STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MANATEE CHAPTER OF THE IZAAK, ) WALTON LEAGUE OF AMERICA, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 77-444
) DEPARTMENT OF ENVIRONMENTAL ) REGULATION and MANATEE ENERGY ) COMPANY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to proper notice this cause came on for final hearing before the undersigned Hearing Officer on July 21, 1977, in Bradenton, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: Judith S. Kavanaugh, Esquire
Attorney for Manatee Chapter of the Izaak Walton League of America, Inc.
543 Tenth Street, West Bradenton, Florida 33505
For Respondent: Diane S. Guthrie, Esquire
Assistant General Counsel
Department of Environmental Regulation 2562 Executive Center Circle, E. Montgomery Building
Tallahassee, Florida 32301
Roger D. Schwenke, Esquire
Attorney for Manatee Energy Company Post Office Box 3239
Tampa, Florida 33601
Elias Chotas, Esquire
Attorney for Manatee Energy Company Post Office Box 3239
Tampa, Florida 33601
Respondent, Manatee Energy Company, has made application to Respondent, Department of Environmental Regulation for a Permit To Construct An Air Pollution Source in connection with its proposed splitter at Port Manatee, Manatee County, Florida. Petitioner, by its Second Amended Petition, has challenged she granting of that permit. By affirmative defense in its answer to Petitioner's second Amended Petition, Respondent, Manatee Energy Company, raises
the issue of whether, through operation of law and in accordance with the provisions of Sections 403.061(18), 403.087, and 120.60(2) Florida Statutes, and Sections 17-2.09 and 17-4.07, Florida Administrative Code, their application for a permit to construct an air pollution source has been deemed approved because of the failure of Respondent, Department of Environmental Regulation to grant or deny the application within the requisite period of time. At the final hearing, without objection of counsel, Manatee Energy Company went forward with its evidence on the issue stated above and the remaining parties were allowed, and took advantage of, opportunity for rebuttal on that issue alone. All parties reserved and retained the right to submit further evidence and testimony on those matters raised in Petitioner's Second Amended Petition should it become necessary. At the conclusion of its presentation, Respondent, Manatee Energy Company moved, in the nature of a Motion For Directed Verdict, for a ruling that the permit had issued by operation of law and that this cause should be involuntarily dismissed for failure of jurisdiction. In granting the motion of Respondent, Manatee Energy Company the Hearing Officer enters the following:
FINDINGS OF FACT
On September 15, 1976, Manatee Energy Company submitted to the Department of Environmental Regulation, through the Manatee County Pollution Control Department, an application to construct an air pollution source in connection with a crude splitter to be built at Port Manatee, Manatee County, Florida.
On October 15, 1976 the Department of Environmental Regulation requested additional information from the Manatee Energy Company concerning its application. The primary response of the Manatee Energy Company to this request for additional information was hand carried to the Department of Environmental Regulation on November 3, 1976, at which time a meeting was held between representatives of the Department of Environmental Regulation and the Manatee Energy Company to discuss whether the additional information satisfactorily responded to the request. On November 9, 1976, representatives of the Manatee Energy Company met with representatives of the Manatee County Pollution Control Department to discuss the additional information and the status of the application. The Department of Environmental Regulation considered the application complete and, in fact, all requested additional information was received by the Department of Environmental Regulation no later than November 22, 1976.
By letter dated December 14, 1976, to the Department of Environmental Regulation, the Manatee County Pollution Control Department recommended approval of the permit sought by the Manatee Energy Company.
On February 17, 1977, the Department of Environmental Regulation issued a Notice Of Intent To Issue Its Final Agency Order approving the permit application for construction of the air pollution source sought by the Manatee Energy Company. This Notice Of Intent contained the statement that the final agency order approving the application would be adopted and issued by the district manager unless an appropriate petition for hearing was filed on or before February 20, 1977, pursuant to the provisions of Section 120.57, Florida Statutes.
On February 17, 1977, the Manatee Chapter of the Izaak Walton League filed a Petition And Request For Public Hearing And Other Relief.
