also agreed that the undersigned will furnish, if authorized by the owner, the applicant a set of instructions for the proper maintenance and operation of the pollution control facilities and, if applicable, pollution sources.

    
    

19. Mr. Baker's certification relates only to his opinion that the facility, properly operated and maintained, will be capable of compliance with Chapter 17-2.600, Florida Administrative Code.

    
    

20. The engineering and design of the incineration facility have not been completed. The application states, without qualification, that the two Consumat units will be utilized. The remaining equipment, including the entire air pollution control system, is identified by type of component, but is otherwise

    not specified. Where equipment specifications are provided, such specifications are qualified by language stating that the equipment installed will meet either such specifications "or their technical equivalents".

    
    

21. No actual operating or test data related to any of the equipment or systems proposed for use is included in the application. There is no reliable operating or test data applicable to biohazardous waste incineration facilities available for this particular configuration of components.

    
    

22. The application fails to contain sufficient information related to "engineering features" to permit a credible determination as to whether or not the incineration facility will conform with modern engineering principles. The application fails to support Mr. Baker's assertion that reasonable assurances are provided that when properly maintained and operated, the facility will discharge an effluent that complies with all applicable statutes of the State of Florida and the rules and regulations of the DER.

    
    

23. Although there is no evidence to establish that the applicant intends not to comply with the requirements of the DER's regulations, the application, reflecting the fairly preliminary design of the incineration facility, fails to provide sufficient information to assure that, once final design decisions are made and the equipment acquired, that such equipment will be compatible and configured in a manner which assures compliance with the DER's acceptable emissions regulations.

    
    

24. The applicant has no experience in construction or operation of such incineration facilities. There is no other existing and operating biohazardous waste incineration facility using this configuration of air pollution control equipment.

    
    

25. Mr. Baker contends that the completion of final design plans and specifications is a relatively straightforward process, but nonetheless, it has not been done.

    
    

26. The Consumat incinerators have already been purchased, are used equipment, and were subject to a cursory inspection conducted by a BMS investor prior to purchase and transportation of the used equipment from the original owner in South Carolina. There is no evidence that structural inspections by a qualified metallurgist are contemplated.

    
    

27. The Consumat units are starved-air incinerators. A starved air incinerator consists of two chambers, one primary and one secondary. The inflow of air into the primary chamber is controlled to provide for partial combustion and volatilization of wastes. The maximum temperature of the primary chamber is 1400 degrees F. The gases produced in the primary chamber flow into the secondary chamber where the temperature is maintained through gas burners. The minimum temperature in the secondary chamber is 1800 degrees F. The application provides that the waste gases will remain in the secondary chamber for two seconds. Control of temperature and residence time is the secondary chamber is required to complete the combustion process.

    
    

28. The draft permit conditions require the applicant to install, maintain and operate continuous emissions monitoring equipment to record the secondary combustion chamber's exit temperature and oxygen level. Each incinerator will have an oxygen probe and a thermal couple at the secondary chamber exit. The oxygen probe will provide data needed to ascertain whether the combustion process is adequate and permits the correction of oxygen levels to the 7%

    standard required to measure emissions levels. The thermal couple permits the monitoring of exit temperatures. The draft permit also requires BMS to maintain all testing measurements and calibration data, and other information related to equipment maintenance and adjustments.

    
    

29. The Consumat units must be retrofitted to permit the residence time and temperature indicated in the application. The application does not contain design or engineering information related to retrofitting the secondary chambers.

    
    

30. The U-Burn unit is, according to professional engineer Baker, a "very unique design of a company that's no longer in existence." The U-Burn would be operated only in conjunction with one of the Consumat units. One Consumat and the U-Burn would each have a separate connection into one of the two APC systems. The application provides no design or engineering data related to the connection of the U-Burn unit into the APC system.

    
    

31. The application states that the incinerators will be loaded by means of an enclosed ram feed mechanism which will prevent the incinerator from being opened to the room environment and prohibit overloading of the unit. The enclosed ram feed mechanism has not yet been designed.

    
    

32. Two parallel lines of identically sized pollution control equipment are proposed, each line designed to meet the requirements of one Consumat unit and the U-Burn unit. Each line of equipment will include a preconditioner ("quencher"), a lime injection dry scrubber, and a fabric filter baghouse.

    
    

33. To control emissions, it is necessary to reduce the temperature of gases exiting the secondary chamber, where the minimum temperature is 1800 degrees F. According to the "Process Description" in the application, the gas stream will be preconditioned by the use of water injection to lower the gas stream temperature to 275 degrees F. The water from the preconditioning process will be evaporated as part of the exhaust gases. The preconditioner will be lined with refractory material to withstand the extreme temperature.

    
    

34. The application contains preliminary design specifications for the preconditioner, however the application states that such specifications "or their technical equivalents" will be utilized in the final design, accordingly such specifications are subject to change. There has been no more than preliminary design and engineering work completed for the construction and operation of the preconditioner.

    
    

35. The application states that the dry hydrated lime injection system (dry scrubber) and the fabric filter system have been designed to meet the requirements of Chapter 17-2.600 F.A.C. for particulate matter and HCI emissions control.

    
    

36. Upon leaving the preconditioner, cooled flue gases move into the dry scrubber. According to the "Process Description" in the application, an ultra- fine, dry hydrated lime (calcium hydroxide) will be injected into the preconditioned gas stream via a metered pneumatic system inside a reactor. Although the velocity of the injection must be sufficient to ensure that the dry lime mixes thoroughly with the flue gases, the application contains no information related to expected injection velocity. Once mixed, the lime reacts with hydrochloric acid to produce calcium chloride. The dry scrubber will collect large particulate matter and will have an airlock system for removal of collected solids. The lime injection rate will be at a minimum of 30% greater

    than the stoichiometric requirements for the neutralization of the HCI. This system is intended to remove at least 90% of the HCI in the gas stream.

    
    

37. The application contains preliminary design specifications for the dry scrubber, however the application states that such specifications "or their technical equivalents" will be utilized in the final design, accordingly such specifications are subject to change. No more than preliminary design work for the construction and operation of the dry scrubber has been completed.

    
    

38. Following dry scrubber treatment, the flue gases proceed to a reverse jet fabric filter baghouse. Baghouse technology is a relatively standard methodology of controlling submicron particulate matter (and dioxins/furans condensed on such matter) and heavy metal vapors. According to the "Process Description" in the application, the reverse jet fabric filter will have a maximum air to cloth ratio of 5 to 1. 3/ Under some conditions, a 5 to 1 air to cloth ratio may result in the filter bags becoming clogged with ultrafine particulates. The baghouse is intended to have a removal efficiency of greater than 99% for submicron particulate matter.

    
    

39. The application contains preliminary design specifications for the baghouse, however the application states that such specifications "or their technical equivalents" will be utilized in the final design, accordingly such specifications are subject to change.

    
    

40. A substantial amount of manufacturer literature related to dry scrubbers, baghouses (including the fabric filter bags), and emissions monitoring equipment is included in the application, but is of no probative value given that the applicant has not committed to using any of the equipment for which literature is included.

    
    

41. The application indicates that the incineration facility will include a "crossover" between the two APC systems, to provide for the possibility that one APC system could fail. During such "upset" conditions, there is a substantial potential for visible and fugitive emissions, as well as odors and smoke. The applicant has not yet designed the crossover mechanism and has no information related to the actual planned operation of a crossover mechanism. Standard incinerator design provides for the utilization of bypass stacks which permit the discharge of uncontrolled emissions upon the failure of an APC system.

    
    

42. The crossover theoretically would shift the discharge from one incinerator's failed APC system to the second incinerator's APC system, during which time the operation of the second incinerator unit would be reduced or would cease in order to provide adequate capacity in the operating APC system for the discharge from either or both operating incinerators. The application does not provide information related to the operation, design or location of the crossover mechanism.

    
    

43. There is no information as to how the facility would address the potential situation where, with only one incinerator and APC system operating, an APC system failure would occur. The utilization of the crossover mechanism is unique, there being no similar medical waste incineration facility crossovers in use elsewhere. It is not possible to determine, given the lack of detail in the application, whether the crossover mechanism could be expected to adequately and successfully address potential "upset" situations.

44. The site plan identifies two buildings on the site, one for incineration operations and the second for ash storage. There is no information supplied related to the location or storage of delivered, but unincinerated, biohazardous wastes, although, if the site plan is accurate, such storage apparently occurs within the incineration building.

    
    

45. The application states that solid wastes (ash and lime) will be collected and disposed of off-site in an approved landfill. At hearing, BMS submitted an ash residue management plan, providing the applicant's plan to manage ash from the incinerators and the baghouse discharge. The plan was not signed or sealed by the applicant's professional engineer although he attested to the plan at hearing.

    
    

46. According to the plan, incinerator bottom ash generated by the facility "will be handled in a manner which will prevent danger of contamination or release to the environment". Ash will be removed from "the consumat Model CS 1200 incinerator" 4/ unit by means of an ash ejection ram and collected in a wet sump, designed to eliminate dust and blowing ash. The wet ("quenched") ash is removed from the water-filled sump by a drag chain from which excess water will drain for reuse in the ash sump. The wet ash will exit the building by conveyer and be deposited into a covered, metal, "roll-off"-type, water tight storage container.

    
    

47. When full, the container contents will be sampled and a representative sample provided to a DER-approved laboratory for Toxicity Characteristic Leaching Procedure ("TCLP") analysis. The container will thereafter be sealed, and the ash trucked to an approved disposal facility.

    
    

48. Baghouse waste will include fly ash and reagent waste related to the dry scrubber treatment. Such waste will be removed through a bottom drop hopper discharging into 55 gallon drums. The hopper/drum system will be shielded to prevent waste escape into the atmosphere. Upon filling, the drums will be sampled for the TCLP analysis and then sealed and transported to the approved disposal site.

    
    

49. The BMS Ash Residue Management Plan also states: "Type A class waste will be disposed of by Waste Managements, Inc., at their facility located at 3000 N.W. 48th Street, Pompano Beach, Florida 33073. In the event ash residue would not be classified as Type A waste, it will be disposed of by Chemical Waste Management, Inc., whose offices are also located at 3000 N.W. 48th Street, Pompano Beach, Florida 33073."

    
    

50. The Ash Residue Management Plan is insufficient to comply with the DER's requirement related to such plans. The plan fails to indicate the capacity of the disposal site or whether the disposal site is intended to receive ash residue from the solid waste combustor for the life of the facility. The plan is ambiguous as to whether the identified sites are actual disposal sites or are offices of the company which will allegedly handle disposition of the ash.

    
    

51. The plan fails to address the beneficial uses, if any, of ash residue, although the plan does state that ash recycling is not anticipated.

    
    

52. The plan fails to identify contractual requirements, or notification and inspection procedures, which assure that hazardous wastes are not received or burned in the facility.

53. Although the plan states that the incinerator ash will be placed into a wet sump to eliminate dust and blowing ash, and that wet sump water will be recycled into the sump, the plan fails to address the cumulative effects such water reuse and the potential impact of exposure to humans or the environment.

    
    

54. As to the baghouse hopper/drum system (shielded to prevent waste escape into the atmosphere) the plan fails to consider other pathways of human or environmental exposure such as through direct contact or ingestion, and the potential for soil and ground water contamination.

    
    

55. The application states that any liquids generated from wash-downs and cleaning operations will be collected in a holding tank and thereafter incinerated. The application contains no design or engineering data which identifies the means for incinerating such liquids or establishes that such liquid incineration will be accomplished in a manner which will not adversely affect incinerator or APC operation.

    
    

56. Petitioners assert that the facility is experimental in nature because the design is rudimentary and the crossover mechanism is not used in medical waste incinerators of this type. Respondents assert that the facility is not experimental, and that the various types of equipment proposed are in use at other incineration facilities elsewhere. The evidence fails to establish that the entire facility should be properly identified as "experimental", however, there is no credible test data available for a facility utilizing this proposed combination of equipment in the configuration identified in the application.

