STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OKALOOSA COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5176

)

G. T. WILLIAMS and DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on December 4 and 5, 1991, in Shalimar, Florida.

APPEARANCES

For Petitioner: John R. Dowd, Esquire

P. O. Box 404

Shalimar, Florida 32579

For Respondent/ James E. Moore, Esquire Applicant: P. O. Box 746

Niceville, Florida 32578

For Respondent/ Candi Culbreath, Esquire DER: Twin Towers Office Building

2600 Blairstone Road

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES

The issue is whether G. T. Williams's application for a permit to construct a biological waste incinerator adjacent to North Beal Street Extension, Fort Walton Beach, Florida, should be granted.

PRELIMINARY STATEMENT

This matter began on May 31, 1990, when respondent/applicant, G. T. Williams, filed an application with respondent, Department of Environmental Regulation (DER), seeking the issuance of a permit to construct a biological waste incinerator in Fort Walton Beach, Florida. On August 23, 1990, DER gave notice of its intent to issue a permit. The same notice required applicant to publish a notice of DER's preliminary action and to provide proof of publication to the agency. Because such notice had not been properly published, on October 15, 1990, DER reversed its earlier action and gave notice that it intended to deny the permit. On October 20, 1990, applicant published notice of the agency's original proposed agency action.

On November 1, 1990, petitioner, Okaloosa County, filed its petition for administrative hearing. After DER dismissed the petition without prejudice, the County filed an amended petition on December 12, 1990. On December 19, 1990, DER issued its final notice of permit denial. The matter was then appealed by the applicant to the First District Court of Appeal. On June 14, 1991, DER and applicant filed a stipulated motion for dismissal of the appeal. Thereafter, on June 24, 1991, DER notified applicant of the reinstatement of the August 23, 1990 proposed agency action subject to the County's pending request for hearing. The matter was then referred by DER to the Division of Administrative Hearings on August 15, 1991, with a request that a Hearing Officer be assigned to conduct a hearing. By notice of hearing dated September 30, 1991, a final hearing was scheduled for December 4 and 5, 1991, in Shalimar, Florida.

Applicant's motion to dismiss the County's petition for hearing was denied during a telephonic motion hearing held on September 18, 1991. In addition, petitioner's motion to dismiss this matter was denied by order dated September 26, 1991.

At final hearing, petitioner presented the testimony of Kathleen A. O'Dell, chairman of the Okaloosa County Board of County Commissioners; David Heinrich, County public works director; and Dr. Eric R. Allen, a professor with the University of Florida's department of environmental engineering sciences and accepted as an expert in atmosphere incineration chemistry, environmental chemistry and air pollution. Also, it offered petitioner's exhibits 1-4. All exhibits were received into evidence. DER presented the testimony of Edward K. Middleswart, air program administrator for DER's northwest Florida district.

Also, it offered exhibits 1-3 and 5 which were received into evidence. Applicant testified on his own behalf and presented the testimony of Andrew A. Dzurik, a professor with the department of civil engineering of Florida State University and Florida A&M University and accepted as an expert in environmental engineering. Also, it offered applicant's exhibit 1 which was received into evidence.

The transcript of hearing was filed on December 17, 1991. Proposed findings of fact and conclusions of law were filed by applicant, petitioner and DER on December 26 and 27, 1991, and January 2, 1992, respectively. A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Background

   
   

   1. This controversy arose as the result of an application being filed by respondent/applicant, G. T. Williams (Williams or applicant), seeking a permit to construct a biological waste incinerator at 1530 North Beal Street Extension, Fort Walton Beach, Florida. The original application reflected that applicant intended to incinerate type 4 cardboard, paper and plastics furnished by area hospitals, laboratories and doctors' offices at a rate of 440 pounds per hour. Also, the proposed unit included a secondary chamber with a 3,000,000 BTU burner and controls for one second retention at 1800 degrees. However, on August 20, 1990, applicant amended its application to reflect that, instead of a one second

      retention chamber, it would employ a two second retention chamber to ensure total combustion in the secondary unit.

