The Issue The issue is whether Respondent is guilty of any or all of six alleged violations of the law governing lodging establishments and, if so, what penalty should be imposed.
Findings Of Fact Respondent operates a lodging establishment known as Salazar's at 412 South 2nd Street in Immokalee. Respondent holds license control number 21-01901H. Petitioner's inspector inspected the lodging establishment on April 10 and 30, 1997. On April 10, the inspector completed a report citing violations. The alleged violations were the presence of expired fire extinguishers, a missing floor drain in the men's restroom, a locked women's restroom, leaking shower faucets in the showers in the men's restroom, no hot water in the showers in the men's restroom, a broken toilet in the men's restroom, no backflow device for the hose threaded to the faucet in the men's room, a chirping smoke detector suggestive of dead batteries, no cold water in one of the stalls in the men's restroom, a torn screen in the men's restroom, a strong smell of urine in the men's restroom, no hot water in the wash basin outside the women's restroom, a dumpster on dirt, and peeling paint in the shower stalls in the men's restroom. The inspector characterized the report as a warning. She mailed the report to Mr. Christman, who is Respondent's manager, and she gave Respondent five days from receipt of the report to correct the violations. However, several items bore asterisks, and, according to the form, Respondent had to correct these violations immediately. These violations were for the fire extinguishers, smoke alarm, lack of hot and cold water, and odor of urine. On April 30, 1997, the inspector returned and reinspected the lodging. She found nine violations. The alleged violations were expired fire extinguishers, a missing floor drain in the men's restroom, a broken toilet in the men's restroom, no backflow device between the faucet and hose, no cold water in one stall of the men's restroom, a torn screen in the men's restroom, a locked women's restroom, a dumpster on the dirt, and peeling paint in the shower stalls in the men's restroom. The only urgent violations remaining from the last inspection were for the fire extinguishers and lack of cold water. On May 29, 1997, the inspector returned and performed a second reinspection. She found the same violations as found previously, except for those concerning the dumpster and peeling paint. The following day, Petitioner issued Respondent the Notice to Show Cause that commenced this case. Respondent failed to repair or replace the torn screen in the men's restroom within the allotted time after the first inspection. It is no defense that the screen is immediately redamaged. Respondent made the women's restroom reasonably available to guests of residents by giving the key to a resident who made it available to women as needed. Respondent failed to repair the cold water in the men's restroom within the allotted time after the first inspection. Respondent failed to replace the missing floor drain or repair the toilet within the allotted time after the first inspection. Respondent failed to install a backflow device between the hose and the faucet within the allotted time after the first inspection. However, Respondent did not understand what Petitioner was requiring, and Petitioner's inspection reports did not clarify this requirement. Respondent was not available during the correction period, and he later had some trouble trying to obtain help from Petitioner in explaining what he needed to do. Although a backflow device serves the important purpose of preventing contaminated water from backflowing up the hose and into the public water supply, the circumstances of this case do not permit a finding of a violation.
Recommendation It is RECOMMENDED that the Division of Hotels and Restaurants, Department of Business and Professional Regulation, enter a final order imposing a fine of $1300 against Respondent. DONE AND ENTERED this 26th day of March, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1998. COPIES FURNISHED: Scott R. Fransen Chief Assistant General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 Robert J. Christman, Manager Salazar's 4799 State Road 29 South Punta Gorda, Florida 33935 Dorothy W. Joyce, Director Division of Hotels and Restaurant Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda L. Goodgame, General Counsel Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
Findings Of Fact On or about August 4, 1990, Bio-Med Services, Inc., (hereinafter "BMS") submitted to the Department of Environmental Regulation (hereinafter "DER"), an application for the construction of a biohazardous waste incineration facility (hereinafter "facility") to be located on approximately 5.5 acres in the City of LaBelle Industrial Park. The application was prepared, signed and sealed by Robert A. Baker, Professional Engineer, and was signed by Gary V. Marsden, president of BMS. BMS is a wholly owned subsidiary of Bio-Med Management, Inc., (hereinafter BMM), and was formed for the express purpose of making application for construction of the facility at issue in this case. Gary V. Marsden has held the position of president of BMS for approximately one and one-half years. Prior to becoming BMS president, Gary Marsden was a telephone equipment salesman. Gary Marsden's father, Clarence, is president of BMM, and a director of BMS. The BMS business plan indicates that Clarence Marsden was integral to the formation of BMS, was the primary contact between BMS and engineer Baker, and will act as salesman for BMS. Clarence Marsden has been convicted approximately four times on felony counts related to illegal drug activities. Neither Marsden has any experience related to construction or operation of biohazardous waste incineration facilities. According to the first application, the incinerator facility will utilize two "Consumat-1200" incinerators and one "U-Burn 12060" incinerator. 1/ The Consumat-1200 units are each capable of incinerating approximately 2,000 pounds of waste hourly. The U-Burn incinerator is capable of incinerating 250 pounds of waste hourly. The total waste incineration capacity of the facility is approximately 50 tons daily. The waste to be incinerated consists of biological and biohazardous wastes, primarily from hospitals and medical offices. The facility would not be authorized to incinerate hazardous or radioactive wastes. The application seeks approval to construct an incinerator facility which could operate 24 hours daily, seven days weekly, on a year-round basis. Although the incinerators would be shut down for maintenance and repairs, the applicant hypothesized the constant operation of the facility for the purpose of predicting emissions levels. The air pollution control (hereinafter "APC") system proposed in the first application includes venturi scrubbers, caustic scrubbers, and a 50 foot tall, 30 inch diameter discharge stack. On or about April 19, 1991, BMS submitted amendments to the first application. The amendments, (hereinafter the "second application") were prepared and signed by Mr. Baker. The amendments deleted the venturi scrubbers/caustic scrubbers and substituted dry hydrated lime injection scrubbers and baghouses. The amendments also altered the discharge stack dimensions to provide for a stack height of 65 feet and a diameter of 40 inches. The second application also included a bypass stack to provide for APC system malfunctions. Such bypass stacks provide for uncontrolled discharge of emissions into the atmosphere, when such emissions could further damage a malfunctioning APC system. On or about September 24, 1991, an application was submitted by Eastern Grading, Inc. 2/ for a permit to construct a biohazardous waste incineration facility to be located on a site outside the City of LaBelle, rather than at the LaBelle Industrial Park. According to the third application, the incinerator facility still proposes to utilize two "Consumat- 1200" incinerators and one "U-Burn 12060" incinerator. The third application deleted the bypass stack system intended to handle emergency situations and substituted a proposed crossover mechanism. The Eastern Grading application, (hereinafter the "third application") prepared and signed by Mr. Baker and signed by Gary Marsden as president of Eastern Grading, Inc., is the application at issue in this proceeding. Subsequent to the filing of the third application, BMS has now abandoned plans to locate the facility on the site identified in the third application and instead seeks approval to construct the biohazardous waste incineration facility at the LaBelle Industrial Park site identified in the first application. The proposed site for the facility is located approximately 4,900 feet from the City of LaBelle Public Water Treatment Facility. The raw water supply comes from shallow wells southwest of the city, and is stored at the treatment plant in open holding areas. After sand-filtering and softening, the water is stored in vented tanks. Based upon the proximity of the water treatment plant to the incineration site, there is high potential for impact on the local water supply by the emissions discharged from the incineration facility. The site of the proposed facility is located next to the Cross Tie Mobile Home Estates Subdivision, approximately 75 feet from the closest residence, approximately 2,000 feet from a senior citizen service center, and approximately 3,700 feet from a local nursing home. It is likely that some individuals in the nursing home may be regarded as particularly health sensitive, as are a number of residents of Cross Tie Mobile Home Estates Subdivision who suffer from respiratory illnesses and who testified during the proceeding. The site is approximately 4,600 feet from a local elementary school, approximately 4,400 feet from an intermediate school, approximately 7,400 feet from a middle school, and approximately 8,600 feet from a high school. Persons with existing respiratory illnesses, elderly persons, and children are regarded as "sensitive receptors" and are substantially more at risk through exposure to airborne chemical pollutants than is the general population. Based upon the proximity of the incineration site to such sensitive receptors, there is high potential for impact on such persons by the emissions discharged from the incineration facility. There was no site-specific analysis of the proposed facility done by either the applicant during preparation of the application or by the DER during review of the proposal. The applicant has provided no data related to potential heath risks posed by the proposed facility. The DER has not specifically analyzed such health risks. The third application states that various requirements of the Department will be met. The application provides as follows: "Each incinerator will have the following equipment and operational requirements in order to comply with the requirements of FAC 17-2.600: Particulate emissions will not to (sic) exceed 0.020 grains per dry standard cubic foot (gr/dscf) corrected to 7% oxygen (O2). Hydrochloric acid (HCI) emissions to be reduced by 90% by weight on an hourly average basis. At least one second residence time at no less than 1800 F. in the secondary combustion chamber. An air lock system designed to prevent opening the incinerator doors to the room environment and to prevent overcharging. Carbon monoxide (CO) concentrations in the stack exhaust gases of less than 100 PPMv, dry basis, corrected to 7% 02 on an hourly basis. The secondary combustion chamber to be preheated to 1800 F. prior to burning and maintained at 1800 F. or greater during active burning of wastes. All incinerator operators will be trained by Consumat Systems or another qualified training organization. A training plan for the operators will be submitted to the Florida Department of Environmental Regulation (FDER) prior to the start of operations. Continuous monitoring and recording of temperatures and oxygen will be maintained at the exit of the secondary combustion chamber. Operating procedures and calibration requirements will be submitted to FDER upon selection of monitoring equipment. All air pollution control equipment will be functioning properly during operation of the incinerator system. The list of assurances set forth above are a recitation of the requirements of the DER's rules as provided at Chapter 17- 2.600, Florida Administrative Code. The evidence as to specific equipment and operational requirements is insufficient to support the assertion that the facility will meet such standards. As the applicant's professional engineer, Mr. Baker signed and sealed a statement as follows: This is to certify that the engineering features of this pollution control project have been examined by me and found to be in conformity with modern engineering principles applicable to the treatment and disposal of-pollutants characterized in the permit application. There is reasonable assurance, in my professional judgement, that the pollution control facilities, when properly maintained and operated, will discharge an effluent that complies with all applicable statutes of the State of Florida and the rules and regulations of the department. It is also agreed that the undersigned will furnish, if authorized by the owner, the applicant a set of instructions for the proper maintenance and operation of the pollution control facilities and, if applicable, pollution sources. Mr. Baker's certification relates only to his opinion that the facility, properly operated and maintained, will be capable of compliance with Chapter 17-2.600, Florida Administrative Code. The engineering and design of the incineration facility have not been completed. The application states, without qualification, that the two Consumat units will be utilized. The remaining equipment, including the entire air pollution control system, is identified by type of component, but is otherwise not specified. Where equipment specifications are provided, such specifications are qualified by language stating that the equipment installed will meet either such specifications "or their technical equivalents". No actual operating or test