    
    

57. It is likely to expect a biohazardous waste incinerator to emit multiple air pollutants. Such pollutants include particulate matter and hydrogen chloride (HCI), as well as toxic pollutants such as arsenic, cadmium, chromium, lead, mercury, manganese, nickel, zinc, and dioxin equivalents. As to toxic pollutants, the DER reviewed the anticipated chemical emissions of arsenic, mercury, manganese, cadmium, chromium VI, nickel, zinc, lead, tetrachlorodibenzo dioxin (TCDD), and hydrochloric acid.

    
    

58. The draft permit in this case requires the proposed facility to conduct emissions tests for particulate matter, hydrogen chloride, oxygen and carbon monoxide within 60 days of initially operating the facility, and to conduct annual emissions tests thereafter. At hearing, the applicant agreed to monitor emissions for the toxic pollutants arsenic, cadmium, chromium, lead, mercury, manganese, nickel, zinc, and dioxin equivalents, and further agreed to continuously monitor carbon monoxide and opacity.

    
    

59. The DER has established a policy related to the control of toxic emissions from an air pollution source. The "Air Toxics Policy" is an effort by the DER to protect public health from the potential dangers posed by inhalation of excessive levels of toxic air emissions.

    
    

60. The DER has a working list of 756 chemicals for which acceptable emission levels have been established. In identifying chemicals for inclusion on the working list, the DER utilized sources which referenced chemicals of concern and also reviewed data related to the air toxics programs of other regulatory agencies. The DER air toxics working list suggests acceptable ambient air concentration levels for the identified toxic chemicals.

61. The acceptable levels are identified as "no threat levels" or "NTL's" and are set forth at average eight hour, 24 hour, and annual concentration levels. The DER asserts that the NTL's are conservative figures and that adverse public health consequences are unlikely to occur when ambient concentration emission levels do not exceed the NTL's.

    
    

62. In establishing the average eight and 24 hour concentration NTL's, the DER utilized the more conservative of figures available from either the federal Occupational Safety and Health Administration (OSHA) or the American Conference of Governmental Industrial Hygienists (ACGIH). The OSHA and ACGIH figures are applicable to exposure of a healthy employee to a single chemical for an eight hour working period.

    
    

63. The annual NTL's are directly based on EPA health data values listed in the EPA's Integrated Risk Information System. Of the three NTL's, the EPA- based annual levels are considered to be more accurate. In situations where the eight and/or 24 hour averages are exceeded, additional consideration is given to whether the annual NTL is also exceeded.

    
    

64. The DER has not reviewed the data upon which the EPA, OSHA and ACGIH levels rely, and has not independently reviewed the statistical methodology utilized by the EPA, OSHA and ACGIH in calculating the cited agencies acceptable emissions levels. However, the weight of the testimony in support of the methodology, absent specific evidence to the contrary, establishes that such reliance is reasonable.

    
    

65. In attempting to establish eight and 24 hour NTL's for use in the DER's Air Toxics Policy, the DER considered the likelihood that air emissions would contain multiple toxic chemicals and would impact a less healthy population (including particularly susceptible individuals) for an extended period of time. The DER reduced the eight hour OSHA/ACGIH concentration by two orders of magnitude, resulting in DER eight hour NTL's which are 100 times less than the OSHA/ACGIH levels. The DER further reduced the 24 hour OSHA/ACGIH levels by a factor of 4.2 (based upon dividing the total hours in a seven day period by a 40 hour work week) resulting in DER average 24 hour NTL's which are

    420 times less than the OSHA/ACGIH acceptable occupational levels.

    
    

66. Petitioners assert that the uniform safety factors calculated by the DER which resulted in the reduction of OSHA/ACGIH figures to the DER NTL's are arbitrary, and that some NTL's were likely too high and others were too low. However, Petitioners did not identify any of the 756 chemical NTL's on the DER working list as inadequate or excessive.

    
    

67. The greater weight of the evidence establishes that the DER's utilization of a two magnitude safety factor is appropriate. Based upon the lack of adverse health impacts on the working population subject to OSHA/ACGIH occupational levels, the dearth of toxicological data available for most substances of concern, and absent evidence to the contrary, the inclusion of safety factors which result in an average eight hour NTL 100 times less than the OSHA/ACGIH levels and an average 24 hour NTL 420 times less than the OSHA/ACGIH levels is a reasonable attempt to prohibit excessive emissions and protect the general public's health from dangers posed through inhalation of such toxic air emissions.

68. The DER annual average air toxic concentration levels are directly derived from EPA data and are distinguished on the basis of whether or not a substance is a carcinogen. For carcinogens, the NTL is based upon a unit risk factor which equates to a one in one million increased risk of developing a cancer related to said chemical. For non-carcinogens, the DER NTL is based upon an "inhalation reference concentration" which relies directly upon inhalation toxicity data, where such data is available. Where "inhalation reference concentration" data is unavailable, the DER NTL is based upon an extrapolation of oral toxicity data. The evidence fails to establish that the reliance of the DER on such EPA data is inappropriate or unreasonable.

    
    

69. The DER utilizes the air toxics working list to compare anticipated emissions from a proposed air pollution source to the NTL's. Not all 756 chemical comparisons are made in every case. The comparison is for the purpose of determining whether additional inquiry should be made related to specific chemical emissions.

    
    

70. The instant application includes predicted emission rates supplied by engineer Baker. The Baker estimates are based upon actual uncontrolled incinerator emission test results, to which a predicted "control efficiency" was applied for each type of control technology proposed in the application. The control efficiency predictions were based upon a noncommercial Canadian pilot project utilizing a dry-scrubber/baghouse combination, on non peer-reviewed literature and, as to mercury emissions, on a telephone conversation with a representative of the municipal waste industry.

    
    

71. At the hearing, Petitioners utilized a data base compiled by Dr. Paul Chrostowsky, who supplied emissions estimates based upon his data base. The data base consists of actual test results from incinerators (including 12 medical waste incinerators) and from peer-reviewed literature. None of the facilities in the Chrostowsky data base reflect data from facilities utilizing a dry scrubber/baghouse system. Half of the incinerators in his data base utilized no controls, one utilized a baghouse, and the remaining five utilized wet scrubbers. Dr. Chrostowsky took the average emissions levels and added one standard deviation to account for uncertainty related to the lack of an operating record for the proposed facility.

    
    

72. The emissions estimates produced by Dr. Chrostowsky are deemed to be more reliable and are credited. Dr. Chrostowsky opined that the applicant's estimates did not reflect likely operating conditions and were unreasonably low. According to his estimates, the application underestimated emission rates for hydrogen chloride, arsenic, cadmium, lead, manganese, mercury, and nickel. He also opined that the application's predicted mercury removal rate of 94% was excessive and that a removal rate 70% would be more likely.

    
    

73. However, even given Dr. Chrostowsky's emissions levels, only the 24 hour NTL for hydrogen chloride is exceeded. Although Dr. Chrostowsky's calculated an exceedance of the annual average HCI NTL, the calculation was based on error. Other emissions remain at levels below the DER's level of acceptable emissions established by rule. Utilization of a 70% mercury removal rate still results in mercury emissions within the DER's range of acceptable emissions.

    
    

74. As to Dr. Chrostowsky's estimated hydrogen chloride emission in excess of the DER's 24 hour NTL, such calculation appears to have been based on the application's estimated HCI control efficiency of 90%. The application utilized a conservative figure based upon the DER minimum requirement of 90% HCI control,

    when the actual HCI control efficiency could likely be greater than 90%. However, given the preliminary state of design and the lack of test results and data reflective of this particular equipment configuration, the evidence is insufficient to determine with reasonable assurance that such requirement will be met, or that the 24 hour HCI NTL will not be exceeded.

    
    

75. It should be noted that the DER's NTL's address only potential human impact through inhalation, on the assumption that the most likely human ingestion for air emissions is through inhalation. The policy does not address human consumption of toxics though contaminated water supplies or via other pathways, Given the proximity of the proposed facility to local water supplies, the potential for other ingestion impacts exists, and should be examined.

    
    

76. The application also included the results from engineer Baker's air dispersion modeling, performed to predict local concentrations of certain pollutants in the ambient air. The results indicate that maximum one, eight, and

    24 hour concentrations will occur approximately 100 meters from the stack, and that maximum annual average maximum concentrations will occur approximately 500 meters from the stack.

    
    

77. Mr. Baker first utilized a standard screening model developed by the federal Environmental Protection Agency specifically for this purpose. Mr. Baker is not an expert in computer modeling and utilizes standard EPA programs to perform such functions.

    
    

78. If an initial comparison demonstrates that expected emissions from a proposed pollution source exceed an NTL, additional review of anticipated emissions is conducted to determine whether the initial review data is inaccurate or, if not, whether additional APC technology is required to control the excess emission. The use of an initial screening model is standard scientific practice and is reasonable.

    
    

79. Mr. Baker uses the screen model to determine whether there are exceedances of any relevant emissions standards. Where no exceedances occur, it is generally unnecessary to perform further modeling.

    
    

80. The Baker screen model relied upon hypothetical meteorological data unrelated to the meteorological variables at the proposed incineration facility site. The screen model results are regarded as an estimation of maximum one hour air pollutant concentrations at or beyond a property line. A set of conversion factors is applied to the maximum one hour air pollutant concentration with the results predicting eight hour, 24 hour, and annual concentrations.

    
    

81. According to Mr. Baker's screen model results, the proposed facility's emissions did not exceed the DER's air quality standards or the NTL's in the working list.

    
    

82. Mr. Baker subsequently utilized a more advanced EPA model, identified as the "Industrial Source Complex" (ISC) model, which projects both short-term and long-term concentrations. Mr. Baker opined that the ISC model provides a more accurate estimation of pollutant dispersion into the atmosphere. In running the model, he relied upon National Weather Service (NWS) surface meteorological data from Fort Myers and on NWS upper air meteorological data from Tampa, (as the DER had directed) and upon default EPA options. The NWS

    data included five years of weather information. Based on the ISC model, Mr. Baker anticipates that the emissions will not exceed the DER's air quality standards or NTL's.

    
    

83. Meteorological conditions in LaBelle may differ significantly from the NWS Tampa upper air meteorological data. Tampa is much closer to the Gulf of Mexico than LaBelle. Lake Okeechobee, located nearby to the east of LaBelle, may impact LaBelle's local conditions. There is no reliable LaBelle meteorological data easily available, and the DER did not require collection of such site-specific data.

    
    

84. Although an expert witness opined that, based upon Orlando's inland location, available Orlando NWS upper air data would be more representative of LaBelle conditions than the Tampa data used, the witness utilized the Tampa data to run his models. There is no actual evidence that utilization of Orlando data would have resulted in different pollutant dispersion modeling results than those included in the application.

    
    

85. On behalf of the Petitioners, the ISC model was run utilizing the same weather data used by Mr. Baker and the emissions projections calculated by Dr. Chrostowsky, resulting in substantial agreement between the modeling results.

    
    

86. Petitioners suggest that the applicant should have been required to provide data related to the dispersion of air pollutants during certain specific meteorological events, such as temperature inversions. Such inversions occur when warm upper air traps the cooler air below, and holds air pollutants close to the Earth's surface. Although the evidence related to such inversions is based upon a one-year frequency of fog incidence for Ft. Myers, Tampa and Orlando (rather than an analysis of temperature and air pressure data) temperature inversions may occur in LaBelle as often as 20 or more times annually. Utilization of a five year set of NWS data would include occurrences of temperature inversions.

    
    

87. Fumigation concentrations occur when, during the dissipation of temperature inversions, the cooler and warmer air levels mix, and pollutants concentrations at the top of the cooler air level may be pulled down resulting in short, but intense, concentrations of pollutants at ground level. It is likely that fumigation events occur in the LaBelle area.

    
    

88. Stagnation events are similar to fumigation events, although apparently affecting a larger geographic area than does a fumigation event. It is likely than stagnation events occur in the LaBelle area, however, there is no model which simulates a stagnation event.

    
    

89. The screen model utilized in this case by the DER does simulate a fumigation event. According to the screen model predictions, maximum pollutant concentrations would occur under neutral stability conditions, not during fumigation events.

