STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK GIGLIOTTI, et al., )

)

Petitioner, )

)

vs. ) CASE NO. 86-1032

)

1. B. WILLOUGHBY COMPANY and ) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

   )

   Respondents. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, this cause was heard on October 7, 1986, in Lakeland, Florida, before Diane A. Grubbs, a hearing officer with the Division of Administrative Hearings.

   
   

   APPEARANCES

   
   

   For Petitioner: Thomas L. Soll, Esquire

   Murphy & Clark, P.A. Post Office 5955

   Lakeland, Florida 33807-5955

   
   

   For N. B. Andrew R. Reilly, Esquire Willoughby Reilly & Lasseigne Company: Post Office Box 2039

   Haines City, Florida 33844

   
   

   For Department Douglas M. Wycoff, Esquire of Environmental Assistant General Counsel

   Regulation: Department of Environmental Regulation

   Twin Tower Officer Building 2600 Blair Stone Road Tallahassee, Florida 32301

   
   

   ISSUE

   
   

   Whether a permit should be issued to N. B. Willoughby Company to construct a 150 tons per hour asphalt plant.

   
   

   BACKGROUND

   
   

   On March 11, 1986, a petition was filed by 2,781 individual petitioners and Century Realty Funds, Inc., a Florida corporation, challenging the issuance of a permit to N. B. Willoughby Company to construct a 150 tons per hour asphalt batch plan Winter Haven, Florida, and requesting a formal administrative hearing. On March 27, 1986, the matter was referred to the Division of Administrative Hearings for further proceedings. By order dated May 16, 1986,

   paragraphs 5(b) and 5(c) of the petition were stricken, and the motion to dismiss Century Realty Funds, Inc., was denied. On October 2, 1986, the parties filed a prehearing stipulation, which was amended at the hearing by striking paragraph G(7).

   
   

   At the hearing, N. B. Willoughby Company presented the testimony of N. B. Willoughby; Jack Fross, an air pollution expert; Joseph T. Dager, the general manager of Asphalt Drum Mixers, Inc., and James William Estler, an Engineer IV with the Department of Environmental Regulation and head of the air permitting section. Willoughby's exhibits numbered 1 through 13 were admitted into evidence. The petitioners presented the testimony of Charles Lucas, a resident of Brookhaven Village mobile home park; Bertha Ellen Henry, a resident of Lakeside Ranch mobile home park; Phyliss Blaskie, a resident of Hidden Cove mobile home park; Brice A. Pyles, a resident of Hidden Cove West mobile home park; William Kromer, a resident of Fairview Village mobile home park; and Reba Simmonds, a resident of Hidden Cove mobile home park. Petitioner's exhibit number 1 was admitted into evidence. The Department of Environmental Regulation (DER) called no witnesses. DER's exhibits 1 through 6 were admitted into evidence.

   
   

   All parties have filed proposed findings of fact and conclusions of law, and a ruling on each proposed finding of fact has been made in the appendix to this recommended order.

   
   

   FINDINGS OF FACT

   
   

   1. N. B. Willoughby Company filed a construction permit application to construct a 150 tons per hour asphalt batch plant located three-fourths mile west of U.S. Highway 27, 800 feet south of Highway 544, and 700 feet east of Lake Hamilton Drive, in Winter Haven, Polk County, Florida. Mr. Jack Fross of Environmental Engineering Consultants, Inc. prepared the original application for submission to DER. Robert E. Wallace, a professional engineer registered in Florida who works for Environmental Engineering Consultants, certified that the engineering features of the project were in conformity with modern engineering principles applicable to the treatment and disposal of pollutants and that there was reasonable assurance that the pollution control facilities, when properly maintained and operated, would discharge an effluent that complied with all applicable statutes and rules and regulations of DER.

      
      

   2. Willoughby's application was reviewed by DER to ensure that all information required by law had been submitted and to determine whether Willoughby had provided reasonable assurance that the plant would meet the federal New Source Performance Standards. As a result of the review, DER determined that Willoughby had provided reasonable assurance and gave notice of its intent to issue a permit to the N. B. Willoughby Company to construct the asphalt batch plant in Winter Haven, Florida.

      
      

   3. The permit proposed to be issued to Willoughby is a construction permit which contains several specific conditions. The permit would allow Willoughby to construct the facility and would permit an initial period of operation for appropriate testing to determine compliance with DER rules. Thereafter, Willoughby would be required to apply for an operating permit. Other specific conditions imposed by the proposed permit include that the hours of operation of the plant shall not exceed 10 hours a day, 5 days a week; that the fuel used be number two fuel oil, with a maximum sulfur content of .3 percent, and that recycled asphalt shall not be used at the facility.

