STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HAILE COMMUNITY ASSOCIATION, )
)
Petitioner, )
)
vs. ) CASE NO. 95-5531
) FLORIDA ROCK INDUSTRIES, INC., ) and DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Suzanne F. Hood, held a formal hearing in this matter on February 26 through March 1, 1996, and March 6 through March 7, 1996, in Gainesville, Florida.
APPEARANCES
For Petitioner Haile Community Association, Inc.:
Priscilla N. Harris, Esquire Stewart Harris, Esquire
Post Office Box 702
Green Cove Springs, Florida 32040 For Respondent Florida Rock Industries, Inc.:
Sequndo J. Fernandez, Esquire Timothy P. Atkinson, Esquire
Oertel, Hoffman, Fernandez and Cole, P.A. 2800 Blair Stone Road
Tallahassee, Florida 32399-2400
For Respondent Department of Environmental Protection: Jefferson M. Braswell, Esquire
W. Douglas Beason, Esquire Twin Towers Office Building 2600 Blair Stone Road
Tallahassee, Florida 32399-2400 STATEMENT OF ISSUE
The issue is whether Respondent Department of Environmental Protection should issue an air construction permit to Respondent Florida Rock Industries, Inc. for the construction of a Portland cement plant.
PRELIMINARY STATEMENT
The Respondent Department of Environmental Protection (Department) received Respondent Florida Rock Industries, Inc.'s (FRI) application for an air construction permit on March 17, 1995. FRI's application requested permission to construct a Portland cement plant at FRI's existing quarry located in Alachua County, approximately 2.5 miles from Newberry, Florida. The Department issued a Notice of Intent to Issue Permit on September 29, 1995.
The Petitioner Haile Community Association, Inc. (Petitioner) requested an extension of time in which to file a petition in opposition to the issuance of the proposed permit. The Department granted said extension.
Petitioner filed a Petition for Administrative Hearing on October 30, 1995.
The Department transferred this matter to the Division of Administrative Hearings on November 13, 1995, for a formal hearing pursuant to Section 120.57(1), Florida Statutes. On November 21, 1995, the Division of Administrative Hearings issued an Initial Order advising the parties that the undersigned would conduct the proceedings in this case.
On November 22, 1995, FRI filed a Motion to Expedite and a Motion in Opposition to Petition for Formal Administrative Hearing. Petitioner filed a response in opposition to the Motion to Expedite on November 30, 1995. After hearing oral argument, the undersigned issued an Order dated December 6, 1995:
denying FRI's Motion in Opposition to Petition for Administrative Hearings;
shortening the time to respond to orders, motions and discovery requests;
directing Petitioner to file an Amended Petition on or before December 11, 1995; and (4) granting permission for Stewart Harris, Esquire, to enter an appearance on behalf of Petitioner pro hac vice.
The undersigned issued a Notice of Hearing dated December 6, 1995, scheduling this matter for formal hearing during the last week of February, 1996.
Petitioner filed its Amended Petition for Formal Hearing on December 11, 1995. On December 27, 1996, FRI filed a Motion to Strike and Motion for More Definite Statement relative to the Amended Petition. Petitioner filed a response in opposition to said motions on January 5, 1996. After hearing oral argument on January 16, 1996, the undersigned entered an Order dated January 26, 1996, granting these motions in part and denying them in part. Said order directed Petitioner to file a Second Amended Petition.
Petitioner filed its Second Amended Petition for Administrative Hearing on February 5, 1996. FRI filed a Motion to Strike Portions of the Second Amended Petition on February 8, 1996. Petitioner filed a response in opposition to this motion on February 12, 1996.
On February 9, 1996, FRI filed a Motion to Compel and for Sanctions. The motion requested that Petitioner be compelled to produce a representative at deposition who could testify as to the factual basis of the Amended Petition for Administrative Hearing. Petitioner filed a response in opposition to this motion on February 19, 1996.
On February 14, 1996, Petitioner filed a Motion for Continuance and Motion for a Protective Order. FRI filed a response in opposition to this motion on February 15, 1996. That same day, the undersigned heard oral argument in a
telephone conference. On February 16, 1996, the undersigned issued an Order denying Petitioner's Motion for Continuance and Motion for a Protective Order.
The undersigned held a motion hearing on February 20, 1996. At that time, the undersigned granted in part and denied in part FRI's Motion to Strike Portions of the Second Amended Petition for Administrative Hearing. The transcript of this proceeding was filed on February 27, 1996.
The undersigned issued an Order dated February 21, granting FRI's Motion to Compel and reserving a ruling on the request for sanctions. Said request for sanctions is hereby denied.
During the hearing, FRI presented the testimony of four witnesses and offered thirty-six exhibits all of which were admitted into evidence. HCA presented the testimony of five witnesses and offered seven exhibits all of which were admitted into evidence. The Department did not present any witnesses and offered one exhibit which was accepted into evidence. On the evening of February 28, 1996, written and sworn public comment was admitted into evidence.
On March 12, 1996, FRI filed a Motion to Reopen the Record for the Introduction of Additional Exhibits and the Taking of Additional Testimony. The Department and Petitioner filed responses in opposition to this motion on March 15, 1996. The undersigned verbally denied FRI's motion after oral argument in a telephone conference on March 15, 1996. Said ruling is hereby affirmed.
A transcript of the formal hearing was filed on April 3, 1996. Respondents filed a Joint Motion for Extension of Time to File Proposed Recommended Orders on April 22, 1996. The undersigned immediately heard oral argument and issued an Order granting Respondents' Joint Motion for Extension of Time to File Proposed Recommended Orders.
The parties filed their Proposed Recommended Orders on April 30, 1996. The Appendix to this Recommended Order contains rulings on each of the parties' proposed findings of fact.
On May 10, 1996, Petitioner filed a Motion to Strike, or, in the Alternative, for Judicial Notice and/or to Amend Proposed Recommended Order. Respondents filed a response in opposition to this motion on May 20, 1996. Said motion is hereby denied.
Petitioner's Proposed Recommended Order contained a Renewed Motion for Attorney's Fees. Respondent FRI filed a response in opposition to said renewed motion on May 10, 1996. Said motion is hereby denied.
FINDINGS OF FACT
PROPOSED FACILITY
The applicant, FRI, plans to construct a Portland cement plant (the plant) at its existing quarry located off Alachua County Road 235, 2.5 miles northeast of Newberry, Florida. The plant site consists of 46 acres located near the center of more than 1,300 acres of limestone and overburden reserves.
Portland cement is a material used to construct common items such as buildings, roads and pipelines. The necessary raw ingredients include sand, clay and limestone. Eighty percent of the raw feed material is limestone.
The project includes a single kiln, clinker cooler, preheater, precalciner, crusher, raw mill, finish mill, silos, conveyors, and an assortment of equipment for particulate control/dust collection, cement and clinker handling, coal handling, air pollution control, and recycling.
The proposed plant has seven emission units. The first emission unit is related to the mining and storage of raw materials. Limestone, sand and clay are sized and mixed at the quarry according to standards set by the American Society of Testing Materials (ASTM). Next, conveyors transport the raw material to a covered storage area.
The second emission unit is the raw material grinding and blending unit. In the covered storage area, the plant operator further blends the raw feed material with other secondary materials, including coal ash. This unit contains an auxiliary heater which uses number two fuel oil and a roller mill where the material is ground.
The raw material arrives at the second emission unit containing eight to ten percent moisture content to prevent the generation of dust. The auxiliary heater removes this moisture and dries the raw feed material. This step is necessary because the proposed facility is a dry process cement plant as opposed to a wet process cement plant. In the former, the feed material is dry when it enters the kiln. In the later, the feed material is a wet slurry.
Emission unit three includes the preheater, precalciner, and kiln. The raw material proceeds from the grinder to the preheater where it is preheated as it falls vertically downward through exhaust gases rising upward from the kiln. Next, the feed material passes through the precalciner where fuel is added to calcine the feed material before it reaches the kiln.
The calcining process involves the decomposition through heat of limestone (calcium carbonate) to lime (calcium oxide) and carbon dioxide. About sixty percent of the kiln system's fuel is fed into the precalciner.
FRI may use tires as an alternate fuel. Tires are fed into the kiln system at the transition section between the base of the precalciner and the point where gases exit the kiln. As described in the record the tire feeder mechanism has a double airlock, vertical and horizontal guillotine gates, and a ram. The permitted feed rate for tires is thirty percent of the total heat input or approximately 400 tires per hour.
After passing through the precalciner, the feed material passes into the raised end of the kiln to produce clinker. The kiln is an inclined rotating cylinder, approximately twelve feet in diameter and one hundred sixty-two feet long. FRI plans to feed fuel into the lower end of the kiln where it discharges the clinker.
To produce clinker, the kiln must heat the feed material to a temperature of approximately 2700 degrees Fahrenheit. The gases in the subject kiln will reach temperatures between 3700 to 3800 degrees Fahrenheit.
Emission unit four is the clinker cooler, belt transfer and two clinker silos. The clinker exits the kiln at temperatures in excess of 2,000 degrees Fahrenheit. The clinker then falls into the clinker cooler where ambient air is passed through the clinker to cool it. In the cooling process,
the air becomes heated. The plant uses this hot air as combustion air in the kiln and heating air for the coal mill. A conveyor transfers the cooled clinker to two silos.
The finish mill and cement storage silos are emission unit five. The plant transfers clinker from the silos to the finish mill (or roller mill) where the plant operator adds gypsum and/or limestone as required by ASTM standards. Next, the plant transports the finished cement to the cement storage silos.
Emission unit six consists of cement handling and packaging operations. FRI plans to ship the finished product in bags or in bulk by rail or truck.
Emission unit seven consists of coal handling operations. The plant receives coal on site by rail and stores it in a covered storage area. The plant grinds the coal in a grinder which is heated by hot gases from the clinker cooler. After being ground, the plant transfers the coal to a small storage silo and feeds it into the kiln and precalciner.
The proposed plant has the capacity to produce 2300 tons of clinker per day. It will, on average, produce 712,500 tons of clinker per year. The plant will yield approximately 772,400 tons of Portland cement per year.
BACT ESTIMATES, PROPOSALS, AND LIMITATIONS
Best available control technology (BACT) is an emission limitation determination made on a case-by-case basis taking into account several factors including energy, environmental and economic impacts and other costs. Petitioner failed to present any persuasive evidence regarding the inadequacy any of the BACT factors listed in Rule 62-212.400(5) and (6), Florida Administrative Code.
BACT for a particular source evolves and becomes more stringent over time as technology evolves. A regulating agency uses BACT to force applicants to develop technology which will optimize processes and improve emission rates.
The plant will be a major emitting facility for certain regulated pollutants: particulate matter (PM and PM10), sulfur dioxide (SO2), nitrogen oxides (NOx), and carbon monoxide (CO). The project site is located in an area which has been designated attainment for all criteria pollutants.
The proposed facility is subject to the Prevention of Significant Deterioration (PSD) regulations because the potential emission of each of the above referenced pollutants exceeds one hundred tons per year. PSD review consists of a determination of BACT and an air quality impact analysis for each of these regulated pollutants.
The Department performed a BACT determination for emissions of SO2, NOx, PM/PM10, CO, VOCs and beryllium because the emissions of these six pollutants are at levels in excess of PSD Significant Emission Rates. Petitioner only challenges the BACT determination for SO2 emissions limits. However, Petitioner challenged the design of the proposed plant and the sufficiency of the control mechanisms to provide reasonable assurances that FRI will not meet BACT emission limits.
CARBON MONOXIDE
The BACT emission rate for CO is 3.6 pounds per ton of clinker or
346.38 pounds per hour. FRI has provided reasonable assurances that this limit will be met through process controls and the use of continuous emissions and process monitors.
NITROGEN OXIDES
The BACT emission rate for NOx is 2.8 pounds per ton of clinker after an initial limit for two years of 3.8 pounds per ton of clinker. The interim limit is necessary to allow for an optimization period in which FRI can comply with the 2.8 pounds per ton limit. The Department may revise the limit to less than 2.8 pounds per ton of clinker based on compliance tests and continuous emission monitoring data.
The Department determined the NOx BACT emission limit in part after considering a California cement plant's NOx BACT emission limit of 2.5 pounds per ton of clinker and then normalizing the number for the FRI plant.
FRI's feed material is wetter than the feed material at the California plant. Therefore, FRI will require more coal to dry the feed. The increased consumption of coal will result in higher NOx emissions. Additionally, the coal used at the California plant has greater volatility than the coal used at FRI's plant.
During the two year optimization period, mechanical features of the plant will wear in and the refractory in the kiln will be cured. FRI will use the start-up time to determine the optimum oxygen levels and temperatures throughout the kiln system. The plant operator will make operational adjustments in the feed mix and the kiln rotation speed. It is not unusual for a cement plant to need approximately two years to make the operational adjustments necessary to comply with NOx emission limits.
Other existing dry process cement plants meet their NOx emission limits using only one firing point. In the FRI plant, the use of two firing points (without using tires as fuel) and three firing points (using tires as fuel) will spread combustion over more locations. Spreading the combustion points will reduce the oxygen requirements thereby restricting NOx formation.
Preheater type kilns burn some fuel at temperatures lower than the temperatures in the kiln burning zone. This results in NOx emissions which are lower than the emissions from a kiln without a preheater. The subject facility has a preheater and a precalciner which means that the proportion of the fuel burned at the calcining temperature is much greater than in a kiln with only a preheater. The result here will be even lower NOx emissions.
Using tires as fuel will also reduce NOx emission rates because tires burn with less intense heat than coal. However, FRI will meet the NOx emission limit even if it decides not to burn tires as an alternate fuel. Therefore, a finding of reasonable assurance that the plant will meet the NOx BACT emission limit is not dependent upon FRI burning tires as fuel.
The manufacturer of the kiln, Polysius Corporation, does not guarantee that the NOx emissions from the proposed facility will be below 4.0 pounds per ton of clinker. FRI stipulated at hearing that it would supply additional technology to reduce NOx emissions if the plant does not comply with the
emission limit within two years. However, the greater weight of the evidence indicates that FRI will not need additional technology to meet the NOx emission limits. Therefore, the undersigned has not relied on this stipulation in finding reasonable assurances.
FRI has provided reasonable assurances that the NOx emission rate will be met through process controls and the use of continuous emissions and process monitors.
COMPLIANCE WITH NOx AND CO EMISSION LIMITS
CO is a gas which is generated when there is inadequate oxygen in the combustion of fuel and the calcining of calcium carbonate or limestone.
NOx is a gas which is a combination of oxides of nitrogen. The plant will produce NOx during the combustion process in the kiln system when nitrogen combines with oxygen. There are three specific sources of NOx: thermal NOx, fuel NOx, and feed material NOx.
The generation of CO and NOx is inversely related and linked to the oxygen level that is present in the kiln system. As the oxygen level increases, the formation of NOx increases and the formation of CO decreases. Conversely, when the oxygen level decreases, the formation of NOx decreases and the formation of CO increases.
FRI will meet CO and NOx emissions levels by controlling excess oxygen in the kiln to a level between one and one-half to three percent excess oxygen. FRI will use continuous oxygen process monitors to regulate the oxygen level. One such monitor will measure the oxygen content of the gases leaving the kiln where the feed material enters the kiln. Another monitor will measure the oxygen level in gases leaving the precalciner and proceeding to the preheater.
FRI will use a continuous emissions monitor (CEM) to ensure compliance with NOx emission limits. A continuous CO process monitor will assist in the control of the CO content in the kiln.
Expert testimony of professional engineers corroborates the Department's predicted emission rates for CO and NOx. Other information also supports the Department's BACT determination for CO and NOx. For instance, the Environmental Protection Agency's (EPA) AP-42, Fifth Edition, USEPA, Compilation of Air Pollutant Emission Factors, contains a broad spectrum of emission factors from cement plants around the country. The Department properly relied on another EPA document, Alternative Control Techniques, EPA-453/R-94-004 (3/1994) for the proposition that burning tires will reduce NOx emissions.
The Department will not issue FRI an operation permit until it demonstrates compliance with CO and NOx emission limits.
SULFUR DIOXIDE
The interim BACT emission limit for SO2 is .28 pounds per ton of clinker or 28.82 pounds per hour. This limit is as low as the BACT emission limit imposed at any other cement plant in the country. The Department based the SO2 interim emission rate in part on the lowest number provided by the EPA, BACT Clearinghouse. In making the SO2 BACT determination, the Department correctly considered a survey of stack test data from different facilities around the country which have been in operation for three years.
Because of the wide differences in fuels and raw materials at cement plants nationwide, FRI may be able to meet a lower SO2 emission rate. Accordingly, the Department may lower the SO2 emission limit before issuing FRI an operation permit.
The Department will issue the final S02 emissions limit within 120 days following receipt of all tests that the permit requires. At that time, the Department will determine the final emission limit after reviewing the results of FRI's process/pollutant optimization program. The Department will publicly notice any change in the SO2 emission limit.
The plant will generate SO2 during the combustion process when sulfur in the three fuels (coal, tires and number two fuel oil) reacts with oxygen. Sulfur is also present in the raw feed materials.
The plant controls SO2 emissions for the most part through process design, i.e., the capacity of the feed materials in the kiln system to absorb SO2 emissions. SO2 emissions are very sensitive to the balance between alkali and sulfur in the kiln feed and operating conditions. FRI will minimize these emissions by maintaining proper ratios of sulfur and alkali in the pyroprocessing environment and by maximizing the intimate contact between raw materials and exhaust gases.
Limestone contains sodium and potassium which are alkaline materials. As the feed material passes through the kiln system, the alkaline substances absorb the SO2 in a form that will not be released when it passes through the clinkering zone in the kiln.
One hundred percent sulfur absorption is not possible because no absorption system is perfect. The plant's capacity to absorb SO2 emissions is in the range of ninety-five to ninety-six percent.
FRI will install an SO2 CEM. The CEM will not limit SO2 emissions but it will indicate when the plant reaches the SO2 emission rate of 28.82 pounds per hour. FRI will perform annual stack tests to determine SO2 emission rate compliance.
Doubling the amount of the sulfur put into the kiln system will not double the SO2 emissions. Much of the sulfur will stay in the clinker and will not be available for emissions.
There is no need for a limit on the sulfur content in the coal that FRI uses as fuel. The limestone in the kiln system will absorb virtually all of the sulfur in coal at levels between one and two percent with SO2 emission levels remaining constant. SO2 emissions will not increase unless FRI uses coal with four to five percent sulfur levels. There is no known supply of coal with sulfur levels of four to five percent. The typical industrial grade coal in Florida has a sulfur content of approximately 1.2 percent.
The proposed plant has sufficient capacity to absorb any possible variations of sulfur present in the fuel because of the massive amount of lime that it will process and the configuration of the air flows in the kiln system. Nevertheless, FRI agreed during the hearing to accept a specific permit condition limiting the sulfur content of the coal to 1.25 percent by weight and sulfur content of the number two fuel oil to .05 percent by weight.
Additionally, using tires as fuel does not affect SO2 emission rates.
The equilibrium state of the recycled cement kiln dust (CKD) will have no effect on SO2 emissions at the plant.
FRI has provided reasonable assurance that it can comply with the SO2 emission limitation.
VOLATILE ORGANIC COMPOUNDS
The BACT emission rate for VOCs is 11.55 pounds per hour. FRI has provided reasonable assurances that this emission limitation will be met through process controls and the use of continuous emissions and process monitors. The Department correctly based its BACT determination for VOCs in part on data received from the EPA BACT Clearinghouse.
VOCs are gaseous organic compounds which include a broad range of compounds in a gaseous form at room temperature. Incomplete combustion of fuel and organic material in the feed material to the kiln system generate VOCs. Limestone contains very low levels of organic material; therefore, cement plant kiln systems produce very low levels of VOCs.
FRI will reduce the VOC emissions by controlling the temperatures in the kiln system. In the kiln, the feed material will reach about 2,700 degrees Fahrenheit. The temperature of the gases in the kiln will reach between 3,700 and 3,800 degrees Fahrenheit. The temperature in the precalciner will range from 2,000 to 2,100 degrees Fahrenheit. At these high temperatures, virtually all VOCs will be consumed or destroyed regardless of their source (limestone, coal, tires, and fuel oil).
Clinker production requires certain temperatures, residence time, and turbulence within the kiln. These factors are sufficient to ensure the destruction of almost all VOCs at cement plants.
PARTICULATE MATTER
PM is small, finely-divided solid particles. PM is not a particular compound or chemical. It is a solid form of whatever material might be present. PM10, a subset of "total" PM, refers to particulate matter that is ten micrometers in diameter or less.
