STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARLINGTON EAST CIVIC ASSOCIATION, )

et al., )

)

Petitioner, )

)

vs. ) CASE NO. 78-1640

) STATE OF FLORIDA DEPARTMENT OF ) ENVIRONMENTAL REGULATION and ) DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

and )

) JACKSONVILLE TRANSPORTATION ) AUTHORITY, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this case on January 8, 9, and 10, 1979 in Jacksonville, Florida.

APPEARANCES

For Petitioners: David Gluckman, Esquire and

Casey J. Gluckman, Esquire 5305 Isabelle Drive

Tallahassee, Florida 32301

For Respondent, Joe W. Fixel, Esquire

Department of Department of Environmental Regulation Environmental 2600 Blair Stone Road

Regulation: Tallahassee, Florida 32304

For Respondent, James W. Anderson, Esquire Department of Department of Transportation

Transportation: Haydon Burns Building, Mail Station 58

Tallahassee, Florida 32304

For Intervenor, Robert M. Rhodes, Esquire Jacksonville 701 Lewis State Bank Building Transportation Post Office Box 1876 Authority: Tallahassee, Florida 32302

The State of Florida, Department of Transportation ("DOT") and the Jacksonville Transportation Authority ("JTA") seek a complex air source permit from the State of Florida, Department of Environmental Regulation ("DER") for

the Dame Point Bridge project in Jacksonville, Duval County, Florida. DER has issued notice of its intention to issue the requested permit, and Petitioners have requested a formal hearing pursuant to Section 120.57(1), Florida Statutes, to contest the issuance of the permit.

DOT and JTA contend that reasonable assurances have been provided in the application to DER that ambient air quality standards will not be violated as a result of the construction and operation of the proposed project. Petitioners contend that reasonable assurances have not been provided and further, that air quality standards will be violated as a result of the construction and operation of the bridge.

Final hearing in this cause was scheduled by Notice of Hearing dated December 8, 1979.

At the final hearing, Petitioners called DeLos DeTar and Lenore McCullagh as their witnesses. Petitioners offered Petitioners' Exhibit No. 1, which was received into evidence. DOT called A. W. Stockle, F. J. Fearnside, III, Ralph

1. Hardee, Jr., Dave M. Driggers, Ron Hergert, Ward Coutnik, and Gordon Morgan as its witnesses. DOT offered DOT Exhibits numbered 1 through 12, inclusive, each of which was received into evidence. JTA called Robert Kappelman as its witness. JTA offered JTA Exhibits 1, 2, 3, 5 and 6, which were received into evidence. JTA Exhibit No. 4 for identification was not admitted into evidence, but was proffered for inclusion in the record by JTA.

   
   

   All parties to this proceeding stipulated at the final hearing to Petitioners' standing to maintain this action under the provisions of Chapter 120, Florida Statutes. In addition, at the conclusion of the hearing all parties waived the time requirements of Chapter 120, Florida Statutes, regarding the entry of this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. JTA and DOT seek a complex air source permit from DER for construction of the Dame Point Bridge project in Jacksonville, Duval County, Florida. The application for the permit and supporting documents were filed and considered by DER in evaluating the permit.

      
      

   2. The proposed project is a 10.94 mile segment of a proposed easterly bypass around the City of Jacksonville. The project consists of a limited access, four and six-lane expressway which will become a portion of the Interstate 295 bypass system for Jacksonville. It will principally serve through traffic around urbanized Jacksonville and resident north-south traffic. The project extends from Monument Road, south of the St. John's River, to existing I-295 at U.S. 17, north of the River, and includes a six lane bridge over the St. John's River in the vicinity of Mill Cove and Dame Point. In addition to the bridge over the St. John's River, approximately 10,000 feet in length, the project includes seven grade separated intersections where major arterial roads serving urbanized Jacksonville intersect the project. The project will traverse high to medium density residential neighborhoods south of the St. John's River and medium to low density residential neighborhoods, developing industrial centers, and some rural property north of the River.

      
      

   3. Pursuant to Section 403.182, Florida Statutes, DER by formal agreement may delegate preview and evaluation of permit applications to qualified local programs. Such an agreement has been in force between DER and the Duval County Bio-Environmental Services Division since February 9, 1976. In compliance with

      that agreement, the Duval County Bio-Environmental Services Division reviewed and processed the Dame Point State Road 9-A extension application for a complex air source permit, determined that reasonable assurances of non-violation of ambient air quality standards was provided, and certified that conclusion to DER. DER then published a letter of intent to issue the permit on August 29, 1978.