    
    

90. The DER utilized the ISC model to predict small particle deposition ("fallout"). Fallout is specific to the meteorology of a site. The ISC model does not accurately predict fallout and such modeling is not required by the DER's regulations. However, such information, if available, could provide useful particle deposition data, given the proximity of the site to the City of LaBelle public water supply.

91. Petitioners assert that the DER should have required a full risk assessment to determine the facility's potential for adversely affecting the local environment and residents in the area. A limited assessment, solely related to dioxin risks and acid gas risks, was performed on behalf of the Petitioners. The evidence is insufficient to establish whether or not the proposed incineration facility will result in an adverse health risk to the general population residing in the area, but given the location of the proposed facility and proximity to the local water supply and to sensitive receptors, the completion of a full risk analysis is warranted.

    
    

92. As to dioxin levels, the limited risk assessment estimated that the BMS facility would produce a cancer risk ten to 100 times greater than the risk associated with Lee County's proposed nonbiohazardous waste incineration facility. However, the predicted dioxin emission levels are within the range established by the EPA as acceptable. The Petitioner's expert further opined that such EPA figures overestimate the cancer potency of dioxin.

    
    

93. An acid gas analysis was performed utilizing the "hazard quotient/hazard index" method of analysis. The hazard quotient/hazard index analysis provides an acceptable approach to determining air emission health risks. Acid gases include hydrogen chloride, sulfur dioxide, nitrogen oxides, hydrogen fluoride, and sulfuric acid mists.

    
    

94. Certain meteorological conditions, including temperature inversions or fog, interact with acid gases to form acid mists and other agents injurious to human lung function. The acid gases/acid mists risk assessment indicates that the incineration facility increases the potential for hazardous health impacts on the local population.

    
    

    CONCLUSIONS OF LAW

    
    

95. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes. Standing of the parties challenging the application is not at issue in this proceeding.

    
    

96. This issue in this case is whether, pursuant to relevant rules and statutes governing such permits, the Department of Environmental Regulation should issue a permit to Bio-Med Services, Inc. for the construction of a biohazardous waste incineration facility to be located in LaBelle, Florida. 5/ As the applicant for the permit, Bio-Med Services, Inc., has the burden of proof in demonstrating entitlement to the permit sought. Department of Transportation

    v. J.W.C. Company, Inc. 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

97. In this case, the burden has not been met. The applicant has failed to affirmatively provide reasonable assurances, based upon plans, test results, installation of pollution control equipment, or other information, that the proposed incineration facility will not discharge, emit, or cause pollution in contravention of the DER's standards or rules. The applicant has failed to satisfy the requirements related to submission of a plan for ash residue management. Further, the DER has failed to consider factors, other than ambient pollution standards, which indicate that a danger to public health may be posed by the proposed facility.

98. The Florida Legislature has found that certain solid waste, due to its quantity or concentration, or physical, chemical, biological or infectious characteristics, is hazardous to human health, safety, and welfare and to the environment. The Legislature has further found that in order to protect the public and the environment, exceptional attention to the transportation, disposal, storage, and treatment of such waste is necessary. Section 403.702(1)(f), Florida Statutes.

    
    

99. Biohazardous waste means any solid waste or liquid waste which may present a threat of infection to humans. The term includes, but is not limited to, nonliquid human tissue and body parts; laboratory and veterinary waste which contain human- disease-causing agents; used disposable sharps; human blood, and human blood products and body fluids; and other materials which represent a significant risk of infection to persons outside the generating facility. Section 403.703(39), Florida Statutes. Biological waste means solid waste that causes or has the capability of causing disease or infection and includes, but is not limited to, biohazardous waste, diseased or dead animals, and other wastes capable of transmitting pathogens to humans or animals. Section 403.703(41), Florida Statutes.

    
    

100. No stationary installation which will reasonably be expected to be a source of air or water pollution shall be constructed without an appropriate permit. Section 403.087(1), Florida Statutes. The department shall issue permit to construct an installation which may reasonably be expected to be a source of pollution only when it determines that the installation is provided or equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with the standards and rule promulgated by the DER. Section 403.087(4), Florida Statutes. In this case, the evidence fails to establish that the installation will be provided or equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with the standards and rule promulgated by the DER.

     
     

101. The Legislature has further found that the public health, welfare and safety may be affected by disease-carrying vectors. In reviewing applications for permits, the DER shall consider the total well-being of the public and shall not consider solely the ambient pollution standards when exercising its powers, if there may be danger of a public health hazard. Section 403.021(8), Florida Statutes. In this case, the weight of the evidence establishes that, based upon the location of the facility, there may be danger of a public health hazard. Nonetheless, the DER considered only whether ambient pollution standards would be met.

     
     

102. A permit may be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurances based upon 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. Chapter 17- 4.070, Florida Administrative Code. (emphasis supplied). Even if reasonable assurances are supplied, the agency is not mandated to issue a permit. Such result necessarily follows the Legislature's directive that, in cases where there may be a danger of a public health hazard, the DER's decision must include consideration of factors other than solely whether ambient air standards are met.

103. Pursuant to authority granted at Section 403.704(31), Florida Statutes, the DER has adopted rules to address the regulation of specific emissions from biological waste incineration facilities. Such rules, set forth at Chapter 17- 2.600, Florida Administrative Code, in relevant part provide as follows:

     
     

     17-2.600 Specific Emission Limiting and Performance 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. New source or facility emission limiting or performance standards shall be the federal "new source performance standards" adopted by reference in Rule 17-2.660, F.A.C., unless a different and more stringent standard is required by this Section.

     (d) Biological Waste Incineration Facilities. The following requirements apply to all new,

     modified, and existing biological waste incineration facilities. Any new facility or modification for which a complete application for a permit to construct is reviewed after the effective date of this rule shall comply with these requirements before operation may commence. All other facilities shall comply with these requirements by July 1, 1992.

     1. Facilities with a capacity greater than 2000 pounds per hour.

        1. Particulate matter emissions shall not exceed 0.020 grains per dry standard cubic foot of flue gas, corrected to 7% 02.

        2. Hydrochloric acid (HCI) emissions shall not exceed 50 parts per million by volume, dry basis, corrected to 7% 02 on a three hour average basis; or shall be reduced by 90% by weight on an hourly average basis.

     2. All facilities unless otherwise noted are subject to the following design, operating, monitoring and operator training requirements.

     1. The incinerator(s) shall be designed to provide for a residence time of at least one second in the secondary (or last) combustion chamber only, at no less than 1800 F. for the combustion gases. Primary chamber and stack shall not be utilized in calculating this residence time.

     2. Mechanically fed facilities shall incorporate an air lock system to prevent the opening of the incinerator to the room environment. The volume of the loading system shall be designed to prevent overcharging thereby assuring complete combustion of the waste.

     3. Carbon monoxide (CO) emissions shall not exceed 100 parts per million by volume, dry basis, corrected to 7% 02 on an hourly average basis.

     4. Incineration or ignition of waste shall not begin until the secondary (or last) combustion chamber temperature requirement is attained. All air pollution control and continuous emission monitoring equipment shall be operational and functioning properly prior to the incineration of waste and until all wastes are incinerated. During shutdowns, the secondary (or last) combustion chamber temperature requirement shall be maintained using auxiliary burners until the wastes are completely combusted.

     5. Radioactive waste may not be burned in an incinerator subject to this rule unless the incinerator has been issued a permit or the waste is of such quantity to be exempt in accordance with Department of Heath and Rehabilitative Services (HRS) Rule 10D-91 or 10D-104.003, F.A.C.

     6. Hazardous waste may not be burned in an incinerator subject to this rule unless the incinerator has been issued a permit or the waste is of such quantity to be exempt in accordance with Department Rule 17-30 F.A.C.

     7. All biological waste incinerator operators shall be trained by the equipment manufacturer's representatives or another qualified organization as to proper operating practices and procedures. The content of the training program shall be submitted to the Department for approval. The applicant shall submit a copy of the certificate verifying the satisfactory completion of a Department approved training program prior to issuance or renewal of the operating permit. The owner shall not allow the incinerator to be operated unless it is operated by an operator who has satisfactorily completed the required training program.

     
     

104. In this case, the application contains insufficient plans, test results, or other data related to design and construction of the secondary incineration chambers, the U-Burn connection into the air pollution control system, the charging mechanism for the incinerator units, the preconditioner, the lime injection dry scrubber system, the baghouse operation, or the crossover mechanism, to establish that such pollution control facilities, when properly maintained and operated, will be capable of discharging an effluent in compliance with all applicable statutes of the State of Florida and the rules and regulations of the DER. The application fails to contain any detail whatsoever related to the design, construction, or proposed operation of the crossover system, which is not commonly used in biohazardous waste incineration facilities. Further, the application lacks sufficient engineering detail to permit a determination of whether the engineering features of this pollution control project are in conformity with modern engineering principles applicable to the treatment and disposal of pollutants characterized in the permit application. The applicant has no experience in constructing or operating a biohazardous waste incineration facility.

105. The sole equipment specified in the application are the two Consumat and one U-Burn incinerators. The Consumat incineration units are used and under no manufacturer warranty. They have not been inspected by a person qualified to determine whether any structural problems exist. Testimony as to the condition of the incinerator units, elicited from a person with no specific expertise in determining the structural condition of the units, was unpersuasive.

     
     

106. The remainder of the facility's equipment, including all equipment related to the control of air emissions, is identified simply by type of component. Manufacturer sales materials included in the application have no weight given that the application does not commit to using any of the specific equipment for which such literature is included. Given that no commitments as to specific manufacturers are made, there is no warranted operation.

     
     

107. Where specifications for component operation are provided, such specifications are qualified by the applicant's reservation to substitute different specifications which are determined by the applicant to be the "technical equivalent" to those set forth in the application. Clearly, in the event the facility is unable to meet the DER's regulations after construction, the DER could deny an operating permit. However, such operating permit denial would not occur until after the facility had become operational for testing purposes, at which point pollutants in excess of those deemed safe could likely have been emitted for a significant period of time. It is unreasonable to rely on denial of an operating permit to remedy the results of an inappropriately- issued construction permit.

     
     

108. Applications for a permit to construct solid waste combustors are required to include an ash residue management plan. Chapter 17-702.400(1), Florida Administrative Code. The proposed facility is a solid waste combustor. Pursuant to rule, the requirements of such plan are as follows:

     
     

     1. The plan shall describe the methods, equipment, and structures necessary to control the dispersion of ash residue during handling, processing, storage, loading, transportation, unloading and disposal, and shall consider pathways of human or environmental exposure such as through inhalation, direct contact, ingestion, and the potential for soil, air, ground water and surface water contamination.

     2. The plan shall identify disposal sites which are intended to receive ash residue from the solid waste combustor for the life of the facility, beginning with the date the plan is submitted to the Department for approval.

     3. The plan shall include an estimate of the quantities of bottom and fly ash to be generated by the facility on an annual and a daily basis. The estimate shall identify and quantify those components of ash residue that can be segregated for recycling before disposal, and shall address the beneficial use of ash residue.

     4. The plan shall include a Quality Assurance plan which complies with the requirements of Chapter 17- 160, F.A.C., before the start of any sampling, analysis or characterization required by this rule.

     5. The plan shall include contractual

     requirements, notification and inspection procedures to assure that the hazardous wastes are not received or burned in the facility.

     
     

109. The applicant's ash residue management plan, which was not filed as part of the application at issue in this proceeding, but was filed as evidence during the hearing, fails to comply with the requirements of the rule. The plan fails to address ash residue from the U-Burn incinerator. The plan fails to indicate the capacity of the disposal site or whether the disposal site is intended to receive ash residue from the solid waste combustor for the life of the facility. The plan is ambiguous as to whether the identified sites are actual disposal sites or are offices of the company which will allegedly handle disposition of the ash. The plan fails to address the beneficial uses, if any, of ash residue, although the plan does state that ash recycling is not anticipated. The plan fails to identify contractual requirements, or notification and inspection procedures, which assure that hazardous wastes are not received or burned in the facility.

