STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

A notice was provided and on March 6 through 9, 1995, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes. The hearing location was Green Cove Springs, Florida. The Hearing Officer was Charles C. Adams.

APPEARANCES

For Petitioners: Julie Hellmuth, pro se

1205 Orange Circle North Orange Park, Florida 32073

Stewart Harris, Esquire Priscilla N. Harris, Esquire Post Office Box 702

1752 County Road 315

Green Cove Springs, Florida 32043

For Florida Solite Thomas K. Maurer, Esquire Company (Solite): Foley & Lardner

Post Office Box 2193

111 N. Orange Avenue, Suite 1800 Orlando, Florida 32801

John Kopelousos, Esquire Post Office Box 562

Orange Park, Florida 32067-0562

John Jewett

Florida Solite Company Post Office Box 27211 Richmond, Virginia 23261

For Department Jefferson M. Braswell, Esquire of Environmental Douglas Beason, Esquire Protection (DEP): Office of General Counsel

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES

Is Solite entitled to an air source permit for a stationary installation that would allow Solite to install a baghouse, a top load pulse-jet dust collector (or equivalent); a heat exchanger; to modify the duct systems for existing kilns Nos. 1, 1A, and 5, thus allowing any kiln to discharge through the proposed baghouse No. 1 or an existing baghouse No. 5; to connect kilns Nos.

1 and 1A to an existing pug mill filter receiver and clinker hopper filter receiver; to install a pneumatic system to connect proposed baghouse No. 1 to an existing lime and clay fines system and to install other associated equipment?

This permit would also allow the temporary operation of baghouse No. 1.

PRELIMINARY STATEMENT

On June 10, 1994, the Department issued its notice of intent to issue the aforementioned air source permit and provided Solite with a draft permit. This decision was opposed by the Petitioner's through petitions filed with the Department. To resolve the dispute between Petitioner's, Solite and the Department, the case was referred to the Division of Administrative Hearings for conduct of a Section 120.57(1), Florida Statutes hearing. Upon receipt, the petitions were consolidated for purposes of hearing and further disposition.

At the formal hearing Solite presented the testimony of Dr. John B. Koogler and offered thirteen (13) exhibits which were admitted into evidence. The Department presented the testimony of Willard Hanks and offered one (1) exhibit which was admitted into evidence. In addition the Department adopted the testimony of Dr. Koogler as its own. Petitioners presented the testimony of John Kuiken, Nelson Hellmuth, Dr. Raed Assar, Terry Doonan, Joseph Tessitore, P.E., Alberto Galliano, Clair Fancy and Dr. David Neal Boehnke. Petitioners' exhibits one (1) through seventeen (17) were offered as evidence. Those exhibits were admitted with the exception that exhibits eleven (11) through sixteen (16) are not admitted following the opportunity for the hearing officer to review those exhibits and for the parties to submit written argument in proposed recommended orders addressing their admission.

Public testimony was also received in which the public was allowed the opportunity to speak in favor of and in opposition to the request for permit. Exhibits offered by the public were admitted.

The hearing transcript was filed on May 3, 1995. Proposed recommended orders were filed by Petitioners, excepting Julie Hellmuth, Solite and the Department. The filing date was May 31, 1995. Consequently, the requirement that the recommended order be entered within thirty (30) days from the date on which the transcript was filed was waived. See Rule 60Q-2.031, Florida Administrative Code. The fact finding contained in the proposed recommended orders is discussed in an Appendix to the recommended order.

FINDINGS OF FACT

1. Solite is a light weight aggregate mining and manufacturing facility located in Clay County, Florida. The mining operation extracts clay from quarries on site. That clay is then stored on site for use in the manufacturing.

   
   

2. The Solite facility began its operations in Clay County in 1959.

   
   

3. To convert the clay into a product, it is introduced into a rotary light weight aggregate kiln. There it is heated to a temperature of 1,900 to 2,100 degrees Fahrenheit. Once the raw feed has been subjected to the heat in the rotary kiln, it becomes light weight aggregate, a product that is used in the construction industry.

   
   

4. Before being introduced into the kiln the raw feed clay is stored in a covered shed. When the kiln is operating clay is taken from the shed by front end loader and transported to a pug mill. The clay exits the pug mill onto a conveyor which has a weigh scale. From there, the raw feed clay is introduced into the kiln, at what is referred to as the cold end of the kiln.

5. When a kiln is in operation the clay rolls from the cold end of the kiln through the other end during which transport the raw clay is heated. The clay is discharged from the kiln into a product cooler. From the product cooler it is transferred by a front end loader to a crushing, screening and storage area.

   
   

6. Solite has three (3) kilns at the facility. They are kilns 1, 1A and

   5.

   
   

7. The kilns at the Solite facility are eight to nine feet in diameter and

   130 to 160 feet long.

   
   

8. When the kilns are in operation, they rotate at a speed of one to two revolutions per minute in producing the product.

   
   

9. The fuel sources for heating the kilns on site are constituted of coal, number (2) fuel oil, propane or liquid burnable material (LBM). The LBM fuel source contains a variety of combustible waste materials. Among those waste materials are certain hazardous wastes.

   
   

10. In 1973 Solite began to burn material which is now classified as hazardous waste.

    
    

11. The combustion process that occurs in manufacturing the light weight aggregate creates gases that run countercurrent to the raw clay feed. The combustion gases are discharged at the same end of the kiln in which the raw clay had been introduced.

    
    

12. In managing the hazardous waste used at the facility, Solite has installed two systems to treat the combustion gases before those gases are released into the atmosphere.

    
    

13. Kiln No. 5 employs baghouse technology for air pollution control, a treatment system consisting of two compartments with approximately 960 bags.

    
    

14. By contrast, the air pollution control devises for kilns 1 and 1A are individual wet scrubber systems for each kiln.

    
    

15. As stated, the proposed permit would allow Solite to add an additional baghouse. Under this arrangement two of the existing kilns could be used simultaneously, with the existing baghouse No. 5 and the proposed baghouse No. 1 serving as air pollution control devices.

    
    

16. The existing baghouse associated with kiln 5 has a lime injection system as part of the air pollution control system.

    
    

17. The proposed permit contemplates a lime injection system as part of the air pollution control to be employed with the additional baghouse.

    
    

18. The wet scrubbers associated with kilns 1 and 1A are designed to control particulate matter in emissions. The scrubbers are not designed to respond to other pollutants. To that end the wet scrubber with kiln 1A could meet applicable standards for particulate matter. The wet scrubber for kiln 1 could possibly meet the applicable standard for particulate matter if more spray nozzles were added to the scrubber.

19. The present inability for kiln 1 to meet the applicable standard for particulate matter control is not significant because Solite may only operate kiln 1 or 1A separately.

    
    

20. The water that is employed in the wet scrubbers becomes hazardous waste once it has been utilized in the attempt to respond to the pollutants in the air emissions generated by the respective kiln.

    
    

21. In the past that water containing hazardous waste was introduced into a settling pond. Solite may no longer discharge that water into the settling pond in accordance with a regulatory decision that is not the subject for consideration in this case. Solite has made no other arrangements for disposing of the waste water.

    
    

22. The proposed permit in this case would allow Solite to use the existing scrubbers to control emissions from kilns 1 and 1A in the instance where fuels were used in the manufacturing that were other than LBM with hazardous waste.

