Findings Of Fact Bayfront commenced construction of the biological waste incinerator here at issue prior to March 21, 1992, the effective date of the moratorium on construction of biological waste incinerators and was exempt from that moratorium. An inspection of the premises on April 9, 1992, (exhibit 5) showed substantial work had been accomplished and the inspector concluded, and DEP's legal counsel concurred, that in order to have achieved the construction progress shown on April 9, 1992, the work had to have been commenced prior to March 21, 1992. Further, a building permit to renovate the building into which the waste incinerator was placed was issued November 12, 1991, (exhibit 7) and a building permit to install a waste incinerator was issued March 4, 1992, (exhibit 6). No contradictory evidence was submitted by Petitioner. Respondent's witnesses testified without contradiction that Bayfront's application for an operation permit was complete in all respects, including certification by a professional engineer; that all test results showed the emissions into the atmosphere were within the prescribed standards; that certain conditions contained in the construction permit as a result of the settlement agreement resolving the challenge to the issuance of the construction permit are contained in the operation permit; that those conditions exceed the conditions required by the rules for incinerators; and that Bayfront affirmatively provided the Department with reasonable assurance based on plans, test results, installation of pollution control equipment, or other information that the operation of the incinerator will not discharge, emit, or cause pollution in contravention of DEP's standards as contained in Rule 17-4.070(1), Florida Administrative Code. This testimony is accepted as factual. The draft permit authorizes Bayfront to burn a maximum of fifteen hundred pounds per hour of waste. Each time a test run is conducted to check the emissions, the pounds of waste burned per hour during the test establishes an upper limit on the rate of burning waste. As explained by James L. McDonald, the engineer processing air pollution applications for the Department at Transcript p. 50-51: The construction application asked for a permit at fifteen hundred pounds per hour. So the construction permit is -- the condition that we would want, the Department would normally want the test within ten percent of that fifteen hundred pounds an hour in order to go ahead and issue, if its in total compliance, to issue an operating permit at fifteen hundred pounds. Since the test came in at a reduced rate, below the ten percent, then that's why in the operating permit condition twenty-one says you're limited to the rate that we're, the test was conducted. [sic] Now, also, its interesting to note that in their test, if you look at their runs two and three -- because there are rules that say the Department could accept two runs out of three if a condition occurred that was out of their control -- if your average runs two and three, they would average within ten percent of fifteen hundred. So, as a permit processor, it even gave me some reasonable assurance that they could probably comply with the fifteen hundred. But, since the test of all three runs came in as an average of twelve fifty-one, then the operating permit included that twelve fiftyone. And like the real world out there, just like power plants, when it comes time for their annual testing, if they are at half speed, their business is down, it allows them to test at half speed. We won't require them to go up to full speed. They can test at half speed. But then they are limited there. And if they go above it at a later date they would have to retest. So they can work their way back up to where the Department has reasonable assurance that the upper limit of fifteen hundred pounds -- that's where later in condition twenty-one of the operating permit it says but in no case shall the maximum permit or burning rate of fifteen hundred pounds per hour be exceeded. Petitioner's second two grounds for challenging the issuance of the operation permit was answered by McDonald's testimony, above quoted, and this evidence was not rebutted by Petitioner. The primary thrust of the evidence presented by Petitioner was that Bayfront had somehow misled the City of St. Petersburg regarding the operation of the incinerator and had not complied with all of the City's requirements in other respects, ergo, Bayfront could not be relied on to comply with the conditions in the operation permit. This evidence is irrelevant to the determination of whether or not the operation of the incinerator complies with all of the Department rules. The conditions of the operating permit require Bayfront to submit periodic reports to the Department from which the Department can determine whether the conditions in the permit are being complied with. Furthermore, the Department requires the permittee to notify the Pinellas County Department of Environmental Management at least fifteen days prior to the date on which each formal compliance test is to begin (Permit Condition No. 22) to allow them to witness the test, if desired. The construction permit, complying with the settlement agreement, required Bayfront to adhere to more frequent testing and more extensive testing then is required by the rules for operating biological waste incinerators. All of the tests and reports submitted by Bayfront on the operation of this incinerator met all of the requirements in the construction permit and the draft operation permit.
Recommendation It is RECOMMENDED that Bayfront Medical Center be issued Permit No. AO52- 224337 to operate a biological waste incinerator at Fifth Avenue South and Eighth Street, St. Petersburg, Florida. DONE AND ENTERED this 16th day of November 1993 in Tallahassee, Leon County, Florida. K. N. AYERS 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 16th day of November 1993. COPIES FURNISHED: Adrian W. Helm, Esquire 925 14th Avenue North St. Petersburg, Florida 33712 Daniel N. Burton, Esquire Thomas K. Maurer, Esquire Terri L. Gillis-Tucker, Esquire Foley and Lardner 111 North Orange Avenue, Suite 1800 Orlando, Florida 32801 W. Douglas Beason, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact In their Prehearing Stipulation, filed on August 14, 1990, the parties stipulate to the following: Container Corporation of America (CCA) owns and operates a pulp and paper mill in Fernandina Beach, Nassau County, Florida. The mill is authorized by various Department of Environmental Regulation (DER) permits to discharge industrial wastewater and emit air pollutants and is subject to DER's power to enforce such permits, as well as Chapter 403, F.S. and DER Rules. DER issued an Administrative Notice of Violation charging CCA with various wastewater violations, an filed a judicial action alleging violation of air pollution standards at the mill. The Notice of Violation was issued on April 24, 1990, OGC Case NO. 90-0346; and the judicial action was filed in the Circuit Court of Nassau County in June of 1989, Civ Case NO. 89- 562-CA. CCA has not yet requested a hearing on the merits of the Notice of Violation; it requested an informal conference on the charges, which tolls the time for requesting a hearing. A verbal settlement has been reached, but is not yet reduced to writing. Neither DER nor CCA has requested a hearing on the merits in the judicial action. The allegations in the complaint are, however, at issue and, absent settlement, will be tried by the court. On June 27, 1990, DER gave notice of its intent to deny an operating (renewal) permit for the No. 5 Recovery Boiler and Smelt Dissolving Tank because of the pending judicial action. Subsequent to the filing of this rule challenge petition, DER notified CCA that the Notice of Intent to Deny renewal of CCA's operating permits for the NO. 5 Recovery Boiler and the Smelt Dissolving Tank dated June 27, 1990 was issued erroneously and that the permits would be issued. [Issuance is based on expiration of the 90-day deadline for denial rather than the agency's interpretation of the rule under scrutiny.] On June 28, 1990, DER notified. CCA that it may not be able to issue.. the requested construction permits [for a new batch digester and brown stock washer] due to the pending Department enforcement action ... CCA was notified that its applications for construction of the proposed new batch digester and brown stock washer were incomplete. If the judicial action is not resolved at the time action must be taken on the application for construction permits for the new batch digester and brown stock washer, the permits will be denied in reliance on Rule 17-4.070(5)(first three sentences). By a separate letter on June 28 1990, DER also notified CCA that until the Notice of Violation was resolved the application for the construction permit for the new paper machine would be held in abeyance. CCA has been notified that its application for a construction permit for its new proposed paper machine is incomplete. Subsequent to the filing of this rule challenge petition, DER has notified CCA it will not hold CCA's application for a construction permit for its proposed new paper machine in abeyance upon the submission of the requested material, or its request to process the application without the material, but will process the permit at that time and issue either an intent to issue or deny. If, however, the Notice of Violation is not resolved by the time action must be taken on the application the permit will be denied in reliance on Rule 17-4.070(5). Until or unless the judicial action against CCA filed by DER in June 1989 is resolved, Rule 17-4.070(5)(first three sentences) requires DER to deny any permit applications filed by CCA relating to the Multiple Effect Evaporators (2), Nos. 5 and 7 Power Boilers, including electiostatic precipitators, Recovery Boilers (2) and Pulp Digester Systems (2) located at its Fernandina Beach mill. Each of the foregoing sources operate by virtue of permits issued by DER. The permits periodically expire and must be renewed. DER interprets the first sentence of Rule 17- 4.070(5) to mean that no permits for the sources listed in paragraph 10 above can be renewed unless and until the pending civil action against CCA is resolved, and the issue of reasonable assurance is not reached. [As to Intervenor Florida Pulp & Paper Association) The Florida Pulp & Paper Association is a trade association representing the vital interests of its members -- the pulp and paper companies operating mills in Florida or discharging to state waters. Rule 17-4.070(5), F.A.C., the rule which is the subject of this proceeding, regulates and affects the substantial interests of the members of the Association. Each of the mills operate [sic] under various environmental permits issued by DER. Permits must be obtained when existing permits expire or when sources are replaced or expanded. The rule at issue forbids the issuance of such permit to any source or for any activity against which the Department has filed a Notice of Violation or judicial enforcement action, which remain(s) pending. The Association's scope of interest and activity includes participating in the development of rules proposed by DER membership. Here, a senior DER official has indicated that the rule at issue will henceforth be uniformly and strictly applied, industry-wide. Accordingly, a determination of invalidity of this rule is an appropriate remedy for the Association to seek on behalf of its members
The Issue Whether Respondent is in violation of various provisions of Chapter 403, Florida Statutes, as alleged in the Notice of Violation and Orders for Corrective Action dated October 30, 1991.
