Judges: CHARLES C. ADAMS
Agency: Department of Environmental Protection
Latest Update: Apr. 02, 1979
Summary: Whether or not the Respondent, Lee County Board of County Commissioners, is entitled to be granted a Complex Air Source Permit for the construction of a segment of four-lane road known as Daniels Road, which is described as a controlled access arterial highway approximately five miles in length connecting 41 to Interstate-75.Petitioner failed to show granting complex air source permit would irrevocably harm them or the environment. Grant permit.
78-1014.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JOHN C. WALKER, et al., )
)
Petitioners, )
)
vs. ) CASE NO. 78-1014
) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, ) and LEE COUNTY BOARD OF COUNTY ) COMMISSIONERS, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, at 10:00 a.m., January 23, 1979, in the Council Chambers, City Hall, 2200 Second Street, Fort Myers, Florida.
APPEARANCES
For Petitioners: E. G. Couse, Esquire
Grace & Couse, P.A.
Suite 202, Courtney Building Post Office Drawer 1647
Fort Myers, Florida 33902
For Respondent, R. L. Caleen, Jr., Esquire Department of General Counsel
Environmental Department of Environmental Regulation Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32301
For Respondent, Beverly E. Myers, Esquire Lee County Board Assistant County Attorney of County Lee County
Commissioners: Post Office Box 398
Fort Myers, Florida 33902 ISSUE
Whether or not the Respondent, Lee County Board of County Commissioners, is entitled to be granted a Complex Air Source Permit for the construction of a segment of four-lane road known as Daniels Road, which is described as a controlled access arterial highway approximately five miles in length connecting
41 to Interstate-75.
FINDINGS OF FACT
This cause comes on for consideration based upon the petition of John
C. Walker and others, residents of Fort Myers, Florida, who have challenged the Respondent, State of Florida, Department of Environmental Regulation's intention to grant a Complex Air Source Permit to the Respondent, Lee County Board of County Commissioners, for purposes of constructing a four-lane road at Daniels Road, Lee County, Florida.
The Respondent, State of Florida, Department of Environmental Regulation, is an agency charged with the promotion and protection of air quality within the State of Florida. The authority for this function is found in Chapter 403, Florida Statutes, and various rules enacted to implement the provisions of this statute. Specifically, as it pertains to this dispute, the Respondent, State of Florida, Department of Environmental Regulation, is charged with the maintenance of Ambient Air Quality Standards. The standards are set forth in Chapter 17-2, Florida Administrative Code. To carry out this function, Rule 17-2.06, Florida Administrative Code, has been enacted, which establishes maximum limiting levels for Ambient Air Quality Standards. This sets the allowable limits for pollutants existing in the ambient air, the purpose for such standards being the protection of human health and public welfare. It involves the consideration of the pollutants, sulphur dioxide, particulate matter, carbon monoxide, photochemical oxidants (by measurement and correction for interference due to nitrogen oxide and sulphur dioxide), hydrocarbons (used as a guide in devising implementation plans to achieve oxidant standards, to be measured and corrected to methane), and nitrogen dioxide.
The Respondent, Lee County Board of County Commissioners, is a unit of local government in the State of Florida charged with the function of carrying on the business of government for that county, to include the construction of those roads necessary to accommodate the needs of the public. To that end, on February 1, 1978, the Respondent, Lee County Board of County Commissioners, applied for a Complex Air Source Permit to be granted for the construction of a four-lane road at Daniels Road, Lee County, Florida. Subsequent to that initial application, revisions of the data provided in support of the application were made on October 12, 1978, and again on January 19, 1979. That application, as revised, may be found as the Respondent's (Lee County) Exhibit No. 1 admitted into evidence and includes aerial photographs.
On May 4, 1978, through the person of Phillip R. Edwards, District Manager of the State of Florida, Department of Environmental Regulation, South Florida District, an indication was given that the department intended to issue a Complex Air Source Permit to the Lee County Board of County Commissioners. This exhibit is found as the Respondent's (Lee County) Exhibit No. 2 admitted into evidence. An engineer for the South Florida District, State of Florida, Department of Environmental Regulation, has made a review of the revisions in addition to the original application and is still of the persuasion that the Complex Air Source Permit should be granted.