    
    

23. At present kilns 1 and 1A have necessary permits for their use with the wet scrubber air pollution control devices, subject to the limitations that have been described.

    
    

24. Under the terms set forth in the proposed permit the future use of LBM with hazardous waste in the manufacturing in kilns 1 and 1A would be only allowed when baghouse technology was employed as an air pollution control device.

    
    

25. The baghouse air pollution control technology does not use water. Therefore it does not create a circumstance in which the treatment water contains hazardous waste.

    
    

26. In that respect, kiln 1A ceased burning LBM with hazardous waste on December 1, 1990. That practice was concluded at kiln 1 on June 6, 1991.

    
    

27. Kiln 5 ceased burning LBM with hazardous waste on August 19, 1991, but resumed burning LBM with hazardous waste on December 14, 1993 after the baghouse for that kiln was installed with its lime injection system.

    
    

28. The baghouse proposed to be installed under the terms of the permit application is almost identical to the baghouse and associated equipment that were recently installed to operate with kiln 5. The baghouse and associated equipment with kiln 5 has achieved full compliance with all applicable state and federal air regulations as evidenced through compliance tests.

    
    

29. As noted, with the baghouse at kiln 5 and the proposed baghouse for kilns 1 and 1A, the combustion gases are subject to treatment by lime. In that process the lime is introduced into the air emissions by pneumatic transfer.

    
    

30. An alternative means for lime injection is established. That alternative would allow the lime to be introduced at the point where the fuel is fired at the kiln.

    
    

31. Lime injection is used to control acid gases, either sulfur dioxide or hydrogen chloride.

32. The combustion gases are also cooled by passing them through a heat exchanger that brings the temperature down from the exit temperature from the kiln temperature of 900 degrees Fahrenheit to approximately 400 degrees Fahrenheit. The cooled gases then enter the baghouse which is designed to control the particulate matter in the emissions. From there the remaining gases are discharged into the atmosphere.

    
    

33. It takes four to five seconds for the combustion gases to go from the kiln through the heat exchanger proposed by this project.

    
    

34. The particulate matter is in the form of dust that is collected in the baghouse. That dust is removed through a screw conveyor and pneumatically transferred to a kiln storage bin. The air involved in that pneumatic transfer is discharged through a small baghouse.

    
    

35. The clay fines in the kilns bin are reintroduced into the pug mill, conveyed and mixed with raw clay before the clay fines are reintroduced into the manufacturing process in the kiln. The clay fines may also be transported from the kiln storage bin to the crusher and introduced into the finishing process for the product.

    
    

36. On November 30, 1992, Solite made application for the permit at issue. Solite sought permission to modify the existing facility by constructing duct work that would connect kilns 1 and 1A to the kiln 5 baghouse, to construct and temporarily operate the additional baghouse and to connect kilns 1 and 1A to the existing pug mill filter receiver and clinker hopper filter (the filter receiver associated with the crusher). The connection of kilns 1 and 1A to the existing pug mill filter receiver and clinker hopper filter is to control the particulate matter that is captured in the baghouses.

    
    

37. The existing pug mill filter receiver and clinker hopper filter presently serve kiln 5.

    
    

38. If allowed the opportunity to construct a second baghouse, Solite contemplates using the second baghouse with kiln 1 or 1A.

    
    

39. The arrangement contemplated by the proposed permit would allow kiln 1 or 1A to operate simultaneously with kiln 5.

    
    

40. The bags in the proposed baghouse would be about six inches in diameter and twelve feet long. As the particulate matter in the air emissions enters the top of the baghouse it passes through these bags. That particulate or dust is collected on the surface of the bags, while the air that has gone through the filtration process exits through the stack to the baghouse and into the atmosphere.

    
    

41. The dust that collects on the bags forms a "filter cake."

    
    

42. Once a certain atmospheric pressure is achieved in the baghouse a predetermined jet of air is blasted down the bags blowing the filter cakes away from the bags. This allows the cakes to fall down into the bottom of the baghouse where a screw-auger moves that material to one end of the baghouse hopper. From there it is removed through an air lock and pneumatically transferred to the clay fines bin.

    
    

43. The proposed baghouse would utilize a continuous monitor that is installed with the baghouse to measure the particulate matter concentration in

    the clean air section of the baghouse. Should a hole appear in one of the bags, that would cause a increase in the particulate concentration. Then a signal is generated by a broken bag detector which alerts the operator that a problem exists and the bag needs to be replaced.

    
    

44. There are access doors into the baghouse that allow the operator to enter the baghouse to inspect the bags and replace them as needed.

    
    

45. When the Department reviewed the permit application, it issued a notice of intent to grant a permit and a proposed permit. Petitioner's timely protested the intent to grant. Before hearing the Department issued two amendments to the proposed permit. It is the second amendment which forms the basis for proposed agency action. Solite does not oppose the terms set forth in the second amendment. Petitioners do oppose the grant of the second amended permit.

    
    

46. By the actions which the parties have taken in this case, it would appear that they have conceded the standing for Petitioners to bring the challenge to the grant of a permit.

    
    

47. The proposed project would not increase the capacity for the manufacture of light weight aggregate products. The amount of fuel used in that manufacturing and the hours of operation when compared to opportunities presently permitted would not be increased.

    
    

48. The maximum rate of feed of authorized LBM that could be incinerated in kilns 1 and 1A does not increase when comparing the application to the existing permits for kilns 1 and 1A with wet scrubbers.

    
    

49. The removal efficiencies with the proposed baghouse exceed or are equal to those with the wet scrubber systems when examining control of emissions of air pollutants that must be addressed.

    
    

50. Clay County is an attainment area for all air pollutants.

    
    

51. In considering the application, the Department determined this to be a construction request with a right to temporarily operate the equipment to check its performance. The Department considered the permit request to be one related to a stationary installation which will reasonably be expected to be a source of air pollution. See Section 403.087(1), Florida Statutes. In the proposed permit for baghouse No. 1 the Department intends to impose certain restrictions on emissions that were specified in the permit issued for the baghouse No. 5.

    
    

52. The Department in its proposed permit employs a process similar to that set forth in the January 23, 1993 settlement agreement related to kiln No. 5.

    
    

53. In determining the acceptability of the proposal the Department looked to Rule 62-730.181, Florida Administrative Code which speaks to standards for the management of specific hazardous wastes and specific types of hazardous waste management facilities. In particular the Department utilized that rule in its terms wherein the rule incorporates by reference 40 C.F.R. Part 266, Subpart H, as it is designed to regulate hazardous waste burned in a boiler or industrial furnace.

    
    

54. The regulations in 40 C.F.R. 266, Subpart H, are referred to as the Boiler and Industrial Furnaces regulations (BIF).

55. The Solite kilns are industrial furnaces within the meaning as defined in 40 C.F.R. 266, Subpart H.

    
    

56. The Department in its proposed permit would impose the terms set forth in 40 C.F.R. 266, Subpart H, related to the maximum concentrations of certain constituents in the LBM with hazardous wastes and the air emissions produced by their destruction.

    
    

57. By imposing those requirements the Department is operating independently. It is not through this permit review administering the BIF regulations as set forth in 40 C.F.R. 266, Subpart H under authority from the United Stated Environmental Protection Agency and for the benefit of that federal regulatory agency.