Findings Of Fact BEI's composting facility is a potential source of water and air pollution and to operate the facility, BEI requires a permit issued by DER. The original permit issued to DER for this facility expired on June 1, 1991 and has not been renewed. Although its permit had expired, BEI was allowed to continue to operate while informal proceedings were ongoing between BEI and DER. When these informal proceedings were terminated by DER on May 20, 1992, further operation of this composting facility was in violation of Chapter 403.707(1), Florida Statutes, and Rule 17-709.400(1), Florida Administrative Code. On at least two occasions while this composting facility was in operation, the air around the facility was polluted by foul odors. During the period following the expiration of BEI's license, BEI failed to submit monthly operating reports and did not conduct quarterly samplings and testing of the compost and submit the testing to DER as required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary of the DER enter a Final Order finding that BEI has violated Section 403.161(1)(b), Florida Statutes, on each of five counts; and that BEI should immediately cease operation of its solid waste facility, volume reduction plant, until and unless it obtains an appropriate and valid permit from DER and in that regard, BEI shall: Immediately cease acceptance of all materials on the property. In the event that Respondent does not receive a permit from the Department to resume operations at the facility, within 90 days of the effective date of the Final Order, Respondent shall remove all solid waste from the property to an approved solid waste management facility and provide the Department written documentation of its disposal within 30 days of removal. In the event that Respondent does receive a permit from the Department to resume operation at the facility, Respondent shall remain in strict compliance with all terms and conditions of such permit. Within 30 days of the effective date of the Final Order, Respondent shall, if it has not already done so, provide the following to the Department: All records of testing and monitoring conducted on the compost material since January 1, 1990, including daily reports on the temperature and moisture content of compost material, and any testing of compost material conducted prior to distribution. All records documenting application rates of stillage, manure, and leachate to the compost withdrows since January 1, 1990. All records, documenting distribution of composted or mulch material, including amount of compost or mulch material delivered, date of delivery, specific destination of compost or mulch, and intended use of compost or mulch material delivered, since January 1, 1990. All records documenting amount of yard trash received at the facility since January 1, 1990. Within 30 days of execution of the Final Order, Respondent shall make payment to the Department for costs and expenses in the amount of $500.00. Payment shall be made by, cashier's check or money order to the "State of Florida Department of Environmental Regulation". Payment, specifying Office of General Counsel Case No. 91-2006, shall be sent by certified mail to Administrator, Division of Waste Management, Department of Environmental Regulation, 3804 Coconut Palm Drive, Tampa, Florida 33619. DONE AND ENTERED this 16th day of June, 1993, in Tallahassee, Florida. K. N. AYERS 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 16th day of June, 1993. COPIES FURNISHED: Tracey S. Hartman, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Howard C. Batt, Esquire 611 Druid Road East Suite 712 Clearwater, Florida 34616 Virginia B. Wetherell, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Ken Plante, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue in this case is whether the Department of Environmental Protection ("DEP") should issue an air construction permit authorizing Oleander Power Project, L.P. ("Oleander"), to build and operate an electrical power plant in Brevard County, Florida, that includes five combustion turbines and two fuel oil storage tanks (the "Project").
Findings Of Fact Oleander seeks an air construction permit to build and operate an electrical power plant in Brevard County, Florida. Oleander provided reasonable assurances that the Project will comply with all of the conditions and emissions limitations prescribed by DEP in the Draft Permit. The Project received adequate review from the state agency responsible for regulating the Project. DEP reviewed Oleander’s application, requested and received additional information concerning the Project, and independently verified the impacts assessments contained in the application. The Project received adequate review from Brevard County. Oleander executed a Stipulated Settlement Agreement with Brevard County (the "Brevard County Agreement") in which Oleander agreed to comply with restrictions concerning the Project’s hours of operation, minimum buffers, noise, odor, vibrations, traffic, and other issues. The Brevard County Agreement provides additional assurances that the Project will not adversely impact the public. Members of the public received adequate notice of the Project and had sufficient opportunity to make public comments. On March 3, 1999, DEP held a public meeting in Brevard County to receive public comments regarding Oleander’s application. On March 26, 1999, DEP issued its Public Notice of DEP’s intent to grant the Draft Permit to Oleander. On April 8, 1999, DEP’s Public Notice was published in Florida Today. On May 13, 1999, DEP held a second public meeting in Brevard County to receive public comments concerning Oleander’s application. Members of the public had an opportunity during the administrative hearing to enter their comments on the record. The Project includes the construction and operation of five 190 megawatt ("MW") combustion turbines that will be used to generate electricity. The Project also includes the construction and use of two fuel oil storage tanks, two water storage tanks, an administrative building, a stormwater management system, and other associated and ancillary facilities. The Project is a "peaking" power plant. It will operate only during times of peak demand caused by hot or cold weather or storm events. The Draft Permit authorizes Oleander to operate the Project’s combustion turbines for a maximum of 3,390 hours per year, or approximately 39 percent of the available hours in a year. During the remainder of the year, the combustion turbines will not operate and will not have any airborne emissions. Based on the historical experience of other peaking power plants in Florida, the combustion turbines are expected to operate less than 800 hours per year. Oleander’s combustion turbines will be the most advanced turbines used in Florida for peaking service. Oleander’s turbines will be more efficient, in terms of emissions and producing power, than the turbines currently used at other peaking plants in Florida. The Project will use General Electric ("GE") Frame 7FA combustion turbines. These turbines are capable of complying with the emission limits and requirements in the Draft Permit. Oleander will hire staff or train their own staff to operate the Project in compliance with the Draft Permit. Oleander’s parent company already has a training program for its plant operators. Oleander has operated similar projects successfully. The primary fuel for the power plant will be natural gas. Natural gas is the cleanest burning of all fossil fuels. In the event that natural gas becomes unavailable, the Draft Permit authorizes use of low sulfur distillate fuel oil ("fuel oil") for the equivalent of 1,000 hours of full-load operations per year. Fuel oil contains a maximum of 0.05 percent sulfur, is 35 to 50 percent more expensive than natural gas, and imposes economic incentives for Oleander to minimize the use of fuel oil. Water needed for the Project will be provided by the City of Cocoa. Oleander will not install any on-site wells to supply water to the Project. All of the wastewater from the Project will be sent by pipeline to the City of Cocoa’s wastewater treatment plant. The Project will not discharge any industrial wastewater on-site. The Project will be built on a site that is located northeast of the intersection of Interstate 95 ("I-95") and State Road ("SR") 520 in unincorporated Brevard County (the "Site"). The Site contains approximately 38 acres of land. The Site is appropriate for use as an electrical power plant. The Site already is zoned for industrial purposes. The surrounding areas are primarily zoned for industrial uses. An existing electrical substation is located on the north side of the Site. An existing electrical transmission line corridor is located on the west side of the Site. Townsend Road is located on the south side of the Site. An existing natural gas pipeline is located nearby, on the west side of I-95, and can provide gas for the Project. Residential, commercial, and industrial development within a three kilometer radius of the Site is minimal. The Project will be compatible with those industrial and commercial land uses that are located in the area near the Site. The closest residential areas are more than 1,400 feet from the Site. The Site is compatible with the closest residential neighborhoods. The Site and adjacent off-Site areas provide a significant buffer to the closest residential areas. The Site can be developed without causing adverse impacts on residential areas. Combustion turbines currently operate at many locations in diverse population centers in Florida. For example, combustion turbines are operated within 800 feet of the Shands Hospital at the University of Florida, within 1,200 feet of Cinderella’s Castle at Disney World’s Magic Kingdom, and near the Lake Worth High School. Combustion turbines also are located near several residential neighborhoods in the state. DEP and Oleander evaluated the Project in accordance with requirements prescribed in DEP’s Prevention of Significant Deterioration ("PSD") program. As part of the PSD review, a determination was made of the Best Available Control Technology ("BACT"). A BACT determination involves a case-by-case