This letter of intent to grant the permit makes reference to the permitting chapter of the Florida Administrative Code pertaining to Complex Air Source Permits and other types of permits. Rule 17-4.07, Florida Administrative Code, sets out the general criterion which must be met prior to the issuance of the Complex Air Source Permit. That provision establishes the need for the applicant to affirmatively provide reasonable assurances based on its plans, test results and other information that the construction of the road and operation on that road will not discharge, emit or cause a violation of the
Ambient Air Quality Standards set forth in Rule 17-2.06, Florida Administrative Code, previously referenced. In this case, those assurances have been given.
In examining the particular pollutants set out in the Ambient Air Quality Standards table, sulphur dioxide and particulate matter are not items of significant concern, because motor vehicles do not promote the emission of those pollutants in quantities sufficient to exceed the maximum limiting levels.
In measuring the amount of carbon monoxide, Lee County utilized a technique known as the representative site method, to be applied in the Cal-Air Model. The ecolyzer which measures this pollutant, was placed in various locations near the intersection of U.S. 41 and Daniels Road, with the object in mind to achieve the gravest readings as a basis for projecting the future amounts of carbon monoxide that would be present in the area of the proposed road expansion.
The traffic projections and average speed at the intersection were factored in by Joseph Ebner, P.E., an expert in traffic engineering. The most recent statement of those traffic projections may be found in the January 19, 1979, revision to the application offered by the Respondent, Lee County Board of County Commissioners, which is a part of that Respondent's Exhibit No. 1. In that revision, as was the case of the revision of October 12, 1978, and the original application, the average speed at the intersection was established at fifteen miles per hour, calculated from an engineering textbook, "Highway Capacity Handbook (1975), Highway Research Board, Special Report No. 87". This represents the lowest average speed for an eight-hour period in a signalized intersection of an urban area. In arriving at the traffic count calculations, Mr. Ebner relied on the Lee County Transportation Study, Technical Report No. 6, which contains traffic projections for the year 1990. A copy of this report may be found as Petitioner's Exhibit No. 10 admitted into evidence. The statistics found in that report take into account the projected construction of a regional airport located east of Interstate-75 on Daniels Road, to be opened in the year 1982, and the Opinion that Canal Road, which will intersect with Daniels Road, will be opened in that same year. Calculations made in the January 1, 1979, revision are based upon the belief of a rate of increase in traffic to be eight percent per annum in the area of the intersection of U.S. 41, Cypress Lake Drive and Daniels Road. (At this point it should be indicated that the calculations in the revision of January 1, 1979, labeled, 8-hour Co. Concentrations, U.S. 41 & Cypress Lake Drive [natural traffic mix], are improperly depicted in the columns entitled, "U.S. 41 and Cypress Lake Drive" and must be transposed in their labeling to arrive at the proper mathematical result.)
When that adjustment is made, it is established that the highest concentration of carbon monoxide in an eight-hour period in the intersection of
U.S. 41 and Cypress Lake Drive in the location of the northwest quadrant for the years 1980 through 1990 was in the year 1980. In that year the measurement would be 9.13 mg/m3 in an eight-hour period. The second most severe year is 1981, in which the measurement is 9.10 mg/m3 as the highest eight-hour carbon monoxide concentration levels in that intersection. The balance of those measurements for the years 1982 through 1990 may be found in the Respondent's, Lee County Board of County Commissioners, Exhibit No. 1 in the January 19, 1979, revision to the permit application. Finally, it should be indicated that the projections made by the Lee County Board of County Commissioners in its application are premised upon a vehicular mix of ninety-four percent automobiles and six percent trucks.
Tom Davis, an engineer for the Department of Environmental Regulation, who has the responsibility to review permit applications for Complex Air Source Permits, was involved in advising the applicant on the requirements for compliance for the granting of the permit. Through his involvement, Mr. Davis has been satisfied with the techniques used by the applicant in its efforts at measuring the carbon monoxide and the modeling necessary to answer the ultimate question of whether or not this project will violate the Ambient Air Quality Standards. In this instance, Mr. Davis does not believe those air quality standards will be violated.
His testimony established that there are no models designed specifically for the measurement of photochemical oxidants, hydrocarbons or nitrogen dioxide. The hydrocarbons and nitrogen dioxide are area wide phenomena and are not subject to such specific site measurement. However, the area wide monitoring which has been done for nitrogen dioxide throughout the State of Florida, and more particularly in Lee County, Florida, has never shown that pollutant to exceed ten percent of the maximum limiting level. Moreover, carbon monoxide, hydrocarbons and nitrogen dioxide are felt to decrease at roughly the same percentage rate throughout the years, so that the decrease in the carbon monoxide levels at the project site beyond 1980 would reflect a similar decrease at that site in the amounts of hydrocarbons and nitrogen dioxide. Therefore, if there are no problems with carbon monoxide there is no reason to believe that there would be a problem with hydrocarbons and nitrogen dioxide, nor with the photochemical oxidants which are a bi-product of hydrocarbons and nitrogen dioxide combinations.