    
    

58. The Department has required that Solite address the combined emissions from metals and other air pollutants for all sources at the facility. By this requirement the Department intends to assure that those emissions do not result in ambient air concentrations that would harm or injure human health or welfare, animal, plant, or aquatic life or property.

    
    

59. To demonstrate those assurances Solite was expected to conduct modeling of the emissions of metals and chlorine which could be emitted from the facility. That modeling was properly done. The requirement for modeling was in accordance with Section 403.161, Florida Statutes. In association with this requirement the Department referred to the BIF regulations at 40 C.F.R. 261.

    
    

60. The proposed permit is considered in accordance with Rule 62-296.320, Florida Administrative Code, related to the control of air pollutants which cause or contribute to an objectionable odor.

    
    

61. The requirements within the proposed permit include the necessity for Solite to establish reasonable precautions to minimize unconfined emissions of particulate matter as described in Rule 62-196.310(3), Florida Administrative Code.

    
    

62. As stated in the proposed permit, if kiln 1 or 1A were in operation using the wet scrubbers they must conform to existing permits associated with kilns 1 and 1A, but those opportunities would only pertain to the instance in which the fuel sources are other than LBM with hazardous waste.

    
    

63. For Solite to use wet scrubbers as pollution control devices for kilns

    1 and 1A in an instance in which LBM with hazardous waste was used for fuel, the treatment efficiency for kiln 1 would have to be improved in the manner described and the treatment water that contained hazardous waste must be disposed of other than by placement in the settling pond.

    
    

64. The existing wet scrubber systems for kilns 1 and 1A are not closed systems which continue to re-circulate the scrub water (a closed scrub water containment system).

    
    

65. There is no proposal to install a scrubber water re-circulation system. If such a system were installed an arrangement would be necessary for periodically taking the scrubber water and disposing of that water off-site. Without a system for containing and re-circulating the scrubber water which contained hazardous waste, and periodic disposal of that scrubber water, Solite may not use kilns 1 and 1A with a scrubber when burning LBM with hazardous

    waste. This is true even though the Solite air emissions control device for kiln 1A using the wet scrubber does meet applicable air emissions standards and the scrubber system permitted with kiln 1 has the possibility to meet air emissions standards. Therefore, if kilns 1 or 1A were used with a baghouse this would create a net increase in air emissions when using LBM with hazardous waste as a fuel source. Such an arrangement would not exceed the theoretical air emissions associated with the wet scrubbers for kilns 1 or 1A when using LBM with hazardous waste that are presently set forth in the existing permits for those kilns. But the proposed permit recognizes the problem with the scrubber systems by limiting the use of the scrubber systems to those occasions in which LBM with hazardous waste is not used as a fuel.

    
    

66. The proposed permit specifically prohibits the use of kiln 1 and 1A simultaneously.

    
    

67. A baghouse or scrubber may only control the emissions from one kiln at a time in accordance with the proposed permit.

    
    

68. The Oldover Corporation or another facility permitted to manage hazardous wastes under various provisions at 40 C.F.R. shall be the supplier of LBM with hazardous wastes.

    
    

69. Under the terms of the proposed permit Solite is responsible for the LBM with hazardous wastes meeting all the requirements in any applicable state, federal and local regulations.

    
    

70. The proposed permit limits the constituents in the LBM with hazardous waste. It does not allow any hazardous waste that is listed for dioxin or derived from the dioxin-listed waste. As set forth in the proposed permit, organic cyanides, sulfide, mercaptans, insecticides, pesticides, herbicides, electroplating waste or radioactive material regulated by the State of Florida, Department of Health and Rehabilitative Services are not allowed to be part of the LBM.

    
    

71. Other limitations are placed on the LBM with hazardous fuel concerning its constituents. They are set forth in proposed condition number 22 to the proposed permit.

    
    

72. In accordance with the proposed permit, prior to submitting an application for an operating permit, which would allow LBM with hazardous waste to be burned, Solite is required to conduct testing at the facility for chlorinated dibenzo-p-dioxin and dibenzofuran, pursuant to a test plan approved by the Department.

    
    

73. The proposed permit addresses test requirements and reports under various provisions set forth in Rule 62-297, Florida Administrative Code.

    
    

74. The proposed permit reminds Solite that:

    
    

    Nothing in this permit shall exempt the permit to you from the requirements of 40 C.F.R. 761, polychlorinated bolychlorinated biophenyls,

    40 C.F.R. 266, Subpart H, hazardous waste burned in boilers and industrial furnaces, and Chapter 62-730, Florida Administrative Code, hazardous waste, or any other requirements outside the purview of the Department's air regulation

    (Chapters 62-296 and 297, Florida Administrative Code). The permittee shall obtain such state and federal permits, when applicable, pursuant

    to any hazardous waste regulation (Rule 62-4.160, Florida Administrative Code).

    
    

75. The proposed permit allows for an extension of the construction permit upon request of the Bureau of Air Regulation within the Department.

    
    

76. The proposed permit makes it incumbent upon Solite to submit an application for an operation permit to the northeast district of the Department at least ninety (90) days prior to the expiration date of the construction permit.

    
    

77. The proposed permit would allow kilns Nos. 1 and 1A to operate 24 hours a day, 7 days a week, 52 weeks a year, but no more than 760 hours during any calendar year, but not simultaneously.

    
    

78. Concerning hazardous wastes in the LBM, procedures for testing those fuels to be used at the Solite facility are set forth in the waste analysis plan in the hazardous waste facility permit for the Oldover Corporation and the waste analysis plan for Solite. Oldover supplies those fuels to Solite.

    
    

79. Under the waste analysis plan the generator of the waste material must complete a waste profile indicating the type of waste and its constituents which the generator proposes to supply to the facility.

    
    

80. Initially Solite evaluates the waste profile to determine if the waste material meets all the necessary requirements for acceptance as a hazardous waste fuel for Solite. If the profile is acceptable, a representative sample is obtained from the waste generator. This sample is analyzed for a comprehensive set of parameters including physical characteristics, metals and organic compounds. If the representative sample indicates that the waste stream is acceptable it is approved and shipments are made to the Oldover facility adjacent to Solite.

    
    

81. Once the waste stream has been approved by Solite and shipments are made, Oldover reviews the manifest associated with each shipment to determine the existence of any prohibitive constituents in the fuel before the fuel is accepted. Oldover tests the wastes for a limited number of parameters to determine whether or not the shipment conforms with the pre-established waste profile. If discrepancies are discovered between the waste profile and testing results the shipment may be rejected if the problems with the shipment cannot be reconciled with the anticipated waste profile.

    
    

82. Comprehensive waste analysis are performed on an annual basis as well as at the initial point at which Solite begins to do business with a waste generator or upon the occasion when there is a significant change to the generator's waste stream.

    
    

83. As it appears, the LBM with hazardous waste obtained from outside generators is generated off-site.

    
    

84. Through this processes Solite has provided reasonable assurance that the use of LBM's with hazardous waste envisioned by the proposed permit will not allow the burning of hazardous waste that is listed for dioxin or derived from the dioxin-listed wastes: FO20, FO21, FO23, FO26 or FO27 as specified in 40

    C.F.R. 261, Subpart H, or organic cyanides sulfites, mercaptans, insecticides, pesticides, herbicides, electroplating waste or radioactive material regulated by the State of Florida, Department of Health and Rehabilitative Services.

