STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL L. PEMBERTON, et al., )

)

Petitioners, )

)

vs. ) CASE NO. 85-0621

)

TRIANGLE CONSTRUCTION ROAD ) BUILDING, INC. and DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

This matter came on for hearing in Panama City, Florida on May 7, 1985, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

For Petitioner: Lynn C. Higby, Esquire

BRYANT, HIGBY & WILLIAMS, P.A.

Post Office Box 124

Panama City, Florida 32402

For Respondent: E. Gary Early, Esquire and Department of Clare E. Gray, Esquire Environmental Department of Environmental

Regulation

This matter arose on Petitioners objection to DER's notice of intent to permit construction of an asphalt

concrete mix batch plant on U.S. Highway 231, seven and one-half miles north of Panama City. These proceedings relate only to the air construction permit and not to stormwater control, which has been found exempt from regulation by DER (See DER Exhibit 1).

The Applicant submitted photographic exhibits (numbered 6 through 13) subsequent to the close of the evidentiary record. There was no motion to reopen such record or other arrangements for this late filing.

Therefore, Applicant's proposed exhibits 6 through 13 are rejected.

The parties submitted proposed findings of fact pursuant to Subsection 120.57(1)(b)4, Florida Statutes. A ruling on each proposed finding of fact has been made either directly or indirectly herein, except where such proposed findings have been rejected as subordinate, cumulative, immaterial, or unnecessary.

FINDINGS OF FACT

1. On January 23, 1985, following the filing of the and its on-site inspection, DER issued its notice of intent to grant the air construction permit, pursuant to Chapter 403, Florida Statutes (F.S.), and Chapters 17-2 and 17-4, Florida Administrative Code (F.A.C.). The notice stated that the proposed equipment, with a cyclone primary dust collector followed by a Dustex Baghouse Model DW-14-28W dust collector, was adequate to insure compliance with DER particulate emission standards. The ambient air standards for sulfur dioxide emissions by the plant were to be controlled by the use of low sulfur fuel oil (maximum 0.5 percent sulfur).

   
   

2. Subsequent to the issuance of the notice of intent, DER received a Petition for Administrative Hearing regarding the issuance of the permit. The petition alleged, inter alia, that the plant would emit particulates and gases in contravention of Chapter 17-2, F.A.C., and that stormwater run-off from the plant would be contaminated with oil, scum and debris. The petition further asserted that this run-off would cause water pollution in contravention of Chapters 17-3 and 17-25, F.A.C., and would introduce pollution into Dry Branch and Bayou George, a Class I Water.

3. The permit application covers only the proposed batch plant site and the immediately adjacent property consisting of 2.15 acres. The location of the building would be at the northern end of the parcel, approximately

   0.10 miles from both Star Avenue and U.S. Highway 231. There is no residential use of property immediately adjacent to the project site. However, Petitioners all reside in the immediate area, and will be affected to some extent by this facility. Dust from construction activity has already been experienced. In this regard, it must be recognized that the area has no zoning restrictions and is therefore subject to industrial uses such as that proposed here.

   
   

4. The Applicant owns several acres of property surrounding the location of the proposed batch plant. The permit application at issue covers only the request to construct the facility on a 2.15 acre portion of the larger parcel. Anticipated environmental problems caused by activity not on the immediate parcel are not related to this permit application and thus are not germane to a determination whether the permit should be issued or denied. Further, the construction permit will only allow the applicant to build the proposed air pollution source. Before such a source can actually be operated, a separate operation permit application must be made, and testing for compliance with standards by the facility must be satisfactorily completed.

   
   

5. Petitioners demonstrated that the individuals who own Triangle Construction Company, Inc. were previously employed by Gulf Asphalt Company, which was occasionally out of compliance with state air emission standards. Petitioners asserted that these individuals would likely fail to operate the proposed facility in compliance with DER standards. Although these individuals did have managerial responsibility at Gulf Asphalt, final decisions concerning financial expenditures for repairs and maintenance were made by the owner of the plant, rather than the Applicant's owners. It was also established that the Gulf Asphalt Plant continued to have emission problems after such individuals left as employees.