data related to any of the equipment or systems proposed for use is included in the application. There is no reliable operating or test data applicable to biohazardous waste incineration facilities available for this particular configuration of components. The application fails to contain sufficient information related to "engineering features" to permit a credible determination as to whether or not the incineration facility will conform with modern engineering principles. The application fails to support Mr. Baker's assertion that reasonable assurances are provided that when properly maintained and operated, the facility will discharge an effluent that complies with all applicable statutes of the State of Florida and the rules and regulations of the DER. Although there is no evidence to establish that the applicant intends not to comply with the requirements of the DER's regulations, the application, reflecting the fairly preliminary design of the incineration facility, fails to provide sufficient information to assure that, once final design decisions are made and the equipment acquired, that such equipment will be compatible and configured in a manner which assures compliance with the DER's acceptable emissions regulations. The applicant has no experience in construction or operation of such incineration facilities. There is no other existing and operating biohazardous waste incineration facility using this configuration of air pollution control equipment. Mr. Baker contends that the completion of final design plans and specifications is a relatively straightforward process, but nonetheless, it has not been done. The Consumat incinerators have already been purchased, are used equipment, and were subject to a cursory inspection conducted by a BMS investor prior to purchase and transportation of the used equipment from the original owner in South Carolina. There is no evidence that structural inspections by a qualified metallurgist are contemplated. The Consumat units are starved-air incinerators. A starved air incinerator consists of two chambers, one primary and one secondary. The inflow of air into the primary chamber is controlled to provide for partial combustion and volatilization of wastes. The maximum temperature of the primary chamber is 1400 degrees F. The gases produced in the primary chamber flow into the secondary chamber where the temperature is maintained through gas burners. The minimum temperature in the secondary chamber is 1800 degrees F. The application provides that the waste gases will remain in the secondary chamber for two seconds. Control of temperature and residence time is the secondary chamber is required to complete the combustion process. The draft permit conditions require the applicant to install, maintain and operate continuous emissions monitoring equipment to record the secondary combustion chamber's exit temperature and oxygen level. Each incinerator will have an oxygen probe and a thermal couple at the secondary chamber exit. The oxygen probe will provide data needed to ascertain whether the combustion process is adequate and permits the correction of oxygen levels to the 7% standard required to measure emissions levels. The thermal couple permits the monitoring of exit temperatures. The draft permit also requires BMS to maintain all testing measurements and calibration data, and other information related to equipment maintenance and adjustments. The Consumat units must be retrofitted to permit the residence time and temperature indicated in the application. The application does not contain design or engineering information related to retrofitting the secondary chambers. The U-Burn unit is, according to professional engineer Baker, a "very unique design of a company that's no longer in existence." The U-Burn would be operated only in conjunction with one of the Consumat units. One Consumat and the U-Burn would each have a separate connection into one of the two APC systems. The application provides no design or engineering data related to the connection of the U-Burn unit into the APC system. The application states that the incinerators will be loaded by means of an enclosed ram feed mechanism which will prevent the incinerator from being opened to the room environment and prohibit overloading of the unit. The enclosed ram feed mechanism has not yet been designed. Two parallel lines of identically sized pollution control equipment are proposed, each line designed to meet the requirements of one Consumat unit and the U-Burn unit. Each line of equipment will include a preconditioner ("quencher"), a lime injection dry scrubber, and a fabric filter baghouse. To control emissions, it is necessary to reduce the temperature of gases exiting the secondary chamber, where the minimum temperature is 1800 degrees F. According to the "Process Description" in the application, the gas stream will be preconditioned by the use of water injection to lower the gas stream temperature to 275 degrees F. The water from the preconditioning process will be evaporated as part of the exhaust gases. The preconditioner will be lined with refractory material to withstand the extreme temperature. The application contains preliminary design specifications for the preconditioner, however the application states that such specifications "or their technical equivalents" will be utilized in the final design, accordingly such specifications are subject to change. There has been no more than preliminary design and engineering work completed for the construction and operation of the preconditioner. The application states that the dry hydrated lime injection system (dry scrubber) and the fabric filter system have been designed to meet the requirements of Chapter 17-2.600 F.A.C. for particulate matter and HCI emissions control. Upon leaving the preconditioner, cooled flue gases move into the dry scrubber. According to the "Process Description" in the application, an ultra- fine, dry hydrated lime (calcium hydroxide) will be injected into the preconditioned gas stream via a metered pneumatic system inside a reactor. Although the velocity of the injection must be sufficient to ensure that the dry lime mixes thoroughly with the flue gases, the application contains no information related to expected injection velocity. Once mixed, the lime reacts with hydrochloric acid to produce calcium chloride. The dry scrubber will collect large particulate matter and will have an airlock system for removal of collected solids. The lime injection rate will be at a minimum of 30% greater than the stoichiometric requirements for the neutralization of the HCI. This system is intended to remove at least 90% of the HCI in the gas stream. The application contains preliminary design specifications for the dry scrubber, however the application states that such specifications "or their technical equivalents" will be utilized in the final design, accordingly such specifications are subject to change. No more than preliminary design work for the construction and operation of the dry scrubber has been completed. Following dry scrubber treatment, the flue gases proceed to a reverse jet fabric filter baghouse. Baghouse technology is a relatively standard methodology of controlling submicron particulate matter (and dioxins/furans condensed on such matter) and heavy metal vapors. According to the "Process Description" in the application, the reverse jet fabric filter will have a maximum air to cloth ratio of 5 to 1. 3/ Under some conditions, a 5 to 1 air to cloth ratio may result in the filter bags becoming clogged with ultrafine particulates. The baghouse is intended to have a removal efficiency of greater than 99% for submicron particulate matter. The application contains preliminary design specifications for the baghouse, however the application states that such specifications "or their technical equivalents" will be utilized in the final design, accordingly such specifications are subject to change. A substantial amount of manufacturer literature related to dry scrubbers, baghouses (including the fabric filter bags), and emissions monitoring equipment is included in the application, but is of no probative value given that the applicant has not committed to using any of the equipment for which literature is included. The application indicates that the incineration facility will include a "crossover" between the two APC systems, to provide for the possibility that one APC system could fail. During such "upset" conditions, there is a substantial potential for visible and fugitive emissions, as well as odors and smoke. The applicant has not yet designed the crossover mechanism and has no information related to the actual planned operation of a crossover mechanism. Standard incinerator design provides for the utilization of bypass stacks which permit the discharge of uncontrolled emissions upon the failure of an APC system. The crossover theoretically would shift the discharge from one incinerator's failed APC system to the second incinerator's APC system, during which time the operation of the second incinerator unit would be reduced or would cease in order to provide adequate capacity in the operating APC system for the discharge from either or both operating incinerators. The application does not provide information related to the operation, design or location of the crossover mechanism. There is no information as to how the facility would address the potential situation where, with only one incinerator and APC system operating, an APC system failure would occur. The utilization of the crossover mechanism is unique, there being no similar medical waste incineration facility crossovers in use elsewhere. It is not possible to determine, given the lack of detail in the application, whether the crossover mechanism could be expected to adequately and successfully address potential "upset" situations. The site plan identifies two buildings on the site, one for incineration operations and the second for ash storage. There is no information supplied related to the location or storage of delivered, but unincinerated, biohazardous wastes, although, if the site plan is accurate, such storage apparently occurs within the incineration building. The application states that solid wastes (ash and lime) will be collected and disposed of off-site in an approved landfill. At hearing, BMS submitted an ash residue management plan, providing the applicant's plan to manage ash from the incinerators and the baghouse discharge. The plan was not signed or sealed by the applicant's professional engineer although he attested to the plan at hearing. According to the plan, incinerator bottom ash generated by the facility "will be handled in a manner which will prevent danger of contamination or release to the environment". Ash will be removed from "the consumat Model CS 1200 incinerator" 4/ unit by means of an ash ejection ram and collected in a wet sump, designed to eliminate dust and blowing ash. The wet ("quenched") ash is removed from the water-filled sump by a drag chain from which excess water will drain for reuse in the ash sump. The wet ash will exit the building by conveyer and be deposited into a covered, metal, "roll-off"-type, water tight storage container. When full, the container contents will be sampled and a representative sample provided to a DER-approved laboratory for Toxicity Characteristic Leaching Procedure ("TCLP") analysis. The container will thereafter be sealed, and the ash trucked to an approved disposal facility. Baghouse waste will include fly ash and reagent waste related to the dry scrubber treatment. Such waste will be removed through a bottom drop hopper discharging into 55 gallon drums. The hopper/drum system will be shielded to prevent waste escape into the atmosphere. Upon filling, the drums will be sampled for the TCLP analysis and then sealed and transported to the approved disposal site. The BMS Ash Residue Management Plan also states: "Type A class waste will be disposed of by Waste Managements, Inc., at their facility located at 3000 N.W. 48th Street, Pompano Beach, Florida 33073. In the event ash residue would not be classified as Type A waste, it will be disposed of by Chemical Waste Management, Inc., whose offices are also located at 3000 N.W. 48th Street, Pompano Beach, Florida 33073." The Ash Residue Management Plan is insufficient to comply with the DER's requirement related to such plans. The plan fails to indicate the capacity of the disposal site or whether the disposal site is intended to receive ash residue from the solid waste combustor for the life of the facility. The plan is ambiguous as to whether the identified sites are actual disposal sites or are offices of the company which will allegedly handle disposition of the ash. The plan fails to address the beneficial uses, if any, of ash residue, although the plan does state that ash recycling is not anticipated. The plan fails to identify contractual requirements, or notification and inspection procedures, which assure that hazardous wastes are not received or burned in the facility. Although the plan states that the incinerator ash will be placed into a wet sump to eliminate dust and blowing ash, and that wet sump water will be recycled into the sump, the plan fails to address the cumulative effects such water reuse and the potential impact of exposure to humans or the environment. As to the baghouse hopper/drum system (shielded to prevent waste escape into the atmosphere) the plan fails to consider other pathways of human or environmental exposure such as through direct contact or ingestion, and the potential for soil and ground water contamination. The application states that any liquids generated from wash-downs and cleaning operations will be collected in a holding tank and thereafter incinerated. The application contains no design or engineering data which identifies the means for incinerating such liquids or establishes that such liquid incineration will be accomplished in a manner which will not adversely affect incinerator or APC operation. Petitioners assert that the facility is experimental in nature because the design is rudimentary and the crossover mechanism is not used