The Issue Whether construction permit No. AC41-6819 issued to Manatee Energy Company, dated June 8, 1978, should be amended, as proposed in construction permit No. AC41-6819A, dated November 7, 1978.
Findings Of Fact The parties stipulated to the following facts: The Manatee Chapter of the Isaak Walton League of America ("Isaak Walton League") is a non-profit corporation, organized and existing under Florida law. The Isaak Walton League's address is 5314 Bay State Road, Palmetto, Florida 33561. Manatee Energy Company ("Manatee Energy") is a Florida corporation, whose address is 108 Appleyard Drive, Post Office Box 867, Tallahassee, Florida 32302, and was formerly a subsidiary of Belcher Oil Company. The State of Florida Department of Environmental Regulation ("DER") is an agency of the State of Florida charged with the regulation and control of air and water pollution under Chapter 403, Florida Statutes, whose address is Twin Towers Office Building, 2600 Blair Stone Road, Tallahassee, Florida 32301. The specific agency action at issue in this proceeding is DER's issuance of a revised permit to Manatee Energy to modify a crude oil splitting facility and modified or additional rundown tankage at Port Manatee, Florida. The facility at issue will be located in North Manatee County near the Hillsborough/Manatee County line in Port Manatee. On November 7, 1978, DER issued Manatee Energy Permit No. AC41- 6819A. The validity of the permit is disputed by the Petitioner. Manatee Energy has undertaken construction of the crude oil splitter and associated tankage under either Permit No. AC41-6819 and Permit No. AC41-6819A. (Exhibit 1) On June 8, 1978, after administrative proceedings conducted under Chapter 120, Florida Statutes, DER issued construction permit AC41-6819 to Manatee Energy for the construction of a 15,000 BPSD crude oil splitter at Port Manatee, Florida. The permit stated that the oil splitter is to separate crude oil by distillation into three fractions; i.e., LPG, jet fuel and bunker "C." It further provided that combustion devices were to be fired with LPG or fuel oil with a sulfur content of 0.7 percent or less. Various conditions were attached to the issuance of the permit, including analysis of samples of fuels to be burned in the furnace and boiler, performance testing of stacks after startup of the facility, emission limits for the furnace and boiler, and periodic monitoring and reporting of heat content and sulfur content of fuel oil combusted in the boiler and furnace. In addition, condition 5 required that all fugitive dust generated at the site be adequately controlled, and conditions 12- 13 required that steps be taken in conjunction with the Manatee Port Authority to correct any ambient particulate violations, such as paving of roads, parking lots and the like, prior to issuance of an operating permit. The Chapter 120 administrative proceedings resulted in a determination that the proposed facility would not release air pollutants exceeding ambient air quality standards, or significantly degrade applicable base line air quality. (Exhibits 1-2) On October 27, 1978, Manatee Energy applied to DER for revision of the existing permit. The proposed revision was prompted primarily by the fact that Manatee Energy had been sold by its parent company, Belcher Oil Company, and had become an independent operator subsequent to the issuance of the original permit. This change in ownership created a need for accurate recording and accounting of product volume and quality before its transfer to Belcher's storage tanks which are adjacent to the crude oil splitter facility. To accomplish this purpose, Manatee Energy proposed the addition of two 10,000 barrel JP-4 "rundown" tanks for jet fuel, and one 10,000 barrel diesel "rundown" tank in lieu of previously permitted tank No. 410. Also, a 33,000 barrel slop oil tank to temporarily receive and hold off-specification product, and a 40,000 barrel waste water tank replacing a 35,000 barrel tank previously permitted (tank No. 409), were proposed to be added. In view of the above proposed changes, the nine storage tanks owned by Belcher (tanks Nos. 401-409), four of which are leased by Manatee Energy (tanks Nos. 406-409), will store different products except for tanks Nos. 405 and 407 which will remain unchanged. Under the original permit, two 80,000 gallon tanks were to be used to store JP-4, (tanks Nos. 403-404), but under the new proposed arrangement, only one will be used for that purpose (tank No. 406). Tank No. 403 will be used exclusively by Belcher for asphalt storage. Tank No. 409 will he converted from a waste water tank to a No. 6 fuel oil tank. Based on revised determinations of hydrocarbon emission factors by the Environmental Protection Agency after Manatee's application for the original permit, secondary seals on internal floating roof tanks will be deleted, but existing floating roof tank No. 407 is proposed to be modified by adding secondary seals to reduce such emissions. Revised calculations by the applicant as to hydrocarbon emissions show that the proposed changes in tank service and design will offset expected emissions from the proposed new tanks. Such emissions from the revised facility are expected to be 16.8 tons less than the currently permitted tankage emission rate of 75.4 tons per year. (Testimony of Hutchinson, Borie, Exhibits 4, 6-9) Additional modifications to the existing permit proposed by Manatee Energy are to relocate the emergency flare stack, move the process heater, boiler and control room approximately 150 feet each from their previously contemplated locations, and to raise the crude tower approximately 16 feet. The tower produces no emissions and the change is designed to improve the distillation process. Movement of the flare stack and the other process equipment and control room are proposed for safety reasons and do not alter the process configuration or increase emissions. Finally, a Merox treating unit was added for the purpose of extracting impurities from jet fuel. This process does not involve any emissions. (Testimony of Hutchinson, Borie, Larsen, Exhibits 4, 6, 14-15) The revised permit application consisted of engineering drawings by the firm of Marsco Engineering Corporation, Tyler, Texas which was employed subsequent to issuance of the original permit, and a report concerning the proposed changes prepared by Walk, Haydel and Associates, Inc., an engineering consultant and design firm of New Orleans, Louisiana. A complete DER application form was not submitted or required by DER. Only a revised page 4 of the standard application form was submitted. There was no certification of the project by a professional engineer registered in Florida, although such a certification is required by DER rules. The application was reviewed and recommended for approval to DER by the Manatee County Pollution Control Director. Personnel of DER's Southwest District Office reviewed the application and determined that the applicant's calculations showing that proposed hydrocarbon emissions would be less than those projected under the original permit