    
    

85. Solite has provided reasonable assurance that the LBM with hazardous waste will be properly analyzed to quantify the concentration of any constituent that may reasonably be expected to be in the waste. Those constituents will be identified and quantified, if present. This process of identification and quantification will be at levels detectable by analytical procedures prescribed in EPA method SW-846. That method is the prescribed method for analyzing hazardous LBM under the BIF rules.

    
    

86. As a means to promote reasonable assurances that the proposed project will comply with applicable state and federal emissions standards, emissions from kiln 5 using its baghouse have been tested and the emissions at kiln 5 using the baghouse meet all applicable state and federal emission standards. Given that the proposed baghouse for kilns 1 and 1A will be very similar to the baghouse associated with kiln 5, it is to be expected that the emissions from kilns 1 and 1A using the proposed baghouse would be comparable to the experience with kiln 5 and its baghouse.

    
    

87. Using a baghouse results in significant reductions in the emissions of particulate matter when compared to the experience with wet scrubbers.

    
    

88. The emissions from the proposed project will not exceed emission standards for particulate matter.

    
    

89. The use of the lime injection system with the proposed baghouse will decrease emissions of sulfur dioxide.

    
    

90. The emissions from the proposed project will not exceed standards for sulfur dioxide.

    
    

91. Neither the existing wet scrubber system nor the baghouse system are expected to have any significant impact on nitrogen oxide emissions. Consequently, there will be no significant change in nitrogen oxide emissions associated with the installation of the proposed baghouse.

    
    

92. The emissions from the proposed project will not exceed emission standards for nitrogen oxides.

    
    

93. The proposed baghouse will result in a reduction in the emissions of metals due to the increased efficiency in the removal of particulate matter.

    
    

94. The emissions from the proposed project will not exceed emission standards for metals.

    
    

95. The proposed baghouse will result in a reduction in mercury emissions due to increased efficiencies in the removal of mercury in particulate form.

    
    

96. The proposed baghouse will not cause a change in the emissions of hydrogen chloride when compared to the experience with the wet scrubbers. The levels of hydrogen chloride when using the baghouse as a control device will not exceed any standards. Nor will there be emissions in excess of standards for chlorine gas.

97. The proposed baghouse when contrasted with the experience in the use of wet scrubbers will not change the amount of emissions of organic materials.

    
    

98. The proposed baghouse when contrasted with the wet scrubber system will result in a reduction of the emissions of dioxins and furans.

    
    

99. The proposed project will comply with standards applicable to dioxins and furans by exclusion from the LBM and limiting the inlet temperature to the baghouse. The proposed permit prohibits the facility from accepting any dioxins bearing waste. The fuel is screened to insure that it does not contain dioxin. PCB's in excess of five parts per million are not allowed. This is a means to limit the formation of dioxins and furans from the PCB's. The maximum temperature of gases entering the baghouse is established at 450 degrees Fahrenheit and an automatic shut-off device is required if this temperature is exceeded in order to control the secondary generation of dioxins and furans.

    The inlet temperature to the baghouse is set at 425 degrees.

    
    

100. The modeling that was done to examine emissions of metals and chlorine provided reasonable assurances that the ambient concentrations caused by the impact of these pollutants from this facility will be less than the Department's annual air reference concentrations, as a means to ensure that harm or injury to human health or welfare, animal, plant or aquatic life or property does not occur.

     
     

101. Solite is required by the terms of the proposed permit to have continuous emission monitors for carbon monoxide and hydrocarbons. When the emission standard for carbon monoxide or alternatively hydrocarbons nears the exceedance level, then the automatic waste feed shut-off is activated to assure that the carbon monoxide or, alternatively, hydrocarbon emission standards are not exceeded.

     
     

102. Kiln 5 with its associated baghouse has demonstrated a destruction and removal efficiency for regulated organic pollutants in excess of 99.99 percent. Having similar technology, the proposed permit for a baghouse can be expected to meet the 99.99 percent destruction and removal efficiency for organic pollutants.

     
     

103. The addition of the proposed baghouse with its associated features provides reasonable assurance that the particulate matter standard of 0.08 grains per dry standard cubic foot corrected to seven percent O2 will be met.

     
     

104. As a protection against exceeding emission standards for various pollutants the proposed permit requires that Solite continuously monitor for carbon monoxide, oxygen, baghouse inlet temperature and sulfur dioxide at levels established in the proposed permit.

     
     

105. Furthermore, the proposed permit requires that an automatic shut-off device be installed to maintain established emissions limits for temperature, oxygen or hydrocarbons. Such devices have been installed on the existing kiln 5 with its baghouse.

     
     

106. Efficient combustion can be expected in kilns 1 and 1A based upon residence time for burning, turbulence, temperature and oxygen availability.

     The residence time for the fuels is approximately four seconds. The rotation of the kilns and movement of the clay material ensures adequate turbulence. The temperature of the kiln must be maintained at or above 1,800 degrees Fahrenheit and the fuel feed of LBM with hazardous waste is automatically shut-off if the

     temperature falls below 1,850 degrees. Oxygen levels are to be continuously monitored. The gas flow rates for fuel introduced into the kiln may not vary significantly. These arrangements are contained in the proposed permit.

     
     

107. The re-introduction of clay fines or dust into the kiln to be incorporated into the product has been taken into account in establishing estimates of emissions for kilns 1 and 1A. That phenomenon has been measured in emissions for kiln 5. In using the dust Solite will not create conditions which violate standards for emissions.

     
     

108. To support these findings all experts who testified at the hearing agreed that the proposed project will meet all applicable rules and emission standards. Solite has established reasonable assurances concerning those standards.

     
     

109. The Solite application was sealed by a professional engineer, Dr. John Koogler, who was among those experts mentioned.

     
     

110. The Solite facility uses an industrial furnace which is similar in design to furnaces regulated by the Environmental Protection Agency in its hazardous waste regulatory program. Nothing about the facility is extraordinary, thus requiring a more rigorous regulatory response to this facility which uses LBM with hazardous waste in kiln No. 5 and proposes to do so through the project under consideration.

     
     

111. It was not shown that the Department must impose its "Air toxics" permitting strategy for controlling toxic emissions from stationary sources at levels which will not endanger public health in order to adequately consider the proposed project. The "Air toxics" permitting strategy is a non-rule policy.

     
     

112. Although not specifically required by rule or standard Solite performed additional modeling concerning the emissions of organics from the facility with the advent of the use of the proposed baghouse. The modeling indicated that there would not be an exceedance of the no threat levels established in the state air toxics strategy. Similarly, although not required, Solite conducted additional modeling of dioxins emissions which indicated that there would be no significant risk posed as a result of the proposed project.

     
     

113. Solite has qualified for interim status under the United States Environmental Protection Agency (EPA) regulations to burn hazardous waste at its facility. Solite has filed EPA required precompliance certification for all three kilns and certification of compliance for kiln 5. Solite has obtained an extension from EPA for filing their certification of compliance for kilns 1 and 1A. In addition Solite has submitted an application for hazardous facility permit to EPA and this application is currently under review by EPA.