analysis of those air pollution control technologies that are feasible and can achieve the maximum emission reductions. A BACT determination also requires an analysis of the costs, environmental impacts, and energy impacts associated with the use of each one of the proposed control technologies. A BACT determination results in the establishment of an emission limit for each pollutant of concern. In this case, DEP determined the appropriate BACT limits for the Project’s emissions of carbon monoxide ("CO"), oxides of nitrogen ("NOx"), sulfur dioxide ("SO2"), sulfuric acid mist ("SAM"), volatile organic compounds ("VOCs"), particulate matter ("PM"), and particulate matter less than ten microns in diameter ("PM10"). (PM and PM10 are referred to herein as "PM/PM10.") BACT emission limits applicable to the Project are set forth in the Draft Permit, and are incorporated by reference in this Recommended Order. DEP determined that when the Project operates on natural gas, BACT for NOx is an emission limit of 9 parts per million ("ppm"), corrected to 15 percent oxygen. This emission limit is based on the use of dry low NOx ("DLN") combustion technology utilized in the combustion turbines included in the Project. The proposed NOx emission limit of 9 ppm is the lowest emission limit in Florida for simple cycle peaking power plants and sets the standard for similar facilities throughout the United States. DEP determined that when the Project operates on fuel oil, BACT for NOx is an emission limit of 42 ppm, corrected to 15 percent oxygen. This emission limit is based on the use of DLN and wet injection technology. Wet injection technology involves the injection of either water or steam directly into the combustor to lower the flame temperature and thereby reduce the formation of NOx. The U.S. Fish and Wildlife Service ("USFWS") provided comments to DEP concerning the Project. In their comments, the USFWS suggested that the NOx emission limit should be 25 ppm when the Project is operating with fuel oil. However, the USFWS’ suggestion was based on the USFWS’ misreading of the provisions of other PSD permits. When read correctly, those permits establish the same NOx emission limit when firing fuel oil that DEP established in this case, i.e., 42 ppm. In its BACT determination, DEP considered whether a selective catalytic reduction ("SCR") system should be used to reduce the Project’s NOx emissions. SCR is an add-on NOx control system in which ammonia is injected into the exhaust gases of a combustion turbine. The exhaust gases are then exposed to a catalyst where the ammonia and the NOx react to form nitrogen and water. SCR does not represent BACT in this case and should not be required for the Project. The use of SCR would impose excessive costs on the Project, adversely impact the Project’s energy efficiency, and cause increased emissions of particulate matter and ammonia. BACT for CO and VOCs is based on the Project’s use of an advanced combustor design, i.e., DLN technology, and good combustion practices. The use of an oxidation catalyst for CO removal is not required because an oxidation catalyst is not cost effective for the Project. BACT for PM/PM10, SO2, and SAM is based on good combustion practices and the use of clean low sulfur fuels. The PSD program establishes separate ambient air quality standards for Class I and Class II areas defined in Florida Administrative Code Rule 62-204.360(4). (Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.) The Project is located in a Class II area. The Project’s impacts on ambient air concentrations will be below all applicable PSD standards ("increments") prescribed in Rule 62-204.260(2) for Class II areas. The nearest PSD Class I area is the Chassahowitzka Wildlife Refuge (the "Refuge"). The Refuge is approximately 180 kilometers from the Site. An analysis of the Project’s impacts on the Refuge is not required because the Refuge is more than 150 kilometers from the Site. The impacts from the Project on the closest Class I area are expected to be insignificant within the meaning of Rule 62-204.200(29). DEP does not require Oleander to evaluate the cumulative impacts caused by the Project and other major sources of air pollution in the relevant Class II area. However, Oleander evaluated the Project’s impacts together with the impacts of the Florida Power & Light Cape Canaveral Plant, the Orlando Utilities Commission’s Indian River Plant, and the Orlando Utilities Commission’s Stanton Energy Center. The Project itself will not have any measurable effect on the ambient conditions resulting from the operation of all of these sources. DEP has adopted primary and secondary Ambient Air Quality Standards ("AAQS") in accordance with requirements adopted by the U.S. Environmental Protection Agency ("EPA"). Primary standards are designed to create an adequate margin of safety for the protection of the public health, including the health of the young, the old, and those with respiratory diseases such as asthma. Secondary standards are designed to protect the public welfare from any known or anticipated adverse effects of air pollution. AAQS are reviewed every five years by scientists and physicians in light of the most recent scientific studies and data. In Brevard County, existing air quality is better than levels allowed under AAQS. Brevard County is classified as an attainment area. Oleander analyzed the Project’s potential impacts on ambient air quality in Brevard County in compliance with the applicable DEP requirements for such an analysis. Oleander’s analysis was based on conservative assumptions intended to over- estimate impacts from the Project. For example, the analysis assumed that the Project would operate continuously throughout the entire year, even though the Project’s annual operations will be limited to a maximum of 3,390 hours. In addition, Oleander assumed that the Project would use fuel oil for the entire year, even though the Project will be limited to firing fuel oil for a maximum of 1,000 hours per year. The Project’s maximum impacts on ambient air quality will be 0.6 percent or less of the applicable AAQS for each criteria pollutant. Oleander's analysis demonstrates a wide margin of safety for public health and welfare. The Project’s maximum potential impacts are less than the EPA "significant impact" levels. Consequently, the Project’s impacts are deemed insignificant from a regulatory perspective, and more detailed analyses of the Project’s impacts on ambient air quality are not required under applicable PSD requirements. The Project is not expected to cause any meaningful impacts on air quality in any neighborhood in Brevard County. In all neighborhoods, the Project’s impacts on air quality will be insignificant. Similarly, the Project’s impacts on soils, vegetation, wildlife, and visibility will be insignificant. The Project also will not cause any significant growth-related air quality impacts. The cumulative impacts from the Project and other sources of air pollution in the area will be insignificant. When all of these sources are considered together, the maximum impact from their combined emissions will be 50 percent or less of the applicable AAQS. The PSD program does not require Oleander to perform any ambient air quality monitoring for any pollutant prior to the time that construction of the Project commences because the Project’s air quality impacts will be less than the applicable DEP de minimis levels. Pre-construction monitoring for ozone is not required unless a facility will have VOC emissions equal to or greater than 100 tons per year. The Project’s maximum potential VOC emissions will be 64 tons per year. Therefore, the Draft Permit does not require Oleander to install any ozone monitors. DEP maintains two ambient air quality monitors in Brevard County to measure ozone concentrations. DEP also has ambient air quality monitors for ozone in Volusia, Seminole, Orange, Osceola, and St. Lucie Counties. The ambient air quality data from DEP monitors demonstrate that the ozone concentrations in Brevard County are below the applicable AAQS. Further, the data demonstrate that ozone is a regional issue because the ozone levels in the region tend to rise and fall at the same time and to the same degree. A requirement for Oleander to install an additional monitor in Brevard County would be unnecessary and unjustified. The impacts from the Project on ozone and other ambient air quality parameters are so small that the impacts could not be measured with an additional monitor. An additional monitor in Brevard County would provide no meaningful benefits when assessing whether Brevard County is meeting the AAQS for ozone and would cost between $75,000 and $100,000 a year to install and operate. Emissions from the Project will not cause any significant impact on the water quality of water bodies in Brevard County. There will be minimal, if any, "fallout" of particles into nearby waters, including the St. Johns and Indian Rivers. The maximum amount of nitrogen that could be deposited annually as a result of airborne NOx emissions from the Project is 0.0007 grams per square meter ("g/m2"). By comparison, the current nitrogen deposition rate from other sources in the area is 0.4 g/m2. Thus, the Project’s impact on nitrogen deposition in the area will be only a fraction of the deposition that is occurring already. Airborne emissions from the Project will not cause or significantly contribute to a violation of any ambient air quality standard or PSD increment. The Project complies with all applicable DEP air quality requirements, including the applicable policies, rules, and statutes.