STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARNOLD R. DI SILVESTRO, JOAN )

1. DI SILVESTRO, ANN BRICKNER, ) JOYCE BRYAN and ELEANOR M. )

   KENNEDY, )

   )

   Petitioners, )

   )

   vs. ) CASE NO. 92-0851

   ) MEDICO ENVIRONMENTAL SERVICES, ) INC. and STATE OF FLORIDA ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

   )

   Respondents. )

   )

   
   

   RECOMMENDED ORDER

   
   

   On October 28-29, 1992, a formal administrative hearing was held in this case in St. Petersburg, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

   
   

   APPEARANCES

   
   

   For Petitioner: Adrien W. Helm, Esquire

   925 Fourteenth Avenue North St. Petersburg, Florida 33705

   
   

   For DER: W. Douglas Beason, Esquire Assistant General Counsel Department of Environmental

   Regulation

   2600 Blairstone Road

   Tallahassee, Florida 32399-2400

   
   

   For Medico: Sandra P. Stockwell, Esquire

   Douglas L. Stowell, Esquire Stowell, Anton & Kraemer Post Office Box 11059 Tallahassee, Florida 32302

   
   

   STATEMENT OF THE ISSUE

   
   

   The issue in this case is whether the State of Florida Department of Environmental Regulation (DER, or the Department) should grant the request of Medico Environmental Services, Inc. (Medico) for a one-year extension of the expiration date for air construction permit AC52-184546 for a biological waste incinerator located at 13200-58th Street North, Clearwater, Florida.

   PRELIMINARY STATEMENT

   
   

   Medico holds air construction permit AC52-184546 for a biological waste incinerator located at 13200-58th Street North, Clearwater, Florida. The permit had an expiration date of January 7, 1992. Realizing that construction would not be completed before the expiration date, Medico sought a one-year extension of the expiration date, to January 7, 1993. On or about December 5, 1991, DER granted the requested extension.

   
   

   On or about December 20, 1991, Arnold R. De Silvestro, Joan C. De Silvestro, Ann Brickner, Joyce Bryan and Eleanor M. Kennedy filed a petition for formal administrative proceedings under Section 120.57(1), Fla. Stat. (1991), to oppose the extension of the expiration date. (Later, Joyce Bryan and Eleanor M. Kennedy withdrew from the case.) The Department referred the matter to the Division of Administrative Hearings (DOAH) for assignment of a hearing officer on or about February 5, 1992.

   
   

   Once at DOAH, the petition was the subject of motions to dismiss by both Medico and DER invoking the principle of res judicata on the ground that the petition essentially attempted to reopen issues already decided in the original permit application proceeding. The motions to dismiss were granted with leave to amend.

   
   

   On or about April 27, 1992, an Amended Petition was filed, and Medico and DER again moved to dismiss. As argued in these motions to dismiss, the amended petition again attempted to raise issues that would essentially reopen the original permit application. The amended petition also requested a determination that construction of the permitted biological waste incinerator was prohibited by the newly enacted two-year moratorium on biohazardous waste incinerators under CS/HB 1451, now Chapter 92-31, Laws of Florida (1992). The motions to dismiss argued that the moratorium issue was not ripe for determination in this proceeding. Later, the DER changed its position, arguing that the moratorium issue was relevant.

   
   

   On or about July 16, 1992, the hearing officer assigned to the case issued an Order Allowing Formal Hearing as to Three Distinct Allegations in the Amended Petition. It stated:

   
   

   1. Petitioners have adequatelly alleged that they have some substantial interests which were affected by the proposed Permit Amendment prior to the legislative moratorium on the beginning of construction of biohazardous waste incinerators. These affected substantial interests are:

      
      

      1. Principals in the proposed Medico biomedical waste incinerator have violated Department rules at a different location since the original construction permit issued.

      2. Medico is unable to continue to provide the same reasonable assurances established during the initial permit review as to human health and allowable air emissions because an additional biohazardous waste incinerator has been permitted and constructed in the locale since the original Medico construction permit approval. Petitioners contend the additional burdens on health and air emissions should be considererd in the proposed Amended Permit.