     
     

114. In reviewing the permit application past violations of statutes and rules were considered by the Department. This was done to determine whether Solite had provided reasonable assurances that the Department standards in application to the proposed project would be met. The Department correctly decided that Solite's past violations did not justify denial of the permit. Those violations were not severe and Solite corrected the problems. Furthermore, the proposed project would improve air pollution control to the extent that it reduces or eliminates problems that led to the previous violations.

     CONCLUSIONS OF LAW

     
     

115. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in this action in accordance with Section 120.57(1), Florida Statutes.

     
     

116. Petitioner's have standing to bring this petition in opposition to the grant of an air source permit to Solite. See Agrico Chemical Company v. Dept. of Environmental Regulation, 46 So. 2d 478 (Fla. 2d DCA 1981).

     
     

117. Petitioner's timely challenged the Department's intent to grant the air source permit.

     
     

118. The permit would allow Solite to construct a baghouse and duct work and other ancillary features that have been previously discussed. The permit would also allow Solite to temporarily operate the new baghouse.

     
     

119. The case proceeded on the basis that Solite offered proof which formed a prima facie basis for granting the permit. The Department followed that presentation with proof to support the grant subject to conditions set forth in the proposed seconded amended permit. Petitioner's then proceeded to challenge the prima facie showing that reasonable assurances have been provided that applicable statutes and rules are complied with entitling Solite to the construction permit. By their proof the Petitioner's made specific challenges to the grant of the permit attempting to show that reasonable assurances had not been provided. Solite offered rebuttal to that proof. See McDonald v. Dept. of Banking and Finance, 346 So. 2d 569 (Fla. 1st DCA 1977) and Dept. of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

     
     

120. The Department considered the application in accordance with statutory provisions and Department rules which it had concluded properly addressed the air emissions associated with the construction activity. In this case the permit authority was associated with Chapter 403, Florida Statutes; Chapter 62-4, Florida Administrative Code; Chapter 62-103, Florida Administrative Code; Chapter 62-210, Florida Administrative Code; Chapter 62- 212, Florida Administrative Code; Chapter 62-275, Florida Administrative Code; Chapter 62-296, Florida Administrative Code; Chapter 62-297, Florida Administrative Code; Chapter 62-730, Florida Administrative Code and 40 C.F.R. 266.

     
     

121. This permit application is considered in accordance with Section 403.087, Florida Statutes in that the Solite facility is a stationary installation which releases air pollution.

     
     

122. In addition to specific rules designed to address air pollution created by the proposed project, the Department used hazardous waste management regulations in 40 C.F.R. 266 pertaining to expected constituents in the stack emissions from the proposed baghouse. The Department's purpose in that choice was not to pass upon Solite's entitlement to a hazardous waste permit (as under the regulatory program addressed in Section 403.722, Florida Statutes, and Sections 62-730.220 and 62-730.231, Florida Administrative Code).

     
     

123. The authority for the Department to use 40 C.F.R. 266 is set forth in 62-730.181, Florida Administrative Code, which incorporates the federal provision by reference. The federal regulations at 40 C.F.R. 266 are known as the boiler and industrial furnace regulations or BIF regulations.

124. Rule 62-730.020, Florida Administrative Code, incorporates by reference 40 C.F.R. 260.10. The federal definitional provision describes activities associated with aggregate kilns. The Solite facility operates aggregate kilns. Thus, it is an industrial furnace according to the BIF regulations set forth in 40 C.F.R. 266.

     
     

125. The air emissions in the BIF rules which the Department used in considering the permit application were standards: for the control of organic emissions (40 C.F.R. 266.104), dioxins and furans (40 C.F.R. 266.014(e)), carbon monoxide (40 C.F.R. 266.103) and for hydrocarbon furnaces with organic matter in the raw material (40 CFR 266.103). In addition the BIF regulations associated with the control of metal emissions (40 C.F.R. 266.106), standards to control hydrochloride and chlorine gas emissions (40 C.F.R. 266.107), standards to control particulate matter, (40 C.F.R. 266.105), and specific requirements for facilities that recycle collected particulate matter (40 C.F.R. 266.103(c)(3)(ii)) were used in the permit review.

     
     

126. The permit review standards employed by the Department were reasonable factors to be considered when addressing this construction project. This decision does not implicate the future choices that the Department would make in examining other permit requests associated with the hazardous waste regulatory program previously described. See Section 403.722, Florida Statutes.

     
     

127. The legal standards used in considering the permit request basically addresses Petitioner's concerns about the project. Whether the legal standards found in the statutes and rules are adequate from Petitioner's perspectives is not the proper subject for this proceeding. This proceeding is a formal hearing pursuant to Section 120.57(1), Florida Statutes. For Petitioner's to pursue a challenge to the adequacy of the legal provisions that are embodied in the rules that were used to review the permit request, Petitioner's must have pursued that challenge through a Chapter 120.56, Florida Statutes proceeding. That collateral action was not taken.

     
     

128. In deciding whether reasonable assurances have been provided by Solite to allow the permit to be granted, Solite need not be the absolute guarantor that compliance will be achieved for applicable standards. Solite need only show that there is a substantial likelihood of compliance. See Booker Creek Preservation Inc., v. Mobile Chemical Co., 481 So. 2d 10, 13 (Fla. 1st DCA 1986) and Metropolitan Dade County v. Coscan Florida, Inc., 609 So. 2d 644, 648 (Fla. 3d DCA 1992).

     
     

129. Solite has provided reasonable assurances that its proposed air pollution control system will meet the applicable air emission standards. That proof was provided through expert testimony, data, modeling and test results from the baghouse associated with kiln 5 which is similar to the proposed baghouse system for kilns 1 and 1A. Petitioners experts' testimony and other proof did not successfully refute the Solite showing that reasonable assurances had been provided.

     
     

130. Solite also presented sufficient detail concerning the engineering features in the pollution control equipment to allow a determination that the equipment would provide adequate treatment to meet the imposed air emissions standards.

     
     

131. The proposed project is located in an area designated as an attainment area for all criteria pollutants. See Rule 62-275.400, Florida Administrative Code. Consequently, the project is not subject to the prevention

     of significant deterioration (PSD) or pre-construction review for non attainment areas envisioned by Chapter 62-212, Florida Administrative Code.

     
     

132. The Department has developed what is described as an "Air Toxics Strategy." This is a tool to assist the Department in evaluating certain aspects of air pollution permit applications. This policy has not been adopted as a rule. The Department did not find it necessary to employ the Air Toxics Strategy in deciding the issues raised by this permit application. That decision was reasonable and should not be overturned.

     
     

133. Rule 62-4.070(5), Florida Administrative Code, provides that the Department shall take into consideration an applicant's violation of Department rules when determining whether the applicant has provided reasonable assurances that the Department standards will be met. Solite's previous violations were considered by the Department and the responses to the violations does not preclude a determination that reasonable assurances have been given that applicable standards will be met in this project.