For the kiln, the Department set the BACT emission limit for PM and PM10 at .31 and .26 pounds per ton of clinker respectively. For the clinker cooler, the Department determined that the BACT emission limit for PM and PM10 was .16 and .13 pounds per ton of clinker respectively. In making its PM/PM10 BACT determinations, the Department correctly considered data from EPA's AP-42 and the more stringent emission rates of other kilns in Florida. The standard reference work, Air Pollution Engineering Manual, Air and Waste Management Association (1992), provides further assurance that FRI will meet the PM/PM10 limitations set forth in the permit.
FRI has provided reasonable assurances that the plant will comply with the emission limitations for PM and PM10 through the use of electrostatic precipitators (ESPs) as BACT to control major sources of controlled PM. Baghouses will control other minor sources of PM. The three most recent BACT determinations nationwide for cement plant kiln systems were met with ESPs.
In this case, the gas stream for the clinker cooler and the gas stream from the kiln system will vent to two ESPs for PM control.
PM is controlled in an ESP by first conditioning the gas stream entering the ESP. The gas stream then passes through an area of extremely high voltage differential (tens of thousands of volts at very low amperage) where the particles develop an electrical charge. As the charged particles pass through the ESP, they are collected on a plate of opposite charge. This plate is periodically rapped to dislodge the PM into a hopper for reuse in the kiln as raw material.
A vender will supply the ESPs sized to meet the PM emission limits of the plant according to the design specifications and the engineering features which are contained in the record. The facility-specific ESP engineering features include gas flow rate, volume of gas passing through the ESP, the temperature of the air stream (stack gas), the moisture content of the air stream, the nature of the particles (including resistivity), and most importantly, the ultimate PM/PM10 limitations imposed in the permit. Polysius Corporation will estimate the concentration of dust approaching the ESP and supply that information to the vendors as a separate piece of information.
The plant's ESPs will have a design specification of 99.9 percent control efficiency. This control efficiency is consistent with demonstrated efficiencies in standard reference works. The specifications also require a manufacturer's guarantee of .01 grams per actual cubic feet per minute (ACFM) for outlet dust concentration.
FRI proposes to operate the kiln system in two alternative modes. The first proposal routes the gas stream from the preheater through a quench tower directly to a precipitator. The second proposal routes the gas stream through the raw mill to dry the feed material and then directly to the precipitator.
The PM loadings and the nature of the PM will change under each of these two sets of conditions.
It is not ordinary or necessary for an applicant to submit detailed engineering drawings of ESPs with an application. The evidence is overwhelming that ESPs built to the specifications contained in the record will meet the required PM/PM10 emission limits.
The type of fuel will not affect the PM emission rate. The use of tires as supplementary fuel will not cause an increase in PM emissions. To the contrary, the firing of coal and tires together reduces PM emissions.
Metal emissions will not clog an ESP.
FRI intends to recycle 100 percent of its cement kiln dust (CKD.)
This recycling will not affect the performance of the pollution control devices.
There is a potential for PM generation at the plant any time FRI handles raw materials. At each material transfer point in the plant, a baghouse will control PM emissions. The plant will have twenty of these baghouses. They effectively limit the concentration of dust in the air stream.
In addition to the grain loading limitation for the baghouses and the mass emission rates for the ESPs, the Department has set opacity limitations for these devices. Opacity is the visual density of PM. FRI will install a CEM for opacity on the ESPs for the kiln system and the clinker cooler.
Baghouses and ESPs are commonly used in the cement industry nationally and internationally. The performance of the plant's baghouses and ESPs will be subject to empirical testing to ensure compliance with PM/PM10 emission limits before the Department issues FRI an operating permit.
Baghouses and ESPs provide an equivalent degree of PM emission control in cement kilns and clinker coolers. FRI stipulates that the permit should contain a condition requiring the applicant to submit the manufacturer's performance guarantee to the Department prior to the commencement of construction of the plant.
FUGITIVE EMISSIONS
Unconfined PM emissions (fugitive emissions) are particles that are not collected and discharged through a stack or vent. Fugitive emissions may result from the storage and handling of coal ash. They may also be caused by mining activities and vehicles traveling on paved and unpaved roads. The Department establishes opacity limits on fugitive emissions because there is no way to establish a mass emission rate.
FRI has provided reasonable assurances that the plant will meet the opacity limits for fugitive emissions by ensuring an adequate moisture content in all materials received at the plant such as coal ash. The utility supplying the coal will add approximately eight to ten percent moisture to the coal ash prior to delivery at the plant. At that level of moisture, the coal ash will generate virtually no fugitive emissions when FRI personal moves it with a front-end loader or any other mechanical device.
FRI will place water lines, hoses and sprinklers near all storage stock piles. The plant operators will be trained in basic environmental compliance. They will perform visual inspections of materials before handling them. If an inspection reveals a lack of excess surface moisture, the plant operators will wet the material with the sprinklers.
To eliminate unconfined particulate matter emissions from the material handling activities, FRI agrees to store all material under cover and on compacted clay or concrete. FRI will pave the plant area to limit the generation of fugitive emissions from trucking and equipment traffic. FRI will maintain and operate a sweeper truck at the plant to limit dust buildup on paved surfaces.
FRI will not emit any fugitive emissions at the tire feeder mechanism because the kiln, precalciner and preheater are all under a negative pressure. The method of feeding tires through a double air lock system will also prevent fugitive emissions.
FRI has agreed to special permit conditions requiring it to "immediately collect" any spilled CKD to prevent fugitive emissions. FRI also has agreed that the Department may incorporate into the permit a specific condition relative to a fugitive emission protocol.
MERCURY
Mercury is a metal that naturally occurs in the earth's crust. The plant's feed materials and fuels contain mercury.
The temperatures in the kiln system cause the mercury in the feed material and fuels to become a part of the gas stream. As mercury in a gaseous state passes through the preheater, some of it will condense and solidify onto particulate matter. Additional mercury will condense as the gas stream approaches the electrostatic precipitator which will have operating temperatures between 220 and 350 degrees Fahrenheit. At this point, virtually all of the mercury will have condensed onto solid particles.
The raw mill will collect some of the solid particles containing mercury. The ESP will also collect the particles and return them to the cement kiln process. Some of the mercury will leave the plant in the finished cement product. The plant will exhaust only a small fraction of the particles containing mercury with the stack gas.
The record contains evidence of a mass balance calculation for mercury emissions of 180 pounds per year. This calculation was based on a worst-case scenario and assumed that all the mercury entering the plant would be released into the atmosphere.
The Significant Emission Rate for mercury that would require a PSD/BACT review is 200 pounds per year. There are no demonstrated mercury controls or add-on controls for limiting mercury emissions in cement plants. Nevertheless, FRI has provided reasonable assurances that the plant's mercury emissions will be below the 200 pounds per year threshold. Evidence to the contrary is unpersuasive.
FRI is willing to accept a permit condition limiting the total input of mercury to below 200 pounds. FRI will demonstrate compliance with this condition through monthly sampling and analysis of the raw mill feed, coal and tires.
BERYLLIUM
The combustion of coal in the kiln and calciner burner and the combustion of number two fuel oil in the raw mill auxiliary air heater will generate small quantities of beryllium as particulate emissions. The ESP on the kiln will control these emissions.
The proposed emission rate for beryllium is .0006 tons per year. The PSD Significant Emission Rate for beryllium is .0004 tons per year. The Department will determine the final emission limit for beryllium after receiving the results of future stack tests.
MODELING
FRI performed air quality modeling to estimate the ambient air concentrations of emissions from the proposed facility based on many factors and highly-developed technology. FRI used three air quality models: (a) the Industrial Source Complex (ISC) model; (b) the SCREEN model; and (c) the long- range transport model (MESOOPUFF).
The modeling included maximum emission rates (or worst case scenarios) for all expected pollutants. The modeling was very conservative because it incorporated FRI's initially proposed emission rates which were higher than the emission rates ultimately proposed in the draft permit. All predicted air toxic impacts, although not regulated, were below the Department's draft ambient reference concentrations.
AMBIENT AIR QUALITY STANDARDS (PRIMARY AND SECONDARY)
Primary air quality standards are limits on the concentration of materials in the ambient air to protect human health. Secondary air quality standards are limits on the concentration of materials in the ambient air necessary to protect public welfare, including, plants, animal life, visibility and the enjoyment of property. FRI provided reasonable assurance through air quality modeling that FRI would meet primary and secondary ambient air quality standards.
IMPACT ON CLASS I AREAS/PSD INCREMENTS
Class I air quality areas are areas with a pristine environment. The two closest Class I areas to the proposed plant are the Okefenokee Swamp and the Chassahowitzka National Wilderness area.
Class II air quality areas are any areas of the state that have not been designated Class I areas. They include all areas around the proposed facility.
Class I and II PSD increments are the incremental increases in air pollutants allowed in Class I and II areas respectively. FRI's air quality modeling provides reasonable assurance that the plant will not adversely impact Class I areas or exceed the Class I and II PSD increments. Additionally, the plant will not cause any visibility-related impacts in the Class I areas.
COMPLETENESS OF APPLICATION
The application contains complete information for each item on Form No. 62-210.900(1), Florida Administrative Code. It identified the applicant, the facility location, and the proposed activity. The application described each emission unit and the pollution control methods. FRI enclosed the appropriate application fee. It was sealed by a Florida Professional Engineer.
In addition to the completed application form, FRI submitted a report with added detail in support of the application. This report described the applicant and the facility location. It included: a project description; a review of applicable rules; a BACT proposal; an air quality review; a description of stack height design; and, a statement of environmental impacts. FRI submitted documentation to support the report including emission calculations, detailed process diagrams, equipment lists, area map, site map, plot plan, plot plan with emission points, process flow diagram, and a description of the relationship of CO and NOx emissions.
FRI submitted additional information in response to the Department's requests. The application as submitted into evidence and explicated during the hearing is substantially complete.
CONSTRUCTION SCHEDULE
FRI's application provides a start date, January 1, 1996, and completion date, December of 1997. The estimated time for the construction of the facility is two years.
FRI submitted a detailed construction schedule into evidence. However, it will not be the schedule that FRI ultimately follows. FRI will
furnish the Department with a final construction schedule after FRI selects the contractor. The construction schedule will not affect the two-year construction schedule.
MALFUNCTIONS
Petitioner failed to present any credible evidence that the malfunction provisions of the proposed permit were inadequate to ensure that FRI would not exceed the emission limits in the draft permit or interim determination. The presence of tires in the kiln at the time of a malfunction will not affect emissions because the tires will completely burn in five to six seconds. During the combustion process, any metal in the tires will completely disintegrate. Furthermore, there is no persuasive evidence that "Puff's Disease" is present at cement kilns where tires are continuously fed into the kiln system. Variability in stack gas flow causes Puff's Disease when an emission unit does not operate in a uniform steady state.
ODORS
The permit prohibits any objectionable odors from the proposed facility. There was no persuasive evidence that the plant will emit objectionable odors.
DIOXIN FORMATION
There is no persuasive evidence that the permit fails to adequately address the potential for dioxin formation. There is a potential for dioxin formation in ESPs with inlet gas temperatures from 450 degrees Fahrenheit to 750 degrees Fahrenheit. Dioxin will not form at the plant because the inlet gas temperatures of the ESP will range between 230 and 430 degrees Fahrenheit. If the temperature of gas in the plant's ESP ever rises above 450 degrees Fahrenheit, it will not remain at that temperature long enough to form dioxins.
Particulate matter containing carbon contributes to dioxin formation. The particulate matter at the proposed plant will contain small amounts of organic carbon. The potential for dioxin formation on this basis is little or none.
The Department has not adopted any standards or rules regulating dioxin formation or emission in cement plants.
MANUFACTURER'S GUARANTEE
The record does not contain a manufacturer's guarantee relative to the emission rate of any pollutant for any of the plant's equipment. Polysius Corporation, designed the facility. It will make whatever design modifications are necessary, if any, for FRI to comply with permit conditions before the Department issues an operational permit. As an additional permit condition, FRI shall provide the Department with the final designs and the manufacturer's guarantee for the ESPs before construction begins.
FRI has never owned or operated a cement plant. However, FRI's project manager has forty years of experience in the cement industry, including experience working as Chief Executive Officer and President of Polysius Corporation.
OTHER FLORIDA FACILITIES
Florida Crushed Stone (FCS) operates a cement plant located in Brooksville, Florida. Polysius Corporation designed the FCS plant which was built in the 1980's.
There are similarities between the FCS plant and the proposed plant. The FCS plant has a clinker production rate of approximately 75 tons per hour. The proposed facility has a clinker production rate of approximately 95 tons per hour. The physical size of the FCS kiln is approximately the same size as the proposed kiln. Like the proposed plant, the FCS plant uses a dry process to make cement. The FCS kiln recycles almost all of its CKD.
There are also some differences between FCS and the proposed plant. FCS has a preheater but not a precalciner. It uses a baghouse instead of an ESP to control kiln emissions. The proposed plant and the FCS plant use different raw feed materials.
The FCS plant is unique in that it has a coal-fired power plant built next to it. The power plant and the cement plant exhaust their stack gases through a common baghouse. FCS's heated clinker cooler gas is used in part as combustion air for the power plant. The power plant's exhaust gas is used for drying the raw materials fed to the cement plant.
FCS's plant has a SO2 emission limit of 50 pounds per hour. It's NOx BACT limitation is about 4.8 pounds per ton of clinker.
The coal feed rate at FCS's plant is about 10 tons per hour. Up to
15 percent of its BTU value can be from tires. This amounts to 123 tires an hour, or about a third of the BTU value specified in the proposed permit.
Florida Mining and Material (FMM) also operates a plant in Brooksville, Florida. Polysius Corporation designed the FMM plant over twenty years ago.
The FMM plant has two kilns with a clinker production capacity of about 75 to 80 tons per hour for each kiln. The FMM kilns are dry process. They both have preheaters but no precalciners. The FMM kilns are approximately the same physical size as the proposed kiln. Both FMM kilns have a single firing point. They recycle 99.9 percent of their CKD.
Separate baghouses control emissions from the FMM kilns. There are differences in the raw feed materials used at the FMM kilns and the proposed plant.
Rinker Corporation (RC) operates a cement plant in Dade County, Florida. It was built sometime in the early 1970's. The RC plant has two kilns which are about 400 feet long and use a wet process to make cement. The designer of the RC plant is unknown.
Each of the RC kilns produce about 35 to 40 tons of clinker per hour. Neither of them has a preheater or a precalciner. Both of them control PM with ESPs. They do not recycle 100 percent CKD.
The RC plant is not similar to the proposed plant. However, the FCS plant and the FMM plant are sufficiently similar to the proposed plant to provide an expert witness with a basis for comparing their processes,
operations, and potential emissions. The differences in the raw materials used by these plants and the differences in design characteristics between these plants and the proposed plant are within an expected range of other cement plants. The basic chemistry involved in making cement at FCS, FMM and the proposed plant is the same. Test results from FCS and FMM can be normalized for making comparisons with the proposed plant.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes.
The Petitioner has standing to bring this action in opposition to the granting of a air construction permit to FRI pursuant to the parties' prehearing stipulation.
The Department has jurisdiction to issue permits for air construction and for prevention of significant deterioration such as AC01-267311 and PSD-FL-
228. Section 403.061, Florida Statutes.
Chapter 403, Florida Statutes, and Rules 62-4, 62-210, 62-212, 62- 272, 62-275, 62-296, and 62-297, Florida Administrative Code, are applicable to the application at issue.
Rule 62-210.300(1), Florida Administrative Code, provides as follows:
Air Construction Permits. An air construction permit shall be obtained by the owner or operator of any proposed new
or modified facility or emissions unit prior to the beginning of construction or modifi- cation, in accordance with all applicable provisions of this chapter, Chapter 62-212 and Chapter 62-4, F.A.C. The construction permit shall be issued for a period of time
sufficient to allow construction or modification of the facility or emissions unit and operation while the new or modified facility or emissions unit is conducting tests or otherwise demon- strating initial compliance with the conditions of the construction permit.
Rule 62-210.300(2), Florida Administrative Code, requires that an applicant obtain an air operation permit before expiration of the construction permit.
Rule 62-4.070, Florida Administrative Code, states in pertinent part: 62-4.070 Standards of Issuing or Denying
Permits; Issuance; Denial.
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 results, installation of pollution control equipment, or other information, that
the construction, expansion, modification oper- ation, or activity of the installation will not discharge, emit or cause pollution in contra- vention of Department standards or rules. . . .
Rule 62-212.300, Florida Administrative Code, sets forth general preconstruction review requirements which apply in this case. This rule requires an applicant to show: (a) that a proposed facility will not violate Chapter 403, Florida Statutes, or the Department's air pollution rules; or (b) whether the construction will interfere with the attainment and maintenance of any state or national ambient air quality standards. Rule 62-212.300(3), Florida Administrative Code.
Rule 62-212.400, Florida Administrative Code, contains provisions related to the Prevention of Significant Deterioration (PSD). This rule generally applies where, as here, the applicant seeks to construct an emission unit in an area which meets the state's ambient air quality standards.
Table 212.400-1, Major Facility Categories, of Rule 62-212.400, Florida Administrative Code, lists Portland cement plants as major emission facilities. Table 212.400-2 of that same rule provides certain significant emission rates for regulated air pollutants. A proposed cement plant must apply Best Available Control Technology (BACT) for each regulated air pollutant that exceeds its corresponding significant emission rate. Rules 62-212.400(2)(f) and 62-212.400(5)(c), Florida Administrative Code.
Rule 62-212.200(16), Florida Administrative Code, defines BACT as:
An emission limitation, including a visible emissions standard, based on the maximum degree of reduction of each pollutant emitted which the Department, on a case by case basis, taking into account energy, environmental, and economic impacts, and other costs, determines
is achievable through application of production processes and available methods systems and techniques (including fuel cleaning or treatment or innovative fuel combustion techniques) for control of each such pollutant.
In this case, the Department properly performed a BACT review for particulate matter (PM), sulfur dioxide (SO2), carbon monoxide (CO), volatile organic compounds (VOCs), nitrogen oxides (NOx), and beryllium (Be). It was not required to make a BACT determination for any other pollutants.
Rule 62-212.410(1), Florida Administrative Code, requires the Department to consider the following when it makes the BACT determination: any Environmental Protection Agency determination of BACT; any emission limitation contained in 40 CFR 60 and 40 CFR 61; all scientific, engineering, and technical material and other information available to the Department; the emission limiting standards or BACT determination of any other state; and the social and economic impact of the application of such technology.
FRI furnished the Department with the air quality impact analyses required by the PSD regulations pursuant to Rule 62-212.400, Florida Administrative Code. These analyses include: an analysis of existing air quality; a PSD increment analysis for SO2, PM10, and NOx; an Ambient Air Quality
Standards (AAQS) analysis; an analysis of impacts on soils, vegetation, visibility and factors related to commercial, residential, industrial or other growth associated with the proposed plant; and a "Good Engineering Practice" stack height determination. Based on these analyses, FRI has provided reasonable assurance that the proposed project, as described in the application and explicated at the hearing, will not cause or contribute to a violation of any AAQS or PSD increment.
The proposed project is also subject to the applicable requirements of the federal New Source Performance Standards (NSPS) including: 40 CFR 60, Subpart Y--Standards of Performance for Coal Preparation Plants; 40 CRF 60, Subpart OOO--Standards of Performance for Non Metallic Mineral Processing Plants; 40 CFR 60, Subpart F--Standards of Performance for Portland Cement Plants; and, 40 CRF 60, Subpart Kb--Standards of Performance for Volatile Organic Liquid Storage Vessels.
The formal hearing in this case was a de novo proceeding "intended to formulate final agency action, not to review action taken earlier and preliminarily." Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778, 785 (Fla. 1st DCA 1981).
FRI has the initial burden of presenting a prima facie case and the ultimate burden of providing "reasonable assurances" that the proposed facility will meet the applicable pollution standards. J.W.C. Company, Inc., at 788.
In order to demonstrate reasonable assurance of entitlement to the subject permit, FRI must prove there is a "substantial likelihood of compliance." Booker Creek Preservation, Inc. v. Mobile Chemical Company, 481 So. 2d 10, 13 (Fla. 1st DCA 1986).
FRI met its initial and ultimate burden of providing reasonable assurance that the proposed facility has a substantial likelihood of compliance with the applicable emissions standards. The applicant met its burden in a number of ways. First, it presented the testimony of professional engineers who based their expert opinions in part on their observations and empirical testing at other comparable cement plants. The other plants are not identical to the proposed plant. However, they are sufficiently similar to the proposed plant so that the engineers could make valid comparisons relative to pollutant emission rates. One of the professional engineers, Dr. Koogler, was the engineer of record who certified that the proposed plant would meet the agency's requirements.