      
      

   4. The Final Environmental Impact Statement (FEIS) for the project which was submitted with the application concluded that the project would be beneficial to the economic growth of the area by providing an improved transportation network. In addition, testimony established that the project would be needed in the near future by virtue of increasing traffic demand. Approximately forty to sixty percent of the north-south through traffic in the Jacksonville area is expected to use the facility. The proposed project would provide an efficient bypass for this traffic and could divert 7,000 to 10,000 vehicles per day from the downtown Jacksonville area upon completion. Evidence established that, as a direct result of construction of the project, downtown traffic congestion would be relieved; existing industry would receive more efficient transportation service; commuter traffic from southeastern Jacksonville to northern Jacksonville would be reduced by miles; transportation routes to education facilities would be improved; and tourist traffic would be routed around downtown Jacksonville. The benefits to costs ratio of the project is positive in that for every dollar spent to construct the facility, $2.80 might reasonably be expected to be returned to the community in the form of increased economic activity and more efficient transportation.

      
      

   5. Increased traffic demand in the Jacksonville-Duval County area is of such magnitude that, according to testimony at the final hearing, in the year 2000 the demand to cross the St. John's River is expected to exceed the capacities of all existing bridges, plus the proposed facility, if constructed, and another bridge crossing south of the city. JTA and DOT prepared projections for average anticipated future use of the project using the most recent, accurate and acceptable information available. Initial projections were based upon the Jacksonville Urban Area Transportation Study Network, 11WC. When the network was revised in 1977, JTA, in coordination with the Jacksonville Area Planning Board, revised the projections to be consistent with the updated Transportation Network plan for Jacksonville. This planning information, plus extensive historical data on population growth, urban development and changing land use patterns in the area of the project, were utilized to project future vehicle use for the project.

      
      

   6. The evidence clearly establishes that the proposed project generally will relieve downtown traffic congestion by diverting traffic around the city. Traffic projections indicate that the total vehicle miles traveled daily in Duval County might be reduced by as much as 600,000 miles if the project is constructed. Most of this reduction would result from eliminating circuitous routes through the downtown area. Traffic projections were in part based upon past experience with similar projects over a 10-year period, and included a factor for added traffic which might be generated by construction of the facility. The proposed project will be linked to I-95 north of Jacksonville, and will serve the southeast area of the city and provide a connection to the industrial center around Imeson Park to the north, in addition to offering a shorter and speedier route to local beaches.

      
      

   7. Average vehicle speeds through the open roadway portions of the project, and through intersections, were calculated according to commonly accepted traffic engineering methods. The evidence establishes that general

      roadway speeds should average 55 miles per hour through 1992, with a potential decline to 50 miles per hour by the year 2002. Average intersection speeds should vary from 45 to 20 miles per hour over the same time period. These calculations are based upon well-recognized and, long accepted traffic engineering data contained in the Highway Capacity Manual, 1965 edition. The method employed in these calculations is that commonly used by DOT throughout the State of Florida, and included consideration of potential future congestion as well as probable signalization of traffic at some intersections. The evidence establishes that JTA and DOT accurately analyzed roadway and intersection speeds for the proposed project according to accepted traffic engineering methods, and that reasonable predictions of air pollution loading along the project corridor based upon these speed calculations can reasonably be relied upon to establish non-violation of ambient air quality standards.

      
      

   8. Further, evidence in the record establishes that traffic speeds through the toll plaza to be constructed as a part of the proposed project were adequately analyzed. Average speeds and queuing through the toll booth facility were calculated using accepted average daily traffic projections for the project and assumed a 1,000 foot zone of deceleration/acceleration on either side of the toll booth. These calculations included deceleration, queuing, stopping at the toll booth, and acceleration away from the toll booth facility. The method employed in formulating these calculations followed recognized techniques outlined in the Transportation Traffic Engineers Handbook.

