STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on May 27 and 28, 1992, in Melbourne, Florida.

APPEARANCES

For Petitioner, Thomas Lanham

Brevard County: Assistant County Attorney

County Attorney's Office Building C, Suite 346 St. Johns Street

Melbourne, Florida 39240

For Petitioners, F. Michael Driscoll Port St. John 3815 N. Highway US 1 Homeowner's Assoc., Suite 58

Jessie O. Fleming Cocoa, Florida 32926 & Don Williams:

For Respondent, F. Alan Cummings Sloan Construction Michael E. Riley Company, Inc.: Cummings, Lawrence &

Vezina, P.A.

1004 DeSoto Park Drive Post Office Box 589

Tallahassee, Florida 32302

For Respondent, Douglas H. MacLaughlin Department of DER Twin Towers Ofc. Bldg. Environmental 2600 Blair Stone Road Regulation: Tallahassee, Florida 32399

STATEMENT OF THE ISSUES

Sloan Construction Company, Inc. (Sloan) has applied to the Department of Environmental Regulation (DER) for a permit to relocate its drum mix asphalt plant, a source of air emissions, from its current site in Flagler County to Brevard County. The issue in this proceeding is whether that permit should be granted. More specifically, it must be determined whether the proposed activity will meet applicable statutory and regulatory standards.

An ancillary issue regarding Respondent, Sloan's entitlement to attorneys fees and costs pursuant to Section 120.57(1)(b)5., F.S. is addressed in a separate order entered this same date.

PRELIMINARY STATEMENT

In response and in opposition to the agency's notice of intent to issue the requested permit dated February 13, 1992, petitions for formal hearing were filed on behalf of Brevard County and approximately sixteen individuals and groups of individuals.

After the petitions were forwarded to the Division of Administrative Hearings, they were consolidated in an order dated April 18, 1992. Later, but before hearing, two petitions were withdrawn, that of Anne Jamison (case #92- 1810) and John Ferguson (case #92-1812). These other Petitioners neither appeared at hearing nor participated in prehearing exchange of documents and witnesses as required in a prehearing order dated April 28, 1992, and their petitions are deemed abandoned: Carol L. Harris, Harry S. Rice, Joseph F. DeBarry, Bea Polk, Russell Harris, Opal Hall, and Felicia Cardone.

Approximately five days prior to the scheduled formal hearing, Brevard County filed in circuit court its motion for declaratory judgement and temporary injunction requiring a determination of the unconstitutionality of Chapter 403,

1. and "Chapter 17 of the Florida Administrative Code", and requesting that the administrative hearing be enjoined. The motion was dismissed without prejudice in a circuit court hearing the morning of May 27th, and the administrative hearing proceeded as scheduled.

   
   

   At the commencement of the hearing, argument was considered on a motion in limine by DER to exclude evidence related to allegations of pollution from discharges to surface or groundwater, as the permit at issue relates only to an air emission source. The motion was denied with the caveat that the scope of the proceeding was still limited to the application for permit for air discharge. To be relevant, any evidence related to water pollution would need

   to be secondary impact or a result of inability to meet some proposed condition of the permit.

   
   

   In support of its application Sloan presented the testimony of B.R. Traynam and Roger Caldwell, and its exhibits were received in evidence as Sloan exhibits #1-12, 27 and #38.

   
   

   DER presented the testimony of John Turner, qualified as an expert in air pollution permitting, and its exhibits were received in evidence as DER exhibits #1, 15, 15(a), 16, 17, 18, 19, and 20.

   
   

   Brevard County presented the testimony of Allen Zahm, Charles Slattery, M.D., Charles Collins, Tony Eggleston (qualified as an expert in emissions, air permitting and air modeling), and Frank Jones (qualified as an expert in toxicology of airborne pollutants). County Exhibit #1 was received in evidence. County Exhibit #2 was marked for identification only, and was excluded as irrelevant.

   
   

   Port St. John Homeowners' Association presented the testimony of its President, Cecelia Faiga; and Don Williams and Jessie Fleming testified in their own behalf.

   
   

   Joseph and Katherine Tidwell, as individual Petitioners also testified.

   
   

   Pursuant to Section 120.57(1)(b)4, F.S. and as provided in a notice of public comment session, testimony was provided by the following concerned residents: George Broyles, Betty Jane Brumm, Julia Bumgardner, Joyce Richter, Keith Bliss, Florence Broaddus, Ann Prochnow, Dorothy Amstadt, George Fayer, and Elton R. Koffman.