      
      

   2. After receiving the application and conducting a review and on-site inspection, respondent, Department of Environmental Regulation (DER), gave notice of its intent to grant the permit on August 23, 1990. The agency action also required applicant to publish notice of such intended action in a local newspaper of general circulation and to provide the agency with proof of publication. Because applicant had obtained a draft of the notice prior to its formal issuance by DER, it published notice of the intended action on August 1, 1990, or more than three weeks prior to the date of the formal proposed agency action. Considering such publication to be ineffective, DER gave notice on October 15, 1990, that it was reversing its earlier action and denying the permit. On October 20, 1990, applicant published notice of the agency action. After DER issued a final order denying the permit, applicant filed an appeal but later dismissed it after DER agreed to issue the permit subject to a petition for hearing filed by a third party prior to the issuance of the final order.

      
      

   3. On November 1, 1990, petitioner, Okaloosa County (County), the county in which the facility will be located, filed its petition for administrative hearing. As later amended on December 12, 1990, the petition contested the proposed issuance of a permit generally on the grounds that its employees working in nearby areas would be exposed to harmful emissions from the facility and the applicant had not given reasonable assurances that the facility would comply with all DER pollution standards.

      
      

2. The Application

   
   

   1. Type of permit being sought

      
      

      1. In order for the facility to become operational, Williams is required to obtain both a construction and operating permit. This application concerns only a construction permit and, if approved, Williams will be allowed to construct the facility, have an initial start-up period, and perform compliance testing within the start-up period to demonstrate that the facility can meet the requirements and limitations set forth in the permit. Before obtaining an operating permit, Williams must first perform compliance testing under the auspices of a certified testing consultant employed by DER and submit those results to the agency. If the testing results do not meet all DER standards, an operating permit will not be issued until and if all deficiencies are corrected.

         
         

   2. The unit

      
      

      1. Applicant proposes to utilize an incinerator manufactured by Cleaver- Brooks, model CBU-500, with a design capacity to burn 500 pounds of Class 4 biological waste per hour. 1/ As a unit designed to burn no more than 500 pounds of waste per hour, the unit falls in the smallest of the three categories of incinerators regulated by DER. The unit was described by a DER witness as being a "relatively small" one and the size typically found "behind your medium sized hospital". It costs in excess of one hundred thousand dollars.

         
         

      2. The unit is a modular, factory built, packaged and tested system that burns combustible waste of varying heat content. The basic system consists of the main (pyrolysis) chamber, secondary chamber, which is the primary pollution control device, burners, stack and controls.

      3. The incinerator employs a two-stage waste combustion process. In more technical terms, the first stage is a pyrolysis process whereby combustible gases are generated under controlled air and temperature conditions. The main chamber receives waste through a manual batch door or from an optional hydraulically powered feeder, and with the aid of a temperature controlled burner and sub-stoichiometric underfire air supply, combustible gases with minimum particle entrainment are produced. Complete destruction of the fixed carbon and less volatile material takes place continually in the firebed. The second stage is an excess air combustion process whereby the combustible gases generated in the main chamber are ignited in the secondary chamber producing a high temperature carbon dioxide and water vapor flue gas. The secondary chamber supplies all the air for this combustion through temperature controlled forced air jets and employs temperature controlled burners to ensure complete ignition of the gases. The flue gas is then ducted to the stack and exhausted to the atmosphere. Although the applicant originally proposed to use a thirty foot stack on the unit, he has agreed to install a stack having a height that will be a minimum of two and one-half times the height of any building within one hundred fifty feet.

         
         

   3. Location

      
      

      1. The proposed site for the incinerator is on a flat, three-acre lot within an industrial park located approximately 1,150 feet east of North Beal Street Extension, a paved collector road that serves an industrial area north of the City of Fort Walton Beach. This location was selected by Williams because it was "run down", was basically "heavy industrial", and was "already polluted" with junk cars and plastic. Indeed, adjacent to or in the general vicinity of the site are undeveloped Eglin Air Force Base property, a plastic recycling plant, a landfill operated by the County, a City of Fort Walton Beach sewer plant and an auto salvage yard. According to the County engineer, the surrounding area "looks pretty bad" but is "probably an average industrial site." There is also an older residential area known as Pine Subdivision which, at its closest point, lies approximately 200 feet southeast of the edge of applicant's property.

         
         

      2. Applicant owns a 3,000 square foot metal frame building of an undisclosed height on the southeast end of his property and intends to lift up one of the garage bay doors in the front, slide the lower unit in place, peel back three or four sections of metal roof, set the horizontal unit on top, and replace the roof. A stack will then be added to the unit. The property is fenced and access may be had only by a dirt road leading into the area.