in medical waste incinerators of this type. Respondents assert that the facility is not experimental, and that the various types of equipment proposed are in use at other incineration facilities elsewhere. The evidence fails to establish that the entire facility should be properly identified as "experimental", however, there is no credible test data available for a facility utilizing this proposed combination of equipment in the configuration identified in the application. It is likely to expect a biohazardous waste incinerator to emit multiple air pollutants. Such pollutants include particulate matter and hydrogen chloride (HCI), as well as toxic pollutants such as arsenic, cadmium, chromium, lead, mercury, manganese, nickel, zinc, and dioxin equivalents. As to toxic pollutants, the DER reviewed the anticipated chemical emissions of arsenic, mercury, manganese, cadmium, chromium VI, nickel, zinc, lead, tetrachlorodibenzo dioxin (TCDD), and hydrochloric acid. The draft permit in this case requires the proposed facility to conduct emissions tests for particulate matter, hydrogen chloride, oxygen and carbon monoxide within 60 days of initially operating the facility, and to conduct annual emissions tests thereafter. At hearing, the applicant agreed to monitor emissions for the toxic pollutants arsenic, cadmium, chromium, lead, mercury, manganese, nickel, zinc, and dioxin equivalents, and further agreed to continuously monitor carbon monoxide and opacity. The DER has established a policy related to the control of toxic emissions from an air pollution source. The "Air Toxics Policy" is an effort by the DER to protect public health from the potential dangers posed by inhalation of excessive levels of toxic air emissions. The DER has a working list of 756 chemicals for which acceptable emission levels have been established. In identifying chemicals for inclusion on the working list, the DER utilized sources which referenced chemicals of concern and also reviewed data related to the air toxics programs of other regulatory agencies. The DER air toxics working list suggests acceptable ambient air concentration levels for the identified toxic chemicals. The acceptable levels are identified as "no threat levels" or "NTL's" and are set forth at average eight hour, 24 hour, and annual concentration levels. The DER asserts that the NTL's are conservative figures and that adverse public health consequences are unlikely to occur when ambient concentration emission levels do not exceed the NTL's. In establishing the average eight and 24 hour concentration NTL's, the DER utilized the more conservative of figures available from either the federal Occupational Safety and Health Administration (OSHA) or the American Conference of Governmental Industrial Hygienists (ACGIH). The OSHA and ACGIH figures are applicable to exposure of a healthy employee to a single chemical for an eight hour working period. The annual NTL's are directly based on EPA health data values listed in the EPA's Integrated Risk Information System. Of the three NTL's, the EPA- based annual levels are considered to be more accurate. In situations where the eight and/or 24 hour averages are exceeded, additional consideration is given to whether the annual NTL is also exceeded. The DER has not reviewed the data upon which the EPA, OSHA and ACGIH levels rely, and has not independently reviewed the statistical methodology utilized by the EPA, OSHA and ACGIH in calculating the cited agencies acceptable emissions levels. However, the weight of the testimony in support of the methodology, absent specific evidence to the contrary, establishes that such reliance is reasonable. In attempting to establish eight and 24 hour NTL's for use in the DER's Air Toxics Policy, the DER considered the likelihood that air emissions would contain multiple toxic chemicals and would impact a less healthy population (including particularly susceptible individuals) for an extended period of time. The DER reduced the eight hour OSHA/ACGIH concentration by two orders of magnitude, resulting in DER eight hour NTL's which are 100 times less than the OSHA/ACGIH levels. The DER further reduced the 24 hour OSHA/ACGIH levels by a factor of 4.2 (based upon dividing the total hours in a seven day period by a 40 hour work week) resulting in DER average 24 hour NTL's which are 420 times less than the OSHA/ACGIH acceptable occupational levels. Petitioners assert that the uniform safety factors calculated by the DER which resulted in the reduction of OSHA/ACGIH figures to the DER NTL's are arbitrary, and that some NTL's were likely too high and others were too low. However, Petitioners did not identify any of the 756 chemical NTL's on the DER working list as inadequate or excessive. The greater weight of the evidence establishes that the DER's utilization of a two magnitude safety factor is appropriate. Based upon the lack of adverse health impacts on the working population subject to OSHA/ACGIH occupational levels, the dearth of toxicological data available for most substances of concern, and absent evidence to the contrary, the inclusion of safety factors which result in an average eight hour NTL 100 times less than the OSHA/ACGIH levels and an average 24 hour NTL 420 times less than the OSHA/ACGIH levels is a reasonable attempt to prohibit excessive emissions and protect the general public's health from dangers posed through inhalation of such toxic air emissions. The DER annual average air toxic concentration levels are directly derived from EPA data and are distinguished on the basis of whether or not a substance is a carcinogen. For carcinogens, the NTL is based upon a unit risk factor which equates to a one in one million increased risk of developing a cancer related to said chemical. For non-carcinogens, the DER NTL is based upon an "inhalation reference concentration" which relies directly upon inhalation toxicity data, where such data is available. Where "inhalation reference concentration" data is unavailable, the DER NTL is based upon an extrapolation of oral toxicity data. The evidence fails to establish that the reliance of the DER on such EPA data is inappropriate or unreasonable. The DER utilizes the air toxics working list to compare anticipated emissions from a proposed air pollution source to the NTL's. Not all 756 chemical comparisons are made in every case. The comparison is for the purpose of determining whether additional inquiry should be made related to specific chemical emissions. The instant application includes predicted emission rates supplied by engineer Baker. The Baker estimates are based upon actual uncontrolled incinerator emission test results, to which a predicted "control efficiency" was applied for each type of control technology proposed in the application. The control efficiency predictions were based upon a noncommercial Canadian pilot project utilizing a dry-scrubber/baghouse combination, on non peer-reviewed literature and, as to mercury emissions, on a telephone conversation with a representative of the municipal waste industry. At the hearing, Petitioners utilized a data base compiled by Dr. Paul Chrostowsky, who supplied emissions estimates based upon his data base. The data base consists of actual test results from incinerators (including 12 medical waste incinerators) and from peer-reviewed literature. None of the facilities in the Chrostowsky data base reflect data from facilities utilizing a dry scrubber/baghouse system. Half of the incinerators in his data base utilized no controls, one utilized a baghouse, and the remaining five utilized wet scrubbers. Dr. Chrostowsky took the average emissions levels and added one standard deviation to account for uncertainty related to the lack of an operating record for the proposed facility. The emissions estimates produced by Dr. Chrostowsky are deemed to be more reliable and are credited. Dr. Chrostowsky opined that the applicant's estimates did not reflect likely operating conditions and were unreasonably low. According to his estimates, the application underestimated emission rates for hydrogen chloride, arsenic, cadmium, lead, manganese, mercury, and nickel. He also opined that the application's predicted mercury removal rate of 94% was excessive and that a removal rate 70% would be more likely. However, even given Dr. Chrostowsky's emissions levels, only the 24 hour NTL for hydrogen chloride is exceeded. Although Dr. Chrostowsky's calculated an exceedance of the annual average HCI NTL, the calculation was based on error. Other emissions remain at levels below the DER's level of acceptable emissions established by rule. Utilization of a 70% mercury removal rate still results in mercury emissions within the DER's range of acceptable emissions. As to Dr. Chrostowsky's estimated hydrogen chloride emission in excess of the DER's 24 hour NTL, such calculation appears to have been based on the application's estimated HCI control efficiency of 90%. The application utilized a conservative figure based upon the DER minimum requirement of 90% HCI control, when the actual HCI control efficiency could likely be greater than 90%. However, given the preliminary state of design and the lack of test results and data reflective of this particular equipment configuration, the evidence is insufficient to determine with reasonable assurance that such requirement will be met, or that the 24 hour HCI NTL will not be exceeded. It should be noted that the DER's NTL's address only potential human impact through inhalation, on the assumption that the most likely human ingestion for air emissions is through inhalation. The policy does not address human consumption of toxics though contaminated water supplies or via other pathways, Given the proximity of the proposed facility to local water supplies, the potential for other ingestion impacts exists, and should be examined. The application also included the results from engineer Baker's air dispersion modeling, performed to predict local concentrations of certain pollutants in the ambient air. The results indicate that maximum one, eight, and 24 hour concentrations will occur approximately 100 meters from the stack, and that maximum annual average maximum concentrations will occur approximately 500 meters from the stack. Mr. Baker first utilized a standard screening model developed by the federal Environmental Protection Agency specifically for this purpose. Mr. Baker is not an expert in computer modeling and utilizes standard EPA programs to perform such functions. If an initial comparison demonstrates that expected emissions from a proposed pollution source exceed an NTL, additional review of anticipated emissions is conducted to determine whether the initial review data is inaccurate or, if not, whether additional APC technology is required to control the excess emission. The use of an initial screening model is standard scientific practice and is reasonable. Mr. Baker uses the screen model to determine whether there are exceedances of any relevant emissions standards. Where no exceedances occur, it is generally unnecessary to perform further modeling. The Baker screen model relied upon hypothetical meteorological data unrelated to the meteorological variables at the proposed incineration facility site. The screen model results are regarded as an estimation of maximum one hour air pollutant concentrations at or beyond a property line. A set of conversion factors is applied to the maximum one hour air pollutant concentration with the results predicting eight hour, 24 hour, and annual concentrations. According to Mr. Baker's screen model results, the proposed facility's emissions did not exceed the DER's air quality standards or the NTL's in the working list. Mr. Baker subsequently utilized a more advanced EPA model, identified as the "Industrial Source Complex" (ISC) model, which projects both short-term and long-term concentrations. Mr. Baker opined that the ISC model provides a more accurate estimation of pollutant dispersion into the atmosphere. In running the model, he relied upon National Weather Service (NWS) surface meteorological data from Fort Myers and on NWS upper air meteorological data from Tampa, (as the DER had directed) and upon default EPA options. The NWS data included five years of weather information. Based on the ISC model, Mr. Baker anticipates that the emissions will not exceed the DER's air quality standards or NTL's. Meteorological conditions in LaBelle may differ significantly from the NWS Tampa upper air meteorological data. Tampa is much closer to the Gulf of Mexico than LaBelle. Lake Okeechobee, located nearby to the east of LaBelle, may impact LaBelle's local conditions. There is no reliable LaBelle meteorological data easily available, and the DER did not require collection of such site-specific data. Although an expert witness opined that, based upon Orlando's inland location, available Orlando NWS upper air data would be more representative of LaBelle conditions than the Tampa data used, the witness utilized the Tampa data to run his models. There is no actual evidence that utilization of Orlando data would have resulted in different pollutant dispersion modeling results than those included in the application. On behalf of the Petitioners, the ISC model was run utilizing the same weather data used by Mr. Baker and the emissions projections calculated by Dr. Chrostowsky, resulting in substantial agreement between the modeling results. Petitioners suggest that the applicant should have been required to provide data related to the dispersion of air pollutants during certain specific meteorological events, such as temperature inversions. Such inversions occur when warm upper air traps the cooler air below, and holds air pollutants close to the Earth's surface. Although the evidence related to such inversions is based upon a one-year frequency of fog incidence for Ft. Myers, Tampa and Orlando (rather than an analysis of temperature and air pressure data) temperature inversions may occur in LaBelle as often as 20 or more times annually. Utilization of a five year set of NWS data would include occurrences of temperature inversions. Fumigation concentrations occur when, during