At the time the petition was filed on February 17, 1977, neither the Manatee Chapter of the Izaak Walton League nor its parent organization, the Izaak Walton League of America was a corporation not for profit organized and operating under the laws of the state of Florida. However, at the time the petition was filed on February 17, 1977, the parent organization, the Izaak Walton League of America was a corporation not for profit organized in a state other than Florida.
The Manatee Chapter of the Izaak Walton League has never filed a corporate charter or articles of incorporation with the Florida Secretary of State under that corporate name. Further, the Izaak Walton League of America has never filed a corporate charter or articles of incorporation with the Florida Secretary of State under that corporate name.
On May 18, 1977, the Manatee Chapter of the Izaak Walton League of America, Inc. filed its articles of incorporation, as a corporation not for profit, with the Florida Secretary of State.
The Manatee Chapter of the Izaak Walton League is chartered by the Izaak Walton League of America. The Manatee Chapter is a sub unit of the national organization. Members of the Manatee Chapter do not join the Manatee Chapter, but rather, join the national organization, the Izaak Walton League of America, and then affiliate themselves with the local chapter. According to the president of the Manatee Chapter of the Izaak Walton League their charter from the national organization requires that before the local chapter takes any legal action it must inform the national organization for their approval. In this case, the Manatee Chapter of the Izaak Walton League did inform the national organization, the Izaak Walton League of America, and received their approval, before filing the petition which initiated this proceeding.
At no time pertinent to this cause had the Manatee Chapter of the Izaak Walton League, or the national organization, the Izaak Walton League of America, filed with the Florida Secretary of State a duly authenticated copy of its charter or articles of incorporation, together with the requisite fee and received from the Secretary of State a permit to carry on in Florida the objects and purposes of its incorporation as required by Section 617.11, Florida Statutes.
As of the date of this hearing, July 21, 1977, the Department of Environmental Regulation has neither approved nor denied the application for permit by the Manatee Energy Company. The Notice Of Intent To Issue by the Department of Environmental Regulation and the filing of the Petition And Request For Public Hearing And Other Relief by Petitioner, Manatee Chapter of the Izaak Walton League, occurred 87 days after the receipt by the Department of Environmental Regulation of the timely requested additional information in connection with the application.
CONCLUSIONS OF LAW
There are two separate provisions of Florida law both requiring timely consideration of an application, failing which, the application shall be deemed granted, which on their face are applicable to the license sought here. These are subsection 403.061(18), Florida Statutes and subsection 120.60(2) Florida Statutes. While only one of these statutory provisions can apply to the instant case, it will be seen from the following discussion that the ultimate result in this cause must be the same regardless of which provision is deemed to apply.
Subsection 403.061(18),Florida Statutes states in pertinent part:
"If within 60 days of the receipt of plans, specifications, or other information required pursuant to this chapter, the department determines that the proposed construction or installation will not be in accord with the requirements of this act or applicable rules and regulations, it shall issue an order prohibiting the construction or installation. Failure of such an order to issue within the time prescribed herein shall be deemed a determination that the construction or installation may proceed; provided that it is in accordance with plans, specifications, or other information, if any, required to be submitted."
This provision was included as Section 7(18) of Chapter 67-436, Laws of Florida, which became effective September 1, 1976. The Department of Environmental Regulation reinforced this statutory requirement by the enactment of their Rule 17-4.07(1), Florida Administrative Code, effective February 17, 1972, wherein it states in part:
"After receipt of all required information, the department must either issue or deny the permit within sixty (60) days."
It is apparent from the foregoing that the legislature intended permit applications to be considered and acted upon in timely fashion. Failure of the Department of Environmental Regulation to act within 60 days would constitute permission to commence construction. In the instant case after receipt of all required information 87 days passed without any final order from the Department of Environmental Regulation and, in fact, to date, no order prohibiting the construction applied for by the Manatee Energy Company has been issued by the Department of Environmental Regulation. Plainly, to the extent that Section 403.061(18), Florida Statutes, is applicable to the present situation, the application by the Manatee Energy Company has been deemed approved by operation of law and it would appear that there has been conferred the substantive right to commence construction in accordance with submitted plans and specifications. However, the applicability of the foregoing statutory provision to the facts of this proceeding is in question because of the later enacted subsection 120.60(2) Florida Statutes.