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED that: DEP enter a final order granting Oleander’s application for an air construction permit for the Project, subject to the conditions and limitations contained in the Draft Permit. DONE AND ENTERED this 27th day of September, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1999. COPIES FURNISHED: F. Perry Odom, General Counsel Department of Environmental Protection The Douglas Building 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Office of General Counsel Department of Environmental Protection The Douglas Building 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Clarence Rowe 418 Pennsylvania Avenue Rockledge, Florida 32955 David S. Dee, Esquire Landers & Parsons 310 West College Avenue Tallahassee, Florida 32301 W. Douglas Beason, Assistant General Counsel Scott A. Goorland, Assistant General Counsel Department of Environmental Protection The Douglas Building 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issue is whether Prestige Gunite of Orlando, Inc. (Prestige) may use an air general permit pursuant to Florida Administrative Code Rule 62-210.300(4)(c)2. to operate a concrete batch plant in an unincorporated part of Lake County, Florida.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: A. The Parties Prestige is a wholly-owned subsidiary of Prestige Gunite, Inc.; the parent corporation is located at 7228-C Westport Place, West Palm Beach, Florida. The owner of the parent corporation was identified as Brian A. Mahoney, who also owns and controls a number of other entities in the State that are engaged in the business of producing cement. The record does not disclose the names of all of the corporate entities, but it does show that Mr. Mahoney has formed two corporate entities who operate at the same location in Lake County, Florida: Prestige Gunite of Orlando, Inc. (the applicant here), and a limited liability corporation known as Prestige/AB Ready Mix, LLC, which has a different parent corporation. The latter entity operates a ready-mix cement plant on the southern part of the property on which the applicant's operations will be located. In addition, the record shows that Mr. Mahoney operates at least two other cement plants in the State, one a "smaller facility" at Ocala, Florida, whose name and corporate status are unknown, and B & B South Florida, Inc., which operates a facility at an undisclosed location. Although these entities are owned and controlled by one individual, the applicant has represented without dispute that all of the cement plants are operated as separate entities, each with its own permit issued by the Department. The Department is an agency of the State that is authorized under Chapter 403, Florida Statutes (2006), to evaluate applications for air emission permits that are used by cement batching plants. The use of the permit in issue here was reviewed by the Department's Central District Office in Orlando, Florida. Petitioners all reside in close proximity to the proposed facility. In addition, their homes are in closer proximity to the existing ready-mix facility. Through testimony at hearing, Petitioners established that their substantial interests are affected by the new facility and they have standing to challenge the use of the permit. Background A general permit is established by rule and constitutes a "simplified procedure" used by the Department to allow a facility to begin operations, as compared with other types of permits issued by the Department. Department standards provide that if a facility such as that proposed by the applicant emits less than 100 tons per year of particulate matter and is therefore a Non-Title V source, it qualifies to operate under a general permit, assuming that all other criteria are satisfied. Under this process, the Department reviews the notification (application) for compliance with two applicable rules: Florida Administrative Code Rule 62-296.414, which establishes the substantive criteria for using a general permit for a concrete batching plant, and Florida Administrative Code Rule 62- 210.300(4)(c)2.a.-f., which contains the procedural requirements for obtaining a Non-Title V Air General Permit. Unless the Department decides to deny the application, no formal proposed agency action is issued. Therefore, none was issued in this case. Absent the filing of a protest by a third party, the applicant may then use the general permit after the time for third parties to file a challenge has expired. The facts underlying the filing of the instant application are somewhat confusing and form the basis, in part, for the allegations in the two Petitions filed in opposition to the notification. In May 1999, Prestige Gunite of Orlando, Inc., gave notification of its intention to use a general air permit to operate a concrete batching plant at 17600 State Road 50, near Clermont, Florida (also known as the Clermont Yard). Because no challenge to that notification was made, the applicant was issued Permit No. 7775088-001-AG, which became effective on July 8, 1999, and expired on July 9, 2004. Presumably, Prestige operated a gunite batching plant under that permit during that five-year period. In 2001, Prestige/AB Ready-Mix, LLC (then known as Prestige/AB, Inc.) applied for another air general permit at the same location (the Clermont Yard) to operate a concrete batching plant.3 (Apparently, multiple batching plants are authorized at the same geographic location so long as the total particulate of all facilities at that location does not exceed 100 tons per year, which would cause the facilities to lose their Non-Title V status.) Because no third party objections were filed, and all criteria were satisfied, Permit Number 7775088-003-AG was issued. Although the permit was scheduled to expire in 2006, it was recently renewed for another five years and will now expire on August 3, 2011. See Prestige Exhibit 2. (Florida Administrative Code Rule 62-4.540(13) limits the use of an air general permit to five years.) Prestige says that it incorrectly assumed that the air general permit issued to Prestige/AB Ready-Mix, LLC, in 2001 (and renewed in August 2006) also authorized it to continue to operate a gunite batching plant at the Clermont Yard after the first air general permit issued to Prestige Gunite of Orlando, Inc., expired in 2004. This explanation seems unusual, given the fact that the applicant's owner operates multiple permitted cement facilities throughout the State and should be familiar with the permitting process. In any event, Prestige continued to operate a gunite batching plant at the Clermont Yard without a permit. Apparently prompted by numerous and repeated complaints from nearby residents over air emission concerns from both operations, the Department eventually conducted an investigation of both facilities. Besides finding that emissions standards and hazardous waste rules were being violated, the Department discovered that Prestige was operating a gunite facility without a permit. On May 31, 2006, the Department issued a Warning Letter to the parent corporation advising that it must cease gunite operations until a permit was obtained. Despite the Warning Letter, operations at the facility continued, which prompted a second letter from the Department on August 29, 2006, advising that formal enforcement action would be taken unless operations were terminated. In early September 2006, operations ceased and have not resumed pending the outcome of this proceeding. On July 31, 2006, Prestige filed an Air General Permit Notification Form to notify the Department of its intent to use both a new and existing air general permit for its gunite batching plant at the Clermont Yard. This application was denied by the Department on August 29, 2006, because of "unconfined emissions," that is, the applicant had failed "to take reasonable precautions to contain particulate emissions from truck loading operations." During this same period of time, a meeting by the Central District staff and the applicant was held and on August 31, 2006, Prestige filed a second Air General Permit Notification Form advising that it intended to operate a concrete batching plant at the Clermont Yard. A new permit, rather than a renewal of the old permit, was sought since the original permit had expired in 2004. Thus, it was not necessary for Prestige to surrender any existing permits, a requirement found in the application form. Because the Department concluded that all rule criteria had been satisfied, it took no action regarding the application. On August 31, 2006, Prestige Gunite, Inc. (as opposed to Prestige Gunite of Orlando, Inc., which had filed the notification) caused to be published in the The Daily Commercial, a newspaper of general circulation in Lake County, a Public Notice of Application for a General Permit. The following day, a similar notice was published in the South Lake Press, also a newspaper of general circulation published in Lake County. On September 21, 2006, Mr. Koehnlein, who lives just east of a vacant lot on the eastern side of the site, filed his Petition challenging the use of the permit on numerous grounds. (Mr. Koehnlein's Petition was actually filed in response to the Department's notice of intent dated August 29, 2006, to deny the first application filed by Prestige. However, it was treated as a request for a hearing in response to the second notification filed by the applicant.) On the same date, and then through counsel, Petitioners, Aaron and Amy Wright, Joseph Maxwell, Donald Stone, and Marlene Matthews, who live in a residential subdivision immediately south of the site, filed their Petition challenging Prestige's use of the permit. Although numerous allegations were raised in the Petitions, most were struck by Order dated November 14, 2006, leaving only the allegation of whether Prestige is qualified to use the general permit by meeting the applicable requirements under Florida Administrative Code Rules 62-210.300(4)(c)2. and 62-296.414. The Permit The Notification filed by the applicant indicates that the facility will be located at 17600 State Road 50 near Clermont, Florida. In broader geographic terms, the facility is located just south of State Road 50 (which runs in an east-west direction), and it appears to be just west of the Florida Turnpike and approximately half way between the Cities of Winter Garden (in Orange County) and Clermont (in Lake County). The site is bordered by State Road 50 to the north, a mini-storage facility to the west, a light industrial area and vacant lot to the east, and as more fully discussed below, a residential area to the south. At least since 1985, a residential subdivision has occupied the area immediately south of and adjacent to the site of the proposed facility.4 For many years, the subject property just north