STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HAMILTON COUNTY BOARD OF COUNTY ) COMMISSIONERS, )
)
Petitioner, )
)
and )
)
CITY OF JASPER, FLORIDA, )
)
Intervenor, )
)
vs. ) CASE NOS. 89-6824
) 89-6825
TSI SOUTHEAST, INC. AND STATE OF ) FLORIDA, DEPARTMENT OF )
ENVIRONMENTAL REGULATION, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer, in Jasper, Florida, and Tallahassee, Florida, concluding on April 2, 1990.
APPEARANCES
FOR PETITIONER David D. Eastman, Esq. AND INTERVENOR: Patrick J. Phelan, Esq.
Parker, Skelding, Labasky & Corry
318 North Monroe Street Tallahassee, FL 32301
John H. McCormick, Esq. McCormick & Drury
2nd Street at 2nd Avenue Northeast Jasper, FL 32052
FOR RESPONDENT: Ross A. McVoy, Esq.
(TSI) Vivian F. Garfein, Esq.
Fine, Jacobson, Schwartz, Nash, Block & England
Suite 348
315 South Calhoun Street Tallahassee, FL 32301
FOR RESPONDENT: William H. Congdon, Esq. (DER) Department of Environmental
Regulation
Twin Tower Office Building 2660 Blair Stone Road Tallahassee, FL 32399-2400
STATEMENT OF THE ISSUES
The issues to be resolved in this proceeding concern whether the Petitioner has standing to bring this action and, therefore, whether the Intervenor has standing; whether the applicant has provided reasonable assurances of its entitlement to a construction permit for the facility; whether the applicant is precluded from availing itself of a separate biohazardous waste storage general permit through notification to the Department; whether the Petitioner is entitled to challenge the notice requirements of the general permit; and whether the facility to be permitted should be characterized as a biological waste incineration facility or a biohazardous waste treatment facility.
PRELIMINARY STATEMENT
This proceeding was initiated by the Petitioner, Hamilton County Board of County Commissioners. It requested a formal hearing, pursuant to Section 120.57(1), Florida Statutes, to contest the initial agency decision of the Respondent, Department of Environmental Regulation ("DER"), to issue a permit for the construction of a biological waste incineration facility in Jasper, Hamilton County, Florida, by the Respondent, TSI Southeast, Inc. ("TSI").
Prior to commencement of the final hearing, the City of Jasper timely submitted a petition to intervene and was subsequently granted the right to intervene.
On October 6, 1989, TSI applied to DER for a permit to construct two biohazardous waste incinerators to be located in Jasper in the industrial park. On November 30, 1989, DER had given notice of intent to issue a permit for the construction of a biological waste incineration facility.
The cause came on for hearing as noticed. At the hearing, the Petitioner offered the testimony of Mr. Lamar Hill, Chairman of the Hamilton County Board of County Commissioners, Mr. Frank L. Cross, Jr., Mr. John W. Bottorf, Jr., and Mr. Kenneth R. Krantz. Mr. Cross was accepted as an expert witness in the field of design and construction of biohazardous waste treatment facilities and biohazardous waste incineration facilities, air permitting and emissions, and storage of biohazardous waste in treatment facilities. TSI presented the testimony of Mr. John N. Basic, the founder and president of Basic Environmental Engineering, who was accepted as an expert in the type of incinerators manufactured by his company and the emission-control devices associated with that system. David A. Buff, P.E., was accepted an an expert witness in the field of industrial permitting, air pollutant dispersion modeling, air quality impact evaluation, complex source evaluations, state and federal air quality regulations, control technology evaluations, and air permitting. Additionally, Mr. Lloyd H. Stebbins, P.E., was accepted as an expert in air permitting, air emissions evaluations, wastewater management, environmental incident planning, including hazardous waste spill control and clean-up.
DER presented the testimony of Mr. Andrew Kutyna, Mr. Michael James Fitzsimmons and Mr. Barry Dean Andrews. Mr. Kutyna was accepted as an expert in permitting and engineering of potential air pollution sources and in the application of DER rules to such sources. Mr. Fitzsimmons is the DER District Waste Program Administrator, and Mr. Andrews is a Project Engineer for DER, who performs "best available control technology" determinations for major facilities in the State and works on regulation and policy development regarding the air pollution permitting process.
The Intervenor, City of Jasper, presented no witnesses or exhibits.
The parties presented thirteen (13) joint exhibits. The Petitioner presented two additional exhibits, and TSI submitted a rebuttal exhibit. Thus, exhibits 1, 2, 3, 5, 6, 7, 8 9, 10 and 11 were admitted as joint exhibits of all parties. Exhibit RI was admitted by TSI, and exhibits P1, P2 and P3 were entered into evidence by Petitioner.
The public comment portion of these proceedings was conducted in Jasper, Florida, on March 12, 1990. All interested members of the public were permitted to present testimony regarding the impacts of the proposed incinerator project on themselves and their community. Testifying on behalf of the public interest were State Senator Sherry Walker, Congressman William Grant, Ken Daniels, Lamar Royals, C.R. "Rob" Cason, Ervin Bembry, M.D., Leon McGauley, Fred Bischof, Johnny Bullard, Robert Marvin, Ph.D., Clyde Payne, Gail Sloat, Jacob McDaniel, Nell Rhoden, Lana Corbett, 0la Mitchell, Pete Deas, Lillian Riley Johnson, and Terry McDaniel.
At the outset of the hearing, on the first day, DER introduced an amended "draft permit" or initial agency action position containing three amendments. The first was that a proposed environmental protection agency ("EPA") "test method 26" for hydrogen chloride ("HCL") would be added to Specific Condition No. 7 in the agency's initial action or draft permit position. The second change in the agency's position was that Specific Condition No. 13 should be amended to require the permittee to submit written operation and contingency plans pursuant to Rule 17-712.450, Florida Administrative Code ("F.A.C."), and to submit notification requirements to DER for use of the "general permit" allowed for in Rule 17-712.800, F.A.C. This change arose out of DER's concern that the previous language in Specific Condition No. 13 actually conferred a general permit which was not intended. Previous Specific Condition No. 13 in the draft permit agency position contained conditions set forth in Rule 17- 712.420, F.A.C., which the applicant had to meet prior to construction. The previous language, according to DER, was somewhat confusing and gave the impression that the applicant had already met the requirements. As a result, DER amended Specific Condition No. 13 in its position to make it clear that the applicant must apply for a general permit and meet the waste storage requirements of 17-712.420, F.A.C. Specific Condition No. 14 was amended in DER's amended draft permit position to require that the ash from the incinerator be tested to determine if it had a hazardous character and be handled and treated accordingly. An additional condition was agreed to by the applicant, at the request of DER immediately prior to hearing, to increase the stack height of the disposal stack of the incinerator facility to 98 feet, instead of 40 feet, in order to meet the ambient air limits for HCL. The parties all agree that the administrative or policy limits of DER regarding permissible concentration of HCL at ground level of 150 micrograms per cubic meter, maximum limit for a three-minute exposure, and 7 micrograms per cubic meter as the maximum annual average, are appropriate limits.
On January 22, 1990, during a hearing on certain pending motions, TSI stipulated that none of the ash generated from the facility would be deposited in a Hamilton County landfill. Additionally, in the parties' prehearing stipulation, in which all joined, the following facts were admitted, stipulated to and are no longer at issue:
The facility incorporates an air-lock system to prevent opening the incinerator to the outside environment.
The volume of the loading system is designed to prevent overcharging.
Carbon Monoxide ("CO") emissions will not exceed 100 parts per million by volume, dry basis, corrected to 7% 02 on an hourly average basis.
Incineration or ignition of waste will not begin until the secondary (or last) combustion chamber temperature requirement is attained.
All air pollution control and continuous emission monitoring equipment will be operational and functioning properly prior to the incineration or ignition of waste.
During shutdowns, the secondary (or last) combustion chamber temperature requirements shall be maintained using auxiliary burners until the wastes are completely combusted.
Radioactive waste will not be burned in the incinerator unless the incinerator has been issued a permit or the waste is of such quantity to be exempt in accordance with Department of Health and Rehabilitative Services R'ule 10D-91 or 10D-104.003, F.A.C.
Hazardous waste will not be burned in the incinerator unless the incinerator has been issued a permit for incineration of such waste or the waste is of such quantity to be exempt in accordance with DER Rule 17-30, F.A.C.
All biological waste incinerator operators will be trained by Basic Engineering and the baghouse manufacturer or another qualified organization as to proper operating practices and procedures of both the incinerator and the air emission control equipment.
The content of the training program will be submitted to DER for approval.
TSI will submit a copy of a certificate certifying proper completion of the approved training program to DER for approval.
TSI will not allow the incinerator to be operated unless it is operated by an operator who has satisfactorily completed the required training program.
At the conclusion of the proceedings, the parties elected to have them transcribed and requested leave to file proposed findings of facts and conclusions of law in the form of Proposed Recommended Orders, which were timely filed. The proposed findings of fact have been treated in this Recommended Order and are specifically ruled upon in the Appendix attached hereto and incorporated by reference herein.
FINDINGS OF FACT
The Petitioner, Hamilton County Board of County Commissioners ("County"), is the governing body of Hamilton County, a political subdivision of the State of Florida. The operation of the political subdivision of Hamilton County is conducted by and through its duly-elected Board of County Commissioners. The County conducts a variety of official functions, including but not limited to, the levy and collection of taxes, construction and maintenance of county-owned buildings, roads, bridges and other facilities, the funding and maintenance of county recreational parks and related facilities, and the funding and operation of county health and welfare programs, as well as the regulation and disposal of solid waste and sewage.
TSI is a Florida corporation organized to specialize in the construction and operation of incineration facilities, including biohazardous waste incineration facilities. The project sub judice is the first incinerator facility proposed for construction by TSI. The corporation and its directors, officers or operational personnel have not participated in the construction or operation of any type of incinerator facility in the past.
DER is an agency of state government charged with the responsibility of regulating the quantity and quality of emissions from facilities such as the incinerators involved in the case at bar, and with reviewing applications for permits for the construction and operation of air pollution source facilities, including incinerators, as well as biohazardous waste disposal and treatment facilities and solid waste resource recovery and management facilities. Its reviewing responsibility is performed by weighing such permit applications against the yardsticks set forth in Chapter 403, Florida Statutues, and Rule Chapters 17-2, 17-4, 17-6, 17-701 and 17-712, F.A.C., which it employs to determine, among other parameters, whether a particular air pollution source facility can be reasonably assured to comport with the standards embodied in those rule chapters.
The Intervenor, City of Jasper ("Jasper"), is a municipality located within Hamilton County, Florida. The Jasper Industrial Park is the site of the proposed biohazardous waste incinceration facility. That site is within the city limits of Jasper.