     
     

134. Section 403.7895, Florida Statutes, sets forth requirements for the permitting and certification of commercial hazardous waste incinerators. In pertinent part it states:

     
     

     1. LEGISLATIVE INTENT - The Legislature finds that Florida should develop an integrated hazardous waste management program, with sufficient capacity to treat the hazardous waste generated within the state, or adequately deal with such waste through regional and national solutions. However, it is not in the

        state's best interest to develop excess capacity, which would be built at great expense and may have significant impacts on public health and

        safety and the environmental quality of the state. The state is experiencing a significant mercury contamination problem, which is posing a serious threat to public health and the environment.

        The long-term, cumulative impacts on public health and the environment have not been sufficiently evaluated for hazardous waste incinerator sites

        in this state. Technological developments and pollution prevention efforts are reducing the need for hazardous waste treatment capacity, and

        there is reported to be excess national commercial hazardous waste incinerator capacity, particularly in the southeastern United States. There may be sufficient capacity in existing state and national boilers and industrial furnaces which burn hazardous waste. Federal hazardous waste policies and regulations have recently changed, and are expected to continue to change, in ways which significantly impact the amounts of waste to be treated in the future. Therefore, it is the intent

        of the Legislature to establish additional permitting criteria for hazardous waste incinerators, to

        establish a need evaluation process for such incinerators, and to thoroughly study current and projected capacity needed to adequately treat hazardous waste generated in the state.

        
        

     2. APPLICABILITY -- Notwithstanding the provisions of ss. 120.60(2), 403.722(10), and 403.78-403.7893, the requirements of this section shall apply to all applications for a commercial hazardous waste incinerator received by the department for which

        a permit or certification was not issued prior to May 12, 1993. For the purposes of this section, "commercial hazardous waste incinerator" means a hazardous waste incinerator which accepts waste generated offsite. . . .

        
        

135. This provision establishes permitting criteria for hazardous waste incinerators based upon need. While a determination concerning the applicability of this statute should be made in considering subsequent hazardous waste permit applications by Solite, that determination need not be made when considering the present construction application for proposed pollution control equipment to combat air pollution in accordance with Section 403.087(1), Florida Statutes, and related rules and regulations.

RECOMMENDATION

Based upon a consideration of the facts found and the conclusions of law reached, it is,

RECOMMENDED:

That a final order be entered which grants the construction permit for the air pollution source subject to the provisions set forth in the second amended proposed permit.

DONE and ENTERED this 30th day of August, 1995, at Tallahassee, Florida.

CHARLES C. ADAMS, 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 30th day of August, 1995.

APPENDIX TO RECOMMENDED ORDER

The following discussion is given concerning the proposed findings of facts by the parties:

Petitioner's facts

Paragraphs 1 through 6 are subordinate to facts found.

Paragraphs 7 through 12 are not requirements that must be considered in deciding to grant or deny the permit.

Paragraphs 13 through 16 are contrary to facts found.

Paragraph 17 is not necessary to the resolution of the dispute.

Paragraph 18 is rejected in its suggestion that Solite has not given the necessary reasonable assurances.

Paragraph 19 is subordinate to facts found.

Paragraph 20 is not necessary to the resolution of the dispute.

Paragraphs 21 and 22 are rejected in the suggestion that the activities at Solite caused these problems.

Paragraphs 23 through 28 are rejected in the suggestion that the emissions tests associated with the permit request are inadequate or that Solite has routinely exceeded air emissions requirements or used unacceptable LBM with hazardous waste in the past.

Paragraph 29 is rejected in the suggestion that the Department has inappropriately considered the permit request.

Paragraph 30 is rejected in the suggestion that the Department would allow unacceptable fuels to be burned in the kilns.

Paragraphs 31 and 32 are subordinate to facts found.

Paragraph 33 is rejected as not establishing a requirement for granting or denying this permit.

Paragraph 34 is rejected to the extent that it suggests that the Department has failed to take into account appropriate circumstances when determining to grant or deny the permit.

Paragraph 35 is rejected in the suggestion that the Solite facility has caused problems for local gardeners.

Paragraphs 36 and 37 are not necessary to the resolution of the dispute.

Paragraph 38 is rejected in the suggestion that Solite has not complied with applicable standards for lead.

Paragraphs 39 through 43 are not necessary to the resolution of the dispute.

Paragraph 44 is not relevant.

Paragraphs 45 through 47 are rejected in the suggestion that the Department has not adequately considered those circumstances necessary to determine whether to grant or deny the permit.

Paragraphs 48 through 49 are subordinate to facts found.

Paragraphs 50 and 51 are rejected in the suggestion that these matters must be considered by the Department in deciding whether to grant or deny the permit.

Paragraph 52 is subordinate to facts found.

Paragraph 53 is not necessary to the resolution of the dispute. Paragraphs 54 through 57 are subordinate to facts found.

Paragraph 58 is not relevant. Paragraph 59 is a conclusion of law.

Paragraph 60 is rejected in the suggestion that inappropriate modeling was conducted by Solite in support of its application.

Paragraph 61 is a conclusion of law.

Paragraph 62 is not necessary to the resolution of the dispute.

Paragraph 63 is rejected in the suggestion that the air toxics strategy should have been employed in this case.

Paragraph 64 is subordinate to facts found.

Paragraphs 65 through 67 are not necessary to the resolution of the dispute.

Paragraph 68 is not relevant.

Paragraphs 69 through 73 are rejected in the suggestion that reasonable assurances have not been given concerning compliance with applicable standards for emissions levels.

Paragraph 74 is subordinate to facts found.

The first sentence to Paragraph 75 is contrary to facts found. The second sentence is not a requirement for resolving the proposed permit request.

Paragraphs 76 through 80 are not relevant. Paragraph 81 is subordinate to facts found. Paragraph 82 is contrary to facts found.

Solite's facts:

Paragraphs 1 through 5 are subordinate to facts found.

The first sentence to Paragraph 6 is not necessary to the resolution of dispute. The second sentence is subordinate to facts found.

Paragraphs 7 through 16 are subordinate to facts found. Paragraph 17 is not necessary to the resolution of the dispute. Paragraphs 18 through 42 are subordinate to facts found.

Paragraph 43 is contrary to facts found in its suggestion that LBM with hazardous waste may be used with the existing wet scrubbers and the lack of increase in the capacity to burn LBM with hazardous waste if the proposed permit is granted.

Paragraphs 44 and 45 are subordinate to facts found.

Department's Facts:

Paragraphs 1 through 9 are subordinate to facts found.

Paragraph 10 is rejected in the suggestion that kilns 1 and 1A may use LBM with hazardous waste when operating with the wet scrubber notwithstanding what the permits may say.

Paragraphs 11 through 28 are subordinate to facts found.

COPIES FURNISHED:

Thomas K. Maurer, Esquire Foley & Lardner

Post Office Box 2193 Orlando, FL 32801

Julie Hellmuth

1205 Orange Circle North Orange Park, FL 32073

Priscilla Norwood Harris Post Office Box 702

Green Cove Springs, FL 32043

Jefferson M. Braswell, Esquire Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, FL 32399-2400

Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

Kenneth Plante, Esquire

Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

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.

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

JULIE HELLMUTH,

Petitioner,

vs. OGC CASE NO. 94-2284

DOAH CASE NO. 94-4057

CAROLINA SOLITE CORPORATION d/b/a FLORIDA SOLITE COMPANY, and

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondents.