the dissipation of temperature inversions, the cooler and warmer air levels mix, and pollutants concentrations at the top of the cooler air level may be pulled down resulting in short, but intense, concentrations of pollutants at ground level. It is likely that fumigation events occur in the LaBelle area. Stagnation events are similar to fumigation events, although apparently affecting a larger geographic area than does a fumigation event. It is likely than stagnation events occur in the LaBelle area, however, there is no model which simulates a stagnation event. The screen model utilized in this case by the DER does simulate a fumigation event. According to the screen model predictions, maximum pollutant concentrations would occur under neutral stability conditions, not during fumigation events. The DER utilized the ISC model to predict small particle deposition ("fallout"). Fallout is specific to the meteorology of a site. The ISC model does not accurately predict fallout and such modeling is not required by the DER's regulations. However, such information, if available, could provide useful particle deposition data, given the proximity of the site to the City of LaBelle public water supply. Petitioners assert that the DER should have required a full risk assessment to determine the facility's potential for adversely affecting the local environment and residents in the area. A limited assessment, solely related to dioxin risks and acid gas risks, was performed on behalf of the Petitioners. The evidence is insufficient to establish whether or not the proposed incineration facility will result in an adverse health risk to the general population residing in the area, but given the location of the proposed facility and proximity to the local water supply and to sensitive receptors, the completion of a full risk analysis is warranted. As to dioxin levels, the limited risk assessment estimated that the BMS facility would produce a cancer risk ten to 100 times greater than the risk associated with Lee County's proposed nonbiohazardous waste incineration facility. However, the predicted dioxin emission levels are within the range established by the EPA as acceptable. The Petitioner's expert further opined that such EPA figures overestimate the cancer potency of dioxin. An acid gas analysis was performed utilizing the "hazard quotient/hazard index" method of analysis. The hazard quotient/hazard index analysis provides an acceptable approach to determining air emission health risks. Acid gases include hydrogen chloride, sulfur dioxide, nitrogen oxides, hydrogen fluoride, and sulfuric acid mists. Certain meteorological conditions, including temperature inversions or fog, interact with acid gases to form acid mists and other agents injurious to human lung function. The acid gases/acid mists risk assessment indicates that the incineration facility increases the potential for hazardous health impacts on the local population.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the application of Bio-Med Services, Inc., for a permit to construct a biohazardous waste incineration facility at the LaBelle Industrial Park, in LaBelle, Florida. DONE and RECOMMENDED this 31st day of March, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1992.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's application for a permit to enlarge and expand its sewage treatment plant be DENIED. Respectfully submitted and entered this 30th day of December, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Mr. Harvey V. Delzer DELZER, EDWARDS, MARTIN, COULTER & PARKER P.O. Box 279 Port Richie, Florida 33568 Mr. Reynold L. Caleen, Jr. Acting General Counsel Department of Environmental Regulation 2562 Executive Center Circle, E. Montgomery Building Tallahassee, Florida 32301
The Issue The issue for determination in this case is whether Florida Administrative Code Rule 62-302.300(6) is an invalid exercise of delegated legislative authority because the rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency.
Findings Of Fact The Parties The Department is the state agency authorized under Chapter 403, Florida Statutes, to regulate discharges of industrial wastewater to waters of the state. Under a delegation from the United States Environmental Protection Agency, the Department administers the National Pollution Discharge Elimination (NPDES) permitting program in Florida. The Department promulgated the rules in Florida Administrative Code Title 62 that are applicable to the permitting of wastewater discharges. FOPB is a non-profit Alabama corporation established in 1988 whose members are interested in protecting the water quality and natural resources of Perdido Bay. FOPB has approximately 450 members. About 90 percent of the members own property adjacent to Perdido Bay. James Lane is the president of FOPB. Jacqueline Lane and James Lane live on property adjacent to Perdido Bay. IP owns and operates a paper mill in Cantonment, Escambia County, Florida. IP is the applicant for the Department authorizations that are the subject of DOAH Case Nos. 08-3922 and 08-3923. Background When this rule challenge was filed, DOAH Cases Nos. 08-3922 and 08-3923 (the permit cases) involved challenges by these same Petitioners to four Department authorizations for IP: an NPDES permit, a Consent Order, an approved exemption for the experimental use of wetlands pursuant to Florida Administrative Code Rule 62-660.300, and a waiver related to the experimental use of wetlands. IP later withdrew its request for the experimental use of wetlands exemption and the related waiver. Petitioners were ordered to show cause why their claim regarding the invalidity of Florida Administrative Code Rule 62- 660.300 was not rendered moot by IP’s withdrawal of its request for the exemption. Subsequently, the challenge to the validity of Florida Administrative Code Rule 62-660.300 was dismissed as moot. At the commencement of the final hearing on June 22, 2009, FOPB and James Lane announced that they were withdrawing their rule challenges except with respect to Florida Administrative Code Rule 62-302.300(6), and that the only legal ground being asserted for the invalidity of the rule is that it is vague and vests unbridled authority in the Department. Petitioners’Standing Jacqueline Lane, James Lane and a substantial number of the members of FOPB swim, boat, and make other uses of Perdido Bay. Perdido Bay would be affected by IP's wastewater effluent. The challenged rule was applied by the Department to determine that IP's proposed industrial wastewater discharge was in the public interest. The Challenged Rule Florida Administrative Code Rule 62-302.300, is entitled "Findings, Intent, and Antidegradation Policy for Surface Water Quality." Subsection (6) of the rule states: Public interest shall not be construed to mean only those activities conducted solely to provide facilities or benefits to the general public. Private activities conducted for private purposes may also be in the public interest. Most of the permits that are issued by the Department are issued to private entities whose primary purposes are personal uses or the production of private incomes and profits, rather than solely to provide facilities or benefits to the general public.
Findings Of Fact Lee County's Proposed Resource Recovery Facility Lee County has been investigating alternate methods of solid waste disposal since 1979. In 1989, Lee County adopted a Solid Waste Master Plan to guide the County's solid waste management and disposal activities for the next 40 years. The County Commission, consultants and staff concluded that the County's long term needs would be best served by an integrated solid waste management system, which would include an aggressive recycling and materials recovery program, plus composting, landfilling, and the use of a resource recovery (waste-to- energy) facility. In June 1990, Lee County filed an application for site certification with the Florida Department of Environmental Regulation (DER) for the proposed resource recovery facility (Facility). The County also filed an application with DER for a Prevention of Significant Deterioration (PSD) permit for the Facility. Lee County's Facility will produce electricity from municipal solid waste that otherwise would be discarded in a landfill. Solid waste will be brought into the Facility by truck and deposited in a large concrete pit. The refuse will be thoroughly mixed in the pit and then placed by crane in a charging hopper, which will lead into a furnace. The combustion of refuse in the furnace will create heat, which will be used to produce steam, which will be used in a steam turbine to generate electricity. The County's Facility will include the energy recovery system, a scale house, cooling tower, a stack, a 138 kV transmission line, and a stormwater management system. The Facility will have two combustion units with a combined processing capacity of approximately 1200 tons per day (tpd). Theoretically, the Facility could be expanded in the future with a third 600 tpd combustion unit to reach an ultimate site capacity of 1800 tpd. The Facility will generate approximately 40 megawatts (MW) of electricity at 1200 tpd and approximately 60 MW if expanded to 1800 tpd. The Facility will generate more than 4.28 billion kilowatt hours of electricity during its minimum 20 year life. By using solid waste to produce electricity, the County will save nonrenewable resources such as oil or coal that otherwise would be needed for power production. The energy produced from garbage will offset the need for more than 7,000,000 barrels of oil. Assuming oil is worth $20 per barrel, approximately $140 million worth of oil will be saved. The Facility will help Lee County address its solid waste disposal crisis. The Facility will reduce the volume of waste materials up to 90%. With less waste, less landfill space will be required and less land will be used for landfills. The threat of groundwater contamination also will be reduced because the ash from the Facility will be much less toxic than municipal solid waste (MSW). The leachate from ash will be much less toxic than leachate from MSW. The Facility will compliment Lee County's aggressive recycling and materials recovery programs. The Facility will only process those waste materials that are left after recycling is completed. Moreover, ferrous metals will be recovered at the Facility and recycled. The Facility will provide regional benefits. It will serve the residents of both Lee County and Hendry County pursuant to an interlocal agreement between the two counties. It will serve a combined population of approximately 400,000 people initially, which is projected to grow to approximately one million people within 20 years. The Facility will have positive economic impacts. Over 325 people will be employed during the Facility's construction. The Facility will provide jobs for 54 full-time employees during normal operations. The annual payroll of $2.5 million will contribute more than $33 million to the local economy over 20 years. The construction costs of approximately $130 million will result in a positive regional economic impact of approximately $398 million. The site is undeveloped. It has been heavily impacted by past logging and agricultural activities, including ditching and cattle grazing. The site has been extensively invaded by exotic tree species such as melaleuca and Brazilian pepper. Vegetative diversity is low, offering few habitat niches for feeding or reproduction by wildlife. As a result, the numbers and diversity of wildlife on the site are extremely low due to the poor habitat conditions. There are no DER jurisdictional wetland areas on the site. There are isolated wetlands within the jurisdiction of SFWMD. No jurisdictional wetlands will be affected by the construction of the resource recovery facility structure, which will be constructed in a previously disturbed sector of the site which is vegetated with wax myrtle. No more than 2.7 acres of wetlands will be affected by the construction of the new 138 kV transmission line, which is necessary to connect the Facility to FPL's adjacent Buckingham substation. The proposed location of the new transmission line next to an existing dirt road minimizes potential wetland impacts from the transmission line. The County will provide several forms of mitigation for wetland impacts. Under the agreed conditions of certification, the County will create new wetlands at whatever mitigation ratio SFWMD deems appropriate. In addition, the County will restore the historic hydroperiod to a stressed 9.9 acre wetland tract located on the southeast portion of the site. Finally, the County will eradicate nuisance plant specimens now found on the site and continue removal of new specimens as part of an ongoing program of habitat enhancement. These mitigation activities will improve wetlands and wildlife habitat on the site compared to current conditions. These activities will increase habitat diversity, which should result in an increase in wildlife numbers and diversity on the site. The county plans to construct the Facility approximately 1500 feet from Buckingham Road, maintaining an existing wooded area as a visual buffer between the road and the Facility. Approximately 88% (137 acres) of the site will remain as undeveloped buffer zones. All of the primary activities at the Facility will occur inside a fully enclosed building, which will be maintained under negative air pressure for control of noise, dust, and odors. Based upon experience at similar fully-enclosed resource recovery facilities, it is not likely that noise, dust, or odor levels at the site will be elevated by operation of the Facility. The planned surface water management system for the site includes a wet detention area for stormwater which is eight times larger than that required under the application rules of SFWMD. This wet detention area is supplemented by a dry pretreatment system approximately 4.5 times larger than required. After treatment, stormwater will be discharged into a currently stressed wetland area for additional treatment; the discharge will assist in restoring the original hydroperiod