Description of Facility and Process
Incineration is the most commonly used procedure for treating medical waste. The combustion of waste is especially appropriate for hospital "redbag" waste, also known as medical waste. The combustion of medical waste destroys pathogens infectious materials and spores. TSI proposes to burn medical waste in two Basic Model 3500 biohazardous waste incinerators. The incinerators will be enclosed within a large building at the Jasper Industrial Park in Jasper, Florida. Each has a charging capacity of 35 tons per 24-hour day.
The proper incineration of medical waste requires a residence time of one second in a secondary chamber, having a temperature of at least 1,800 degrees Fahrenheit. These time and temperature requirements will be achieved by the proposed Basic incinerator. The incinerator's loading door will not open until the secondary chamber temperature reaches 1,800 degrees Fahrenheit.
Unlike other systems, the patented Basic incinerator system has three combustion zones in the incinerator, the main chamber, the secondary chamber, and the tertiary chamber. By means of these three stages, the Basic incinerator minimizes emissions of hydrocarbons, CO and nitrogen oxide. It is characterized
by a "ram feeder" which allows the waste material to enter the incinerator through an air lock so as not to disturb control of the air within the furnace. It also has a "mechanical pulse hearth" which moves and tosses the burning material while moving it through the incinerator, shaking it up, much like logs in a fireplace. It thus mixes the waste material in the air for more complete combustion. Finally, a backhoe-type device digs the ashes out of the ash pit for disposal after combustion.
The third stage of the Basic incinerator changes vapors coming from the main chamber to superheated gas. The "thermal exciters" in the third stage increase turbulence and mixing in this upper zone. With the addition of air in this third stage of burning, the gas burns like natural gas, thereby completely destroying the products of incomplete combustion from the previous stages. The gas will have a residence time of at least one second in the last combustion chamber, at no less than 1,800 degrees Fahrenheit, as required by Rule 17- 2.600(1)(d)4.A., F.A.C.
The Basic incinerator is designed with an air lock door which prevents it from opening until the chamber temperature reaches the required 1,800 degrees Fahrenheit. This insures more complete combustion of waste and insures that the ignition of waste does not commence until the last combustion chamber temperature requirement of Rule 17-2.600(1)(d)4.D., F.A.C., is attained.
After the tertiary stage, the gases resulting from combustion go to a heat recovery boiler system incorporating a heat exchanger involving water- filled tubes. The superheated gas flows past these heat exchanger tubes which reduce the gas temperature to approximately 250 degrees Fahrenheit. This serves to start condensing the HCL acid gas so that it will be amenable to reduction and conversion by the injection of finely-powdered lime on the way to the "baghouse" scrubber device. Additionally, at this stage, a portion of the superheated gases are recirculated to the combustion chamber for further exposure to combustion temperatures in order to achieve optimum burnout of all combustible materials.
When the superheated gases reach the boiler-heat recovery, steam- generating device, they are at approximately 1,800 degrees Fahrenheit. In part, they consist of metallurgical fumes containing salts, oxides, heavy metals, leads and zincs. In order to prevent these salts from clogging the boiler, the cooling device reduces their temperature so that the oxides and metals form powders. Then if any of the resultant powder adheres to the boiler tubes, conventional coal-blowing equipment blows the resulting powders on through the boiler to the emission control device or "baghouse". This, in turn, maintains the temperature reduction efficiency of the boiler heat exchanger.
Because of the various combustion stages or chambers incorporated in the incinerator, as well as the heat exchanger and gas recirculation feature, the Basic incinerator prevents burning particulate particles from entering the baghouse and burning holes in the Gortex filter bags. This, of course, insures optimum emission control efficiency.
After the combustion gases exit the heat exchanger-boiler device, their temperature has been reduced to approximately 250 degrees Fahrenheit. Lime is injected at this point, which reacts with the HCL acid gas and neutralizes it in part; the reaction occurring as the gas flows toward the
baghouse, with the reaction being completed on the surface of the Gortex bags of the baghouse, as the lime collects thereon. The County does not contest that
the Basic Model 3500 incinerator, as proposed, will perform in a manner that will satisfy most of the criteria set forth in Rule 17-2.600(1)(d), F.A.C. It will achieve approximately 95% burnout in the combustion chambers.
Mr. Cross, the County's expert witness, was concerned that DER had no criteria for a standard of "burnout" of the bottom ash. In fact, DER interprets the term "complete combustion" (in the above Rule), as requiring ash burnout of approximately 95%. The Basic incinerator will achieve 95% burnout. The high rate of burnout is achieved both by the multiple combustion chambers and the use of the moving pulse hearth which constantly shakes or stirs the burning material, ending with chains suspended at the end of the pulse hearth to impede bulky waste materials from exiting the combustion chamber before they are completely combusted.
Odor is controlled, in accordance with Rule 17- 2.600(1)(a)2., F.A.C., by using air for combustion purposes which is drawn by blowers from the storage area of the untreated waste. The combustion blowers pull air from the waste storage area into the incineration system. The best means of odor control is by burning, which this incinerator will achieve.
The County agrees that CO emissions from the incinerators will not exceed 100 parts per million by volume, dry basis, corrected to 7% 02, on an hourly average basis. Thus, CO will be within acceptable regulatory limits and is not at issue in this proceeding.
Pursuant to stipulation, the only emissions at issue with regard to the proposed facility and permit are visible emissions, particulate matter and hydrochloric acid (HCL). Particulate matter consists of finely divided solids or liquid, and the hydrochloric acid is formed when chlorinated plastics are burned.
Emissions are reduced in two ways. First, emissions from the stack of the incinerator will be diluted by ambient air which dilution increases as the stack height above ground increases. Airborne emissions are also reduced by directing combustion gases through pollution control equipment before they exit the stack. The pollution control equipment proposed for the incinerators at issue is an acid gas, dry lime scrubber baghouse, with dry lime injection.
The incinerator facility cannot meet particulate and hydrochloric acid standards without the addition of a pollution control device, such as a dry lime scrubber baghouse. The baghouse is the best available technology for controlling particulates and hydrochloric acid, as well as controlling metals emissions.
The baghouse works much like a vacuum cleaner with a vacuum cleaner bag to trap particulate matter. Baghouses have been in use since 1970, and the technology has been scientifically demonstrated and accepted. The proposed baghouse would consist of a multiple number of bags in excess of ten feet long. They are made of fiberglass, coated with Gortex, a permeable membrane material. They have an air to cloth ratio of 3 to 1. The Gortex bags are capable of trapping 99.5% of particles in the range of 1/10th of a micron in diameter. They are, thus, capable of trapping cigarette smoke, for instance, and are resistant to acids, certain alkalines, and temperatures up to 500 degrees Fahrenheit. The bags are wrapped around a wire cage and attached to a steel
plate, anchoring them to the flues, which conduct the gases to them. All of the flue gases enter the baghouse and go through the bags and then exhaust to the atmosphere through the stack. The bags, thus, trap most particulate matter and metals.
Additionally, lime will be injected into the flue gas stream for acid control before the flue gases reach the bags. The lime dust, a base, reacts with HCL, an acid, to produce calcium salts, which are PH neutral. The dry lime will be conducted from a silo or other means of storage in the form of fine dust or talc which enters a metering hopper so that the amount of lime injected into the system can be controlled. The lime is injected immediately after the gases are condensed and cooled to a 250 degree Fahrenheit level. This causes optimum reaction of the acid gases with the lime which then travel together to the bags. The Gortex bags are coated by the lime dust which further enhances the HCL removal reaction. Because of the recirculation of the superheated gases and the cooling of them through the heat exchanger device, it is very unlikely that any sparks or embers from the incinerator chambers will land on the bags to burn holes in them and, thus, reduce their efficiency. This is an inherent advantage of the design of the Basic incinerator when used with the Gortex' baghouse scrubber.
There is a biohazardous waste incineration facility in operation at Stroud, Oklahoma. It uses a Basic incinerator also employing an acid gas, dry lime scrubber baghouse, in essence like the one proposed here. That incinerator has been tested for visible emissions, particulate matter emissions, and HCL emissions. The tests occurred while the incinerator was actually combusting twice the amount of medical waste proposed for the proposed incineratcrs. The visible emissions test at that facility resulted in an opacity of less than 5% (visible emissions). The PM test resulted in 0.014 grains per dry standard cubic foot. HCL emissions from the incinerator were tested at 43.6ppm (parts per million). The Stroud system thus achieved a 97.2% removal of HCL.
A medical waste incineration facility is located at Fairfax, Virginia, which uses a baghouse and lime injection system. The Fairfax facility test results also establish that a baghouse lime injection system reduced particulate matter and HCL emissions to below the Florida standards.
Experts testifying on behalf of both the applicant and the County agree that the design characteristics and pollution control capabilities of various lime injection systems and baghouses differ markedly. Certain baghouse designs would not be appropriate for the pollution control application at issue. The County's expert noted that the method of lime injection is a critical component of overall HCL control. Certain baghouses incorporate intermittent lime injection systems which are effective for protecting the individual baghouse components, but inappropriate for HCL removal purposes.
The applicant's expert, Mr. Basic, also recognized the importance of the type of lime injection system involved. Various baghouse manufacturers inject lime at differing points within the system; and certain injection applications are, in his opinion, inappropriate for effective HCL control. Temperature is a critical factor in the effectiveness of the lime injection procedure in neutralizing the acid gases (HCL). The method proposed by the applicant of cooling the gases to approximately the range of 250 degrees Fahrenheit before injection of the lime has been shown to be effective in neutralizing the HCL gases at issue, when coupled with the Gortex-laminated, fiberglass bags upon which further neutralization will occur as the dry lime powder is deposited thereon and the gas passed through it.
The baghouse cleaning system is also a component of major importance. Baghouse cleaning involves the removal of calcium chloride particulate buildup from the surface of the filter bags. They eventually become clogged with the precipitate, reducing the systems effectiveness unless they are periodically cleaned. Baghouses can be cleaned while the incineration system is shut down which is known as "off-line cleaning". They can also be cleaned during operation by "on-line cleaning". "Pulse-jet" cleaning involves taking a portion of the bags off line with a damper system bypassing the flue gases to other bags which remain in operation. The bags taken off line are then injected with a rapid pulse or pulses of compressed air, thereby removing the calcium chloride cake from the bags. The County's expert opined that pulse-jet cleaning is less effective than off-line cleaning and that it also requires a dedicated air compressor, as air from within the plant may contain moisture, oil or other contaminants, which are inappropriate for injection into the baghouse since they may permanently clog or otherwise harm the bag material. The applicant's expert, Mr. Basic, expressed like concerns regarding the baghouse cleaning system. He testified at length about the characteristics and appropriateness of on-line versus off-line cleaning. He established that off-line cleaning, also knowh as "reverse air" or "reverse jet" cleaning, is the most effective under the situation prevailing in this project and, in essence, agreed with the County's expert on this subject. Reverse air cleaning involves both the incinerator and the air pollution control system being shut down, with air from the blower being blown in reverse through the bags to remove the calcium carbonate residue. Mr. Basic's testimony establishes that a reverse air, off- line cleaning process can maintain the effectiveness of the Gortex- fiberglass filter bags and, thus, assure that emission and ambient air standards are continuously met by the facility.