/ PRISCILLA N. HARRIS,

Petitioner,

vs. OGC CASE NO. 94-2305

DOAH CASE NO. 94-4058

CAROLINA SOLITE CORPORATION d/b/a FLORIDA SOLITE COMPANY, and

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondents.

/ ALLISON NORWOOD,

Petitioner,

vs. OGC CASE NO. 94-2306

DOAH CASE NO. 94-4059

CAROLINA SOLITE CORPORATION d/b/a FLORIDA SOLITE COMPANY, and

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondents.

/ STEWART HARRIS,

Petitioner,

vs. OGC CASE NO. 94-2307

DOAH CASE NO. 94-4060

CAROLINA SOLITE CORPORATION d/b/a FLORIDA SOLITE COMPANY, and

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Respondents.

/

FINAL ORDER

On August30, 1995, a Hearing Officer with the Division of Administrative Hearings (hereafter "DOAH"), submitted his Recommended Order to the Respondent, Department of Environmental Protection (hereafter "Department"). Copies of the Recommended Order were simultaneously served on the Petitioners, Julie Hellmuth and Priscilla Norwood Harris (hereafter "Petitioners"), and on the Co- Respondent, Carolina Solite Corporation d/b/a Florida Solite Company (hereafter "Solite"). A copy of the Recommended Order is attached hereto as Exhibit A.

On September 14, 1995, Petitioner Priscilla Norwood Harris (hereafter "Petitioner") filed with the Department her Exceptions to the Recommended Order. The Department filed a Response to Petitioner's Exceptions on September 25, 1995. The matter is now before the Secretary of the Department for final agency action.

Background

Solite filed an application with the Department for an air source permit to modify its facility in Russell, Clay County, Florida, by installing a baghouse, a top load pulse-jet dust collector (or equivalent), and a heat exchanger; modifying the duct systems for existing kilns Nos. 1, 1A, and 5, thus allowing any kiln to discharge through the proposed baghouse No. 1 or an existing baghouse No. 5; connecting kilns Nos. 1 and 1A to an existing pug mill filter receiver and clinker hopper filter receiver; installing a pneumatic system to connect proposed baghouse No. 1 to an existing lime and clay fines system; and installing other associated equipment.

The Department issued a Notice of Intent to Issue the requested permit on June 10, 1994, and provided Solite with a draft permit. Petitioners timely filed challenges to the intended agency action. The petitions were consolidated for purposes of hearing. Subsequently the Department issued two amendments to the proposed permit. It is the second amended proposed permit which forms the basis for proposed agency action, and is the subject of this dispute. A formal administrative hearing was held in these consolidated cases before DOAH Hearing Officer Charles C. Adams on March 6-9, 1995, in Green Cove Springs, Clay County, Florida. Proposed recommended orders were timely filed by the parties after the completion of the formal hearing.

The Hearing Officer rejected all of Petitioner's claims and found that Solite's application complied with the applicable standards for an air source permit. The Hearing Officer recommended that the Department enter a Final Order granting the construction permit subject to the provisions set forth in the second amended proposed permit.

Rulings on Petitioner's Exceptions

Preface

Petitioner filed several exceptions taking issue with certain findings of fact and conclusions of law in the Recommended Order. As a preface to the rulings on the Petitioner's exceptions, it is appropriate to comment on the standard of review imposed by law on an agency in reviewing recommended orders submitted by DOAH hearing officers.

Under Section 120.57(1)(b)10, Florida Statutes, a reviewing agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order of an administrative hearing officer. However, these statutory provisions mandate that an agency may not reject or modify findings of fact made by a hearing officer, unless a review of the complete record demonstrates that such findings were not based on competent substantial evidence or that the proceedings on which the findings were based do not comply with the essential requirements of law. See Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987)

The agency reviewing a recommended order may not reweigh the evidence, resolve conflicts therein or judge the credibility of witnesses, as those are evidentiary matters within the province of the hearing officer as the trier of the facts. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985). Consequently, if the record of the DOAH proceedings discloses any competent, substantial evidence to support a finding of fact made by the hearing officer, the reviewing agency is bound by such finding. Bradley, supra, 1123.

Since Petitioner's exceptions were not numbered, I have labeled the sole exception to a finding of fact as Exception 1; the exceptions to conclusions of law as Exceptions 2 and 3; and the request that the Department consider additional information at Exception 4.

Exception 1

Petitioner takes issue with the Hearing Officer's Finding of Fact No. 102, in which he found that "the proposed permit for a baghouse can be expected to meet the 99.99 percent destruction and removal efficiency for organic pollutants." Petitioner argues that baghouses trap only particulate matter, and do not destroy organic pollutants

Rule 62-103.200(1), F.A.C., requires a person filing exceptions to a finding of fact to state "with particularity the basis for the exception. Petitioner's exception includes no references to the record to support her allegation. Additionally, there is competent substantial evidence in the record to support the Hearing Officer's finding. (T. 104, 181; Exhibit 1) For this reason, Exception No. 1 is denied.

Exception 2

Petitioner takes exception to the Hearing Officer's Conclusion of Law No. 131, in which he concluded that because the proposed project "is located in an area designated as an attainment area for all criteria pollutants ... the project is not subject to the prevention of significant deterioration (PSD)" requirements of Chapter 62-212, F.A.C."

The Petitioner is partially correct. The Hearing Officer's conclusion that PSD requirements do not apply because the facility is located in an attainment area is incorrect. Rule 62-212.400, F.A.C., provides that PSD requirements "generally apply to the construction or modification of air pollutant emitting facilities in those parts of the state in which the state ambient air quality standards are being met." Petitioner's arguments that the proposed permit would be considered a modification which could trigger PSD review also reach a correct result; it is essentially undisputed that the addition of a baghouse and other improvements constitute a modification to the facility.

Nonetheless, the Hearing Officer's ultimate conclusion that PSD requirements do not apply in this case is correct. Rule 62- 212.400(2)(d)4.a.(ii), F.A.C., provides that a modification is subject to PSD review if it would result in a "significant net emissions increase" of any pollutant regulated by the Clean Air Act. Rule 62-212.400(2)(e)1., F.A.C., states that a "net emissions increase" occurs when "the sum of all of the contemporaneous creditable increases and decreases in the actual emissions of the facility ... is greater than zero." Rule 62-212.400(2)(e)3., F.A.C., states that an emission is considered contemporaneous if an increase or decrease in the actual emissions from a facility "occurs within the period beginning five years prior to the date on which the owner or operator of the facility submits a complete application for a permit to modify the facility." Finally, Rule 62- 212.400(2)(e)2., F.A.C., defines a "significant net emissions increase" as one "equal to or greater than the applicable significant emissions rate listed in Table 212.400-2."

The Hearing Officer found that kilns 1 and 1A have not been burning hazardous waste since June 6, 1991 and December 1, 1990, respectively, and that the emissions from these kilns from burning hazardous waste is currently zero. However, for purposes of determining the applicability of the PSD requirements, Department rules provide that the emissions resulting from the modification are compared not with current emissions, but with any emissions over the past five years. It is undisputed that kilns 1 and 1A have burned hazardous waste within the last five years, and the Hearing Officer found that the emissions from these kilns after the baghouse is installed will be no greater, and in most cases less, than the emissions from these kilns while they were using the wet scrubber. There is also no credible evidence that emissions from kilns 1 and 1A after the baghouse is installed will exceed the standards found in Table

212.400-2. It is for these reasons that the Hearing Officer was correct in concluding that PSD requirements do not apply in this case, and to that extent the exception is rejected.