         
         

   4. Treatment process

   
   

   1. Applicant intends to provide service to various hospitals, physicians, and laboratories in the area. At the present time, approximately one-half of the medical waste in the Panhandle portion of the state is being transported to incinerators in central and south Florida for disposal because there are inadequate facilities in the Panhandle area.

      
      

   2. Williams will use a panel truck registered with the Department of Transportation to transport all materials to the site. He will also give all customers special sealed containers in which to place their waste materials. These containers, which are known as sharps containers, are designed to hold syringes, scalpels, and other objects capable of penetrating the skin, as well as cotton swabs saturated to the point of dripping.

   3. After arriving at the site the truck will be unloaded and the material and containers placed in the incinerator and burned. Because Williams contemplates burning waste as often as needed, waste materials will not be stored on premises except for very short periods of time. In addition, the unit will be operated by a state certified gas operator who has received special training from the manufacturer.

      
      

   4. The unit into which the waste is fed is approximately eight feet in diameter, nine feet high and cylindrically shaped. Through the use of natural gas, the burn chamber reaches a temperature of sixteen hundred degrees, a temperature at which no organisms can survive. The gases from the first burn chamber then circulate into the secondary burn chamber for two seconds, which is greater than the one second retention time required by DER rules. The only visible emission seen from the stack will be heat waves. All emissions will be well within the air quality standards utilized by DER. Any glass slag or ashes remaining in the unit can be handled as regular waste and disposed of in a class

      2 landfill. Finally, the prevailing winds throughout most of the year are from the south and southeast and thus all emissions will blow primarily to the northwest across the sewage treatment plant area.

      
      

      d. DER's review of the application

      
      

   5. In connection with the processing of the application, DER reviewed it for completeness and accuracy and was satisfied that the application was complete and accurate in all respects, including the submission by applicant of a topographic map. In addition, DER staff conducted an on-site inspection of applicant's property. Also, during the course of the review, DER technical staff had a number of discussions with Williams to clarify the information submitted with the application. Finally, based upon its review of the data originally filed together with information provided by Williams during the review process, DER staff reached the preliminary conclusion that Williams had satisfied all applicable rules and statutes.

      
      

3. Petitioner's Concerns

   
   

   1. In its amended petition, the County raised two principal concerns regarding the construction of the facility. First, it contended that its employees who worked in areas adjacent to the facility would be subject to harmful emissions from the unit. Second, it argued that the applicant had failed to give reasonable assurance that the unit would comply with all DER standards. During the course of the hearing, the County focused principally on the issues of (a) "hot spots", which are high concentrations of pollutants which may occur at a distance of ten feet up to as far as five hundred feet downwind from the point of emission if the stack height on the unit is not at an adequate height, (b) applicant's lack of a storage facility for waste to prevent the potential leaching into the ground of medical waste waiting to be incinerated, and (c) the agency's failure to require Williams to post proof of financial responsibility through a bond. These concerns will be addressed below.

      
      

   2. The agency does not have a have a specific stack height rule applicable to the incineration process but rather requires that the unit be constructed in accordance with good engineering practices and that it meet all emission requirements. At hearing petitioner's expert agreed that any potential "hot spots" problem would be resolved by applicant agreeing to utilize a stack having a height of at least two and one-half times the height of any building within one hundred fifty feet of the unit. Moreover, DER has required that Williams place a monitoring device on the stack so that all emissions can be

      measured 24 hours per day. Since the applicant has agreed to both of these conditions, this issue has been resolved.

      
      

   3. County employees occasionally work on several roads within Pine Subdivision, one of which is only 250 feet from the proposed facility. They also are engaged in the periodic maintenance of ditches which run along the sides of North Beal Street Extension, and eight to ten employees regularly work at the County landfill approximately 1,350 feet away. To this extent, then, it may be reasonably inferred that any potential injury suffered by County employees would differ in degree and kind from that suffered by members of the general public. Even so, with the resolution of the "hot spots" problem, the County's expert agreed that the proposed incinerator would meet all applicable requirements contained in Chapter 403, Florida Statutes, and that all pertinent agency rules would be satisfied. Thus, the employees would not be exposed to emissions that contravene DER's air pollution requirements.