FRI corroborated the testimony of the professional engineers with actual test results and emission information from other similar cement plants.
FRI submitted: (a) general emission factors from an EPA document (AP-42); (b) an excerpt from an engineering manual on ESP use in cement plants;
(c) engineering features and general design specifications for the proposed plant's ESPs; and (d) an EPA document on NOx control. This type of supporting documentary evidence is contemplated in Rule 62-4.070(1), Florida Administrative Code, as "other information." FRI introduced each of the exhibits into evidence for the purpose of supporting the opinion testimony of expert witnesses on specific pollutants concerning the ultimate conclusion of reasonable assurance.
Other corroborative evidence provides additional assurance that the proposed plant will meet the Department's pollution standards. This evidence includes, but is not limited to: (a) preliminary engineering design drawings
and process diagrams; (b) results of extensive air quality modeling; (c) testimony by an expert meteorologist; (d) testimony by a chemical engineer who qualifies as an expert in cement industry engineering and operational and process controls; (e) site specific chemical analysis of feed stream and fuel constituents; (f) and emission factor calculations using published values and mass balance calculations specifically performed for the proposed plant.
On the other hand, Petitioner failed to present any persuasive evidence to support the allegations in its petition. The greater weight of the evidence clearly shows that the design of the proposed facility is adequate to meet the Department's BACT determination for each pollutant in question. FRI effectively rebutted the testimony of Petitioner's experts to the extent that they raised any question concerning FRI's ability to meet these pollution standards.
The operational controls and pollution control equipment in the proposed plant are commonplace in the cement industry. The plant's proposed emission limits are well within the range that existing facilities achieve. The proposed facility incorporates state of the art technology. A finding of reasonable assurance is not dependent on any experimental technology or the burning of tires as fuel.
SULFUR DIOXIDE
The correct BACT emission limit for SO2 is .28 pounds per ton of clinker. FRI shall never exceed this emission limitation. However the Department may lower the emission rate after further testing when the plant begins operations.
Cement plants have enormous capacity to absorb SO2 because of the balance between alkali and sulfur in the pyroprocessing environment and because of the intimate contact between the raw materials and the exhaust gases.
Expert testimony, test results from other cement plants, and other reliable documentary evidence corroborates the Department's BACT determination for SO2 and the ability of the proposed facility to achieve this standard. Though it is not necessary, FRI has agreed to limit the sulfur content of the coal it uses as fuel to 1.25 percent by weight.
VOLATILE ORGANIC COMPOUNDS
Petitioner did not challenge the Department's determination that VOC BACT emission limitation is 11.55 pounds per hour. Expert testimony and data relative to VOCs at other cement plants corroborate a finding that the proposed plant will meet this standard.
The process of making cement by its nature requires very high temperatures which, together with the turbulence and residence time in the kiln, will destroy virtually all VOCs. The level of organics in the raw materials of cement plants is consistently low.
NITROGEN OXIDES AND CARBON MONOXIDE
FRI has provided reasonable assurances that the proposed plant will meet the CO emission limit of 3.7 pounds per ton of clinker and the NOx emission limit of 2.8 pounds per ton of clinker the NOx emission limit will be 3.8 pounds
per ton of clinker during the initial two years. Expert testimony, test results from other cement plants and other documentary evidence corroborates these findings.
FRI will operate the plant with oxygen levels as low as possible to maintain efficient operation of the facility while meeting the emission limits for NOx and CO. Continuous oxygen process monitors will assist the plant operator in regulating the controls to optimize the reduction of these pollutants.
Multiple burn points at the proposed plant will reduce the emissions of NOx better than the single burn points utilized at other plants. Reliable documentary evidence, AP-42, indicates that a preheater/precalciner type kiln will have emission rates for CO and NOx at or below the emission limits at issue here.
PARTICULATE MATTER
The Department correctly determined that the kiln's BACT emission limit for PM and PM10 is .31 and .26 pounds per ton of clinker respectively. For the clinker cooler, the Department correctly determined that the BACT emission limit for PM and PM10 is .16 and .13 pounds per ton of clinker respectively. Petitioner does not dispute these determinations.
FRI has provided reasonable assurances that the proposed plant will meet these emission limits using ESPs. ESPs have been installed on the last three cement plants constructed in the United States as the appropriate technology to achieve PM/PM10 BACT determinations.
ESPs and baghouses are equivalent in their ability to control PM/PM10. FRI had discretion to chose ESPs over a baghouse as the most economically feasible method for achieving the BACT emission limits in this case.
Expert testimony supports FRI's decision to use ESPs. Additional corroborative evidence includes: (1) an engineering manual related to ESPs; (2) EPA's AP-42; (3) the general design specifications which FRI will use for vendor proposals; (4) data from other cement plants; and (5) preliminary drawings showing engineering features. As an additional permit condition, the Department will require FRI to provide a manufacturer's guarantee that the ESPs will meet the emission limits for PM/PM10 prior to commencement of construction.
MERCURY
FRI has provided reasonable assurance that the proposed plant will not exceed the mercury threshold of 200 pounds per year. The Department properly excluded mercury from a BACT determination under Rule 62-212.400, Florida Administrative Code.
OTHER ISSUES
FRI provided reasonable assurances that the anticipated economic growth resulting from the construction of the facility will not substantially affect the conclusions of the air quality modeling performed in support of the application.
FRI provided reasonable assurances that the storage and handling of the coal ash will not result in fugitive emissions which will violate the Department's PM or opacity standards. FRI Exhibit 27 is accepted and incorporated as a specific permit condition to provide additional assurance of compliance with opacity standards applicable to coal ash handling.
FRI provided detailed analysis of the raw materials and coal in support of the BACT emission rates for various pollutants. The record contains evidence that recycling the plant's CKD will not substantially effect the estimated emissions of the facility. Record evidence indicates that burning tires as an alternate fuel will not increase the emission of any pollutant. Petitioner did not submit evidence of equivalent quality on any of these factors.
Petitioner failed to submit credible evidence disputing the results of the air quality modeling that FRI performed in support of the application. FRI performed the modeling in accordance with approved EPA methods. The modeling provides reasonable assurance that the proposed facility: (a) will comply with the applicable ambient air quality standards; (b) will not have a significant impact on the two national wilderness areas that the project potentially affects; and (c) will not exceed the PSD increment levels.
FRI submitted a construction schedule giving only the starting and ending date as required by the application. This schedule does not strictly comply with the requirements of Rule 62-212.400(5)(h)2, Florida Administrative Code. However, the information that FRI supplied is sufficient until it selects a contractor because it demonstrates the general progression of the construction. Petitioner did not present any evidence on the adequacy of the proposed construction schedule as it relates to the final design. Considering the procedural nature of the requirement for a detailed construction schedule, FRI has substantially complied with Rule 62-212.400(5)(h)2, Florida Administrative Code. FRI shall furnish the Department with a more detailed construction schedule before the commencement of construction.
Petitioner failed to provide any credible evidence on the issue of facility malfunctions and their potential impacts. Specific condition twelve in the draft permit ensures that the proposed facility will not discharge, emit, or cause pollution in violation of applicable rules and statutes. This condition is adequate to provide reasonable assurance that FRI will properly address malfunctions at the facility.
The finding of reasonable assurance in this case only authorizes construction of the proposed plant. FRI cannot receive an operation permit until it demonstrates compliance with the applicable standards.
Based on the Findings of Fact and Conclusions of Law set forth above, it is recommended that Respondent Department of Environmental Protection issue a Final Order granting permit number AC01-267311/PSD-FL-228 as proposed in the Department's Intent to Issue dated September 29, 1995, as modified by the Interim Determination of November 17, 1995, and with the additional conditions detailed in this Recommended Order.
DONE and ENTERED this 23rd day of July, 1996, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675 SUNCOM 278-9675
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1996.
APPENDIX CASE NO. 95-5531
The following constitutes the undersigned's rulings on each of the parties' proposed findings of fact.
Petitioner's Proposed Findings of Fact.
Accepted. See Conclusions of Law.
First sentence accepted in FOF 104. Reject balance of paragraph as contrary to more persuasive evidence.
3-16. Accept as subordinate to FOF 1-116. Relevant only as background information to summarize the agency's review process.
17. Accept in part, reject in part. See FOF 19, 22-72, 79- 86. No credible evidence that proposed plant
will emit lead or mercury in excess of PSD Significant Emission Rates.
18-19. Accept as subordinate to FOF 10, 103-104.
Accept as restated in FOF 105-116.
Accepted. The record contains preliminary designs showing engineering features and specifications. The record, considered in its entirety, is sufficient to determine that FRI has met its burden of providing reasonable assurances. There is no mechanism for disposal of CKD because FRI will recycle 100 percent of the CKD.
Accepted as restated in FOF 96-97. FRI will have to provide a more detailed construction schedule when the Department issues the construction permit.
23-24. Accepted. FRI will select the contractor and vendors after receiving the construction permit.
25. Accepted. See FOF 22-23, 35-36, 44, 70. CEMs do not control emissions but they assist the plant operator in making necessary adjustments to achieve certain emission rates.
26-33. Accepted as subordinate to FOF 105-116.
34-35. Reject. The record contains sufficient information about emissions from other Florida cement plants for an expert like Dr. Koogler to draw comparisons with the emissions from the FRI plant.
Accept that emission data may need to be "normalized" when comparing the pollutants of one plant to another to allow for differences in raw feed material and fuels. Reject second sentence as not supported by the record. Dr. Koogler made all of his comparisons of the Florida cement plants after considering the technical differences between the plants. In some instances Dr. Koogler analyzed the technical differences in the physical design of the plants
to explain the differences in emission rates.
Accept all but the last sentence. AP-42 contains emission factors for all types of cement plants including the type at issue here.
Accept only as to information under consideration early in the permit review process and before the formal hearing.
Accept as if incorporated in 105-116.
40-50. Accept in part and reject in part. See FOF 57-72. 51-59. Accept in part and reject in part. See FOF 39-52. 60-78. Accept in part and reject in part. See FOF 22-38,
53-56.
79-87. Accept in part and reject in part. See FOF 1-116.
Using tires as fuel is discussed through out the Recommended Order. The description in the record of the tire feeder mechanism is sufficient to determine that it will meet all applicable standards.
88. Reject. See FOF 87-92.
89-93. Accept in part and reject in part. See FOF 79-84. Respondent Department's Proposed Findings of Fact.
1-2. | Accept | in | FOF | 1-21. |
3. | Accept | in | FOF | 22. |
4-6. | Accept | in | FOF | 23-31. |
7-11. | Accept | in | FOF | 39-52. |
12. | Accept | in | FOF | 57-72. |
13. | Accept | in | FOF | 53-56. |
14. | Accept | in | FOF | 17-72. |
15. | Accept | in | FOF | 93-95. |
16-26. | Accept | in | FOF | 32-38. |
27-31. | Accept | in | FOF | 39-52. |
32-45. | Accept | in | FOF | 57-72. |
46. | Accept | in | FOF | 53-56. |
47. | Accept | in | FOF | 79-84. |
48. | Accept | in | FOF | 73-78. |
49-51. | Accept | in | FOF | 9 and 77. |
52-53. | Accept | in | FOF | 96-97. |
54-59. | Accept | in | FOF | 105-116. |
Accept in 87-92.
Accept in FOF 103-104.
Respondent FRI's Proposed Findings of Fact.
1. Accepted.
2-12. Accept in or as subordinate to FOF 1-16.
13. Accept in FOF 49, 78, and 84.
14-15. Accept in or as subordinate to FOF 17-21.
16-18. | Accept | in | or | as | subordinate | to | 39-52. |
19. | Accept | in | or | as | subordinate | to | FOF 22. |
20-22. | Accept | in | or | as | subordinate | to | FOF 23-31. |
23. | Accept | in | or | as | subordinate | to | FOF 53-56. |
24. | Accept | in | or | as | subordinate | to | FOF 57-72. |
25. | Accept | in | or | as | subordinate | to | FOF 79-84. |
26-29. | Accept | in | or | as | subordinate | to | FOF 87-92. |
30-37. | Accept | in | or | as | subordinate | to | FOF 32-38. |
38-42. | Accept | in | or | as | subordinate | to | FOF 53-56. |
43-71. | Accept | in | or | as | subordinate | to | FOF 57-78. |
72-77. | Accept | in | or | as | subordinate | to | FOF 79-83. |
78-88. | Accept | in | or | as | subordinate | to | FOF 39-52. |
Accept in FOF 96-97.
Accept in FOF 98.
91-93. Accept in or as subordinate to FOF 87-92, and 99-104.
COPIES FURNISHED:
Priscilla N. Harris, Esquire Stewart Harris, Esquire
Post Office Box 702
Green Cove Springs, Florida 32040
Segundo J. Fernandez, Esquire Timothy P. Atkinson, Esquire Oertel, Hoffman, Fernandez et al. 2800 Blair Stone Road Tallahassee, Florida 32399-2400
Jefferson M. Braswell, Esquire
W. Douglas Beason, Esquire Department of Environmental
Protection
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Virginia B. Wetherell, Secretary Department of Environmental
Protection Douglas Building
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Kenneth Plante, Esquire Department of Enviromental
Protection
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
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.
=================================================================
ORDER OF REMAND
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
HAILE COMMUNITY ASSOCIATION,
Petitioner,
OGC CASE NO. 95-2493
v. DOAH CASE NO. 95-5531
FLORIDA ROCK INDUSTRIES, INC., and DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Respondents.
/
ORDER OF REMAND
On July 23,1996, a Hearing Officer with the Division of Administrative Hearings (hereafter "DOAH") submitted her Recommended Order to the Department of Environmental Protection (hereafter "Department"). The Recommended Order was also served upon Petitioner, Haile Community Association (hereafter "Petitioner"), and upon Co-Respondent, Florida Rock Industries, Inc. (hereafter "RFI"). A copy of the Recommended Order is attached as Exhibit A.
BACKGROUND
On March 17, 1995, FRI filed with the Department an application for an air construction permit. The application requested a permit to construct a Portland cement plant (hereafter "the Plant") at FRI's existing quarry located in Alachua County, approximately two and one-half miles from Newberry, Florida. The Department subsequently executed a Notice of Intent to Issue Permit to FRI on September 29, 1995, which was challenged by Petitioner's filing of a Petition for Administrative Hearing. The Department then transferred this matter to DOAH for a formal hearing pursuant to Section 120.57(1), Florida Statutes.
After prehearing proceedings were completed, a formal hearing was held on February 26 through March 1 and March 6-7, 1996, at Gainesville, Florida, before DOAH Hearing Officer Suzanne F. Hood (hereafter "Hearing Officer"). FRI and Petitioner presented the testimony of multiple witnesses at the formal hearing and various exhibits were admitted into evidence on behalf of the parties. On the evening of February 28,1996, written and sworn public comment was admitted into evidence. On March 12, 1996, FRI filed with DOAH a Motion to Reopen the Record for the Introduction of Additional Exhibits and the Taking of Additional Testimony. FRI's Motion to Reopen the Record was opposed by Petitioner, and the Department filed a Response neither concurring with nor opposing the Motion.
This Motion of FRI was denied by an oral ruling of the Hearing Officer after a telephonic oral argument on March 15,1996. The parties subsequently filed Proposed Recommended Orders with the Hearing Officer.
On May 10, 1996, Petitioner filed with DOAH a Motion to Strike or, in the Alternative, for Judicial Notice and/or to Amend Proposed Recommended Order.
This alternative Motion of Petitioner was essentially a response in opposition to certain technical mathematical computations and other evidentiary matters set forth in FRI's Proposed Findings of Facts and Conclusions of Law, which Petitioner alleged to be improper post-hearing submittals of evidence to the Hearing Officer. A response in opposition to Petitioner's alternative Motion was subsequently filed on behalf of FRI and the Department.
The Hearing Officer entered a Recommended Order on August 23,1996. In the Recommended Order, the Hearing Officer affirmed her prior oral ruling denying FRI's Motion to Reopen the Record, and denied Petitioner's Motion to Strike or, in the Alternative, for Judicial Notice and/or to Amend Proposed Recommended Order. The Hearing Officer concluded in the Recommended Order that FRI had provided reasonable assurance at the formal hearing that the proposed Portland cement plant would not violate applicable air quality standards. The Hearing Officer ultimately recommended that the Department enter a Final Order issuing the requested air construction permit to FRI, with additional conditions suggested in the Recommended Order.
On August 5,1996, Petitioner filed with the Department a Motion for Extension of Time to File Exceptions requesting a five day extension for filing its Exceptions to the Recommended Order. FRI filed a Response opposing Petitioner's Motion on August 6, 1996. Petitioner's Motion for Extension of Time to File Exceptions was subsequently granted by order of the Department dated August 12, 1996. The Petitioner filed its Exceptions to Recommended Order and Request for Oral Argument on August 12, 1996. FRI filed its Response to Petitioner's Exceptions on August 27, 1996. No responses to Petitioners' Exceptions to Recommended Order and Request for Oral Argument were filed on behalf of the Department. The matter is now before the Secretary of the Department for agency review pursuant to Section 120.57(1)(b)10, Florida Statutes, and Rule 62-103.200, Florida Administrative Code.
AUTHORITY FOR REMAND
The inherent authority of a state agency to remand an administrative case back to DOAH for further proceedings where the reasons for the hearing officer's findings are not apparent from the record or where erroneous conclusions of law render it impossible for the agency to enter a coherent final order is well established by the controlling case law of Florida. See, e.g., Department of Environmental Protection v. Dept. of Management Services. Div. of Adm.
Hearings, 667 So.2d 369 (Fla. 1st DCA 1995); Collier Development Corporation v. State. Dept. of Environmental Regulation, 592 So.2d 1107 (Fla. 2d DCA 1991);
Dept. of Professional Regulation v. Wise, 575 So.2d 713 (Fla. 1st DCA 1991); Manasota 88. Inc. v. Tremor, 545 So.2d 439 (Fla. 2d DCA 1989); Miller v. State Dept. of Environmental Regulation, 504 So.2d 1325 (Fla. 1st DCA 1987). The Florida courts have also ruled that, in cases where a DOAH hearing officer has failed to perform his basic function of making findings of fact explicitly based on the evidence presented, remand to DOAH is obligatory. Id. at 1327; Cohn v.
Dept. of Professional Regulation, 477 So.2d 1039, 1047 (Fla. 3d DCA 1985).
NECESSITY FOR REMAND
In its Exceptions 17 and 18, Petitioner claims that both FRI and the Department were allowed by the Hearing Officer to improperly submit critical evidence in their Proposed Findings of Fact filed with DOAH on April 30, 1996, over 50 days after the DOAH formal hearing was concluded. The particular evidentiary matters objected to by Petitioner include three technical mathematical computations made by an unspecified source as set forth in FRI's footnotes 8, 9, and 10 and the Department's footnotes 2, 3, and 4 to their respective Proposed Findings of Fact. 1/ In addition, Petitioner objects to FRI being allowed to submit a new stipulation set forth in paragraph 52 of its Proposed Findings of Fact concerning a necessary manufacturer's guarantee that was not presented by FRI prior to or during the formal hearing. Petitioner contends that it was thereby denied its due process rights to confront, cross- examine, and to present rebuttal evidence relating to these mathematical computations and the manufacturer's;: guarantee as provided by law.
These post-hearing submittals by FRI and the Department relate to the projected capabilities of two proposed electrostatic precipitators ("ESPs") to effectively control emissions of particulate matter ("PM") and PM10 from the Plant. 2/ One of the issues raised by Petitioner in the DOAH proceedings was the alleged inadequacy of FRI's proposed use of these ESPs as the primary means of providing reasonable assurance that the applicable air quality standards for PM and PM10 would not be violated at the Plant. The Recommended Order contains a critical factual finding by the Hearing Officer in paragraph 59 that "FRI has provided reasonable assurances that the plant will comply with the emission limitations for PM and PM10 through the use of electrostatic precipitators (ESPs) as BACT to control major sources of controlled PM." A related and similar Conclusion of Law is set forth in paragraph 149 of the Recommended Order.
Petitioner argues in its Exceptions that the uncertainty of FRI as to whether it had provided the necessary reasonable assurance at the DOAH hearing of compliance with air quality standards for PM and PM10 emissions limits is clearly evidenced by FRI's post-hearing Motion to Reopen Record requesting the Hearing Officer to give FRI "the opportunity to present additional evidence and testimony in this matter." Petitioner's claim that the air quality standards for PM and PM10 emissions at the proposed cement plant would not be capable of being met by utilization of the ESPs was a primary focus of this post-hearing Motion to Reopen Record filed by FRI five days after the DOAH hearing had concluded.