Subsection 120.60(2), Florida Statutes, (1976 Supp.) was enacted in 1976 [Section 10, Chapter 76-131, effective June 15, 1976] and states in pertinent part:
"When an application for a license is made as required by law, the agency shall conduct the proceedings required with reasonable dispatch and with due regard to the rights and privileges of all affected parties or aggrieved persons. Within 30 days after receipt of an application for a license, the agency shall examine the application, notify the applicant of any apparent errors or
omissions, and request any additional information the agency is permitted by law to require. Failure to correct an error or omission or to supply additional information shall not be grounds for denial of the license unless the agency timely notified the applicant within this 30 day period. . .Every application for a license shall be approved or denied within 90 days after receipt of the original application or of receipt of the timely requested additional information or correction of errors or omissions. Any application for a license not approved or denied within the 90 day period or within 15 days after conclusion of a public hearing held on the application, whichever is latest, shall be deemed approved and, subject to the satisfactory completion of an examination, if required as a pre-requisite to licensure, [the license] shall be issued."
Thus, under this provision the Department of Environmental Regulation had 90 days after receipt of all timely requested information to approve or deny the license, failing which the license is deemed approved. The permit sought by the Manatee Energy Company is a "license" as that term is used in Section 120.60, Florida Statutes. Subsection 120.52(7), Florida Statutes.
The later enacted subsection 120.60 (2) is broad in its scope and, by its language, applies to the application and license which are the subjects of this proceeding. It can be argued that the ninety-day period for review of an application found in subsection 120.60(2), does not supersede the earlier and more restrictive sixty-day period set forth in subsection 403.061(18) for which there is no specific repealer. However, considering the broadness of the language in subsection 120.60(2) as well as the clear statement of intent by the legislature in the enactment of the revised Chapter 120 to make uniform all
rule-making and adjudicatory procedures used by the administrative agencies of the State of Florida, it is the conclusion of the Hearing Officer that the later enacted subsection 120.60(2) Florida Statutes (1976 Supp.) governs this cause.
Section 120.72 Florida Statutes. Application of subsection 120.60(2), to this cause mandates the same conclusion as that required by the application of subsection 403.061(18).
The ninety-day period within which the Department of Environmental Regulation had to consider the application began no later than November 22, 1976. That period must have expired February 20, 1977. Thus, if by that date, February 20, 1977, the application for a license had not been approved or denied, or the time tolled by the conduct of a public hearing, the application must be deemed approved. Although it is apparent from its Notice of Intent that the Department of Environmental Regulation intended to comply with the ninety- day requirement by granting the permit no later than February 20, 1977, due to an intervening factor, the Department has in fact never granted nor denied the application. The intervening factor was the filing, on February 17, 1977, of a petition for public hearing by the Manatee Chapter of the Izaak Walton League.
It can well be argued that the filing of a petition for a public hearing tolls the ninety-day period and invokes that clause of subsection 120.60(2) that requires a license to be approved or denied within fifteen days
after conclusion of a public hearing held on the application, if that time would be later than the applicable ninety-day period. However, even accepting that the filing of a timely and proper petition would toll the ninety days and extend the period for consideration by the agency to fifteen days after the conclusion of a public hearing, in this case the original petition must fail as a toll of that time. Petitioner, the Manatee Chapter of the Izaak Walton League, is and was acting as a part of the Izaak Walton League of America, which, at the time the petition was filed was a foreign corporation not for profit. Subsection 617.11(3), Florida Statutes, prohibits foreign corporations not for profit who have failed to obtain a permit in accordance with subsections 617.11(1) and (2), Florida Statutes, from bringing or maintaining ". . .any suit or other proceeding before any court or administrative body of this state. . .". No earlier than May 18, 1977, long after the expiration of the ninety-day period, did Petitioners cure this defect, if at all. Thus, at the time the original petition in this proceeding was filed, the petitioner by statute was prohibited from bringing any proceeding before any administrative body, including this one. Since the Petitioner was not permitted by law to bring the action it sought by its petition, the filing of the petition must not be deemed to toll the ninety- day time period within which the Department of Environmental Regulation must have approved or denied the application. To conclude otherwise would eviscerate Section 6.17.11, Florida Statutes, and give to a foreign corporation not for profit the practical right to engage in an action in this state which the legislature in the enactment of Section 617.11 has sought to deny them absent a specific permit for which statutory authority is set forth in subsections 617.11(1) and (2), Florida Statutes.
