STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLENN E. BENHAM, N. VIRGINIA ) BENHAM, JOE KITE, DOROTHY LONG, ) HENRY NAUBEREIT, and GLORIA ) NAUBEREIT, )

)

Petitioners, )

)

vs. ) CASE NO. 82-1356

) PINEWOOD MATERIALS CORPORATION, )

Anthony Paterniti, President; ) and DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in this matter on July 16, 1982, in Key West, Florida. The following appearances were entered:

APPEARANCES

For Petitioners: Henry Naubereit, Pro Se

Joe Kite, Pro Se

no other appearances were entered on behalf of other named Petitioners;

For Respondent Robert T. Feldman, Esquire Pinewood Feldman & Eden

Materials 417 Eaton Street Corporation: Key West, Florida 33040

For Respondent

Department of Charles G. Stephens, Esquire Environmental Department of Environmental Regulation Regulation: Tallahassee, Florida 32301

Pinewood Materials Corporation ("Pinewood" hereafter) filed an application with the Department of Environmental Regulation to operate an air pollution source. Pinewood was seeking a permit to construct and operate a concrete batching plant on Big Pine Key, Florida. The Department gave notice of its intent to issue the permit on or about April 14, 1982. Six individuals directed a letter to the Department requesting a hearing in accordance with Section 120.57, Florida Statutes. The Department forwarded the matter to the Division of Administrative Hearings on May 13, 1982, requesting that a Hearing Officer be appointed and that a hearing be scheduled. Pinewood moved to dismiss the request for hearing and the Department joined in the motion. The motion was

granted by Order entered June 10, 1982, and Petitioners were allowed an opportunity to amend the petition. An Amended Petition was filed, and the hearing was scheduled as set out above. At the hearing Pinewood moved to dismiss the "Amended Petition." The motion was denied on the record.

Pinewood called the following witnesses: Anthony Paterniti, the owner of Pinewood; and Glenn Boe, the branch office manager for the Department of Environmental Regulation's Marathon, Florida office. The Department called David M. Knowles, a professional engineer employed with the Department in its Ft. Myers office, as a witness. The Petitioners Naubereit and Kite appeared and testified as witnesses on their own behalf, and called Marie Landry, the President of Big Pine Key Civic Association, as an additional witness.

Petitioners' Exhibits 1-6 and Respondents' Exhibits 2-8 were offered into evidence and received. Respondents' Exhibit 1 was marked for identification, but was not offered into evidence and did not become a part of the record.

The Petitioners and Respondent have submitted post-hearing arguments which include recommended findings of fact and conclusions of law. The recommended findings and conclusions have been adopted only to the extent that they re expressly set out in the findings of fact and conclusions of law which follow. They have been otherwise rejected as not supported by evidence, contrary to the evidence, irrelevant to the issues, or legally erroneous.

ISSUES

The issue in this proceeding is whether Pinewood should be granted a permit to construct and operate an air pollution source, specifically a concrete batching plant. Petitioners contend that Pinewood has failed to give reasonable assurances that it can operate the plant in harmony with the Department's rules and regulations, and that deed restrictions on the property where Pinewood proposes to construct the plant prohibit it. Pinewood and the Department contend that Pinewood has provided reasonable assurance that the plant will not result in violation of the Department's air pollution source standards.

FINDINGS OF FACT

1. Pinewood is seeking to construct a concrete batching plant on Big Pine Key, Florida. The plant would be located within 1,000 feet of a body of water known as "Coupon Bight." Petitioners reside in a residential area across Coupon Bight from the plant location. Their residences are approximately one mile from the plant. If the proposed plant resulted in violations of the Department of Environmental Regulation's air pollution standards, Petitioners would suffer a degradation of their living environment. This would be especially true if the proposed plant resulted in violations of the Department's standards for particulate or dust emissions.