As noted above, FRI's Motion to Reopen Record was denied by the Hearing Officer
The challenged mathematical computations contained in footnotes 8, 9, and
10 of FRI's subsequent Proposed Findings of Fact relate exclusively to the same issue of the projected emission rates of PM and PM10 at the Plant as addressed in FRI's prior Motion to Reopen Record. The manufacturer's guarantee mentioned in paragraph 52 of FRI's Proposed Findings of Fact also relates to this same issue of control of PM and PM10 emission rates at the Plant by utilization of the ESPs. Petitioner contends that this new PM and PM10 related evidence first submitted to the Hearing Officer in the post-hearing Proposed Recommend Orders
constitutes an impermissible attempt by FRI and the Department to get into the DOAH record a portion of the additional PM and PM10 evidence that would have been presented by FRI if its Motion to Reopen Record had been granted by the Hearing Officer.
Petitioner's Exceptions 17 and 18 appear to raise valid questions as to whether the Hearing Officer's critical findings of fact and conclusions of law related to the disputed issue of proposed compliance with PM and PM10 emissions standards at the Plant through the use of ESPs were improperly based on post- hearing evidence that does not constitute competent substantial evidence of record or on post-hearing proceedings which failed to comply with essential requirements of law within the purview of Section 120.57(1)(b)10, Florida Statutes. See, e.g., Collier Medical Center v. State. Dept. of Health and Rehab. Services, 462 So.2d 83, 86 (Fla. 1st DCA 1985) (affirming hearing officer's denial of a post-hearing request for official recognition of supplemental facts); Environmental Confederation of Southwest Florida. Inc. v. Cape Cave Corporation, 8 FALR. 317, 321-22 (Fla. DER 1985) (denying motion for official recognition after close of DOAH hearing on ground of improper attempt to supplement record). See, also, Section 120.57(1)(b)4, Florida Statutes, providing in part that "[a]ll parties shall have an opportunity to respond, to present evidence and argument on all issues involved, to conduct cross- examination and submit rebuttal evidence".
Issue of Post-hearing Submittal of Mathematical Computations
A recent case also involving a challenged post-hearing submittal of a mathematical computation was before the Secretary resulting in an Order of Remand being issued in the case of Sierra Club. et al. v. Department of Environmental Protection et al., OGC Case Nos. 94-2283, et al. (DEP Order of Remand entered April 28,1995). This Order of Remand in the Sierra Club case was later affirmed in its entirety by the First District Court of Appeal of Florida. See, Department of Environmental Protection v. Dept. of Management Services.
Div. of Adm. Hearings, supra, 667 So.2d 369. With respect to the basic question of necessity for remand to DOAH due to these post-hearing mathematical computations, the Sierra Club Order of Remand appears to be remarkably similar in that:
The mathematical computations in this case, like the computation in Sierra Club, are contained in a post-hearing document signed by an attorney of record for one of the parties and filed with DOAH, and the person or persons who authored the components of the formulas and made the calculations are not identified.
The mathematical computations in both the Sierra Club case and this case were characterized by other objecting parties of record in the DOAH proceedings to be critical evidence bearing on the ultimate question of whether the permit applicant had provided reasonable assurance that the project would comply with applicable pollution control standards that should have been presented at the formal hearing.
On page 51 of its Response to Exceptions, FRI characterizes one of the mathematical computations at issue in this case as a "simple calculation", implying that it is capable of being made by the average person. This characterization would only be germane to the question of whether the mathematical computations are within the purview of facts subject to "official recognition" by the Hearing Officer, in lieu of being required to be proven at the formal hearing. 3/ Both the Petitioner's exceptions and FRI's response
correctly note that neither FRI nor the Department filed a motion under Rule 60Q-2.020, Florida Administrative Code, requesting the Hearing Officer to take official recognition of the three challenged mathematical computations. FRI's footnote 10 and the Department's footnote 4 in their Proposed Findings of Fact, however, did expressly refer to the purported authority of the Hearing Officer
"to take judicial notice that there are 60 minutes in a hour, and 7000 grains in a pound." In addition, FRI's footnote 13 on page 51 of its Response to Petitioner's Exceptions cites both statutory and case law dealing with judicial notice of facts that are "not subject to dispute because they are capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned."
These references by FRI in both its Proposed Findings of Fact and Response to Exceptions to "judicial notice" in connection to at least one of the challenged mathematical computation brings this case within the purview of the Sierra Club Order of Remand rationale. In the Sierra Club case, one of the reasons why an Order of Remand was necessary was that it was impossible for the Secretary to determine from the record whether the Hearing Officer had actually granted the Petitioners' post-hearing Motion for Official Recognition of the mathematical computation at issue in that case. Dept. of Management Services, supra, 667 So.2d 370. Although no Motion for Official Recognition was made by FRI or the Department in this case, the Hearing Officer may have actually taken official recognition of the three mathematical computations in this case as suggested in FRI's footnote 10 and the Department's footnote 4 of their respective post-hearing Proposed Findings of Fact. The record before the Secretary, however, fails to contain any rulings, findings of fact, or conclusions of law in the Recommended Order or elsewhere expressly indicating whether the Hearing Officer did or did not take official recognition of the three challenged mathematical computations. 4/
FRI also concludes in its Response to Exceptions that official recognition by the Hearing Officer of the challenged post-hearing mathematical computations is unnecessary for the proper consideration. This conclusion is based on FRI's argument on pages 50-51 of its Response to Exceptions that the challenged mathematical computations are "permissible inferences" that may be reasonably drawn by the Hearing Officer from the testimony and documentary evidence presented at the DOAH hearing. This same argument was also presented to the Hearing Officer in FRI's post-hearing Response to Petitioner's Motion to Strike the mathematical computations filed with DOAH on May 20,1996. Like the uncertainty as to whether the Hearing Officer actually took official recognition of the computations at issue, it is also impossible to ascertain from the record in this case whether or not the Hearing Officer ruled that these challenged computations were appropriate for consideration on the ground of FRI's theory of "permissible inferences". Thus, FRI's argument relating to permissible inferences as a possible ground for these mathematical computations being properly considered by the Hearing Officer actually adds another matter that needs clarification on remand. 5/
On remand, the Hearing Officer is requested to clarify the following:
Whether or not any of the three challenged post-hearing mathematical computations were actually considered in Findings of fact 57-72 and Conclusions of Law 149-151 of the Recommended Order. If so, please identify the particular computation or computations.
If the answer to preceding inquiry is in the affirmative, was consideration of any of the three challenged post-hearing mathematical
computations based on the ground that the computations were properly the subject of official recognition under Sections 90.202(12) and 120.61, Florida Statutes, and DOAH Rule 60Q-2.020, Florida Administrative Code?
If the Hearing Officer did take official recognition of any of the three mathematical computations, she is requested to explain the legal grounds for rejecting the Petitioner's legal arguments opposing official recognition set forth in its Motion to Strike or, in the Alternative, for Judicial Notice and/or to Amend Proposed Recommended Order filed on May 10,1996. 6/
Whether the Hearing Officer considered any of the three challenged mathematical computations on FRI's theory of "permissible inferences", or on other legal grounds rather than official recognition. If so, please identify the particular computation or computations and explain the legal ground relied upon.
If none of the three post-hearing mathematical computations were considered in Findings of Fact 57-72 and Conclusions of Law 149-151 of the Recommended Order, the Hearing Officer is requested to identify the remaining evidence of record relied upon for these findings and conclusions related to projected compliance with PM and PM10 emissions standards by utilizing the proposed ESPs at the Plant.
Post-hearing Submittal of Stipulation concerning Manufacturer's Guarantee As noted above, paragraph 52 of FRI's post-hearing Proposed Findings of
Fact contained a new stipulation by FRI that "any permit that is issued should be conditioned upon the manufacturer's performance guarantee being submitted to DEP prior to the commencement of construction under the permit." This new post- hearing factual stipulation of FRI contested by Petitioner in its Exception 17 appears to be the only record basis for Finding of Fact 72 and Conclusion of Law
151 of the Hearing Officer's Recommended Order.
In her Finding of Fact 72 and Conclusion of Law 151 , the Hearing Officer determined that this required manufacturer's performance guarantee with respect to the proposed ESPs could be satisfied in this case by the Department adding another specific condition to the air construction permit that FRI will "provide a manufacturer's guarantee that the ESP's will meet the emission limits for PM/PM10 prior to commencement of construction." The Hearing Officer's Recommended Order, however, does not in any suggested specific manufacturer's guarantee language based on competent substantial evidence of record.
A manufacturer's performance guarantee or warranty has been approved by prior administrative case law to be one of the recognized evidentiary bases of providing reasonable assurance 7/ that a proposed air emissions facility or device will not violate applicable air quality standards. See, e.g., Hamilton County Commissioners v. TSI Southeast, Inc. and Dept. of Environmental Regulation, 12 FALR. 3774,3776 (Fla. DER 1990), affirmed at 587 So.2d 1378 (Fla. 1st DCA 1991); Tuxedo Fruit Company v. Florida Sun Cement Co. Inc. and Department of Environmental Regulation, 11 FALR. 6554, 6573-6574 (Fla. DER 1989); Frank Gialiotti, et al. v. N. B. Willouahby Company and Department of Environmental Regulation, 9 FALR. 2587, 2588 (Fla. DER 1987).
In all of these cited air construction permit cases, evidence of the manufacturer's performance guarantee was presented by the permit applicant at the DOAH hearing either by having the written guarantee admitted into evidence as an exhibit or by having a qualified representative of the proposed
manufacturer testify at the hearing. None of these administrative decisions remotely suggest that a permit applicant's contested post-hearing stipulation indicating the applicant's willingness to provide a manufacturer's performance guarantee to the Department after the air construction permit has already been issued is a legally permissible alternative to presenting evidence of the guarantee at the DOAH formal hearing. 8/
The significance of the failure of an applicant requesting an air facility construction permit to present evidence at the DOAH hearing of a manufacturer's performance guarantee of pollution control equipment is reflected in the case of Cross Tie Mobile Home Estates Subdivision, et al. v. Dept. of Environmental Regulation, et al., 14 FALR. 2459 (Fla. DER 1992). In the Cross Tie Mobile Homecase, the hearing officer's recommendation that a construction permit for a biohazardous waste incineration facility be denied was accepted and incorporated into the agency Final Order. Both the hearing officer and the Secretary of the Department of Environmental Regulation concluded in Cross Tie Mobile Home that the applicant's failure to present any evidence at the DOAH hearing of manufacturers' warranties of proposed biohazardous waste incinerator units and other related pollution control equipment was a factor in denying the air construction permit. Id. at 14 F.A.L.R 2465, 2499.
FRI's reliance on page 18 of its Response to Petitioner's Exceptions on the cases of Hamilton County School Board, supra; and Cape Cave Corporation, supra, is misplaced. Neither of these cases support FRI's position that a Department Final Order condition allowing FRI to submit a required manufacturer's performance guarantee of pollution control equipment after the construction permit is issued is legally sufficient in this case to overcome Petitioner's objection that evidence of the guarantee should have been presented at the DOAH hearing. To the contrary, in the Hamilton County School Board case evidence of the manufacturer's guarantee was actually presented at the DOAH hearing by means of the testimony of the president of the proposed manufacturer, thereby affording the permit challenger's attorney the opportunity to conduct cross- examination and submit rebuttal evidence in compliance with Section 120.57(1)(b)4, Florida Statutes. Id. at 587 So.2d 1388-1389. Furthermore, the question of the legal sufficiency of a required manufacturer's guarantee being submitted after the construction permit is issued was not even before the hearing officer or the Secretary of the Department of Environmental Regulation for consideration in the Cape Cave Corporation case.
In the case of Metropolitan Dade County v. Coscan Florida, Inc., 609 So.2d 644 (Fla. 3d DCA 1992), the court held that the hearing officer erred by relying on the provisions of a settlement agreement between the Department of Environmental Regulation and the permit applicant dealing with post-permit monitoring and removal requirements as the sole record basis for the applicant providing reasonable assurance that the project met the applicable water quality standards. 9/ The court ruled in the Coscan opinion that:
We conclude that the hearing officer must examine the applicant's proposal to determine [at this time] whether the project provides the necessary reasonable assurances called for by the statute. [emphasis supplied].
Id. at 609 So.2d 648
The Coscan decision was expressly relied upon in the Department's final orders in Paul Leto. et al. v. Dept. of Environmental Protection. et al., OGC Case No. 94-3756 (DEP Final Order entered July 12,1996); and Tamaron Utilities,
Inc. v. Dept. of Environmental Protection, 16 FALR. 3112 (Fla. DEP 1994). Based on the Coscan rationale, the Leto Final Order rejected recommendations by the hearing officer that the Secretary of the Department consider on administrative review whether certain changes to the design of the proposed structures that the permit applicants were purportedly willing to make might entitle the project to a statutory exception. In the Tamaron Utilities case, the agency Final Order relied on the Coscan decision by concluding as follows:
The attempt of the Hearing Officer to impose upon the Department the duty to draft conditions in the Final Order that might or might not ultimately result in Tamaron's compliance with th e Gizzle-Figg advanced waste treatment requirements is too speculative to comply with Florida case law
holding [that a permit applicant has to provide reasonable assurances at the time of the hearing] that the project complies with the applicable statutory and rule requirements
for design, operation and discharge. [emphasis supplied]
Id. at 3122.
It is undisputed that site-specific ESPs have not yet been designed for FRI's Plant proposed for construction near Newberry. In this case where no site-specific design evidence of the two proposed ESPs was presented by FRI at the DOAH hearing, the specifics of a manufacturer's performance guarantee related to the ESPs take on special significance. The record reflects that FRI failed to introduce into evidence at the DOAH formal hearing a written or oral manufacturer's performance guarantee that the proposed ESPs would meet the emission limits for PM and PM10. The record further reflects that the manufacturer of the proposed ESPs has not even been selected by FRI at this time. 10/
Although a hearing officer makes the underlying findings of fact in a contested permit proceeding, the basic question of whether a permit applicant has provided the necessary reasonable assurance that a proposed project will comply with particular air or water quality standards is a legal determination that must be ultimately made by the Department. See, e.g., Sierra Club, et al.
Department of Environmental Protection, et al., 18 FALR. 2257, 2260 (Fla. DEP 1996); Save Our Suwannee. Inc. v. Piechocki and Dept. of Environmental Protection, 18 FALR. 1467, 1471 (Fla. DEP 1996); VQH Development, Inc. v. Dept. of Environmental Protection, et al., 15 FALR. 3407, 3438 (Fla. DEP 1993); Barringer, et al. v. E. Speer and Associates, Inc. and Department of Environmental Regulation, 14 F.A.L.R. 3660, 3667n. 8 (Fla. DER 1992).
In addition, it is an established rule of administrative law in Florida that a reviewing agency is free to reject or modify a hearing officer's conclusions of law and interpretations of administrative rules with which the agency disagrees. Section 120.57(1)(b)10, Florida Statutes. See, also, MacPherson v. School Board of Monroe County, 505 So.2d 682 (Fla. 3d DCA 1987); Siess v. Dept. of Health and Rehabilitative Services, 468 So.2d 478 (Fla. 2d DCA 1985); Alles v. Dept. of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982).
In view of the above, I conclude that FRI's contested post-hearing stipulation incorporated into the Hearing Officer's Finding of Fact 72 and Conclusion of Law 151 recommending that an additional permit condition be imposed in the Department Final Order requiring "FRI to provide a manufacturer's guarantee that the ESPs will meet the emission limits for PM/PM10 prior to commencement of construction" is insufficient as a matter of law to constitute competent substantial record evidence supporting the ultimate determination of whether FRI has provided reasonable assurance at this time that the applicable air quality standards for PM and PM10 will be met at the Plant. Accordingly, I further conclude that this matter must also be remanded for further clarification from the Hearing Officer.
On remand, the Hearing Officer is requested to clarify whether or not she would find and conclude that the necessary evidence had been provided by FRI that the two proposed ESPs at the Plant will be capable of complying with the Department's site-specific air quality standards for PM and PM10 set in this case, disregarding FRI's post-hearing stipulation concerning its willingness to submit a manufacturer's performance guarantee to the Department after the air construction permit is issued. The Hearing Officer is further requested to specify the particular evidence of record relied upon other than FRI's post- hearing stipulation.
CONCLUSION
The Department is required by statute to enter a final order containing findings of fact accompanied by "concise and explicit statements of the underlying facts of record which support the findings." Section 120.59(2), Florida Statutes. I conclude that the factual and legal uncertainties resulting from the challenged post-hearing submittals to DOAH of mathematical computations and stipulation as to a future manufacturer's guarantee dealing with the capability of the proposed ESPs to reasonably assure compliance with PM and PM10 emissions standards at the Plant effectively preclude the Department from entering a final order in compliance with this statutory mandate. Consequently, a remand of these proceedings to DOAH is warranted for the purpose of clarification and reconsideration of the Recommended Order in light of the rulings in this Order of Remand.
Having ruled on the dispositive questions of law for purpose of this remand, it is
ORDERED that:
This case is hereby remanded to DOAH for such further proceedings that are deemed necessary and appropriate to make the requested clarifications of the rulings, findings of fact, conclusions of law and recommendations specified above.
In rendering the Final Order in this case, the Department will neither consider nor rule on any of the remaining exceptions or responses filed with respect to the initial Recommended Order. Any party desiring to take exception to the revised Recommended Order entered by the Hearing Officer pursuant to this Order of Remand must timely file (or re-file) its exceptions thereto after the revised Recommended Order on Remand is submitted to the Department.
Exceptions and responses to exceptions relating to the revised Recommended Order on Remand shall be filed and served within the same time periods prescribed by Rule 62-103.200, Florida Administrative Code, for exceptions and responses to initial recommended orders.
Petitioner's Request for Oral Argument on its exceptions is denied.
DONE AND ORDERED this 5th day of September, 1996, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
VIRGINIA B. WETHERELL
Secretary
Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
FILING AND ACKNOWLEDGMENT FILED, ON THIS DATE, PURSUANT To s120.52 FLORIDA STATUTES, WITH THE DESIGNATED DEPARTMENT CLERK, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED.
BEVERLY READA 9/5/96 DEPUTY CLERK
ENDNOTES
1/ The Secretary is aware that the actions of the counsel for the Department in the DOAH proceedings in submitting identical post-hearing mathematical computations and opposing Petitioner's Motion to Strike the computations obviously contributed to the necessity for this Order of Remand. An agency head considering exceptions filed to a recommended order of a DOAH hearing officer, however, functions in the role of an impartial arbiter on administrative review. Consequently, the reviewing agency is not bound by the legal arguments made or legal positions advocated by its attorneys of record in the DOAH proceedings.
See, Ridgewood Properties v. Dept. of Community Affairs, 562 So.2d 322, 323 (Fla. 1990); Cordes v. Dept. of Environmental Regulation, 582 So.2d 652, 655 (Fla. 1st DCA 1991); Tamaron Utilities Inc. v. Dept. of Environmental Protection, 16 FALR. 3112, 3124n. 3 (Fla. DEP 1994).
2/ PM is small, finely-divided solid particles formed from whatever materials are present in the emissions. "PM10" refers to particulate matter ten micrometers in diameter or less. An "ESP" is a particle control device which uses electrical forces to remove the particles from the emission gas stream. An ESP first conditions the emissions gas stream, which is then passed through an area of extremely high voltage differential (tens of thousands of volts at very low amperage) where the PM and PM10 particles develop an electrical charge. Two ESPs are proposed to be utilized by FRI to control PM and PM10 emissions from the kiln operations and clinker cooler at the Plant. A collector plate having an opposite charge collects the charged particles on the plate. The collector
plate is periodically "rapped" to dislodge the PM and PM10 particles, which fall into a hopper at the bottom of the ESP and are recycled for use in the kiln as raw material at the Plant.
3/ Section;90.202(1 2), Florida Statutes, provides that a court may take judicial notice of facts "[that are not subject to dispute] because they are capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned." [emphasis supplied] DOAH hearing officers have authority to take official recognition of any matters which may be judicially noticed by the courts of this state." Rule 60Q-2.020, Florida Administrative code; However, Rule 60Q-2.020 and the related statutory provisions of Section 120.61, Florida Statutes, provide that such a request for official recognition by a party to a formal administrative proceeding shall be made by a motion, and that the other parties all have an opportunity to examine and contest the matters requested for official recognition.