      
      

   9. DOT has asserted in the permit application here under consideration that the construction and operation of the proposed project will not violate DER ambient air quality standards. Using the traffic projections and average vehicle speeds discussed above, DOT utilized various computer modeling techniques which analyzed and modeled projected worst one-hour and eight-hour concentrations of carbon monoxide along the roadway and around critical intersections and the toll plaza. The Mobile I computer model was used to predict emissions of automobile related pollutants based upon the aforementioned traffic data. Included in the Mobile I computer program were various factors including highway speed, traffic volumes, vehicle mix, "cold" versus "hot" starts, ambient temperature, and pavement height. Emission factors generated from this computer model result in predicted pollutant loadings in grams per vehicle mile. In addition, another method, AP 42, Supplement 5, was also utilized to generate comparable emission factors. Data obtained from the Mobile I computer program and from AP 42, Supplement 5, is then programmed into another computer model, Caline II, which is a basic diffusion model designed to estimate concentrations of carbon monoxide at various points along and distances from the roadway. This computer model is a mathematical equation that simulates or predicts the concentration of pollutants at various points after they are released from their source and allowed an opportunity to mix with the atmosphere. The Caline II model can only project future expected carbon monoxide concentration levels. No computer model was used to project expected concentrations of hydrocarbons, nitrogen oxides, photochemical oxidants or other pollutants expected to be associated with the project because no such model is presently available to accurately project concentrations of those pollutants. This is due, at least in part, to the greater reactivity of those pollutants with other elements in the atmosphere. Factors included in the Caline II computer model in order to predict expected concentrations of carbon monoxide along a line source include traffic volume; a "K" factor, which is a percentage of daily traffic at a given point in "peak hour" conditions; highway width and height; wind speed; stability class; and wind direction. The result of this computer program is an expected "worst case" condition for one-hour and eight- hour concentrations of carbon monoxide along the roadway for the years 1982 and

      1992. Computer program results, which included background ambient conditions for eight-hour concentrations, affirmatively established that expected concentrations of carbon monoxide will be considerably less than the DER one- hour standard of 40 milligrams per cubic meter, and the eight-hour standard of

      10 milligrams per cubic meter. These DER standards were not exceeded at any of the intersections or along the roadway at any point.

      
      

   10. As indicated above, no computer modeling technique was utilized fox hydrocarbons, nitrogen oxides, photochemical oxidants, sulphur dioxide or total suspended particulate matter. Estimates concerning these pollutants were based upon AP 42, Supplement 5, which is a document promulgated by the United States Environmental Protection Agency, and the Mobile I computer program. These methods do not predict concentrations, but instead deal only with total emissions. The result of this analysis was that, given background levels of hydrocarbons in Duval County, the project, if constructed, either in whole or in the segment which is the subject of this permit application, hydrocarbon levels may be expected to be reduced, at least in part due to the increased average speed of vehicles using the proposed facility. In addition, since hydrocarbons appear to act as a precursor to the formation of photochemical oxidants, any reduction in the emissions of hydrocarbons can also be expected to reduce the levels of photochemical oxidants, which are a particular problem in Duval County, which has been designated a "non-attainment area" for photochemical oxidants. Further, data derived from AP 42, Supplement 5, and Mobile I, together with data from local monitoring programs, established that no violations of ambient standards are to be expected for nitrogen oxides and, since sulphur dioxide and total suspended particulate matter are not emitted in significant quantities from automobiles, no violation of air standards for these pollutants is to be expected as result of the project.

       
       

   11. In summary, testimony adduced at the final hearing demonstrated that studies submitted to DER in support of the permit application were prepared in accordance with valid, professionally and scientifically accepted methodologies. These studies adequately establish, not only that the project will not result in violations of state air quality standards, but that positive social, economic and environmental effects will accrue from construction of the proposed facility.

       
       

   12. Petitioners, JTA and DOT have submitted proposed findings of fact. Petitioner's Proposed Findings of Fact numbered 1 through 4 have been substantially adopted herein. JTA's and DOT's Proposed Findings of Fact have also been substantially adopted in this order. To the extent that proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.

       
       

       CONCLUSIONS OF LAW

       
       

   13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57, Florida Statutes.

       
       

   14. Petitioners have standing as parties whose "substantial interests" will be affected by proposed agency action in this proceeding. Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978); United States v. S.C.R.A.P., 412 U.S. 669, 93 S. Ct. 2405, 37 L.Ed. 2d 254 (1973)

   15. JTA has demonstrated facts sufficient to show that its "substantial interests" will be affected by proposed agency action in this proceeding. Florida Department of Offender Rehabilitation v. Jerry, supra; United States v. S.C.R.A.P., supra.