   
   

2. Pinewood was formed as a corporation in August, 1981. It appears that the corporation was formed primarily to construct and operate the concrete batching plant which is the subject of this proceeding. In November, 1981, Pinewood obtained applicable construction permits from Monroe County, Florida. Pinewood ordered the plant from Stephens Manufacturing Company in Kentucky. The plant was constructed on the site during November, 1981. Anthony Paterniti, Pinewood's President, was responsible for obtaining the local permits and constructing the plant. He was not aware that permits would be required from the Department of Environmental Regulation before the plant could be constructed and operated. The Department of Environmental Regulation cited Pinewood for constructing the plant without the proper permits by initiating an enforcement

   proceeding. The enforcement proceeding was concluded by the Department and Pinewood entering into a consent order. Pinewood paid a fine of $250.

   Paterniti construed the consent order as allowing him to operate the plant. During April, 1982, the plant operated for nineteen days. The Department again initiated enforcement proceedings. These proceedings were concluded by the Department and Pinewood again entering into a consent order. During this time, Pinewood filed its application with the Department to construct and operate the concrete batching plant. The plant, while already constructed, has not operated since April, 1982.

   
   

3. The plant, which Pinewood has already constructed and proposes to operate, is a ten yard batching plant. It batches, or loads, aggregate and cement into a cement truck, where the materials are mixed while on route to a job site. The plant is large enough to load only one truck at a time. The only air pollution that is likely to result from operation of such a plant is particulate emissions, or dust. In order to reduce these emissions, a "bag house" is installed in such a manner as to trap cement dust. The "bag house" functions in the manner of a vacuum cleaner, allowing air to pass through it, but trapping emissions. In normal use, a plant such as Pinewood's would emit approximately one-half pound of cement dust per hour into the air. Without use of the "bag house" from 7 to IS pounds per hour could be expected to be emitted.

   
   

4. A second source of particulate emissions from operation of a hatching plant is the loose aggregate that is stored adjacent to the plant. If the aggregate is not properly stored, wind can blow it about and cause substantial emission of cement dust into the air. It is possible to virtually eliminate this source of pollution. Pinewood proposes to store loose aggregate within concrete bins. During high wind episodes, the bins could be covered. Pinewood also proposes to keep loose aggregate wet by sprinkling it with water, thus reducing that source of pollution. Other dust that might result from operation of a hatching plant such as would result from the utilization of heavy trucks in dusty areas are controllable. Pinewood has placed a firm marl base around the plant which can be kept wet during dry times.

   
   

5. So long as the proposed concrete hatching plant is properly operated, and loose aggregate in the area is properly managed, it is not likely that emissions from the operation would result in violation of the Department's air pollution standards set out in Chapter 17-2, Florida Administrative Code. Pinewood's plant would be operated by Anthony Paterniti. Paterniti is a licensed general contractor. He is familiar with the operation of batching plants. While operating the plant is not difficult and maintenance requirements are minimal, it is necessary that proper operating and maintenance procedures be carefully observed.

   
   

6. The property on which Pinewood proposes to operate its batching plant is owned by David S. and Judy A. Shephard. It appears that the Shephards are partners in the cement batching plant venture with Pinewood, and that they are prepared to enter into a lease agreement with Pinewood. The deed by which the Shephards obtained the property contains the following deed restriction: "The property may not be used as a site of a cement plant." Local government authorities in Monroe County have apparently interpreted this restriction to not include a concrete batching plant, but rather pertain to a cement manufacturing plant. There was testimony offered at the hearing from which it could be concluded that the intent of the restriction was to include batching plants.

7. Petitioners have contended that there is a likelihood that operation of the plant would result in violations of water quality standards in Coupon Bight. The evidence does not sustain that contention.

   
   

8. In an effort to get the petitioners to drop their opposition to this permit application, Paterniti wrote a letter dated June 1, 1982, to all the Petitioners. The letter included the following:

   
   

   I think that you all should know that the Benhams [two of the originally named Petitioners] themselves have an illegal duplex on RU-1 zoning on lot 17, block 3 Pine

   Channel Estates. I intend to file a zoning violation with the Monroe County Zoning Dept. and have this violation of our zoning laws investigated. I am prepared to go to court over this matter.