     
     

110. Although the plan states that the incinerator ash will be placed into a wet sump to eliminate dust and blowing ash, and that wet sump water will be recycled into the sump, the plan fails to address the cumulative effects such water reuse and the potential impact of exposure to humans or the environment. As to the baghouse hopper/drum system (shielded to prevent waste escape into the atmosphere) the plan fails to consider other pathways of human or environmental exposure such as through direct contact or ingestion, and the potential for soil and ground water contamination. 6/

     
     

111. However, even had reasonable assurances been provided that the facility would comply with ambient air quality standards had been provided and had the ash residue management plan requirement been satisfied, the evidence remains insufficient to establish that the permit should be issued. Section 403.021(8), Florida Statutes, clearly directs the DER to consider the total well-being of the public and not to solely consider ambient pollution standards if there may be danger of a public health hazard. In this case, there has been no consideration by the DER as to whether, outside of inhalation impacts posed by the projected ambient air pollutant concentrations, there may be additional

     health hazards posed by the location of the facility which should be considered.

     
     

112. The DER apparently did not consider the site of the proposed facility to warrant review. The applicant provided no data related to potential local human heath risks posed by the location of the proposed facility. The DER has not specifically analyzed such health risks. Arguably, the dispersion modeling could be regarded as addressing potential public health risks, however such modeling is not based on site-specific data and is inadequate to determine with any reasonable certainty, whether the proposed location of the facility could generate or exacerbate actual health risks. There was no actual site- specific analysis of the facility done by either the applicant during preparation of the application or by the DER during review of the project.

114 It is not possible for the DER to adequately address the potential for adverse health risks or to consider whether or not there is a danger of public health hazard without requiring detailed analysis of the site for the proposed facility. There is no evidence that any DER official, prior to issuance of the Notice of Intent to Issue the construction permit, even personally examined the site or the surrounding area.

1. The evidence establishes that, based upon the proximity of the city's water treatment plant and open or vented water storage facilities, it is reasonable to anticipate some potential for impact, directly or cumulatively, on the local water supply by pollutants discharged from the incinerator. Further, given the location of the proposed facility and the proximity to local sensitive receptors, including persons with existing respiratory illnesses, elderly persons, and children, all of whom clearly inhabit the area, it is reasonable to anticipate some potential for impact on such persons by the pollutants. In this case, contrary to statutory requirement, there was no consideration of such factors by the applicant or the agency beyond the determination that ambient air standards would be met.

   
   

2. Petitioners challenged the DER Air Toxics Policy as arbitrary and unreasonable. However, the DER established that the Air Toxics Policy and working list are a reasonable attempt to address public health concerns posed by inhalation of excessive levels of toxic air emissions. While there is clearly disagreement among qualified experts as to the calculation and application of the DER's safety factors, the evidence contrary to the DER's explication, analysis, and application of the policy was not persuasive and is insufficient to establish that the policy is unreasonable.

   
   

3. Petitioner Hendry County Board of County Commissioners asserts that the facility must also comply with regulations related to solid waste management facilities. By definition, a biohazardous waste incineration facility is a solid waste management facility. Pursuant to the provisions of Section 403.707(1), Florida Statutes, no solid waste management facility may be operated, maintained, constructed, expanded, modified, or closed without an appropriate and currently valid permit issued by the DER. The DER correctly asserts that the more recent adoption of rules setting forth criteria specifically related to biohazardous waste incinerators have superceded the application of previous rules generally related to solid waste facilities and that the permit sought in this proceeding is the appropriate permit required by Section 403.707(1), Florida Statutes. Hamilton County Board of County Commissioners v. DER, So.2d (Fla. 1st DCA 1991), 16 FLW D2657.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the application of Bio-Med Services, Inc., for a permit to construct a biohazardous waste incineration facility at the LaBelle Industrial Park, in LaBelle, Florida.

DONE and RECOMMENDED this 31st day of March, 1992, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1992.

ENDNOTES

1/ The "Process Description" portion of the application states that the incinerators will include "one U-Burn 12060 (250 lb/hr or equivalent".

2/ Also filed with the third application was an application for transfer of permit from BMS to Eastern Grading, Inc. For the purposes of this Recommended Order, the application is regarded as having been filed by BMS.

3/ In the section of the application entitled "TYPICAL BAGHOUSE OPERATION", the baghouse system is described as providing "a minimum of a 5:1 air to cloth ratio." For the purposes of this Recommended Order, the ratio is as identified in the Findings of Fact.

4/ The Ash Residue Management Plan addresses ash from one Consumat incinerator. For the purposes of this Recommended Order, the plan is regarded as applicable to ash residues from both Consumat units. The plan does not refer to ash residue from the separate U-Burn incinerator.

5/ This Recommended Order does not consider the impact, if any, of current legislative activity imposing a permitting/construction moratorium on new biohazardous waste incinerators on this proposal.

6/ It should be noted that the DER's requirements related to ash residue management (which mandate consideration of inhalation, direct contact, and ingestion exposure pathways, and further require consideration of the potential for soil, air, ground water, and surface water contamination) result in a more comprehensive review of an application than was performed in this case.

APPENDIX

CASE NO. 90-7381

The following constitute rulings on proposed findings of facts submitted by the parties.

Petitioners Cross Tie Mobile Home Estates Subdivision:

Petitioners Cross Tie Mobile Home Estates Subdivision proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

1. Sixth sentence, rejected, contrary to greater weight of the evidence which establishes that Bio-Med Services would operate the incineration facility.

   
   

2. Third and fourth sentences, rejected, unnecessary.

5. Second sentence rejected, unnecessary.

8. Rejected, cumulative.

1. Rejected. There is no requirement that the final design be completed prior to the application for construction permit. The application shows the preconditioner ("quencher") between the incinerators and the dry scrubber. The crossover is the portion of the APC for which the application contains no location information. The corrosion of the dry scrubber reflects a maintenance concern, and does not impact whether the facility is capable of operating within the parameters of DER regulations.

   
   

2. Rejected. The application provides that preconditioner water will be evaporated. There is no evidence that such water will be reused.

   
   

3. Rejected, unnecessary. As to the air-to-cloth ratio, rejected as misstatement of application, which provides a "maximum" air-to-cloth ratio of 5 to 1.

   
   

4. Rejected as to reference to manufacturer literature, no probative value, irrelevant.

   
   

5. Rejected. The application indicates that the U-Burn will connect to an APC system, not to a Consumat unit.

19-22. Rejected, unnecessary. This is a de novo proceeding, designed to formulate final agency action. The review conducted by the DER employee is largely irrelevant, other than as to the issuance of the Notice of Intent to Issue. As to the sufficiency of the review, the Recommended Order finds the application to be insufficient, accordingly a DER review resulting in issuance of a Notice of Intent to Issue is likewise deficient, but irrelevant. It is the responsibility of the applicant, at hearing, to establish entitlement to the permit.

31-35. Rejected, unnecessary, cumulative.

1. Rejected, immaterial. The policy need not address all circumstances to be reasonable.

2. Rejected, unnecessary.

1. First and second sentences, rejected, unnecessary.

   
   

2. Rejected, irrelevant.

   
   

3. Rejected, unnecessary.

   
   

4. Rejected, contrary to the greater weight of evidence, including testimony of applicant at hearing regarding monitoring of particulate matter, hydrogen chloride, oxygen, carbon monoxide, arsenic, cadmium, chromium, lead, mercury, manganese, nickel, zinc, and dioxin equivalents.

   
   

5. Rejected, as to use of temperature inversion textbook, cumulative.

47-48. Rejected, contrary to the greater weight of the evidence which establishes that the meteorological data used was the best available.

49. Rejected as to implication that no screen model fumigation event data was considered, contrary to the greater weight of the evidence.

54-61. Rejected, unnecessary evidentiary comment is unsupported by credible testimony.

62. Rejected, unnecessary.

Petitioner Hendry County Board of County Commissioners:

Petitioner Hendry County Board of County Commissioners proposed findings of fact set forth in the proposed recommended order are accepted as modified and incorporated in the Recommended Order except as follows:

1-6. Rejected, immaterial.

9-18. Rejected, immaterial.

20-21. Rejected, immaterial.

1. Rejected, unnecessary.

   
   

2. Rejected, contrary to the greater weight of credited evidence which establishes that, although the configuration is experimental.

25. Rejected, contrary to the greater weight of the evidence which establishes that Mr. McLean has substantial experience in maintenance and operation of the Consumat incinerators.

1. Rejected, unnecessary.

   
   

2. Rejected, immaterial.

Petitioner John C. Oldford:

Petitioner John C. Oldford proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

1. Rejected as to statement that annual average NTL for HCI was exceeded, testimony cited was based upon error.

1. Rejected, irrelevant.

   
   

2. Accepted as to ambiguity of application, otherwise rejected as contrary to the greater weight of evidence.

   
   

3. Rejected, contrary to the greater weight of the evidence which establishes that Bio-Med Services, Inc., a wholly-owned subsidiary of Bio-Med Management, Inc., is the applicant.

   
   

4. Rejected, although said convictions are noted in the Findings of Fact, the determination that such convictions are directly related to public health, safety, and welfare are a conclusion of law and are unnecessary.

Intervenor City of LaBelle:

Intervenor City of LaBelle proposed findings of fact set forth in the proposed recommended order are accepted as modified and incorporated in the Recommended Order.

Intervenor Sarah Bowman:

Although mindful of Intervenor Sarah Bowman's serious personal health concerns relative to the operation of the proposed incinerator facility, references in the proposed findings 1-6 to Bowman's individual health concerns are rejected as legally immaterial. There is no citation to statute or rule which permits the DER to deny a permit application on such basis, assuming that relevant permit criteria are met by the application. Insofar as Ms. Bowman's proposed findings support her assertion that her substantial interests are affected by this proceeding, such findings are unnecessary, in that the standing of parties is not at issue. Such proposed findings not specific to Ms. Bowman's individual health concerns are accepted as modified and incorporated in the Recommended Order.

Respondent Bio-Med Services, Inc.:

Respondent Bio-Med Services' proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

1. Rejected, contrary to the greater weight of credible evidence. The application portion cited in support of this proposed finding is little more than recitation of the agency's rules and an assertion that the applicant will meet them. The design of the project is not sufficiently complete to permit an independent determination of whether reasonable assurances have been provided that the facility, once operational, will comply with the DER's regulations.

   
   

2. Rejected, not supported by the greater weight of credible evidence. The proposed finding is based, not upon the BMS application, but on unpersuasive testimony regarding the crossover mechanism operation.

3. Rejected, recitation of testimony.

23. Rejected, contrary to the greater weight of credible evidence. The application portion cited in support of this proposed finding is little more than recitation of the agency's rules and an assertion that the applicant will meet them.

1. Rejected, contrary to the evidence. The application was submitted on September 24, 1991, by Eastern Grading, Inc. The Bio-Med Ash Residue Management Plan, dated August 20, 1991, was submitted at hearing.

   
   

2. Rejected as to injection of ash sump water into incinerator, contrary to the ash management plan which states it will drain back into the sump for reuse.

   
   

3. Rejected, contrary to the ash management plan which states that wet bottom ash is removed from the building via conveyor and to the application's site plan which shows ash storage occurring in a separate detached structure.

   
   

4. Rejected, unnecessary.

48. Rejected, unnecessary.

1. Rejected, unnecessary.

   
   

2. Rejected, ambient air concentrations are specifically not the sole determinant of whether a permit should be issued.

79-80. Rejected, restatement of testimony. Respondent Department of Environmental Regulation:

Respondent Department of Environmental Regulation's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

27. Rejected, contrary to the greater weight of credited evidence.

33. Rejected, contrary to the ash management plan which states that wet bottom ash is removed from the building via conveyor and to the application's site plan which shows ash storage occurring in a separate detached structure.

Rulings on objections to deposition testimony:

At hearing, the parties stipulated to the submission of objections by Petitioners Cross Tie and Hendry County and Intervenor City of LaBelle to the deposition testimony of Cleveland George Holladay, III and F. John Glunn. The stipulation provided for the submission of such objections ten days from the close of the hearing, with responses to the objections due to be filed five days from the receipt of the objections. Based upon the objections and responses filed, the following constitute rulings on said objections:

Deposition of Cleveland George Holladay, III

Objections 1-17, standing objections related to testimony from page 14, line 17 to page 16, line 16 and from page 17, line 6 to page 19, line 4, as well as additional objections stated at deposition, are overruled.