         All other allegations regarding Petitioner's substantial interests prior to the moratorium were outside the scope of review for this proceeding and are denied.

         * * *

         1. Any allegations as to possible violations of Department rules at a different location that went unreported to the Department prior

            to the issuance of the proposed Amended Permit will not be considered by the Hearing Officer at hearing or as part of the Recommended Order.

         2. Whether the moritorium applies to Medico's pending Amended Permit is dependent upon the Department's factual determination as to

         whether construction had begun. This portion of the proceedings has not been referred by the agency to the Division of Administrative Hearings and is therefore outside of the scope of review.

         
         

         Based upon the foregoing, it is ORDERED:

         
         

         1. The formal hearing can go forward on the alleged rule violations by principals since the original construction permit issued and the affects of the additional biohazardous waste incinerator on the reasonable assurance as to human health and allowable air

         emissions originally provided by Medico in its underlying application.

         
         

         On or about August 14, 1992, the case was scheduled for final hearing in Clearwater on October 27-28, 1992.

         
         

         On or about September 21, 1992, the case was transferred to the undersigned hearing officer for further proceedings. At DER's request, and without objection, the final hearing dates were changed to October 28 and 29, 1992. A DER request to further continue the final hearing to give the DER time to do air toxics modeling, to which all of the other parties objected, was denied.

         
         

         At final hearing, Medico called six witnesses, including two experts, in its case in chief. Medico also had Medico Exhibits 1 through 8 admitted in evidence. In addition, Medico was given permission to late-file its Exhibit 9. At Medico's request, official recognition was taken of Parts 50 and 58 of the Code of Federal Regulations.

         
         

         The petitioners testified in their own behalf and called four other witnesses, including one expert. They had Petitioners' Exhibits 1, 4, 5, 7, 8 and 20 admitted in evidence. Ruling was reserved on DER and Medico objections to Petitioners' Exhibits 11 through 18. Examination of the exhibits leads to the conclusion that the objections should be sustained. The other Petitioners' Exhibit that were identified for the record were not offered in evidence.

         
         

         The DER called only one witness, who was called to rebut the case presented by the Petitioners.

         Four members of the public spoke during a portion of the final hearing set aside for public comment, and Public Comment Documents 1 and 2 were made part of the record at that time.

         
         

         After presentation of the evidence, Medico ordered the preparation of a transcript of the final hearing, and the parties were given ten days from the filing of the transcript to file proposed recommended orders. The transcript was filed on November 23, 1992.

         
         

         After the filing of proposed recommended orders, the Motion of Respondent, Medico Environmental Services, Inc., to Strike Petitioners' Proposed Recommended Order was filed. The motion is denied.

         
         

         Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case No. 92-0851.

         
         

         Finally, on or about December 18, 1992, the Motion of Respondent, Medico Environmental Services, Inc., for an Award of Costs and Attorney Fees was filed. Under Section 120.59(6), Fla. Stat. (1991), the final order entered in this case may grant this motion only if a hearing officer has determined that a nonprevailing adverse party other than an agency has "participated in the proceeding for an improper purpose." Section 120.59(6)(b). Such a determination is required to be made in the hearing officer's recommended order. Section 120.59(6)(d).

         
         

         FINDINGS OF FACT

         
         

         1. The Prior and Related Proceedings.--

            
            

            1. Medico holds an air construction permit issued by the DER on March 8, 1991, for the construction of a biological waste incinerator in Pinellas County, Florida. The permit contains general and special conditions, including prohibitions against the incineration of non-exempt amounts of radioactive and hazardous wastes, a requirement that all operators be trained in a DER-approved training program, and a requirement that the facility undergo compliance testing after it is constructed to assure that its operation complies with emission standards established by DER rule.

               
               

            2. Several weeks after the grant of the air construction permit, on March 29, 1991, the DER changed the equipment model number on the permit, but the change in model number represented no change in the actual equipment described in the application.

               
               

            3. Local government building and construction permit procedures, and negotiations with potential investors, delayed construction of the facility. By letter dated November 14, 1991, Medico requested an extension of the expiration date of the permit from January 7, 1992, to January 7, 1993. No other change in the permit was sought.