The ninety-day time period not having been tolled on February 17, 1977, by Petitioner's original petition herein, and in the absence of an approval or denial of the application for license by the Manatee Energy Company within that ninety-day period, subsection 120.60(2), Florida Statutes, requires that the application "shall be deemed approved and. . .shall be issued." This language being clearly mandatory in nature and the ninety-day time period having expired on February 20, 1977, there remains no issue for dispute with regard to the approval or denial of the subject license. The laws of Florida mandate that that license shall issue. The Department of Environmental Regulation and therefore this hearing officer, have no authority or jurisdiction to counteract by this proceeding or any other, that mandate of law. Lacking such authority and jurisdiction no purpose would be served by going forward with the hearing of the issues raised in Petitioner's second amended petition.
RECOMMENDED ORDER
Therefore, it is hereby recommended that the application for license by the Manatee Energy Company which is the subject of this proceeding has been deemed approved and issued by operation of law in accordance with subsection 120.60(2), Florida Statutes, and therefore the Department of Environmental Regulation has no authority nor jurisdiction to further approve or deny the subject license.
Therefore this cause must be dismissed.
ENTERED this 25 day of August, 1977, in Tallahassee, Florida.
CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
COPIES FURNISHED:
Diane S. Guthrie, Esquire Assistant General Counsel Department of Environmental
Regulation
Executive Center Circle, E. Montgomery Building Tallahassee, Florida 32301
Roger D. Schwenke, Esquire Post Office Box 3239 Tampa, Florida 33601
Elias Chotas, Esquire Post Office Box 3239 Tampa, Florida 33601
Judith S. Kavanaugh, Esquire
543 Tenth Street, West Bradenton, Florida 33505
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AGENCY ORDER OF REMAND
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
MANATEE CHAPTER OF THE IZAAK WALTON LEAGUE OF AMERICA, INC.,
Petitioner,
vs. CASE NO. 77-444
DEPARTMENT OF ENVIRONMENTAL REGULATION, and MANATEE ENERGY COMPANY,
Respondent.
/
ORDER ADOPTING FINDINGS OF FACT, REJECTING CONCLUSIONS OF LAW,
AND REMANDING FOR FURTHER PROCEEDINGS BY THE DEPARTMENT:
On August 25, 1977, the duly appointed Hearing Officer in the above-styled matter completed and submitted to the Department and all parties a Recommended Order consisting of his Findings of Fact, Conclusions of Law, and a Recommended Order. A copy of that Recommended Order is attached hereto as Exhibit "A."
Pursuant to Department Rule 17-1.26(2), Florida Administrative Code, and Subsection 120.57(1)(b)(8), Florida Statutes, the parties were allowed fifteen
days in which to submit written exceptions to the Recommended Order. On September 16, 1977, all parties submitted their responses to the Hearing Officer's Recommended Order. Respondent, Manatee Energy Company, filed a reply to the other parties' responses and exceptions. At the same time, pursuant to Section 17-1.26(2), Florida Administrative Code, all parties requested the opportunity to make oral argument in support of their responses or exceptions to the Recommended Order before the Secretary. On October 5, 1977, oral arguments were made.
Section 120.57(1)(b)(9), Florida Statutes, allows an agency to reject or modify conclusions of law and interpretations of administrative rules contained in Recommended Orders.
The responses and exceptions to the Hearing Officer's Recommended Order raised a number of issues. The principle issue was whether Petitioner was a proper party to petition for an administrative hearing under Section 120.57, Florida Statutes. The Hearing Officer found that Petitioner, by statute, was prohibited from bringing an administrative proceeding. On this basis, he determined that the filing of the petition did not toll the ninety-day time
period within which the Department of Environmental Regulation was required to approve or deny the application.
The Hearing Officer also found that, in the absence of denial or approval of Manatee Energy Company's application for license within the ninety-day period, Subsection 120.60(2), Florida Statutes, required that the application be deemed approved and issued by operation of law and that the Department had no authority or jurisdiction to now approve or deny the license.