4/ The Hearing Officer did not enter as separate post-hearing order explaining the reasons for denying Petitioner's Motion to Strike these mathematical computations. The Hearing Officer merely ruled that "[s]aid motion is denied" in the Preliminary Statement on page five of the Recommended Order. Thus, like the Sierra Club case, it is impossible to ascertain with any degree of certainty from the record here the legal grounds for denial of Petitioner's Motion to Strike the mathematical computations or whether the Hearing Officer actually took official recognition of the challenged computations. The Recommended Order does reflect that the FRI's Proposed Findings of fact 57-60 were either accepted or deemed by the Hearing Officer to be subordinate to her Findings of Fact 57-
72. The challenged mathematical computations, however, are not specifically incorporated in either the body of or in footnotes to Findings of Fact 57-72 of the Recommended Order.
5/ It is neither necessary nor appropriate for the Secretary to make rulings at this time on the merits of the questions of whether the challenged mathematical computations were properly the subject of official recognition by the Hearing Officer or were appropriate for consideration on the theory of permissible inferences". Rulings on the merits of these questions may be rendered moot due to the subsequent clarifications or related rulings of the Hearing Officer on remand.
6/ In Petitioner's Motion to Strike the three mathematical computations and in its Exceptions, Petitioner asserted that at least some of the various components of some of the computations are disputed, thereby rendering inapplicable Section 90.202(12), Florida Statutes, which is expressly limited to facts "that are not subject to dispute". Furthermore, Petitioner correctly noted that the unaccredited mathematical computations were contained in argumentative legal documents signed and filed by attorneys of record who were advocating in the DOAH proceedings that the air construction permit should be issued to FRI. Petitioner thus reasons that the requirement of Section 90.202(12) that the facts sought to be judicially noticed must be capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned" is missing in this case. Compare, MacDonald v International Chemalloy Corporation,
473 So.2d 760, 761 (Fla. 4th DCA 1985)(holding that exchange rates contained in a letter from counsel was not a "sufficiently authoritative source" upon which to base judicial notice.
7/ This critical evidentiary standard of reasonable assurance" has been construed by case law to mean" a substantial likelihood that the project will be successfully implemented". Metro. Dade County v. Coscan, 609 So.2d 644, 648 (Fla. 1992).
8/ These cited air facility construction permit cases also conclude that a manufacturer's performance guarantee, standing alone, is insufficient to demonstrate reasonable assurance that the proposed facility will comply with the applicable air quality standards. The manufacturer's guarantee must be supported by other competent evidence of record such as, test results from a similar facility professional engineer's certification that the proposed pollution control equipment will be capable of meeting the applicable air quality standards, engineering designs and specifications of the proposed pollution control equipment, and expert testimony. See, also, Rule 624.070(1), F.A.C.
9/ The Coscan court did not hold that all agreements concerning future monitoring and removal requirements were excluded, as a matter of law, from consideration by the Department or by a hearing officer as factors in determining whether reasonable assurance had been provided by a permit applicant. The Coscan court did hold that such post-permit requirements could not be relied upon by the Department or a hearing officer as the sole basis for concluding prior to issuance of the permit that the necessary reasonable assurance had been provided by the applicant that the project will comply with applicable environmental standards. Id at 648. Unlike Coscan, however, no written (or even oral) agreement was entered into and made a part of the DOAH record in this case by FRI or by a qualified representative of a manufacturer of the proposed ESPs which could be properly considered even as a factor in determining whether reasonable assurance had been provided by FRI.
10/ In the Cross Tie Mobile Home case, the agency Final Order affirmed the hearing officer's finding that the applicant's failure to specify a manufacturer of the particular pollution control equipment it proposed to use rendered the manufacturer's literature relating to that equipment of no probative value." Id. at 14 FALR. 2468, 2488.
CERTIFICATE OF SERVICE
HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by United States Postal Service to:
Priscilla N. Harris, Esquire Stewart Harris, Esquire
P. O. Box 702
Green Cove Springs, Florida 32040
Segundo J. Fernandez, Esquire Oertel, Hoffman, Fernandez and Cole, P.A.
2800 Blair Stone Rd
Tallahassee, Florida 32399-2400
Ann Cole, Clerk, and
Suzanne F. Hood, Hearing Officer Division of Administrative Hearings
The DeSoto Building 1230 Apalachee Parkway
Tallahassee, Florida 32399-1550 and by hand delivery to:
Douglas Beason, Esquire
Department of Environmental Protection 3900 Commonwealth Blvd., M.S. 35
Tallahassee, Florida 32399-3000 this 6th day of September, 1996.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
J. TERRELL WILLIAMS Assistant General Counsel
3900 Commonwealth Blvd., M.S.35 Tallahassee, Florida 32399-3000 Telephone 904/488-9314
=================================================================
RESPONSE TO ORDER OF REMAND
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HAILE COMMUNITY ASSOCIATION, )
)
Petitioner, )
)
vs. ) CASE NO. 95-5531
) FLORIDA ROCK INDUSTRIES, INC., ) and DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )
)
Respondent. )
)
RESPONSE TO ORDER OF REMAND
THIS CAUSE came on for consideration of the Order of Remand filed with the Division of Administrative Hearings on September 9, 1996. Respondent Florida Rock Industries, Inc. (FRI) filed a response to the Order of Remand on September 16, 1996. Petitioner Haile Community Association, Inc. (Petitioner) filed a reply to FRI's response on September 26, 1996. Respondent Department of
Environmental Protection (DEP) filed a response to FRI's response on October 21, 1996. Having reviewed the record and being otherwise advised in the premises, the undersigned responds as follows:
The undersigned did not consider or rely upon in any way the three post-hearing mathematical computations contained in footnotes 8, 9, and 10 of FRI's proposed findings of facts and in footnotes 2, 3, and 4 of DEP's proposed findings of facts.
FRI provided the necessary evidence to support the undersigned's factual findings that the two proposed electrostatic precipitators (ESPs) will be capable of complying with DEP's site-specific air quality standards for PM (particulate matter) and PM10 (particulate matter ten micrometers in diameter or less). The undersigned would have made these same findings without regard to FRI's post-hearing stipulation concerning its willingness to submit a manufacturer's performance guarantee to DEP after DEP issues the air construction permit but before construction begins.
The record created during the formal hearing contains competent evidence to support the undersigned's Findings of Fact 57 through 71 concerning the ability of the proposed ESPs to meet the Best Available Control Technology (BACT) emission limits for PM and PM10. In fact, the evidence is overwhelming and that ESPs built in accordance with the general design specifications and other site-specific engineering features contained in the application and presented at hearing will meet the required PM/PM10 emission limits. There is no persuasive evidence to the contrary.
DONE and ENTERED this 31st day of October, 1996, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(904) 488-9675 SUNCOM 278-9675
Fax Filing (904) 921-6847
Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1996.
COPIES FURNISHED:
Priscilla N. Harris, Esquire Stewart Harris, Esquire
Post Office Box 702
Green Cove Springs, Florida 32040
Segundo J. Fernandez, Esquire Timothy P. Atkinson, Esquire Oertel, Hoffman, Fernandez et al. 2800 Blair Stone Road Tallahassee, Florida 32399-2400
W. Douglas Beason, Esquire Department of Environmental
Protection
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Virginia B. Wetherell, Secretary Department of Environmental
Protection Douglas Building
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Kenneth Plante, Esquire Department of Environmental
Protection
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
HAILE COMMUNITY ASSOCIATION,
Petitioner,
OGC CASE NO. 95-2493
v. DOAH CASE NO. 95-5531
FLORIDA ROCK INDUSTRIES, INC., and DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Respondents.
/
FINAL ORDER
On July 23, 1996, a Hearing Officer with the Division of Administrative Hearings (hereafter "DOAH") submitted her Recommended Order to the Department of Environmental Protection (hereafter "Department"). The Recommended Order was also served upon Petitioner, Haile Community Association (hereafter "Petitioner"), and upon Co-Respondent, Florida Rock Industries, Inc. (hereafter "FRI"). A copy of the Recommended Order is attached as Exhibit A.
On August 5, 1996, Petitioner filed with the Department a Motion for Extension of Time to File Exceptions requesting a five-day extension for filing its Exceptions to the Recommended Order. FRI filed a response opposing Petitioner's Motion on August 6, 1996. Petitioner's Motion for Extension of Time to File Exceptions was subsequently granted by order of the Department dated August 12, 1996. The Petitioner filed its Exceptions to Recommended Order and Request for Oral Argument on August 12, 1996. FRI filed its Response to Petitioner's Exceptions on August 27,1996. On September 5,1996, the Department entered an Order of Remand to DOAH. In this Order of Remand, the Hearing Officer was requested to clarify whether or not she had considered certain contested post-hearing evidentiary matters submitted to DOAH by counsel for FRI and the Department in their respective Proposed Findings of Fact. On October 31, 1996, the Hearing Officer 1/ entered a "Response to Order of Remand." In her Response to Order of Remand, the Hearing Officer essentially advised that her ultimate recommendation that a construction permit should be issued to FRI to build the Plant was not based on the post-hearing evidentiary matters submitted by FRI and the Department and challenged by Petitioner.
On November 15,1996, the Petitioner filed its Exceptions to the Recommended Order as authorized in the Order of Remand. Petitioner also filed a separate Exceptions to Response to Order of Remand on the same date. On December 2, 1996, FRI filed its Responses to Petitioner's Exceptions and a Proposed Final Order. The Petitioner subsequently filed a Motion to Strike Portions of
Respondent FRI's Response to Petitioner's Exceptions on December 5, 1996. FRI filed its Response to Petitioner's Motion to Strike on December 6,1996. The matter is now before the Secretary of the Department for final agency action.
BACKGROUND
On March 17,1995, FRI filed an application for an air construction permit with the Department. The application requested a permit to construct a Portland cement 2/ plant (hereafter "the Plant") at FRI's existing quarry located approximately two and one half miles northeast of Newberry in Alachua County, Florida. The Plant will be a major emitting facility for the regulated pollutants, particulate matter (PM and PM10), 3/ sulfur-dioxide (502), nitrogen oxides (NOx), and carbon monoxide (CO).
The Plant is also subject to the Department's Prevention of Significant Deterioration (PSD) regulations because the project site is located in an attainment area of the state where ambient air quality standards for all criteria pollutants are being met. See Rule 62-212.400, Florida Administrative Code. PSD review consists of a determination of Best Available Control Technology (BACT) 4/ and an air quality impact analysis for each of these regulated pollutants.
The BACT determination is made by the Department on a case by case basis taking into account various factors, including energy, environmental, and economic impacts. The Department is required by rule to give consideration to certain criteria including any EPA determination of BACT, federal emission limitation standards for New Stationary Sources, emission limitation standards or BACT determinations of other states, and all scientific, engineering, and technical material available to the Department. See Rule 62-212.400(6), Florida Administrative Code.
The Department performed a BACT determination for emissions of 502, NOx, PM/PM10, CO, volatile organic compounds (VOCs), and beryllium because the potential emissions of these pollutants at the Plant are at estimated levels in excess of PSD Significant Emission Rates set forth in Table 212.400-2, Florida Administrative Code. Petitioner only challenged the Department's BACT determination for 502 emissions limits. Petitioner did, however, challenge the design of the Plant and the sufficiency of the control mechanisms to provide reasonable assurances that FRI will meet the BACT emission limits established.
The Department subsequently executed an Intent to Issue the air construction permit to FRI on September 29,1995, which was timely challenged by Petitioner's filing of a Petition for Administrative Hearing. The Department then transferred this matter to DOAH for a formal hearing pursuant to section 120.57(1), Florida Statutes. After prehearing proceedings were completed, a formal hearing was held on February 26 through March 1 and March 6-7,1996, at Gainesville, Florida, before DOAH Hearing Officer Suzanne F. Hood (hereafter "Hearing Officer"). FRI and Petitioner presented the testimony of various witnesses at the formal hearing and in excess of 40 exhibits were admitted into evidence on behalf of all the parties. On the evening of February 28,1996, written and oral public comment was presented.
The Hearing Officer entered a Recommended Order on July 23,1996, concluding that FRI had provided reasonable assurance at the formal hearing that the proposed Portland cement plant would not violate the applicable air quality
standards. The Hearing Officer ultimately recommended that the Department enter a Final Order issuing the requested air construction permit to FRI with additional conditions suggested in the Recommended Order.
RULING ON PETITIONER'S MOTION TO STRIKE PORTIONS OF RESPONDENT FRI'S RESPONSE TO PETITIONER'S EXCEPTIONS
Petitioner's Motion requests the Secretary to strike two quoted statements contained on pages 109 and 110 of FRI's Response to Petitioner's Exceptions filed on December 2, 1996. Petitioner alleges that these two statements relating to FRI Exhibit 31 "are clearly and completely false" and should be stricken. Petitioner is correct in that Exhibit 31 contains data related to control of PM emissions by kiln "bag house" devices, rather than by "ESPs" as proposed in this case. In FRI's Response to Petitioner's Motion to Strike, the mistake is acknowledged but is described as a "scrivener's error."
In any event, these statements in FRI's Response to Petitioner's Exceptions are merely argument of counsel based on evidence of record. I do not view these erroneous statements as the type of matters subject to a motion to strike as being "sham" or "scandalous." Petitioner's Motion to Strike is denied.
RULING ON PETITIONER'S MOTION FOR ORAL ARGUMENT
Petitioner has requested oral argument before the Secretary in connection with its Exceptions to the Hearing Officer's Recommended Order. The provisions of Rule 62-103.200(3), Florida Administrative Code, state that the Secretary of the Department, in her discretion, may grant oral argument in support of a party's exceptions to a recommended order submitted by a DOAH hearing officer. The matters now before the Secretary for consideration on agency review, however, are adequately set forth in the lengthy written Exceptions to Recommended Order filed by Petitioner and in FRI's thorough written Responses. Consequently, oral argument before the Secretary is not necessary in order to clarify the issues in this case. Petitioner's Request for Oral Argument is denied.
RULINGS ON PETITIONER'S EXCEPTIONS TO RECOMMENDED ORDER AND EXCEPTIONS TO "RESPONSE TO ORDER OF REMAND"
Preface
As a preface to the following rulings on Petitioner's Exceptions, it is appropriate to comment here upon the standards of review imposed by Florida law on administrative agencies reviewing recommended orders of hearing officers.
Under section 120.57(1)(b)10, Florida Statutes (1995), 5/ a reviewing agency is free to reject or modify a hearing officer's conclusions of law and interpretations of administrative rules with which the agency disagrees. See also MacPherson v. School Board of Monroe County, 505 So.2d 682 (Fla. 3d DCA 1987); Siess v. Dept. of Health and Rehabilitative Services, 468 So.2d 478 (Fla. 2d DCA 1985); Alles v. Dept. of Professional Regulation, 423 So.2d 624 (Fla. 5th DCA 1982).
It is a settled rule of administrative law in this state, however, that the findings of fact of a hearing officer may not be rejected or modified, "unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence...." section 120.57(1)(b)10, Florida Statutes (1995). 6/ Accord Martuccio v. Dept. of Professional Regulation, 622 So.2d 607
(Fla. 1st DCA 1993); Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987). Consequently, if the record of the DOAH proceedings discloses any competent substantial evidence to support a finding of fact made by the Hearing Officer in this case, the Secretary is bound by such finding in this agency review phase. Id. at 1123.
Exceptions 1, 2, 4, 6, 24, 25, 27, 28, 30, 37, 41, and 52-Constitutional Due Process Issues
The core argument presented by Petitioner in these 12 Exceptions is that it was deprived of its constitutional right of "due process" in the DOAH formal proceeding due to various procedural and evidentiary rulings and findings made by the Hearing Officer prior to and at the DOAH formal hearing. Some of these Exceptions appear to raise significant due process issues. A primary due process claim raised by Petitioner is that it was denied a fair opportunity to prepare its case for the DOAH formal hearing because this technically complex air construction permit proceeding was improperly expedited for final hearing by the Hearing Officer at FRI's request and over Petitioner's strong objections.
7/
It is a settled rule of administrative law in Florida, however, that a state agency does not have jurisdiction to dispose of constitutional due process issues in administrative proceedings. See Meyers v. Hawkins, 362 So.2d 926 (Fla. 1978); Gulf Pines Memorial Park v. Oaklawn Memorial Park, 361 So.2d 695, 699 (Fla. 1978); Hays v. Dept. of Business Regulation, 418 So.2d 331 (Fla. 3d DCA 1982); Harmon Brothers Rock Co. v. State of Florida Dept. of Environmental Regulation, 15 FALR. 2183, 2186 (Fla. D E R 1993). Such constitutional issues are for the courts alone to determine and are not for administrative resolution. Metro. Dade County v. Dept. of Commerce, 365 So.2d 432, 435 (Fla. 3d DCA 1978).
In view of the Department's lack of jurisdiction to resolve constitutional due process issues, Petitioner's Exceptions 1, 2, 4, 6, 24, 25, 27, 28, 30, 37, 41, and 52 must be denied and reserved for judicial review. Nevertheless, under the rationale set forth in Key Haven v. Board of Trustees of the Internal Improvement Trust Fund, 427 So.2d 153,158 (Fla. 1982), it is appropriate that rulings on the remainder of the issues raised in Petitioner's Exceptions be made.
Exceptions 7, 8, 30, and 56g-Future Events
Petitioner argues in Exceptions 7, 8, 30, and 56g that the Hearing Officer erred by basing her determination that reasonable assurance has been provided by FRI in this case in part on such post-permit events as future monitoring devices at the Plant, subsequent operation permit requirements, future design of ESPs, and future selection of manufacturers of pollution control devices. These Exceptions also appear to raise constitutional due process issues by arguably placing Petitioner in the position of being unable to fairly conduct cross- examination of FRI's witnesses and to present rebuttal evidence at the time of the DOAH hearing as to these future events which will not occur until after the air construction permit has been issued.
For the reasons set forth in more detail in the preceding ruling on the constitutional due process issues, Petitioner's Exceptions 7, 8, 30, and 56g are also denied for lack of jurisdiction. 8/
Exception 3 - Issue of Impacts of Plant Emissions on Surrounding Vegetation
This Exception alleges error on the part of the Hearing Officer in rejecting Petitioner's proposed finding of fact 88 asserting that "FRI did not investigate surrounding vegetation." In the Appendix to the Recommended Order, the Hearing Officer rejected this proposed finding of fact and referenced her Findings of Fact 87-92 in the Recommended Order. The Hearing Officer's Findings of Fact 87-92 appear to be amply supported by the expert testimony of John Koogler and the testimony of Cleve Holladay at the DOAH hearing pertaining to compliance with primary and secondary ambient air quality standards established by the Department and by the U.S. Environmental Protection Agency (hereafter "EPA"). 9/
Primary air quality standards are ambient standards established to protect human health. Rule 62-210.200(28)(b), Florida Administrative Code. Secondary air quality standards are ambient standards established to protect public welfare including the protection of animal and [plant life], property, visibility and atmospheric clarity, and the enjoyment of life and property.
Rule 62-21 0.200(28)(c), Florida Administrative Code [emphasis supplied]. The Hearing Officer found that the air quality modeling evidence presented by FRI at the hearing established that emissions from the proposed cement Plant would comply with these primary and secondary air quality standards. Koogler and Holladay testified that once compliance with the secondary air quality standards is established, no further investigation of surrounding vegetation is required.
In view of the above, Petitioner's Exception 3 is denied.
Exceptions 5, 9, and 10-Burden of Proof Issues
Petitioner contends in Exception 5 that the Hearing Officer erred by determining that FRI met its initial burden of going forward with the evidence and presenting a "prima facie" case of entitlement to the requested air construction permit. In a related argument in Exception 10, Petitioner asserts that the Hearing Officer erred by determining that Petitioner failed to contradict and rebut FRI's showing. In Exception 9, Petitioner further argues that the Hearing Officer erred by concluding that FRI had met its ultimate evidentiary burden of establishing its entitlement to the permit by a preponderance of evidence.
Petitioner is correct that FRI, as the permit applicant, has both the initial burden of going forward with the evidence and the ultimate burden of proving entitlement to the permit at the DOAH hearing by a preponderance of evidence. Young v. Department of Community Affairs, 625 So.2d 831, 835 (Fla. 1993); Metropolitan Dade County v. Coscan Florida. Inc., 609 So.2d 644, 646 (Fla. 3d DCA 1992); Florida Dept. of Transportation v. J.W.C. Co. Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981). Once FRI made a preliminary showing of entitlement to the permit, Petitioner, as the permit challenger, was then required to come forward and present contrary evidence in opposition to the permit. Id. at 789. These factually related determinations concerning the sufficiency of the evidence to shift the burden of proof from the permit applicant to the permit challenger and then back to the applicant on rebuttal are evidentiary matters generally within the sound discretion of the Hearing Officer as the finder of the facts. Id. at 788-789.