Stack Emissions
Modeling of the stack emission results predicted at the facility with the originally-proposed 40-foot stack height was performed by Mr. David Buff, the applicant's expert witness in this regard. The model he employed demonstrated compliance with all ambient air quality standards set forth in Chapter 17-2, F.A.C. There is no ambient air quality standard in the rules at the present time for HCL, however. DER does have a policy, established without dispute in this record, that an acceptable ambient level of HCL would be 150 micrograms per cubic meter for a three-minute value and 7 micrograms per cubic meter on an annual average.
Shortly prior to hearing, a "re-modeling" of the stack and resultant emissions was done, postulating a stack at 98 feet high. Five years of meteorological data from the Valdosta, Georgia, weather station were used to include such factors as prevailing winds, etc., which modeling ultimately demonstrated a three-minute maximum HCL concentration of 16.4 micrograms per cubic meter. This resulted in a maximum HCL concentration at ground level of a factor of 10 below the 150 micrograms per cubic meter level, which is acceptable under DER policy. The average annual impact of HCL concentrations would be 0.2 micrograms per cubic meter, well below the acceptable level of 7 micrograms per cubic meter annual average.
Mr. Buff's model also predicted a maximum annual average impact at any location in the vicinity of the proposed incinerator of HCL at .16 micrograms per cubic meter. This maximum value is a factor of more than 40 below the administrative level of 7 micrograms per cubic meter on an annualized basis.
A spatial distribution of the annual average hydrochloride concentrations in the vicinity of the incinerator demonstrates an annual average concentration declining to 0.09 micrograms per cubic meter in the direction of the City of Jasper. The 98-foot stack proposed by TSI thus meets all ambient air requirements. Although the stack height was changed from the 40 feet shown in the application to 98 feet, all other design elements of it, such as stack diameter, stack temperature, and gas flow rate, remain unchanged. The modeling of the 98-foot stack included all of the design criteria found in the application. There is, in essence, no dispute regarding the efficacy of the modeling performed by Mr. Buff. All modeling and modeling results were not controverted.
In addition to the main stack, there is an emergency relief stack, also known as a "dump stack". The dump stack does not have pollution control equipment. It is opened when the system is first started up in order to purge the system. No waste is burned at that time. The stack is also opened after a shutdown during a cooldown period after all waste has been removed from the furnace. The likelihood that the relief stack will operate outside of a startup and cooldown period is very slight. The facility will have an electrical generator backup emergency power source in case of power failure. The primary reason for the stack's opening, power loss, is thus eliminated by the system as proposed.
There is a relief valve in the steam line so that if steam pressure in the boiler exceeds operating pressure, the system can be relieved through the relief valve with the only loss being steam which would have to be replenished with soft water. Such a malfunction would not result in the emergency stack opening, however. The only other circumstance under which the emergency stack would open, and vent gases to the atmosphere without emission control, would be a malfunction of the blower or induced draft fan system which pulls the gases out of the main stack. This could be caused by failure of the drive belts or a burnout of a motor. With proper maintenance, the belts will not fail and the motors will function for years without replacement.
In an emergency situation, however, if a shutdown does occur, the frequency of the pulse hearth can be increased to push the waste stream into the quench pit in approximately 20 minutes, thus, eliminating emission of pollutants through the stack. The County's expert, Mr. Cross, also agreed that most of the causes of the opening of the emergency dump stack have been eliminated by the proposed Basic design.
In any event, even in an emergency situation where the dump stack must open, the inherent design capabilities of the incinerator, related to operating temperature, residence time and the multiple combustion chambers, result in only one part per million CO, as well as very low nitrogen oxide and hydrocarbon levels being emitted from the facility even with no other pollution emission control provisions. In the event the emergency stack opens, the highest HCL emissions occur immediately, but then quickly drop to acceptable levels. This is so because combustion of materials immediately in the furnace would be finished, but no other charging of the furnace would occur until the malfunction is alleviated. Rule 17-2.250, F.A.C., allows, in any case, with an emergency opening of dump stack, the excession of permit limits for up to two hours.
The results of modeling the operation of the dump stack at a 40-foot height and at 30 pounds per hour of HCL emissions shows that the 7,500 threshold limit value ("TLV"), which the Occupational Safety and Health Administration ("OSHA") sets to protect worker safety, will not be exceeded anywhere off the
plant property, which boundaries lie 50 meters or more from the stack location. The HCL administrative level set by DER (by policy) of 150 micrograms per cubic meter will be exceeded in an area out to approximately 400 meters from the stack. Beyond 400 meters, the level is less than that and drops off rapidly thereafter so that at 800 meters, under the model prediction, the level of HCL concentration would be only 57 micrograms per cubic meter and at 2,000 meters,
37 micrograms per cubic meter. The county prison site, the Hamilton County landfill, recreation park, middle school, county road camp, senior citizens center, other schools and a nursing home, of which concern was expressed about proximity to incinerator emissions, are all 900 meters or more from the site of the incinerator and the location of the stack. It has thus been established that ambient HCL concentrations will not reach the prohibited level of 150 micrograms per cubic meter for the three-minute average at any of these locations.
The permit applied for is a "minor source construction permit". Such a permit allows the applicant to construct the source, having an initial startup and performance compliance testing period to demonstrate that the facility can meet emission standards provided for in the permit and related rules. After demonstrating compliance, the applicant can then seek an operating permit. The test methods required as conditions by DER's proposed grant of the permit and the "draft permit" are standard ones sanctioned by the U.S. EPA. They are reliable and acceptable and have undergone independent testing and development and are used by all states.
Thus, the combustion chamber exit temperature must be monitored for the purpose of determining if the unit complies with the 1,800 degree Fahrenheit rule, the criteria for complete combustion. Oxygen must also be monitored for the purpose of determining if the incinerator is operating properly and achieving good combustion which is essential to control of hydrocarbons, nitrogen oxides, CO and other pollutants. When oxygen falls below certain levels, the computerized micro- processor monitoring system shuts down the loader to prevent charging of the furnace until combustion standards are again reached to prevent insufficient combustion due to low oxygen and excession of pollutant limits.
In order to insure that the CO limit of 100 parts per million is not exceeded, a continuous CO monitoring capability will be installed within the incinerator. The lower the CO, the better the combustion efficiency. Although the rules require a 100 parts per million limit, CO test results at the Stroud facility, which is essentially identical to the one proposed, averaged 1.1 parts per million.
Test results at the Stroud facility also demonstrated that the dry lime scrubbers installed there accomplish high HCL and particulate removal. The Stroud facility meets all Florida rule standards. Mr. Cross acknowledged that the test results on that facility demonstrate that dry lime scrubbers on medical waste incinerators "will do the job".
Design details of the 98-foot stack and the lime injection baghouse scrubber facility were not included in their entirety in the application and the evidence adduced. Design details of the 98-foot stack, however, were provided in the application on page 6 as to the 40-foot stack. The changing of the stack height to 98 feet does not change the remaining design details, and they are still valid and have been proven so. Although no design or plans for the lime injection baghouse proposed have been adduced, the testimony of Mr. Basic establishes that such a facility will meet all pertinent emission standards
prevailing in the Florida rules and policies, as such a facility did in the Stroud tests. Mr. Basic's testimony was unrefuted and establishes that the dry lime injection baghouse scrubber facility, such as he proposes and about which he is knowledgeable, based upon his manufacture, installation and operation of other incineration facilities, will reasonably assure that all pertinent disputed emission standards will be met (for particulate matter, opacity and HCL).
Mr. Basic, as equipment vendor for the project, has responsibility for the entire incineration facility. He will oversee construction, installation and testing of the incinerators and emission control equipment (baghouse and stacks). He has guaranteed that all Florida emission standards will be met as the manufacturer and vendor for the project. A grant of the permit at issue should be conditioned upon Mr. Basic performing, as testified at the hearing and as agreed to by the applicant, as overseer for the construction, installation and testing of the proposed facility.
Specific Condition No. 14 in DER's notice of intent to grant the permit requires the applicant to test the resultant ash to see if it is hazardous. Ash from the proposed facility must be tested in accordance with 40CFR 262.11, which requires testing and characterization of the waste. Ash from the proposed facility will be tested; and if it tests as hazardous, it will be handled as hazardous waste by sending it to an approved hazardous waste landfill or treatment facility. In any event, it has been stipulated by the applicant that the ash will not be deposited in a Hamilton County landfill; and the permit should be so conditioned.
Most ash coming from infectious waste incineration is non-toxic. Controlled air incineration produces a sterile ash, which is a non-combustible residue, and may be disposed of in an ordinary landfill. Ash tested at the Stroud facility, after burning medical waste of the type to be incinerated in the instant facility, tested as non-hazardous. The ash will be removed from the facility in closed containers.
Storage of Biohazardous and Biomedical Wastes
DER regulates biohazardous waste incineration under the air permitting program, requiring an air permit, as sought in the instant case. DER does not require a separate solid waste treatment and sewage permit. Biomedical waste is regarded as a special waste which requires an element of care beyond solid waste, but does not require the extraordinary care required of hazardous waste. Sections 17-712.420 and 17-712.800, F.A.C., deal with the permitting of biohazardous waste storage.
There are two ways in which an applicant can notify DER of its intent to use a general permit for the storage of biohazardous waste:
It can apply for a general permit by notifying DER on a specific form of its intent to use a general permit for the storage of the waste; or
It can include the information as part of an air permit application.
With either option, there is no difference in the way DER processes the two types of notification. DER reviews the information submitted to make sure that it indicates that the facility will meet the requirements of Rule 17-712.420,
F.A.C. The DER district waste program administrator, Mr. Mike Fitzsimmons, established in his testimony that the applicant has met the qualifications for the general permit for biohazardous waste storage.
Five areas have been designated for storage of the biomedical waste to be incinerated at the TSI facility. It is anticipated that most of these areas will normally be empty. The storage areas are available, however, in case one of the incinerators is inoperative for any reason. There are contingency plans for re-routing the waste in the event one or both incinerators are inoperative for a significant period of time.
Area A is the primary area of the facility where boxes are loaded onto a conveyor system and continuously fed into the furnaces. Area B is considered a secondary storage area where palletized boxes can be stored pending their placement onto the conveyor system for charging into the incinerators. The secondary area here can also be used for backup storage. Areas C and D are truck unloading docks,. The trucks, themselves, also can be used for storage capacity.