   
   

   After the hearing and the filing of a transcript Petitioners, Brevard County and Port St. Johns Homeowners' Association, et al, filed memoranda in support of their position that the permit should be denied. Sloan and DER submitted proposed findings of fact, which findings are substantially adopted herein. This recommended order is entered after consideration of all evidence and argument described above.

   
   

   FINDINGS OF FACT

   
   

   1. Sloan Construction Company, Inc., (Sloan) is a highway contractor doing business in the southeastern United States. It operates asphalt plants in South Carolina and in Florida; in addition to the portable plant at issue here, its Florida plants, permitted by the Department of Environmental Regulation (DER) are in Jacksonville, St. Augustine, and Orlando.

      
      

   2. On December 9, 1991, Sloan applied to DER to relocate its portable asphalt plant from Flagler County to Brevard County. The company has a contract with the Florida Department of Transportation for work on I-95 and on A-1-A in Brevard County and needs the plant for that work.

      
      

      This same plant was initially permitted by DER's southwest district office on November 9, 1989 for operation in Highlands County. Pursuant to subsequent permits the plant moved to Lake County in 1990, and to Flagler County in 1991. Each time it was moved, the relevant DER district office reviewed the air pollution impact before granting the permit. The permit will expire in November 1994.

   3. A consent order was entered in December 1990 between Sloan and DER regarding violations in May and June 1990. The violations described in the consent order were that visible emissions exceeded 20% opacity, and the metal tanks serving as the scrubber final settling basin were low on water with large amounts of particle flotation. The company paid a fine of $7,750 and made the DER-required changes in its maintenance and operation.

      
      

   4. The company monitors its own system and makes necessary repairs and improvements when problems are anticipated. When the scrubbers fail to operate properly, they are shut down and fixed. The scrubbers do not involve water discharge as they are a closed circuit system. This permit application is not requesting approval to discharge into the waters of the state.

      
      

   5. For this permit DER requires annual stack testing to determine whether the plant is meeting air emission limitations for particulates (.04 grains per dry standard cubic foot) and opacity (20%). Sloan retains an engineering consultant, Bottorf and Associates, to conduct those tests. The last stack test, May 1991, indicates that the emissions meet the standards.

      
      

      It is anticipated that this same plant will perform just as well in Brevard County. However, a proposed condition of the new permit is that another stack test be performed within 20 days of commencement of operation, in order to assure that equipment is functioning properly after the move.

      
      

      A condition of the existing permit is that unconfined emissions of particulate matter from vehicular movement, loading, construction or demolition be controlled by paving of traffic areas and the sprinkling of stockpiles with water.

      
      

   6. Sulphur dioxide is considered to be the pollutant of greatest concern in a facility such as this. Sulphur dioxide is generated from the burning of fuel containing sulphur. The applicant has agreed to reduce sulphur content of its fuel from 1.8% to .5%, and to reduce its sulphur dioxide emission limit from

      96 tons per year to 26 tons per year.

      
      

   7. No DER rule requires air pollution source modelling for an asphalt plant or other minor source (defined as less than 100 tons per year of a single pollutant emission). However, because of the proximity of the proposed facility to the existing Orlando Utilities Commission (OUC) power plant, and public concern about sulphur dioxide emissions in the area, DER air permitting engineer, John Turner, ran SCREEN models to predict the combination of emissions from this proposed facility and other sources in the area.

      
      

      The total projected sulphur dioxide ambient air level from the SCREEN models run by John Turner for the Sloan facility at 26 tons per year included four other local sources, and included a more specific model for the nearby OUC plant, which model considered additional sources. John Turner's modelling yielded

      241.63 micrograms/ cubic meter on a 24 hour basis. The ambient air quality standard is 260.

      
      

   8. John Turner's modelling yielded a conservative estimate, that is, it most likely over-predicted sulphur dioxide levels. The model assumed no reduction in sulphur dioxide from aggregate in asphalt plant dryers; tests actually reflect a 70-89% reduction, and the U.S. Environmental Protection Agency (EPA) assumes a 50% reduction when no tests are available.

      The model assumed all sources would be operating 24 hours a day, when they actually operate for a more limited period. Moreover, the model assumed all sources would be operating at the same time at their maximum permitted rates.

      
      

      Turner's assumptions also assumed worst case meteorological conditions, such as wind inversions, that would combine plumes from two sources in opposite directions.