               
               

            4. On or about December 6, 1991, the Department issued a second air construction permit for a biological waste incinerator in Pinellas County to Bayfront Medical Center (Bayfront). Bayfront has since requested two extensionns on the expiration date of its permit. The second request is currently pending challenge in Division of Administrative Hearings Case Nos. 92- 6879 and 92-6880.

         2. The Applicant and Principals.--

            
            

            1. Medico is a corporation consisting of two fifty percent shareholders: Gerald Hubbell; and Robert Sheehan. Hubbel operates a funeral home and Bay Area Crematory, Inc., in Pinellas County; he has less than 50 percent ownership of those businesses.

               
               

            2. Previously, Sheehan co-founded a medical waste incineration facility in New York known as Medi-Waste, Limited, of which he was one-third owner. In 1986, he sold the company, and it merged with Medi-Gen, Medical Generation Associates, a wholly owned subsidiary of a company known as Legeis Resources (Legeis). Sheehan held two percent of the shares of Legeis and served as an officer of Medi-Gen until he resigned in 1989. Sheehan does not own more than

               50 percent of Medico, and he has not had any interest in any other air construction or air operation permit in the State of Florida. Since March, 1991, he has not held an interest in any other entity involved in medical waste incineration.

               
               

         3. Air Quality.

            
            

            1. Medico will be capable of incinerating 2,350 pounds of medical waste per hour, which is about ten percent of Flrodia's medical waste. Pinellas County generates about 75,000 pounds of such waste per day but currently has the capacity to burn only 480 pounds per hour.

               
               

            2. A computer-generated air dispersion model was run on the theoretical maximum impact of Medico, of Bayfront, and of both facilities, on the ambient air in the affected parts of Pinellas County. The model used was the EPA's Industrial Source Complex, Short Term, Version 2, March, 1992. This model is recommended by the DER and preferred by the EPA. It follows the DER's Guideline on Air Quality Models. Average background ambient air was calculated using monitoring data collected by Pinellas County for the EPA criteria pollutants (sulfur dioxide, nitrogen dioxide, carbon monoxide, ozone, lead, and particulate matter) and for hydrochloric acid in accordance with the requirements of title 40, part 58, of the Code of Federal Regulations, as reported in the DER's 1991 ALLSUM. (According to EPA publications, hydrochloric acid is the only toxic pollutant on the DER's air toxics list for which medical waste incinerators like Medico's are considered to be a source.) The theoretical maximum impacts of Medico and Bayfront were based on the AP42 emission standards for those kinds of facilities. Meteorological data was taken from the nearest national weather service station (at the Tampa International Airport).

               
               

            3. The air model shows that none of the National Ambient Air Quality Standards for any of the criteria pollutants would be exceeded by adding either the impact of the Medico facility, or the impact of the Bayfront facility, or both combined, to the average ambient air in the affected parts of Pinellas County. (Both Total Suspended Particulate (TSP) and the newer PM10 category of particulates less than ten microns in size cases, which is more relevant to public health concerns, were considered for particulate matter levels.) Testimony indicates that the National Ambient Air Quality Standards would not be exceeded for any of the criteria pollutants by adding either the impact of the Medico facility, or the impact of the Bayfront facility, or both combined, to the maximum ambient air in the affected parts of Pinellas County. Also, even assuming a "worst case" weather scenario, no problematic toxic pollutants are expected, based on a Pinellas County Department of Environmental Management, Air Quality Division, screening computer model. Lead and hydrochloric acid would be

               under the EPA's "no threat level" (NTL). (As for the original application, these determinations are based on the scrubber manufacturer's hydrochloric acid efficiency claim of 99.9% and, in the case of lead, on its particulate efficiency claim.) As previously stated, according to EPA publications, there are no other toxic pollutants on the DER's air toxics list for which medical waste incinerators like Medico's are considered to be a source.

               
               

            4. The theoretical emissions for the Medico facility are below 100 tons per year, and the facility does not have the potential to emit more than ten tons per year of any hazardous air pollutant, as defined by the EPA.