   * * *

   I would like to ask your group to write a letter to the DER withdrawing your request for a hearing. If you do this, I will not file the zoning violation with the county, which I intend to do this week. You leave me no other choice.

   
   

   The tone of this letter is certainly threatening; however, it does not stand as evidence to establish that Pinewood is incapable of properly operating a concrete batching Plant.

   
   

9. No evidence was offered as to the interests of Petitioners other than Naubereit and Kite in this proceeding, and no appearance was entered on their behalf at the hearing.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57(1), 120.60, Florida Statutes.

    
    

11. No evidence was offered at the hearing from which it could be concluded that the Petitioners other than Henry Naubereit and Joe Kite have the requisite interest in this proceeding to oppose Pinewood's permit application. The request for hearing should therefore be dismissed as to the Petitioners other than Naubereit and Kite.

    
    

12. Pinewood has provided reasonable assurances that the concrete batching plant, which is already constructed and which it proposes to operate, will not result in violations of the Department of Environmental Regulation's air pollution standards. The only air pollution that could be expected to result from operation of the plant is particulate emissions. With use of the "bag house", with proper operating and maintenance procedures being followed, and with proper maintenance of materials that are stored adjacent to the plant, the plant should result in particulate emissions which are considerably less than maximum limits established under the Department's rules. Rule 17-2.610, Florida Administrative Code. In order to assure that the plant is properly maintained and operated, it is appropriate that the Department periodically inspect the plant, and impose conditions upon the permit that the plant be kept in good

    repair, be properly operated, and that loose aggregate be properly maintained. It is also appropriate that the permit be limited to a specified period, five years, so that Pinewood would be required to reestablish its ability to properly operate the plant after that period.

    
    

13. Petitioners have contended that Pinewood has not established that it has a record interest in the land where the plant has been constructed, or consent of the landowner. This contention is without merit. The evidence establishes that the landowner is a partner in the venture with Pinewood, and is prepared to enter into a lease agreement.

    
    

14. Petitioners contend that operation of a batching plant is contrary to deed restrictions attached to the property, and violates local zoning ordinances. These are not matters that can be properly resolved by the Department of Environmental Regulation.

RECOMMENDED ORDER

Based upon the foregoing findings of fact and conclusions of law, it is, hereby

ORDERED:

1. That the Department of Environmental Regulation issue an "after-the- fact" permit allowing Pinewood Materials Corporation to construct a concrete batching plant on Big Pine Key, Florida, and that the Department issue a permit to Pinewood allowing Pinewood to operate the plant for a period of five years subject to the conditions that the plant be properly operated and maintained and that adequate provision be made to control emissions from the aggregate which is stored in connection with operation of the plant.

   
   

2. That the request for hearing be dismissed as to all Petitioners other than the Petitioners Naubereit and Kite.

RECOMMENDED this 13th day of August, 1982, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1982.

COPIES FURNISHED:

Mr. & Mrs. G. E. Benham Route 1, Box 780

Big Pine Key, Florida 33043

Mr. Joe Kite Route 1, Box 779A

Big Pine Key, Florida 33043

Ms. Dorothy Long Route 1,Box 780F

Big Pine Key, Florida 33043

Mr. & Mrs. Henry Naubereit Route 1, Box 779

Big Pine Key, Florida 33043

Robert T. Feldman, Esquire Feldman & Eden

417 Eaton Street

Key West, Florida 33040

Charles G. Stephens, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Mr. Tony Paterniti

c/o Pinewood Materials Corp. Post Office Box 141

Big Pine Key, Florida 33043

Ms. Victoria Tschinkel Secretary

Department of Environmental Regulation

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

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

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

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL REGULATION

GLENN E. BENHAM, N. VIRGINIA BENHAM, JOE KITE, DOROTHY LONG, HENRY NAUBEREIT, and GLORIA NAUBEREIT,

Petitioners,

vs. CASE NO. 82-1356

PINEWOOD MATERIALS CORPORATION,

Anthony Paterniti, President; and DEPARTMENT OF ENVIRONMENTAL REGULATION,

Respondents.

