STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA D'HONDT, )

)

Petitioner, )

)

vs. ) CASE NO. 95-4817

) CONSTRUCTION BURNING, INC. ) and DEPARTMENT OF ) ENVIRONMENTAL PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

Robert E. Meale, Hearing Officer of the Division of Administrative Hearings, conducted the final hearing in Ft. Myers, Florida, on March 20, 1996.

APPEARANCES

For Petitioner: Patricia d'Hondt, pro se

6288 Briarwood Terrace Ft. Myers, Florida 33912

For Respondent Connie D. Harvey

Construction Akerman, Senterfitt & Eidson, P.A. Burning, Inc.: 100 South Ashley Street, Suite 1500

Tampa, Florida 33602-5311

For Respondent Stephen K. Tilbrook Department of Assistant General Counsel

Environmental Department of Environmental Protection Protection: 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUE

The issue is whether Construction Burning, Inc. is entitled to a permit to construct and operate an air curtain incinerator.

PRELIMINARY STATEMENT

On August 31, 1995, Respondent Department of Environmental Protection issued an Intent to Issue a permit to Respondent Construction Burning, Inc. for the construction and operation of an air curtain incinerator.

By letter dated September 19, 1995, Petitioner challenged the issuance of the permit.

At the hearing, the Department of Environmental Protection issued a new draft permit, which required Construction Burning, Inc. to discontinue operating

an existing air curtain incinerator as a condition to obtaining the permit to operate a new air curtain incinerator.

Petitioner called six witnesses and offered into evidence seven exhibits.

Respondent Construction Burning, Inc. called two witnesses and offered into evidence four exhibits. Respondent Department of Environmental Protection called one witness and offered into evidence two exhibits. All exhibits were admitted except Petitioner Exhibits 5 and 6. Petitioner failed to file Petitioner Exhibit 7, so it is deemed withdrawn. The filing of the exhibit would not have changed the outcome of the case.

The transcript was filed April 17, 1996. Each party filed a proposed recommended order. Rulings on the proposed findings of fact are in the appendix.

FINDINGS OF FACT

1. On June 8, 1995, Respondent Construction Burning, Inc. (Applicant) filed an application with Respondent Department of Environmental Protection (DEP) for the construction of a McPherson Systems, Inc. Model M40B Air Curtain Incinerator with a Model M16ACD Blower (Model 40).

   
   

2. The application states that Applicant would use the Model 40 air curtain incinerator (ACI) "to combust and destroy landscape debris such as leaves, limbs, trunks, tree clippings, brush, pallets and clean wood that [Applicant] accepts from outside landscaping contractors."

   
   

3. An ACI encloses a fire with four walls. The operator adds combustible material to the fire from an open top. The air curtain is an air stream generated by blowers directed over the fire. The air curtain helps the fire maintain the high temperatures required for effective combustion. The air curtain also creates a barrier to trap materials in the incinerator until more completely burned. In these ways, the ACI reduces emissions from the incinerator

   
   

4. Petitioner proposes in the application the construction of a refractory walled burning pit 40 feet long, 12 feet wide, and 15 feet deep with blowers above and beneath the fire. The blower beneath the fire would help maintain high temperatures in the fire. The Model 40 ACI that is the subject of the application adds three ten-foot upper chamber walls, which assist in maintaining the integrity of the air curtain above the fire. The Model 40 ACI also features a fine-meshed cage to trap particulates and ash.

   
   

5. The application states that the Model 40 ACI would reach temperatures from 2000 to 2500 degrees Fahrenheit and would have a maximum incineration rate of 25 tons per hour of clean landclearing or landscaping debris, producing 1000 pounds per hour of sanitary ash. The application requests a permit to operate the Model 40 ACI 9.5 hours daily, five days a week.