Area E on Exhibit 7, the permit drawings, shows an outdoor storage area which will hold a number of trucks which transport the biohazardous waste. All of the trucks bringing waste into the facility will remain locked until brought to the unloading dock for unloading and incineration of their contents.
The loading docks for the trucks located at the back of the facility are designed with drainage to prevent storm water runoff. Both the indoor and outdoor storage areas will be concrete. The concrete joints will be grouted and sealed, and the concrete will have an impermeable sealant placed on it. To maintain a sanitary condition, the area will be swept daily; and any spill area will be disinfected. The indoor areas will be disinfected weekly regardless of spills.
Access to the proposed facility will be restricted to prevent entry of unauthorized persons. The outer perimeter will be enclosed with an 8-foot cyclone fence. It will be monitored with closed-circuit television. The building itself will only be accessible by authorized persons. The fence and all of the entrances will be marked with the international biohazardous symbol with the words "biohazardous wastes or infectious wastes".
The facility will be operated so as to prevent vermin, insects or objectionable odors offsite. All materials will be packaged according to Rule 17-712.400(3), F.A.C.
Refrigeration is not contemplated because EPA guidelines on management of infectious waste do not recommend refrigeration. Instead, storage times will be kept as short as possible prior to incineration. There will be minimal handling of boxes at the facility. Semi-trailers will be unloaded by means of an extendo conveyor system which will convey the boxes directly to the incinerators. If a box is dropped, breaks or a spill occurs, the area will be disinfected immediately. All floor drains, which will be installed both indoors and outdoors, will have a slight slope in the direction of the drain so that the floors can be scrubbed and hosed down and disinfected with all liquid material being flushed down those drains. Liquid waste created by the disinfection process can be safely disposed of thereafter in the city sanitary sewer system. The storm water management system on the site and the drainage sewage system are entirely separate, however.
Employees will be required to wear either rubber or plastic gloves and white disposable clothing.
All biohazardous waste generators (hospitals, etc.) and transport companies will be required to put the waste in "red bags", strong plastic bags.
The medical waste will be required to be sealed in strong plastic bags, which are then placed by the generator of the waste in sealed cardboard boxes having a 275-pound bursting strength. All boxes must be marked with the name and address of the generator of the waste (hospital, etc.). The transporter of the waste, typically a trucking company, will be required to keep the trailers transporting the waste locked and the boxes intact and unopened. The applicant, as a condition of the permit, will not accept delivery of any waste shipments not so packaged and maintained. In fact, in addition to the rules governing the packaging and transport of biomedical waste contained at 17- 712.400, 17-712.410, F.A.C., TSI will require, by written contract, generators and transporters of the biomedical waste to insure delivery of waste properly packaged in accordance with Florida law regardless of which State the waste is generated and transported from. Additionally, the applicant will maintain records of waste origins and shipments in accordance with Rule 17-712.420(7), F.A.C., in its computerized record system.
A detailed contingency plan will be prepared for the proposed facility by Lloyd H. Stebbins, P.E., an expert in environmental incident planning. The contingency plan will include more detail than is required by the biohazardous waste rules. The plan will address how medical waste is handled in order to insure public safety and the safety of employees as it is transported to and enters the plant and how ash will be safely handled when it exits the plant.
Mr. Stebbins will also prepare an operation plan which will include personnel training in disinfection procedures and a description of those procedures for submittal to DER as a condition of a grant of this permit.
That operation plan will contain procedures for all three types of disinfection methods authorized by Rule 17-712, F.A.C. This will enable the applicant to have the flexibility to use all three procedures, hot water, sodium hypochlorite, iodine or an EPA approved germicide. Mr. Stebbins will direct and provide training to insure that personnel comply with the regulations concerning disinfection and proper application of disinfectants. As an additional safety factor, the facility is designed to operate efficiently at approximately 85% of its actual capacity in order to allow for "down time" and maintenance.
Standing
TSI has challenged the County's standing to participate in this proceeding, asserting that Hamilton County, through its duly-elected Board of County Commissioners, does not possess a substantial interest in the outcome of this proceeding different from that of the public generally. It contends that the concerns various members of the general public might have concerning location and installation of the incinerator facility are the only concerns that the County has in participating in this proceeding; and, therefore, that the County has no substantial interest of its own justifying its standing to be a party to this proceeding.
The record, however, reveals a strong citizen opposition in the County and City of Jasper to the applicant's proposed project. During the public comment portion of these proceedings, it became obvious that the citizens of Hamilton County have a variety of health and safety concerns which have engendered wide spread opposition to the applicant's project. Principal concerns are the matters of transportation and potential spillage of infectious hospital- generated medical wastes which the incinerator will be treating. Additionally, a strong concern has been expressed by various citizens of Hamilton County and the City of Jasper, concerning potential HCL emissions and their potential negative health effects on residents of the city and county, particularly those who utilize the many publicly-owned facilities located in proximity to the project site. These facilities include a middle school, a senior citizen center, a county road camp or prison, the county landfill, county equipment, a bridge and other buildings, as well as the fact that the material to be incinerated will be transported on trucks through a residential area. Additionally, the Hamilton County Correctional Institution is immediately adjacent to the proposed project site and employs several dozen county residents. Concerns were also expressed about increased traffic flow resulting from trucks bringing waste through the county and city to the proposed incinerator site, as well as the health and safety of the citizens who will be employed at the proposed facility itself, and the lack of sufficient emergency equipment and facilities within Hamilton County.
Many citizens expressed their opposition to the proposed facility at the public comment portion of the hearings, through petitions submitted to their city council and the board of county commissioners and at public meetings conducted by those two governmental bodies. Thus, it can be inferred that there is a concensus of opposition by citizens of the city and the county which has been expressed to their respective governing commissions, who are the Petitioner and Intervenor in this proceeding. There is no question that the proposed project has the potential to cause some pollution or degradation of air and water in Hamilton County and the City of Jasper.
Section 125.01(1), Florida Statutes, delegates broad powers and duties to county governments. Those powers and duties are enumerated in the Conclusions of Law below and include such authority as to establish and administer programs of air pollution control; to provide for and regulate waste and sewage disposal; to operate solid waste disposal facilities pursuant to Section 403.706(1), Florida Statutes; to establish, coordinate and enforce zoning and such business regulations as are necessary for public protection; to perform other acts not inconsistent with the law which are in the common interest of the people of the county, and to exercise all powers and privileges not specifically prohibited by law.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (`1989).
The applicant for the permit at issue in this proceeding, TSI Southeast, Inc., has the burden to demonstrate its entitlement to it. See, Florida Department of Transportation v. J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981).
The proposed incinerator constitutes a source of air emissions for which reasonable assurance of performance to the standards of Rule 17-2.600(1), F.A.C., should be made. Pursuant to stipulation of the parties, only the following portions of that Rule are at issue:
17-2.600 Specific Emission Limiting and Performance Standards.
Incinerators.
Any incinerator with a charging rate of less than 50 tons per day.
No visible emission (5% opacity) except that 20% opacity is allowed for not more than three minutes in any one hour.
No objectionable odor allowed.
(d) Biological waste incineration facilities.
Facilities with a capacity greater than 2,000 pounds per hour.
Particulate matter emissions shall not exceed 0.020 grains per dry standard cubic foot of flue gas, corrected to 7% 02.
Hydrochloric acid (HCL) emissions shall not exceed 50 parts per million by volume, dry basis, corrected to 7% 02 on a three hour average basis; or shall be reduced by 90% by weight on an hourly average basis.
All facilities unless otherwise noted are subject to the following design, operating, monitoring and operator training requirements.
The incinerator(s) shall be designed to provide for a residence time of at least one second in the secondary (or last) combustion chamber only, at no less
than 1800 F for the combustion gases. 33
Primary chamber and stack shall not be utilized in calculating this residence time.
Mechanically fed facilities shall incorporate an air lock system to prevent opening the incinerator to the room environment. The volume of the loading system shall be designed to prevent overcharging thereby assuring complete combustion of the waste.
(d) Incineration or ignition of waste shall not begin until the secondary (or last) combustion chamber temperature requirement is attained. All air pollution control and continuous emission monitoring equipment shall be operational and functioning properly prior to the incineration or ignition of waste and until all the wastes are incinerated. During shutdowns, the secondary (or last) combustion chamber temperature requirement shall be maintained using auxiliary burners until the wastes are completely combusted.
The preponderant evidence adduced by the applicant, supportive of the above Findings of Fact, has established that reasonable assurances exist that there will be no visible emissions from the proposed facility and that there will be no objectionable odor. It has also been demonstrated that particulate matter emissions will not exceed 0.020 grains per dry standard cubic foot of flue gas, corrected to 7% 02 on a three- hour average basis; and that HCL emissions shall not exceed 50 parts per million by volume, dry basis, corrected to 7% 02 on a three-hour average or the administrative limit of 150 micrograms per cubic meter as a maximum three-minute exposure and 7 micrograms per cubic meter as a maximum annual average ground level concentration in accordance with established DER policy. Reasonable assurances have also been provided, in light of the above-mentioned evidence and Findings of Fact, that the incinerator will provide a residence time of at least one second in the secondary (or last) combustion chamber at no less than 1,800 degrees Fahrenheit for the combustion gases; and that there will be complete (95%) combustion of the waste. Thus, it has been established that the above provisions embodied in the rule at issue have been reasonably assured to be complied with, based upon the testimony of Mr. Basic, P.E., Mr. Buff, P.E., Mr. Kutyna, P.E., Mr. Bottorf, P.E., and Mr. Andrews, P.E., as well as the exhibits adduced into evidence.
Mr. Basic, the designer and manufacturer and holder of patents on the units to be installed at the proposed facility, has full responsibility for the entire incineration facility and its installation and operation during initial testing, including the proposed dry lime injection baghouse scrubber facility. Mr. Basic has given his and his company's guarantee, both by testimony, as well as on the face of the application, that the facility will meet the requirements of the above rule. A similar but larger facility to that contemplated by the proposed permit is operating in Stroud, Oklahoma, as mentioned in the above Findings of Fact. Test results from the Stroud facility, which is essentially identical to that proposed for the subject permit application, provide reasonable assurances that the proposed facility will meet the requirements of Rule 17-2.600, F.A.C., as well as the administrative HCL limits established by DER policy mentioned above. Although there is no written DER standard codified in a rule defining "complete combustion", the DER has defined that by policy pronouncement as constituting 95% combustion of the waste materials. Mr. Basic and his company guarantee that that level will be achieved.
The manufacturer's guaranty that the facility will meet the air emission requirements, together with the actual test results resulting from the similar facility at Stroud, constitutes reasonable assurance that this project will meet all pertinent standards and be permittable. See, Frank Gigliotti, et al. vs. N.B. Willoughby Company and Department of Environmental Regulation, 9 FALR 2587 (Final Order entered June 3, 1987); Tuxedo Fruit Company and City of St. Lucie Village v. Florida Sun Cement Co., Inc. and State of Florida Department of Environmental Regulation (DOAH Case Nos. 89-1121, 1271, Final Order entered November 16, 1989).