      
      

      In the OUC model used by Turner a worst case sulphur dioxide background of 44 was assumed when the normal background level would be much lower.

      
      

   9. "Downwash" is the effect of wind hitting a large, generally flat, structure or impediment, rising to go over the top and then dropping---an effect which would cause a pollution plume to drop to the earth more quickly.

      
      

      The County's expert conceded that John Turner's modelling was conducted properly, but criticized the model for failing to consider downwash.

      
      

      John Turner and his supervisor, Allen Zahm, did consider downwash but they suggest that it would lower, not raise, the ambient air level, as downwash tends to retain the concentration closer to the stack. The County's expert stated that he did not know that downwash would actually occur on the site.

      
      

   10. As provided in the permit conditions, the applicant intends to use "on specification" used oil for fuel. "On-specification" used oil must meet standards not to exceed certain allowable levels for arsenic, cadmium, chromium and other substances. There is no allowable level of PCB; that is, the standard level is zero. The sulphur and heavy metal content of the fuel is monitored through certificates of quality required by DER. Sloan has complied with the permit requirements as to its fuel quality.

       
       

   11. The proposed site for the facility is in Delespine, north of Cocoa in Brevard County, near Highway U.S. 1 and near the Indian River Lagoon. The plant will be approximately 700 meters southwest of an existing mid-sized power plant, OUC, and approximately a mile northwest of a Florida Power and Light Company power plant. Adjacent to the site is a large residential community, Port St. John, with approximately 18,000 residents.

       
       

       The community has expanded rapidly as a result of the availability of affordable housing, and it includes a mix of elderly citizens and young families with children.

       
       

       The residents are genuinely and sincerely concerned for their health and safety and the character of their neighborhoods. They provided anecdotal testimony of increased respiratory problems and negative environmental impacts which they attribute to the power plants and other industrial uses in the area. They are concerned about increased traffic and problems of evacuation in the event of an emergency. They are worried that the traffic and emissions from the proposed facility will cause special problems for students at the nearby elementary schools.

       
       

   12. As real and sincere as those concerns are, they do not overcome the substantial evidence presented by the applicant that the proposed permit meets the specific requirements of the responsible state agency. The citizens' concerns are classic land use issues, which through zoning and land use regulation, are the jurisdiction of their local governments.

       CONCLUSIONS OF LAW

       
       

   13. The Division of Administrative Hearings has jurisdiction over this matter pursuant to Section 120.57, F.S.

       
       

   14. The permit applicant, Sloan, has the burden of proving reasonable assurance of compliance with all appropriate DER rules in its operation of the proposed relocated asphalt plant and the air omissions from the plant. Department of Transportation v. J.W.C., 396 So.2d 778 (Fla. 1st DCA 1981); Rule 17-4.070(1), F.A.C.

       
       

   15. The Sloan asphalt plant is subject to specific performance standards for new stationary sources pursuant to Rule 17-2.660(2)(a), F.A.C., which by reference adopts 40 CFR Part 60.90, Subpart I, EPA standards for asphalt concrete plants. The performance standard for asphalt plants is .04 grains per dry standard cubic feet (particulates) and 20% opacity. The Sloan plant has met this specific performance standard.

       
       

   16. Because the proposed Sloan plant is limited to discharging 26 tons of sulfur dioxide per year, and sulphur dioxide is considered the main air pollutant from this facility, the plant is considered a "minor source" of air pollution pursuant to Rule 17-2.100(133), F.A.C., which defines any source that is not a "major source", emitting over 100 tons per year, as a "minor source".

       
       

   17. "Minor sources" are not subject to New Source Review (NSR) requirements in Rule 17-2.500. See Rule 17-2.500(2)(d)1., F.A.C.

       
       

   18. Sloan's plant is subject to the ambient air quality standards in Rule 17-2.300, F.A.C. This rule prohibits any person from operating any source of air pollution which would cause or contribute to a violation of an ambient air standard. The ambient air quality standard for sulphur dioxide, the main air pollutant to be emitted from the plant, is 260 micrograms per cubic meter (0.1 ppm). Rule 17-2.300(3)(a), F.A.C.

       
       

   19. As indicated in the findings of fact, the applicant has provided reasonable assurance that the Sloan facility will not cause or contribute to a violation of ambient air quality standards for sulphur dioxide or other ambient air quality standards.

       
       

   20. Although the Sloan asphalt plant is subject to the EPA standards addressed in paragraph 3, above, Sloan is still responsible for complying with the requirements for "Unconfined Emissions of Particulate Matter" in Rule 17- 2.610(3). The permit conditions imposed on the Sloan facility require compliance with the provisions of this rule.