The Hearing Officer erred in his conclusions of law by failing to recognize Petitioner, Manatee Chapter of the Izaak Walton League of America, Inc., as a proper party to petition for an administrative hearing under Section 120.57, Florida Statutes.
The sole criterion for invoking the substantive and procedural provisions of Section 120.57, Florida Statutes, is whether the substantial interests of a party are to be determined by an agency. Section 120.57, Florida Statutes.
"Party" is defined by Section 120.52(10), Florida Statutes, as:
Specifically named persons whose substantial interests are being determined in the proceeding.
Any other person who, as a matter of constitutional right, provision of statute, or provision of agency regulation, is entitled to participate in whole or in part in a proceeding or whose substantial interest will be affected by proposed agency action, and who makes an appearance as a party. (emphasis added)
Furthermore, under Chapter 120, Florida Statutes, "person" means: (10). . .any person described in Section 1.01
[Florida Statutes], any unit of government
inside or outside the State, and any agency described in Subsection (1). (emphasis added)
Section 1.01, Florida Statutes, contains the following description of "person":
The word "person" includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations. (emphasis added)
Chapter 120.72(1), Florida Statutes, provides:
". . .it is the express intent of the legislature that the provisions of this act shall replace all other provisions in the Florida Statutes, 1973, relating to rulemaking, agency orders, administrative adjudication, or judicial. . ." (emphasis added)
It is presumed the legislature intends to enact a consistent body of law.
A repeal of prior conflicting law is implied by the enactment of a comprehensive act upon the same subject.
The stated purpose of Chapter 120, Florida Statutes, according to Section 120.72, Florida Statutes, is to enact uniform rule-making and adjudicatory procedures for application to governmental units described therein. Conflicting provisions contained elsewhere in Florida law which govern administrative proceedings were superseded and replaced by the comprehensive provisions of the new Administrative Procedures Act.
The Hearing Officer relied heavily upon Subsection 617.11(3), Florida Statutes, which prohibits foreign corporations (not-for-profit) from bringing or maintaining suits or other proceedings before courts or administrative bodies.
He found, in effect, that Subsection 617.11(3), Florida Statutes, restricts or prevents she exercise by a person of rights expressly granted by Chapter 120, Florida Statutes.
Such a reading conflicts with Section 120.57, Florida Statutes, and ignores the clear legislative policy reflected in Chapter 120, Florida Statutes - to facilitate the active involvement of the citizens of our state in the agency decision-making process.
Petitioner has shown that its members reside in Manatee County, and are actively concerned with the quality of its environment and protecting the purity of its air. It is equally clear that Petitioner, and its interest, are substantially affected by the Department's intended issuance of a permit to construct a crude oil splitter which will emit air pollution.
Petitioner, therefore, notwithstanding Subsection 617.11(3), Florida Statutes, was and is, a proper party to petition for an administrative hearing pursuant to Section 120.57, Florida Statutes. The provisions of Subsection 617.11(3), Florida Statutes, which purport to prohibit such action, were repealed by Chapter 120, Florida Statutes.
The petition was timely filed prior to the expiration of ninety (90) days from the Department's receipt of a completed application. A Department permit has, therefore, not been issued by default or operation of law. It is, therefore, ORDERED as follows:
The Hearing Officer's findings of fact are hereby adopted.
The Hearing Officer's conclusions of law, to the extent that they are inconsistent with this order, are expressly rejected. All other conclusions of law are hereby adopted.
This case is remanded to the Hearing Officer for the purpose of conducting a full hearing on the issue of whether Petitioner can show that respondent, Manatee Energy Company, is not entitled to a permit under Chapter 17-2, Florida Administrative Code. The Hearing Officer is requested to render specific findings and conclusions on whether the construction and operation of the crude oil splitter by Manatee Energy Company will comply with the significant degradation rule, Section
17-2.03(4)(b), Florida Administrative Code. In this connection, it is requested that the hearing be conducted in such a manner as to
satisfy the hearing requirements of Subsection 17-2.03(4)(b)(ii)(a), Florida Administrative Code. Public testimony should be taken, if possible, at a point in the hearing convenient to the public.
The Hearing Officer is respectfully requested to expedite this hearing and the submission of his Recommended Order, to the maximum extent possible, in order to minimize any additional delay which may result from this order.