were correct. They further found that concentrations of sulfur dioxide and particulate emissions would be unchanged by the modifications to the facility. The latter determination was supported by the results of an air quality computer model programed under standard EPA criteria to estimate the impact of such emissions from pollutant sources on ambient air quality standards at ground level. The model determined the maximum impact of sulfur dioxide pollutants which would emanate from the relocated stacks at receptor points approximately .7 to .8 kilometers south of the facility. It was found that the maximum pollutant impact during the worst twenty-four hour period would not change significantly from the former configuration of the stacks and would be well within state ambient air standards of 260 micrograms per cubic meter. A separate computer model relative to particulates was not required because such emissions when extrapolated from the sulphur dioxide model would result in basically unchanged emissions compared to the originally permitted configuration. Manatee County Pollution Control has operated an air quality monitor at Port Manatee for a number of years. This device, which is used for monitoring emission of particulates, has reflected excessive emissions on a number of occasions during 1978 and 1979. However, it is a "source" monitor which is not located in an appropriate place under EPA standards to monitor ambient air quality and, accordingly, DER does not consider the site to be "ambient oriented" or the data to be usable for determinations involving air quality standards. There have been no violations of ambient air quality revealed by monitoring at other stations in Manatee County during the past year. In fact, Manatee County's annual geometric mean for 1978 for suspended particulates were the lowest ever recorded at 33.8 micrograms per cubic meter which was significantly lower than the air quality standard of 60 micrograms per cubic meter. (Testimony of George, McDonald, Williams, Koogler, Subramani, Exhibits 4, 11-13, 16-21) In 1978, subsequent to the issuance of the original permit but prior to the filing of the revision application, certain rules of the DER contained in Chapter 17-2, Florida Administrative Code, were changed. Rule 17-2.03 required the DER to make a determination of the Best Available Control Technology (BACT) after receipt of an application for a permit to construct an air pollution facility in certain instances under specific criteria stated in the rule, after public notice had been given of an application which required such a determination. DER did not make a BACT determination as to the permit revision application concerning hydrocarbon emissions since it determined that there was an existing emission limiting standard for volatile organic compounds in Rule 17-2.05(5), which required known vapor emission control devices or systems in the processing and use of such substances. DER also determined that Rule 17- 2.04(6) concerning Prevention of Significant Deterioration (PSD) did not require a BACT determination as to hydrocarbon emissions because the Rule does not apply to hydrocarbon emissions. Also, DER determined that neither the BACT nor the PSD rules were applicable to the modified facility as to sulfur dioxide and particulates because the ambient concentration of those emissions would be unchanged by the proposed modifications. (Testimony of Williams, Exhibit 13) On November 13, 1978, DER issued construction permit No. AC41-6819A to Manatee Energy for the proposed modifications. Conditions attached to the permit were the same as those of the original permit, plus conditions setting forth the modifications of the facility. Notification of the issuance of the permit revision was not made to Petitioner who had been a party to the Chapter 120 proceedings involving the original permit. Neither were the public notice provisions of Rule 17-2.04(9) complied with by DER prior to the issuance of the revised permit. The parties stipulated that opportunity for public participation and comment at the hearing held herein would cure any procedural defect in this regard. (Exhibit 5) Condition 12 of the proposed permit provides that before any startup of the facility, steps must be taken in conjunction with the Manatee Port Authority to correct any fugitive particulate problems and condition 13 states that an operating permit will not be issued until such time as the Port Authority has eliminated the "present violation of the ambient air quality standard with regard to particulates." Identical conditions were set forth in the prior permit based on findings that ambient particulate violations existed from fugitive dust created by road traffic at Port Manatee. As heretofore found above, the particulate violations at Port Manatee are not deemed to constitute violation of ambient air quality standards. Nevertheless, since the original permit was issued, various steps have been taken to reduce such emissions in the Port area by the use of a sweeper, paving of roadway, parking and driveway areas, planting of vegetation, grass, and shrubbery in critical areas, and the like. Although these efforts have shown little success, reasonable efforts are continuing to reduce the problem. (Testimony of McDonald, Subramani, Exhibit 18) Eight public witnesses testified at the hearing. Their concerns primarily focused on such subjects as lack of technology to prevent emission of hydrocarbons, oil spills, inefficiency of small facilities, opposition to "dirty industry" in the county, lack of adequate state rules for storage of hazardous waste, and the accumulation of emissions generally in the Tampa Bay area. One witness pointed out the presence of eagle and pelican habitats in the Bay area near the site in question. A statement on behalf of Sarasota County expressed the view that the modified facility should be subject to the review process of Chapter 380, Florida Statutes, concerning developments of regional impact prior to the issuance of a modified construction permit. (Testimony of Burger, Chiefari, Fernald, H. Greer, Blankenship, Morris, M. Greer, Lincer, Exhibit 22, Hearing Officer Exhibit 1)
Recommendation That a permit for the construction of modifications to the facility which is the subject of this proceeding be granted to the Manatee Energy Company, subject to the conditions heretofore proposed by the Department of Environmental Regulation, dated November 7, 1978, and with a precondition that the applicant fully complies with the provisions of Rule 17-4.05, Florida Administrative Code, prior to such issuance. DONE and ENTERED this 22nd day of May, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mary F. Clark, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Ronald C. LaFace, Esquire Post Office Box 1752 Tallahassee, Florida 32302 Paul Amundsen, Esquire One Biscayne Tower Suite 3636 Two South Biscayne Boulevard Miami, Florida 33131
The Issue Whether Petitioner should be granted a water pollution operation permit for the Bennett Road Sewage Treatment Facility under Chapter 403, Florida Statutes.