of the area. The primary source of water to be used in the Facility will be the City of Fort Myers' domestic wastewater treatment plant, which currently discharges advanced-treated wastewater to the Caloosahatchee River. The Facility's cooling tower will use approximately 1.1 million gallons per day (mgd) of treated wastewater. DER and SFWMD strongly encourage reuse of wastewater in this fashion, and the use will reduce the levels of nutrients which would otherwise be discharged into the Caloosahatchee by the City of Fort Myers treatment plant. The Facility will use approximately 15,000 gallons per day (gpd) of potable water for boiler makeup and household-type uses. This water will be drawn from two wells located on site, which can also supply backup water for use during emergencies. Use of potable water as backup for cooling is limited to ten days per year. The Facility will not discharge any wastewater into groundwater or surface waters. Wastewater generated at the Facility will be recycled to the extent practicable and then routed by pipeline to the City of Fort Myers' wastewater treatment plant. The Facility is not expected to cause or contribute to groundwater contamination. A groundwater monitoring system will ensure that the Facility does not impact groundwater. Likewise, a surface water monitoring program will ensure that surface water quality is not affected. The Facility will not be authorized to burn hazardous waste, biohazardous waste, medical waste, or sewage sludge. County franchise agreements with waste haulers, the only persons authorized to bring waste to the Facility, prohibit the disposal of such wastes at the Facility. Spotters stationed at the scale house, tipping floor, and charging hopper will inspect the waste stream to ensure that proscribed wastes are not burned. Proscribed wastes will be segregated upon discovery and removed by a licensed hazardous waste hauler. The municipal waste stream contains a number of substances, such as nail polish, paints, pesticides and solvents, which are denominated as "household hazardous waste." It is anticipated that such products will be found in the MSW entering the Facility. The County intends to minimize the volume of such wastes by operating a household hazardous waste collection center open to all of the County's residents. Ash is produced as the by-product of MSW incineration. Ash produced by the Facility will be wetted in a water-filled tank, then taken by conveyor within the building to an enclosed ash-handling area to be hauled away by enclosed truck to a licensed landfill for disposal. The Facility will not be allowed to commence operation until the County identifies a licensed landfill able and willing to accept ash from the Facility. Ash from the Facility is not considered a hazardous waste for regulatory purposes. Status of the Project Lee County will own the Facility. Ogden-Martin (Ogden) will build and operate the Facility for 20 years pursuant to a contract Ogden executed with the County in 1990. Ogden was selected because it submitted the lowest and best bid for these services in a competitive bidding process. Ogden is one of the largest and best vendors of resource recovery facilities in the United States. Ogden currently operates three resource recovery facilities in Florida and twelve in the United States. Ogden uses the Martin technology which has been used successfully at more than 140 facilities around the world. Lee County already has secured $197 million in escrow financing for the construction of the Facility, which will take approximately 27 months to complete. The County hopes to have the Facility in operation in the spring of 1994. EPA's 1991 New Source Performance Standards In February 1991, the United States Environmental Protection Agency (EPA) promulgated New Source Performance Standards which established stringent minimum requirements for the construction and operation of new resource recovery facilities, including Lee County's Facility. Among other things, EPA's 1991 New Source Performance Standards (NSPS): (a) establish specific emission limits for a wide array of pollutants, including dioxin; (b) require facility operators to be trained and certified; and (c) require resource recovery facilities to install, calibrate and maintain continuous emission monitors that monitor the facility's operations around the clock. The 1991 NSPS are applicable to the Facility. Best Available Control Technology In accordance with DER and EPA procedures, Lee County conducted a detailed evaluation of the Best Available Control Technology (BACT) for the control of the Facility's airborne emissions. The BACT analysis included an evaluation of all feasible and available air pollution control technologies at existing and proposed resource recovery facilities in the United States and overseas. The energy, economic, and environmental impacts of each technology were quantified and compared on a pollutant-by-pollutant basis. The analysis resulted in a determination of the BACT and appropriate emission limit for each pollutant. The County's analysis demonstrated that the Best Available Control Technology for the Facility is: (a) a spray dryer scrubber; (b) a fabric filter; (c) a selective non-catalytic reduction (SNCR) system; and (d) good combustion practices. This BACT determination is consistent with EPA's 1991 NSPS, which were established on the basis that spray dryer scrubbers, fabric filters, and SNCR were the best demonstrated technology for resource recovery facilities. The dry scrubber system is used to control sulfur dioxide (SO2) emissions as well as those of other acid gases such as hydrogen chloride and hydrogen fluoride. The system involves the injection of slaked lime to neutralize acid gases in the exhaust gas stream. Because the lime injection process effectively cools the gas stream, the scrubber system also effectively removes heavy metals except mercury; these metals adsorb to particulate matter which is removed by the fabric filter baghouse. Nitrogen oxides (NOx) are controlled by SNCR, which involves the injection of ammonia or urea into the post- combustion zone of the boiler to dissociate NOx, which is formed at high combustion temperatures, into nitrogen and water vapor. Good combustion practices minimize emissions of substances produced by incomplete combustion of solid waste, including carbon monoxide (CO), unburned hydrocarbons, soot, and toxic organic compounds such as dioxins, furans, and polycyclic organic matter (POM). The adherence to good combustion practices will assure that emissions of total dioxins and furans will not exceed the NSPS standard. Lee County considered the possibility of using a wet scrubber system, but the wet scrubber was rejected because it suffers from a variety of problems. Wet scrubbers have never been selected as BACT for any resource recovery facility in the United States. Wet scrubbers are not BACT in this case. Control Technology for Mercury The mercury emissions from the Facility will be minimized by at least four factors. First, many sources of mercury in municipal solid waste have been or soon will be eliminated. EPA has banned the use of mercury in paints and pesticides. In addition, there has been a significant national effort to reformulate consumer products and thereby eliminate mercury in the waste stream. For example, battery manufacturers nationwide have substantially reduced the mercury content of household batteries and it is expected that household batteries will be virtually mercury-free by 1995 (i.e., one year after the Facility becomes operational). This development is particularly important because as much as 90% of the mercury in municipal solid waste is contained in household batteries. Second, Lee County has implemented a battery collection program to reduce the number of household batteries in the waste stream and thereby further reduce the amount of mercury that might enter the Facility. The County has 46 drop-off stations at retail stores for the collection of button cell batteries. The County has worked with the School Board to educate students about the need to collect household batteries. The County currently is working on a curbside program for the collection of household batteries. As a result of these efforts, Lee County collected more than 40,000 batteries in just three months in 1991. Third, if there is mercury in the refuse entering the Facility, it will be controlled in part by the Facility's spray dryer scrubber and fabric filter, which may reduce mercury emissions by as much as 70%. Indeed, in a November 1990 case EPA stated that a spray dryer scrubber and fabric filter represented the most stringent control mechanisms for mercury. Fourth, Lee County will utilize an additional pollution control device to control mercury emissions. Specifically, Lee County will use a reagent injection system which will inject activated carbon, sodium sulfide, or other reagent into the flue gases. The mercury will adhere to the reagent and then be removed from the flue gases by the fabric filter. The reagent injection system should be very effective at capturing mercury and it also should reduce some other emissions (e.g., dioxins). The reagent injection system has been used in Europe, but it has never been used on a full-time basis on any resource recovery facility in the United States. This technology is not required under any state or federal regulatory program. The Facility's reagent injection system for mercury will provide the highest degree of mercury control that is technologically possible at this time. As a result of the County's extraordinary efforts to control mercury, the mercury emissions from the facility will be among the lowest in the world. Emission Limits For Mercury In August 1991, EPA completed a series of experiments with a reagent injection system at a resource recovery facility in Stanislaus, California. EPA will use its new test data from Stanislaus and its existing mercury data base to establish numerical limits for mercury emissions from new resource recovery facilities. EPA's new emission limits for mercury must be promulgated by November 15, 1991, pursuant to the 1990 amendments to the Clean Air Act. The new emission limits will be based on Maximum Achievable Control Technology (MACT), which will be even more stringent than BACT. EPA's mercury emission limits for "new facilities" are not applicable to Lee County's Facility, but Lee County has stipulated that it will comply with the new EPA emission limits for mercury when they are promulgated. DER's proposed conditions of certification provide that the Facility's maximum mercury emission rate "shall not exceed" 6.0 x 10-4 lbs/MMBtu or the new EPA limit, whichever is more stringent. The conditions of certification also expressly provide that DER can reduce the County's emission limit for mercury if a reduction is shown to be necessary in the future. The mercury emission limit in the conditions of certification is equivalent to approximately 560 micrograms per dry standard cubic meter (ug/dscm). To ensure consistent compliance with DER's "not to exceed" emission limit, Lee County's contract with Ogden-Martin requires Ogden to meet an emission limit of 150 ug/dscm. The County wanted Ogden to guarantee a lower emission limit to ensure that the Facility would never violate the conditions of certification. The County also wanted to ensure that Ogden would use its best efforts to reduce mercury emissions to the maximum extent possible. EPA's new test data from Stanislaus will provide a scientific basis for a new mercury emission limit that can be reasonably achieved with MACT. Until EPA's data are published, however, it would be imprudent and inappropriate to establish a mercury emission limit for the Facility that is lower than the level proposed by DER in the conditions of certification. The proposed mercury emission limit for the Facility represents a reasonable upper limit, given the available test data, and it rests on sound engineering judgment. Mercury emission rates of 130 ug/dscm or 80% removal recently were proposed in two pending cases in New York, but there are no reliable data available at this time to confirm that such levels can be consistently achieved. SFCARE contends that the BACT analysis should have set the Facility's mercury emission limit at 50 ug/dscm or 90% removal, however this limit is not supported by the evidence of record. SFCARE's proposed emission limits have never been established as BACT for any resource recovery facility in the United States. SFCARE's witness (Craig Volland) admitted that vendors for air pollution control equipment tend to exaggerate about the capabilities of their products, but no vendor in the world would guarantee that its equipment would meet his proposed emission limit of 50 ug/dscm. No vendor in the United States would guarantee the 90% removal limit. Another SFCARE witness (Richard Cook) conceded that he was unaware of any resource recovery facility that could achieve SFCARE's proposed emission limits for mercury. Nonetheless, SFCARE believes the County's mercury control system can reduce mercury emissions by 90% and limit them to 50 ug/dscm. To the extent that SFCARE is correct, the State of Florida can be reasonably assured that the mercury emissions from the Facility will be far below the levels established in the conditions of certification. Lee County's Air Quality Analyses The County's analyses of the Facility's impacts on air quality were performed in accordance with all of the applicable air quality regulations. Further, the County's analyses demonstrate that the Facility will operate in compliance with those regulations. Lee County's analyses were based on a series of "worst case" assumptions that intentionally maximized and over-predicted the Facility's potential impacts on air quality. For example, Lee County analyzed the air quality impacts associated with an 1800 tpd facility, even though the County only plans to build a 1200 tpd facility. The County also assumed that the Facility would operate 100% of the time, even though resource recovery facilities normally operate only 85 to 95% of the time. The County assumed that the Facility would