Deposition of F. John Glunn

Objections numbered 15, 17 and 24 are sustained. Objections 1-14, 16, 18- 23, and 25-35, as well as additional objections stated at deposition, are overruled.

COPIES FURNISHED:

Carol Browner, Secretary

Dept. of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400

Daniel H. Thompson, General Counsel Dept. of Environmental Regulation 2600 Blair Stone Road

Tallahassee, FL 32399-2400

Douglas M. Wyckoff, Esq.

13180 N. Cleveland Ave., Suite 213 North Fort Myers, FL 33903

Owen L. Luckey, Jr., Esq.

110 North Main Street LaBelle, FL 33935

John C. Oldford

P. O. Box 1792 LaBelle, FL 33935

James D. Sloan, Esq.

461 South Main Street LaBelle, FL 33935

John A. Yaun, Esq.

848 West Ventura Avenue Clewiston, FL 33440

E. Dan Stevens, Esq.

P. O. Box 1760 LaBelle, FL 33935

Sarah Bowman

4090 Rainbow Circle

LaBelle, FL 33935

Mary F. Smallwood, Esq. Monroe Park Tower, Suite 1010

101 North Monroe Street Tallahassee, FL 32301

1. Douglas Beason, Esq.

   Department of Environmental Regulation 2600 Blair Stone Road

   Tallahassee, FL 32399-2400

   NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

   
   

   ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

   
   

   =================================================================

   AGENCY FINAL ORDER

   =================================================================

   
   

   BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

   
   

   CROSS TIE MOBILE HOME ESTATES SUBDIVISION,

   
   

   Petitioner,

   vs. OGC CASE NO. 90-1198

   DOAH CASE NO. 90-7381

   BIO-MED SERVICES, INC.

   and DEPARTMENT OF ENVIRONMENTAL REGULATION,

   
   

   Respondents.

   / JOHN C. OLDFORD

   Petitioner, SARAH BOWMAN,

   Intervenor,

   vs. OGC CASE NO. 90-1606

   DOAH CASE NO. 90-8052

   BIO-MED SERVICES, INC. and DEPARTMENT OF ENVIRONMENTAL REGULATION,

   
   

   Respondents.

   /

   HENDRY COUNTY BOARD OF COUNTY COMMISSIONERS,

   
   

   Petitioner, CITY OF LABELLE,

   Intervenor,

   vs. OGC CASE NO. 90-1606

   DOAH CASE NO. 90-0276

   BIO-MED SERVICES, INC. and DEPARTMENT OF ENVIRONMENTAL REGULATION,

   
   

   Respondents.

   /

   
   

   FINAL ORDER

   
   

   On March 31, 1992, a Hearing Officer from the Division of Administrative Hearings submitted his Recommended Order to the Department of Environmental Regulation (Department) and all other parties to this action. A copy of the Recommended Order is attached as Exhibit A. Respondents Bio-Med Services, Inc. (Bio- Med) and the Department, and Petitioner John C. Oldford (Oldford) each filed timely exceptions to the Recommended Order. Petitioners Cross Tie Mobil Home Estates Subdivision (Cross Tie) and Hendry County Board of County Commissioners (Hendry County), and Intervenor City of LaBelle (LaBelle), timely filed joint exceptions to the Recommended Order (referred to herein as Hendry County's exceptions). In addition, all parties filed responses to exceptions. - The matter thereupon came before me as Secretary of the Department for final agency action.

   
   

   BACKGROUND

   
   

   At issue in this case is a permit sought by Bio-Med that would allow it to construct a new biohazardous waste incineration facility in LaBelle, Florida.

   The Department's South District Office issued its Intent to Issue Permit No. AC26-184665 for the construction of an incinerator with the capacity to burn approximately 50 tons of biohazardous waste daily. Petitioners timely filed requests for formal administrative proceedings. All petitions were referred to the Division of Administrative Hearings and consolidated. Following an evidentiary hearing on January 27-31, 1992, the Hearing Officer recommended that the Department deny the permit. This recommendation was based upon the following findings:

   
   

   1. Bio-Med's application, as explicated at hearing, contained insufficient detail upon which to base a determination that reasonable assurance of compliance with Department rules and standards had been provided;

      
      

   2. The ash residue management plan submitted at hearing was not in conformance with Department rules; and

      
      

   3. Although emissions models predicted that the proposed facility would generally comply with applicable Department rules and standards, including the Air Toxics Policy, the application was inadequate to demonstrate that no public

      health threat would be posed, because the applicant and the Department failed to perform a site-specific risk analysis.

      
      

      References to pages in the transcript shall be "T. No." References to the Recommended Order shall be "F.O.F. No." (for numbered Findings of Fact) or "C.O.L. pg." (for unnumbered Conclusions of Law). Citations to rules, unless otherwise noted, are to Department rules found in Florida Administrative Code

      
      

      RULINGS ON EXCEPTIONS

      
      

      My review of these exceptions must be undertaken within the constraints of Section 120.57(1)(b)10., Florida Statutes (F.S.), which provides that findings of fact made by a Hearing Officer in administrative proceedings must be upheld where they are based upon competent substantial evidence. Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987). I am not free to reweigh the evidence or rejudge the credibility of witnesses. Heifitz v.

      Department of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). I am not bound by the Hearing Officer's conclusions of law. I am free to substitute my own legal conclusions for those of the Hearing Officer, so long as competent, substantial evidence supports my legal conclus-ions. Harloff v. City of Sarasota, 575 So.2d 1324 (Fla. 2d DCA 1991); MacPherson v. School Board of Monroe County, 505 So.2d 682 (Fla. 3d DCA 1987); Hunter v. Dept. of Professional Regulation, 458 So.2d 842 (Fla. 2d DCA 1984).

      
      

      Because the exceptions are so numerous and often somewhat repetitive, I have chosen to organize my rulings on them according to subject matter rather than in numerical order. For the sake of clarity, I shall renumber Bio-Med's exceptions to the Hearing Officer's Conclusions of Law as 6 through 10 rather than a through e, and I shall renumber the Department's exceptions to the Conclusions of Law as 6 through 8 rather than 1 through 3.

      
      

      Response to Exceptions

      
      

      1. Character and Experience of the Applicant (Bio-Med's Exceptions 1 and 6; the Department's Exception 1; Oldford's Exception).

         
         

         The Department and Bio-Med take exception to the Hearing Officer's Findings of Fact Nos. 2, 3, 4, and 24, and to his Conclusion of Law on page 37. The Hearing Officer made certain findings as to the criminal history of the applicant's father, and to the previous employment and lack of experience in biohazardous incineration of the applicant. Although it is not clear that any ultimate conclusions were based upon these findings, they are clearly irrelevant in this case.

         
         

         Rule 17-4.070(1), F.A.C., requires a permit applicant to provide reasonable assurance that the proposed facility will not cause pollution in contravention of Department standards or rules. The criminal history of an applicant may be relevant if it is accompanied by findings which relate this history to the ability of the applicant to provide such reasonable assurance. An applicant's history of violations of Department rules or statutes is also relevant. Rule

         17-4.070(5), .F.A.C., allows the Department to consider "a permit applicant's violation of any Department rules at any installation when determining whether the applicant has provided reasonable assurances that Department standards will be met." In addition, Section 403.707(9), F.S., allows the Department to refuse to issue a permit "to an applicant who by past conduct in this state has

         repeatedly violated pertinent statutes, rules, or orders or permit terms or conditions relating to any solid waste management facility and who is deemed to be responsible as defined by department rule."

         
         

         The Hearing Officer made no findings that the criminal history of the applicant's father was likely to impact the applicant's ability to provide reasonable assurance. Nor was there any finding that the applicant had ever violated any Department rules in the past. The finding that the applicant's father had a criminal history, standing alone as it does, is not relevant to the final determination in this case.

         
         

         The applicant's previous employment and experience may also be relevant if it impacts the applicant's ability to provide reasonable assurance. In this case, however, there was no finding that the applicant would be directly involved in the construction or operation of the proposed facility, and no finding that his lack of experience was relevant to his burden to show reasonable assurance.

         
         

         The "track record" of a vendor or manufacturer of the equipment may form part of the basis for reasonable assurance. Hamilton County Board of County Commissioners v. State of Florida Department of Environmental Regulation, 587 So.2d 1378 (Fla. 1st DCA 1991) The experience of the designing engineer or the operator of the facility might also be relevant to a determination that the applicant has provided reasonable assurance that the facility will be built and operated correctly. The Hearing Officer accepted Mr. Baker, the design engineer, as an expert in environmental engineering with an emphasis in air pollution permitting. (T. 102) The Hearing Officer also found that Mr. McLean, who would operate the proposed facility, has "substantial experience in maintenance and operation of the Consumat incinerators." (R.O. Appendix) While the Hearing Officer did conclude that the applicant had failed to provide the necessary reasonable assurance, there was no finding that the applicant's previous employment or experience was relevant to this determination.

         
         

         While the Hearing Officer's findings are supported by competent substantial evidence, they are irrelevant in this case, because the Hearing Officer did not connect such findings to the reasonable assurance standard. Since the comments could be considered unnecessarily prejudicial to Bio-Med's entitlement to the permit, I accept the exceptions of Bio-Med and the Department, and therefore reject those findings.

         
         

         In addition, Oldford apparently takes exception to the failure of the Hearing Officer to make additional findings concerning the character of the applicant and his father. There is no showing that these proposed additional findings relate to any violation of any Department rules or statutes, or to the ability of the applicant to provide reasonable assurance of compliance. For the reasons set forth above, this exception is rejected.

         
         

      2. Completeness of the Design (Bio-Med's Exceptions 3, 4, 7, and 10).

         
         

         Bio-Med takes exception to the Hearing Officer's Findings of Fact Nos. 20, 25, 26, 29, 30, 31, 34, 36, 37, 39, 42, and 55, as well as Conclusions of Law on pages 37 - 39, in which he found that the preliminary nature of the design of the facility was insufficient to provide reasonable assurance that the facility would comply with Department rules. Bio-Med makes several arguments in support of these exceptions.

         1. Past practices of the Department

            
            

            Bio-Med argues generally that these findings are accurate but are irrelevant because there is no Department rule or policy requiring final engineering and design plans. Bio-Med also argues that a denial of its permit- application would be inconsistent with previous Department practice, and cites Hamilton County Board of County Commissioners v. State of Florida Department of Environmental Regulation, 587 So.2d 1378 (Fla. 1st DCA 1991), in support.

            
            

            Superficially, that case is similar to the one before me. In Hamilton County an applicant sought a permit for a biohazardous waste incinerator, which permit was opposed by the county and the city where it was to be located. The Petitioners argued that the design was insufficiently detailed to provide reasonable assurance of compliance with Department rules, yet the Hearing Officer recommended, and the Department agreed, that a permit should be issued. This decision was upheld on appeal, with the reviewing court stating the reasons as follows:

            
            

            At the hearing, TSI [the applicant] presented additional information to provide reasonable assurances that the incinerator facility

            would comply with the applicable rules on the specific points raised by Hamilton County.

            First, contrary to the County's argument, TSI presented evidence describing the type of pollution control system that will be

            installed at the proposed facility to achieve compliance with Florida air emission standards. . . . TSI also presented testimony that the dry lime scrubber baghouse has been used at a similar facility in Stroud, Oklahoma, which uses a Basic incinerator like the one intended to be used at TSI's facility. Emissions test results from the Stroud facility, which were conducted while the facility was combusting twice the amount of material that is proposed for TSI's facility, met the Florida air quality standards. .

            Second, TSI presented evidence regarding the type of cleaning techniques- for the baghouse that would be utilized at the facility.

            The final order specifies as one condition to the Department's issuance of the permit that

            Mr. Basic [designer and vendor of the system] act as overseer for the construction, installation and testing of the proposed facility. . . . The Department's decision to issue the permits was based not only on Mr.