               
               

         4. Past Conduct and Reliablily of the Principals.--

         
         

         1. On or about March 5, 1991, the temperature in the secondary chamber of the biohazardous waste incinerator then operated by Hubbell dropped below 1800o at the end of a burn, and there was still a small amount of waste in the primary chamber and some small amount of flame still visible in the primary chamber. This violation, however, did not result in visible emissions, which would be an indication that there was a combustion or related problem in the incinerator.

            
            

         2. On or about March 4, 1991, one of the crematory units operated by Hubbell had visible emissions of 44% opacity. Identical warning letters regarding the March 4 and March 5 violations were sent on March 20 and March 27, 1991. Hubbell respondent by telephone on April 1, and in writing on April 5, 1991. There have been no other violation of Florida Statutes or DER rules since the original construction permit issued.

            
            

         3. Taking these violations into consideration, the compliance history of Hubbell's facilities does not undermine Medico's ability to give the necessary reasonable assurances. Between October, 1981, and October, 1991, Hubbell's facilities have been guilty of only the following violations:

            
            

            On or about March 25, 1987, Hubbell began to incinerate biohazardous medical waste before he was aware that a special permit for incinerating medical waste, in addition to his permit to operate the crematory, was required by law.

            
            

            On or about August 19, 1988, Hubbell's facility was notified that the Pinellas County Division of Air Quality had received a written complaint about smoke, and that a county permit would be required for the infectious waste incinerator along with retrofitting some controls.

            
            

            On or about October 4, 1989, Hubbell's facility apparently had a visible emissions violation.

            
            

            Three annual operating reports for Hubbell's facilities--for 1981, 1985, and 1989--would be considered late under current policy. There was no evidence whether they were late under the policy in effect at the time the reports were filed.

            Over the course of those ten years, there is no suggestion in the evidence that any of the other annual operating reports may have been late, and there are no other violations recorded in the Pinellas County compliance contact logs. To the contrary, the records indicate that no violations were found on 15 inspections. Hubbell voluntarily has shut down the old, smaller and less sophisticated medical waste incinerator where some of the recorded violations occurred, pending the construction of the Medico facility.

            
            

         4. Sheehan has not had an interest in any biohazardous waste incinerators in the State of Florida, other than the Medico application, and has not had a controlling interest in, or operational role in, any entity operating a medical or biohazardous waste facility in any state since June, 1989. Although, under the prehearing rulings, it would not even be relevant to this proceeding, the only evidence of any violations by any entity in which Sheehan had a controlling interest in, or operational role in, that operated a medical or biohazardous waste facility in any state, at any time, was evidence of two New York State Department of Environmental Conservation ash container violations and one failure to close up the back of the building housing an incinerator in October, 1988.

            
            

            CONCLUSIONS OF LAW

            
            

            1. General Permit Requirements.--

         5. F.A.C. Rule 17-2.210(1) provides in pertinent part: Air Construction Permits -- The

            construction permit shall be issued for a

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

            
            

         6. F.A.C. Rule 17-4.070(4) provides generally that permists cannot be issued for longer than five years. "However, construction permits for air pollution sources may be issued for a period of time as necessary."

            
            

         7. F.A.C. Rule 17-4.080(3) provides:

         
         

         A permittee may request that a permit be extended as a modification of the permit. Such a request must be submitted to the

         Department in writing before the expiration of the permit. Upon timely submittal of a request for extension, unless the permit automatically expires by statute or rule, the permit will remain in effect until final agency action is taken on the request. For construction permits, an extension shall be granted if the applicant can demonstrate reasonable assurances that, upon completion, the extended permit will comply with the standards and conditions applicable to the original permit.

         (Emphasis added.) For purposes of this rule, "applicable regulation" means the rules and regulations in effect at the time of the final hearing on the request for an extension of time.

         
         

         1. The Justiciable Issues.--

            
            

            18 Air construction permit AC52-184546 has the effect of res judicata. See Final Order, Mary Wagoner v. Florida Medical Facilities, Inc., 10 F.A.L.R. 5286 (DER 1987). There is no evidence that the Petitioners did not have the legally required opportunity to challenge DER's notice of intent to grant that permit. They did not challenge it, and they are bound by the legal and factual

            determinations implicit in the DER grant of the permit. On Medico's request for a one-year extension of the expiration date in the permit, Medico and DER are not required to defend the permit from an attack that it should not have been issued in the first place. See also Preliminary Statement, above.