Findings Of Fact Petitioner owns and operates a sewage treatment plant known as the Bennett Road Sewage Treatment Facility in Orlando, Florida. The plant was originally built in the 1950's and its method of treatment has been modified and improved over the years. At the present time, the plant serves about 60 percent of the sewage treatment needs of the city. The sewage is first treated for the removal of biological compounds by means of trickling filters, followed by chemical treatment for removal of BOD, suspended solids, and phosphorus. In the latter process, aluminum sulfate is used, together with a polymer to assist in forming larger particles for more rapid settlement. These processes are followed by final settling, clorination and discharge through an outfall pipe approximately five miles to the Crane Strand Creek and thence to the Little Econlockhatchee River (Little Econ) which meets the Big Econlockhatchee River approximately twelve miles downstream and flows into the St. Johns River twenty- seven miles downstream. About 60 percent of the flow from Crane Strand Creek into the Little Econ is derived from the Bennett Road plant and there is no other significant source of pollutants from the remainder of the discharge. (Testimony of Jewett, Matthes, Petitioner's Composite Exhibits 1,2) In 1973, Respondent's predecessor, the State Department of Air and Water Pollution Control, issued a temporary operation permit to Petitioner, subject to certain conditions, for the Bennett Road plant. The permit was effective until June 1, 1976, "or sooner pursuant to the permittee upgrading his facility to provide 90 percent treatment and obtaining an operation permit in accordance with the rules and regulations of the Department Of Pollution Control." On May 7, 1976, Petitioner submitted an application for an operation permit wherein it was stated that the facility would be abandoned as soon as the Orlando Easterly Regional Facilities were constructed with a new treatment plant to be located in the vicinity of Iron Bridge Road. Respondent's manager of the St. Johns River District advised Petitioner by letter of July 21, 1976, of the Department's intent to deny the application for an operating permit. The reasons given were that (1) available data was insufficient to show sustained secondary treatment as defined in Chapter 403, Florida Statutes, and Chapter 17- 3, Florida Administrative Code; and (2) the facility's discharge caused violation of Section 17-3.09(3), F.A.C. The latter provision establishes one of the criteria for classification of Class III waters and provides generally that the concentration of dissolved oxygen in all such surface waters shall not average less than 5 mg/l in a twenty-four hour period and never less than 4 mg/l. Class III waters are designated in Rule 17-3.09 as "Recreation - propagation and management of fish and wildlife." In its above-mentioned letter, Respondent suggested that the Petitioner apply for a temporary operation permit. Petitioner chose to request an administrative hearing on the proposed denial and did so by petition filed herein on August 5, 1976. At the commencement of the hearing, the parties orally stipulated that Petitioner has been meeting the statutory and regulatory requirements as to secondary treatment so as to warrant withdrawal of Respondent's objection to granting the permit on that ground. The parties also agreed that the only matter remaining in issue is the question of whether Petitioner's discharge violates water quality criteria. (Petitioner's Exhibits 6,7) Petitioner began consideration of the need to replace or expand the Bennett Road plant about 1968. These plans have reached a stage where the Petitioner is now in the process of purchasing land and concluding a planning study required under federal law to construct a regional facility to service the eastern part of Orlando and a few of the northerly communities, including some in Seminole County. Such regionalization of sewage treatment facilities is encouraged by the federal government which provides 75 percent of the funding necessary for construction under Public Law 92-500 . It is anticipated that the proposed facility will be completed in 1980 at which time the Bennett Road plant will cease operations. The regional facility is to be located at Iron Bridge Road and its discharge would flow into the Little Econ several miles downstream of the present Bennett Road discharge. (Testimony of Matthes, Schneider, Petitioner's Composite Exhibit 2) Operation permits have been granted from 1971 to 1976 to a number of sewage treatment plants that will tie-in to the proposed regional facility. These permits were issued even though the discharge of most of the plants did not meet water quality standards. However, practically no secondary treatment plant can meet water quality standards in Central Florida without an extensive mathematical "modeling." These calculations made by Respondent are formulated from surveys of the body of water in question and result in what is termed "a waste load allocation." This term deals with a treatment standard that is computed to ascertain the assimilative capacity of a receiving body of water to take in pollutants from a particular source in order that water quality standards in terms of dissolved oxygen levels may be maintained. The waste load allocation is the standard which the treatment from the source must perform before it can be discharged. None of the above-mentioned plants nor the Bennett Road plant had been provided an assigned waste load allocation at the time of Respondent's adverse action on Petitioner's application. Neither had it been a past requirement of Respondent to require information concerning dissolved oxygen from an applicant in order to issue an operation permit. However, a preliminary survey of the Little Econ had been completed by Respondent by February 1976, and from this, a mathematical model was later computed based on chemical analysis of water samples taken from designated areas in that body of water. In the aforesaid permits that were granted, a clause provided that the plants would have to work with the City of Orlando in resolving discharge problems and cooperate in the achievement of a regional system. Although water quality criteria had not changed in recent years, they had not been enforced because Respondent had had insufficient background water data. At the time Petitioner's permit application was recommended for denial, the primary basis therefor was the fact that the Bennett Road plant had not then reached 90 percent treatment capability over a sustained period. The question of water quality was incidental in view of the fact that that office did not then have the final determination of water quality as evidenced by the intensive survey of the Little Econ and the final math modeling. (Testimony of Jewett, Davenport; Petitioner's Exhibit 4) By interoffice memorandums from the Respondent's Director of the Division of Environmental Permitting to district and subdistrict managers, dated January 28 and April 13, 1976, Subject: Temporary Operating Permits, the said managers were instructed that no operating permits should be issued for any source not achieving secondary treatment of its wastes