Exception 3

Petitioner takes exception to the Hearing Officer's Conclusions of Law No.

134 and 135, in which he concluded that Section 403.7895, F.S., is not applicable in this case. As Petitioner correctly points out, the Hearing Officer gave no specific reasons for this conclusion.

It is undisputed that Solite did not comply with the requirements of Section 403.7895, F.S. At issue, then, is whether this statute, which requires a certificate of need for certain hazardous waste incinerators, applies in this case. It states, in relevant part:

l) APPLICABILITY. - Notwithstanding the provisions of ss. 120.60(2), 403.722(10), and 403.78-.7893, the requirements of this section

shall apply to all applications for a commercial hazardous waste incinerator received by the department for which a permit or certification was not issued prior to May 12, 1993. For the purpose of this section, "commercial hazardous waste incinerator" means a hazardous waste incinerator which accepts waste generated offsite.

The questions raised in this case are whether the Solite facility is a commercial hazardous waste incinerator, and whether the statute applies to the particular permit at hand. If either of these questions are answered in the negative, this statute does not apply.

Admittedly, Section 403.7895., F.S., is not a model of clarity. The Department does not issue permits "for" incinerators; rather, it issues a variety of permits for each facility depending upon its size, location, and previous status. Petitioner essentially argues that this statute applies to any application submitted by a facility which was not finally acted on by the Department prior to May 12, 1993. Presumably this would include not only air source permits, but also dredge and fill permits, stormwater permits, and perhaps even local building permits. While there is some grammatical appeal to Petitioner's interpretation, a closer analysis reveals its logical shortcomings.

The Legislature is presumed not to pass laws which make no sense. Section 403.7895, F.S., creates permitting criteria for facilities, which clearly would not apply to permits which were already issued by the Department. Petitioner's interpretation would render the phrase "for which a permit or certification was not issued prior to May 12, 1993" meaningless and unnecessary. In addition, it would clearly not serve the intent of the statute, which is to address the health and environmental effects of hazardous waste incineration, to apply it to every permit associated with a facility, even those not related to incineration.

Read in context, the only reasonable interpretation of the statute is that it applies to any application which would constitute a new authorization for a facility to burn hazardous waste. Read thusly, the intent of the statute is fulfilled. Before a facility is issued a permit which would allow it to burn hazardous waste that it was not permitted to accept prior to May 12, 1993, the state would undertake a detailed review of the health and environmental impacts of this new incineration capacity, and determine whether this additional capacity was needed. To require such a review prior to issuing any permit to a facility, even permits which have no direct relation to incineration capacity or which would result in decreased pollution, would create an onerous and pointless burden on existing facilities which the Legislature never intended.

In this case, the permit application is for a modification to an existing facility which would allow it to upgrade its air pollution control equipment. Solite already has authorization from the State to burn hazardous waste as a fuel, although it is not currently doing so in kilns 1 and 1A, and that authorization is not at issue in this case. Solite's current permits already address the types and amounts of hazardous waste that may be burned, as well as the allowable emissions of pollutants, and the permit modification it now seeks will either reduce or leave unchanged these conditions. In this case, the application would not constitute a new authorization for the facility to burn hazardous waste or increase its permitted capacity; the issues to be determined were simply whether the proposed pollution control equipment could meet Department rules. Section 403.7895, F.S., does not apply to this particular

application, because it is not an "application for a commercial hazardous waste incinerator" as contemplated by that statute. It is thus unnecessary to address the question of whether the Solite facility is, in fact, a "commercial hazardous waste incinerator." For this reason, this exception is rejected.

Exception 4

Petitioner here does not take exception to any specific finding of fact or conclusion of law, but instead argues that the permit should not be issued because of new information that Solite intends to close its existing facility.

Petitioner has submitted additional evidence not adduced at hearing which, if true, indicates that Solite intends to close the facility and cease operations in the near future. This raises two fundamental questions: should the Department review this new evidence and consider it in this Final Order, or should the Department remand this case to the Hearing Officer for the taking of additional evidence?

The Department has no authority to make findings of fact based upon new evidence in this case which would conflict with findings of fact made by the Hearing Officer, especially when this new evidence may be subject to differing interpretations or estimations of its validity. Even if it were taken as true that Solite intends to close the facility, for example, it is not clear from this additional evidence when this closure would be completed, or whether Solite intends to complete the installation of the baghouse and other improvements which are the subject of the air source permit.

The Department does have the authority to remand this case to the Hearing Officer for the taking of additional evidence if it has reason to believe that an exceptional change in circumstances has occurred which calls into question the findings of fact which resulted from the hearing. In this case, however, no such exceptional circumstances have been shown to have occurred. It is true that the prior history of operations at the Solite facility were relevant to many of the Hearing Officers findings. However, nothing in Department rules requires that a permit applicant must actually use a permit issued to it, and provisions exist for the transfer of permits if a facility is sold. Rule 62- 4.120, F.A.C., requires the Department to approve the transfer of a permit unless it determines that the proposed new permittee cannot provide reasonable assurance that conditions of the permit will be met. If Solite wished to close the facility or sell the facility after the permit was issued, and assuming that this closure or transfer of permits were accomplished in accordance with Department rules, it could do so. It is thus not determinative or relevant whether Solite has announced that it intends to close the facility before this particular permit is issued. Even if this case were remanded for additional findings, and even if the Hearing Officer were to find that Solite did indeed intend to close the facility and not install the baghouse, it would not form the basis for a denial of the permit.

CONCLUSION

It is therefore ORDERED:

1. The Recommended Order of the Hearing Officer is adopted and incorporated by reference herein, except where specifically noted.

2. Permit number AC 10-222486 proposed for issuance by the Department to Carolina Solite Corporation d/b/a Florida Solite Company is hereby ISSUED, subject to the conditions set forth in the second amended proposed permit.

Any party to this 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, 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000; 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 13th day of October, 1995, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

VIRGINIA B. WETHERELL

Secretary

Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

FILING AND ACKNOWLEDGMENT: FILED, on this date, pursuant to Section 120.52, Florida Statutes, with the designated Department Clerk, receipt of which is hereby acknowledged.

KATHY C. CARTER

Clerk

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished to:

J. J. Jewett, III John Kopelousos, Esquire

FL SOLITE CO Post Office Box 562

Post Office Box 27211 Orange Park, Florida 32067-0562 Richmond, VA 23261

Thomas K. Maurer, Esquire

Tony Saunders FOLEY & LARDNER

FL SOLTTE CO 111 N. Orange Avenue, Ste 1800

Post Office Pox 297 Orlando, Florida 32801 Green Cove Springs, Florida 32042

and hand delivery to:

Ann Cole, Clerk and

Charles C. Adams, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 this 16th day of October, 1995.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION

CHRIS MCGUIRE

Assistant General Counsel

Marjory Stoneman Douglas Building 3900 Commonwealth Blvd., MS 35

Tallahassee, Florida 32399-3000 Telephone: 904/488-9730

Docket for Case No: 94-004057

Orders for Case No: 94-004057