            
            

            1. In prehearing proceedings held in this case, the justiciable issues raised in this case were limited to the allegations:

               
               

               1. Principals in the proposed Medico biomedical waste incinerator have violated Department rules at a different location since the original construction permit issued.

                  
                  

               2. Medico is unable to continue to provide the same reasonable assurances established during the initial permit review as to human health and allowable air emissions because an additional biohazardous waste incinerator has been permitted and constructed in the locale since the original Medico construction permit approval. Petitioners contend the additional burdens on health and air emissions should be considererd in the proposed Amended Permit.

                  
                  

                  As to the first set of allegations, "allegations as to possible violations of Department rules at a different location that went unreported to the Department prior to the issuance of the proposed Amended Permit" also were excluded. See Preliminary Statement, above.

                  
                  

         2. Air Quality.--

            
            

            1. Two air quality regulations are pertinent. First are the emission limiting and performance standards set out in Part VI of F.A.C. Chapter 17-2, specifically Rule 17-2.600(1)(d), relating to biological waste incineration facilities. Neither the emissions limitations nor the potential emissions from the Medico facility have changed since the air construction permit was initially granted. The emission limitations have been incorporated as conditions of the permit and will have to be met before Medico can qualify for an operation permit. No issue has been raised as to Medico's ability to meet the emission limitations. The finding is implicit in the grant of the permit in March, 1991. See Final Order, Mary Wagoner v. Florida Medical Facilities, Inc., 10 F.A.L.R. 5286 (DER 1987).

            2. The second applicable regulation is F.A.C. Rule 17-2.520. Medico is a "minor facility," as that term is defined in F.A.C. Rule 17-2.100(126) and (133), and is exempt, under F.A.C. Rules 17-2.500(2)(d) and 17-2.510(2)(d), from the new source review provisions contained in F.A.C. Rules 17-2.500 and 17-

               2.510. Rather, under F.A.C. Rule 17-2.520(1), Medico is subject to the provisions of F.A.C. Rule 17-2.520(3)(a):

               
               

      3. Permitting Requirements.

* * *

(b) No permit shall be issued to any source subject to this section unless the Department determines that the construction or modification of the source would not interfere with the attainment and maintenance of any state or national ambient air quality standard or maximum allowable increase. For any source which is or will be located in a nonattainment area or areas of influence, the Department shall determine that the proposed construction or modification will not interfere with reasonable further progress toward attaining the ambient air quality standards.

1. The state ambient air quality standards are promulgated at F.A.C. Rule 17-2.300(3). The national ambient air quality standards are established at 40

   C.F.R. sections 50.4 through 50.12. The national standards contain both "primary" standards and "secondary" standards. Primary standards are those judged necessary, with an adequate margin of safety, to protect the public health. Secondary standards define levels judged necessary to protect the public welfare from any known or anticipated adverse effects of a pollutant. 40

   C.F.R. section 50.2(b)(1991). The standards are:

   
   

   Sulfur dioxide - Primary standards: 80 micrograms per cubic meter annual arithmetic mean; 365 micrograms per cubic meter maximum 24-hour concentration; secondary standard: 1300 micrograms per cubic meter maximum 3-hour concentration.

   
   

   Particulates - Primary and secondary: 150 micrograms per cubic meter 24-hour average concentration, 50 micrograms per cubic meter annual arithmetic mean; measured as PM10.

   
   

   Carbon monoxide - Primary: 9 ppm 8-hour average concentration, 35 ppm 1-hour concentration. There is no secondary standard established for carbon monoxide.

   
   

   Ozone - Primary and secondary: 235 microgramd per cubic meter maximum hourly concentration.

   
   

   Nitrogen dioxide - Primary and secondary:

   100 micrograms per cubic meter.

   Lead - Primary and secondary: 1.5 micrograms per cubic meter maximum arithmetic mean averaged over a calendar quarter.