There is also a distinction between the "preponderance of evidence" standard applicable to proof presented to an administrative fact-finder and the "competent substantial evidence" standard of review applicable to a reviewing
agency or appellate court. The functions of an administrative fact-finder and a reviewing agency or court are dissimilar and are not interchangeable. See American Insurance Association v. Dept. of Insurance, 518 So.2d 1342,1346 (Fla. 1st DCA 1987); Florida Dept. of Health & Rehabilitative Services v. Career Service Commission, 289 So.2d 412, 414 (Fla. 4th DCA 1974).
As noted above, where exceptions have been filed to findings of fact of a DOAH hearing officer, the critical determination to be made by the reviewing agency is whether there is any competent substantial evidence of record to support the challenged factual findings. Thus, it is the standard of "competent substantial evidence" which is applicable to the agency review phase of this administrative proceeding, and not "preponderance of evidence." In making the determination of whether there is competent substantial evidence of record to support a hearing officer's findings of fact, the reviewing agency is required by statute to review the "complete record". Section 120.57(1)(b)10, Florida Statutes (1995). 10/ The reviewing agency must therefore not limit its review of the record just to the applicant's prima facie case or the permit challenger's opposing case.
The question of whether there is competent substantial evidence in the complete record in this case to support the challenged findings of fact of the Hearing Officer is considered later in this Final Order in a separate ruling. Consequently, Petitioner's Exceptions 5, 9, and 10 are denied.
Exception 12 - Petitioner's Post-hearing Motion for Judicial Notice
In Exception 12, Petitioner claims that the Hearing Officer erred by denying its post-hearing Alternative Motion for Judicial Notice filed with DOAH on May 10,1996, over two months after the formal hearing was concluded. This post-hearing motion requested the Hearing Officer to take judicial notice of certain "emission factors" contained in a document entitled "AP-42" compiled by the Environmental Protection Agency. 11/ Petitioner's request for judicial notice was denied on page five of the Hearing Officer's Recommended Order.
Attempts of parties in administrative proceedings to submit additional evidence into the record after a formal hearing is concluded by means of requesting a hearing officer or reviewing agency to take official recognition of certain documentary matters have been consistently disapproved by the case law of Florida. See, e.g., Lawnwood Medical Center v. Agency for Health Care Administration, 678 So.2d 421, 425 (Fla. 1st DCA 1996)(concluding that the agency erred by "reopening the record to take selective official recognition and make additional findings of fact" after the administrative hearing was concluded); Collier Medical Center v. State. Dept. of Health and Rehab.
Services, 462 So.2d 83, 86 (Fla. 1st DCA 1985)(affirming hearing officer's denial of a post-hearing request for official recognition of supplemental facts); Environmental Confederation of Southwest Florida. Inc. v. Cape Cave Corporation, 8 FALR. 317, 321-22 (Fla. DER 1985), aff'd, 498 So.2d 1309 (Fla. 1st DCA 1986), rev. denied, 509 So.2d 1117 (Fla. 1987)(denying motion for official recognition after close of DOAH hearing on ground of improper attempt to supplement record).
Based on the above authorities, Petitioner's Exception 12 is denied.
Exceptions 17, 18, 21, and 57c - Post-hearing Submittals by FRI and the Department
These Exceptions of Petitioner assert error on the part of the Hearing Officer in allowing the submittal of evidence in the Proposed Findings of Fact of FRI and the Department filed with DOAH after the formal hearing was concluded. The particular evidentiary matters objected to by Petitioner include three technical mathematical computations made by an unspecified source as set forth in FRI's footnotes 8, 9, and 10 and the Department's footnotes 2, 3, and 4 to their respective Proposed Findings of Fact. Petitioner further objects to FRI being allowed to submit a new stipulation set forth in paragraph 52 of its Proposed Findings of Fact concerning its willingness to provide DEP a manufacturer's performance guarantee for the two proposed electrostatic precipitators ("ESPs") 12/ after the air construction permit is issued, but before construction of the Plant is commenced. It is the contention of Petitioner that FRI should have provided this manufacturer's guarantee prior to or during the DOAH formal hearing.
Petitioner claims that it was thereby denied its due process rights to confront, cross-examine, and to present rebuttal evidence relating to these mathematical computations and the manufacturer's guarantee as provided by law. Petitioner's challenge to the post-hearing submittal of these mathematical computations and stipulation concerning the manufacturer's guarantee was the impetus for the Order of Remand entered herein on September 5,1996. The Order of Remand requested the Hearing Officer to clarify whether she had considered the challenged mathematical computations in making her Findings of Fact and in reaching her Conclusions of Law in the Recommended Order.
The Order of Remand also concluded in part that FRI's challenged post- hearing stipulation concerning its willingness to provide a future performance guarantee from an unspecified manufacturer of the proposed ESPs after the air construction permit is issued was "insufficient as a matter of law to, constitute competent substantial evidence of record supporting the ultimate determination of whether FRI has provided reasonable assurance at this time that the applicable air quality standards for PM and PM10 will be met at the Plant." The Hearing Officer was requested to clarify whether or not she would have determined that FRI had provided reasonable assurance of compliance with the BACT emission limits for PM and PM10 without consideration of FRI's post-hearing stipulation to supply this manufacturer's guarantee of the ESPs after the construction permit is issued.
In the subsequent Response to Order of Remand, the Hearing Officer asserted that she "did not consider or rely upon in any way the three post-hearing mathematical computations." The Hearing Officer also stated in her Response to Order of Remand that she would have made the same factual findings "that the two proposed ESPs will be capable of complying with DEP's site-specific air quality standards for PM ... and PM10 ... [without regard to FRI's post-hearing stipulation] concerning its willingness to submit a manufacturer's performance guarantee to DEP after DEP issues the air construction permit but before construction begins" [emphasis supplied].
In view of the above-quoted responses of the Hearing Officer in the Response to Order of Remand, I conclude that the matters set forth in Petitioner's Exceptions 17,18, 21, and 57c have been rendered moot.
Accordingly, Petitioner's Exceptions 17,18, 21, and 57c are denied
Exceptions 20, 43, 49, 53, 72, 74-Petitioner's Claims that the Hearing Officer Erred by Failing to Make Additional Findings
In these Exceptions, Petitioner contends that the Hearing Officer committed error by failing to make certain additional factual findings suggested by Petitioner as appropriate in this case. Petitioner is, in essence, requesting the Secretary to make these additional factual findings which it claims should have been made by the Hearing Officer. The controlling case law of Florida holds, however, that a reviewing agency has no authority to make independent and supplementary findings of fact to support its conclusions of law. See, e.g., North Port. Fla. v. Consolidated Minerals, 645 So.2d 485, 487 (Fla. 2d DCA 1994); Manasota 88. Inc. v. Tremor, 545 So.2d 439, 441 (Fla. 2d DCA 1989); Friends of Children v. Dept. of H.R.S., 504 So.2d 1345,1348 (Fla. 1st DCA 1987); Cohn v. Dept. of Professional Regulation, 477 So.2d 1039,1047 (Fla. 3d DCA 1985).
A state agency's scope of review in considering exceptions to findings of fact in a DOAH recommended order is limited to ascertaining whether a hearing officer's existing factual findings are supported by competent substantial evidence of record. North Port. Fla., supra, at 441. Therefore, I am precluded by law from making supplemental findings of fact adopting these suggested findings proposed by Petitioner and not included in the Hearing Officer's Findings of Fact.
Petitioner's Exceptions also fail to cite to any specific Proposed Findings of Fact submitted to and rejected by the Hearing Officer containing these suggested additional factual findings as required by Rule 62-103.200(1), Florida Administrative Code. The Hearing Officer cannot be found to have committed error by not including findings of fact in the Recommended Order that were not proposed by Petitioner in its Proposed Findings of Fact. In addition, a reviewing agency has no duty to scrutinize a party's proposed factual findings in an attempt to determine if there were proposed findings submitted to a hearing officer similar to additional findings suggested in the party's exceptions. This is the duty of counsel for a party filing exceptions to a recommended order of a hearing officer.
In view of the above, Petitioner's Exceptions 20, 43, 49, 53, 72, and 74 are denied.
Exceptions 23, 24, 25, and 26-Issue of Sufficiency of FRI's Permit Application These Exceptions of Petitioner contest the sufficiency and completeness of
FRI's permit application. Petitioner also contends that it was improper for the
Hearing Officer to allow FRI to "supplement" its permit application by testimony and documentary evidence at the DOAH formal hearing. Petitioner's legal position appears to be based on a misconception of the nature and scope of a contested permit proceeding which has been forwarded by the Department to DOAH for a formal hearing under section 120.57(1), Florida Statutes (1995).
A section 120.57(1) formal hearing is not merely an administrative review of prior preliminary agency action, but is a de novo proceeding intended to formulate final agency action. See, e.g., Hamilton County Commissioners v.
State Dept. of Environmental Regulation, 587 So.2d 1378,1387 (Fla. 1st DCA 1991); Florida Dept. of Transportation v. W.C. Company. Inc., 396 So.2d 778, 785 (Fla. 1st DCA 1981); and McDonald v. Dept. of Banking and Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1977). Thus, the critical issue before a DOAH hearing officer in a contested permit case is not what the permit applicant or the Department did or allegedly failed to do during the agency permit review process, but rather whether the permit applicant establishes its entitlement to the requested permit by a preponderance of evidence at the formal hearing.
It was entirely appropriate for the Hearing Officer to have considered additional evidence at the formal hearing from any of the parties relevant to the issues raised in the pleadings filed in the de novo DOAH proceeding.
Therefore, FRI was not legally precluded from presenting additional oral or documentary evidence at the DOAH formal hearing in support of the permit that was not previously included in the documents prepared by FRI or by the Department in the course of agency review of the permit application. See Hamilton County Commissioners, supra, at 1387-1388; DeCarion v. Dept. of Environmental Regulation, 445 So.2d 619, 621 (Fla. 1st DCA 1984).
FRI's burden of proof as the permit applicant in the de novo DOAH proceeding below is not measured by the sufficiency of the data contained in its permit application, but by the sufficiency of the evidence it presented at the formal hearing. J.W.C. Company. Inc., supra, at 788-789. Thus, Petitioner's focus in these Exceptions on the alleged insufficiency or incompleteness of the data previously submitted by FRI to the Department during the preliminary permit review phase is misplaced. Accordingly, Petitioner's Exceptions 23, 24, 25, and
26 are denied.
Exception 50-Review of Interim Determination by EPA
In Exception 50, Petitioner takes exception to the Hearing Officer "deeming there being no EPA review of the Interim Determination" issued by the Department to FRI on November 19, 1995. Petitioner fails to identify any specific ruling, finding of fact or conclusion of law of the Hearing Officer containing this assertion as required by Rule 62-103.200(1), Florida Administrative Code. In addition, Petitioner fails to cite to any legal authority purporting to require EPA review of the subject Interim Determination.
Rule 62-210.350(2)(c), Florida Administrative Code, only requires that a copy of the notice of the proposed action of the Department to issue the air construction permit to FRI be sent to the EPA. Petitioner has never contended in the DOAH proceedings or in its Exceptions that the Department failed to send EPA a copy of the notice of proposed agency action with respect to FRI's permit application in this case. Consequently, Petitioner's Exception 50 is denied.
Exception 59-Petitioner's Proposed Findings of Fact
In this Exception, Petitioner contends that the "Hearing Officer did not respond to Petitioner's proposed findings of fact with the required specificity." This one-sentence conclusory allegation fails to cite to any specific proposed findings of fact among the 93 it filed with DOAH. Moreover, this Exception does not state with any degree of particularity the purported deficiencies in the Hearing Officer's respective rulings in the Recommended Order on Petitioner's numerous proposed factual findings. Thus, Petitioner's Exception clearly violates the requirements of Rule 62-103.200(1), Florida Administrative Code, providing that exceptions "shall state [with particularity], the basis for asserting that the hearing officer erred in making or omitting [specific] findings of fact." [emphasis supplied].
In any event, the Appendix to the Recommended Order reflects that the Hearing Officer made rulings on each of Petitioner's proposed findings of fact in compliance with the governing case law. See Health Care Management v. Dept. of H.R.S., 479 So.2d 193, 195 (Fla. 1st DCA 1985); Schomer v. Dept. of Professional Regulation, 417 So.2d 1089, 1091 (Fla. 3d DCA 1982)(concluding that
subordinate, cumulative, immaterial or unnecessary proposed facts may be rejected by a simple statement). Accordingly, Petitioner's Exception 59 is denied.
Exceptions 61 and 64 - Department's BACT Determinations
In these two Exceptions, Petitioner essentially disagrees with the Hearing Officer as to the relevancy of certain evidence presented at the DOAH hearing by FRI pertaining to the Department's BACT determinations for PM and PM10 and the other regulated pollutants designated in the draft permit. As discussed in more detail hereafter, factual issues such as the relevancy, weight, and probative value of evidence presented at the DOAH formal hearing are matters generally within the prerogative of the Hearing Officer. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277,1281 (Fla. 1st DCA 1985). In any event, Petitioner's suggestion that its failure to challenge the Department's determination of BACT emission limits for PM and PM10 rendered any evidence related to this BACT determination irrelevant at the DOAH hearing is not compelling. Consequently, Petitioner's Exceptions 61 and 64 are denied.
Exception 62 - Operating Temperature of Gas in ESPs
This Exception takes issue with the Hearing Officer's factual finding in paragraph 80 of the Recommended Order that the ESPs "will have operating temperatures between 220 and 350 degrees Fahrenheit." Petitioner correctly notes that this ESP gas temperature range contained in the permit application was later revised upward in John Koogler's testimony on cross-examination at the DOAH hearing. On cross- examination, Dr. Koogler testified that the gas temperature range in the ESPs would be between 230 and 430 degrees Fahrenheit. 13/ (T. 1780-1781) This revised ESP operating temperature range of between 230 and 430 degrees Fahrenheit was incorporated into the Hearing Officer's subsequent Finding of Fact 100.
In its Proposed Final Order relating to Petitioner's Exception 62, FRI acknowledges this mistake of the Hearing Officer in Finding of Fact 80, but suggests that it was the result of "a scriveners error." In light of the above, Petitioner's Exception 62 is granted. Nevertheless, this error on the part of the Hearing Officer in Finding of Fact 80 is deemed to be harmless in view of the correct ESP operating temperature numbers set forth in her later Finding of Fact 100.
Exception 70 - Consideration of "More Stringent Emission Limits for PM and PM10"
This Exception alleging error of the Hearing Officer "in determining that the Department considered more stringent emission limits for PM and PM10 from Florida Plants," apparently relates to the Hearing Officer's Finding of Fact 58. In Finding of Fact 58, the Hearing Officer found in part that "the Department correctly considered the more stringent emission rates of other kilns in Florida."
FRI's Response to Petitioner's Exceptions does not contain any citations to specific portions of the DOAH record supporting this factual finding of the Hearing Officer. I have reviewed the entire DOAH record including the testimony of FRI's primary expert witness John Koogler concerning his personal experiences with three other Portland cement plants in Florida. The record does not appear to contain any evidence supporting the Hearing Officer's factual finding that these existing Portland cement plants in Florida have "more stringent emission rates" for PM and PM10 than those established for FRI's proposed Plant.
In view of the above, Petitioner's Exception 70 is granted. Nevertheless, I do not deem this factual error by the Hearing Officer to constitute "reversible error" due to the existence of other competent substantial evidence of record supporting the Hearing Officer's related findings and conclusions that the PM and PM10 BACT emission limits established in this case will be met.
Exceptions 10, 11, 13, 14, 15, 16, 18, 14/ ,19, 29, 31, 32, 33, 34, 35, 36,
38, 39, 42, 44, 45, 46, 47, 48, 49, 50, 51, 54, 55, 56, 57, 60, 63, 66, 67, 68,
69, 73, and 75-Relating to Credibility. Relevancy and Weight of Evidence
All of these miscellaneous exceptions of Petitioner basically question the sufficiency of the evidence presented by FRI at the DOAH hearing to support purported findings and conclusions of the Hearing Officer. Only four of the 38 Exceptions (13, 66, 67, and 73) cite to specific Findings of Fact of the Hearing Officer in the Recommended Order as required by Rule 62-103.200(1), Florida Administrative Code. The administrative case law of Florida holds that a party to a formal proceeding "must alert the agency to any perceived defects in the hearing procedures or the hearing officer's fact findings." Couch v. Commission on Ethics, 617 So.2d 1119,1124 (Fla. 5th DCA 1993); [Florida Dept. of Corrections v. Bradley], 510 So.2d 1122, 1124 (Fla. 1st DCA 1987)emphasis supplied].
The Recommended Order in this case is 43 pages in length and contains 158 numbered Findings of Fact and Conclusions of Law. Petitioner's Exceptions to the Recommended Order are 49 pages in length and contain 76 numbered Exceptions.
Petitioner's consistent violation of Department Rule 62-103.200(1) and the above-cited case law has made it virtually impossible for the Secretary to make concise and explicit rulings on these numerous Exceptions of Petitioner.
In addition, all of these miscellaneous Exceptions essentially assert Petitioner's disagreement with the weight and probative value accorded by the Hearing Officer to the evidence presented by FRI or with the Hearing Officer's assessment of the credibility of the expert witnesses testifying for FRI at the DOAH hearing. The provisions of section 120.57(1)(b)10, Florida Statutes (1995), do not authorize a reviewing agency to reevaluate the quantity and quality of the evidence presented at a DOAH hearing beyond a determination of whether the evidence is competent and substantial. Brogan v. Carter, 671 So.2d 822, 823 (Fla. 1st DCA 1996).
The reviewing agency may not reweigh the evidence, resolve conflicts therein or judge the credibility of witnesses, as those are evidentiary matters within the province of the hearing officer as the trier of the facts. Martuccio
v. Dept. of Professional Regulation, 622 So.2d 607, 609 (Fla. 1st DCA 1993); Heifetz, supra, at 1281. The reviewing agency is also not free to modify the findings of fact in a recommended order to fit a conclusion desired by it or by a party by interpreting the evidence or drawing inferences therefrom in a manner different from the interpretations made and inferences drawn by a hearing officer. Id. at 1281-1282.
Based on the above, Petitioner's Exceptions 10,11,13,14, 15,16,18,19, 29,
31, 32, 33, 34, 35, 36, 38, 39,42, 44, 45,46, 47,48, 49, 50, 51, 54, 55, 56, 57,
60, 63, 66, 67, 68, 69, 73, and 75 are denied.
Exceptions 11, 18, 15, 19, 22, 29, 32, 33, 34, 35, 36, 38, 39, 40, 42, 44, 45,
48, 54, 55. 56, and 75-Issue of Competent, Substantial Evidence of Record
These miscellaneous Exceptions of Petitioner, many of which were also the subject of the preceding ruling, raise-the basic claim that there is no competent substantial evidence of record to support purported findings and conclusions of the Hearing Officer. Not one of these Exceptions cite to specific Findings of Fact or Conclusions of Law of the Hearing Officer in the Recommended Order as required by Rule 62-103.200(1), Florida Administrative Code. As observed above, Petitioner's consistent violation of Department Rule 62-103.200(1) has made it virtually impossible for the Secretary to make concise and explicit rulings on these numerous Exceptions containing no citations to the Hearing Officer's Recommended Order.
I conclude, in any event, that there is competent substantial evidence of record to support the Hearing Officer's critical factual findings that all applicable air quality standards will be met at FRI's proposed Plant, including BACT emission limits for the regulated pollutants S02, NOx, PM/PM10, CO, VOCs, and beryllium. The term "competent substantial evidence" has been defined by the Florida Supreme Court as evidence "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached." Degroot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957).
Competent substantial evidence "does not relate to the quality, character, convincing power, probative value or weight of the evidence but refers to the existence of some evidence (quantity) as to each essential element and as to the legality and admissibility of that evidence. Competency of evidence refers to its admissibility under legal rules of evidence. Substantial requires that there be some (more than a mere iota or scintilla), real, material, pertinent and relevant evidence." Scholastic Book Fairs. Inc. v. Unemployment Appeals Commission, 671 So.2d 287, 289n.3 (Fla. 5th DCA 1996).
There is more than a "scintilla" of relevant and material evidence in the record of the DOAH formal hearing supporting the Hearing Officer's findings and conclusions of the substantial likelihood of FRI's compliance with the established BACT emission limits for the regulated pollutants at the proposed Plant. This competent substantial evidence of record includes-the permit application, Intent to Issue, Initial Determination, and in excess of 30 other exhibits admitted into evidence at the DOAH hearing on behalf of FRI. 16/ This competent substantial evidence also includes opinion testimony at the DOAH hearing of four expert witnesses John Koogler, Fred Cohrs, Al Linero, and Steven Smallwood.