The County's evidence did not controvert that the incineration facility can meet State air pollution requirements. The County's proof primarily went to the fact that the application does not contain a sufficient amount of design detail and that the evidence adduced by the applicant at hearing does not set forth sufficient design features tc establish exactly the configuration of the lime injection baghouse and the details of the lime injection method so as to provide reasonable assurances. The County's own expert, Mr. Cross, however, conceded that the incinerator would be a good one and that test results from the
Stroud facility, which is essentially identical to the type of facility described by the applicant's expert, Mr. Basis, the manufacturer, shows that that technology, the dry scrubber baghouse, will perform as hoped.
Although reasonable assurances can be shown in part by having specific engineering drawings and other design details in evidence in support of an application, their absence is not fatal to a showing of reasonable assurances. Here, the testimony by the manufacturer, himself, who has had extensive experience with the installation, operation and manufacture of such facilities as that proposed and that now in operation at Stroud, Oklahoma, is, in the absence of evidence to refute it, an adequate showing of reasonable assurances that all emission standards and the ambient air policy of DER, insofar as HCL is concerned, will be met. His testimony was corroborated by that of the other witnesses adduced by the applicant. Reasonable assurances can be demonstrated by designs and plans stamped appropriately by professional engineers licensed in Florida, in part, and can also be shown by competent expert testimony, as was done here.
Further, there were designs and plans in evidence and filed with the application. The final configuration of the proposed lime injection baghouse is not the subject of a submitted design, as yet, nor is the proposed change to accommodate a 98-foot, instead of a 40-foot, stack height. However, the design of the stack only varies as to its height and not any other parameter. The expert testimony, which is unrefuted, showed that the modeling for air emissions for the 98- foot height was the same as for the 40-foot height, with just the height difference factored in. That demonstrates that reasonable assurances were shown and that the failure to have the actual plans for the increased stack height in evidence does not obviate the showing of reasonable assurances. A like consideration is true of the proposed dry lime baghouse scrubber facility. It was the testimony of Mr. Bottorf, Mr. Buff, Mr. Kutyna and Mr. Andrews that the amount of information contained in the permit application adduced into evidence, together with the raised 98- foot stack height, provides sufficient design criteria for reasonable assurances being provided that the proposed incinerators and baghouses can meet the permit requirements as to emissions and ambient air standards. Additionally, the information provided in the application was sufficient for both DER and Mr. Buff to perform the air quality models for the proposed facility. The uncontroverted air quality modeling and the results thereof corroborate the applicant's position, and no contrary evidence was offered of an equivalent quality. See, Tuxedo Fruit, supra.
The application and the evidence adduced at hearing provide reasonable assurances for the issuance of the construction permit to the applicant. TSI will have a period of time under the construction permit to test the units and monitor all operations. If the State's air pollution requirements are not met, as embodied in the rules and the HCL policy limitations, DER will not be bound to issue the ultimate operating permit.
As mentioned above, the air quality model run by Mr. Buff effectively establishes that the emissions from the 98-foot stack proposed will not exceed any DER standard. Modeling for the emergency relief stack shows that air emissions will not exceed DER standards beyond 400 meters from the property at issue and even the excession within 400 meters is within the 7,500 TLV limit established by OSHA. There are no residences or county facilities located within 400 meters of the facility.
Rule 17-2.250(1), F.A.C., specifically provides:
Excess emissions resulting from start up, shut down, or malfunction of any source shall be permitted providing (i) best operational practices to minimize emissions are adhered to and (ii) the duration of excess emissions shall be minimized but in no case exceed two hours in any 24-hour period unless specifically authorized by the department for longer duration.
The applicant has provided reasonable assurance that with proper maintenance, the design of the incinerator assures that the opening of the emergency relief stack due to malfunction will be a rare occurrence. The excess emissions rule allows for a temporary excession of air emission standards and ambient standards for up to two hours. Because of the design of the incinerator, an emergency condition can easily be limited to less than two hours. All combustion will occur and be over before that time, given the capacity of the incinerators established in evidence. Even if that were not the case, the fires can be quenched in a matter of minutes.
Chapter 403, Florida Statutes, Part IV, applies to solid waste landfills, recycling and only to off-site incineration of biohazardous waste to the extent that DER is mandated to promulgate rules concerning this activity. The applicant has proven that it will comply with those rules, Rules 17-17.420 and 17-17.800, F.A.C.
Chapter 403, Florida Statutes, Part IV, specifically Section 403.704(31), provides that DER shall:
(31) No later than February 1, 1989, initiate rule making to address the management of biohazardous waste and
biological waste within the state. Such rule shall address on-site and off-site incineration and shall regulate biohazardous waste from the point at which such waste is transported from a facility which generates such waste, for the purpose of off-site shipment for storage, treatment, or disposal, and shall include provisions for the registering of transporters of biohazardous waste.
Pursuant to Section 403.704(31), Florida Statutes, DER has promulgated Rule 17-712, F.A.C., the Biohazardous and Biological Waste Management Rule. The County argues that Part IV (Resource Recovery and Management) of Section 403 should be applicable to the proposed permit. The solid waste provisions found in Part IV are inapplicable by the plain language of Section 403.704(31). It is DER's position that Chapter 403, Part IV, is inapplicable. The facility being permitted must meet the air permitting requirements of Rule 17-2, F.A.C., and the biological waste management requirements of Rule 17-712, F.A.C. The legislature intended, in enacting Section 403.704(31), that the management of biohazardous and biological waste be separate from solid waste. DER interprets
the permitting requirements of Section 403.707, Florida Statutes, to not apply to the subject applications and that permits contemplated under that section relate only to solid waste landfills.
DER's interpretation of an organic statutory provision it is charged with regulating and enforcing is entitled to great deference. See, Reedy Creek Improvement District v. Department of Environmental Regulation, 486 So.2d 642 (Fla. 1st DCA 1986). Aside from the definitions of biohazardous waste found in Section 403.703(34)(39)(40) and (41), Florida Statutes, the only other references to biohazardous waste are found in subsections 403.7045(3)(d), 403.707(8), 403.708(d) and 403.7084. These provisions merely state that biohazardous and biological waste shall be disposed of as authorized by DER, that transporters thereof must register after a date certain, and that DER is authorized to promulgate rules for a system of tracking biohazardous waste. The remainder of Chapter 403, Part IV, primarily addresses the new solid waste management program which has as its goal the reduction of municipal solid waste by means of recycling, waste to energy processes and stricter regulations for solid waste landfills. The permitting requirements of Section 403.707, Florida Statutes, simply do not relate to the air permitting requirements and the biological waste management requirements which arise under Rules 17-2 and 17- 712, F.A.C. It is simply a different subject matter regulated in a different way, and DER's interpretation of these statutory provisions and the applicability of them and the rules promulgated under them is consonant with logic and reason, the obvious intent of the legislature and should prevail.
An issue has been raised concerning whether the proposed project relates to a biological waste incineration facility as stated in the draft permit or whether it is a biohazardous waste treatment facility. The facility and the applicant, however, must comply with the permitting requirements of Rule 17-2.600, F.A.C., and if there is any storage of biomedical waste at the site where incineration is to be accomplished, it must comply with Rule 17-17.420,
F.A.C. Either type of incineration facility has to comply with these two rules and, therefore, the present statutory and regulatory framework renders this issue a distinction without a difference. The same regulatory provisions must be complied with whether it is characterized as a biological waste incineration facility or a biohazardous waste treatment facility since storage of the biomedical waste involved will be done at the site.
Biohazardous Waste Storage
The County has raised an issue concerning its belief that it is entitled to a point of entry to oppose a general permit for biohazardous waste storage which is granted pursuant to Rule 17-712.800, F.A.C. Biohazardous waste storage is defined in Rule 17-712.200(4), F.A.C., as the "holding of biohazardous waste in a place other than at the generating facility for a temporary period of time at the end of which the waste is treated or stored elsewhere". Rule 17-712.420(1), F.A.C., states: "The storage areas that are an integral part of a treatment facility must meet the requirements of this rule; however, a storage facility permit in addition to the treatment facility permit is not required." This subsection can be interpreted to mean that no storage permit is required if the storage occurs at a treatment facility. Rule 17- 712.800(1), F.A.C., which states: "Biohazardous waste storage facilities,
*unless they are storage areas that are an integral part of a treatment facility*, shall operate pursuant to a general permit...", and Rule 17- 712.400(8), F.A.C., which states: "No person shall deliver biohazardous waste for storage or treatment to a facility, in this state, which does not have a
valid general permit granted pursuant to Rule 17-712.800, F.A.C., *or* other permit issued allowing the facility to manage biohazardous waste", tend to support this construction (emphasis supplied between *).
However, Rule 17-712.420(1), F.A.C., can also be interpreted to mean that a treatment facility, like a storage facility unassociated with treatment, must have a general permit. DER has chosen this interpretation of the rule and has adduced evidence to show that it, by policy and by interpretation of the general permitting rule, interprets its regulations in this manner. An administrative agency's interpretation of its regulations, provided that is placed of evidence in an unrefuted way, is entitled to deference and should not be rejected unless clearly erroneous. Little Munyon Island, Inc. v. Department of Environmental Regulation, 492 So.2d 735 (Fla. 1st DCA 1986); Florida Power Corp. v. Department of Environmental Regulation, 431 So.2d 685 (Fla. 1st DCA 1983); City of Reedy Creek, supra.
Section 403.814, Florida Statutes, sets up the general permit procedure. It provides:
General Permits; Delegation.-
The secretary is authorized to adopt rules establishing and providing for a program of general permits under Chapters 253 and 403 for projects, or categories of projects, which have, either singly or cumulatively, a minimal adverse environmental effect. Such rules shall specify design or performance criteria which, if applied, would result in compliance with appropriate standards adopted by the commission. Except as provided for in subsection (3), any person complying with the requirements of a general permit may use the permit 30 days after giving notice to the department *without any agency action by the department* (emphasis supplied between *).
Subsection (3) of that section provides that DER may publish or require an applicant to publish notice of an application for a general permit and in that permissive event, a person whose substantial interests are affected may request a hearing within 21 days, pursuant to Section 120.57, Florida Statutes. However, no point of entry is mandatorily authorized by that statute; and such general permits are designed to be issued, in effect, ministerially, if an applicant for a general permit establishes by a proper written notification that it will comply with the rule embodied standards for the particular activity for which it seeks the general permit. Here, those rule standards are contained in Rule 17-712.420, F.A.C., which sets forth the various technical requirements for storage and handling of biohazardous waste, including protective measures for persons handling such waste, certain requirements for the construction and design of the storage facility, record keeping and the like. Rule 17-712.800, F.A.C., concerning general permits, contains authorization for biohazardous waste storage facilities unless there are storage areas as an integral part of a treatment facility, must operate pursuant to a general permit and that prior to operating under the general permit, the owners or operators of the facility must notify DER on Form 17-712.900(2). Thus, this statutory and regulatory scheme sets up a procedure whereby the operator of a biohazardous waste storage facility can assure DER on a written notification form that the various criteria
for storage of waste away from the site where it was generated will be complied with can be done by written notification to DER and that there is no point of entry to contest an applicant's intent to use such a general permit unless notice of the application has been published as intended agency action.