       
       

   21. Finally, Sloan's plant is subject to the "General Pollution Emission Limiting Standards" of Rule 17-2.620, F.A.C. There is no evidence that the plant would violate these requirements (organic vapor emission control and control of objectionable odors).

       
       

   22. Brevard County contends that Sloan's permit application must be denied even if the specific air pollution criteria in Chapter 17-2, F.A.C. are met.

       The County contends that Sloan must provide further reasonable assurances that the plant will not cause "air pollution" or "pollution", defined in the rule and statutes as the presence of pollutants in the air which may be "harmful or injurious to human health or welfare, animal or plant life, or property, or

       which unreasonably interfere with the enjoyment of life or property, including outdoor recreation." Section 403.031(7), F.S.; Rule 17-2.100(10), F.A.C.

       
       

   23. When setting the ambient air quality standards for the state, DER must interpret and further define "air pollution" for certain substances. Rule 17- 2.300(1), F.A.C. introduces the state's air quality ambient air standards with the following statement:

       
       

       Known or anticipated adverse effects on human health or welfare are produced by the presence in the atmosphere of specific air pollutants in excess of certain concentrations. It is therefore established that maximum limiting levels of pollutants existing in the ambient air, or ambient air quality standards, are necessary to protect human health and public welfare.

       
       

   24. If a permit applicant provides reasonable assurances that it will meet these ambient air quality standards, it therefore must be assumed the human, health and public welfare will be protected as to those specific parameters. A third party petitioner cannot challenge the validity of those adopted standards in a section 120.57 permit proceeding such as this. Challenges of existing rules are considered in separate proceedings pursuant to section 120.56, F.S.

RECOMMENDATION

Based on the foregoing, it is hereby, recommended that the Department grant Sloan's application to amend its operating permit for its asphalt plant (Permit No. 167794) with the change in permit conditions as noticed by the Department (Sloan Ex. #27), and with the condition, as stipulated, that the stack for air emissions from the facility will be 42.5 feet in height above ground level.

RECOMMENDED this 22nd day of June, 1992, in Tallahassee, Leon County, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1992.

COPIES FURNISHED:

Petitioners #92-1801

Thomas Lanham

Asst. County Attorney

Brevard County Attorney's Office Building C, Suite 346

2725 St. Johns Street Melbourne, FL 32940

#92-1802

Joseph & Katherine Tidwell 4000 Delespine Road

Cocoa, FL 32927

#92-1803

Carol L. Harris 6040 Gilson Avenue

Cocoa, FL 32927

#92-1804

Harry S. Rice

931 Galleon Street

Cocoa, FL 32927

#92-1805

Joseph F. DeBarry 950 Galleon Street

Cocoa, FL 32927

#92-1806, 92-1807, 92-1813

(Counsel for Port St. John Homeowners Assn., Jessie Fleming, & Don L. Williams)

F. Michael Driscoll, Esquire 1530 S. Federal Highway Rockledge, FL 32955

#92-1808

Bea Polk

101 River Park Blvd. Titusville, FL 32780

#92-1809

Russell Harris 6040 Gilson Avenue

Cocoa, FL 32927

#92-1811

Opal Hall

7655 South U.S. 1 - Lot 17

Titusville, FL 32780

#92-1812

John Ferguson 7020 Song Drive

Cocoa, FL 32927

#92-1814

First Baptist Church of Port St. John Joseph E. Tidwell

4000 Delespine Road

Cocoa, FL 32927

#92-1815

David & Rhonda Tidwell 4530 Robert Street

Cocoa, FL 32927

#92-1816

Felicia Cardone, et al. 7230 N. U.S. Hwy. 1, #106

Cocoa, FL 32927

#92-2471

James M. Shellenberger, et al. Sunrise Village Condominium 7040 N. U.S. Hwy. 1, Unit #101

Cocoa, FL 32927

Respondents

(for Sloan Construction Company, Inc.)

F. Alan Cummings, Esquire Michael Riley, Esquire

P.O. Box 589 Tallahassee, FL 32302

(for DER)

Douglas H. MacLaughlin, Esquire DER-Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

Carol Browner, Secretary

DER-Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400

Daniel H. Thompson, General Counsel DER-Twin Towers Office Building 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 10 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.

Docket for Case No: 92-001801

Orders for Case No: 92-001801