   
   

   Since ozone is the result of atmosheric photochemical reactions, the emissions regulated are those that contribute to such reactions, volatile organic compounds. See F.A.C. Rule 17-2.100(237), defining volatile organic compounds, and 17-2.510(2)(a), regulating VOCs in ozone nonattainment areas. Organic compounds are those containing the element carbon, except carbon oxides and various carbonates. F.A.C. Rule 17-2.100(153).

   
   

2. F.A.C. Rule 17-2.260 provides:

   
   

   For any provision of Chapter 17-2, F.A.C., which requires that an estimate of concentrations of pollutants in the ambient air be made, the estimates shall be based on the applicable air quality models, data bases, and other requirements approved by the Department and specified in the "Guideline on Air Quality Models (Revised)",

   EPA 450/2-78-027R, July 1986, including "Supplement A (1987)."

   
   

3. Medico conducted its testing in accordance with Department standards, and none of its emissions, either alone or with the additive impact of Bayfront and background concentrations, exceed the applicable air quality standards.

   
   

   1. Past Conduct and Reliablity of the Principals.--

      
      

4. F.A.C. Rule 17-4.070(5) provides:

   
   

   The Department shall take into consideration a permit applicant's violation of any Department rules at any installation when determining whether the applicant has provided reasonable assurance that Department standards will be met.

   
   

   (Emphasis added.) F.A.C. Rule 17-701.030 provides that, as to solid waste management facility permits, the term "applicant" means the owner or operator and includes a business entity, a parent or a subsidiary corporation, a partner, a corporate officer or director, or a stockholder holding more than 50 percent of the corporate stock. No similar definition is found in chapter 17-4 relating to department permits generally, or in chapter 17-2 relating to air permits.

   
   

5. Regardless whether the term "applicant" in F.A.C. Rule 17-4.070(5) should be given a construction similar to the definition in F.A.C. Rule 17- 701.030, the evidence was that no officer, director or majority shareholder of the applicant has violated any Department rules. The violations by the Bay Area Crematory, Inc., were not of the kind and number as to be fatal to Medico's case that it is able to give reasonable assurance.

   
   

6. Evidence purporting to show that Medico, or people or entities related to it, were in violation of local building codes and zoning regulations was outside the scope of F.A.C. Rule 17-4.070(5). In any event, the evidence is not fatal to Medico's case that it is able to give reasonable assurance. (As for zoning regulations, the evidence was that Medico complies.)

7. The DER is not required or authorized by statute to deny or modify an air pollution permit due to alleged noncompliance with local zoning ordinances, land use restrictions or long-range development plans; determinations of applications for air pollution permits must be based solely on compliance with applicable pollution control standards and rules. Council of the Lower Keys v. Charley Toppino & Sons, Inc., 429 So. 2d 67 (Fla. 3d DCA 1983). (Besides, as stated, as for zoning regulations, the evidence was that Medico complies.)

   
   

   1. The Moratorium.--

      
      

8. Section 1, Chapter 92-31, Laws of Florida (1992), provides:

   
   

   Notwithstanding . . . any other provision of law, a person may not begin construction on or be issued a permit for the construction of a biohazardous waste incinerator. This

   prohibition expires October 1, 1994, and shall not apply to modifications to or replacements of existing incinerators that will not result in an increase in allowable emission of any air pollutants regulated by the Department

   of Environmental Regulation.

   
   

   Section 2 requires that DER study the permitting and construction requirements for biohazardous waste incinerators during the moratorium. Chapter 92-31 took effect upon becoming law when approved by the Governor on March 20, 1992. It clearly was not one of the "standards or conditions applicable to the original permit." F.A.C. Rule 17-4.080(3).