       
       

   16. DOT and JTA have provided DER with reasonable assurance that ambient air quality standards will not be violated by construction and operation of the proposed facility and that the facility will be consistent with DER policies for maintaining and improving air quality while promoting economic and social development, in accordance with Section 402.021(3), Florida Statutes, and Rule 17-2.01, Florida Administrative Code.

       
       

   17. DOT has provided reasonable assurance that the proposed facility will not violate ambient air quality standards in accordance with Rules 17-2.05(8)(d) and 17-2.06, Florida Administrative Code.

       
       

   18. Under the facts in the present case, DOT is not required to comply with the provisions of Rule 17-2.04(6), Florida Administrative Code, as it relates to prevention of significant deterioration, or with Rule 17-2.031(1), Florida Administrative Code, relating to best available control technology.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED:

That a Final Order be entered by the State of Florida, Department of Environmental Regulation, determining that the requested complex air source permit for the project be issued, and denying the relief requested by Petitioners.

RECOMMENDED this 28th day of March, 1979, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

David Gluckman, Esquire and

Casey J. Gluckman, Esquire 5305 Isabelle Drive

Tallahassee, Florida 32301

Joe W. Fixel, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32304

James W. Anderson, Esquire Department of Transportation Haydon Burns Building - MS58 Tallahassee, Florida 32304

Robert M. Rhodes, Esquire

701 Lewis State Bank Building

1. Box 1876

   Tallahassee, Florida 32302

   
   

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

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

   
   

   STATE OF FLORIDA

   DEPARTMENT OF ENVIRONMENTAL REGULATION

   
   

   ARLINGTON EAST CIVIC ASSOCIATION,

   et al.,

   
   

   Petitioner,

   
   

   vs. DOAH CASE NO. 78-1640

   
   

   STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION and DEPARTMENT OF TRANSPORTATION,

   
   

   Respondent,

   and

   
   

   JACKSONVILLE TRANSPORTATION AUTHORITY,

   
   

   Intervenor.

   /

   
   

   FINAL ORDER

   
   

   On March 28, 1979, the duly appointed hearing officer in the above-styled cause entered his Recommended Order, consisting of Findings of Fact, Conclusions of Law, and Recommended Order, copies of which were served on the Petitioners, Respondents, and Intervenor.

   
   

   Pursuant to Section 17-1.68(1), Florida Administrative Code, and Section 120.57(1)(b)(8), Florida Statutes, all parties were allowed ten (10) days in

   which to file written exceptions to the Recommended Order. The Petitioners filed timely Exceptions and Request for Oral Argument with the Secretary on April 4, 1979. No exceptions were filed by the Respondents or Intervenor. On April 9, 1979, Respondent, Department of Transportation, and Intervenor, Jacksonville Transportation Authority, filed a Motion to Expedite Entry of Final Orders.

   
   

   The Recommended Order and Motion to Expedite thereafter came before me, as head of the Department, for final agency action in this matter. Oral argument was had on May 1, 1979. After consideration of the Recommended Order, Petitioner's Exceptions, and Oral Argument, together with the record submitted herein, it is, therefore,

   
   

   ORDERED,

   
   

   1. That Respondent's and Intervenor's Motion to Expedite Entry of Final Orders is hereby denied.

      
      

   2. That the hearing officer's Findings of Fact are hereby adopted in toto.

      
      

   3. That the hearing officer's Conclusions of Law found in paragraphs 1, 2, 3, 5, and 6 of the Recommended Order are hereby adopted.