DONE AND ENTERED this 7 day of October, 1977, at Tallahassee, Florida.
JOSEPH W. LANDERS, JR.
Secretary
Department of Environmental Regulation
2562 Executive Center Circle, East, Tallahassee, Florida 32301 904/488-9730
COPIES FURNISHED:
Roger D. Schwenke Elias Chotas
Attorneys for Manatee Energy Company
Post Office Box 3239, Tampa, Florida 33601
Judith S. Kavanaugh
Attorney for Manatee Chapter of the Izaak Walton League of America, Inc.
543 Tenth Street, West, Bradenton, Florida 33505
Patricia M. Duryee
Attorney for Department of Environmental Regulation
2562 Executive Center Circle, East, Montgomery Building, Tallahassee, Florida 32301
Honorable Chris H. Bentley Hearing Officer
Division of Administrative Hearings
530 Carlton Building Tallahassee, Florida 32304
=================================================================
SECOND DOAH RECOMMENDED ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MANATEE CHAPTER OF THE IZAAK ) WALTON LEAGUE, )
)
Petitioner, )
)
vs. ) CASE NO. 77-444
) DEPARTMENT OF ENVIRONMENTAL ) REGULATION AND THE MANATEE ENERGY ) COMPANY )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to proper notice, this cause came on for final hearing before the undersigned Hearing Officer on November 15, 1977, in Bradenton, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: Judith S. Kavanaugh, Esquire
543 Tenth Street, West Bradenton, Florida 33505
For Respondent: Terry Cole, Esquire
Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building
Tallahassee, Florida 32301
For Respondent: Roger D. Schwenke, Esquire Manatee Energy Post Office Box 3239 Company Tampa, Florida 33601
Respondent, Manatee Energy Company, has made application to Respondent, Department of Environmental Regulation, for a Permit To Construct An Air Pollution Source in connection with its proposed splitter at Port Manatee, Manatee County, Florida, Petitioner, in its Second Amended Petition, has challenged the granting of that permit. The undersigned Hearing Officer held an Administrative Hearing on that petition on July 21, 1977 and entered Findings of Fact, Conclusions of Law, and Recommended Order pursuant to that Administrative Hearing on August 25, 1977. By Order dated October 7, 1977, the Department of Environmental Regulation adopted the Hearing Officer's findings of fact, but rejected certain conclusions of law dealing with the standing of the Petitioner to bring this action. Pursuant to that Order of the Department of Environmental
Regulation this cause was remanded to the Hearing Officer for the purpose of conducting a full hearing on the matters raised by Petitioner's Second Amended Petition. In accordance with that remand a hearing was held on November 15, 1977, to hear those matters raised in the Second Amended Petition and the Supplemental Stipulation, Request and Waiver entered into by the parties to this proceeding on October 25, 1977.
Having considered all testimony and evidence presented as well as argument of counsel, the Hearing Officer enters the following findings.
FINDINGS OF FACT
The Findings of Fact entered by the undersigned Hearing Officer in this cause by his Recommended Order dated August 25, 1977, and adopted by the Department of Environmental Regulation by Order dated October 7, 1977, are hereby readopted and incorporated herein by reference.
Due and proper notice of this proceeding has been given as required by
law.
Petitioner is an existing and established community organization whose
avowed purpose, in part, is the preservation of a clean environment in Manatee County, Florida.
The Respondent, Manatee Energy Company, proposes the construction of a nominal 15,000 BPSD crude oil splitter at the southeast corner of an existing storage tank facility at Port Manatee, Manatee County, Florida. It is proposed that this plant will be used to separate crude oil by distillation into three fractions, those being LPG, jet fuel and Bunker "C". The plant will include a crude oil heater (furnace) and a steam boiler. These combustion devices will be fired with LPG or fuel oil with a sulphur content of 0.7 weight percent or less. The proposed plant does not include a fossil fuel steam generator as referred to in Section 17-2.03(4)(b)(v)(a), Florida Administrative Code.
The Department of Environmental Regulation began an evaluation of the subject permit with regard to the so-called "significant degradation rule" set forth in Section 17-2.03(4)(b), Florida Administrative Code, in March of 1977, concluding its evaluation in the summer of 1977.
