STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTH PINELLAS SENIOR )

CITIZEN'S CLUB, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 93-3440

)

BAYFRONT MEDICAL CENTER and ) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on September 29, 1993, at St. Petersburg, Florida.

APPEARANCES

For Petitioner: Adrian W. Helm, Esquire

925 14th Avenue North

St. Petersburg, Florida 33712

For Respondent, Daniel N. Burton, Esquire Bayfront: Thomas K. Maurer, Esquire

Terri L. Gillis-Tucker, Esquire Foley and Lardner

111 North Orange Avenue, Suite 1800 Orlando, Florida 32801

For Respondent, W. Douglas Beason, Esquire

DEP: Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUE

Whether Bayfront Medical Center should be issued an operation permit to operate a biological waste incinerator.

PRELIMINARY STATEMENT

By Petition for Administrative Hearing dated June 3, 1993, South Pinellas Senior Citizen's Club, Inc., Petitioner, challenges the Notice of Intent To Issue a permit to Bayfront Medical Center (Bayfront) to operate a biological waste incinerator at Fifth Avenue South and Eighth Street, St. Petersburg, Florida. As grounds therefore, it is alleged that Bayfront failed to commence construction of the facility before the moratorium on construction of biological

waste incinerators became effective; that the proposed permit contains conditions tailored to bring the incinerator into compliance with its own testing failures instead of performing to conditions in the construction permit; and the proposed operation permit contains a condition for its automatic modification in the event the incinerator fails to perform according to the permit's conditions.

The moratorium issue was first raised when South Pinellas Senior Citizen's Club challenged the Department of Environmental Protection's (DEP's) Notice of Intent to extend Bayfront's construction permit until March 7, 1993, to allow Bayfront to gather additional operation data. Before that challenge could come to hearing, March 7, 1993, passed. This Hearing Officer suggested, and the parties agreed, that there would be another point of entry for Petitioner when the DEP noticed the intent to issue a permit to Bayfront to operate this incinerator and that all issues properly raised on the extension of the construction permit could be raised at this hearing. The only issue in the construction permit that was not settled in the consent agreement leading to the granting to Bayfront of the construction permit was whether the construction was barred by the moratorium which became effective March 21, 1992. This was so because the statute imposing the moratorium was passed after the settlement agreement had been reached.

At the hearing Bayfront and DEP called one joint witness, Petitioner called eight witnesses, Respondents' exhibits 1 through 5 were admitted, Petitioner's exhibits P1-P4 (affidavits of public witnesses), P6-P12 and P15-P18 were admitted into evidence while exhibits P5 and P14 were marked for identification but not admitted into evidence. Exhibits P1-P4 were not submitted.

Proposed findings have been timely submitted by Bayfront only. Those proposed findings are accepted. Having fully considered all evidence presented the following is submitted.

FINDINGS OF FACT

1. Bayfront commenced construction of the biological waste incinerator here at issue prior to March 21, 1992, the effective date of the moratorium on construction of biological waste incinerators and was exempt from that moratorium. An inspection of the premises on April 9, 1992, (exhibit 5) showed substantial work had been accomplished and the inspector concluded, and DEP's legal counsel concurred, that in order to have achieved the construction progress shown on April 9, 1992, the work had to have been commenced prior to March 21, 1992. Further, a building permit to renovate the building into which the waste incinerator was placed was issued November 12, 1991, (exhibit 7) and a building permit to install a waste incinerator was issued March 4, 1992, (exhibit 6). No contradictory evidence was submitted by Petitioner.

   
   

2. Respondent's witnesses testified without contradiction that Bayfront's application for an operation permit was complete in all respects, including certification by a professional engineer; that all test results showed the emissions into the atmosphere were within the prescribed standards; that certain conditions contained in the construction permit as a result of the settlement agreement resolving the challenge to the issuance of the construction permit are contained in the operation permit; that those conditions exceed the conditions required by the rules for incinerators; and that Bayfront affirmatively provided the Department with reasonable assurance based on plans, test results, installation of pollution control equipment, or other information that the

   operation of the incinerator will not discharge, emit, or cause pollution in contravention of DEP's standards as contained in Rule 17-4.070(1), Florida Administrative Code. This testimony is accepted as factual.

   
   

3. The draft permit authorizes Bayfront to burn a maximum of fifteen hundred pounds per hour of waste. Each time a test run is conducted to check the emissions, the pounds of waste burned per hour during the test establishes an upper limit on the rate of burning waste. As explained by James L. McDonald, the engineer processing air pollution applications for the Department at Transcript p. 50-51:

   
   

   The construction application asked for a permit at fifteen hundred pounds per hour. So the construction permit is -- the condition that we would want, the Department would normally want the test within ten percent of that fifteen hundred pounds an hour in order to go ahead and issue, if its in total compliance, to issue an operating permit at fifteen hundred pounds.