emit every pollutant at the maximum permitted emission rate, continuously throughout the year, even though it would be impossible for this to occur. The County used a screening analysis to identify the operating conditions (e.g., loading rates, refuse Btu values) that would cause the maximum ground level impacts and then the County used those "worst case" operating conditions in all subsequent air quality analyses. Lee County also utilized a conservative approach (i.e, one designed to over-predict actual impacts) when determining the ambient air quality at the Site. The County used ambient air quality data from areas of heavy urban or industrial growth, which reflect levels of air pollution that are much greater than the levels expected at the County's Site. The County used EPA and DER approved computer models to evaluate the Facility's air quality impacts. These computer models have been tested extensively in the field to confirm that the models will over-predict a facility's maximum impacts. In accordance with DER's recommendation, the computer models used five years of consecutive hourly meteorological data from Fort Myers to calculate the Facility's impacts on air quality. As a result, the models will over-predict the Facility's maximum potential impacts at any time under any meteorological conditions. Ambient Air Quality Standards Primary ambient air quality standards are established by EPA to protect public health "with an adequate margin of safety." Primary standards are designed to protect the health of the most susceptible groups of the population, including children, the elderly, asthmatics and those with respiratory problems. Secondary ambient air quality standards are designed to protect the public welfare against "any known or anticipated adverse effects" from air pollution. Florida has adopted the national ambient air quality standards, except in some instances where Florida has adopted standards that are more protective. The Facility's maximum impacts are extremely small when compared to the national ambient air quality standards (NAAQS) and Florida ambient air quality standards (FAAQS). The Facility's maximum impacts are less than one percent of any NAAQS or FAAQS. For example, the maximum impact from an 1800 tpd Facility would be only 0.8% of the health-based standard for lead. The County analyzed the Facility's maximum predicted impacts together with the maximum background levels for the ambient air, which take into account the impacts of all existing sources of air pollution. In the worst case, the combined impact of the Facility and all existing sources is only 60% of the standard for particulate matter, and only 0.05% of the impact results from the Facility's emissions. In all other instances, the combined impact of the Facility and all existing sources ranges from 7% to 46% of the NAAQS and FAAQS. Non-Criteria Pollutants Non-criteria pollutants are those substances for which EPA has not adopted ambient air quality standards. Non-criteria pollutants include mercury and dioxin. DER has identified certain levels (i.e., "no threat" thresholds) below which no adverse impacts are anticipated from non- criteria pollutants. In this case, the Facility's maximum impacts for non-criteria pollutants are 10 to 100 times less than DER's no-threat thresholds. The Facility's maximum impacts were compared to health-based standards and guidelines adopted by New York, North Carolina, Kentucky, and the American Conference of Governmental and Industrial Hygienists. The Facility's maximum impacts for non-criteria pollutants were far below all of the applicable criteria. The dioxin emissions from the Facility will be well below all of the health-based standards and guidelines that have been established by DER, EPA, the World Health Organization, and the European Community. The Facility's maximum impacts will be about 1,000 times less than the ambient air quality standard for dioxin that was established by Connecticut, the first state to adopt an ambient air quality standard for dioxin. Prevention of Significant Deterioration EPA and DER enforce the Prevention of Significant Deterioration (PSD) program, which is designed to protect existing air quality. The PSD program limits airborne emissions by establishing maximum allowable increments that can be consumed in Class I, II, and III areas by potential sources of air pollution. Lee County and all adjacent areas are designated as PSD Class II areas, except for the Everglades National Park, which is a Class I area. The Facility will consume no more than 2.8% of any of the applicable PSD Class II increments. It will consume between 0.02 and 3.2% of the PSD Class I increments at the nearest location in the Everglades National Park, which is approximately 88 kilometers (55 miles) south-southeast of the Site. At the request of the National Park Service, Lee County evaluated the Facility's impacts on the closest border of the Big Cypress National Preserve, which is 61 kilometers (38 miles) southeast of the Site. The Facility's maximum impacts in the Big Cypress area will range from 0.02 to 4.4% of the Class I increments. Health Risk Analyses The environmental and human health effects of resource recovery facilities have been studied extensively. In 1987, EPA evaluated the data from resource recovery facilities around the world and then submitted a nine volume report to Congress, including a one volume health risk assessment. EPA conducted another comprehensive evaluation of resource recovery facilities when preparing the 1991 New Source Performance Standards. Based on these studies, EPA has concluded that well-designed, well-constructed and well-operated resource recovery facilities pose no unacceptable levels of risk to human health or the environment. The World Health Organization has reached the same conclusion. Similarly, the Florida Department of Environmental Regulation and the California Air Resources Board funded an extensive "worst case" health risk assessment of Pinellas County's 3000 tpd resource recovery facility. They concluded that the impacts from the Pinellas County facility were "minimal." In light of this extensive data base, EPA and DER do not require applicants to conduct health risk assessments for proposed resource recovery facilities. Nonetheless, Lee County analyzed the potential health impacts of the Facility's emissions. The County's analyses demonstrated that the maximum predicted impacts from the Facility will be far below any level that might cause any human health problems. Lee County evaluated the Facility's effects on human health and the environment by using standard health risk assessment techniques that were developed by EPA and other agencies. The evaluation was performed by Dr. Paul Chrostowski, a nationally recognized expert who teaches courses concerning health risk assessments for EPA and state regulatory agencies. Lee County's evaluation was based on a series of very conservative assumptions about the project that were intentionally designed to greatly over-predict the potential risks associated with the Facility's emissions. For example, the County's evaluation was based on the assumption that the Facility will operate at 1800 tpd, 100% of the time, for 70 years, even though Lee County only intends to build a 1200 tpd facility, which will operate approximately 85-95% of the time, over a useful life of approximately 30 years. The Facility's maximum impacts will occur relatively close to the Site in an undeveloped agricultural area, but the County assumed that hypothetical people would be located at the point of maximum impact for 24 hours a day, 365 days a year, for 70 years. The County assumed that these hypothetical individuals would never leave the area of maximum impact or even go indoors, where air conditioning would reduce the Facility's impacts. The County also used EPA's potency factor for dioxin when evaluating the Facility's potential impacts, even though EPA's value is too high and is approximately 200 times greater than the potency factor used by the Florida Department of Health and Rehabilitative Services. Health risk assessments result in a statistical probability that a hypothetical person might get some form of cancer (not a fatal cancer). For regulatory purposes, EPA considers acceptable risks to range from 1 in 10,000 up to 1 in 1,000,000. Even after using all of its conservative assumptions, the County found that the probability of a person getting any type of cancer from dioxin inhalation was only 3 in 100,000,000. The health risk would be reduced by a factor of up to 100 if the County used more reasonable exposure assumptions. The calculated risk would be reduced by an additional factor of 200 if the County used the potency factor for dioxin that is used by the Florida Department of Health and Rehabilitative Services. In any event, a risk of 3 in 100,000,000 indicates that the Facility will not cause any cases of cancer from dioxin inhalation. In general, there is a 10:1 ratio between all potential exposure pathways and the inhalation pathway for dioxin. Accordingly, the risk from all exposure pathways for dioxin would be 3 in 10,000,000. This risk is well below any level of concern for regulatory purposes. To put these risks in perspective, it should be recognized that a 1 in 1,000,000 risk would be experienced if a person smoked two cigarettes at any time during his or her life. A risk of 1 in 1,000,000 also would be encountered if a person drank one liter of wine during his or her entire lifetime. Hence, the risk from drinking one liter of wine or smoking two cigarettes during a person's lifetime is approximately 10 times greater than the risk that would be experienced if a person located at the point of maximum impact received 70 years of uninterrupted exposure to the maximum predicted dioxin emissions from an 1800 tpd facility. When the risks are considered in this context, it is clear that the Facility's dioxin emissions will pose no meaningful risk to human health. Similarly, the Facility's mercury emissions pose no threat to human health. The Center for Disease Control (CDC) has developed "minimal risk levels" for short term and long term exposure to mercury. If a person's exposure is below the minimal risk level, the CDC does not anticipate any adverse health effects. In this case, the maximum short-term impact from the Facility's mercury emissions at 1800 tpd will be about 1,000 times less than the CDC's minimal risk level for short term exposure. The Facility's maximum annual impact will be many thousands of times lower than the CDC's minimal risk level for long- term exposure. Environmental Impacts of Mercury Emissions The County also conducted a very conservative "worst case" analysis of the Facility's maximum impacts on Florida's ecosystems. Using standard EPA approved techniques, the County identified two environmentally sensitive areas where the Facility's impacts might have the greatest effects: (a) Lake Tarpon in the Ding Darling Refuge on Sanibel Island; and (b) the northern reaches of the Caloosahatchee River in Lee County. Since the Everglades National Park (Everglades) and Big Cypress Refuge (Big Cypress) are much further away from the Site, the potential impacts on the Everglades and Big Cypress will be much smaller than the impacts on the areas selected for study. The Facility's potential impacts on the Everglades and Big Cypress also will be minimized because the prevailing winds normally will blow the Facility's emissions away from those areas. The County identified the wildlife species of greatest concern to be the Florida panther, the bald eagle, the wood stork, and the snail kite. The County selected the snail kite and wood stork for the closest scrutiny because they are the species that are the most likely to be affected by the Facility's emissions. Here, too, Lee County's analyses were based on very conservative assumptions. Among other things, the County assumed that: the Facility will operate continuously at 1800 tpd for 70 years; Lake Tarpon and the Caloosahatchee River will receive the Facility's maximum impacts; (c) virtually all of the Facility's emissions will be deposited on the soil and then washed into the water bodies under investigation; (d) the snail kite and wood stork will only feed in the two areas that are under investigation; (e) the birds' food (i.e., snails for the snail kite; fish for the wood stork) will stay in one location where it will receive maximum exposure; and (f) the fish and snails will live 70 years and accumulate mercury over that period. The County also used the lowest sensitivity levels that could be found for any bird species and then applied a toxicological safety factor of 20. The County's analyses demonstrated that after 70 years of Facility operations at 1800 tpd, the mercury concentration in snails would be three times less than any levels that might cause an impact on the snail kite. Wood storks would be exposed to even less risk than snail kites because the bioaccumulation of mercury in fish would be less than the bioaccumulation of mercury in snails. Since eagles also eat fish, this same conclusion is true for eagles. Bald eagles and panthers would be at even less risk than snail kites or wood storks because they feed over a larger range than snail kites or wood storks. Panthers and eagles would not get all of their food from the area of maximum impact near the Site. Panthers and eagles are very mobile and they would not remain for a long period of time in the areas where the Facility's maximum impacts would occur. Panthers can range over hundreds of square miles of land. Indeed, one young panther once moved through the general area near the Site, but since then it has spent most of its time roaming through Hendry County and Collier County. The panther's activities have taken it approximately 20 miles northeast and 50 miles southeast of the Site. Since the Facility's impacts will be lowest to the southeast and east, the Facility's impacts will be much smaller in those areas where the panther is located than in the areas that were studied by Lee County. Parenthetically, dioxin concentrations resulting from the Facility's emissions would be up to one