STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUND TRANSPORTATION PLANNING ) COALITION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 77-146

) DEPARTMENT OF TRANSPORTATION, ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION and LEON COUNTY, ) FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for final hearing before the undersigned Hearing Officer beginning on May 9, 1977 and concluding on March 31, 1978.

APPEARANCES

For Petitioner: Howell L. Ferguson, Esquire and

Stephen Lindsey Gorman, Esquire

For Respondent Department of

Environmental J. D. Boone Kuersteiner, Esquire and Regulation: Alfred W. Clark, Esquire

For Respondent Department of

Transportation: Stanley W. Moore, Esquire

For Respondent

Leon County: O. Earl Black, Jr., Esquire

This cause was initiated when the Sound Transportation Planning Coalition, Inc., petitioner, filed a petition requesting an administrative hearing pursuant to Chapter 120, Florida Statutes, on the application by the State of Florida, Department of Transportation, for a Complex Source Permit from the Department of Environmental Regulation, concerning the construction project on Thomasville Road. Initially named as respondents were the State of Florida Department of Environmental Regulation and State of Florida Department of Transportation.

Subsequent to that Leon County, Florida petitioned for leave to intervene as a party respondent in this action due to its interest in the outcome of the litigation, and by Order dated 5 April 1977, Leon County was allowed to intervene.

The cause proceeded through discovery and was scheduled for hearing on May

9 and 10, 1977. The hearing commenced on May 9, 1977, and progressed through

the presentation in chief of the Department of Transportation and the beginning of the presentation of the case by the Department of Environmental Regulation. During the course of the hearing on this date it became apparent to the Department of Transportation that certain data needed further investigation. As a result, on the morning of May 10, 1977, the Department of Transportation joined by Leon County moved for a continuance of the proceedings so that further data could be gathered and analyzed.

An order was entered allowing the Department of Transportation to make further traffic studies and such monitoring as was necessary and the matter was rescheduled for rehearing in October, 1977. Before that hearing could be held, the Department of Environmental Regulation repealed the rule requiring complex source permits for highway projects and as a result, upon motion by the Department of Transportation, the cause herein was dismissed.

Subsequently, it was ruled that the Department of Environmental Regulation had erred in repealing such rule and the rule was reinstated. Upon its reinstatement the Department of Transportation filed a motion to set aside the Order of Dismissal. At the hearing on such motion the Department of Environmental Regulation requested the reassignment of the Hearing Officer and the reinstatement of this cause at that point where it lay when dismissed. The Hearing Officer denied the motion to set aside its Order of Dismissal by the Department of Transportation, but granted the request of the Department of Environmental Regulation for the reassignment of the Hearing Officer and the cause was reinstated to the point where it lay when it was dismissed. Further, discovery was reopened and petitioner was allowed to file an amended petition if it desired. Petitioner notified the Hearing Officer that it did not intend to amend its petition and as a result a pre-hearing conference was held and the matter was set for final hearing on March 30 and 31, 1978.

Having considered the testimony, evidence and other matters presented in this proceeding, the Hearing Officer enters the following:

FINDINGS OF FACT

1. The petitioner is a non-profit corporation consisting of individual members who are residents of Tallahassee and Leon County and organizational members who have chapters in Tallahassee and Leon County.

   
   

2. The primary purpose of petitioner is to bring about a balanced transportation system in Tallahassee and Leon County taking into consideration certain criteria which include the following: the prevention of neighborhood disruption and deterioration; the prevention of environmental degradation; and the prevention of harm to historical sites. In conjunction with this purpose and these criteria, one of petitioner's primary concerns is the prevention of degradation of air quality in the Tallahassee, Leon County area.

   
   

3. Some members of the petitioner use that part of Thomasville Road to be affected by the subject application.

   
   

4. The project for which the Department of Transportation seeks a Complex Source Permit is the four-laning of Thomasville Road from Eighth Avenue to Interstate 10 in Tallahassee, Florida.

   
   

5. The Complex Source Permit was originally submitted to the Department of Environmental Regulation on March 22, 1976. The Department of Environmental Regulation did not accept that application, however, due to unacceptable

   modeling and monitoring. Thereafter, two supplements to the application were submitted to the Department of Environmental Regulation. The first, dated September 21, 1976, and the second, dated November 16, 1976, contained additional monitoring and a repeat of the modeling effort. Because of allegedly incorrect counts and speeds, the Department of Transportation submitted yet another application with revised monitoring and modeling data on January 4, 1978. This latest revised application is the subject of this hearing.

   
   

6. The Department of Transportation did not monitor for or project the concentrations of any pollutant listed in Section 17-2.05, F.A.C., except carbon monoxide. The Department of Environmental Regulation did not require the monitoring for or projection of concentrations of any pollutant listed in Section 17-2.05, F.A.C., except carbon monoxide.