   
   

6. Petitioners contend the Applicant's unrelated dredging activities in an adjacent borrow pit area caused turbidity in Dry Branch Creek, and characterized the Applicant as a habitual violator who could not be expected

   to comply with state pollution control regulations in the operation of the proposed facility. Testimony revealed that the Applicant constructed a culvert in Dry Branch, which flows through a borrow pit area and did some other incidental dredging in areas within the landward extent of waters of the state. However, when the Applicant became aware that activities in the proposed borrow pit area were potentially in violation of DER rules, it ceased activities and applied for the appropriate permits.

   
   

7. An asphalt concrete batch plant is a relatively simple operation in which sand and aggregate are dried, then mixed with hot liquid asphalt and loaded directly into trucks. It is the drying process which emits the particulates which the cyclone and the baghouse are designed to control.

   
   

8. Baghouse operations are similar to those of a vacuum cleaner. Particulate-laden air from the drying process is vented into the baghouse, where it is filtered through a number of cloth bags. The bags trap the particulates, and pass the filtered air through the bag cloth and out of the building. When enough air has been filtered to cause a build-up of trapped particulates, a portion of the baghouse is taken off cycle and reverse air is blown through the bags. The reverse air causes the trapped particulates to fall into a hopper where they are removed for disposal.

   
   

9. The baghouse was designed to function efficiently in conjunction with a plant producing up to 120 tons per hour of asphalt concrete. Applicants's plant will produce only 80-85 tons of asphalt concrete per hour due to the limited size of the dryer. The estimated air to cloth ratio in the amended permit application is 6:1, which will result in emissions substantially lower than DER standards. Air to cloth ratio is not a specific standard or requirement, but is a figure which is used by engineers to determine projected emissions which may reasonably be anticipated from facilities which use an air pollution control mechanism. A projected air to cloth ratio of 6:1 for this baghouse may be reasonably expected to yield emissions of approximately 0.014 micrograms per dry cubic foot, which is approximately one-third of the DER standard of 0.04 mg. per dry cubic foot.

10. The equipment to be installed is used and in need of minor repairs. The testimony established that necessary repairs will be accomplished prior to plant activation, and that operations will not be adversely affected when such repairs are complete.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action, pursuant to Section 120.57(1), F.S. The Department of Environmental Regulation has the authority to require a permit for construction of air pollution sources, pursuant to Chapter 403, F.S. and Chapters 17-2 and 17-4, F.A.C.

    
    

12. Section 403.087, F.S., requires persons to obtain a DER permit for the operation, maintenance, construction, expansion or modification of a stationary installation which will reasonably be expected to be a source of pollution.

    
    

13. Rule 17-34.07, F.A.C., provides that DER may issue a permit to an applicant upon a showing that the applicant has provided reasonable assurances that the proposed facility will not cause violations of the state air and water quality standards.

    
    

14. An air construction permit must be obtained by any person who owns or operates a new or modified source, prior to beginning construction, in accordance with Chapter 17-2, Part V, and Chapter 17-4, F.A.C.

    
    

15. The provisions of Rule 17-2.660, F.A.C., provide the specific standards which the applicant must meet in order to obtain a permit. That section adopts by reference the provisions of 40 CFR 60.90 et sq. According to these standards, the Applicant's facility may not emit more than

    90 mg/dscm (0.04 gr/dscf) of particulate matter.

    
    

16. The evidence established that the Applicant has provided reasonable assurances that the subject construction project will not cause violation of the air quality provisions noted above. Thus, the Applicant, Triangle Construction Company, has demonstrated its entitlement to the requested permit.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that the Department of Environmental Regulation issue a final order granting Triangle Construction Company an air construction permit.

DONE and ENTERED this 21st day of June, 1985, in Tallahassee, Florida.

R. T. CARPENTER Hearing Officer

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 21st day of June, 1985.

COPIES FURNISHED:

Lynn C. Higby, Esquire

BRYANT, HIGBY & WILLIAMS, P.A.

Post Office Box 124

Panama City, Florida 32402

E. Gary Early, Esquire and Clare E. Gray, Esquire Department of Environmental

Regulation

2600 Blairstone Road

Tallahassee, Florida 32301

Richard Smoak, Esquire SALE, BROWN & SMOAK

Post Office Box 1579

Panama City, Florida 32402

Victoria Tschinkel, Secretary Department of Environmental

Regulation

Twin Towers Office Building 2600 Blairstone Road

Tallahassee, Florida 32301

Docket for Case No: 85-000621

Orders for Case No: 85-000621