That was not done in this case and the statute does not require it to be done. Thus, this statutory provision expresses an intent by the legislature that normal Chapter 120 procedures are not necessary to be followed when an activity of only minimal environmental impact is contemplated and sought to be authorized. See, also, Rule 17-4.530(7), F.A.C., and City of Valparaiso v. State of Florida, Department of Environmental Regulation and David Weaver, 7 FALR 4834 (Florida Department of Environmental Regulation 1985); Faller, et al.
v. State of Florida, Department of Environmental Regulation, 10 FALR 1351 (Florida Department of Environmental Regulation 1988).
The only publication by the applicant was of the notice concerning the treatment facility permit. No notice was published concerning any application for the biohazardous waste storage general permit. Even though the County has no right to challenge the general permit, because the issue was raised, evidence was addued by TSI which, by a preponderance, shows that it will be able to comply with the requirements contained in Rule 17-712.420, F.A.C., concerning biohazardous waste storage. Thus, whether one deems that the applicant has complied with the general permit standards under 17-712.800, F.A.C., by notifying DER that it will comply with the requirements of Rule 17-712.420, F.A.C., concerning the methods for storage or whether one deems that the applicant has to prove up its compliance with 17- 712.420, F.A.C., as part of the application proof process under the incineration facility air permit application, TSI has shown that it meets the requirements of that rule in either event and is otherwise entitled to the general permit.
Parenthetically, it should be noted that TSI proceeded to seek the general permit by filing the notification with DER. On March 28, 1990, DER received a request for administrative hearing from the County. That petition was not referred to the Division of Administrative Hearings. A final order was entered by DER during the pendency of this proceeding, on May 9, 1990, finding, in accordance with the above-cited statute and cases, that DER has no legal authority to grant the County an administrative hearing because it has taken no agency action regarding entitlement to the biohazardous waste storage general permit. Without such agency action, DER ruled that there was no right available to an objecting party to use Chapter 120, Florida Statutes, to initiate proceedings to challenge the use of the general permit. That order is now final, and the issue of whether the storage activity can, be done under the aegis of a general permit, even if such issue can be raised in the instant proceeding, is certainly now moot.
Prior to hearing, the applicant and DER stipulated that "ash from the incineration process shall be treated according to specific condition 14 of the draft permit". The County did not join in the stipulation, but that permit condition provides that the ash, both the bottom ash and fly ash, shall be tested in accordance with 40 CFR 262.11 to determine whether it is hazardous or not and that it will be treated accordingly. No evidence was presented by the County that this would not be an acceptable method of ash handling and disposal, and the applicant has stipulated that no ash will be deposited in a Hamilton County landfill. Mr. Cross, the County's expert, acknowledged that most ash from infectious waste incinerators is non-toxic. Thus, the applicant has
provided reasonable assurances, in view of Specific Condition N. 14, that ash from the facility will be deposed of properly and in an environmentally-safe manner.
Standing
The applicant has asserted that the County, like any other petitioner in a proceeding such as this, must demonstrate that it will suffer an injury-in- fact, within the zone of interest which the statutes and rules framing the proceeding are designed to protect and that the injury must be one different from that suffered by the general public, citing a number of pertinent cases.
It also asserts that the County cannot maintain this action as parens patriae. It asserts that although the federal and state government, as twin sovereigns in the constitutional scheme, may sue as parens patriae to vindicate the interests of their citizens that, however, political subdivisions such as counties and cities who have derivative powers only cannot sue as parens patriae.
That position does not take into account, however, the charge of broad powers and duties to county government by the legislature by the enactment of Section 125.01(1), Florida Statutes. That section provides, in pertinent part, that county government has the power to:
...(b) provide for the prosecution and defense of legal causes on behalf of the county.
provide and maintain county buildings.
provide fire protection.
provide hospitals, ambulance service and health and welfare programs....
(h) establish, coordinate, and enforce zoning and such business regulations as are necessary for the protection of the public....
establish and administer programs of...air pollution control....
provide and regulate waste and sewage collection and disposal....
...(w) perform any other acts not inconsistent with the law, which acts are in the common interest of the people in the county, and exercise all powers and privileges not specifically prohibited by law.
Pursuant to Section 403.706(1), Florida Statutes, the governing body of a county has a responsibility and power to provide for the operation of solid waste disposal facilities to meet the needs of all incorporated and unincorporated areas of the county. This authority must be deemed to include insuring that such solid waste disposal facilities are properly and safely operated, which is one of the concerns expressed by the County in this instance, particularly with regard to ash disposal.
The citizens of Hamilton County, by and through their commissioners, have demonstrated substantial concerns regarding the proposed project in the manner enumerated in this Recommended Order. There is a substantial and widely- held public concern regarding the potential for adverse effects on the citizens of Hamilton County and county property and statutorily-authorized operations, as
well as on the part of the City of Jasper, the Intervenor. The statutorily- enumerated powers of the County are consistent with the County's participation in these proceedings on behalf of its citizenry and in its own right. Even though the County's asserted position, arguments and testimony in this case may appear to constitute just the interests of the general public, its citizens, being expressed, in fact, the above-quoted statutory charge gives the County, a specific statutorily- enumerated "substantial interest" in addition to merely serving as the "mouth piece" for a generally-held public interest. Since the statutorily-enumerated powers authorize the County to protect and advance those enumerated concerns or areas of authority, and since the concerns expressed by the County through the testimony it adduced are consistent with those areas of authority, responsibility and concern enumerated by statute, it is deemed that the County and City of Jasper, concerning the publicly-owned property situated therein, have standing as Petitioner and Intervenor, respectively, to participate in these proceedings. See, also, Section 120.52(12))(b)(d), Florida Statutes. In point of fact, however, the concerns which served as the basis for the County and Intervenor's standing were not established, by preponderance of evidence, to be of a nature so as to overcome the showing of reasonable assurances of compliance with statutory and regulatory standards at issue made by the applicant/Respondent, TSI.
Public Comment
A substantial number of the citizens of Hamilton County and the City of Jasper traveled a great distance to attend each day of this hearing, and one day of this multi-day hearing was set aside to allow their comments to be made conveniently in the City of Jasper, itself. The members of the public expressed a great number of quite understandable concerns which have been addressed and ruled upon in this Recommended Order. Much of their concerns, in addition to the questions concerning HCL emissions and the handling of biohazardous waste in terms of safety, concern the issue of why the facility must be located in the City of Jasper and the waste transported in from a 250-mile radius from the hospitals and other medical facilities which generate it. While this issue, from a factual and practical standpoint, is of understandable public concern, the legislature has not seen fit to render "need" for such a facility and the location of such a facility matters to be considered in determining entitlement for the type of permit which is at issue in this proceeding. Thus, while one might sympathize with the citizens who overwhelmingly wish that the facility would not be located in the City of Jasper or in Hamilton County, a point quite distant from most biohazardous waste generation sites, the legislature has not allowed that concern to be addressed in a proceeding such as this.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and aguments of the parties, it is therefore,
RECOMMENDED that DER enter a final order approving TSI's applications for permits for the subject two biological waste incineration facilities in accordance with the conditions specified in the notice of intent to grant the permit and enumerated in this Recommended Order.
DONE AND ENTERED this 24th day of July, 1990, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1990.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-6824
Petitioner's Proposed Findings of Fact:
1. Accepted.
2-11. Accepted, although not necessarily dispositive of material issues presented, standing alone.
Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.
Accepted, but not, in itself materially dispositive of material disputed issues.
Rejected, as subordinate to the Hearing Officer's findings of fact on this subject[matter and as not directly relevant in the de novo context of this proceeding.
15-22. Accepted.
23. Accepted, but not itself materially dispositive.
24-31. Accepted, but in themselves materially dispositive of disputed issues and subordinate to the Hearing Officer's findings of fact on this subject matter.
32-43. Accepted.
44-48. Accepted, but subordinate to the Hearing Officer's findings of fact on these subject matters and not, standing alone, dispositive of material disputed issues.
49. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and contrary to the preponderant weight of the evidence.
50-55. Accepted.
Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.
Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.
58-64. Accepted.
Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.
Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and to some extent, contrary to the preponderant weight of the evidence.
Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.
68-73. Accepted.
Respondent, TSI Southeast, Inc.`s Proposed Findings of Fact: 1-15. Accepted.
16. Rejected, as a discussion of testimony and not a finding of fact. 17-52. Accepted.
53-70. Accepted.
71-73. Rejected, as not materially dispositive of disputed issues in the de novo context of this proceeding.
74-75. Accepted.
76. Rejected, as unnecessary and immaterial. 77-123. Accepted.
124-129. Accepted, but not themselves dispositive of the material disputed issue of standing.
Respondent, DER's Proposed Findings of Fact: 1-41. Accepted.
COPIES FURNISHED:
Dale H. Twachtmann, Secretary Department of Environmental
Regulation
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Daniel H. Thompson, Esq. General Counsel
Department of Environmental Regulation
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
David D. Eastman, Esq. Patrick J. Phelan, Esq.
Parker, Skelding, Labasky & Corry
318 North Monroe Street Tallahassee, FL 32301
John H. McCormick, Esq. McCormick & Drury
2nd Street at 2nd Avenue Northeast Jasper, FL 32052
Ross A. McVoy, Esq. Vivian F. Garfein, Esq.
Fine, Jacobson, Schwartz, Nash, Block & England
Suite 348
315 South Calhoun Street Tallahassee, FL 32301
William H. Congdon, Esq. Department of Environmental
Regulation
Twin Tower Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
HAMILTON COUNTY BOARD OF COUNTY COMMISSIONERS,
Petitioner,
and CITY OF JASPER, FLORIDA,
DOAH CASE NO. 89-6824
Intervenor, DER CASE NO. 89-1522
vs.
TSI SOUTHEAST, INC., and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondents.
/
FINAL ORDER
On July 25, 1990, a Hearing Officer from the Division of Administrative Hearings (DOAH) submitted to me and all parties his Recommended Order, a copy of which is attached at Exhibit A. On August 9 Respondent TSI Southeast, Inc., (TSI) timely filed exceptions to the Recommended Order. On August 10 exceptions to the Recommended Order were filed by Petitioner, Hamilton County, and Intervenor, City of Jasper. On August 16 TSI filed a motion to strike Hamilton County's Exceptions. On August 27 Hamilton County filed a response to this motion. On September 4 TSI filed a response to this response. The matter thereafter came before me as Secretary of the Department for final agency action.