or not meeting water quality standards. In such cases, only temporary operating permits were to be issued. Further, it was stated in the April 13 memorandum that enforcement action would be initiated against municipal facilities if they were either not achieving 90 percent removal Of BOD and suspended solids or not meeting water quality requirements, and had either (1) not applied for a federal grant, (2) was not following up to ensure receipt of the grant, or (3) had received a federal grant but was not expeditiously accomplishing the grant requirements. It was stipulated at the hearing that the memorandums had not been promulgated as rules by Respondent under Chapter 120, F.S. (Respondent's Exhibits 1, 2, Stipulation) Although the Little Econ is a highly degraded body of water, upstream of the Bennett Road discharge point it has a dissolved oxygen level of over 6 mg/l. After mixture with the Bennett Road discharge, the level drops to about 2 1/2 mg/l. Based upon the intensive survey taken by the Respondent in 1976, it was determined that water quality violations existed below the Bennett Road plant's discharge point but not above that point. It was further determined that the Bennett Road facility was contributing about 89 percent of the oxygen demanding substances in the system. In fact, the dissolved oxygen levels downstream from the Bennett Road discharge reached as low as one milligram per liter at several points. They ranged from that level up to approximately four and one-half milligrams per liter throughout the entire 27 miles of the system. The foregoing was the conclusion of Respondent's environmental specialist based on field data taken on August 30, 1976, at a time of the day when the dissolved oxygen levels would be at their highest. However, the drop in dissolved oxygen level to an even greater extent at certain points occurs in Respondent's mathematical model prediction that does not take into account any discharge from the Bennett Road plant. In fact, in such a "no discharge" situation, Respondent's prediction is that the dissolved oxygen level at points immediately following several control structures in the waters will produce an even greater drop than with the Bennett Road discharge taken into consideration. Although the control structures do not affect the actual oxygen demand on the system, they do increase the residence time of the water and permit substances to settle out. However, when the water flows over the dam, it creates reaeration that increases the oxygen level again. Therefore, although the control structures aggravate the problem, the Bennett Road discharge is in turn further aggravating the situation because some of the pollutants continue downstream. Part of the problem is due to the effect of deposits already on the bottom of the system and it is unknown to what extent they would be eliminated if the Bennett Road facility were taken out of the system. Although it is not anticipated that there would be a great rise in dissolved oxygen levels if the Bennett Road plant discharge were to be discontinued, Respondent's experts are of the opinion that there would be a definite increase in dissolved oxygen levels overall. Further, the field data and model predictions were based on high flow conditions but the 89 percent figure for pollutants from the Bennett Road facility was based on a low flow condition where it would be of more significance. Although the field data showed that at no point in the 27 mile course did the dissolved oxygen level of the water reach state standards of 5.0 milligrams per liter dissolved oxygen for Class III waters, the model prediction with no discharge from the Bennett Road facility shows that the dissolved oxygen level still would not meet state standards under high flow conditions. Under low flow conditions, though, the dissolved oxygen level without discharge from the Bennett Road plant would reach the state standards roughly halfway down the system. High flow conditions are more representative of an average of dissolved oxygen level during the year than under low flow conditions. The Bennett Road plant contributes approximately 60 percent of the total water flow reaching the St. Johns River. Even if the plant were to achieve advanced waste treatment standards, it still would not meet water quality standards. No evidence was presented as to the possibility of Petitioner using alternative methods of waste disposal, such as deep well injection, land irrigation, or the use of lakes and ponds. In fact, no discharge from the Bennett Road plant could be such as to raise the entire stream to meet the state requirement of 5.0 milligram per liter dissolved oxygen. (Testimony of Sawicki, Davenport, Armstrong, Horvath, Brown, Petitioner's Composite Exhibit 2, Respondent's Exhibit 3) An interoffice memorandum of Respondent's Grants section, dated October 28, 1976, pointed out that enforcement action had been shown to be a "great motivator in the area of bringing awareness to governmental agencies of their responsibilities in the field of pollution abatement." The memorandum sought compliance investigations of the various governmental entities within the area where the proposed regional sewage treatment system for East Orlando was to be undertaken, with recommendations that enforcement action be taken in the case of any violations of state standards. The memorandum further stated that enforcement action was already underway against the City of Orlando. The author of the memorandum denied that it was an attempt to force Respondent to proceed more vigorously with the regional system. (Testimony of Schneider, Petitioner's Exhibit 5) The Orange County Pollution Control Board requires variances from its rule that no treated effluent shall be discharged into the surface waters of the county. The Bennett Road plant operates under such a variance and at the present time is meeting county standards for sewage treatment. On May 19, 1976, the Orange County Assistant Pollution Control Director advised Respondent that the Bennett Road plant was meeting current state performance requirements and recommended approval of the operation permit. Although the county maintains records of the Little Econ River at various points, it has not used a mathematical model to determine whether the Bennett Road plant causes water quality violations. (Testimony of Sawicki, Petitioner's Exhibit 3)
Recommendation That the application of Petitioner City of Orlando, Florida for a water pollution operation permit for the Bennett Road sewage treatment facility be denied. DONE and ENTERED this 25th day of May, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Vance W. Kidder, Esquire Assistant General Counsel Department of Environmental Regulation 2562 Executive Circle East Montgomery Building Tallahassee, Florida Gretchen R. H. Vose, Esquire Assistant City Attorney 16 South Magnolia Avenue Post Office Box 793 Orlando, Florida 32802 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION CITY OF ORLANDO, FLORIDA, Petitioner, vs. CASE NO. 76-1573 STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
The Issue The issue is whether the Petition for Administrative Hearing should be dismissed for failure to state a cause cognizable under Florida Law.