   
   

9. By its terms, the moritorium provides that "a person may not begin construction on or be issued a permit for the construction of a biohazardous waste incinerator." (Emphasis added.) If this were all the moritorium said, it easily could be concluded that granting an extension of the expiration date of a permit is the equivalent of issuing a permit and that the moritorium would apply, regardless when construction begins. Cf. Final Order, Mary Wagoner v. Florida Medical Facilities, Inc., 10 F.A.L.R. 5286, 5289 (DER 1987)(res judicata does not apply "to whether the permit term should be extended"). But the moritorium also provides that it "shall not apply to modifications to or replacements of existing incinerators that will not result in an increase in allowable emission of any air pollutants regulated by the Department of Environmental Regulation." There is no evidence that extending the Medico permit will result in an increase in allowable emission of any air pollutants. It is concluded that the Legislature did not intend for the moritorium to apply to Medico's request for an extension of its permit unless Medico did not begin construction by March 20, 1992. In accordance with the previous rulings in prehearing procedures in this case, this issue was not tried at the final hearing in this case.

   
   

10. The Department of Environmental Regulation's Proposed Order, and the posthearing Department of Environmental Regulation's Motion to Reopen Evidentiary Hearing, request that the final hearing be reopened for purposes of trying the issue whether Medico began construction by March 20, 1992. It is concluded that the prehearing rulings should not be disturbed and that, rather, the final order in this case should be made subject to any determination that construction did not begin by March 20, 1992.

    1. The Petitioners' Standing.--

       
       

11. Medico seeks a determination that the Petitioners have no standing because they could present no persuasive evidence that extending the expiration date of the Medico permit results in any pollution that would cause special injury to them. Cf. Agrico Chemical Co. v. Dept. of Environmental Reg., 406 So. 2d 478 (Fla. 2d DCA 1981). The Petitioners certainly had standing to raise and litigate the issue. Whether their failure to make their case also is labeled as failure to prove standing would seem to be moot at this point.

    
    

    1. Section 120.59(6) Costs and Attorney Fees.

    
    

12. Section 120.59(6)(c), Florida Statutes (1991), provides in pertinent part:

    
    

    In all proceedings pursuant to s. 120.57(1), the hearing officer shall determine whether any party, other than a party that is an agency, participated in the proceeding for an

    improper purpose as defined in this subsection.

    
    

13. Section 120.59(6)(d), Florida Statutes (1991), provides:

    
    

    In any proceeding in which the hearing officer determines that a party participated in the proceeding for an improper purpose, the recommended order shall so designate and shall recommend the award of costs and attorney fees.

    
    

14. Section 120.59(6)(e), Florida Statutes (1991), provides in pertinent part:

    
    

    For the purpose of this subsection:

    
    

    1. "Improper purpose" means participation in a proceeding pursuant to s. 120.57(1) primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of an activity.

    
    

15. Section 120.59(6)(c), Florida Statutes (1991), also provides in pertinent part:

    
    

    In making such determination, the hearing officer shall consider whether the nonprevailing adverse party has participated in two or more other such proceedings involving the same nonagency prevailing party and the same project as an adverse party and in which such two or more proceedings the nonprevailing adverse party did not establish either the factual or legal merits of its position and shall consider whether the factual or legal position asserted in the instant proceeding would have been cognizable

    in the previous proceedings. In such event, it shall be presumed that the nonprevailing adverse party participated in the pending proceeding for an improper purpose.

    
    

    The Section 120.59(6)(c) presumption does not apply in this case.

    
    

16. Notwithstanding the Motion of Respondent, Medico Environmental Services, Inc., for an Award of Costs and Attorney Fees, it was not found that the Petitioners participated in this proceeding "primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of an activity."

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation enter a final order extending the expiration date for air construction permit AC52-184546 for one year from the entry of the final order, subject to a DER determination that construction did not begin by March 20, 1992, and that the Chapter 92-31 moratorium applies.

RECOMMENDED this 6th day of January, 1993, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0851

To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact:

Petitioners' Proposed Findings of Fact.

I.1.-3. Accepted and incorporated to the extent not subordinate or unnecessary.

1. First sentence, accepted and incorporated. Second sentence, argument and subordinate.

   1. Accepted and incorporated.

      
      

   2. First four sentences, accepted and incorporated to the extent not subordinate or unnecessary. Fifth sentence, rejected as not supported by the evidence and as contrary to facts found. Fifth sentence, accepted but subordinate to facts contrary to those found.