BACKGROUND
On October 16, 1989, TSI applied to the Department for a permit to construct two biohazardous waste incinerators to be located in the City of Jasper in Hamilton County. On November 30, 1989, the Department's Northeast District issued an Intent to Issue Permit Nos. AC24-171377 and AC24-171378 for the construction of the incinerator facility. Petitioner timely filed a request
for formal administrative proceedings's pursuant to Section 120.57(1), Florida Statutes (F.S.), and the City of Jasper filed a motion to intervene, which was g: by the Hearing Officer. TSI also filed a notification of its intent to operate a biohazardous waste storage area pursuant to a general permit granted by Rules 17-712.420(1) and 17-712.800, Florida Administrative Code (F.A.C.).
Following five days of evidentiary hearing In March and April, 1990, and submittal of Proposed Recommended Orders by all parties, the Hearing' Officer issued his Order recommending that the permit be granted.
RULING ON MOTION TO STRIKE
On August 16, 1990, TSI filed a Motion to Strike Hamilton County's Exceptions to the Recommended Order on the aground that the exceptions were filed with the Department a day late. On August 27 Hamilton County filed a response to this motion.
Rule 17-103.200, F.A.C., states:
Within 15 days from the date of filing of a Recommended Order with the Clerk of DOAH, in accordance with Section 120.57(1), F.S., parties to the proceeding may file written Exceptions to the Recommended Order in the Department's Office of General Counsel with service on all parties. Exceptions not filed (received) in the Office of General Counsel within the 15 days shall be rejected.
It is undisputed that Hamilton County filed its Exceptions on the 16th day from the date of filing of the Recommended Order. In its response to the motion, Hamilton County argues that the late filing was due to clerical error which constitutes excusable neglect, and that the Exceptions should therefore be considered. The response states that a messenger filed the Exceptions with the Division of Administrative Hearings on the 15th day, and that upon discovery off the error the Exceptions were filed with the Department the next day.
There is abundant case law on the issue of excusable neglect, but none which is directly on point. Late filings have been accepted due to excusable neglect in cases of default judgments, responses, complaints, summonses, and petitions, but I have found no court case which addresses the late filing of exceptions. As noted in TSI's Motion, there are numerous Final Orders in which the Department has rejected the late filing of exceptions, but in none of those cases has excusable neglect has been claimed.
Rule 17-103.200(1), F.A.C., specifically states that late filings "shall be rejected." As I explained in Mad Hatter Utility, Inc., v. State of Florida Department of Environmental Regulation, 10 FALR 3393, 3397 (Final Order February 25, 1988), "rejection of untimely exceptions is necessary because of the severe time constraints placed upon agency heads pursuant to Section 120.60, Florida Statutes, for issuance of a final order after receipt of a recommended order." Since I do not have the authority to extend the time limit for filing a Final Order, consideration of late exceptions could result in violations of the time requirements for Final Orders in Section 120.60, F.S. In addition, the delay caused by untimely exceptions filed subsequent to ruling on the issue of excusable neglect could often prejudice the opposing party by making it difficult or impossible to respond to the late exceptions.
Even if I were willing to consider exceptions filed late due to excusable neglect, Hamilton County's response to the motion is insufficient to excuse its tardiness. While the decision whether or not to accept Hamilton County's excuse is a matter of law, it is based upon factual underpinnings which must be presented in sworn testimony or physical exhibits. A legal pleading does not constitute evidence upon which to base my decision. In analogous decisions under Rule 1.540, Rules of Civil Procedure, it has been consistently held that excusable neglect must be proven by affidavit or other sworn statement. See Collins v. Collins, 519 So.2d 729, 730 (Fla. 2d DCA 1988); Gibralter Service Corp. v. Loan and Associates, Inc. 488 So.2d 582, 584 (Fla. 4th DCA 1981). In addition, the response was filed on August 27, 19 days after the exceptions were due. I do not consider Hamilton County's request to consider its exceptions to have been filed in a reasonably timely manner. The proper way for Hamilton County to have requested consideration of its exceptions would have been to file a request to consider the exceptions, accompanied by an affidavit explaining the reasons for the late filing, as soon as the late filing was discovered.
For these reasons, I am granting TSI's Motion to Strike. However, in order to facilitate a complete review of this Final Order in the event of subsequent appellate review, I shall respond specifically to each party's exceptions as I did in Red Toe Sedan, Inc., v. State of Florida Department of Environmental Regulation, 12 FALR 214 (Final Order September 14, 1989).
RULINGS ON EXCEPTIONS OF HAMILTON COUNTY
Exceptions 1 and 2
Hamilton County takes exception to the Hearing Officer's conclusions that Mr. Basic, the vendor of the incineration units to be installed at the facility, has full responsibility for the facility and guarantees its performance, and that the absence of some specific design details for the baghouse lime injection system is therefore not fatal to a showing of reasonable assurance that the project will not cause pollution.
I agree that a "guarantee" of performance by the applicant or their agent, standing alone, is insufficient to demonstrate reasonable assurance. In this case, however,, the Hearing Officer's conclusion can be upheld not only by such guarantee, but also by a number of findings of fact which were supported by competent substantial evidence. The Hearing Officer found that the baghouse will work to control the escape of pollutants, as Mr. Basic testified. (FOF 25) He also found that Mr. Basic is responsible for the project and will oversee its construction and operation, and that as a vendor he guaranteed its performance. (FOF 40) This led the Hearing Officer to conclude that Mr. Basic's testimony was unrefuted and corroborated by other witnesses. (RO pp. 37-8) The Hearing Officer also recommended that the permit should be conditioned upon Mr. Basic performing as overseer for the construction, installation and testing of the facility, which recommendation I accept.
Rule 17-4.070(1), F.A.C., provides that reasonable assurance may be shown by "plans, test results, installation of pollution control equipment, and other information." In this case, reasonable assurance was shown by all of these methods. A guarantee of performance that is supported by other competent evidence is sufficient to constitute reasonable assurance. See Frank Gigliotti, et. al. v. N.B. Willoughby Company and Department of Environmental Regulation, 9 FALR 2587 (Final Order June 3, 1987). An applicant has the burden of demonstrating entitlement to a permit, but once this is done the burden shifts
to the petitioner to refute this entitlement with evidence of equivalent quality. Florida Department of Transportation v. J.W.C. Company, 396 So.2d 778 (Fla. 1st DCA 1981) Hamilton County has failed to meet its burden, and has not shown that the Hearing Officer's conclusions were incorrect. For this reason, its Exceptions 1 and 2 are rejected.
Exception 3
Hamilton County takes exception to the Hearing Officer's conclusion that the specific permitting requirements of Section 403.707, F.S., do not apply to biohazardous waste incinerators. Hamilton County argues that a biohazardous waste incinerator is, by definition, a solid waste management facility, and that "there has been no application of the detail required under Chapter 403, Florida Statutes, and the applicable rules for a solid waste permit."
To the extent that the Hearing Officer suggests that Part IV of Chapter 403, F.S., applies only to landfills, I agree that this is incorrect. Section 403.703(10) F.S., defines a "solid waste management facility" to include "any solid waste disposal area, volume reduction plant, transfer station, or other facility, the purpose of which is resource recovery or the disposal, recycling, processing, or storage of solid waste." Section 403.703(14), F.S., defines a "volume reduction plant" to include incinerators. A biohazardous waste incinerator is, by statutory definition, a solid waste management facility, and must therefore comply with, Part IV of Chapter 403, F.S.
Section 403.707(1), F.S., states: "No solid waste management facility may be operated, maintained, constructed, expanded, modified, or closed without an appropriate and currently valid permit issued by the Department." Section 403.707(6), F.S., states that the Department may issue a construction permit only to a solid waste management facility which "provides the conditions necessary to control the safe movement of wastes or waste constituents into surface or ground waters or the atmosphere and which will be operated, maintained, and closed by qualified and properly trained personnel." Nothing in this section requires that a biohazardous waste incinerator receive a permit entitled a "solid waste permit," only that it have an "appropriate and currently valid" permit.
Section 403.704(31), F.S., provides that the Department shall:
(31) No later than February 1, 1989, initiate rulemaking to address the management of biohazardous waste and biological waste within the state. Such rules shall address onsite and offsite incineration and shall
regulate biohazardous waste from the point, at which such waste is transported frown a facility which generates such waste, for the purpose of offsite shipment for storage, treatment, or disposal, and shall include provisions for the registering of transporters of biohazardous waste.
The Department has promulgated rules to regulate the management of biohazardous waste in Rules 17-2 and 17-712, F.A.C. As the Hearing Officer found, TSI has met the relevant permitting requirements of these rules, and is entitled to be issued the appropriate permits. Hamilton County has failed to
show that TSI has not met the permitting requirements of Section 403.707, F.S., and in fact has not specified what permitting details TSI has allegedly failed to meet. For these reasons, Hamilton County's Exception 3 is rejected.
Exception 4
Hamilton County takes exception to the Hearing Officer's conclusion that TSI's biohazardous waste storage area may be constructed and operated under a general permit, and argues that the requirements of Rules 17-712.420 and 17- 712.800, F.A.C., must be met. Since the cited rules set forth the requirements for a biohazardous waste storage area general permit, this exception seems self- contradictory.
A biohazardous waste storage area must meet the conditions set forth In Rule 17-712.420, F.A.C. Rule 1-712.420(1), F.A.C., states: "The storage areas that are an integral part of a treatment facility must meet the requirements 6f this rule; however, a storage facility permit in addition to the treatment facility permit is not required." Rule 17-712.400(8), F.A.C., states: "No person shall deliver biohazardous waste for storage or treatment to a facility, in this state, which does not have a valid general permit granted pursuant to Rule 17-712.800, F.A.C., or other permit issued allowing the facility to manage biohazardous waste." Nothing in these rules would prohibit TSI from notifying the Department of its intent to use a general permit, and TSI did in fact so notify the Department. Since the Hearing Officer found that TSI will comply with the storage requirements of Rule 17-712.420 (FOF 43-56), I concur with his conclusion that:
whether one deems that the applicant has complied with the general permit standards under 17-712.800, F.A.C., by notifying DER that It will comply with the requirements of Rule 17-712.420, F.A.C., concerning the methods for storage or whether one deems that the applicant has to prove up its compliance with 17-712.420, F.A.C., as part of the application proof process under the incineration facility air permit application, TSI has shown that it meets the requirements of that rule in either event and is otherwise entitled to the general permit.
Recommended Order at page 46.
To the extent, therefore, that Hamilton County's Exception 4 suggests that TSI should not be allowed to construct or operate a biohazardous waste storage area, this exception is rejected.