Findings Of Fact On November 30, 1998, Suwannee American filed its application and fee for an air construction permit for a dry process, preheater/precalciner type portland cement plant. The cement plant will emit oxides of nitrogen as a result of the combustion of fuels. A small fraction of the nitrogen oxides will, through oxidation, convert to nitrate. Some of the nitrate will become available for deposition as fall- out through two mechanisms: (a) dry deposition from particulate deposition; and (b) wet deposition from rainfall. Nitrate that lands on land and water surfaces can remain there, be taken up by vegetation, or enter ground and surface waters. The cement plant will also emit mercury. Joseph Kahn, a permit engineer in the Department's Division of Air Resources, Bureau of Air Regulation, was assigned to review the application. Early in the review process, Mr. Kahn became aware that members of the public and the Department's staff in its park's division had concerns about the atmospheric deposition of mercury and nitrate emissions from the cement plant. By letter dated December 29, 1998, Mr. Kahn requested the applicant to furnish additional information, including but not limited to, an additional impacts analysis of mercury and nitrogen deposition pursuant to Rule 62-212.400(5)(e), Florida Administrative Code. 1/ Specifically, the December 29, 1998, letter made the following inquiries: 8. Please compare other NOx [nitrogen oxide] limits established by BACT (for LaFarge and Great Star Cement, for example) with the proposed NOx limit and discuss the variables that affect emissions of NOx from Portland cement plants that are applicable to the proposed facility. * ** Please discuss the basis for the estimated emissions of mercury and provide illustrative calculations. Please estimate the possible impact or deposition of mercury at the Ichetucknee Springs State Park and the Santa Fe and Suwannee Rivers in the vicinity of the proposed facility. Please perform an additional impact analysis in the PSD [prevention of significant deterioration] Class II area near the facility including the Ichetucknee springs State Park and the Santa Fe and Suwannee Rivers in the vicinity of the proposed facility. This analysis must include impact on growth, soils and vegetation, and visibility. On February 25, 1999, the Department received Suwannee American's response to the December 29, 1999, letter. The response states as follows in regards to the deposition of mercury: Response: The PSD report used an emission factor for mercury from AP-42, Table 11.6-9, for cement Kilns with fabric filters. The other available emission factor in AP-42 is for cement kilns with ESPs. As this kiln will utilize an ESP for the pyroprocessing system, this response uses the ESP emission factor: 0.00022 pounds/ton of clinker X 839,5000 tons/year = 185 tons per year. Mercury emission data from nine cement plants ere evaluated as reported in the EPA Document Locating and Estimating Air Emission From sources of Mercury and Mercury compounds. These data are shown in the following table: [Table Omitted] The use of the average value from these tests results in a lower and consistent value: 0.000171 pounds/ton of clinker X 839,500 tons/year = 144 pounds per year. Emission estimates based on expected mercury levels in limestone, clay, sand, fly ash, and coal that will be used by Suwannee American result in an estimated emission rate of 129 pounds per year. The ambient air impact of mercury at the Ichetucknee Springs State Park and the Santa Fe and Suwannee rivers in the vicinity of the proposed facility is estimated as 0.00003- 0.00005 ug/m 3/ as a maximum annual concentration. The Reference Air concentration (RAC) for mercury (40 CFR 266, Appendix IV) is 0.3/m 3/ annual average. The deposition of mercury at the Ichetucknee Springs State Park and the Santa Fe and Suwannee Rivers in the vicinity of the proposed facility is estimated as 0.00002- 0.00005 g/m 2/ as a maximum annual deposition. If this level of deposition continued for 50 years and if all deposited mercury was to accumulate in the top six inches of soil, the increase in mercury levels in the soil would be on the order of 0.006 mg/kg. Safe mercury levels in soil established by Rule 62-785, F.A.C., are 3.7 mg/kg for direct exposure and 2.1 mg/kg for groundwater protection. After receiving the applicant's response to the December 29, 1998, request for additional information, Mr. Kahn performed independent evaluations to determine whether nitrate or mercury deposition would be of special concern in the area around the proposed plant. As to nitrate deposition, Mr. Kahn determined that approximately 50 tons per year of the NOx would be converted and deposited as nitrate within a 23-mile radius of the plant. He concluded that the estimated nitrate deposition from the cement plant was not significant because it was less than 0.1 percent of the annual total loading rate of nitrate (50,000 tons per year) from all other sources in the counties surrounding the Suwannee River. Mr. Kahn's independent analysis of mercury deposition yielded similar results. He concluded that, compared to the background levels of mercury existing in the soils around the proposed facility, and compared to the criteria of the Department's direct exposure soil criteria, 2/ the estimated additional mercury deposition from the cement plant would not be significant. Mr. Kahn and the applicant made several conservative assumptions in making an analysis of mercury deposition. For example, they assumed that mercury would be emitted and deposited in the cement plant's vicinity at a constant rate for 50 years. They also assumed that all of the mercury deposited on the ground would remain in the top six inches of the soil and would not migrate into any other media. On March 25, 1999, the Department conducted a public meeting on Suwannee American's application. The public commented on various issues. As to atmospheric deposition of substances, the public's comments were not structured enough for the Department to consider them per se in the application review. By letter dated March 26, 1999, the Department summarized the public concerns and requested Suwannee American to furnish the following information in relevant part: 2. Estimate potential mercury emissions from the pyroprocessing system, and characterize the fraction of mercury that will come from other raw material, coal, petroleum coke and tires. Please evaluate control methods for mercury emissions. * * * 8. What portion of the proposed plant's Nox emissions will be deposited as nitrate through dry and wet deposition within an area 25 miles radius from the site? Investigate pollution prevention techniques that may result in lower overall NOx emissions. On or about April 21, 1999, Suwannee American responded to the above-referenced questions. As to question no. 2, the responses states as follows: Response: Potential mercury emissions were submitted to the Department on February 25, 1999. Using three different approaches, the projected emissions were in all cases below the 200 pound per year threshold established by Rule 62-212.400(2)(f) and Table 212.400-2, F.A.C. as a significant emission rate increase (for PSD permitting purposes). Because the expected emissions are below the threshold amount, there is no regulatory requirement to apply BACT review for the de minimis emissions that are expected. Approximately 40 percent of the mercury will be contributed by fuel (coal) and 60 percent by raw materials. When petroleum coke or tires are used as fuel, the mercury contributed by fuel is expected to decrease. As to question no. 8, Suwannee American's response stated as follows: Response: The applicant notes that the matters inquired of in this request are not related to those matters allowed under Section 403.0876(1), F.S., and therefore requests that the Department begin processing the permit application under Section 403.0876(2)(a), F.S. However, in a continuing effort to be responsive to the concerns behind the questions asked, the applicant submits