John Koogler, who was retained by FRI to assist in the permitting of the proposed Plant in Alachua County, received a doctoral degree in chemical engineering in 1966 and is a licensed professional engineer in Florida. Dr. Koogler has specialized in industrial air pollution control during his 30-year professional career and has assisted prior applicants in the environmental permitting of three existing Portland cement plants in Florida. Koogler was accepted as an expert in air pollution control, BACT, emissions measurement and test methods at the DOAH hearing. Dr. Koogler repeatedly testified as to his opinion that FRI has provided reasonable assurance that all applicable air quality standards will be met, including the BACT emission limits established by the Department for NOx, PM and PM10, and the other regulated pollutants. 17/ (T. 82-94; 135-166; 467-474; 1741-1744; 1841-1842).
Fred Cohrs, the project manager for FRI's proposed Plant, has almost 40 years experience in the cement industry and has been involved in the design, construction, and operation of Portland cement plants. Mr. Cohrs is also a past president of Polysius Corporation, the proposed designer and manufacturer of the
cement kiln for FRI's Plant. Cohrs was accepted at the hearing as an expert in engineering, operational and process controls, and air emissions in the cement industry. Mr. Cohrs testified as to his professional opinion that the BACT emission limits established by the Department for NOx at FRI's proposed Plant will be met. (T. 1591-1593).
Al Linero, a licensed professional engineer, is the Department's Professional Engineer Administrator and is Chief of the New Source Review Section which conducted the Department's review of FRI's permit application. Mr. Linero was qualified at the DOAH hearing as an expert in professional engineering, air quality management, and air quality standards. Mr. Linero
testified as to his professional opinion that FRI's proposed Plant will meet all applicable air quality standards. (T. 511- 516).
Steven Smallwood, a licensed professional engineer in Florida, was Director of the Division of Air Quality Management for the former Department of Environmental Regulation ("DER") during the 1980's and early 1990's. During his tenure with DER, Mr. Smallwood was involved in the development and writing of the initial PSD rules for the State of Florida. Mr. Smallwood was qualified as an expert in air pollution control at the DOAH hearing and testified as to his opinion that the BACT PM and PM10 emission standards established by the Department for FRI's proposed Plant will be met. (T. 1867-1871)
These miscellaneous exceptions of Petitioner attack the probative value, reliability, and sufficiency of the data and facts upon which these expert opinions of Koogler, Cohrs, Linero, and Smallwood were based. Nevertheless, the sufficiency of the facts required to form the opinion of an expert must normally reside with the expert and any purported deficiencies in such facts relate to the weight of the evidence, a matter within the province of the Hearing Officer as the trier of the facts. Gershanik v. Dept. of Professional Regulation, 458 So.2d 302, 305 (Fla. 3rd DCA 1984), rev. den. 462 So.2d 1106 (Fla. 1985). See
also Lopez v. State, 478 So.2d 1110 (Fla. 3d DCA 1985).
In view of the above, Petitioner's Exceptions 11,18,19, 22, 29, 32, 33, 34,
35, 36, 38, 39, 40, 42, 44, 45, 48, 54, 55, 56, and 75 are denied.
Exceptions 38, 45, 46, 47, 48, 54, 55, 56, 58, 61, and 65-"Reasonable Assurance"
These miscellaneous Exceptions, 18/ most of which have been ruled upon in the two previous rulings, all take exception with the Hearing Officer's determinations that the evidence presented by FRI at the hearing provided reasonable assurance that all applicable air quality standards will be met at the proposed Plant in Alachua County. The critical standard for FRI's ultimate burden of proof in establishing its entitlement to the requested air construction permit is "reasonable assurance" that applicable air quality standards and rules will not be violated. See Rule 62A.070(1), Florida Administrative Code.
This critical standard of reasonable assurance has been construed by the Florida courts to mean "a substantial likelihood that the project will be successfully implemented." Metro Dade County v. Coscan Florida. Inc., 609 So.2d 644, 648 (Fla. 3d DCA 1992). Thus, a permit applicant is not required by Florida law to provide an "absolute guarantee" that a proposed project will comply with all applicable air or water quality standards. Save Our Suwannee. Inc., v. Piechocki and Dept. of Env. Protection, 18 FALR. 1467,1472 (Fla. DEP 1996); Powell v. U.S. Navy and Dept. of Env. Protection, 15 FALR. 3386, 3395 (Fla. DEP 1993).
In Exception 58, Petitioner basically disagrees with the Coscan case law definition of reasonable assurance as a "substantial likelihood that the project will be successfully completed" and requests the Secretary to define the term "reasonable assurance" in a different manner. Neither the Hearing Officer nor the Secretary, however, has the authority to ignore or reject appellate case law of Florida construing a critical regulatory term and to define that term in a different manner proposed by a party to an administrative proceeding.
A DOAH hearing officer makes the underlying findings of fact in a contested permit proceeding and makes a recommendation to the Department as to whether the permit should be issued or denied. The ultimate determination of whether a permit applicant has provided the necessary reasonable assurance in a particular case that a proposed project will comply with applicable air or water quality standards is a mixed question of fact and law that must be made, in the final analysis, by the Department. See, e.g., Sierra Club. et al., v. Department of Environmental Protection. et al., 18 FALR. 2257, 2260 (Fla. DEP 1996); Save Our Suwannee, Inc. v. Piechocki and Dept. of Environmental Protection, 18 FALR.
1467, 1471 (Fla. DEP 1996); VQH Development, Inc. v. Dept. of Environmental Protection, et al., 15 FALR. 3407, 3438 (Fla. DEP 1993); Barringer, et al. v. E. Speer and Associates, Inc., and Department of Environmental Regulation, 14 FALR. 3660, 3667 n. 8 (Fla. DER 1992).
In the preceding ruling, I concluded that the corroborative opinion testimony of FRI's expert witnesses at the hearing was a record source of competent substantial evidence to support the Hearing Officer's determination of reasonable assurance being provided by FRI in this case. Petitioner's Exceptions suggest that expert opinion testimony at a DOAH hearing is not the type of evidence upon which a determination by the Department of the existence of reasonable assurance in an air construction permit case may be properly based. This suggestion of Petitioner is not supported by the administrative and judicial case law of Florida.
The administrative case of Hamilton County Commissioners v. TSI Southeast, Inc., 12 FALR. 3774 (Fla. DER 1990), involved contested air permit applications to construct two biohazardous waste incinerators in Hamilton County. The Final Order of DER in the Hamilton County Commissioners case adopted the following conclusion of the Hearing Officer:
Although reasonable assurances can be shown in part by having specific engineering drawings and other designates in evidence in support of an application, their absence is not fatal to a showing of reasonable assurances. Here, testimony by the manufacturer, himself, who had extensive experience with the installation, operation and manufacture of such facilities as that proposed ... is, in the absence of evidence to refute it, an adequate showing of reasonable assurance that all emission standards and the ambient air policy of ...... will be met. [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.
Id. at 3800. [emphasis supplied]. This Final Order of DER was affirmed in its entirety in Hamilton County Commissioners, supra, at 1378, wherein the court's opinion relies heavily on the expert testimony presented on behalf of the applicant at the DOAH hearing.
Petitioner did present three expert witnesses at the DOAH hearing who were accepted as experts in various aspects of air pollution control, including combustion, air emissions, and air emissions control. These witnesses, David Marrack, Jerome Nriagu, and Nelson Hellmuth testified in opposition to the permit being granted and gave opinion testimony in conflict with that of FRI's expert witnesses. It is the case law of Florida that if there is competent substantial evidence to support the Hearing Officer's findings, then it is irrelevant that there may also be competent substantial evidence to support a contrary finding. Arand Construction Co. v. Dyer, 592 So.2d 276, 280 (Fla. 1st DCA 1991). The appellate courts of Florida have also observed that the evidence presented at an administrative hearing may support two inconsistent findings and have concluded that, in such cases, "it is the hearing officer's role to decide the issue one way or the other." Heifetz v. Dept. of Business Regulation, supra, at 1281.
In addition, the decision to accept one expert's testimony over that of another expert is a matter within the sound discretion of the Hearing Officer and cannot be altered absent a complete lack of competent, substantial evidence of record from which the finding could be reasonably inferred. See, Collier Medical Center v. State, Dept. of HRS, 446 So.2d 83, 85 (Fla. 1st DCA 1985); Florida Chapter of Sierra Club v. Orlando Utilities Commission, 436 So.2d 383,
389 (Fla. 5th DCA 1983). The Hearing Officer's findings and conclusions in paragraphs 65, 98,138,155,156, and 158 of the Recommended Order reflect the obvious fact that she found the testimony of FRI's expert witnesses to be more credible and persuasive than the opposing testimony presented by Petitioner's experts. I have no authority on agency review to reweigh the evidence in the record or to substitute my judgment for that of the Hearing Officer with respect to the credibility of the expert witnesses testifying at the DOAH hearing.
Consequently, Petitioner's Exceptions 38, 45, 46, 47, 48, 54, 55, 56, 58,
61, and 65 are denied.
Exception 71-Hearing Officer's Description of ESP Evidence as "Overwhelming"
This Exception of Petitioner takes issue with a portion of paragraph 65 of the Recommended Order. In this paragraph, the Hearing Officer describes the evidence that ESPs built to the specifications contained in the record will meet the required PM/PM10 emission limits as being "overwhelming." I do not share the Hearing Officer's view that the record evidence of FRI's compliance with PM and PM10 emission limits at the Plant by means of the proposed ESPs is "overwhelming."
In this case, Petitioner properly placed in issue in the DOAH proceeding the alleged incapability of critical pollution control components (the ESPs) of FRI's proposed air facility to comply with applicable emission limits for PM and PM10. Under these circumstances, I am of the view that "overwhelming evidence" of compliance with the PM and PM10 by the permit applicant FRI would have included testimony at the hearing from experts in the design and manufacture of ESPs guaranteeing the performance of the proposed ESPs at FRI's Plant. It is undisputed that there is no opinion testimony of record in this case from a witness accepted by the Hearing Officer as an expert in the design and manufacture of ESPs.
"Overwhelming evidence" would also have included specific emissions data from similar Portland cement facilities utilizing ESPs reflecting that the PM and PM10 emission limits established by the Department for FRI's proposed facility were both being met at those other facilities. In my review of the DOAH record, I did not find any specific emissions data from similar Portland cement facilities reflecting that they have been able to meet the PM10 emission standards established for the two proposed ESPs at FRI's Plant.
Nevertheless, the absence of "overwhelming evidence" of record does not give a reviewing agency the authority to reject a finding of fact of a hearing officer. As discussed above, the standard for agency review of findings of fact of a hearing officer is "competent substantial evidence," not "overwhelming evidence." I have concluded above that there is at least competent substantial evidence of record to support the Hearing Officer's findings that the proposed ESPs will comply with the BACT emission limits for PM and PM10 established by the Department in this case. Accordingly, Petitioner's Exception 71 must be denied.
Exception 76-Hearing Officer's Recommendation
Exception 76 takes issue with the Hearing Officer's ultimate recommendation that a Final Order be entered in this proceeding issuing to FRI the requested air construction permit for the proposed Plant in Alachua County. In prior rulings in this Final Order, 73 of Petitioner's 75 Exceptions to the Hearing Officer's Recommended Order have been denied. I have concluded above that there is competent substantial evidence of record to support the Hearing Officer's critical findings of fact in the Recommended Order. I also find no reason to reject any of the Hearing Officer's Conclusions of Law.
In view of the prior rulings herein denying substantially all of Petitioner's Exceptions to the Recommended Order, Petitioner's Exception 76 must likewise be denied.
Exceptions 77, 78, and 79-Hearing Officer's Response to Order of Remand Petitioner's Exceptions 77 and 78 allege error on the part of the Hearing
Officer in failing to provide the requested clarifications requested in the
Department's Order of Remand. The Hearing Officer's Response to Order of Remand did answer the two primary questions posed in the Order of Remand. The first query posed in the Order of Remand was whether the Hearing Officer considered the three post-hearing mathematical computations submitted by FRI and the Department in making her Findings of Fact 57-72 and the related Conclusions of Law 149-151. The Hearing Officer responded that she "did not consider or rely upon in any way the three post-hearing mathematical computations."
The second question posed in the Order of Remand was whether or not the Hearing Officer would have determined that FRI had provided reasonable assurance of compliance with the BACT emission limits for PM and PM10 without consideration of FRI's post-hearing stipulation to supply a manufacturer's performance guarantee of the ESPs after the construction permit is issued. In the Response of Order of Remand, the Hearing Officer stated that she would have made the same factual findings that the two proposed ESPs will be capable of complying with DEP's site-specific air quality standards for PM and PM10 "without regard to FRI's post-hearing stipulation concerning its willingness to submit a manufacturer's performance guarantee to DEP after DEP issues the air construction permit but before construction begins."
Petitioner correctly points out that the Hearing Officer did not specifically identify in the DOAH record the remaining evidence she relied upon for her findings and conclusions of FRI's compliance with the BACT emission limits for PM and PM10 in this case as requested in the Order of Remand. There are no statutory provisions under the Administrative Procedure Act, however, giving a reviewing agency enforcement powers to compel a hearing officer to review the DOAH record on remand and identify specific evidence relied upon in making particular findings of fact in a recommended order. Thus, the Order of Remand in this case "requested" rather than "directed" such action.
In Exception 79, Petitioner takes issue with the Hearing Officer's conclusion in the Respondents Order of Remand that FRI provided the necessary evidence of its ability to comply with the BACT emission limits for PM and PM10 established for its proposed Plant without reliance upon the challenged post- hearing submittals. Petitioner's list of purported record evidentiary deficiencies supporting its claim of lack of competent substantial evidence for the Hearing Officer's Findings of Fact relating to PM and PM10 is a summary of the matters previously raised in its Exceptions to the Recommended Order. I have already concluded in a prior ruling that there is competent substantial evidence to support the Hearing Officer's factual findings and conclusions in the Recommended Order that FRI has provided reasonable assurance of compliance with the BACT emission limits for all regulated pollutants, including PM and PM10.
In light of the above, Petitioner's Exceptions 77, 78, and 79 are denied.
CONCLUSION
This has been a strongly contested permit proceeding resulting in a DOAH formal hearing featuring a classic "battle of the experts" wherein conflicting opinion testimony supporting two inconsistent positions was presented. In such cases, the Florida courts have observed that "it is the hearing officer's role to decide the issue one way or the other." Heifetz, supra, at 1281. In this case, the Hearing Officer decided the issue in favor of FRI and recommended that the Department enter a Final Order granting the requested air construction permit.
It is therefore ORDERED:
Petitioner's Motion to Strike Portions of Respondent FRI's Response to Petitioner's Exceptions is denied.
Petitioner's Request for Oral Argument on its Exceptions is denied.
Paragraph 58 of the Recommended Order is modified by deleting from lines seven and eight thereof the language "and the more stringent emission rates of other kilns in Florida."
Paragraph 80 of the Recommended Order is modified by inserting on line seven thereof the numbers "230 and 430" in lieu of the existing numbers "220 and 350".
The Recommended Order of the Hearing Officer, as modified in paragraphs C and D above, is adopted and incorporated herein by reference.
The Department's Division of Air Resources Management is directed to ISSUE to Florida Rock Industries the air construction permit number AC01- 2673 1 11PSD-FL-228, subject to the conditions set forth in the Department's Intent to Issue dated September 28,1995, as modified by the subsequent Interim Determination dated November 17, 1995, and by the additional permit conditions proposed in the Recommended Order and described in more detail in paragraph G below, and subject to other applicable requirements of law.
The proposed new permit conditions as set forth in paragraphs 30, 49, 72, 76, 78, 84, 97,103,142,151, 154, and 157 of the Recommended Order are hereby adopted as additional specific conditions to the construction permit number
AC01- 267311/PSD-FL-228.
Any party to this proceeding has the right to seek judicial review of this Final Order pursuant to Section 120.68, 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, 3900 Commonwealth Boulevard, M.S. 35, Tallahassee, Florida 32399-3000; 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 Final Order is filed with the clerk of the Department.
DONE AND ORDERED this 12th day of December, 1996, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
VIRGINIA B. WETHERELL
Secretary
Marjory Stoneman Douglas Building 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
FILING AND ACKNOWLEDGMENT FILED, ON THIS DATE, PURSUANT TO s 120.52 FLORIDA STATUTES, WITH THE DESIGNATED DEPARTMENT CLERK. RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED.
Kathy Carter 12/13/96
ENDNOTES
1/ Chapter 120, Florida Statutes (the "Administrative Procedure Act" ), was substantially revised effective October 1,1996. One of the amendments changed the term "hearing officer" to "administrative Law Judge". See Ch. 96-159, s 31, Laws of Florida. In this case, however, the DOAH final hearing was completed and the Recommended Order was entered prior to the effective date of this recent revision of the Administrative Procedure Act. Consequently, the term "hearing office will be used throughout this Final Order rather than the new term "administrative law judge."
2/ Portland cement" is a fine powder, gray or white in color, consisting of a mixture of hydraulic cement materials comprised primarily of calcium silicates, aluminates and aluminoferrites. More than 30 raw materials are known to be used in the manufacture of Portland cement. These materials are chemically combined through pyroprocessing and subjected to subsequent mechanical processing operations to form gray and white Portland cement. Gray Portland cement is used for structural applications and is more common than white Portland cement, which is used primarily for decorative purposes.
3/ "PM" is small, finely-divided solid particles formed from whatever materials are present in the emissions. PM10" refers to particulate matter ten micrometers in diameter or less.
4/ "BACT" is an emission limitation based on the maximum degree of reduction of each pollutant emitted determined by the Department to be achievable through application of-production processes and available methods, systems and techniques (including fuel cleaning or treatment or innovative fuel combustion techniques) for control of each such pollutant. See Rule 62-210.200(40), Florida Administrative Code.
5/ These provisions of former section 120.57(1 )(b)(1 0), Florida Statutes (1995), were transferred with some modifications to present section 120.57(1)(j), Florida Statutes (Supp. 1996).
6/ The quoted provisions of former section 120.57(1)(b)10, Florida Statutes (1995), were transferred intact to the present provisions of section 120.57(1)(j), Florida Statutes (Supp. 1996)
7/ Petitioner's original Petition for Administrative Hearing was forwarded to DOAH on November 13, 1995. The Hearing Officer entered an order on December 6 1995, granting a majority of the relief requested in FRI's Motion to Expedite, despite Petitioner's Response in Opposition to the Motion. The DOAH final hearing commenced on February 26,1996, three weeks after Petitioner filed its Second Amended Petition for Administrative Hearing.
8/ In any event, Petitioner's reliance on the case of Metro, Dade County v Coscan Florida. Inc., 609 So.2d 644 (Fla. 3d DCA 1992) appears to be misplaced. The Coscan opinion expressly approved a future monitoring requirement as one factor which can be considered" by the Department or by a hearing officer in determining whether reasonable assurance had been provided by a permit applicant. Id. at 648. The Coscan court did hold that a post-permit monitoring requirement could not be relied upon by the Department or by a hearing officer as the sole basis for concluding prior to issuance of the permit that the necessary reasonable assurance had been provided by the applicant that the project will comply with applicable environmental standards. In this proceeding, the Recommended Order reflects that the Hearing Officer did not rely solely upon post-permit monitoring requirements as the only bases for her determination that FRI had provided reasonable assurance that the proposed Plant would comply with applicable air quality standards.
9/ The EPA primary and secondary ambient air quality standards are incorporated by reference into the Department's rules by Rule 62-204.800, Florida Administrative Code.
10/ The statutory provisions requiring an agency to review the "complete" or "entire" record in the process of reviewing exceptions to findings of fact in a recommended order were transferred substantially intact to section 120.57(1)(j), Florida Statutes (Supp. 1996).
11/ Section 90.202(12), Florida Statutes, provides that a court may take judicial notice of facts "that are not subject to dispute because they are capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned" (emphasis supplied). DOAH hearing officers have authority to "take official recognition of any matters which may be judicially noticed by the courts of this state." See Rule 60Q-2.020, Florida Administrative Code. In this case, however, Petitioner's Exceptions repeatedly attack the reliability of the data contained in that portion of AP-42 introduced into evidence by FRI at the DOAH hearing. Consequently, it would seem to be inconsistent for Petitioner to suggest that the portions of AP-42 it requested to be judicially noticed by the Hearing Officer are not subject to dispute "because they are capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned."