      
      

   4. That the hearing officer's Conclusions of Law found in paragraph 4 are adopted with respect to the conclusion that Respondent, Department of Transportation, and Intervenor have provided the Department with reasonable assurance that ambient air quality standards will not be violated by construction and operation of the proposed facility. The hearing officer's Conclusion of Law that the facility will be consistent with Department policies for maintaining and improving air quality while promoting economic and social development in accordance with Section 403.021(3), Florida Statutes, and Section 17-2.01, Florida Administrative Code, is specifically rejected. In implementing Chapter 403, Florida Statutes, the Department is empowered to establish a permit system by rule to carry out the purposes of the Florida Air and Water Pollution Control Act as stated in Section 403.021, Florida Statutes. See also Sections 403.961(16) and 403.087, Florida Statutes. The Department has carried out this legislative mandate by adopted Chapter 17-4 Florida Administrative Code, dealing with permits, and Chapter 17-2, Florida Administrative Code, dealing with air pollution. In adopting these regulations, the Department has specifically considered the purposes of Chapter 403, Florida Statutes, including the public policy to "achieve and maintain such levels of air quality as will protect human health and safety, and, to the greatest degree practicable, prevent injury to plant and animal life and property, foster the comfort and convenience of the people, promote the economic and social development of this state, and facilitate the enjoyment of the natural attractions of this state." Section 403.021(3), Florida Statutes.

      
      

      However, neither the statute nor the applicable regulations require that the promotion of economic and social development be a consideration in the Department's decision to grant or deny a permit. The general provisions of Section 17-4.07, Florida Administrative Code, establish standards for issuing or denying all Department permits. Paragraph 4 of that regulation requires the Department to deny any application for a permit where the Department determines that the source of pollution "will not be in accord with applicable laws, rules, or regulations, including rules and regulations of approved local programs.

      Section 17-4.07(4), Florida Administrative Code. Clearly, the Department could not issue a permit for a facility which it determined would violate an air

      quality standard found in Chapter 17-2, Florida Administrative Code, even though a cost-benefit analysis showed the project to be worthwhile.

      
      

      Economic and social impacts of a proposed rule must be considered during the rulemaking process. Section 120.54(2), Florida Statutes, expressly requires that an economic impact analysis be prepared for every proposed rule, assessing the long-term and short-term consequences of the proposal. However, once a rule has been adopted, the Department must assess a permit application solely on the basis of the requirements set forth in the applicable regulations. Any other basis would be unfair to permit applicants and would destroy any uniformity in permit issuance and denial.

      
      

      Section 403.021, Florida Statutes, and Section 17-2.01, Florida Administrative Code, merely state the general purposes and policies to be followed by the Department. They do not establish standards which must be considered in processing a permit.

      
      

   5. That the Petitioner's Exceptions to hearing officer's Recommended Order are hereby rejected in toto. Petitioner has failed to comply with the requirements of Section 17-1.68(1), Florida Administrative Code, that exceptions must state, with particularity, the basis for asserting that the hearing officer's Recommended Order was in error. See Stuckeys of Eastman, Georgia v. Department of Transportation, 340 So.2d 119, 120 (Fla. 1st DCA 1976).

Accordingly, the hearing officer's Recommended Order, as modified by this Final Order, is hereby adopted as the final agency action of the Department.

The Department shall issue a complex air source permit to the applicant pursuant to Section 17-2.08, Florida Administrative Code, fifteen (15) days from the date of execution of this Order, with conditions ordinarily attached to such permits.

DONE AND ENTERED, this 7th day of May 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 copy of the foregoing Final Order has been furnished by United States Mail to the following persons listed below, this 9th day of May, 1979:

WILLIAM E. WILLIAMS DAVID GLUCKMAN, ESQUIRE and

Hearing Officer CASEY J. GLUCKMAN, ESQUIRE Division of Administrative 5305 Isabelle Drive

Hearings Tallahassee, Florida 32301 Room 530, Carlton Building

Tallahassee, Florida 32304 JAMES W. ANDERSON, ESQUIRE

Department of Transportation

PAUL PARKS Haydon Burns Building - MS58 Enforcement Administrator Tallahassee, Florida 32304 State of Florida Department of

Environmental Regulation ROBERT M. RHODES, ESQUIRE Twin Towers Office Building 701 Lewis State Bank Building 2600 Blair Stone Road Post Office Box 1876 Tallahassee, Florida 32301 Tallahassee, Florida 32302

G. DOUG DUTTON OFFICE OF PUBLIC INFORMATION

Subdistrict Manager State of Florida Department of St. Johns River Subdistrict Environmental Regulation 3426 Bills Road Twin Towers Office Building Jacksonville, Florida 32207 2600 Blair Stone Road

Tallahassee, Florida 32301

MARY F. CLARK

Assistant General Counsel State of Florida, Department

of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Telephone: (904) 488-9730

Docket for Case No: 78-001640

Orders for Case No: 78-001640