the following information, provided the submittal does not affect the permit processing time clock. Approximately 7% or less of the plant's NOx emissions will be deposited as nitrate through dry and wet deposition within an area 25 miles radius from the site. This is approximately 0.1 pounds per acre per year, and is less than one percent of the wet and dry background deposition measured at the Bradford Forest, near Starke, Florida. This analysis was very conservative, as it assumed nitrate deposition between five miles and 25 miles to be equal to the deposition rate at five miles (i.e., there was no credit taken for the decrease in deposition rate with distance beyond five miles). This approach is also conservative in that it assumed all NOx from the plant would immediately convert to nitrate and be available for deposition. This is a worst case assumption. Pollution prevention operating procedures that may result in lower overall NOx emissions are being evaluated. One technique planned for the facility is the stockpiling of limestone to allow natural drainage before pyroprocessing. Lower material moisture contents allow for the use of less fuel and hence, less NOx. After receiving Suwannee American's response to the Department's March 26, 1999, letter, Mr. Kahn reviewed the applicant's analysis. He compared information presented by the applicant with his own estimates of nitrate and mercury deposition. Suwannee American's data confirmed Mr. Kahn's prior conclusion that atmospheric depositions of mercury and nitrate from the cement plant would not be a significant fraction of the existing total deposition and total loading of those elements from all sources. Mr. Kahn did not perform any further analysis to estimate the impact of nitrate or mercury emissions on the area surrounding the proposed plant. He never made any comparisons to the Department's surface water quality criteria or standards related to Outstanding Florida Water (OFW) bodies. In other words, Mr. Kahn did not attempt to discern the specific impact of mercury and nitrate deposition on the ground water and surface water surrounding the proposed plant. His additional impact analysis was limited to comparing the estimated mercury and nitrate depositions from the proposed facility to the existing total loading of those elements from all sources in the area around the cement plant. Concluding that the impacts would be insignificant, he then informally advised certain members of the public, including Mr. Greenhalgh and some of Sierra Club/SOS' members, that the water pollution and OFW rules did not apply. The Department's Division of Air Resources never applies the standards relating to water quality or an OFW. Those standards are applied and enforced by the Department's staff in its water resource division when a water pollution permit is required. If there are off-site impacts that are not covered by the PSD rules, the applicant will be required to apply for other applicable permits. 3/ The parties do not assert that, in order to construct the cement plant, Suwannee American requires a separate water pollution permit to determine its compliance with the OFW rules. No one from the Department's water resource division officially reviewed the application at issue here. In performing his independent evaluation of additional impacts, Mr. Kahn sought information regarding the total nutrient loading in the Middle Suwannee River Basin from all sources from the Department's water resource staff, including Mr. Greenhalgh. Mr. Greenhalgh is a professional geologist who works for the Department in its water resource division. Specifically, Mr. Greenhalgh is one of the individuals working on the Department's Total Maximum Daily Load (TMDL) analysis for the Middle Suwannee River Basin. In response to Mr. Kahn's inquires, Mr. Greenhalgh stated that the basin had already exceeded its assimilative capacity and could not tolerate additional inputs of nitrate. Other members of the Department's water resource division gave Mr. Kahn similar opinions. However, Mr. Greenhalgh admits that he has not done any calculations to determine the impact of atmospheric deposition of nitrates from the proposed plant on the surrounding area. Mr. Greenhalgh directed Mr. Kahn's attention to a paper written by David Hornsby, an employee of a water management district, concerning the total nitrate loading from all sources in the Middle Suwannee River Basin. Mr. Kahn used data from the paper to make his comparisons between the total nitrate loading from all sources in the area to his estimate of nitrate deposition from the proposed plant. Mr. Kahn then informed Mr. Greenhalgh that the Department could not deny the permit on the basis of nitrate atmospheric deposition because the Department did not regulate all sources of nitrate in the basin. Except for the applicant, and the informal consultations with members of the Department's Division of Water Resources, no one furnished Mr. Kahn with any technical information regarding the atmospheric deposition of mercury and nitrates. The Federal Environmental Protection Agency has not developed or approved methods for calculating air deposition rates for emissions. In the absence of such standards, the methods used by Suwannee American and Mr. Kahn to determine the proposed facility's additional impact on the surrounding area were appropriate and reliable. The Department has adopted the federal government's acid rain rule (Rule 62-214.420, Florida Administrative Code.) That rule specifically addresses water quality impacts from the emissions and atmospheric deposition of sulfur dioxide and NOx from certain electric power plant facilities. The parties agree that the acid rain rule does not apply in this case. Permits for electrical power plants are issued under the authority of the Florida Electrical Power Plant Siting Act. The Governor and Cabinet sitting as the electrical power plant siting board approve power plant siting applications. The Department's Division of Air Resources performs a PSD review for electric power plant siting applications. Unlike the circumstances in this case, an electrical power plant siting application also requires other sections of the Department to consider impacts on water quality, solid waste, and land use. Under the terms of the Florida Electrical Power Plant Siting Act, the Department has required one other applicant to perform the type of additional impact analysis that was performed in this case. That application involved an existing Florida Power and Light Company, Inc. (FP&L) electrical power plant located near Tampa Bay, an OFW. The FP&L electrical power plant requested permission to convert to orimulsion fuel. In the FP&L power plant case, the Department took the position that water quality concerns were satisfied by a demonstration of compliance with air quality standards. There is no specific permit application that one would fill out or apply for to determine if one would be in compliance with the OFW rule. The OFW rule is usually considered in the context of another permit. However, there is no evidence that the Department has ever considered the OFW rule in the context of a new source PSD permit application. Suwannee American's proposed cement plant will be located within three miles of an OFW. There is no evidence that the Department has ever considered another application for a new source PSD (prevention of significant deterioration) permit within such close proximity to an OFW. Sierra Club/SOS' only factual allegation is that Suwannee American has not provided reasonable assurances that it would not significantly degrade the Santa Fe River, an OFW, through the atmospheric deposition of mercury, in contravention to Rule 62-302.700, Florida Administrative Code. 4/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter a final order dismissing the Petition for Administrative Hearing in DOAH Case No. 99-3096, with prejudice for lack of standing. DONE AND ENTERED this 21st day of October, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 21st day of October, 1999.