            Basic's testimony but on the other evidence presented at trial, including the application itself, diagrams of the facility, evidence concerning the use of similar equipment at other facilities, and testimony from the County's own expert witness and other witnesses.

            Hamilton County, 587 So.2d at 1388-89.

            
            

            In addition, the Final Order in that case, Hamilton County v. TSI Southeast, 12 FALR 3774 (Department of Environmental Regulation Final Order, September 7, 1990), shows that a prehearing stipulation was filed which resolved many issues which remained at issue in the instant case, including both design and emissions issues. Hamilton County at 3784. The Hearing Officer also found that much of Mr. Basic's testimony as to the design and efficiency of the system was unrefuted. Hamilton County at 3793, 3800.

            
            

            Bio-Med concludes that in Hamilton County the Department applied a "reasonable assurance standard," while in this case the Hearing Officer has applied an "absolute standard.?? Bio-Med also concludes that Hamilton County provides a "clear statement of DER policy and practice in not requiring final design and equipment selection at the construction permit stage." Neither of these conclusions has merit.

            
            

            The Hearing Officer in Hamilton County concluded, "Although, reasonable assurances can be shown in part by having specific engineering drawings and other design details in evidence in support of the application, their absence is not fatal to a showing of reasonable assurances." Hamilton County at 3799 In the Final Order in Hamilton County, the Department accepted this conclusion and stated:

            
            

            Rule 17-4.070(1), F.A.C., provides that reasonable assurance may be shown by "plans, test results, installation of pollution control equipment, and other information." In this case, reasonable assurance was shown by all of these methods. A guarantee of performance that is supported by other competent evidence is sufficient to constitute reasonable assurance.

            
            

            Hamilton County at 3776.

            
            

            In the case before me, the Hearing Officer found that Bio- Med did supply preliminary plans for the facility and the pollution control equipment.

            However, the Hearing Officer found that Bio-Med did not supply sufficient additional information to provide reasonable assurance.- The Hearing Officer found that "there is no credible test data available for a facility utilizing this proposed combination of equipment in the configuration identified in the application." (F.O.F. No. 56) While the application was signed and sealed by Bio-Med's engineer, there was no finding or evidence that the vendor or manufacturer of the equipment guaranteed its performance, and the Hearing Officer concluded that the equipment was not under warranty. (C.O.L. pg. 38)

            
            

            The fact that different cases are-decided differently does not support Bio- Med's contention that they were treated unfairly. In Hamilton County there was competent substantial evidence to support the Hearing Officer's recommendation that a permit be issued. In the present case, there is competent substantial evidence to support the Hearing Officer's findings that the design of the facility, as explicated at hearing, was insufficiently detailed to demonstrate reasonable assurance of compliance with Department rules and standards.

            Bio-Med also argues that the fact that in the present case the Department permit reviewers did not require specific final design establishes a Department policy of accepting preliminary designs for air permits. This argument tends to ignore the de novo nature of the proceedings in which the Hearing Officer evaluates all evidence anew to determine whether the applicant has met Department standards. If the Department's position on an application were presumed to create a policy that could not be challenged, the administrative hearing process would have little meaning. Even if such a policy had existed as Bio-Med alleges, there was no competent substantial evidence credited by the Hearing Officer which would prove the existence of such a policy. A non-rule policy which is not explicated and defended at hearing cannot form the basis for findings or conclusions. Cape Cave Corp. v. Department of Environmental Regulation, 498 So.2d 1309 (Fla. 1st DCA 1987); McDonald v. Department of Banking, 346 So.2d 569 (Fla. 1st DCA 1977).

            
            

         2. Presumption of compliance

            
            

            Bio-Med next cites to J.T. McCormick v. City of - Jacksonville, 12 FALR 961 (Department of Environmental Regulation Final Order, January 22, 1989), and argues that this case stands for the proposition that if modelling shows that the proposed facility will not violate Department air emissions limits, then it is presumed that the applicant has provided reasonable

            assurance that the facility will comply with all Department rules and standards. I do not agree that McCormick can be applied to air permits as Bio-Med argues.

            
            

            Chapter 17-701, F.A.C., includes numerous design standards which describe in detail how a landfill must be built. It also includes performance standards which describe how a landfill, once built, must perform. One of the performance standards is that the landfill must comply with ground water standards and criteria. McCormick states that an applicant for a landfill construction permit enjoys a rebuttable presumption that if the design standards are met, then the landfill will comply with ground water standards and criteria.

            McCormick at 971.

            
            

            Rule 17-2.600, F.A.C., the applicable rule in this case, does not contain the detailed kind of design standards for biohazardous waste incinerators that Chapter 17-701, F.A.C., does for landfills. Instead, this rule sets forth "specific emission limiting and performance standards." While certain portions of this rule do refer to design requirements, these are general in nature and cannot be considered design standards similar to those for landfills.

            Therefore, the presumption enunciated in McCormick simply does not apply to biohazardous waste incinerators. In any case, the Hearing Officer found that the design of the facility was insufficient to demonstrate compliance - with Department rules, so that even if such a presumption did attach, it would be inapplicable here.

            
            

            The Hearing Officer found that, according to the modelling results, the proposed facility's emissions will not exceed Department standards. (F.O.F. Nos. 81, 82, 85) Bio-Med argues that, even without the presumption discussed above, this alone constitutes reasonable assurance that the facility will meet all Department requirements, and that the permit must therefore issue. This argument ignores the obvious fact that computer modelling results are based upon the data fed to them. The Hearing Officer found that `the preliminary design of the facility was insufficient to demonstrate that the facility would comply with the Department's air quality standards. (F.O.F. Nos. 22, 23; C.O.L pp. 37, 40)

            This finding is supported by competent substantial evidence, and I am not free to reject it on the basis of other findings indicating what computer models predict.

            
            

         3. The crossover system

            
            

            Among the design features which the Hearing Officer found inadequate was the crossover system, which would theoretically prevent uncontrolled emissions if one of the air pollution control systems failed. Bio-Med specifically excepts to Finding of Fact No. 41, in which the Hearing Officer found that "[t]he applicant has not yet designed the crossover mechanism and has no information related to the actual planned operation of a crossover mechanism." Bio-Med argues that its engineer did in fact testify at length about the planned operation of the crossover system, and that the Hearing Officer must have ignored this testimony.' The record reveals, however, that Mr. Baker testified that he had not designed the crossover system, had not done any design calculations to show that the system would work, and in fact was not even qualified to design the system. (T. 171- 2) His description of how the system would work was general in nature, and provided few details of its "actual planned operation." (T. 132-4) The Hearing Officer's finding is supported by competent substantial evidence.

            
            

            Bio-Med also excepts to Finding of Fact No. 43, in which the Hearing Officer found:

            
            

            43. There is no information as to how the facility would address the potential situation where, with only one incinerator and APC [air pollution control] system operating, an APC system failure would occur.

            It is not possible to determine, given the lack of detail in the application, whether the crossover mechanism could be expected to adequately and successfully address potential "upset" conditions.

            
            

            Bio-Med argues that the situation addressed in the first sentence of this finding is so speculative as to amount to an absolute standard rather than a reasonable assurance standard. Nonetheless, this finding is literally true, and is based upon testimony at hearing (T. 949, 955-8). If this sentence constituted the sole basis for a finding that the crossover- system would not work, Bio-Med's argument might have merit. However, in the context of Findings of Fact Nos. 41-43, it is clear that this is merely an example of a potential problem, not the basis for any ultimate conclusion. The Hearing Officer's finding is supported by competent substantial evidence, and there is no evidence that it formed the sole basis for any conclusion.

            
            

            Bio-Med also suggests that if the crossover system is inadequate to address potential APC failures, the Department could require as a permit condition that the facility instead be equipped with a bypass stack. The basis for this condition is identified in the Hearing Officer's finding that bypass stacks are part of "standard incinerator design." (F.O.F. No. 41) While it is true that the Department has the authority to modify permit conditions as a result of changes recommended by the parties and the Hearing Officer, Hopwood v. State Dept. of Environmental Regulation, 403 So.2d 1296 (Fla. 1st DCA 1981), McCormick at 974, there must be findings and record evidence to support such changes. In this case, there are no findings and no record evidence that using a bypass

            stack rather than a crossover system would make the facility any more permitable or allow it to meet Department standards, and I decline to create permit conditions without such an evidentiary basis.

            
            

         4. Technical equivalents

         
         

         Bio-Med excepts to the Hearing Officer's conclusion that:

         
         

         Where specifications for component operation are provided, such specifications are qualified by the applicant's reservation to

         substitute different specifications which are--- determined by the applicant to be the

         "technical equivalent" to those set forth in the application.

         
         

         (C.O.L. pg. 38)

         
         

         This Conclusion of. Law then goes on to discuss the potential for pollution that could be emitted from a facility between the time the construction permit is issued and the operation permit is acted upon. There is no obvious correlation between the cited portion and the rest of the Conclusion of Law, and it is not clear that the Hearing Officer has concluded that the use of "technical equivalents" alone could result in pollution, as Bio- Med suggests.

         
         

         The Hearing Officer made several findings of fact that specifications in the application were qualified by references to "their technical equivalents." (F.O.F. Nos. 20, 34, 37, 39) In each case, the Hearing Officer related this phrase to the preliminary design of the facility. He also found that the manufacturers' literature included in the application had no probative value, since the applicant had not committed to using any of the equipment for which literature was included. (F.O.F. No. 40) Nowhere is there a finding that the use of "technical equivalents" is likely to result in pollution.

         
         

         Bio-Med suggests that the permit could be conditioned to disallow the use of "technical equivalents" and to require the applicant to use only the equipment for which specifications had been provided. However, there are no findings and no record evidence that the preliminary specifications in the application would be adequate to provide reasonable assurance even without the offending phrase.

         
         

         1. Identification of vendors

            
            

            Bio-Med further argues that there is no requirement in Department rule or policy that requires an applicant to identify specific vendors of equipment it proposes to use. While there is testimony to support this argument, the Hearing Officer did not find that specifying vendors was required. Rather, the Hearing Officer found that the failure to specify a vendor simply rendered the manufacturer's literature relating to the equipment of no probative value. (F.O.F. No. 40)

            
            

         2. De novo review

         
         

         Bio-Med argues generally that the Hearing Officer has relied solely on the application filed with the Department, and has failed to take into consideration the de novo nature of the proceeding. It is true that the Hearing Officer often refers to deficiencies in the "application." However, it is clear throughout

         the Recommended Order that the Hearing Officer did take into account evidence presented at hearing, and it is reasonable to assume generally that the Hearing Officer was referring to the application as explicated or amended at hearing.

         This is evidenced particularly in the appendix to the Recommended Order, in which the Hearing Officer stated:

         
         

         This is a de novo proceeding, designed to formulate final agency action. The review conducted by the DER employee is largely irrelevant, other than as to the issuance of the Notice of Intent to Issue. As to the sufficiency of the review, the Recommended Order finds the application to be insufficient, accordingly a DER review resulting in issuance of a Notice of Intent to Issue is likewise deficient, but irrelevant. It is the responsibility of-the applicant, at hearing, to establish entitlement to the permit.

         
         

         In sum, competent substantial evidence supports the Hearing Officer's findings that the applicant has not provided sufficient design details to meet its burden of showing reasonable assurance that Department standards will be met. For this reason, and the reasons stated above, Bio-Med's Exceptions 3, 4, 7, and 10 are rejected.

         
         

      3. Risk Assessment (Bio-Med's Exceptions 5 and 9; Department's Exceptions 2 - 8).

         
         

         Exception is taken to the Hearing Officer's Findings of Fact Nos. 16, 61- 68, 75, 90, 91, and 92, and to his Conclusions of Law on pages 34, 35, 40, 41, and 42, in which he found that the Department should have required a more detailed assessment of the risks associated with the facility.

         
         

         Bio-Med and the Department except to Finding of Fact No. 75, wherein the Hearing Officer found that the "no threat levels" (NTLs) set forth in the Department's Air Toxics Policy address only inhalation pathways, and do not address human consumption of toxics through contaminated water supplies or other pathways. The Hearing Officer then opined, "Given the proximity of the proposed facility to local water supplies, the potential for other ingestion impacts exists, and should be-examined."