   
   

7. The evidence presented in this proceeding does not establish that construction of the project for which a Complex Source Permit is sought herein would result in or cause an increase in ambient pollutant concentrations of any pollutant listed in Section 17-2.05, F.A.C., with the exception of carbon monoxide. The evidence presented indicates that remaining pollutants listed in the foregoing section would be emitted in insignificant quantities having no effect on the ambient air quality standard for that pollutant.

   
   

8. The Department of Environmental Regulation has not independently monitored for any of the pollutants considered by Section 17-2.04(8), F.A.C., but has relied entirely on data submitted by the Department of Transportation. The Department of Transportation has based its carbon monoxide projections upon the use of the California Line Source Model, also known as Calair I, which is a mathematical computer model. It appears from the evidence presented that the Calair I computer model was used in a reasonable and proper manner and produced data which could be relied upon by the Department of Environmental Regulation.

   
   

9. The Complex Source Permit application as finally submitted on January 4, 1978, projects the following concentrations for carbon monoxide: one-hour concentration for 1979, 6.7 ppm and for 1939, 4.8 ppm; for eight-hour concentrations in 1969, 2.8 ppm and for 1989, 2.0 ppm. The ambient air quality standard for carbon monoxide set forth in Section 17-2.05(1)(c), F.A.C., is 9 ppm maximum eight-hour concentration and 35 ppm maximum one-hour concentration, both not to be exceeded more than once per year. The testimony indicates that even if the calibration factor with the Calair I model were doubled, the projected carbon monoxide concentrations would not exceed the foregoing standard.

   
   

10. No evidence was presented on the issues initially raised in this proceeding involving the Major Thoroughfare Plan, the Transportation Improvement Plan, and the Urban Area Transportation Plan.

    
    

11. The testimony and evidence presented in this proceeding establishes reasonable assurance that the subject project will not cause a violation of the ambient air quality standards for the major pollutants to be emitted.

    
    

    CONCLUSIONS OF LAW

    
    

12. This proceeding is governed by Chapters 403 and 120, Florida Statutes, and Chapter 17-2, Florida Administrative Code.

13. The interests of the petitioner and its individual and organization members will be substantially affected by the granting or denying of the subject Complex Source Application.

    
    

14. Rule 17-2.01, F.A.C., states as a criteria of issuance of a Complex Source Permit that the Department of Environmental Regulation shall have reasonable assurance that the subject source will not violate Section 17-2,

    F.A.C. Subsection 17-2.04(8)(b), F.A.C., prohibits the issuance of a Complex Source Permit if the subject source results or causes an increase in ambient pollutant concentrations in violation of the ambient air quality standards. Subsection 17-2.04(8)(d), F.A.C., requires an applicant for a Complex Source Permit to submit to the Department of Environmental Regulation " . . . such information that is necessary for [Department of Environmental Regulation] to make a determination that the Complex Source will not cause a violation of ambient air quality standards.

    
    

15. Section 17-2.05, F.A.C., sets the ambient air quality standard for carbon monoxide at 9 ppm maximum eight-hour concentration, and 35 ppm maximum one-hour concentration, neither to be exceeded more than once a year. As set forth in the findings above, the projected carbon monoxide concentrations for the subject project do not exceed the ambient air quality standard for carbon monoxide. Further, as set forth in the Findings of Fact above, it is not expected that any other pollutants listed in Section 17-2.05, F.A.C., will be emitted in amounts significant enough to violate the ambient air quality standard for such pollutant. Therefore it appears that the Department of Environmental Regulation has reasonable assurance that the proposed project for which a Complex Source Permit is sought will not violate the requirements of Chapter 17-2, F.A.C.

    
    

16. At the conclusion of the presentation of the case in chief by the Petitioner, the Respondent, Leon County, moved for an order in the nature of a directed verdict on the issues raised in the Petition concerning the thoroughfare plan and related matters. There having been no evidence presented on these issues, the motion was granted.

    
    

17. Petitioner's exhibits 4, 5, and 6, and the Department of Transportation's exhibits 6, 7, and 8 were offered into evidence but neither accepted nor rejected at the time of hearing. The parties having had opportunity to object to the admission of these exhibits and having not done so, and the exhibits being otherwise admissible, they are hereby admitted.

    
    

18. The requirements of law for the issuance of a Complex Source Permit have been met.

RECOMMENDED ORDER

Reasonable assurance has been given the Department of Environmental Regulation that the subject project for which a Complex Source Permit is sought herein will not violate the ambient air quality standards. It is therefore hereby recommended that the Department of Transportation's application for a Complex Source Permit for the Thomasville Road Project be granted.

ENTERED this 25th day of April, 1978, in Tallahassee, Florida.

CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Alfred W. Clark, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Twin Towers Office Building Tallahassee, Florida 32301

Stanley W. Moore, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida

O. Earl Black, Jr.. Esquire Assistant County Attorney Leon County Courthouse Tallahassee, Florida 32301

Stephen Lindsey Gorman, Esquire Post Office Box 10064

135 South Monroe Street Suite 100

Tallahassee, Florida 32302

Docket for Case No: 77-000146

Orders for Case No: 77-000146