The Issue Whether the costs incurred by the Department of Environmental Protection, Bureau of Emergency Response (Department) in connection with its response to Incident Number 97-02-0234 may be recovered from Petitioner pursuant to Chapters 376 and 403, Florida Statutes.
Findings Of Fact The Department is a state regulatory agency charged with the responsibility of administering and enforcing the provisions of Chapters 376 and 403, Florida Statutes. Orchard View Development, Limited (Orchard View) is an Ontario, Canada corporation. Its president is William T. Lamsom. Orchard View is now, and has been since approximately two to six months prior to the incident which is the subject of this proceeding, the owner of a triangular, three-quarter acre parcel of undeveloped land (Orchard View's Parcel or the Parcel) located on the fringe of a Boca Raton, Florida residential neighborhood. There are children in the neighborhood who pass by the Parcel on their way to and from school. City streets border Orchard View's Parcel on all sides. Across one of these streets is a creek. Orchard View owns an additional 78 acres of undeveloped land (Orchard View's Acreage or the Acreage) to the north of its Parcel. Only a street separates the Acreage from the Parcel. Orchard View first acquired the Acreage in approximately 1975 and sold it about 14 or 15 years later. During this 14 or 15-year period, the Acreage was used by others, without Orchard View's approval or authorization, as a dumping ground. Numerous items, including boats, automobiles, tires, baby carriages, mattresses and landscaping material, were left abandoned on the property. Steps taken by Orchard View (which was well aware of the problem) to deter such dumping, including posting "no trespassing" signs on the property and erecting a 10-foot dirt barrier on one side of the property, were ineffective. Orchard View also complained to the police about the problem, but the making of these complaints did not result in an amelioration of the situation. Orchard View reacquired the Acreage at approximately the same time it acquired the Parcel. Since Orchard View's reacquisition of the Acreage, unauthorized persons have driven their all-terrain vehicles on the property without the approval or authorization of Orchard View, notwithstanding the "no trespassing" signs on the property. Although aware of the dumping problems in the area, Orchard View has not, at any time after its acquisition of the Parcel, posted "no trespassing" signs on the Parcel or erected a fence or other barrier around the Parcel, nor has it taken any other measure designed to discourage or prevent dumping on the Parcel. On June 9, 1997, at 11:10 a.m., the Department was notified by Lieutenant John Johnson of the Boca Raton Fire Department that four drums, which were labelled “poison and toxic,” had been discovered on the Parcel. The drums did not belong to Orchard View. They had been dumped on the Parcel by some person or persons not associated with Orchard View without Orchard View's knowledge, approval or authorization. Catherine Porthouse, an Environmental Specialist II with the Department, promptly responded to the scene (where she met Lieutenant Johnson) and served as the Department's on-scene coordinator. Because the drums were labelled “poison and toxic” and their contents were unknown, Lieutenant Johnson would not allow anyone, including Porthouse, to approach the drums without "Level B" protective clothing and equipment. Porthouse therefore initially viewed the drums from a distance using binoculars. She noted that three of the drums were leaking and that there was stained soil in the area of the drums. She also saw other solid waste materials nearby. Porthouse learned that Orchard View was the owner of the property on which the drums were located. At 12:49 p.m. on June 9, 1997, Porthouse telephoned Lamson and advised him that the drums were on the Parcel and that they needed to be removed by an "emergency response contractor." When informed about the presence of the drums on the Parcel, Lamson was not surprised. He realized (as he testified at hearing) that the area was "a good dumping ground." Lamson told Porthouse that he would ask his son, a general contractor who lived and worked near the Parcel, to remove the drums. Porthouse, however, explained to Lamson that the removal of the drums needed to be done by someone qualified, under state and federal law, to handle and transport hazardous substances. Lamson thereupon asked Porthouse to provide him with a list of "emergency response contractors" qualified to remove the drums. Porthouse gave Lamson her office and cellular phone numbers and asked him to call her back within no more than three hours to update her on his efforts to hire an "emergency response contractor" to remove the drums. Following Porthouse's telephone conversation with Lamson, the Department faxed to Lamson the list of qualified contractors Lamson had requested during the telephone conversation. After speaking with Porthouse, Lamson attempted to telephone his son. Lamson's son was not in, so Lamson left a message on his son's answering machine telling his son about his telephone conversation with Porthouse concerning the abandoned drums on the Parcel. In his message, Lamson asked that his son look into the matter. Neither Lamson, nor his son, made any arrangements for a qualified "emergency response contractor" to remove the drums from the Parcel; nor did either of them contact Porthouse and advise her that such arrangements had been made or would soon be made. Accordingly, at approximately 4:00 p.m. on June 9, 1997, after having waited over three hours for Lamson to provide her with such information, Porthouse hired Magnum Environmental Services (Magnum), a qualified "emergency response contractor" with whom the Department had a contract, to properly dispose of the four abandoned drums (and their contents), as well as the stained soil, on the Parcel. Magnum personnel (with "Level B" protective clothing and equipment) responded to the scene shortly thereafter. By approximately 6:30 or 7:00 p.m. that day (June 9, 1997), Magnum personnel had overpacked, removed from the Parcel and taken to an off-site hazardous waste storage facility the four abandoned drums (and their contents), as well as a fifth drum which contained the stained soil from the site (which Magnum had excavated). Before it had overpacked the drums and removed them from the Parcel, Magnum had examined and sampled the contents of each drum. The samples that Magnum had collected from the drums were sent to the laboratory for analysis. The analysis revealed the following: drum number 11 contained oil, barium, lead and toluene and had a flashpoint of less than 100 degrees Fahrenheit; drum number 2 contained oil mixed with water, as well as barium, lead and chromium, and had of flashpoint of between 101 and 139 degrees Fahrenheit; drum number 3 contained oil mixed with water, as well as barium and lead, and had of flashpoint of between 101 and 139 degrees Fahrenheit; drum number 4 contained oil mixed with water, as well as barium, lead and chromium, and had of flashpoint of over 200 degrees Fahrenheit; drum number 5 contained the soil that had been contaminated by spillage from drum numbers 2, 3 and 4 and had of flashpoint of between 101 and 139 degrees Fahrenheit. Magnum properly disposed of the drums based upon the results of its analysis. The Department paid Magnum $6,135.00 from the Water Quality Assurance Trust Fund for the services Magnum performed. In requesting Magnum to perform these services and in paying Magnum $6,135.00 for having done so, the Department acted reasonably and prudently. The amount it paid Magnum was not excessive.2 The Department reasonably incurred other expenses (also paid from the Water Quality Assurance Trust Fund) totaling $390.13 in connection with its response to the report it had received concerning the abandonment of the four drums on the Parcel. The total amount the Department paid from the Water Quality Assurance Trust Fund to have these abandoned drums properly removed from the Parcel and disposed of was $6,525.13. The Department is requesting that Orchard View reimburse the Department for these costs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department finding that it is entitled to recover from Orchard View, pursuant to Chapters 376 and 403, Florida Statutes, the $6,525.13 in costs it reasonably incurred in connection with its response to Incident Number 97-02-0234. DONE AND ENTERED this 15th day of June, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 15th day of June, 1998.