         
         

         The Department has developed, as part of its Air Toxics Policy, a working list of 756 chemicals for which acceptable ambient air concentrations (NTLs) have been established. (F.O.F. No. 60) The evidence shows that the NTLs were developed from several sources, one of which EPA's reference air concentrations. (Glunn deposition, pg. 21) The reference air concentration typically is an extrapolation from oral toxicity data, which is considered less accurate than using inhalation studies. (Id.; F.O.F. No. 68) If oral pathway information is used, it is converted to an inhalation pathway number using a safety factor. (Glunn deposition, pg. 111) As John Glunn, the Department's air toxics specialist, testified:

         
         

         [W]henever we look at air emissions, we are looking at air pathways primarily. We don't concentrate on the oral pathway. We are assuming that the worst possible situation is

         if somebody breathed this material. And, therefore, the data-that we use as a basis for evaluating whether unacceptable public impact is occurring is whether it is causing an inhalation health hazard.

         
         

         (Id. at 112)

         
         

         The introduction to the Air Toxics Policy explains in some detail how the NTLs were derived. It explains that because of the many unknowns involved in determining "acceptable" levels of toxic chemicals, the assumptions used to calculate the NTLs are conservative, and the NTLs contain an ample margin of safety.

         
         

         The Policy further states:

         
         

         This conservative bias is added to protect the public from the possible additive or synergistic effects from simultaneous exposures to multiple toxic air contaminants, and from additional exposures to the same toxics through other environmental pathways.

         
         

         (Glunn deposition, Ex. 2)

         
         

         To the extent that the Hearing Officer found that the NTLs address inhalation pathways, he is correct. There is no competent substantial evidence, however, to support his explanation that this is based on the assumption that the most likely human ingestion for air emissions is through inhalation. The only credible evidence concerning the basis for the policy was the testimony of John Glunn, who stated that the reason `inhalation pathways were used was that they were more accurate and protective of the public health than were other pathways. In addition, the policy itself states that the margin of safety that was included in the NTLs had as one of its purposes the protection of the public from other pathways. The Hearing Officer concluded that the Air Toxics Policy was not arbitrary or unreasonable (C.O.L. pg. 42).

         
         

         As to the Hearing Officer's suggestion that the potential for other ingestion impacts should be examined, I do not consider this a proper finding of fact relevant to the permit application before me. John Glunn testified that the groups responsible for establishing the NTLs, including the United States Environmental Protection Agency, are constantly working to upgrade those levels as more information is developed. (Glunn deposition pg. 22; see also Glunn deposition Ex. 2) While it may be that these impacts should be examined, it is hardly the burden of the applicant to do so. As the Department noted in McCormick, applicants "are not required to give absolute guarantees that their project will not under any circumstances cause pollution." McCormick at 967. To require an applicant-for a Department permit to investigate and expand upon the underlying rationale for all relevant Department rules and policies would render meaningless both the rulemaking process specified in Section 120.54, F.S., and the requirement in Rule 17-4.070, F.A.C., that an applicant provide reasonable assurance that the project will not cause pollution "in contravention of Department standards or rules." As the court in Hamilton County stated:

         
         

         [W]e are necessarily mindful that the laws regulating air and water pollution set forth in chapter 403 of Florida Statutes are not

         intended to provide a means for the outright prevention of the construction and operation of legitimate business facilities and functions. Chapter 403 and DER's delegated powers thereunder are designed only to regulate the construction and operation of such business enterprises in a manner to prevent air and water pollution by the business facility in excess of the specified limits.

         
         

         Hamilton County, 587 So.2d at 1381.

         
         

         Bio-Med and the Department also take exception to Finding of Fact No. 91, wherein the Hearing Officer found:

         
         

         The evidence is insufficient to establish whether or not the proposed incineration facility will result in an adverse health risk to the general population residing in the area, but given the location of the proposed facility and proximity to the local water supply and to sensitive receptors, the completion of a full risk analysis is warranted.

         
         

         Putting aside for the moment the question of whether the 24- hour NTL for hydrogen chloride would be exceeded, the Hearing Officer found that the applicant's modelling demonstrated compliance with the Air Toxics Policy. The Hearing Officer also found that the Petitioners' evidence was insufficient to demonstrate an adverse health risk. There is no requirement of rule or policy that an applicant perform a risk assessment, yet the Hearing Officer found that compliance with the Air Toxics -Policy was not enough to demonstrate compliance with Department standards. I consider this "finding" to be more in the nature of a conclusion of law, which I am free to reject if it does not comport with Department rules or policy.

         
         

         It is well established that an applicant for a permit has the burden of demonstrating reasonable assurance of compliance with Department rules and standards. However, once the applicant has made a prima facie showing of reasonable assurance, the burden shifts to the petitioner to demonstrate noncompliance. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Once a prima facie case is made, "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." (Id. at 789) In this case, Bio-Med did not make a prima facie case of entitlement to a permit since the design of the facility was incomplete. However, it did make - a prima facie case that the modelling showed compliance with the Air Toxics Policy. The Hearing Officer's finding that the lack of evidence regarding adverse health risks was sufficient to overcome this prima facie showing does not comport with the principles set forth in J.W.C.

         
         

         Additionally, the evidence shows that the NTLs set forth in the Air Toxics Policy do take into account the effects of emissions on sensitive populations, long-term exposure to emissions, and exposure to more than one chemical. (F.O.F. No. 65; T. 1213; Glunn deposition pp. 11-12, 27-28; Glunn deposition Ex. 2) There was also unrefuted evidence that modelling of particle deposition

         (presumably the pathway of concern to the local water supply), while imperfect, would indicate less stringent emissions requirements than would the more common dispersion modelling. (Holladay deposition pg. 53) Deposition modelling was in fact performed and indicated compliance with the NTLs. (Id. at 18, 30; F.O.F. No. 90)

         
         

         As regards the possible exceedence of the 24-hour NTL for hydrogen chloride, the Hearing Officer found that this was based on an estimated control efficiency which might have been too conservative. (F.O.F. No. 74) The Air Toxics Policy sets out options which an applicant could use to address such an exceedence. The applicant can conduct more detailed modelling or redesign the facility to demonstrate compliance, but if this cannot be done, the applicant can conduct "a detailed risk assessment to show the no-threat levels will not be exceeded or to show that a more appropriate no-threat level can be determined." (Glunn deposition Ex. 2) In other words, a risk assessment might be appropriate

         -for hydrogen chloride emissions However, there is no requirement for a risk assessment for any chemical that modelling shows will not exceed its NTL.

         
         

         Bio-Med and the Department take exception to the Hearing Officer's Conclusions of Law on pages 34 and 40-42 that would, in essence, require a site- specific analysis of the potential health risks to the public even if the applicant had provided reasonable assurance that air quality standards would be met. The Hearing Officer relied for this conclusion on Section 403.021(8), F.S., which states:

         
         

         The Legislature further finds and declares that the public health, welfare, and safety may be affected by disease-carrying vectors and pests. The department shall assist all governmental units charged with the control of such vectors and pests-. Furthermore, in reviewing applications for permits, the department shall consider the total well- being of the public and shall not consider solely the ambient pollution standards when exercising its powers, if there may be danger of a public health hazard.

         
         

         The Hearing Officer interpreted the third sentence of this section to require a site-specific analysis of all possible public health threats that could arise from the proposed facility. In essence, the Hearing Officer has read this sentence as though it were a separate section, disconnected from the first two sentences of the section. Such a reading would appear to give the Department unrestricted authority to do whatever it thought best regardless of its own rules, policies or procedures.

         
         

         The reference to a "public health hazard" appears to refer to one resulting from disease-carrying vectors and pests, which were not at issue in this case.

         However, there is no record evidence relating to this provision, and it was not argued at hearing or in the recommended orders of the parties. The only reference to this section is a paragraph in Oldford's Prehearing Stipulation, which contained no citations to authority or compelling legal argument. I therefore decline to accept the Hearing Officer's conclusion that this section authorizes the Department to require a site-specific analysis of health risks which might be posed by the proposed facility.

         This is not to say that the Department lacks authority to address the public health risks associated with the management of biohazardous waste. Section 403.702(2) (o), F.S., declares' that one of the purposes of the Solid Waste Management Act is to "[e)nsure that biohazardous waste is transported, stored, treated, and disposed of in a manner adequate to protect human health, safety, and welfare and the environment." Section 403.704(31), F.S., requires the Department to promulgate rules to address biohazardous waste incineration, transportation, storage, treatment and disposal In furtherance of this mandate, the Department has promulgated several rules that specifically address the management of biohazardous waste. Chapter 17-712, F.A.C., regulates the transportation, storage, treatment, and disposal of biohazardous waste, and includes provisions to reduce the threat of vectors and pests. Chapter 17-702, F.A.C., regulates the management of ash residue from solid waste combustors, including biohazardous waste incinerators. And Chapter 17-2, F.A.C., contains sections regulating the incineration of biohazardous waste, and the emissions from such facilities. Nowhere in these rules, however, is found any requirement for applicants to' conduct site-specific risk analyses. Nor was any non-rule policy creating such a requirement proven at hearing.

         
         

         In sum, there is no basis in the record in this case of any Department rule or policy to support the Hearing Officer's findings and conclusions that Bio- Med's failure to conduct a risk assessment, as well as the Department's failure to conduct a site analysis, precludes issuance of a construction permit. For this reason, these exceptions are accepted, and the findings and conclusions are hereby rejected. However, since I have accepted the Hearing Officer's recommendation that the permit be denied on other grounds, such acceptance has no bearing on the outcome of this case.

         
         

         Additionally, the Department excepts to Finding of Fact No. 90, in which the Hearing Officer found that the Department did perform deposition modelling, that the model is not accurate, and that such modelling is not required by Department rules. While these findings are supported by competent substantial evidence, the Hearing Officer goes on to suggest that "such information, if available, could provide useful particle deposition data, given the proximity of the site to the City of LaBelle public water supple." I agree with the Department's argument that this statement is irrelevant, but I do not consider helpful suggestions to constitute findings of fact upon which I must rule. For this reason, the exception is rejected.

         
         

      4. Ash Residue Management Plan (Bio-Med's Exceptions 2 and 8).

         
         

         Bio-Med takes exception to the Hearing Officer's Findings of Fact Nos. 50- 54, and his Conclusions of Law on pages 39-40, that the ash residue management plan submitted at hearing was insufficient to meet the requirements of Rule 17- 702.400, F.A.C.

         
         

         The ash residue management plan was not submitted with the application, but was instead submitted by Bio-Med at the hearing. There was little testimony regarding the plan, and the Hearing Officer's findings are apparently based almost entirely on a comparison of the plan itself with the requirements of the rule. Contrary to Bio-Med's assertions, there was no record evidence showing that the Department's acceptance of the plan constitutes a policy of any kind.

         The Hearing Officer found that the plan:

         
         

         fails to indicate the capacity of the disposal site or whether the disposal site is intended to receive ash residue from the solid waste combustor for the life of the facility. The plan is ambiguous as to whether the identified sites are actual disposal sites or are offices of the company which will allegedly handle disposition of the ash.

         
         

         (F.O.F. No. 50) Rule 17-702.400(3), F.A.C., states that "[t]he plan shall identify disposal sites which are intended to receive ash residue from the solid waste combustor for the life of the facility." The ash residue management plan states that the ash "will be disposed of by Waste Managements, Inc., [sic] at their facility located at 3000 N.W. 48th Street, Pompano Beach, Florida 33073." (Bio-Med Ex. 11)

         
         

         There is no rule requirement that the plan indicate the capacity of the disposal site. Nor is there a specific requirement that the plan contain the words "for the life of the facility." Absent evidence that the facility identified will not receive ash for the life of the facility, it is reasonable to assume that the applicant was in compliance with the rule requirement.

         Finally, there is no ambiguity in the statement that the ash will be disposed of by Waste Management, Inc., "at their facility" when taken in context.