billion times less than the levels of concern for dioxin in snails, fish, or their predator species. The County's analyses demonstrate that the Facility, when considered individually or when combined with other existing sources of mercury, will not have any adverse impacts on threatened or endangered species in southwest Florida. There is a very wide margin of safety for these species because the Facility's emissions will be extremely small. Soil Deposition Lee County evaluated the possibility that the Facility's emissions would be deposited on the soil and accumulate over time. To evaluate this issue, the County assumed that there would be 70 years of soil deposition resulting from the Facility's maximum emissions at 1800 tpd. The Facility's maximum impact on lead concentrations in the soil after 70 years would be 2 x 10-4 parts per million (ppm). In the southeastern United States, lead occurs naturally in the soils at levels up to 40 ppm. Children do not experience any effects from lead until soil concentrations reach at least 200 ppm. EPA sets a safe level of 500 ppm. Similarly, after 70 years of worst case impacts, the Facility's contribution to arsenic concentrations in the soil would be 3 x 10-6 ppm. Naturally occurring levels of arsenic in Florida's soil range up to 15 ppm. The Facility's maximum contribution to beryllium concentrations in the soil would be about 1,000,000 times less than the levels that naturally occur in Florida soils. The Facility's maximum contribution to mercury levels in the soil would be 2 x 10-4 ppm. By comparison, sugar cane contains approximately 1.2 ppm of mercury. In all of these worst case analyses, the 1800 tpd Facility's maximum contribution to soil concentrations would be at least 100 times below any level that the EPA or CDC has associated with health impacts. Indeed, the Facility's contributions to these soil concentrations could not be measured with any known analytical technique. Air Quality Monitoring Lee County will utilize sophisticated operational safeguards to ensure that the Facility is operated properly. The Facility will have continuous emission monitors (CEM) to continuously measure the levels of carbon monoxide, nitrogen oxide, sulfur dioxide, and oxygen in the Facility's emissions. Opacity and other parameters also will be monitored with CEMs. These monitors will be connected to visible and audible alarms in the Facility's main control room, which will alert the Facility operators to potential problems. The data collected by the CEMs will be reported regularly to DER. Shortly after the Facility completes construction, Lee County will conduct an initial stack test to demonstrate compliance with the various emission limits established in the conditions of certification. Lee County will conduct annual stack tests thereafter, even though annual stack tests are not required at most resource recovery facilities. The Southwest Florida Regional Planning Council suggested that Lee County should monitor mercury emissions on a monthly "or other appropriate basis." There are several reasons why annual, not monthly, stack tests for mercury will be most appropriate for the Facility. First, monthly stack tests at the Facility would cost a minimum of $300,000 each year. Second, there are no resource recovery facilities in the United States that are required to conduct monthly or even quarterly stack tests for mercury. Third, there will be a substantially larger data base for mercury compiled prior to the commencement of operations at the Facility in 1994. Fourth, DER has recommended annual stack tests. Fifth, DER could require more frequent testing in the future if DER concluded that additional tests were necessary. SFCARE contends that ambient air quality monitoring should be conducted on or around the Site. This proposal is rejected because ambient air monitoring would be of no scientific value. The Facility's maximum impacts at 1800 tpd will be so small that they could not be measured with an EPA approved ambient air monitoring system located at the point of maximum impact or anywhere else in Lee County. For this reason, state and federal regulations will not require ambient air quality monitoring at or near the Site. Facility operations can be better evaluated by using CEMs and stack tests to measure the Facility's emissions, rather than ambient air monitors. Lee County's Recycling Programs Lee County has a very aggressive and innovative recycling program. Lee County expects to achieve the state recycling goal of 30% by 1994. Moreover, the County Commission established a county recycling goal of 40% and the County is doing everything practicable to achieve its 40% goal. Lee County's residential curbside recycling program will serve 100% of the County by the end of 1991. The County expects to have 50% of the County's commercial businesses in its recycling program by 1992 and 100% of the businesses by 1994. The County already collects used oil, automobile batteries, and telephone books. The County is implementing a mulching program for horticultural wastes. The County's recycling rates are among the best in the State of Florida. The County's overall recycling program is among the best in the nation. The County received an award from EPA for its innovative approach to recycling. Among other things, the County has a contract with Goodwill Industries that allows Goodwill to process and market all of the recyclable materials collected in the County's curbside program. The County recently awarded $1,200,000 to Goodwill for an automated materials separation facility for recyclables. The County also awarded $600,000 to Goodwill for an intrusion molding plant that will utilize PET and HDPE plastics to create plastic lumber. The County recently used a $100,000 DER grant to construct a facility for the collection and disposal of household hazardous wastes. The County recently received a DER recycling grant for $619,000 and a DER tire recycling grant for $209,000. Although the County has an innovative recycling and materials recovery program, the County only wants to use demonstrated technologies. The County does not want to gamble its public funds on experimental technologies that might not work. The County does not want to invest in a program like the Agripost composting facility in Miami, which was a "dismal failure" and cost more than $25 million. Some citizens suggested that Lee County should recycle 60% or more of the waste stream, but such proposals are not feasible. Some materials cannot be recycled. Other materials are not marketable and cannot be reused. Facility Sizing When the County filed its PSD and PPSA applications in June 1990, the County wanted authorization to construct an 1800 tpd facility that could be expanded to 2400 tpd. On May 1, 1991, the County Commission decided to reduce the size of the Facility to 1200 tpd, with expansion capabilities to 1800 tpd. The County Commission reduced the size of the Facility because the County wanted to maximize its recycling programs and minimize its reliance on the Facility. As a result of the County's decision, it will be very expensive to expand the Facility. The County has created a strong financial disincentive against expansion of the Facility. Resource recovery facilities normally are designed with excess capacity to provide for future growth. In this case, however, the Facility will be full when it begins commercial operations, unless the County achieves a 30% recycling rate. Even if the County achieves a 30% recycling rate, the Facility will be full within two years after it commences operation. Source Separation As BACT SFCARE contends that the BACT determination in this case should require additional recycling or source separation (i.e., the removal of certain materials from the waste stream prior to their disposal at the resource recovery facility). SFCARE's proposal is rejected. Recycling and source separation programs do not significantly affect the emissions from resource recovery facilities, with two exceptions. Removing household batteries from the waste can reduce mercury emissions. Removing lead-acid batteries, as required by Florida law, can reduce lead emissions. In this case, Lee County already has taken steps to remove these two types of batteries from the waste stream. In general, however, recycling and source separation programs have not been demonstrated to reduce emissions from resource recovery facilities and, therefore, such programs do not constitute Best Available Control Technology. In a 1989 case involving a resource recovery facility in Spokane, Washington, EPA concluded that source separation had not been demonstrated to be BACT. In the 1991 NSPS for resource recovery facilities, EPA stated that there are no reliable data to demonstrate that recycling or source separation requirements should be imposed as part of the NSPS. Consequently, recycling, source separation, and similar requirements have never been imposed as part of a BACT determination by EPA or any state agency in the United States. The available data indicate that additional source separation programs (i.e., over and above what the County already proposes) would not be cost effective and would not produce any meaningful reductions in the Facility's emissions. For example, several studies have shown that the removal of plastics from the waste will not reduce dioxin or other emissions. BACT determinations require a quantitative analysis of the energy, economic and environmental impacts associated with any proposed BACT technology. In this case, SFCARE did not perform any analyses of the energy, economic, or environmental impacts of its proposals concerning recycling or source separation. Indeed, SFCARE has not specifically explained what additional recycling or source separation should be done in this case, what these activities would cost, or what environmental benefits (if any) would result. Thus, SFCARE's proposal is fatally defective. SFCARE SFCARE has approximately 600 people on its mailing list, but the actual number of SFCARE members is unknown. The members of SFCARE fish, jog, and otherwise enjoy the natural resources of Lee County; however, SFCARE's President readily admitted that SFCARE's members are just like all of the other citizens in Lee County in this regard. The Facility will be approximately five miles from the nearest home of any SFCARE member. The evidence demonstrated that the Facility's impacts on the public will be negligible. The Facility's impacts on the members of SFCARE will be no different than its impacts on other members of the community. Several members of SFCARE complained of personal illnesses or physical infirmities, but here, too, the members of SFCARE are like any other typical cross-section of the community. The evidence did not demonstrate that any member of SFCARE would be affected in any manner that would be different than the public at large. Notice of Certification Hearing On July 27, 1990, Lee County published a large notice in the Fort Myers News-Press to announce that Lee County had filed its application for site certification. On July 23, 1991, Lee County published a full page notice in the Fort Myers News-Press concerning the Facility and the certification hearing. Notice of the certification hearing was published by DER in the Florida Administrative Weekly on August 2, 1991--37 days before the hearing started. DER issued a news release concerning the certification hearing on August 9, 1991. Substantial public notice of the certification hearing also was provided by the press and media coverage in the area. Notice of the certification hearing and copies of the DER report about the Facility were provided to EPA, the Federal Lands Manager, and other appropriate officials in compliance with DER rules. Notice of the certification hearing and the copies of the DER report were available for public inspection at several locations in Lee County 30 days prior to the public comment portion of the certification hearing. Ultimate Findings of Fact Lee County has utilized all reasonable and available methods to ensure that the location, construction, and operation of its proposed Facility will produce minimal impacts on human health, the environment, the ecology of the land and its wildlife, and the ecology of state waters and their aquatic life. The evidence establishes that the proposed Facility will comply with all of the applicable and substantive environmental regulations of all of the local, regional, and state agencies involved in the PPSA process. The operational safeguards proposed by Lee County, together with the conditions of certification proposed by the regulatory agencies, are more than sufficient to protect Florida's citizens and its environment. The Facility will create electrical power while providing a regional solution to the solid waste needs of Lee County and Hendry County. The beneficial impacts of the Facility are substantial, while the environmental impacts resulting from the Facility's construction and operation are negligible. Indeed, the Facility will not have any meaningful impacts on Florida's air, water, soil, or wildlife. The conditions of certification attached hereto as Appendix A are reasonable and appropriate to ensure that the construction and operation of the Facility will have minimal impacts on the environment and natural resources of the state and on the welfare of the citizens of Florida. Additionally, the County has agreed to comply with these conditions of certification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Siting Board enter a Final Order and therein: Grant site certification for the Lee County Solid Waste Resource Recovery Facility, subject to the conditions of certification attached hereto as Appendix A; Order that the Department of Environmental Regulation issue PSD construction permit authorizing construction of the Lee County Solid Waste Resource Recovery Facility in accordance with the DER BACT determination and subject to the conditions of certification attached hereto as Appendix A; and Deny and dismiss the Motion to Intervene filed by SFCARE. RECOMMENDED this 9th day of December, 1991, at Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1991.
