STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORTH FLORIDA SHIPYARD, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 92-2822

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on July 22, 1992, in Jacksonville, Florida.

APPEARANCES

For Petitioner: John B. Shiffert

North Florida Shipyard, Inc. Commodores Pont Administrative Office

Post Office Box 3863 Jacksonville, Florida 32206

For Respondent: Jefferson M. Braswell

Assistant General Counsel

State of Florida, Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES

Whether Specific Condition #9 may be imposed on Permit No. A016-126149 issued by the Respondent, the Department of Environmental Regulation, to the Petitioner, North Florida Shipyard, Inc.

PRELIMINARY STATEMENT

The Petitioner, North Florida Shipyard, Inc. (hereinafter referred to as "NFS"), filed an application with the Respondent, the Department of Environmental Regulation (hereinafter referred to as the "Department"), for a renewed operations permits. On March 18, 1992, the Department issued a Notice of Permit Issuance informing NFS of its intent to issue the requested permit. The Department also informed NFS that the permit was being issued subject to several conditions. By letter dated March 31, 1992, NFS requested a formal

administrative hearing to challenge several of the conditions the Department indicated it intended to impose.

On May 7, 1992, the Department filed NFS' request for hearing with the Division of Administrative Hearings with a Request for Assignment of Hearing Officer and Notice of Preservation of Record. The Department requested that the Division of Administrative Hearing designate a Hearing Officer to conduct a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes.

The matter was assigned to the undersigned.

At the final hearing NFS presented the testimony of John B. Shiffert. No exhibits were offered by NFS. The Department called no witnesses. The Department offered one exhibit, which was accepted into evidence.

The Department has filed a proposed recommended order containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto. NFS did not file a proposed recommended order.

FINDINGS OF FACT

1. NFS filed an application with the Department for a renewed operations permit, Permit No. A016-126149.

   
   

2. The Department entered a Notice of Permit Issuance indicating its intent to grant NFS' permit application. The Department, however, informed NFS that it was imposing several specific conditions on the permit being issued to NFS.

   
   

3. NFS requested a formal administrative hearing to contest the imposition of several of the specific conditions it had been informed the Department intended to impose.

   
   

4. At the commencement of the final hearing, the parties represented that they had resolved their dispute concerning all of the specific conditions at issue except one. The parties represented that the only remaining condition imposed by the Department which was still at issue hearing was specific condition number 9.

   
   

5. Pursuant to specific condition number 9, NFS was required to comply with the requirements of Rule 17-2.650(2)(c)11.b.(i), Florida Administrative Code. Rule 17-2.650(2)(c)11.b.(i), Florida Administrative Code, requires the following:

   
   

   1. No owner or operator of a source governed by Rule 17-2.650(2)(c)11., F.A.C., shall cause, permit, or allow any visible emissions (five percent opacity) from such source(s) except that at the point where material is being discharged to the hold of a ship from a conveyor system. When the conveyor and/or hatch covering is moved, an opacity of 10 percent will be allowed.

6. NFS has not filed a challenge pursuant to Section 120.56, Florida Statutes, to the requirements of Rule 17-2.650(2)(c)11.b.(i), Florida Administrative Code.

   
   

7. NFS failed to offer any proof that Rule 17-2.650(2)(c)11.b.(i), Florida Administrative Code, and the rule's 5% opacity limit does not apply to it. NFS suggested that it "could not live with" the 5% opacity requirement.

   
   

8. Rule 17-2.650(2)(c)11.b.(i), Florida Administrative Code, does contain an exemption from the 5% opacity requirement of the rule. NFS did not, however, offer any proof that it qualifies for any exemption from the 5% opacity requirement.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1991).

   
   

10. The Department is given authority to permit certain activities in the State of Florida pursuant to Chapter 407, Florida Statutes. In order to carry out its duties under Chapter 407, Florida Statutes, the Department has promulgated Chapter 17, Florida Administrative Code.

    
    

11. Pursuant to the Department's authority under Chapter 407, Florida Statutes, and Chapter 17, Florida Administrative Code, the Department approved a permit application, with certain conditions. NFS, in changing one of those conditions, had the burden of proving that the Department's imposition of the 5% opacity condition was inconsistent with Florida law. See, Graham v. Estuary Properties, 399 So.2d 1374 (Fla. 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). NFS failed to meet its burden.

    
    

12. NFS admitted that the 5% opacity requirement is a requirement of the Department's rules. NFS offered no proof to support a finding that it was not subject to the 5% requirement or that it qualified for any exemption for the requirement.

    
    

13. NFS has not filed a challenge pursuant to Section 120.56, Florida Statutes, to the 5% requirement of Rule 17-2.650(2)(c)11.b.(i), Florida Administrative Code. The rule is presumed valid and must be complied with by the Department.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order dismissing North

Florida Shipyard, Inc.'s challenge to the Department's Notice of Permit

Issuance.

DONE and ENTERED this 24th day of August, 1992, in Tallahassee, Florida.

LARRY J. SARTIN

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 24th day of August, 1992.

APPENDIX

Case Number 92-2822

The Department has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Department's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 Hereby accepted.

2 4-5

3 5.

4 7-8.

5 8.

COPIES FURNISHED:

North Florida Shipyard, Inc.

Commodores Point - Administrative Office Attn: John B. Shiffert

Post Office Box 3863 Jacksonville, Florida 32206

Jefferson M. Braswell Assistant General Counsel

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Daniel H. Thompson General Counsel

State of Florida Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Carol Browner, Secretary

State of Florida Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 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: 92-002822

Orders for Case No: 92-002822