         
         

         The Hearing Officer found that the plan "fails to address the beneficial uses, if any, of ash residue, although the plan does state that ash recycling is not anticipated." (F.O.F. No. 51) Rule 17-702.400(4) requires an estimate of the quantity of ash generated, and states that "[t]he estimate shall identify and quantify -those components of ash residue that can be segregated for recycling before disposal, and shall address the beneficial use of ash residue."

         
         

         Taken in context, the rule clearly does not require ash to be recycled.

         The intent, rather, is to "provide for the safe handling, storage, transportation, disposal, or beneficial use of ash residue." (Rule 17-702.100, F.A.C.) The ash residue management plan, then, must identify whether ash is to be recycled, and if so, shall identify the beneficial uses that will result.

         Bio-Med's plan addresses beneficial use in the negative by stating that recycling is not anticipated.

         
         

         The Hearing Officer found that the plan "fails to identify contractual requirements, or notification and inspection procedures, which assure that hazardous wastes are not received or burned in the facility," as is required by Rule 17-702.400(6), F.A.C. There is no dispute that plan did fail to meet this requirement. However, the plan did include a statement that "[a] complete waste characterization and inspection plan will be submitted 3 months prior to start- up of the facility." (Bio-Med Ex. 11) Specific Condition No. 25 of the draft permit requires compliance with Rule 17-702. (DER Ex. 4) Rule 17-4.070(3), F.A.C., allows the Department to "issue any permit with specific conditions necessary to provide reasonable assurance that Department rules can be met."

         
         

         Since it is obvious that no hazardous wastes can be accepted at the facility before it begins operation, it would not be unreasonable to find that the statement in the plan that an inspection plan will be submitted prior to start-up complies with Rule 17-702.400(6), F.A.C. This particular requirement

         is more a function of operations than any sort of design criteria. Nor is there any evidence that Bio-Med will not comply with its plan, or that hazardous waste will be accepted at the facility.

         
         

         The Hearing Officer found that the ash will be wetted to eliminate dust and blowing ash, that the wet sump water will be recycled into the sump, but faults the plan for failure to address the "cumulative impacts of such water reuse and the potential impact of exposure to humans or the environment." (F.O.F. No. 53) Similarly, the Hearing Officer found that the baghouse area will be shielded to prevent waste escape into the atmosphere, but faulted the plan for failure to "consider other pathways of human or environmental exposure such as through direct contact or ingestion, and the potential for soil and ground water contamination." (F.O.F. No. 54) Rule 17-702.400(2), F.A.C., states:

         
         

         The plan shall describe the methods, equipment, and structures necessary to control the dispersion of ash residue during handling, processing, storage, loading, transportation, unloading and disposal, and shall consider potential pathways of human or environmental exposure, such as through inhalation, direct contact, ingestion, and the potential for soil, air, ground water and surface water contamination.

         
         

         The ash residue management plan describes in some detail the methods, equipment, and structures necessary to control dispersion of ash residue. It addresses the handling, storage, loading, transportation, and disposal of the ash. There is no finding that these described methods, equipment and structures are inadequate or fail to meet the requirements of the rule. Instead, the Hearing Officer found that Bio-Med did not specifically address all potential pathways of human or environmental exposure. This is not what the rule requires. It simply requires a description of methods to be used to control dispersion of the ash so that humans are not exposed through inhalation, direct contact, or ,ingestion, and that the environment is not exposed through soil, air, ground water, and surface water contamination. An applicant is not required to provide a treatise on all potential pathways of exposure to all ash residue. Nor is an applicant required in this rule to consider the "cumulative impacts of water reuse."

         
         

         The Hearing Officer's function is to make findings of fact based on the evidence, and to relate these facts to the applicant's burden of showing reasonable assurance of compliance with Department rules. It is the Department's function to determine, based upon those findings, whether the applicant has met that burden. In this case, the Hearing Officer's findings, while literally accurate, do not demonstrate that Bio-Med has failed to comply with Rule 17-702.400, F.A.C. It is the applicant's responsibility to demonstrate entitlement to a permit, and while Bio-Med may not have done a thorough job of explaining the ash residue management plan, the plan on its face is sufficient to demonstrate compliance with the rule, absent any evidence to the contrary. For this reason, the exceptions are accepted. However, since I have accepted the Hearing Officer's recommendation that the permit be denied on other grounds, such acceptance has no bearing on the outcome of this case.

         
         

      5. Miscellaneous (Hendry County's Exceptions 1, 2, 3, 4, and 5; Bio-Med's Exception No. 3).

         1. Hendry County's Exception 1.

            
            

            Hendry County takes exception to Findings of Fact Nos. 61- 68, and the Conclusion' of Law on page 42, in which the Hearing Officer found that the Air Toxics Policy was developed and used appropriately in this case. Hendry County argues that the Hearing Officer's findings are based on Petitioners' failure to provide specific evidence that any one of the 756 NTLs are too low or too high, and that the Hearing Officer must have failed to consider the testimony of one of their experts. Hendry County also argues that safety factor used in establishing NTLs is arbitrary.

            
            

            Initially I would note that Hendry County has not offered any argument to support its exceptions to Findings of Fact Nos. 61, 62, 63, and 65. Rule 17- 103.200, F.A.C., requires that exceptions "shall state with particularity the basis for asserting that the hearing officer erred in making or omitting specific findings of fact, conclusions of law, or a recommendation."

            
            

            An agency may implement non-rule policy through the entry of final orders where, as in the present case, the agency explicates and defends such policy in administrative proceedings. Cafe Cave Cord. v. Department of Environmental Regulation, 498 So.2d 1309 (Fla. 1st DCA 1987). The Recommended Order is replete with specific factual findings `in support of the validity of the Department's Air Toxics Policy. The Hearing Officer found that Petitioners did not identify any of the NTLs for chemicals on the working list as inadequate or excessive. (F.O.F. No. 66) The Hearing Officer found that the greater weight of the evidence established that the safety factor was appropriate. (F.O.F. No. 67) The Hearing Officer found that the Department's reliance on the data that formed the basis of the Air Toxics Policy was reasonable. (F.O.F. Nos. 64, 68)

            
            

            In essence, Hendry County is asking me to reweigh the evidence, which I am not at liberty to do. The Hearing Officer's findings are supported by competent substantial evidence, and this exception is rejected.

            
            

         2. Hendry County's Exception 2.

            
            

            Hendry County complains that the Hearing Officer failed to rule on the validity of the Department's "reasonable assurances policy," and that the Hearing Officer rejected their proposed finding of fact No. 22 that "the engineer's certification was the basis for DER's determination that reasonable assurance was presented." Hendry County did not, in their proposed recommended order or in this exception, cite to any relevant record evidence for their assertion, and in fact the evidence demonstrates that an engineer's certification is simply one factor in considering whether the applicant has provided reasonable assurance of compliance. For this reason, the exception is rejected.

            
            

         3. Hendry County's Exceptions 3 and 4.

            
            

            Hendry County takes exception to the Hearing Officer's rulings on its proposed findings of fact 16 and 44, relating to the posting of a performance bond by Bio-Med. Hendry County argues that the facility was experimental in nature and that therefore the Department was obligated to require a performance bond from the applicants.

            
            

            The Hearing Officer in fact found that the facility was not "experimental" in nature. (F.O.F. No. 56) Neither of Hendry County's proposed findings of fact made any mention of a performance bond. There was no relevant evidence accepted

            by the Hearing Officer that a bond was necessary. Finally, Rule 17- 4.110, F.A.C., states that the Department may require an applicant to submit proof of financial responsibility or to post a bond to guarantee compliance with Department rules, but does not require it. For these reasons, the exceptions are rejected.

            
            

         4. Hendry County's Exception 5.

            
            

            Hendry County takes exception to the Hearing Officer's Conclusion of Law on page 43 that Bio-Med is not required to comply with rules related to solid waste management facilities. In Hamilton County, the court ruled that a separate solid waste management facility permit was not necessary for a biohazardous waste incinerator, and that Department statutes and rules require only an air pollution permit. (Hamilton County, 587 So.2d at 1386) Hendry County does not dispute this, but instead urges me to overrule the First District Court of Appeal. Lacking such legal authority, I reject this exception.

            
            

         5. Bio-Med's Exception 3.a.

            
            

            Bio-Med excepts to Finding of Fact No. 44, which states "[t]here is no information supplied related to the location or storage of delivered, but unincinerated, biohazardous wastes." Bio-Med correctly points out that a general permit for storage is granted pursuant to Rule 17-712.800, F.A.C., and is therefore not relevant to this construction permit. There is no other finding or conclusion based upon the Hearing Officer's finding, and it appears to be no more than an accurate description of the site plan, supported by competent substantial evidence. For this reason, the exception is rejected.

            
            

         6. Bio-Med's Exception 3.c.

         
         

         Bio-Med excepts to Finding of Fact No. 74, which relates to an estimated hydrogen chloride emission which would exceed the Department's 24-hour NTL. Bio-Med admits that the finding is "a true statement based on the assumptions made by the hearing officer," but argues that it is irrelevant to a conclusion regarding reasonable assurance. The Hearing Officer did not find that the NTL

         would be exceeded, only that it might be, and that "given the preliminary state of design and the lack of test results and data reflective of this particular equipment configuration, the evidence is insufficient to determine with reasonable assurance that such requirements will be met, or that the 24 hour NTL will not be exceeded." (F.O.F. No. 74) If the Hearing Officer had recommended permit denial based solely on this finding, Bio-Med's argument that this constitutes an "absolute standard analysis" might have merit. Such is not the case here, and as Bio-Med correctly points out, "[R]easonable assurance is applied to the totality of evidence regarding overall compliance with DER rules and standards and is not isolated to a single event." The Hearing Officer's finding is supported by competent substantial evidence, and there is no evidence that it formed the sole basis for any conclusion. This exception is therefore rejected.

         
         

      6. Incinerator Moratorium

I should note that the Florida Legislature recently enacted Section 92-31, Laws of Florida, which prohibits any person from beginning construction on or being issued a permit for the construction of a biohazardous waste incinerator. This law became effective after the conclusion of the hearing, and was not raised as an issue in this case. Since there was no record evidence or argument from any of the parties as to the applicability of the law to this case, and

since such applicability at any rate is rendered moot by my acceptance of the Hearing Officer's recommendation that the permit should not issue, I have not considered the potential effects of this law in this Order.

Accordingly, based upon the foregoing analysis and conclusions, it is ORDERED:

1. Except as modified herein, the Hearing Officer's Recommended Order is adopted and incorporated herein by reference.

   
   

2. Permit application number AC26-184665 is hereby denied.

Notice of Rights

Any party to this Final Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the

Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees -with the appropriate District Court of Appeal. The Notice of

Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.

DONE AND ORDERED this 14 day of May, 1992, in Tallahassee, Florida.

State of Florida Department of Environmental Regulation

CAROL BROWNER

Secretary

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 323299-2400

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing has been served by hand delivery to William F. Quattlebaum, Heading Officer; Ann Cole, Clerk, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, FL 32399-1550; Douglas Beason, Assistant General Counsel, 2600 Blair Stone, Tallahassee, FL 32399-2400 and by U.S. Mail this 15th day of May, 1992, to the following:

John A. Yaun, Esq. John C. Oldford

848 W. Ventura Avenue Post Office Box 1792 Clewiston, FL 33440 LaBelle, FL 33935

Mary F. Smallwood, Esq. E. Dan Stevens, Esq. Suite 1010 Post Office Box 1760

101 N. Monroe Street LaBelle, FL 33935 Tallahassee, FL 32301

James D. Sloan, Esq. Owen L. Luckey, Jr., Esq. Post Office Drawer 2280 Post Office Drawer 1820 LaBelle, FL 33935 LaBelle, FL 33935

Sarah Bowman Douglas M. Wyckoff, Esq.

4090 Rainbow Circle Post Office Box 2511

LaBelle, FL 33935 Fort Myers, FL 33902

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

CHRIS MCGUIRE

Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

Telephone: (904) 488-9730

Docket for Case No: 90-007381

Orders for Case No: 90-007381