/

FINAL ORDER

This matter comes before me for final agency action upon the receipt of a recommended order, containing findings of fact and conclusions of law, by the hearing officer assigned in the above-styled case. The recommended order was submitted on August 13, 1982, with copies to all parties, a copy of which is attached hereto as Appendix I. No exceptions or subsequent pleadings have been filed.

A review of the record in this proceeding, including the hearing officer's recommended order, reveals some confusion as to the nature of the permit sought by Pinewood Materials Corporation. The hearing officer's introductory statement indicates that "Pinewood was seeking a permit to construct and operate a concrete batching plant on Big Pine Key, Florida," (Recommended Order, p. 1) and identifies the issue in the case as to "whether Pinewood should be granted a permit to construct and operate an air pollution source, specifically a concrete batching plant." (Recommended Order, p. 2). In Findings of Fact No. 1, however, the hearing officer states that "Pinewood is seeking to construct a concrete batching plant on Big Pine Key, Florida" (Recommended Order, p. 3). (emphasis supplied)

Although such confusion is understandable in light of the record which includes two prior consent orders involving the Respondent, the first for constructing the facility without a permit and the second for operating it without a permit (See Finding of Fact No. 2, Recommended Order, p 3), appropriate clarification is needed for final agency action.

The permit at issue here is a construction permit as set forth in the Department's Notice of Proposed Agency Action (Respondent's Exhibit No. 5, a

copy of which is attached hereto as Appendix II). A construction permit, pursuant to Florida Administrative Code Rule 17-2.210(1):

"Shall be issued for a period of time sufficient to allow construction of the source and operation while the new or modified source is beginning operation and conducting tests to determine whether the source is in compliance with applicable emission limiting standards."

The pertinent rule regarding operating permits for air Pollution sources is contained in Florida Administrative Code Rule 17-2.210(2), which provides:

(2) Air Operating Permits - Subsequent to construction and compliance testing, each

source shall obtain an air operating permit in accordance with Chapter 17-2 and 17-4, FAC.

At a minimum, a permit issued pursuant to this provision shall:

1. Specify the manner, nature, volume and frequency of the emission permitted, and the applicable emission limiting or performance standard, if an; and

2. Require proper operation and maintenance of any pollution control equipment in accordance with the provision of the source's operation and maintenance plan required by Sections 17-2.230 or 17-2.650(2), FAC. (emphasis supplied).

Hence the matter pending before me for final agency action is a permit for the construction of an air pollution source.

Except as noted and modified by the foregoing, the hearing officer's findings of fact and conclusions of law are adopted as the basis for final agency action in this matter.

Wherefore, IT IS ORDERED that:

1. The request for hearing on behalf of petitioners Glenn E. Benham, N. Virginia Benham, Dorothy Long and Gloria Naubereit be and is hereby DISMISSED.

   
   

2. The South Florida District office shall issue forthwith to Pinewood Materials Corp. a permit to construct an air pollution source, to wit, a concrete batching plant, containing appropriate conditions for the control of particulate emissions from or related to aggregate stored on site.

   
   

3. Said permit shall specify the steps necessary for obtaining an operating permit, including a time limitation for submitting proof of compliance testing.

DONE AND ORDERED this 30th day of August, 1982, in Tallahassee, Florida.

VICTORIA J. TSCHINKEL

Secretary

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

2600 Blair Stone Road Tallahassee, Florida 32301

Telephone: (904) 488-9730

FILING AND ACKNOWLEDGMENT

FILED, on this date, with the designated Department Clerk, receipt of which is hereby acknowledged.

PATRICIA MULLINAY 8/30/82

Clerk Date

Docket for Case No: 82-001356

Orders for Case No: 82-001356