      
      

   4. There is no evidence of record to support a finding that applicant should file a bond as a prerequisite to being issued a permit. Indeed, the only evidence on this issue suggests that DER requires a bond from an applicant when it believes the applicant has not proceeded in good faith or has a history of violating DER regulations. Neither situation is applicable here.

      
      

   5. As to the storage issue, the evidence shows that applicant will incinerate materials as often as needed, and waste materials will be kept on the premises only for brief periods of time when the unit is already filled and then only until those materials are burned and the unit is ready to receive new waste. Thus, as a practical matter, the facility will not be used to "store" waste materials within the meaning of that term. In addition, the area where waste materials will be kept until being fed into the unit will be an integral part of the treatment facility, and DER represents it has no authority to require Williams to submit information regarding storage areas associated with the incinerator. Put another way, in the construction permit review process, DER is concerned only with the air pollution source and the adequacy of the proposed control equipment. This was not contradicted. Finally, there was no evidence to suggest that the materials will leak into the ground. Indeed, petitioner's expert suggested only that the facility should be "secure" and that the material should be covered in the event of rain.

      
      

4. The Required Reasonable Assurance

1. Effective on an undisclosed date in 1991, new and more stringent DER rules became applicable to all new medical waste incinerators, including that proposed by Williams. Thus, his application was reviewed to determine its consistency with those new standards.

   
   

2. An agency rule [rule 17-2.600(1)] provides that facilities with a capacity equal to or less than 500 pounds per hour, such as the Cleaver-Brooks

   500 model, shall not have particulate matter emissions exceeding 0.100 grains per dry standard cubic foot of flue gas, corrected to 7% 0 or hydrochloric acid (HCL) emissions that exceed 4 pounds per hour. When operated as proposed by Williams, and as guaranteed by the manufacturer, emissions of small amounts of particulate matter and hydrocloric acid will not exceed those amounts allowed by rule. In addition, any emissions of water vapors and carbon dioxide will be in very small amounts and will not result in unlawful emissions. This finding is based upon the testimony of witnesses Middleswart and Dzurik which has been accepted as being persuasive on this issue. Thus, Williams has given reasonable

   assurance that the proposed facility will not cause air pollution in contravention of DER standards.

   
   

3. The applicant has given reasonable assurance that the proposed facility will comply will all other applicable DER standards and rules. This was not controverted. Therefore, Williams has demonstrated his entitlement to the permit.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1989).

   
   

5. As the applicant in this case, G. T. Williams bears the burden of proving by the preponderance of the evidence of his entitlement to the requested permit. See, e.g., Pershing Industries, Inc. d/b/a Vista Memorial Gardens v. Department of Banking and Finance, 17 FLW D46, D47 (Fla. 1st DCA 1991, December 17, 1991).

   
   

6. Initially, it is noted that the laws regulating air pollution are not intended to provide a means for the outright prevention of the construction and operation of a biological waste incinerator. Hamilton County Board of County Commissioners v. State of Florida, Department of Environmental Regulation, 587 So.2d 1378, 1381 (Fla. 1st DCA 1991). Rather, so long as the facility is operated in a manner to prevent air pollution in excess of specified limits, a permit should lie. Id. at 1381.

   
   

7. Rule 17-4.070(1), Florida Administrative Code, provides the relevant standards for issuing or denying the requested permit. It reads as follows:

   
   

   1. A permit shall be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test equipment, or other activity of the installation will not discharge, emit, or cause pollution in contravention of Department standards or rules.

      
      

8. The parties have agreed that the emission limitations prescribed by Rule 17-2.600(1)1., Florida Administrative Code, are relevant to this controversy. In light of the parties' stipulation at hearing that a stack height of at least two and one-half times the height of any structure within one hundred fifty feet of the unit will insure compliance with all chapter 17-2 criteria, and applicant's agreement that his stack will be installed in conformity with that stipulation, it is concluded that applicant has given reasonable assurance that all air emission limitations and standards have been met. In addition, by a preponderance of the evidence, Williams has given reasonable assurance that all other applicable DER standards have been satisfied.