of the subdivision was owned by Kelly Construction Company (Kelly) and remained vacant. At some point after 1985, however, Kelly began using the site as a gravel pit and commenced excavation operations as close as forty feet to the back property line of the homes in the subdivision. According to one long-time resident, Kelly then began using the vacant land as a dumping site for building materials and illegal trash. After a complaint was filed, in 1998 the Department shut down the landfill operations and a substantial berm was constructed between the subject property and the subdivision. Around 1999, Prestige's parent company either purchased or obtained authorization to use the property and commenced operations shortly thereafter under the permit issued to Prestige Gunite of Orlando, Inc. It also reduced the size of the berm between the plant operations and the subdivision property line to approximately seventy-five feet. Prestige's gunite facility will share a six-acre tract of property already used by Prestige/AB Ready Mix, Inc., under a permit obtained by that entity in 2001. The gunite portion of the business will use the northern part of the property, while the ready-mix operations are located on the southern part of the tract, which lie less than a hundred feet or so from the back property line of the closest homes. Access to both operations will be from State Road 50, which lies directly north of the property. In addition, there is a truck maintenance facility on the site, which will perform maintenance work on vehicles for both operations. The proposed gunite facility consists of an existing cement storage silo containing dry powdered cement, sand storage areas, and office space. The finished product (gunite) is used in the construction of swimming pools. The dry powdered cement will be loaded into the rear compartment of the cement trucks, while sand is loaded by a front end loader into the front compartment on the truck. The sand is stored in nearby storage piles and will be covered by tarpaulins when not in use. The materials are then transported to a job site, off-loaded, mixed with water, and sprayed into a swimming pool shell. These operations are in contrast to the existing ready-mix operations now being conducted on the southern half of the property, which involve the on-site mixing of cement, sand, aggregate, fly ash, and water to create cement, the loading of the wet mixture into trucks, and the hauling of the wet cement to the job site. In addition, the ready-mix cement trucks require continual cleaning on site, which creates a noisy environment for the surrounding area. Permit Requirements Under Florida Administrative Code Rule 62-296.414, which contains the substantive requirements for using the permit, an applicant must agree to comply with various requirements set forth in the rule. They include requirements relative to stack emissions, unconfined emissions, test methods and procedures, and compliance demonstration. Although the application and supporting documentation reflect that each of the above requirements has been met, perhaps the most relevant requirements to Petitioners' concerns are the two that the owner "limit visible emissions to 5 percent opacity" and "take reasonable precautions to control unconfined emissions from hoppers, storage and conveying equipment, conveyor drop points, truck loading and unloading, roads, parking areas, stock piles, and yards." Fla. Admin. Code R. 62- 296.414(1) and (2). To control unconfined emissions, Prestige will operate water and sweeper trucks (which are shared with the ready-mix operation) that will periodically water the grounds during hours of operation and remove excess materials from roads and other loading areas which might otherwise be carried by the wind to surrounding neighborhoods. Prestige will place tarpaulins over sand piles, when not in use, to prevent sand from being blown out of the yard. To control stack emissions, a bag system has been installed on top of the silo in which the dry powdered cement is stored. This is intended to reduce emissions that may be generated from the gunite silo during loading and unloading operations. The baghouse will be periodically inspected and bags changed on a regular basis. Also, a shaker system is automatically initiated during the loading process which reduces emissions by moving cement and cement dust down into the silo rather than up and out of the silo. Further, the lid on the chute (which fits onto the opening of the truck where the material is loaded) has been modified to prevent sand or cement from "smoking" up and causing an emission problem. Prestige acknowledges that prior to shutting down operations in early September 2006, it experienced an emissions problem with the truck loading operation which will be corrected by the modification of the lid. Finally, within thirty days after operations are commenced, Prestige must conduct a visible emission test on each dust collector exhaust point. The procedural requirements for obtaining a Non-Title V Air General Permit to operate a concrete batching plant are found in Florida Administrative Code Rule 62-210.300(4)(c)2. and simply require that the owner (Prestige) provide a completed Concrete Batching Plant Air Permit Notification Form, agree to comply with the requirements of Florida Administrative Code Rule 62-296.414 (cited above), submit notification to the Department in the event the site of the plant is relocated, agree to meet certain requirements if nonmetallic minerals are processed, and that if more than one relocatable concrete batching plant is located at the same location, agree that the total operations would not be a Title V source. The record shows that each of these requirements has been met. Petitioners' Concerns Petitioners presented a wide array of concerns, most of which are not relevant to the narrow issues in this case and instead appear to be related to the operations of the ready-mix plant or matters outside the jurisdiction of the Department.5 Their undisputed testimony is that the occupants of the homes which lie near and adjacent to the six-acre site are now, and have been for years, the recipients of dust and other particulate matter in such quantities as to force them to keep their windows closed throughout the year and prevent them from enjoying any type of outside activity in the area. Virtually all of Petitioners and their witnesses testified about constant respiratory ailments which they or members of their family suffer from due to the air emissions from the cement plants. These ailments began after the adjoining property was converted to a cement plant. They also pointed out that vehicles which are not parked in enclosed garages are covered by dust after a relatively short period of time. For example, cars that are washed in the afternoon and parked in front of their owners' homes that evening will be covered in dust the next morning. See Petitioners' Exhibits 18A, B, and C. While not a consideration in this case, water truck and sweeping operations at the gunite facility will begin at 6:00 a.m., and operations have begun as early as 2:00 a.m. or 3:00 a.m. at the ready-mix facility. Thus, beginning early in the morning and continuing throughout the day, the neighbors are subjected to the sound of large cement trucks being driven throughout the yard while being loaded with cement, cleaned, or mechanically repaired. At the same time, Petitioners have indicated that the sale of their homes is not possible due to the operation of the cement plants, and one witness stated that it was unlikely he could even rent his home to a third party due to the issues facing the neighborhood. Petitioners uniformly expressed dissatisfaction with the Central District Office's handling of their long-standing complaints (beginning years ago) and the amount of time it took for the Department to actually perform an inspection of the adjoining property. After conducting an initial inspection in November 2005 and a follow-up inspection in March 2006, presumably because of Petitioners' complaints, in October 2006 the Department entered into a Short Form Consent Order with both Prestige and the ready-mix entity. To resolve a number of violations, including operating without a permit, the Department required Prestige to pay a $10,800.00 civil fine and take corrective action. (Also, Prestige/AB Ready Mix, LLC, was required to pay a $15,650.00 civil penalty for numerous violations associated with its operations and take corrective action.) The matter was finally resolved by a Department letter dated October 13, 2006. See Department Exhibit 9. According to a Department inspector, a follow-up inspection in early December 2006 did not detect any on-site violations by the ready-mix plant. Despite the corrective actions which the ready-mix operation may have undertaken, Petitioners complain that the air quality in the neighborhood has improved only slightly, and that was a result of Prestige shutting down the gunite operations in early September 2006 pending the outcome of this case, and was not due to any corrective measures required by the Short Form Consent Orders. Petitioners' complaints regarding air quality are real and not imagined. Credible testimony and photographs confirm them to be true. It is fair to assume that if emissions violations are still occurring, as Petitioners contend, they are due to the operations of the ready-mix plant and should be the subject of further inspections by the Department and an enforcement action, if appropriate. However, given the Department's straight-forward regulations pertaining to the use of an air general permit, the precautions which Prestige has stated it will take (and assuming that they will occur), and the expert testimony supporting a finding that all criteria have been met, Prestige is qualified to use the applied-for air general permit to operate a cement batching plant at the Clermont Yard.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order determining that Prestige Gunite of Orlando, Inc., is qualified to use an air general permit at 17600 State Road 50, Clermont, Florida. DONE AND ENTERED this 5th day of March, 2007, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2007.