   4. Applications for permits must provide reasonable assurances that the installation will not cause pollution in contravention of DER rules. By rule, the Department of Environmental Regulation has adopted by reference the New Source Performance Standards contained in the federal regulations promulgated by the Environmental Protection Agency. There are two requirements that must be met by an asphalt plant. The plant must meet a emissions standard of no more than .04 grains per dry standard cubic foot, and the plant must meet a 20 percent opacity emission limitation. The .04 grains per dry standard cubic foot regulates the amount of particulate matter which can be emitted from the plant; the 20 percent opacity requirement limits the density of the smoke that emanates from the plant's stack.

      
      

   5. A construction permit application must provide reasonable assurance that the proposed facility will not discharge particulate matter in excess of

      .04 grains per dry cubic foot or discharge gases exhibiting 20 percent opacity, or greater. Reasonable assurance may be provided to DER by an applicant in three ways: the applicant may submit a written guarantee from the manufacturer that the facility will meet the prescribed standards; the applicant may provide test data from an identical facility; or the applicant may provide a professional engineer's certification that the source and its control equipment would meet the agency's requirements.

      
      

   6. In this case, Willoughby provided an engineer's certification and the manufacturer's guarantee. Test data from a similar plant was submitted, but DER could not substantiate the test data because the differences in the plants could not be determined from the information submitted. Therefore, DER required a manufacturer's guarantee. Although DER relied primarily on the manufacturer's guarantee as providing reasonable assurance that the plant would comply with the emission limitations, DER officials considered the entire application package in reaching their decision. The Willoughby application was routine and presented no unusual or novel difficulties.

      
      

   7. The asphalt batch plant proposed to be constructed by Willoughby is manufactured by Asphalt Drum Mixers, Inc. (ADM). ADM has been manufacturing asphalt drum mix plants since 1974 and has completed approximately 140 plants during that time. All of the plants manufactured by ADM have a similar design, but the model numbers vary based on differences in capacity and features. The model number for the Willoughby plant would be S7234-S. The first S indicates that a scrubber is on the frame; the 72 designates a drum diameter of 72 inches; the 34 reflects a drum length of 34 feet; and the last S shows that the plant is a stationary plant. The difference between a model number S7228-S and model number S7234-S would be six feet in drum length. A longer drum length provides a longer drying time and is used when there is a higher moisture content. No evidence was presented which would suggest that the length of the drum has any effect on the efficiency of the pollution control devices.

      
      

   8. The plant is equipped with a wet wash or scrubber which controls particulate emissions from the plant. The scrubber draws the hot gases from the drum. The gas travels at a high velocity through a venture, or throat, where it is sprayed with water. It is then spun in a separator. The water droplets, which have covered the particulate in the gas, go to the outside walls and are ultimately discharged into a settling pond. The rest of the gas goes into a center tube and through a- dewatering stack where more of the droplets are collected. The gas, cleaned of particulate, is then discharged into the atmosphere. The scrubber designed for the Willoughby plant is a sophisticated scrubbing operation, a state-of-the-art scrubber design. The scrubber will remove 99.95 percent of the particulate matter.

   9. The plant designed for Willoughby is rated at 150 tons per hour at 5 percent moisture and 280 degree product temperature. The capacity of an asphalt plant is determined largely by the moisture content. With a one or two percent moisture content the plant could produce a higher tonnage. However, a low moisture content is rare for Florida, and therefore the plant would normally be running at a lower capacity.

      
      

   10. At 150 tons per hour the particulate removed from the scrubber would be about 250-300 pounds per hour, or approximately three cubic feet. The pollution controls in the plant are designed to meet the .04 grains per dry standard cubic foot requirement, and ADM guarantees that the plant will perform at or below that level. In recent tests performed on four ADM plants similar to the proposed plant, emissions were under half the allowable level. An ADM portable plant located in Florida and manufactured in 1980 or 1981 meets state permitting requirements, yet it does not have the improved pollution controls incorporated into the Willoughby design.

       
       

   11. Although not required, a PTPLU computer modeling

       was conducted to measure the ambient air quality impact of the proposed plant. It revealed that the plant would have an insignificant impact on the ambient air quality.

       
       

   12. The test data provided to Willoughby from ADM and included in the application were from tests performed on a portable model 57228. The difference in the S7228-P and the proposed plant is that the Willoughby plant would have a drum six feet longer and would be stationary. A stationary plant is also equipped with a dewatering stack, and thus has better pollution control than a portable plant. The testing on the S7228-P showed an average emission of .0353 grains per dry standard cubic foot.

       
       

   13. The Willoughby application identified the specific emission point source as a "drum mix asphalt plant with venturi scrubber." However, in Section II, the project was described as construction of an "ADM Model S7232-P Drum Mix Asphalt Plant equipped with venturi scrubber." Obviously, the application gave the wrong model number based on ADM's method of assigning model numbers. Willoughby's plant will have a drum 34 feet long and will be stationary; therefore the model should have been designated 57234-5. However, the model number assigned is irrelevant in determining whether the plant will meet state pollution requirements. The permit application designates the project as an asphalt batch plant and designates the air pollution control device as a venturi scrubber. The manufacturer guarantees that the plant to be built for Willoughby will comply with the .04 particulate matter and opacity standards. The written guarantee does not mention any model number.