These opinions stated herein are those of Mr. Davis, and David Barker, Ph.D., an air quality expert who testified in behalf of the Respondent, Lee County Board of County Commissioners, agrees. As indicated, these opinions are well founded.
Notwithstanding the belief that the Respondent, Lee County Board of County Commissioners, has complied with the requirements of law, an examination of the Petitioners position would seem to be indicated.
The Petitioners' argument against the approval of the Complex Air Source Permit falls into two broad categories. The first of those categories has to do with the allegation that the Respondent, Lee County Board of County Commissioners, failed to comply with the instructions in the application form. After considering the testimony in this cause and the exhibits submitted, this contention on the part of the Petitioners is rejected.
The second basis for attacking the application concerns the techniques for gathering and applying the data which was utilized by the Respondent, Lee County Board of County Commissioners, in their efforts to establish reasonable assurances that the project would not violate Ambient Air Quality Standards in terms of the maximum limiting levels set forth in Rule 17-2.06, Florida Administrative Code. To this end, the Petitioners offered a series of competing statistics through their exhibits, in terms of traffic projections. In addition, their expert on air quality, Dr. Detar, was of a different persuasion on the question of the average automobile speed through the signalized intersection U.S. 41 and Daniels Road. In Dr. Detar's mind the average speed would be eight miles per hour as the low average speed for an eight-hour period. In view of all the testimony, this projection of the low average speed is not found to be acceptable. Finally, the Petitioners were of the persuasion that the average mix of automobiles and trucks in the area of the project would be more along the lines of the national average of eighty percent cars and twenty
percent trucks. The studies conducted by the Respondent, Lee County Board of County Commissioners, in prior projects demonstrated the efficacy of the ninety- four percent automobiles and six percent trucks standard.
In measuring other sources of pollution than sulphur dioxide and particulate matter (which the Petitioners do not question in this case), Dr. Detar believed that hydrocarbons and nitrogen dioxide could be modeled. His explanation of the modeling technique, when contrasted with the argument of the Lee County Board of County Commissioners and the State of Florida, Department of Environmental Regulation, to the effect that those two substances may not be modeled on a specific site basis, failed to be persuasive.
In summary, in contrasting the evidence offered in behalf of the Petitioners with that offered in behalf of the Respondent; the Respondent, Lee County Board of County Commissioners, has demonstrated reasonable assurances that maximum limiting levels of the applicable pollutants will not be exceeded in the area of the project.
The various memoranda and proposed findings of fact and conclusions of law have been reviewed by the undersigned, and to the extent that those items are not inconsistent with the findings of fact rendered herein and conclusions of law and recommendation, they are hereby acknowledged by the entry of this Order. To the extent that those aforementioned items are inconsistent with the findings of fact, conclusions of law and recommendation by the undersigned, they are rejected.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this cause.
The Motion to Dismiss certain aspects of the petition was made by the Respondent, Lee County Board of County Commissioners, prior to the taking of testimony and an ore tenus order was rendered which dismissed any consideration of noise pollution, water quality, property values or the propriety of alternate routes for the proposed road, on the basis that these matters were not proper subjects for consideration in a case in which the issue was solely that of considering the Ambient Air Quality Standards that pertained to the pollutants discussed in Rule 17-2.06, Florida Administrative Code.
The Respondent, State of Florida, Department of Environmental Regulation, offered as its Exhibit No. 1 a certain Order entered in a rules challenge case before the State of Florida, Division of Administrative Hearings, styled J.W.C. Company, Inc., D.W. Knappen and Betty T. Knappen v. Department of Environmental Regulation, Case No. 78-1389R. The Respondent moved for its admission on the basis that the principals espoused in that Order are controlling on the question of the necessity to measure pollutants other than carbon monoxide as a prerequisite to granting a Complex Air Source Permit. That Order has been reviewed and the request for the admission of the exhibit is hereby denied. The basis of this denial is the fact that each permit application must be considered on its own merits and the necessity to model for all the given pollutants or utilize other techniques for establishing the level of pollutants must be established on a case-by-case basis. The case which is the subject of the exhibit does not create hard and fast rules of policy for the consideration of these pollutants in every case that is somehow similar. The Order is at best argument and nothing more.