Findings Of Fact On January 23, 1985, following the filing of the and its on-site inspection, DER issued its notice of intent to grant the air construction permit, pursuant to Chapter 403, Florida Statutes (F.S.), and Chapters 17-2 and 17-4, Florida Administrative Code (F.A.C.). The notice stated that the proposed equipment, with a cyclone primary dust collector followed by a Dustex Baghouse Model DW-14-28W dust collector, was adequate to insure compliance with DER particulate emission standards. The ambient air standards for sulfur dioxide emissions by the plant were to be controlled by the use of low sulfur fuel oil (maximum 0.5 percent sulfur). Subsequent to the issuance of the notice of intent, DER received a Petition for Administrative Hearing regarding the issuance of the permit. The petition alleged, inter alia, that the plant would emit particulates and gases in contravention of Chapter 17-2, F.A.C., and that stormwater run-off from the plant would be contaminated with oil, scum and debris. The petition further asserted that this run-off would cause water pollution in contravention of Chapters 17-3 and 17-25, F.A.C., and would introduce pollution into Dry Branch and Bayou George, a Class I Water. The permit application covers only the proposed batch plant site and the immediately adjacent property consisting of 2.15 acres. The location of the building would be at the northern end of the parcel, approximately 0.10 miles from both Star Avenue and U.S. Highway 231. There is no residential use of property immediately adjacent to the project site. However, Petitioners all reside in the immediate area, and will be affected to some extent by this facility. Dust from construction activity has already been experienced. In this regard, it must be recognized that the area has no zoning restrictions and is therefore subject to industrial uses such as that proposed here. The Applicant owns several acres of property surrounding the location of the proposed batch plant. The permit application at issue covers only the request to construct the facility on a 2.15 acre portion of the larger parcel. Anticipated environmental problems caused by activity not on the immediate parcel are not related to this permit application and thus are not germane to a determination whether the permit should be issued or denied. Further, the construction permit will only allow the applicant to build the proposed air pollution source. Before such a source can actually be operated, a separate operation permit application must be made, and testing for compliance with standards by the facility must be satisfactorily completed. Petitioners demonstrated that the individuals who own Triangle Construction Company, Inc. were previously employed by Gulf Asphalt Company, which was occasionally out of compliance with state air emission standards. Petitioners asserted that these individuals would likely fail to operate the proposed facility in compliance with DER standards. Although these individuals did have managerial responsibility at Gulf Asphalt, final decisions concerning financial expenditures for repairs and maintenance were made by the owner of the plant, rather than the Applicant's owners. It was also established that the Gulf Asphalt Plant continued to have emission problems after such individuals left as employees. Petitioners contend the Applicant's unrelated dredging activities in an adjacent borrow pit area caused turbidity in Dry Branch Creek, and characterized the Applicant as a habitual violator who could not be expected to comply with state pollution control regulations in the operation of the proposed facility. Testimony revealed that the Applicant constructed a culvert in Dry Branch, which flows through a borrow pit area and did some other incidental dredging in areas within the landward extent of waters of the state. However, when the Applicant became aware that activities in the proposed borrow pit area were potentially in violation of DER rules, it ceased activities and applied for the appropriate permits. An asphalt concrete batch plant is a relatively simple operation in which sand and aggregate are dried, then mixed with hot liquid asphalt and loaded directly into trucks. It is the drying process which emits the particulates which the cyclone and the baghouse are designed to control. Baghouse operations are similar to those of a vacuum cleaner. Particulate-laden air from the drying process is vented into the baghouse, where it is filtered through a number of cloth bags. The bags trap the particulates, and pass the filtered air through the bag cloth and out of the building. When enough air has been filtered to cause a build-up of trapped particulates, a portion of the baghouse is taken off cycle and reverse air is blown through the bags. The reverse air causes the trapped particulates to fall into a hopper where they are removed for disposal. The baghouse was designed to function efficiently in conjunction with a plant producing up to 120 tons per hour of asphalt concrete. Applicants's plant will produce only 80-85 tons of asphalt concrete per hour due to the limited size of the dryer. The estimated air to cloth ratio in the amended permit application is 6:1, which will result in emissions substantially lower than DER standards. Air to cloth ratio is not a specific standard or requirement, but is a figure which is used by engineers to determine projected emissions which may reasonably be anticipated from facilities which use an air pollution control mechanism. A projected air to cloth ratio of 6:1 for this baghouse may be reasonably expected to yield emissions of approximately 0.014 micrograms per dry cubic foot, which is approximately one-third of the DER standard of 0.04 mg. per dry cubic foot. The equipment to be installed is used and in need of minor repairs. The testimony established that necessary repairs will be accomplished prior to plant activation, and that operations will not be adversely affected when such repairs are complete.
Recommendation Based on the foregoing, it is RECOMMENDED that the Department of Environmental Regulation issue a final order granting Triangle Construction Company an air construction permit. DONE and ENTERED this 21st day of June, 1985, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1985. COPIES FURNISHED: Lynn C. Higby, Esquire BRYANT, HIGBY & WILLIAMS, P.A. Post Office Box 124 Panama City, Florida 32402 E. Gary Early, Esquire and Clare E. Gray, Esquire Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32301 Richard Smoak, Esquire SALE, BROWN & SMOAK Post Office Box 1579 Panama City, Florida 32402 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32301
Findings Of Fact This cause comes on for consideration based upon the petition of John C. Walker and others, residents of Fort Myers, Florida, who have challenged the Respondent, State of Florida, Department of Environmental Regulation's intention to grant a Complex Air Source Permit to the Respondent, Lee County Board of County Commissioners, for purposes of constructing a four-lane road at Daniels Road, Lee County, Florida. The Respondent, State of Florida, Department of Environmental Regulation, is an agency charged with the promotion and protection of air quality within the State of Florida. The authority for this function is found in Chapter 403, Florida Statutes, and various rules enacted to implement the provisions of this statute. Specifically, as it pertains to this dispute, the Respondent, State of Florida, Department of Environmental Regulation, is charged with the maintenance of Ambient Air Quality Standards. The standards are set forth in Chapter 17-2, Florida Administrative Code. To carry out this function, Rule 17-2.06, Florida Administrative Code, has been enacted, which establishes maximum limiting levels for Ambient Air Quality Standards. This sets the allowable limits for pollutants existing in the ambient air, the purpose for such standards being the protection of human health and public welfare. It involves the consideration of the pollutants, sulphur dioxide, particulate matter, carbon monoxide, photochemical oxidants (by measurement and correction for interference due to nitrogen oxide and sulphur dioxide), hydrocarbons (used as a guide in devising implementation plans to achieve oxidant standards, to be measured and corrected to methane), and nitrogen dioxide. The Respondent, Lee County Board of County Commissioners, is a unit of local government in the State of Florida charged with the function of carrying on the business of government for that county, to include the construction of those roads necessary to accommodate the needs of the public. To that end, on February 1, 1978, the Respondent, Lee County Board of County Commissioners, applied for a Complex Air Source Permit to be granted for the construction of a four-lane road at Daniels Road, Lee County, Florida. Subsequent to that initial application, revisions of the data provided in support of the application were made on October 12, 1978, and again on January 19, 1979. That application, as revised, may be found as the Respondent's (Lee County) Exhibit No. 1 admitted into evidence and includes aerial photographs. On May 4, 1978, through the person of Phillip R. Edwards, District Manager of the State of Florida, Department of Environmental Regulation, South Florida District, an indication was given that the department intended to issue a Complex Air Source Permit to the Lee County Board of County Commissioners. This exhibit is found as the Respondent's (Lee County) Exhibit No. 2 admitted into evidence. An engineer for the South Florida District, State of Florida, Department of Environmental Regulation, has made a review of the revisions in addition to the original