There are three air pollutants for which there are ambient air quality standards adopted by the Department of Environmental Regulation, pertinent to this proceeding. They are sulphur dioxide, particulate matter and hydrocarbons.
The evidence presented establishes that there are no accepted modeling techniques for the projection of hydrocarbon concentrations. Further, the evidence establishes that there is no measured data on hydrocarbon concentrations available with regard to the subject site sufficient to determine existing concentrations of hydrocarbons or projected concentrations of hydrocarbons. The United States Environmental Protection Agency projects that the hydrocarbon emissions produced by the proposed facility will be in the area of 42 tons per year. Existing hydrocarbon emissions on site are estimated at
10.5 tons per year. A pollution source with a hydrocarbon emission level of 100 tons per year is considered by the United States Environmental Protection Agency and the Department of Environmental Regulation to be a relatively insignificant source of pollution. No competent substantial evidence was presented which would establish that the foregoing hydrocarbon emissions would violate the ambient air quality standards set forth in Section 17-2.05, Florida
Administrative Code. No competent substantial evidence was presented which would establish that the 1973 maximum concentration of hydrocarbons in the ambient air was less than, or better than, the ambient air quality standards set forth in Section 17-2.05, Florida Administrative Code.
The maximum concentration of sulphur dioxide in the ambient air was measured for the calendar year 1973 in the area in which the proposed facility will have a significant effect. This maximum concentration was 123 micrograms per cubic meter maximum 24 hour concentration. The ambient air quality standard for maximum 24 hour concentration of sulphur dioxide set forth in Section 17- 2.05, Florida Administrative Code, is 260 micrograms per cubic meter. In 1976 the measured maximum 24 hour concentration of sulphur dioxide on site was 41.3 micrograms per cubic meter. No competent substantial evidence was presented to establish that the 1976 measured concentrations have been appreciably exceeded to date. By the use of state of the art computer modeling techniques the projected maximum possible 24 hour concentration of sulphur dioxide to be produced by the subject facility is 33.8 micrograms per cubic meter. Therefore, the projected impact with regard to sulphur dioxide concentrations of the proposed facility combined with the existing concentrations results in a estimated maximum 24 hour concentration of sulphur dioxide of 75.1 micrograms per cubic meter. The base line air quality for Manatee County in 1973 with regard to sulphur dioxide was 123 micrograms per cubic meter. The estimated maximum 24 hour concentrations of sulphur dioxide after construction of the subject facility is projected at 75.1 micrograms per cubic meter which is well beneath the base line air quality level for sulphur dioxide. Therefore, with regard to sulphur dioxide, the proposed facility will not significantly degrade the base line air quality established for the subject site.
The maximum 24 hour particulate concentration measured in 1973 was 624 micrograms per cubic meter. The ambient air quality standard for particulate matter established in Section 17-2.05, Florida Administrative Code, is 150 micrograms per cubic meter, maximum 24 hour concentration. Therefore, the base line air quality for the proposed site was not better in 1973 than the ambient air quality standards and therefore the so-called "significant degradation rule" does not apply with regard to particulate matter. The maximum 24 hour measured particulate value in 1976 was 190 micrograms per cubic meter which indicates a violation of the particulate ambient air quality standard. However, the only competent substantial evidence presented establishes that these violations are due to fugitive dust generated by road traffic and that corrective steps are being planned by the Port Authority which, when implemented, will eliminate particulate concentration violations. Further, the evidence establishes that once these corrective steps are taken the particulate emissions of the proposed facility will not result in particulate concentrations greater than the ambient air quality standard set forth in Section 17-2.05, Florida Administrative Code.
In order to bring projected sulphur dioxide 24 hour concentrations within the necessary limits the Respondent, Manatee Energy Company has amended the application to increase the height of the stack. This amendment to the application results in projected concentrations of sulphur dioxide as set forth above.
The Respondent, Manatee Energy Company, proposes to use the latest available technology in controlling the emissions of air pollutants.
The application, with amendments, includes all information required by the Department of Environmental Regulation. No competent substantial evidence was presented which would establish that the information contained in the
application is faulty in any respect. It appears from the evidence presented that the Department of Environmental Regulation has considered all those matters which it is statutorily bound to consider as well as those matters prescribed for consideration by its rules.