It is concluded as a matter of law that the Respondent, Lee County Board of County Commissioners, is entitled to the issuance of the Complex Air Source Permit for the construction of the improvements at Daniels Road, Lee County, Florida, in accordance with Chapter 403, Florida Statutes, and Chapters 17-2 and 4, Florida Administrative Code.
RECOMMENDATION
It is recommended that the Respondent, Lee County Board of County Commissioners, be granted a Complex Air Source Permit for the construction of the improvements at Daniels Road, Lee County, Florida.
DONE AND ENTERED this 1st day of March, 1979, in Tallahassee, Florida.
CHARLES C. ADAMS
Hearing Officer
Division of Administrative Hearings Room 101, Collins Building
MAIL: 530 Carlton Building Tallahassee, Florida 32304
COPIES FURNISHED:
E. G. Couse, Esquire Grace & Couse, P.A.
Suite 202, Courtney Building Post Office Drawer 1647
Fort Myers, Florida 33902
L. Caleen, Jr., Esquire General Counsel
Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32301
Beverly E. Myers, Esquire Assistant County Attorney Lee County
Post Office Box 398
Fort Myers, Florida 33902
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JOHN C. WALKER, et al.,
Petitioners,
vs. Case No. 78-1014
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
and LEE COUNTY BOARD OF COUNTY COMMISSIONERS,
Respondents.
/
FINAL ORDER
BY THE DEPARTMENT:
On March 1, 1979, the Division of Administrative Hearings ("DOAH") hearing officer assigned to conduct a hearing in the above-styled cause submitted his Recommended Order to the Department pursuant to Section 120.57, Florida Statutes.
Pursuant to 17-1.68, Florida Administrative Code and Section 120.57(1)(b)(8), Florida Statutes, the Petitioners, John C. Walker, et al., filed Exceptions to the Recommended Order, but did not request the opportunity to present oral argument. Respondent, Lee County, subsequently filed its Objections to Exceptions to Recommended Order.
Petitioner's Exceptions are respondent to in the order in which they are presented:
Petitioners argue that for the purpose of calculating air pollution concentrations, the average speed at the intersection in question should not be determined without consideration of the expected "mid-block" speed of vehicles. This is valid only if there is a significant difference between the mid-block" vehicle speeds and the speeds at the intersection.
In this case, the Respondents expert in traffic engineering assumed that the level of service applicable to this intersection area was "E" level - indicative of serious traffic congestion and intolerable delay. Therefore, it is not expected that there will be a significant difference in speed between the intersection and "mid-block" areas.
It cannot be reasonably disputed that the calculations at issue were inadvertently mislabled by Respondent.
The Respondents presented competent substantial evidence to support the hearing officers utilization of the 94%/6% automobile-truck mix in calculating expected pollutant concentrations.
Upon consideration of the DOAH hearing officers Recommended Order, a copy of which is attached hereto as Exhibit I, and the pleadings filed by the parties in response to the Recommended Order, and being otherwise fully advised, it is
ORDERED that the DOAH hearing officer's Recommended Order, including findings of fact and conclusions of law (Exhibit I) is adopted in toto as the final action of this Department. Accordingly, the District Manager of the South Florida District is directed to issue, to Respondent Lee County, within twenty
(20) days, the requested Complex Air Source Permit authorizing the construction of a segment of a four-lane road, located in Lee county, Known as Daniels Road. The permit shall contain such conditions as are ordinarily attached to permits of this nature.
DONE AND ORDERED this 29th day of March, 1979, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
JACOB D. VARN
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished to Beverly E. Myers, Assistant County Attorney for Lee County, Florida, Post Office Box 398, Fort Myers, Florida 33902, by U.S. Mail this 29th day of March, 1979, and E.G. Couse, Esquire, of Grace & Couse, P.O. Drawer 1647, Ft. Myers, Florida 33902
R.L. CALEEN, JR. General Counsel
Department of Environmental Regulation
2600 Blair Stone Road
Twin Towers Office Building Tallahassee, Florida 32301
(904) 488-9730
Copies furnished to:
Mr. Phil Edwards
Dr. J.P. Subramani Ms. Mary Clark
Docket for Case No: 78-001014
Orders for Case No: 78-001014
| Issue Date |
Document |
Summary |
|
Mar. 29, 1979 |
Agency Final Order
|
|
|
Mar. 01, 1979 |
Recommended Order
|
Petitioner failed to show granting complex air source permit would irrevocably harm them or the environment. Grant permit.
|