The Issue Whether an amendment to Construction Permit No. AC35-171755 requested by Meyer Paving & Construction Co. should be issued by the Florida Department of Environmental Regulation?
Findings Of Fact C.A. Meyer's Soil Remediation Unit. C.A. Meyer, among other things, operates a soil remediation unit at 14023 Tiny Morse Boulevard, Clermont, Lake County, Florida. C.A. Meyer previously obtained a permit, Permit No. AC35-171755 (hereinafter referred to as the "Permit"), to construct the soil remediation unit at its present location. The Permit was dated January 9, 1990. The soil remediation unit authorized by the Department and operated by C.A. Meyer thermally removes contamination from petroleum and petroleum products from soil. Contaminates are removed sufficiently for treated soil to be returned to use without concern for the effect of the soil on the environment. The area in which soil is stored prior to treatment has been constructed in accordance with the Department's criteria designed to prevent leaching of contaminants into the ground and the surrounding groundwater. The containment area is covered and groundwater monitoring wells are in place. Contaminated soil is loaded onto a conveyor belt, the soil is monitored to determine the proper rate at which the soil is processed and the soil is moved into a rotating drum that folds the soil into the air within the drum. As the soil is folded in the drum, a burner effectuates decontamination of the soil. After soil is burned, it exits the drum, it is sprayed with water and it is conveyed to a storage area where it is again tested to insure it to insure it has been properly processed. Exhaust from the unit as a result of burning the soil exits through a duct pipe into a primary collection unit. The air passes through a series of filter bags (referred to as the "baghouse") and exits through a stack into the surrounding atmosphere. Permit Conditions. Condition number 11 of the Permit currently requires that C.A. Meyer test the actual petroleum products that have contaminated soils to be treated if contaminated with non-virgin petroleum products. The purpose of the testing is to detect concentrations of certain heavy metals and to provide assurances that the contaminants are not discharged into the air during the decontamination process in concentrations considered hazardous to health. A virgin petroleum product is one that is in its original state, such as gasoline, diesel fuel or kerosene. Non-virgin petroleum products are not in their original state. An example of a non-virgin petroleum product is used oil. Pursuant to condition number 11 of the Permit, C.A. Meyer is required to test the actual non-virgin petroleum product that is believed to be the source of the contamination in the soil that is being processed. It is difficult to implement the requirement that the actual non- virgin petroleum products to be eliminated be tested because the product that contaminated the soil is often unavailable for testing; the product has already leaked into the soil. Petroleum storage tanks are often empty and the contents of the tank have all leaked into the soil to be processed making compliance with condition number 11 of the Permit impossible to comply with. Permit Amendment Requested. In light of the difficulty in complying with condition number 11 of the Permit, C.A. Meyer submitted an application to the Department requesting authority to test samples of the soil to be processed regardless of whether the soil contains virgin or non-virgin petroleum contaminants. The requested amendment eliminates the requirement that the actual non-virgin petroleum be tested. The proposed amendment was submitted to the Department on February 27, 1991, by C.A. Meyer's environmental engineer. The amendment request deals primarily with condition number 11 of the Permit and incorporates the Criteria for Clean Soil contained in Chapter 17-775, Florida Administrative Code, which was promulgated December 10, 1990, after the Permit was issued. In evaluating the requested amendment the Department conducted modeling based on specific site characteristics such as the stack and the temperature and velocity of gas leaving the stack. The Department conducted modeling to insure that, if the amendment is granted, air toxic policies of the State of Florida will not be violated by C.A. Meyer's processing. In its modeling, the Department determined the worst-case dispersion from the stack of emissions which should occur and compared the results to what the Department has determined are levels of emissions which are of "no threat" to the public. Even after adding a safety factor, the results of the modeling indicate that the conditions for emissions of the Department's rules and policies would be exceeded. In particular, the requirements of Chapter 17-775, Florida Administrative Code, concerning limitations on metals, will be exceeded. Chapter 17-775, Florida Administrative Code, includes limitations on the levels of metals which may be released into the air. The level of metals specified in condition 11 of the Permit are substantially below the levels allowed in Chapter 17-775, Florida Administrative Code. On May 2, 1991, the Department issued an Intent to Issue allowing the proposed Permit amendment. The amendment allows C.A. Meyer to test the soil rather than the petroleum product itself. The Department also added four specific heavy metals to be tested consistent with Chapter 17-775, Florida Administrative Code. The proposed amendment to condition 11 of the Permit is an improvement over the existing condition. The Department has reasonable assurances that air standards for toxicity have been and will be satisfied by the C.A. Meyer facility. Emissions from the C.A. Meyer Facility Heavy metals are inorganic compounds with high boiling points. The temperatures reached in the C.A. Meyer facility in treating soil are not high enough to cause metals to boil. To the extent that any metals escape from the soil, they should be filtered in the baghouse. Consequently, most metals contained in soil treated by the C.A. Meyer facility will remain in the soil or the baghouse and will not be released into the air. Based upon actual testing at the C.A. Meyer facility, actual metal emissions are negligible and are considerably below no-threat levels. Emissions have been, and can reasonably be expected to be under the proposed amendment to the Permit, within air quality requirements. The proposed amendment will not adversely impact emission levels from the C.A. Meyer facility. Odors are not caused by emissions of heavy metals. Odors can be caused by volatile organic compounds. The amendment at issue in this proceeding does not involve or modify in any way volatile organic compound limitations of the Permit. Approval of the proposed Permit amendment should have no adverse impact on any odor problems with the C.A. Meyer facility. Ms. Grimes' Concerns. Ms. Grimes raised a number of questions about the current and future operation of the C.A. Meyer facility. Those concerns were generally not, however, supported by competent substantial evidence. Instead, Ms. Grimes relied upon speculation and events which may have occurred in the past and have no bearing on this matter (i.e., the spraying of orange groves). For example, Ms. Grimes' belief that the environment is to blame for many of the health problems being experienced today by the population was not proved by competent substantial evidence. Although many people may share Ms. Grimes concerns and beliefs, the evidence she presented is not sufficient to overcome the evidence of the expert witnesses who testified in this matter on behalf of C.A. Meyer and the Department. Ms. Grimes also presented several documents she obtained from the Department files pertaining to C.A. Meyer concerning potential or actual violations of Department rules occurring at the C.A. Meyer facility. Those violations, however, do not involve emissions of heavy metals or support a conclusion that the proposed amendment which Ms. Grimes has challenged should not be approved.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order issuing the requested Permit modification and dismissing the challenge to the requested modification filed by Ms. Grimes. DONE and ENTERED this 8th day of January, 1992, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1992. APPENDIX TO RECOMMENDED ORDER The Respondents have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Ms. Grimes did not file any proposed findings of fact. C.A. Meyer's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 12-13. 3 17. 4 Hereby accepted. 5 3-4. 6 5. 7 6-7. 8 8. 9 9-10. 10 10. 11 11. 12 10 and 12. 13 18. 14 14-15. 15 See 14-15 and hereby accepted. 16 14-15. 17 13 and 15-16. 18 13, 16 and 20-21. 19 22-23. 20-21 Hereby accepted. 22 24. 23 19. 24 See 25-26 and hereby accepted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 2 9-10. 3 11. 4 12-13 and hereby accepted. 5 17. 6 14-15. 7 20-21. 8 24. 9 26. 10 19 and 22-23. COPIES FURNISHED: Alice K. Grimes 14510 County Road 455 Clermont, Florida 34711 Roger W. Sims, Esquire Lynda L. Goodgame, Esquire Rory C. Ryan, Esquire Post Office Box 1526 Orlando, Florida 32802 Douglas H. MacLaughlin Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