   
   

6. The application assures that, in terms of visible emissions, the Model

   40 ACI would generate only 5 percent opacity, except for 35 percent opacity in the 30-minute startup period.

   
   

7. On August 31, 1995, DEP issued its Intent to Issue. The permit notes that this is the second ACI at the site. Specific Condition 4 prohibits the facility from storing more combustible material than can be burned in 30 days during normal operating hours. If either unit becomes inoperative, Specific

   Condition 4 requires that the facility stop accepting material after it reaches 6000 tons onsite, until the onsite material is reduced to less than 5600 tons.

   
   

8. Specific Condition 9 requires that Applicant discontinue use of the Model 40 ACI anytime that it is performing inadequately due to overloading, neglect, or other reasons. Specific Condition 12 sets the maximum burning rate at 50,000 tons per hour.

   
   

9. Specific Conditions 13 and 14 address visible emissions. Specific Condition 13 prohibits no more than five percent opacity outside of startup, except that opacity up to 20 percent is allowed for not more than three minutes in any one hour. Specific Condition 14 allows opacity of up to 35 percent averaged over a six-minute period during startup, which is the first 30 minutes of operation.

   
   

10. Specific Condition 15 limits the materials to be burned in the Model

    40 ACI to "wood wastes consisting of trees, logs, large brush, stumps relatively free of soil, unbagged leaves and yard trash, tree surgeon debris, and clean dry lumber such as pallets."

    
    

11. At the hearing, DEP produced an undated draft permit for the Model 40 ACI. The only change from the August 31, 1995, permit is that the draft permit requires Applicant to remove the existing ACI from the facility.

    
    

12. Applicant has been operating a McPherson Model 30 ACI at the same location as that proposed for the Model 40 ACI. Formerly zoned heavy industrial, the location, which is 16351 Old Highway 41 in Ft. Myers, is presently zoned for the operation of an ACI, and the facility is surrounded by industrial uses.

    
    

13. Applicant has been operating the Model 30 ACI at the present location since December 1992 under a permit dated February 15, 1993. The permit for the Model 30 ACI, which expires February 15, 1998, contains similar Specific Conditions as those under contained in the new permit, except that the old permit does not limit the amount of material that can be stored onsite.

    
    

14. The Model 30 ACI is different from the Model 40 ACI. The Model 30 ACI is an older, smaller model with a capacity of 20 tons per hour. Lacking the three-walled upper chamber, the Model 30 ACI cannot maintain the integrity of the air curtain as well as can the Model 40 ACI. The Model 30 ACI has a larger- meshed screen than the Model 40 ACI, so larger particulates and ash can escape the incinerator.

    
    

15. Compared to the Model 40 ACI, the Model 30 ACI is manufactured with less durable components, which are more vulnerable to damage from the hot steam produced from the combustion of exceptionally moist vegetation, such as Brazilian Pepper and melaleuca. Also, Applicant's Model 30 ACI either lacks a below-fire blower or its below-fire blower is broken, so as to impede effective combustion. Applicant's Model 30 ACI is in dilapidated condition, leaving it both unsafe and ineffective.

    
    

16. The operating history of Applicant's Model 30 ACI has been uneven. Applicant's Model 30 ACI has never failed a Class III inspection, which is a 90- minute inspection conducted annually. Applicant's Model 30 ACI has failed one of five Class II inspections, which are 30-minute visible-emissions inspections. Applicant's Model 30 ACI has passed most of about 17 Class I inspections, but its failures have resulted in two consent orders, including one in which DEP fined Applicant $2000.

17. On April 4, 1994, a defective wall in Applicant's Model 30 ACI allowed hot embers to escape and ignite a large fire on the grounds of the facility.

    The fire required many hours of firefighting before it could be extinguished.

    
    

18. However, Applicant has since adopted a firefighting plan and installed sprinklers on the grounds. The proposed limitation of onsite vegetative debris would further reduce the risk of fires escaping from the Model 40 ACI.