12/ An electrostatic precipitator ("ESP") is a particle control device which uses electrical forces to remove particles from the emission gas stream. Two ESPs are proposed to be utilized by FRI to control PM and PM10 emissions from the kiln operations and clinker cooler at the Plant. An ESP first conditions the emissions gas stream, which is then passed through an area of extremely high voltage differential (tens of thousands of volts at very low amperage) where the PM and PM10 particles develop an electrical charge. A collector plate having an opposite charge collects the charged particles on the plate. The collector plate is periodically "rapped" to dislodge the PM and PM10 particles, which fall into a hopper at the bottom of the ESP and are recycled for use in the kiln as raw material at the Plant.
13/ In respond to questioning by Petitioner's counsel, Dr. Koogler also testified that its "possible" that the ESP gas temperature could go as high as
500 or even 600 degrees Fahrenheit due to "short-term upsets or short-term spikes in operation." (T. 1783-1784) These possible short-term extreme ESP gas temperatures are noted, but given no weight by the Hearing Officer in the last sentence of Finding of Fact 100.
14/ Petitioner's Exceptions to Recommended Order contain two Exceptions titled "Exception 18". This ruling relates to the second Exception 18 set forth on the bottom of page 20 and the top of page 21 of Petitioner's Exceptions.
15/ Petitioner's Exceptions to Recommended Order contain two Exceptions titled "Exception 18." This ruling relates to the second Exception 18 set forth on the bottom of page 20 and the top of page 21 of Petitioner's Exceptions.
16/ This documentary evidence submitted by FRI at the DOAH hearing is summarized by the Hearing Officer in paragraphs 136 and 137 of the Recommended Order.
17/ Petitioner's characterization of Dr. Koogler's testimony as "uncorroborated" and "self-serving" goes to the issue of credibility and probative value of this opinion testimony, factual matters within the prerogative of the Hearing Officer. I would note, however, that the record reflects that Dr. Koogler's opinion testimony was substantially corroborated by the opinion testimony of three additional expert witnesses. One of these expert witnesses is Al Linero, the Department's Professional Engineer Administrator and Chief of the Department's New Source Review Section. Mr. Linero is not an agent or employee of FRI and the record does not reflect that he was retained by FRI to testify in its behalf at the DOAH hearing.
18/ As noted in the preceding two rulings, these Exceptions of Petitioner fail to cite to any specific Findings of Fact or Conclusions of Law in the Recommended Order as required by Rule 62-103.200(1), Florida Administrative Code.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by United States Postal Service to:
Priscilla N. Harris, Esquire Stewart Harris, Esquire
P. O. Box 702
Green Cove Springs, Florida 32040
Segundo J. Fernandez, Esquire Oertel, Hoffman, Fernandez and Cole, P.A.
2800 Blair Stone Rd
Tallahassee, Florida 32399-2400
Ann Cole, Clerk, and
Suzanne F. Hood, Administrative Law Judge Division of Administrative Hearings
The DeSoto Building 1230 Apalachee Parkway
Tallahassee, Florida 32399-1550 and by hand delivery to:
W. Douglas Beason, Esquire
Department of Environmental Protection 3900 Commonwealth Blvd., M.S. 35
Tallahassee, Florida 32399-3000 this 13th day of December, 1996.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
J. TERRELL WILLIAMS Assistant General Counsel
3900 Commonwealth Blvd., M.S. 35
Tallahassee, Florida 32399-3000 Telephone 904/488-9314
| Issue Date | Proceedings |
|---|---|
| Feb. 23, 1998 | First DCA Opinion (AFFIRMED) filed. |
| Dec. 20, 1996 | Letter to SFH from Paul Williams (RE: evidence letter) filed. |
| Dec. 16, 1996 | Final Order filed. |
| Oct. 31, 1996 | Response to Order of Remand sent out. |
| Oct. 21, 1996 | Department of Environmental Protection`s Response to Florida Rock Industries, Inc.`s Response to the Order of Remand filed. |
| Oct. 02, 1996 | Order sent out. (answer to DEP`s request for instructions for proceedings on remand) |
| Sep. 30, 1996 | Department of Environmental Protection`s Request for Instructions for Proceedings On Remand filed. |
| Sep. 26, 1996 | Petitioner`s Reply to Florida Rock Industries, Inc.`s Response to Order of Remand (filed via facsimile). |
| Sep. 18, 1996 | (DEP) Order Dismissing Petition With Leave to Amend filed. |
| Sep. 17, 1996 | Letter to Hearing Officer from S. Fernandez Re: Pendency of administrative Proceedings filed. |
| Sep. 16, 1996 | FRI`s Response to DEP`s Order of Remand; Disk filed. |
| Sep. 10, 1996 | Letter to A. Cole from Kathy Carter (RE: returning case file back to DOAH, pursuant to Order of remand) filed. |
| Sep. 09, 1996 | Order On Remand filed. |
| Aug. 01, 1996 | Letter to Terry Williams from Priscilla Norwood Harris (RE: due date for filing exceptions) (filed via facsimile). |
| Jul. 31, 1996 | Letter to SFH from Priscilla Harris (RE: clarification of Order issued on 11/6/95) (filed via facsimile). |
| Jul. 23, 1996 | Recommended Order sent out. CASE CLOSED. Hearing held 02/26/96 and 03/06/through 06/07/96. |
| Jun. 05, 1996 | (DEP) Notice of Substitution of Counsel filed. |
| May 20, 1996 | Florida Rock Industries, Inc.`s Response to Petitioner`s Motion to Strike Or, In The Alternative, for Judicial Notice and/or to Amend Proposed Recommended Order filed. |
| May 20, 1996 | Florida Department of Environmental Protection`s Response to Petitioner`s Motion to Strike Or, In the Alternative, for Judicial Notice and/or to Amend Proposed Recommended Order filed. |
| May 10, 1996 | Respondent FRI`s Response to Petitioner`s Renewed Motion for Attorney`s Fees filed. |
| May 10, 1996 | (Petitioner) Motion to Strike Or, In The Alternative, for Judicial Notice and/Or to Amend Proposed Recommended Order filed. |
| May 02, 1996 | (7) Disk filed. |
| Apr. 30, 1996 | Petitioner`s Proposed Recommended Order; (DEP) Notice of Filing; (Proposed) Recommended Order filed. |
| Apr. 30, 1996 | FRI`s Proposed Findings of Fact, Conclusions of Law W/Disk (Hearing Officer has disk) filed. |
| Apr. 30, 1996 | Petitioner`s Proposed Recommended Order filed. |
| Apr. 22, 1996 | Order sent out. (PRO`s are due by 4/30/96) |
| Apr. 22, 1996 | Joint Motion for Extension of Time to Proposed Recommended Orders filed. |
| Apr. 03, 1996 | Hearing Transcript filed. (2 Volumes (unnumbered); Volumes II, III, IV, V (2 Volumes), VI, VIII, IX, X & XI) NOTE: (Total of 12 Volumes TAGGED) |
| Mar. 29, 1996 | Letter to Hearing Officer from P. William Re: Conflict of scheduling fee expert witnesses and public testimony filed. |
| Mar. 22, 1996 | Letter to J. Braswell from T. Atkinson Re: FRI composite exhibits (No enclosures); Letter to P. Harris from T. Atkinson Re: FRI composite exhibits (No enclosures) filed. |
| Mar. 18, 1996 | Letter to C. Llado from T. Atkinson Re: Requesting copies of various documents and exhibits filed. |
| Mar. 15, 1996 | (Florida Rock Industries, Inc.) Notice of Supplemental Authority; Florida Department of Environmental Protection`s Response to Motion to Reopen Record for Introduction of Additional Exhibits and the Taking of Additional Testimony filed. |
| Mar. 15, 1996 | Letter to Hearing Officer from D. Stansell Re: Florida Rock filed. |
| Mar. 15, 1996 | Response by Petitioner Haile Community Association, Inc. to Respondent Florida Rock Industries, Inc.`s Motion to Reopen Record for Introduction of Additional Exhibits and the Taking of Additional Testimony filed. |
| Mar. 14, 1996 | Letter to Hearing Officer from P. Williams Re: Conflict of scheduling for expert witnesses and public testimony filed. |
| Mar. 14, 1996 | (Florida Rock Industries, Inc.) Notice of Filing Transcripts (No attachments) filed. |
| Mar. 14, 1996 | Notice of Telephonic Motion Hearing (set for 3/15/96 at 2:00PM) filed. |
| Mar. 13, 1996 | Letter to Hearing Officer from I. Boulos Re: Florida Rock Cement Plant filed. |
| Mar. 13, 1996 | Letter to Hearing Officer from R. Williams Re: Conflict of scheduling for expert witnesses and public testimony filed. |
| Mar. 12, 1996 | Letter to Hearing Officer from D. Yonutas Re: Proposed construction of cement plant filed. |
| Mar. 12, 1996 | (Florida Rock Industries, Inc.) Motion to Reopen Records for Introduction of Additional Exhibits and the Taking of Additional Testimony; Letter to HO from J. Sherman & C. Capen Re: Proposed Alachua County Cement Plant; (2) Letters to V. Wetherell from R. |
| Mar. 11, 1996 | Letter to Hearing Officer from E. Green Re: Proposed cement plant filed. |
| Mar. 08, 1996 | (7) Letters to Hearing Officer from R. Trelonr, J. Garcia, J & G Strohm, E. Miles,A. Berry, A. Hair, B. Williams Re: Proposed cement plant filed. |
| Mar. 07, 1996 | (12) Letters to Hood from J. Schott, G. Schutt, W. Walther, G. Hughes, V. Schutt, M. Simmons, A. Kemp, M. Simmons, W. McInarnay, K. Walther, R. Flug & M. Fernandez filed. (re: statement of dispute of project)(filed at hearing) |
| Mar. 07, 1996 | Florida Rock Industries Aerial Picture (reported by P. Walther)(TAGGED); Aerial Photo of Alachua County Property Appraiser of 11/30/95 filed. (filed at hearing) |
| Mar. 07, 1996 | Letter to Hearing Officer from B. Branch Re: Concerns about Fl. Rock cement plant filed. |
| Mar. 06, 1996 | CASE STATUS: Hearing Held. |
| Mar. 06, 1996 | (6) Letters to Hearing Officer from R. Barker, D. Baker, A. Segria, D. Segria, O. & J. Langford, C. McCall Re: Proposed Alachua County Cement Plant filed. |
| Mar. 05, 1996 | Letter to Hearing Officer from K. Parry Re: Florida Rock Industries` Proposed Portland Cement Plant Enclosed attachments filed. |
| Mar. 05, 1996 | Letter to Hearing Officer from C. L. T. & D Johnson Re: Proposed cement plant Enclosed photos filed. |
| Mar. 05, 1996 | (17) Letter to HO from L. Merritt, T. Johnson, J. Tomasui, M. Guy, R.Solomon, S. Morrison, T. Stevens, K. Boulos, C. Wallick, K. Sparaino,L. Lynch, H. Caruso, R. Valdes, G. Koch, N. Tomaski, J. Lee, I. Boulos Re: Proposed Cement Plant filed. |
| Mar. 04, 1996 | 3 Photos; One framed Photo of 3 Cows filed. (filed at hearing) |
| Mar. 04, 1996 | Letter to Hearing Officer from V. Brow (Unsigned) Re: Protesting the building of a cement factory in Newberry filed. |
| Mar. 04, 1996 | Letters to Hearing Officer from G. Zavelson, C. Harris, K. Craig, A. Green, W. Russell, R. Ogden, W. Low, J. Sola-Below, E. Walker, D. Boles, K. Lovett Re: Protesting the plans of Fl. Rock to build a cement plant filed. |
| Feb. 28, 1996 | Letter to Hood from K. Tankersley w/supporting documents filed. (filed at hearing) |
| Feb. 28, 1996 | National Geographic February 1996 Issue filed. (filed at hearing) |
| Feb. 27, 1996 | Motion Hearing Transcript of 2/20/96 filed. (filed at hearing) |
| Feb. 26, 1996 | Response by Petitioner Haile Community Association, Inc. to Request for Admissions by Florida Rock Industries, Inc. filed. (filed at hearing) |
| Feb. 26, 1996 | Prehearing Stipulation Pursuant to the Hearing Officer`s Prehearing Order of December 6, 1996 filed. (filed at hearing) |
| Feb. 26, 1996 | CASE STATUS: Hearing Partially Held, continued to March 6-8, 1996; 9:00am; Gainesville) |
| Feb. 21, 1996 | Order sent out. (Motion to Compel is granted) |
| Feb. 21, 1996 | (Respondent) Prehearing Stipulation Pursuant to The Hearing Officer`s Prehearing Order of December 6, 1996; Cover Letter filed. |
| Feb. 20, 1996 | (Segundo J. Fernandez) Notice of Authority filed. |
| Feb. 19, 1996 | (Respondent) Response by Petitioner Haile Community Association, Inc. to Respondent Florida Rock Industries, Inc.`s Motion to Compel and for Sanctions filed. |
| Feb. 16, 1996 | Order Denying Motion for Continuance and Motion for Protective Order sent out. |
| Feb. 15, 1996 | Florida Rock Industries, Inc.`s Notice of Production of Documents to Haile Community Association, Inc.; Florida Rock Industries, Inc.`s Notice of Serving Answers to Interrogatories Promulgated by Haile Community Association, Inc. filed. |
| Feb. 15, 1996 | (Florida Rock) Notice of Hearing; (Florida Rock) Response to Motion for Continuance and Motion for Protective Order Filed By Petitioner Haile Community Association, Inc. filed. |
| Feb. 14, 1996 | (Petitioner) Motion for Continuance and Motion for Protective Order filed. |
| Feb. 13, 1996 | (Respondent) Notice of Hearing and Availability of Telephonic Conferencing filed. |
| Feb. 12, 1996 | Response by Petitioner Haile Community Association, Inc. to Respondent Florida Rock Industries, Inc.`s Motion to Strike Portions of Second Amended Petition for Administrative Hearing filed. |
| Feb. 12, 1996 | (Segundo J. Fernandez) Amended Notice of Taking Deposition Duces Tecum filed. |
| Feb. 12, 1996 | Florida Rock Industries, Inc.`s Response to Petitioner`s Motion for Rehearing and/or Motion to Alter Judgement filed. |
| Feb. 12, 1996 | Order Denying Motion for Rehearing and/or Motion to Alter Judgment sent out. |
| Feb. 09, 1996 | (Segundo J. Fernandez) Motion to Compel and for Sanctions filed. |
| Feb. 09, 1996 | Deposition of Peter Walther ; Notice of Filing filed. |
| Feb. 08, 1996 | (Respondent) Notice of Taking Deposition Duces Tecum; (Respondent) Motion to Strike Portions of Second Amended Petition for Administrative Hearing filed. |
| Feb. 05, 1996 | (Petitioner) Motion for Rehearing and/Or Motion to Alter Judgment; (Petitioner) Second Amended Petition for Administrative Hearing filed. |
| Feb. 05, 1996 | (Petitioner) Motion for Rehearing and/or Motion to Alter Judgment; Second Amended Petition for Administrative Hearing ; (Timothy P. Atkinson) Requests for Admission filed. |
| Feb. 05, 1996 | Notice and Certification of Service by Petitioner Haile Community Association, Inc. on Florida Rock Industries Inc. of Petitioner`s First Request for Production of Documents; Notice and Certificate of Service by Petitioner Haile Community Association, Inc |
| Feb. 05, 1996 | (Segundo J. Fernandez) Notice of Taking Depositions Duces Tecum; (4) Subpoena Duces Tecum filed. |
| Feb. 02, 1996 | Letter to Priscilla N. Harris from Segundo J. Fernandez (cc: Hearing Officer) Re: Exhibit and witness list filed. |
| Jan. 26, 1996 | Order sent out. (rulings on Motions) |
| Jan. 25, 1996 | Letter to Priscilla N. Harris from Segundo J. Fernandez (cc: Hearing Officer) Re: Deposition; Notice of Taking Deposition filed. |
| Jan. 22, 1996 | Notice and Certification of Production by Petitioner Haile Community Association, Inc. of Response to First Request for Production of Documents by Florida Rock Industries, Inc. filed. |
| Jan. 22, 1996 | (DEP) Memorandum filed. |
| Jan. 17, 1996 | (DOAH) Notice of Filing filed. |
| Jan. 17, 1996 | Transcript filed. |
| Jan. 16, 1996 | Reply By Petitioner to Respondent FRI`s Memorandum In Support of Its Motion to Strike and Motion for More Definite Statement and In Reply to Petitioner`s Response filed. |
| Jan. 12, 1996 | Memorandum in Support of Respondent Florida Rock Industries, Inc.`s Motion to Strike and Motion for More Definite Statement and in Reply to Petitioner`s Response filed. |
| Jan. 09, 1996 | (Florida Rock) Notice of Availability of Telephone Conferencing for Motion Hearing On January 16, 1996 filed. |
| Jan. 08, 1996 | Petitioner`s Response to Respondent Florida Rock Industries, Inc.`s Motion for Prehearing Order w/cover letter filed. |
| Jan. 08, 1996 | (Respondent) 2/ Notice of Hearing filed. |
| Jan. 05, 1996 | Petitioner`s Response to Respondent Florida Rock Industries, Inc.`s Motion to Strike and Motion for More Definite Statement filed. |
| Jan. 04, 1996 | Respondent, Florida Rock Industries, Inc.`s First Request for Production of Documents to Haile Community Association, Inc. filed. |
| Jan. 02, 1996 | Letter to Priscilla Norwood Harris from Segundo J. Fernandez (cc: Hearing Officer)Re: Availability of deposition of FRI`s expert witnesses filed. |
| Dec. 29, 1995 | (Segundo J. Fernandez) Motion for Prehearing Order filed. |
| Dec. 29, 1995 | Notice and Certification of Service By Petitioner Haile Community Association, Inc. On Florida Department of Environmental Protection of Petitioner`s First Request for Production of Documents filed. |
| Dec. 27, 1995 | (Segundo J. Fernandez) Motion to Strike and Motion for More Definite Statement filed. |
| Dec. 26, 1995 | Florida Rock Industries, Inc.'s Answers to Interrogatories Promulgated by Haile Community Association, Inc. filed. |
| Dec. 26, 1995 | Notice and Certification of Service by Petitioner Haile Community Association, Inc. of Responses to First Interrogatories of Florida Rock Industries, Inc. w/cover letter filed. |
| Dec. 26, 1995 | (DEP) Notice and Certificate of Service of Interrogatories filed. |
| Dec. 22, 1995 | Florida Rock Industries, Inc.`s Notice of Serving answers to Interrogatories Promulgated by Haile Community Association, Inc. filed. |
| Dec. 11, 1995 | (Petitioner) Amended Petition for Administrative Hearing w/cover letter filed. |
| Dec. 06, 1995 | Prehearing Order sent out. |
| Dec. 06, 1995 | Order sent out. (ruling on Motions) |
| Dec. 06, 1995 | Notice of Hearing sent out. (hearing set for 3/1/96; 10:00am; Gainesville) |
| Dec. 05, 1995 | Notice and Certification ofService of Petitioner Haile Community Association, Inc.'s First Set of Interrogatories to DEP; Notice and Certification of Service by Petitioner Haile Community Association, Inc. of First Set of Interrogatories on Florida Rock I |
| Dec. 01, 1995 | (Segundo J. Fernandez) Notice of Service of Interrogatories filed. |
| Nov. 30, 1995 | Petitioner`s Motion and Notice Requesting Permission for Additional Interrogatories Directed to Florida Rock Industries, Inc. and Florida Department of Environmental Protection; (Petitioner) Motion for Permission to Appear; Notice of Appearance (Stewart H |
| Nov. 28, 1995 | (Respondent) Notice of Hearing filed. |
| Nov. 22, 1995 | (Respondent) Motion In Opposition to Petition for Administrative Hearing filed. |
| Nov. 22, 1995 | (Respondent) Motion to Expedite Formal Administrative Hearing filed. |
| Nov. 21, 1995 | Initial Order issued. |
| Nov. 13, 1995 | Request for Assignment of Hearing Officer and Notice of Preservation of Record, (Exhibits); Agency Action Letter; Agency Intent to Issue; Notice Of Intent To Issue Permit; Petition for Administrative Hearing filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 18, 1998 | Opinion | |
| Dec. 13, 1996 | Agency Final Order | |
| Sep. 05, 1996 | Remanded from the Agency | |
| Jul. 23, 1996 | Recommended Order | The Petitioner provided reasonable assurances that the proposed cement plant would not violate any air pollution standards. |