RULINGS ON EXCEPTIONS OF TSI
Exception 1
TSI argues that the Hearing Officer's findings regarding the efficacies of different cleaning techniques for the baghouse are technically incorrect. While this may be true, the Hearing Officer found that the baghouse can be cleaned using either on-line or off-line methods (FOF 25). Since either method will
work, the Hearing Officer did not find it necessary to specify the cleaning procedure in the draft permit. This exception is not relevant to the final disposition of this case, and is therefore rejected.
Exception 2
TSI takes exception to several of the Hearing Officer's findings that ash from the proposed incinerator will not be disposed of in a Hamilton County landfill, pursuant to stipulation of the parties, and that the permit should be so conditioned. TSI argues that the stipulation was only that ash would not be placed in the existing or proposed landfill owned by Hamilton County, and that the Final Order should clarify this.
This exception is relevant only if one interprets the Hearing Officer's findings as precluding the disposal of ash in any landfill located in Hamilton County. While no transcript of the hearing at which the stipulation was entered into is available, and this stipulation was apparently never reduced to writing, the Hearing Officer did accept TSI's Proposed Finding of Fact 124, which states: "Prior to hearing, the Applicant stipulated that ash from the proposed facility will not be placed in the County landfill." A review of the record, specifically TSI's Motion to Strike of January 29, 1990, and the responses thereto, indicate that Hamilton County was concerned only that ash from the incinerator not be disposed of in the County's landfill. Hamilton County has also passed an ordinance (Ordinance 74-89) prohibiting the disposal of ash into the existing and proposed Hamilton County landfills.
While I decline to overturn a finding of the Hearing Officer based upon this record, the finding that ash will not be disposed of in "a" County landfill should be real consistently with the finding that ash will not be placed In "the" County landfill. I therefore interpret his findings to refer only to a landfill, existing or proposed, owned by Hamilton County, and the permit will be so conditioned. For purposes of clarification, TSI's Exception 2 is accepted.
Exception 3
For record purposes, TSI takes exception to the Hearing Officer's acceptance of several of Hamilton County's Proposed Findings of Fact. TSI does not argue that these proposed findings were inaccurate, only that they were not supported by citations to the record. A review of these findings indicates that in each case the proposed findings were either not dispositive or simply reflected findings made by the Hearing Officer in the text of the Recommended Order. The fact that the Hearing Officer elected not to reject these findings due to their lack of record citation is not relevant to the outcome of this case. For this reason, TSI's Exception 3 is rejected.
Exception 4
TSI takes exception to the Hearing Officer's findings that "it can be inferred that there is a consensus of opposition by citizens" to the proposed facility, arguing that this finding is not supported by substantial competent evidence. To the extent that the word "consensus" implies a unanimity of opinion, I agree that there is no record support for an inference that all citizens of Hamilton County oppose this project. The Hearing Officer also found, however, that the record revealed a "strong citizen opposition" to the project, and that "many citizens expressed their opposition." Although I agree that such findings have no probative value, they are supported by competent
substantial evidence. The word "consensus" must be interpreted in this context to mean only that a majority of those citizens expressing opinions to the Hearing Officer opposed the project.
TSI also takes exception to the Hearing Officer's finding that the facility "has the potential to cause some pollution," arguing that this is not based upon competent substantial evidence and that is it irrelevant. Section 403.087, F.S., requires a permit for any stationary installation "which will reasonably be expected to be a source of air or water pollution." The potential for pollution from a biohazardous waste incinerator is the reason that such facilities must be permitted and must install pollution control devices. In this case, the Hearing Officer found that TSI has provided reasonable assurance that the facility will not cause pollution, and is therefore entitled to a permit. Waken in context, the Hearing Officer's finding is neither unsupported nor irrelevant.
For these reasons, TSI's Exception 4 is rejected. Exception 5
TSI takes exception to the Hearing Officer's conclusion that Hamilton County has standing to maintain this action on the grounds that a county's "concerns" regarding the, proposed project do not amount to the substantial interest required by Section 120.57(1), F.S. Section 120.57(1), F.S., applies "in all proceedings in which the substantial interests of a party are determined by an agency." Section 120.52(12) defines "party" to mean; among other things, "specifically named persons whose substantial interests are being determined in the proceeding." Section 120.52(13), F.S., defines "person" to include units of government. Under Chapter 120, therefore, a county is clearly authorized to initiate administrative proceedings if its substantial interests are affected by agency action.
The Hearing Officer concluded that Sections 125.01(1) and 403.706(1), F.S., authorize a county to initiate administrative proceedings under Section 120.57, F.S., and that the citizens of Hamilton County have demonstrated substantial concerns regarding the proposed project. He then concluded that the above statutes give the County "a specific statutorily enumerated substantial interest" in addition to merely serving as the mouth piece for a generally-held public interest." Recommended Order at page 49. For the following reasons, this conclusion is rejected.
Section 125.01(1), F.S., is a broad grant of powers to counties. Among other things, the statute empowers a county to provide for the prosecution and defense of legal causes on behalf of the county, and to provide and regulate waste and sewage collection and disposal. Nothing in this statute specifically or implicitly grants counties standing as a matter of law to initiate or intervene in administrative proceedings.
Section 403.706(1), F.S., states that counties have "the responsibility and power to provide for the operation of solid waste disposal facilities to meet the needs" of its residents, and that "counties shall have the power and authority to adopt ordinances governing the disposal of solid waste generated outside of the county at the county's solid waste disposal facility." Again, nothing in this statute specifically or implicitly grants standing to counties, especially since the proposed facility is neither owned nor operated by the County.
Sections 403.412, 403.916(2), 403.508(4), 403.27(4), and 120.52(12)(d),
F.S., none of which is applicable here, each confer upon counties standing to participate in various proceedings as a matter of law, without the need to prove that its substantial interests will be affected. These Sections would be unnecessary and duplicative if Section 125.01, F.S., had already granted this standing to counties. These sections also demonstrate that the Legislature knew how to confer standing specifically to counties if it so desired.
I conclude, therefore, that the County must demonstrate that its substantial interests will be affected just as a natural person must. In order to maintain standing pursuant to Section 120.57(1), F.S., a petitioner must demonstrate that it will suffer an injury-in-fact which is of sufficient immediacy to entitle it to a hearing, and that the injury is within the "zone of interest" which the proceeding is designed to protect. Agrico Chemical Co. v.
Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981). Since the petitioner in this case is a governmental entity, it must demonstrate that its interest exceeds the general interest of its citizens. City of Panama City
Board of Trustees, 418 So.2d 1132 (Fla. 1st DCA 1982); see also Battaglia Fruit Co. v. City of Maitland, 530 So.2d 940 (Fla. 5th DCA 1988).
While not specifically stated, the Hearing Officer's conclusion could be read as applying the doctrine of parens patriae to counties. Federal and state government, as twin sovereigns in the constitutional scheme, may sue as parens patriae to vindicate the interests of their citizens. However, while there is no Florida case law on the subject, it is clear under Federal case law that cities and counties, whose power is derived from the state, may not sue as parens patriae to vindicate the interests of their citizens. In re: Multidistrict Vehicle Air Pollution M.D.L. No. 31, 481. F.2d 122 (9th Cir.
1973). Neither the County nor the City have actually claimed standing pursuant to this doctrine, and I decline to interpret the Hearing Officer's conclusion as intending to apply the doctrine of parens patriae to counties.
However, a corollary principle to parens patriae provides that a county may maintain an action if any of its proprietary interests will be substantially affected. Id. at 131. By virtue of the various properties owned and maintained by the County which are in close proximity to the proposed project site, Hamilton County may possess the requisite degree of proprietary interests that will be substantially affected thus allowing it to maintain this action. These properties include the Hamilton County Middle School, the senior citizens center, a county road maintenance camp and the county landfill.
The Hearing Officer concluded that the County had demonstrated a number of "substantial concerns" regarding the potential for adverse effects on the citizens of Hamilton County and county property. (RO pg. 49) Specifically, the County expressed its concern regarding the effect of HCL emissions on county property and county residents who use or are employed at the county-owned facilities located in close proximity to the project site. Moreover, the Counts has claimed a substantial interest in the health, welfare and safety of County employees working at these various county-owned facilities. While it is true that mere concerns are insufficient to meet the "substantial interest" test of Section 120.57(1), F.S., the County's ownership of property near the proposed facility, coupled with the concerns cited by the Hearing Officer, give the County a substantial interest in the Department's action that exceeds the general interest of its citizens. The County also claimed, and the Hearing Officer found, that these interests would be affected by this proposed facility.
Finally, the potential injuries resulting from air emissions and public health threats of which the County complains are within the "zone of interest" which the proceeding is designed to protect.
That these interests were labelled as "concerns" by both Hamilton County and the Hearing Officer is a semantic distinction insufficient to divest the County of standing to maintain this action. While the Hearing Officer did find that the facility was unlikely to cause pollution, this finding goes to the merits of the case rather than the standing of a party to initiate the proceedings. Therefore, I find that Hamilton County does have standing to maintain this action, and reject TSI's Exception No. 5.
Accordingly, based upon the foregoing analysis and conclusions, it is ORDERED:
The Findings of Fact and Conclusions of Lab contained in Exhibit A are adopted, except as modified herein.
The Department is to issue Permit Nos. AC24-171377 and AC24-171378, as introduced at the hearing, with the following additional conditions:
The stack height of the disposal stack shall be 98 feet in order to meet the ambient air limits for, HCL.
None of the ash generated from the facility will be disposed of in a landfill owned or operated by Hamilton County.
Mr. Basic, the vendor and manufacturer of the incineration equipment, shall perform as overseer for the construction, installation and testing of the proposed facility.
Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.60, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.
DONE and ORDERED this 7th day of September, 1990, in Tallahassee, Florida.
DALE TWACHTMANN
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399
Telephone: (904) 488-4805
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to:
David D. Eastman, Esquire Patrick J. Phelan, Jr., Esquire
Parker, Skelding, Labasky & Corry Post Office Box 669
Tallahassee, Florida 32302
Ross A. McVoy, Esquire Vivian F. Garfein, Esquire
Fine, Jacobson, Schwartz, Nash, Block & England
315 South Calhoun Street, Suite 348 Tallahassee, Florida 32301
William H. Congdon, Esquire
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
P. Michael Ruff
Division of Administrative Hearings 1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
by U.S. Mail, this 10th day of September, 1990.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
CHRIS D. MAGUIRE
Assistant General Counsel Twin Towers Office Building 2600 Blairstone Road
Tallahassee, FL 32399-2400
Telephone: (904)488-9730
| Issue Date | Proceedings |
|---|---|
| Jul. 24, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 07, 1990 | Agency Final Order | |
| Jul. 24, 1990 | Recommended Order | Waste storage facility gets general permit for storage without public agency action and point of entry being required unless agency wishes to evidence supplement grant |