       
       

   14. The manufacturer's guarantee, as well as the test results on similar plants, provides reasonable assurance that the Willoughby plant will not discharge particulate matter in excess of .04 grains per dry standard cubic foot or discharge gases exhibiting 20 percent or greater opacity. The petitioners presented no evidence which would indicate that the proposed plant will not meet state air pollution requirements.

       
       

       CONCLUSIONS OF LAW

       
       

   15. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

   16. Section 403.087(1), Florida Statutes, provides that no stationary installation which will reasonably be expected to be a source of air pollution shall be constructed without an appropriate permit issued by the Department of Environmental Regulation. Section 403.087(4), provides that the Department shall issue such permits only when it determines that the installation is provided or equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with the standards or rules promulgated by the Department.

       
       

       Rule 17-4.07(1), Florida Administrative Code, provides as follows:

       
       

       A permit may be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results and other information, that

       the construction, expansion, modification, operation, or activity of the installation will not discharge, emit or cause pollution in contravention of Department standards or rules.

       
       

       Rule 17-2.660, Florida Administrative Code, adopts by reference the Standards of Performance for New Stationary Sources contained in 40 CFR Part 60. Subpart I of the federal regulations

       designate the standards of performance for asphalt concrete plants. The regulations, section 60.92, require the following:

       
       

       No owner or operator. shall discharge or cause the discharge into the atmosphere from any affected facility any gases which:

       1. Contain particulate matter in excess of 90 mg/dscm (0.04 gr/dscf).

       2. Exhibit 20 percent opacity, or greater.

       
       

   17. In this case Willoughby provided reasonable assurances that the proposed plant will meet the .04 grains per dry standard cubic foot requirement and the 20 percent opacity requirement. The petitioners failed to provide any testimony or other evidence indicating that the proposed plant will not meet these standards. Willoughby presented a prima facie case by presenting evidence showing its entitlement to the permit in question. Petitioners failed to present any evidence indicating that the proposed plant would not meet the air pollution requirements. In Florida Department of Transportation v. J. W. C. Company, Inc., 396 So2d 778, 789 (Fla 1st DCA 1981), the court stated:

If the petitioner fails to present evidence, or fails to carry the burden of proof as to the contraverted facts asserted--

assuming that the applicant's preliminary showing before the hearing officer warrants a finding of "reasonable assurances"-then the permit must be approved. In making this preliminary showing of "reasonable assurances" before the hearing officer, the applicant is required to provide credible and credited evidence of his entitle- ment to the permit. This having been done, the hearing officer would not be authorized to deny the permit unless contrary evidence of equivalent quality is presented by the opponent of the permit.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Regulation enter a final

order granting Willoughby's application for the construction of the asphalt plant, and issue the permit in question subject to the same conditions specified in the Notice of Intent to Issue.

DONE and ORDERED this 29th day of April, 1987, in Tallahassee, Florida.

DIANE A. GRUBBS

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 29th day of April, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-1032

Petitioners' Proposed Findings of Fact:

1. Accepted as stated in paragraph 6.

2. Accepted as stated in paragraph 13.

3 - 6. Rejected in that these paragraphs do not state factual findings but merely recite testimony given; however, paragraphs 6, 7, 12, and 13, address the substance of the paragraphs.

7 - 9. Rejected for reasons stated in paragraphs 12 and 13.

Respondent Willoughby's Proposed Findings of Fact:

1. Accepted in paragraph 1.

2. Accepted in paragraph 2.

3. Accepted in paragraph 3.

4. Rejected as not finding of fact but recitation of testimony; however, substance accepted generally in paragraphs 2, 4, and 14.

5. Accepted in paragraph 5.

6. Accepted generally in paragraph 6.

7. Accepted, to the degree not a recitation of testimony in paragraph 13.

8. Accepted in paragraph 14.

Respondent DER's Proposed Findings of Fact:

COPIES FURNISHED:

Thomas L. Boll, Esquire Murphy & Clark, P.A. Post Office Box 5955

Lakeland, Florida 33807-5955

Andrew R. Reilly, Esquire Reilly & Lasseigne

Post Office Box 2039

Haines City, Florida 33844

Douglas M. Wycoff, Esquire Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Road

Twin Towers Office Building Tallahassee, Florida 32301

Dale Twachtmann, Secretary Department of Environmental

Regulation

2600 Blair Stone Road

Twin Towers Office Building Tallahassee, Florida 32301

Docket for Case No: 86-001032

Orders for Case No: 86-001032