application and is still of the persuasion that the Complex Air Source Permit should be granted. This letter of intent to grant the permit makes reference to the permitting chapter of the Florida Administrative Code pertaining to Complex Air Source Permits and other types of permits. Rule 17-4.07, Florida Administrative Code, sets out the general criterion which must be met prior to the issuance of the Complex Air Source Permit. That provision establishes the need for the applicant to affirmatively provide reasonable assurances based on its plans, test results and other information that the construction of the road and operation on that road will not discharge, emit or cause a violation of the Ambient Air Quality Standards set forth in Rule 17-2.06, Florida Administrative Code, previously referenced. In this case, those assurances have been given. In examining the particular pollutants set out in the Ambient Air Quality Standards table, sulphur dioxide and particulate matter are not items of significant concern, because motor vehicles do not promote the emission of those pollutants in quantities sufficient to exceed the maximum limiting levels. In measuring the amount of carbon monoxide, Lee County utilized a technique known as the representative site method, to be applied in the Cal-Air Model. The ecolyzer which measures this pollutant, was placed in various locations near the intersection of U.S. 41 and Daniels Road, with the object in mind to achieve the gravest readings as a basis for projecting the future amounts of carbon monoxide that would be present in the area of the proposed road expansion. The traffic projections and average speed at the intersection were factored in by Joseph Ebner, P.E., an expert in traffic engineering. The most recent statement of those traffic projections may be found in the January 19, 1979, revision to the application offered by the Respondent, Lee County Board of County Commissioners, which is a part of that Respondent's Exhibit No. 1. In that revision, as was the case of the revision of October 12, 1978, and the original application, the average speed at the intersection was established at fifteen miles per hour, calculated from an engineering textbook, "Highway Capacity Handbook (1975), Highway Research Board, Special Report No. 87". This represents the lowest average speed for an eight-hour period in a signalized intersection of an urban area. In arriving at the traffic count calculations, Mr. Ebner relied on the Lee County Transportation Study, Technical Report No. 6, which contains traffic projections for the year 1990. A copy of this report may be found as Petitioner's Exhibit No. 10 admitted into evidence. The statistics found in that report take into account the projected construction of a regional airport located east of Interstate-75 on Daniels Road, to be opened in the year 1982, and the Opinion that Canal Road, which will intersect with Daniels Road, will be opened in that same year. Calculations made in the January 1, 1979, revision are based upon the belief of a rate of increase in traffic to be eight percent per annum in the area of the intersection of U.S. 41, Cypress Lake Drive and Daniels Road. (At this point it should be indicated that the calculations in the revision of January 1, 1979, labeled, 8-hour Co. Concentrations, U.S. 41 & Cypress Lake Drive [natural traffic mix], are improperly depicted in the columns entitled, "U.S. 41 and Cypress Lake Drive" and must be transposed in their labeling to arrive at the proper mathematical result.) When that adjustment is made, it is established that the highest concentration of carbon monoxide in an eight-hour period in the intersection of U.S. 41 and Cypress Lake Drive in the location of the northwest quadrant for the years 1980 through 1990 was in the year 1980. In that year the measurement would be 9.13 mg/m3 in an eight-hour period. The second most severe year is 1981, in which the measurement is 9.10 mg/m3 as the highest eight-hour carbon monoxide concentration levels in that intersection. The balance of those measurements for the years 1982 through 1990 may be found in the Respondent's, Lee County Board of County Commissioners, Exhibit No. 1 in the January 19, 1979, revision to the permit application. Finally, it should be indicated that the projections made by the Lee County Board of County Commissioners in its application are premised upon a vehicular mix of ninety-four percent automobiles and six percent trucks. Tom Davis, an engineer for the Department of Environmental Regulation, who has the responsibility to review permit applications for Complex Air Source Permits, was involved in advising the applicant on the requirements for compliance for the granting of the permit. Through his involvement, Mr. Davis has been satisfied with the techniques used by the applicant in its efforts at measuring the carbon monoxide and the modeling necessary to answer the ultimate question of whether or not this project will violate the Ambient Air Quality Standards. In this instance, Mr. Davis does not believe those air quality standards will be violated. His testimony established that there are no models designed specifically for the measurement of photochemical oxidants, hydrocarbons or nitrogen dioxide. The hydrocarbons and nitrogen dioxide are area wide phenomena and are not subject to such specific site measurement. However, the area wide monitoring which has been done for nitrogen dioxide throughout the State of Florida, and more particularly in Lee County, Florida, has never shown that pollutant to exceed ten percent of the maximum limiting level. Moreover, carbon monoxide, hydrocarbons and nitrogen dioxide are felt to decrease at roughly the same percentage rate throughout the years, so that the decrease in the carbon monoxide levels at the project site beyond 1980 would reflect a similar decrease at that site in the amounts of hydrocarbons and nitrogen dioxide. Therefore, if there are no problems with carbon monoxide there is no reason to believe that there would be a problem with hydrocarbons and nitrogen dioxide, nor with the photochemical oxidants which are a bi-product of hydrocarbons and nitrogen dioxide combinations. These opinions stated herein are those of Mr. Davis, and David Barker, Ph.D., an air quality expert who testified in behalf of the Respondent, Lee County Board of County Commissioners, agrees. As indicated, these opinions are well founded. Notwithstanding the belief that the Respondent, Lee County Board of County Commissioners, has complied with the requirements of law, an examination of the Petitioners position would seem to be indicated. The Petitioners' argument against the approval of the Complex Air Source Permit falls into two broad categories. The first of those categories has to do with the allegation that the Respondent, Lee County Board of County Commissioners, failed to comply with the instructions in the application form. After considering the testimony in this cause and the exhibits submitted, this contention on the part of the Petitioners is rejected. The second basis for attacking the application concerns the techniques for gathering and applying the data which was utilized by the Respondent, Lee County Board of County Commissioners, in their efforts to establish reasonable assurances that the project would not violate Ambient Air Quality Standards in terms of the maximum limiting levels set forth in Rule 17-2.06, Florida Administrative Code. To this end, the Petitioners offered a series of competing statistics through their exhibits, in terms of traffic projections. In addition, their expert on air quality, Dr. Detar, was of a different persuasion on the question of the average automobile speed through the signalized intersection U.S. 41 and Daniels Road. In Dr. Detar's mind the average speed would be eight miles per hour as the low average speed for an eight-hour period. In view of all the testimony, this projection of the low average speed is not found to be acceptable. Finally, the Petitioners were of the persuasion that the average mix of automobiles and trucks in the area of the project would be more along the lines of the national average of eighty percent cars and twenty percent trucks. The studies conducted by the Respondent, Lee County Board of County Commissioners, in prior projects demonstrated the efficacy of the ninety- four percent automobiles and six percent trucks standard. In measuring other sources of pollution than sulphur dioxide and particulate matter (which the Petitioners do not question in this case), Dr. Detar believed that hydrocarbons and nitrogen dioxide could be modeled. His explanation of the modeling technique, when contrasted with the argument of the Lee County Board of County Commissioners and the State of Florida, Department of Environmental Regulation, to the effect that those two substances may not be modeled on a specific site basis, failed to be persuasive. In summary, in contrasting the evidence offered in behalf of the Petitioners with that offered in behalf of the Respondent; the Respondent, Lee County Board of County Commissioners, has demonstrated reasonable assurances that maximum limiting levels of the applicable pollutants will not be exceeded in the area of the project. The various memoranda and proposed findings of fact and conclusions of law have been reviewed by the undersigned, and to the extent that those items are not inconsistent with the findings of fact rendered herein and conclusions of law and recommendation, they are hereby acknowledged by the entry of this Order. To the extent that those aforementioned items are inconsistent with the findings of fact, conclusions of law and recommendation by the undersigned, they are rejected.