    
    

19. DEP produced some, but not all, field investigation reports for Applicant's facility. On June 9, 1994, DEP inspectors visited the site after receiving complaints of heavy smoke in the area. After an investigation, they prohibited Applicant from accepting new material for three weeks, presumably so Applicant would be under less pressure to burn vegetative material that had not dried sufficiently to burn efficiently and without visible emissions.

    
    

20. On July 5, 1994, a DEP inspector visited the site after receiving a complaint and found brown and white smoke of 15-30 percent opacity emanating from the Model 30 ACI, largely due to excessive moisture in the vegetative material being added to the incinerator. A week later, at mid-day, a DEP inspector visited the site and saw white smoke of 30-50 percent opacity for one minute, followed eventually by five percent opacity.

    
    

21. On August 24, 1994, a DEP inspector noticed brown smoke emanating from the Model 30 ACI at about 4:00 pm. The opacity was 10-25 percent. Applicant had allowed a log to protrude through the air curtain, which allowed smoke to escape from the incinerator.

    
    

22. On November 17, 1994, two DEP inspectors visited the site and noted brown smoke emanating from the Model 30 ACI with 10-25 percent opacity. Applicant's representative explained that the walls of the Model 30 ACI were damaged and allowed the smoke to escape from the incinerator. The representative assured the DEP inspectors that a replacement wall was onsite and maintenance was soon to be undertaken.

    
    

23. DEP conducted T-screen modeling to determine whether particulate emissions from the Model 40 ACI would be below the ambient air quality standards within one-half mile of the facility. DEP determined that, under the worst-case situation, proper operation of the Model 40 ACI would not have an adverse impact within one-half mile of the facility.

    
    

24. Applicant has not, at all times, operated the Model 30 ACI in a safe and effective manner, especially with respect to the moisture content of loads added to the ACI. Hot steam emerging from excessively moist loads has damaged the walls of the Model 30 ACI and shortened its useful life. The damage to the walls has in turn impaired the ability of the Model 30 ACI to burn safely and efficiently the vegetative material added to the unit, leading to one serious fire and many violations of DEP's standards for visible emissions.

    
    

25. Petitioner presented evidence of visible smoke and smoky odors entering her home and the homes of other residents living in the vicinity of Applicant's facility. Some of these incidents are attributable to Applicant, and some are not.

    
    

26. The Model 40 ACI would improve the conditions of which Petitioner complains. The new ACI would be a marked improvement over the old ACI, as long

    as Applicant properly operates the Model 40 ACI and DEP routinely monitors Applicant's operations and enforces the permit conditions and other provisions of law.

    
    

27. Under the circumstances, including Applicant's recent operating history, Applicant has provided the necessary reasonable assurance for the issuance of a new permit authorizing the construction and operation of the Model

    40 ACI described in the August 31, 1995, proposed permit, as modified by the undated draft permit, together with the proposed general and special conditions. However, the finding of reasonable assurance is predicated on a new provision in the proposed permit limiting the term of the new permit to the termination date of the original permit for the Model 30 ACI, which is February 15, 1998. Given Applicant's recent operating history, Applicant has not provided the necessary reasonable assurance for an operating permit with a longer term than the term remaining under the old permit. If Applicant demonstrates that it can safely and effectively operate the Model 40 ACI between now and February 15, 1998, it can obtain a five-year permit at that time.

    
    

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.

    
    

29. Applicant has the burden of proving entitlement to the permit. Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

    
    

30. Section 403.087 authorizes DEP to issue a permit for the operation of an ACI.

    
    

31. Rule 62-4.070(1) provides that DEP shall issue a permit on specified conditions only if Applicant provides "reasonable assurance" that the construction will not discharge, emit, or cause pollution in violation of DEP rules.

    
    

32. Rule 62-4.070(4) generally limits permits to a duration of not more than five years.

    
    

33. Rule 62-4.070(5) requires DEP to "take into consideration a permit applicant's violation of any Department rules at any installation when determining whether the applicant has provided reasonable assurances that Department standards will be met."