   Since the test came in at a reduced rate, below the ten percent, then that's why in the operating permit condition twenty-one says you're limited to the rate that we're, the test was conducted. [sic]

   Now, also, its interesting to note that in their test, if you look at their runs two and three -- because there are rules that say the Department could accept two runs out of three if a condition occurred that was out of their control -- if your average runs two and three, they would average within ten percent of fifteen hundred.

   So, as a permit processor, it even gave me some reasonable assurance that they could probably comply with the fifteen hundred. But, since the test of all three runs came in as an average of twelve fifty-one, then the

   operating permit included that twelve fiftyone. And like the real world out there, just like power plants, when it comes time for their annual testing, if they are at half speed, their business is down, it allows them to

   test at half speed. We won't require them to go up to full speed. They can test at half speed. But then they are limited there. And if they go above it at a later date they would have to retest.

   So they can work their way back up to where the Department has reasonable assurance that the upper limit of fifteen hundred pounds -- that's where later in condition twenty-one of the operating permit it says but in no case shall the maximum permit or burning rate of fifteen hundred pounds per hour be exceeded.

4. Petitioner's second two grounds for challenging the issuance of the operation permit was answered by McDonald's testimony, above quoted, and this evidence was not rebutted by Petitioner.

   
   

5. The primary thrust of the evidence presented by Petitioner was that Bayfront had somehow misled the City of St. Petersburg regarding the operation of the incinerator and had not complied with all of the City's requirements in other respects, ergo, Bayfront could not be relied on to comply with the conditions in the operation permit. This evidence is irrelevant to the determination of whether or not the operation of the incinerator complies with all of the Department rules.

   
   

6. The conditions of the operating permit require Bayfront to submit periodic reports to the Department from which the Department can determine whether the conditions in the permit are being complied with. Furthermore, the Department requires the permittee to notify the Pinellas County Department of Environmental Management at least fifteen days prior to the date on which each formal compliance test is to begin (Permit Condition No. 22) to allow them to witness the test, if desired.

   
   

7. The construction permit, complying with the settlement agreement, required Bayfront to adhere to more frequent testing and more extensive testing then is required by the rules for operating biological waste incinerators. All of the tests and reports submitted by Bayfront on the operation of this incinerator met all of the requirements in the construction permit and the draft operation permit.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. The Department's regulatory jurisdiction for this facility is provided in Section 403.087, Florida Statutes, and Chapters 17-200 through 17-297 and 17- 4, Florida Administrative Code.

   
   

10. An applicant for a permit from DEP carries the ultimate burden of persuasion of entitlement throughout the proceedings. However, once the applicant has presented sufficient evidence to establish that the applicable standards have been met, the burden of going forward with the evidence shifts to any petitioner challenging the issuance of the permit. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

11. The sole issue in these proceedings is the issuance of an operation permit for a biological waste incinerator. In these proceedings the Department has neither the power nor the authority to consider alleged non-compliance with local zoning ordinances, land use restrictions, or permits. The only standards applicable are those standards established for the operation of incinerators by statute and rules of the Department.

    
    

12. Bayfront has provided reasonable assurances that these standards have been met and will be met during future operation of the incinerator.

    
    

13. Petitioner's argument that the construction of this facility is barred by the moratorium established in Chapter 92-31, Laws of Florida, which became effective March 21, 1992, is without merit. The evidence is clear and unequivocable that construction, as defined in DEP Rule 17-296(43), Florida

Administrative Code, commenced well before the March 21, 1992, deadline and the moratorium has no retrospective application. American Motors Corp. v.

Abrahantes, 474 So.2d 272 (Fla. 3rd DCA 1985).

From the foregoing it is concluded that Bayfront Medical Center has provided reasonable assurances that the operation of the biological waste incinerator in St. Petersburg, Florida, will be in compliance with all statutory and rule requirements and that the operation permit should issue.

RECOMMENDATION

It is RECOMMENDED that Bayfront Medical Center be issued Permit No. AO52- 224337 to operate a biological waste incinerator at Fifth Avenue South and Eighth Street, St. Petersburg, Florida.

DONE AND ENTERED this 16th day of November 1993 in Tallahassee, Leon County, Florida.

K. N. AYERS 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 16th day of November 1993.

COPIES FURNISHED:

Adrian W. Helm, Esquire 925 14th Avenue North

St. Petersburg, Florida 33712

Daniel N. Burton, Esquire Thomas K. Maurer, Esquire

Terri L. Gillis-Tucker, Esquire Foley and Lardner

111 North Orange Avenue, Suite 1800 Orlando, Florida 32801

W. Douglas Beason, Esquire

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Kenneth Plante, General Counsel Department of Environmental Protection 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 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.

Docket for Case No: 93-003440

Orders for Case No: 93-003440