Recommendation It is recommended that the Respondent, Lee County Board of County Commissioners, be granted a Complex Air Source Permit for the construction of the improvements at Daniels Road, Lee County, Florida. DONE AND ENTERED this 1st day of March, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building MAIL: 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: E. G. Couse, Esquire Grace & Couse, P.A. Suite 202, Courtney Building Post Office Drawer 1647 Fort Myers, Florida 33902 L. Caleen, Jr., Esquire General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Beverly E. Myers, Esquire Assistant County Attorney Lee County Post Office Box 398 Fort Myers, Florida 33902 ================================================================= AGENCY FINAL ORDER =================================================================
Findings Of Fact At final hearing, the parties stipulated to the following facts: The Department of Environmental Regulation is an administrative agency of the State of Florida created by Chapter 75-22, Laws of Florida, and vested with the power and duty to implement and enforce the provisions of the Florida Air and Water Pollution Control Act, Part I, Chapter 403, Florida Statutes. Pursuant to these Acts, the Department is authorized to regulate the construction and operation of solid waste disposal facilities and stationary installations reasonably expected to be sources of pollution. Respondent, City [of North Miami], owns the property on which is located a solid waste facility known as "Munisport Sanitary Landfill" located at 14301 Biscayne Boulevard, North Miami, Dade County, Florida; latitude 25 degrees 54' 9" North, longitude 80 degrees 9' 5" West in Sections 21 and 22, Township 52 South, Range 42 East. Respondent, Munisport, operates a solid waste disposal facility under contract with the City. On March 7, 1977, the Department issued to the City of North Miami permit/certification number 13-31-028GM (hereinafter "dredge and fill permit") which modified and superseded permit/classification number 13-31-0286. The permit was issued under the provisions of Sections 253.123, 253.124, and 403.087, Florida Statutes, and Chapter 17-4, Florida Administrative Code. The permit also provided water quality certification required by Public Law 92-500. The dredge and fill permit was issued for the purpose of constructing a continuous 5,000 foot-long earthen dike with a modified top width of 12 feet aligned waterward of the mean high water line such that the waterward toe of the dike would be on or landward of the property line. Approximately 6,000 cubic yards of material would be dredged from the 63-acre tract located behind the dike and waterward of the mean high water line. Portions of the tract would be excavated to minus 35 feet mean low water to form nontidal lakes. Approximately 1,000,000 cubic yards of fill material would be enplaced as follows: Clean fill to be utilized to produce an elevation of a minimum of two feet above the calculated ground water table, after which fresh refuse and a two-foot final cover of clean fill would be placed. Within a zone of 100 feet from the landward crest of the dike, yard trash and construction debris would be the only types of solid waste acceptable as fill, and A ten-foot wide by three-foot deep circulation canal would be dredged on the outside perimeter of the dike. General condition 13 of the dredge and fill permit provides that the permit does not indicate an endorsement or approval of any other Department permit/approval that may be required for other aspects of the total project. A solid waste operation permit would also be required. On June 8, 1979, the City and Munisport received from the Department Operation Permit No. SWO-13-5152 (hereinafter "solid waste operation permit"). The purpose of the solid waste operation permit was to allow and regulate the placement of solid waste (refuse, yard trash and construction debris) in the area behind the dike described above and on adjacent uplands in order to generate an appropriate elevation for a golf course. General condition number two of the solid waste operation permit states that: This permit is valid only for the specific processes and operations indicated in the attached drawings or exhibits. Any authorized deviation from the approved drawings, exhibits, specifications, or conditions of this permit shall constitute grounds for revocation and enforcement action by the Department (emphasis added). Specific condition number six of the solid waste operations permit provides that the subject facility be operated at all times at the maximum level of efficiency so as to minimize the adverse effect on the environment of contaminated storm water runoff or leachates which cause degradation of surface or ground waters. Specific condition number nine of the solid waste operation permit provides that "no solid waste shall be placed within thirty feet of any existing or future lake". Prior to the issuance of the solid waste operation permit, Respondents' permit application was subjected to a de novo review during a Section 120.57(1), Florida Statutes, hearing requested by the Florida Audubon Society and others. The record of these proceedings explained and expanded upon the application and, therefore, became a part thereof. Respondents' consultant testified in these proceedings as follows: We have an agreement with the Department of Environmental Regulation that goes back several years that we would not dig up any old land fill material nor would we place any land fill material in an area that would eventually become a lake. Testimony of Mr. Thomas Joseph Checca on October 18, 1978; Transcript of proceedings in Florida Audubon Society, et al. v. State of Florida, Department of Environmental Regulation, City of North Miami, Florida and Munisport, Inc., DOAH Case No. 78-316. On October 25, 1979, an inspection of the above-described facility was made by Mr. Scott Quaas, an employee of the Department, who observed that two lakes had been constructed in old waste on the site without the required 30-foot setback as required by the aforementioned permit conditions. A letter of notice was issued by the Department regarding that and other violations on November 16, 1979. On December 18, 1979, a follow-up inspection of the subject facility was made by Mr. Quaas, at which time it was observed that two more lakes had been excavated through waste previously deposited at the site, thereby causing such waste to come in direct contact with the water in the lakes adjacent thereto. It was also observed that no 30-foot setback was provided at the new lakes. Notice of these additional violations was provided to Munisport on January 16, 1980. An on-site meeting regarding the above-described violation was held on January 24, 1980, at which time it was agreed that Respondents would reply by February 1, 1980, as to whether corrective actions would be taken regarding the aforementioned violations. As of the date of final hearing in this cause, corrective action had been taken to eliminate these violations. Specific condition number 13 of the solid waste operation permit requires the posting of a performance bond or other security acceptable to the Department which adequately covers the cost of monitoring and final closing procedures required under the permit and Chapter 17-7, Florida Administrative Code, and procedures listed in the application for permit which may become necessary to correct any pollution detected at the site in violation of Department rules. No such bond or security has been posted with the Department. Extensive discussions between the Department and representatives of the City and Munisport have failed to produce agreement regarding the terms of a performance bond or security. The parties were notified of this violation and were given an opportunity to respond. Leachate (runoff containing pollutants) has been allowed to enter lakes on the site. A leachate plume containing ammonia has been detected beneath the subject sanitary landfill site, which plume has reached ground waters of the State and is being observed to be moving off the site in an east- southeast direction, toward Biscayne Bay. This leachate plume contains total Ammonia-Nitrogen (NH3-N) in amounts which are substantially in excess of the water quality standards of .5 milligrams per litre for Dade county, Florida. See, Chapters 24-11(4), Dade County Code. It was not anticipated when Operation Permit Number SWO-13-5152 was issued that leachate would be allowed to enter the lakes or that a leachate plume would form in the manner which is presently being observed. In addition to being a pollutant, Ammonia-Nitrogen is the first substance generally observed when a leachate plume forms. There exists a significant possibility that other pollutants contained in solid waste deposited at the site will also begin to reach ground waters of the State and the waters of Biscayne Bay. General condition number eight of the solid waste operation permit states that: This permit does not relieve the permittee from liability for harm or injury to human health or welfare, animal, plant, or aquatic life or property and penalties therefore caused by the construction or operation of this permitted source, nor does it allow the permittee to cause pollution in contravention of Florida Statutes and department rules, except where specifically authorized by an order from the department granting a variance or exception from department rules or state statutes. Specific condition number 15 of the solid waste operation permit states that: These permit conditions do not exempt the applicant from complying with pollution control requirements of other Federal, State, Municipal, County or Regional water pollution control rules, regulations, ordinances or codes, nor does it authorize any violation thereof.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered revoking the permits and certification which are the subject of this proceeding in their entirety or such lesser action as may be deemed appropriate by the Department in the exercise of its discretion as the State agency charged with the power and duty to control and prohibit the pollution of air and water under Section 403.061, Florida Statutes, and as the agency responsible for the implementation and enforcement of the provisions of the Florida Resource Recovery and Management Act which regulates the appropriate disposal of solid waste and landfill operation in this State. DONE and ENTERED this 24th day of February, 1981, in Tallahassee, Leon County, Florida. WILLIAM E. WILLIAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1981. COPIES FURNISHED: William P. White, Jr., Esq. Deputy General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Willard K. Splittstoesser, Esq. 776 N.E. 125th Street North Miami, FL 33161 Marvin P. Sadur, Esq. 2000 L. Street, N.W., Suite 612 Washington, D.C. 20036