    
    

34. Rule 62-296.401(6) sets forth the requirements imposed on ACIs. DEP has incorporated these requirements into the proposed permit.

    
    

35. Applicant has provided reasonable assurance for the issuance of a new permit for the Model 40 ACI only for the duration remaining of the original permit for the Model 30 ACI. The short duration is necessitated by Applicant's serious problems in the recent past in terms of a fire and visible emissions, as well as evidence of operator misuse of the Model 30 ACI. However, the Model 40 ACI, if properly operated, would be a great improvement over the dilapidated Model 30 ACI, which would no longer be operated under the new permit.

RECOMMENDATION

It is

RECOMMENDED that the Department of Environmental Protection enter a final order issuing a permit to Construction Burning, Inc. to replace the existing McPherson Model 30 ACI with a Model 40 ACI, pursuant to the Intent to Issue dated August 31, 1995, as modified by the undated draft permit requiring the elimination of the Model 30 ACI, and operate the Model 40 ACI through February 15, 1998, in accordance with all permit conditions and other provisions of law.

ENTERED on May 22, 1996, in Tallahassee, Florida.

ROBERT E. MEALE

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 on May 22, 1996.

APPENDIX

Rulings on Petitioner's Proposed Findings 1: rejected as not finding of fact.

2: rejected as unsupported by the appropriate weight of the evidence.

3-5: rejected as recitation of evidence.

6: rejected as recitation of evidence. However, the failure of the DEP witness to bring with him the file of Applicant is inexplicable.

7: adopted or adopted in substance.

8 (first two sentences): rejected as irrelevant.

8 (remainder): adopted or adopted in substance, to the extent of a limit on the term of the new permit.

9: rejected as not finding of fact.

10: rejected as recitation of evidence.

11: rejected as unsupported by the appropriate weight of the evidence and relevance.

Rulings on Applicant's Proposed Findings

1-3: adopted or adopted in substance. 4: rejected as not finding of fact.

5: adopted or adopted in substance except as to the date on which operation started. Applicant's president testified that Applicant began operations in 1992.

6-7: adopted or adopted in substance.

8 (first sentence): rejected as unsupported by the appropriate weight of the evidence.

8 (remainder): adopted or adopted in substance, except for finding as to when Applicant learned of damage to the Model 30 ACI.

9: rejected as subordinate.

10-14: adopted or adopted in substance.

15-16: rejected as recitation of evidence.

17: rejected as unsupported by the appropriate weight of the evidence. 18: rejected as subordinate.

19: rejected as recitation of evidence.

20: rejected as unsupported by the appropriate weight of the evidence.

However, this remedy is available by law to DEP, regardless of the provisions of the permit.

21-22: adopted or adopted in substance. 23: rejected as recitation of evidence.

24-25 (first sentence): adopted or adopted in substance.

25 (remainder): rejected as recitation of evidence. 26: adopted or adopted in substance.

27-30: rejected as recitation of evidence. 31: rejected as legal argument.

Rulings on DEP's Proposed Findings

1-24: adopted or adopted in substance. 25: rejected as recitation of evidence. 26-27: adopted or adopted in substance.

28: rejected as unsupported by the appropriate weight of the evidence, unless the term of the new permit is limited to the remaining term of the old permit.

29: rejected as legal argument.

30-59: rejected as subordinate, except to the extent incorporated in the recommended order.

COPIES FURNISHED:

Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Kenneth Plante, General Counsel Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Patricia d'Hondt

6288 Briarwood Terrace Ft. Myers, Florida 33912

Connie D. Harvey

Akerman, Senterfitt & Eidson, P.A.

100 South Ashley Street, Suite 1500 Tampa, Florida 33602-5311

Stephen K. Tilbrook Assistant General Counsel

Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, Florida 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 longer period within which to submit written exceptions. You should contact the agency that will issue the final order 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.

Docket for Case No: 95-004817

Orders for Case No: 95-004817