   
   

9. In reaching the above conclusion, the undersigned has given consideration to petitioner's contention that Williams must comply with Rule 17- 712.420, Florida Administrative Code, and that he has failed to demonstrate such compliance. Rule 17-712.420 pertains to off-site biohazardous waste storage and

   requires, among other things, that the structure used for storage be "constructed of smooth, easily cleanable materials that are impervious to liquids and capable of being readily maintained in a sanitary condition, with restricted access." However, this rule has no application here for two reasons. First, this proceeding involves only the issuance of a construction permit, and as such, DER is concerned only with the air pollution source and the adequacy of the air pollution equipment. Concerns, if any, over the storage of waste are normally addressed by DER when the applicant obtains a general permit, a matter not in issue here. Second, even if the rule did apply, Williams does not intend to "store" waste at the site within the meaning of that term. Therefore, the undersigned has rejected the contention that rule 17-720.420 is in issue and that Williams has failed to give reasonable assurance of rule compliance.

   Citing the case of Caloosa Property Owner's Assocation, Inc. v. Department of Environmental Regulation, 462 So.2d 523 (Fla. 1st DCA 1985), petitioner has also asserted that pursuant to Rule 17-4.110, Florida Administrative Code, the agency should require a bond from Williams as a prerequisite to issuing a permit. The cited decision stands for the broad proposition that a bond requirement is not mandatory but rather rests in the sound discretion of the agency, and absent a record showing that the applicant cannot give reasonable assurances, a bond is not normally required. Id. at 527-528. Because there is no evidence that applicant cannot provide reasonable assurance that all standards will be met, the request for a bond is denied.

   
   

10. Finally, in his proposed order, Williams contends that the County has failed to demonstrate that it has standing to initiate and participate in this proceeding. He relies principally on the arguments that (a) the County offered no proof that its employees working in areas adjacent to the facility would be substantially affected (injured) more than the general public who happened to be in the same area, and (b) the County failed to show that the facility would contravene DER emission standards and thus its employees would not be injured. Obviously, the County's well-pled allegations regarding the possible impact of emissions on its employees constituted the type of injury necessary to convey standing to initiate this action. Moreover, and notwithstanding witness O'Dell's testimony, County employees differ from members of the general public since they regularly or periodically work in the area where the emissions will occur. At hearing, however, the County was unsuccessful in proving its claim that the facility would violate DER standards. Therefore, since the standing issue merged with the issue on the merits at final hearing, from a purely technical standpoint the County failed to demonstrate standing. From a practical standpoint, however, the issues raised by the County have been fully litigated and the standing issue is now moot. Hamilton County, 587 So.2d at 1383.

RECOMMENDATION

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

RECOMMENDED that G. T. Williams' application for a permit to construct a biological waste incinerator adjacent to North Beal Street Extension, Fort Walton Beach, Florida, should be GRANTED subject to the following condition:

That the applicant utilize a stack height of two and one-half times the height of any building within 150 feet of his unit.

DONE AND ENTERED this 13th day of January, 1992, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 13th day of January, 1992.

ENDNOTES

1/ Class 4 biological waste includes, among other things, animal solids, organic wastes and discarded sharps, such as needles, glass, plastic and the like. This class of waste must be burned at a higher temperature than classes 1

- 3.

APPENDIX TO RECOMMENDED ORDER

Petitioner:

1. Partially adopted in findings of fact 3, 9 and 17.

2. Partially adopted in finding of fact 8.

3. Partially adopted in finding of fact 9.

4. Partially adopted in findings of fact 5 - 7.

5. Partially adopted in findings of fact 10 - 12.

6. Partially adopted in finding of fact 13.

7. Partially adopted in findings of fact 15 and 16.

8. Rejected as being irrelevant.

9. Partially adopted in findings of fact 15 and 18.

Respondent DER:

Respondent/Applicant:

Note - Where a proposed finding has been partially adopted, the remainder has been rejected as being unnecessary, irrelevant, not supported by the evidence, subordinate, or a conclusion of law.

COPIES FURNISHED:

Carol Browner, Secretary

Department of Environmental Regulation Twin Towers Office Building

2600 Blairstone Road

Tallahassee, FL 32399-2400

Daniel H. Thompson, Esquire General Counsel

Department of Environmental Regulation Twin Towers Office Building

2600 Blairstone Road

Tallahassee, FL 32399-2400

John R. Dowd, Esquire

P. O. Box 404 Shalimar, FL 32579

James E. Moore, Esquire

P. O. Box 746 Niceville, FL 32578

Candi Culbreath, Esquire Twin Towers Office Building 2600 Blairstone Road

Tallahassee, FL 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-005176

Orders for Case No: 91-005176