      
      

2. First four sentences, accepted and incorporated to the extent not subordinate or unnecessary. Fifth sentence, accepted but subordinate to facts contrary to those found. (He raised questions but had no answers; other witnesses satisfactorily answered the question.) Last sentence, rejected as contrary to the greater weight of the evidence and to the facts found.

   
   

3. First sentence, accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, irrelevant to the extension the expiration date of an air construction permit, and unnecessary. Also, state law and regulations govern some aspects of the handling of these wastes.

   
   

4. First two sentences, accepted but subordinate and unnecessary.

   Third and fourth sentences, rejected as contrary to the greater weight of the evidence and to facts found. (Reasonable assumptions can be made, in accordance with EPA publications, based on the nature of the facility.) Also, irrelevant to the extension the expiration date of an air construction permit, and unnecessary. Finally, res judicata.

   
   

5. Rejected as contrary to the greater weight of the evidence and to facts found. Also, irrelevant to the extension the expiration date of an air construction permit, and unnecessary. Finally, res judicata.

   
   

6. First sentence, accepted but accepted but subordinate to facts contrary to those found, and unnecessary. Second sentence, rejected as contrary to the greater weight of the evidence and to facts found. Also, irrelevant to the extension the expiration date of an air construction permit, and unnecessary. Finally, res judicata.

   
   

7. First two sentences, accepted and incorporated in part (another reason was that the application passed a screening model both initially and on the extension request and that most of the toxics would not be expected to be generated from this source), but res judicata, and unnecessary. Third sentence, accepted and incorporated. Fourth and fifth sentences, accepted but res judicata, subordinate to facts contrary to those found, and unnecessary.

II.9.-10. Rejected as contrary to facts found and to the greater weight of the evidence.

III.1.-2. Rejected as being conclusions of law.

Medico's Proposed Findings of Fact.

1.-3. Accepted and incorporated.

4. Accepted but subordinate and unnecessary.

5.-7. Accepted and incorporated.

1. Accepted but subordinate and unnecessary.

2. Accepted and incorporated.

   
   

3. Irrelevant and unnecessary.

11.-23. Generally accepted but largely subordinate. Incorporated to the extent not subordinate or unnecessary.

1. Accepted but subordinate and unnecessary.

   
   

2. Accepted and incorporated to the extent not subordinate or unnecessary.

   
   

3. Accepted but subordinate and unnecessary.

   
   

4. Accepted but subordinate and unnecessary.

   
   

5. Generally accepted, but largely res judicata, irrelevant, subordinate and unnecessary.

   
   

6. Accepted and incorporated.

30.-31 Accepted but subordinate and unnecessary.

1. Generally, accepted but subordinate and unnecessary.

   
   

2. Last sentence, rejected as contrary to the greater weight of the evidence. Rest, accepted but subodinate and unnecessary.

34.-35. Generally, accepted but subordinate and unnecessary.

1. Accepted and incorporated.

   
   

2. Accepted but subordinate and unnecessary.

38.-43. Accepted and incorporated.

44.-45. Accepted but subordinate and unnecessary.

1. Accepted and incorporated.

   
   

2. Accepted but largely subordinate and unnecessary. Some, irrelevant.

48.-49. Accepted but subordinate and unnecessary.

50. Accepted but irrelevant, subordinate and unnecessary.

DER's Proposed Findings of Fact.

1.-9. Accepted and incorporated to the extent not subordinate or unnecessary.

10. The law was signed on March 20, 1992. Otherwise, accepted and incorporated.

11.-15. Accepted but subordinate and unnecessary.

COPIES FURNISHED:

Adrien W. Helm, Esquire

925 Fourteenth Avenue North St. Petersburg, Florida 33705

Sandra P. Stockwell, Esquire Douglas L. Stowell, Esquire Post Office Box 11059 Tallahassee, Florida 32302

W. Douglas Beason, Esquire Assistant General Counsel

Dept. of Environmental Regulation 2600 Blairstone Road

Tallahassee, Florida 32399-2400

Carol Browner, Secretary Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Daniel H. Thompson, Esquire General Counsel

Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE DEPARTMENT OF ENVIRONMENTAL REGULATION WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE DEPARTMENT OF ENVIRONMENTAL REGULATION CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 92-000851

Orders for Case No: 92-000851