CONCLUSIONS OF LAW
In applying the significant degradation rule set forth in Section 17- 2.03(4)(b), Florida Administrative Code, the pertinent calendar year for use in determining "base line air quality" as that phrase is defined in the foregoing, is 1973. The facts establish that it is not reasonably possible to determine the base line air quality with regard to hydrocarbons for 1973. It is further established that there are no accepted techniques available to project hydrocarbon emissions by the proposed facility in a manner which would allow comparison of the 1973 hydrocarbon concentrations with the ambient air quality standards set forth in Section 17-2.05, Florida Administrative Code. The evidence establishes that the hydrocarbon emissions which are expected are insignificant in amount. Therefore, it is concluded as a matter of law that the significant degradation rule does not apply to the hydrocarbon emissions and that the evidence establishes that the projected hydrocarbon emissions will not violate the ambient air quality standards.
The evidence establishes that the base line air quality with regard to particulate concentrations in 1973 greatly exceeded the maximum allowed by the ambient air quality standards set forth in Section 17-2.05, Florida Administrative Code. Therefore, it is concluded as a matter of law that the significant degradation rule does not apply to the particulate concentrations to be emitted by the proposed facility. Further, the evidence presented establishes that the concentrations of particulate to be emitted by the proposed facility when combined with the concentrations of particulates expected to be existing in the future will not violate the ambient air quality standards.
The evidence establishes with regard to the concentrations of sulphur dioxide that the base line air quality for calendar year 1973 in Manatee County, and at the subject site, was better than the ambient air quality standard for sulphur dioxide emission set forth in Section 17-2.05, Florida Administrative Code. Therefore, the significant degradation rule does apply to the sulphur dioxide emissions of the proposed facility. In the application of that rule to those emissions however, it is established by the evidence and concluded as a matter of fact above, that the sulphur dioxide emissions of the proposed facility when coupled with the existing sulphur dioxide emissions on site will result in concentrations substantially lower than the base line air quality for such emissions as established for the year 1973. Therefore, it is concluded as a matter of law that the proposed facility will not significantly degrade the base line air quality. Since there will be no degradation of the base line air quality the Respondent, Manatee Energy Company, is not required to make the affirmative demonstration set forth in Section 17-2.03(4)(b)(ii)(c), Florida Administrative Code.
The proposed facility for which the Respondent, Manatee Energy Company seeks a construction permit, based on the evidence presented, will not result in the release of air pollutants in the atmosphere of any region, which will result in, including concentrations of existing air pollutants, ambient air concentrations greater than ambient air quality standards nor will it significantly degrade the base 1 no air quality of the subject area where applicable.
The allegations by Petitioner set forth in its Second Amended Petition upon which Petitioner bases its position that the subject application should not issue have not been established by competent substantial evidence. It is concluded as a matter of law that the evidence presented shows Respondent, Manatee Energy Company, to be entitled to the issuance of a construction permit for an air pollution source as applied for.
Therefore, it is hereby RECOMMENDED:
That the application for a permit to construct an air pollution source by the Manatee Energy Company which is the subject of this proceeding be granted and issued forthwith with the provision that an operating permit will not issue until such time as the Port Manatee Port Authority has taken the necessary corrective steps to eliminate the present violation of the ambient air quality standard with regard to particulates.
ENTERED this 10th day of January, 1978, in Tallahassee, Florida.
CHRIS H. BENTLEY
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
COPIES FURNISHED:
Judith S. Kavanaugh, Esquire
543 Tenth Street, West Bradenton, Florida 33505
Terry Cole, Esquire
Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building
Tallahassee, Florida 32301
Roger D. Schwenke, Esquire Post Office Box 3239 Tampa, Florida 33601
| Issue Date | Proceedings |
|---|---|
| Jan. 26, 1978 | Final Order filed. |
| Aug. 25, 1977 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 24, 1978 | Agency Final Order | |
| Oct. 10, 1977 | Remanded from the Agency | |
| Aug. 25, 1977 | Recommended Order | Respondent entitled to permit for air pollution source not to become operational until port cleans up present pollution. |