The Issue Whether the Respondent's license for the Egret Motel should be suspended or revoked and whether a fine should be imposed upon the Respondent?
Findings Of Fact At all times relevant to these proceedings Harshada Nagda has been the holder of license 52-69H, a license for a public lodging establishment known as the Egret Motel (hereinafter referred to as the "Egret"). The Egret is located at 300 S.W. 18th Street, Ocala, Marion County, Florida. There are five septic tanks on the property where the Egret is located. Three of those septic tanks have not created any problems during the period of time at issue in this proceeding. As early as September 10, 1986, problems with two of the septic tanks and the waste disposal system of the Egret have bean experienced. As a result of the problems with the Egret's waste disposal system, an Official Notice to Abate a Sanitary Nuisance was issued by the Marion County Public Health Unit on May 6, 1987. This Notice was hand delivered to the Manager of the Egret. The following violation was reported on the Notice: "An inspection on 9/10/86, 2/11/87, 5/5/87 disclosed the discharge of untreated or improperly treated human waste onto the ground surface." On June 8, 1987, the Respondent signed the following letter to Mr. David L. Townsend, Environmental Health Director, Marion County Public Health Unit: This letter shall serve as consent order that I will keep the existing septic tank system and drain field pumped and maintained until, [sic] January 1, 1988, by which time the existing buildings will be torn down and the new buildings will be hooked up to the City of Ocala Sewer System. On October 5, 1987, the Marion County Public Health Unit received a complaint from a neighbor of the Egret about the sewage system. On October 5, 1987, Robert Wade Varnadore, an Environmental Health Supervisor of the Marion County Public Health Unit, and William B. Dickson, an Environmental Health Specialist with the Petitioner, inspected the Egret property. They discovered raw, untreated sewage leaking onto the surface of the grounds of the Egret in three different places. The sewage from these locations ran along the surface of the Egret property toward the back of the property. The ground around the leaks and the run off was saturated with effluent (human liquid waste), there was fecal material (human solid waste) and tissue paper in standing effluent and a bad odor permeated the area. The conditions were similar to those found on October 13, 1987, as described further, infra. Mr. Dickson completed a Public Lodging Inspection Record on October 5, 1987, at the end of the inspection and gave it to Lenora Cox, who signed the Record as manager of the Egret. The Record reported a "Major" problem with "sewerage or disposal system" and indicated the following: "Failure to maintain an adequate and approved sewage disposal system as evidence [sic] by failing septic systems leaking raw sewage to the surface of the ground." Mr. Varnadore reported the condition of the Egret on October 5, 1987, to Mr. Townsend and recommended that action be taken to close the Egret. Mr. Townsend and Mr. Varnadore then met with Nathan Grossman, M.D., Marion County Health Director. Dr. Grossman was informed of the present condition of the Egret and the history of the problem. Based upon this report, Dr. Grossman condemned the property by letter dated October 5, 1987, "as an imminent threat to the health, safety and welfare of the public." On October 8, 1987, Mr. Dickson returned to the Egret and conducted an inspection. Mr. Dickson completed a Public Lodging Inspection Record. A copy of the Record was given to Al Cox, who signed the Record as "manager" of the Egret. Mr. Dickson noted the following -major" problems in the following general categories at the Egret: Electrical deficiencies, proper locking devices, building repair/painting; toilet/lavatory facilities, household furnishings, plumbing, ventilation, garbage and refuse, sewerage or disposal system, room rates posted and smoke detector. The specific problems discovered by Mr. Dickson were noted on a sheet of paper which has been accepted into evidence as exhibit 4. Mr. Dickson's description of the specific problems at the Egret in exhibit 4 is hereby adopted as a correct characterization of problems existing at the Egret. Among the problems existing at the Egret on October 8, 1987, was the failing sewerage at the same locations noted during the October 5, 1937, inspection of the Egret. As a result of the inspection on October 8, 1987, Mr. Dickson requested an emergency order closing the Egret. On October 13, 1987, Mr. Varnadore, Mr. Dickson and Mr. Townsend went to the Egret and served an Emergency Order of Suspension and a Notice to Show Cause. The Emergency Order of Suspension orders the suspension of the Respondent's license until the Order is lifted or a Final Order is issued pursuant to the Notice to Show Cause. The Emergency Order also ordered the Respondent to cease and desist from the sale or rental of lodging units at the Egret. The Notice to Show Cause notified the Respondent that the Petitioner may assess a civil penalty against her or suspend or revoke her license with the Petitioner based upon the condemnation by the Marion County Public Health Unit of the Egret, the condition of the sewage system of the Egret on October 3, 1987, and other problems noted by Mr. Dickson as a result of his October 8, 1987, inspection. The Notice to Show Cause also notified the Respondent that, if she wished to contest the charges against her, she could inform the Petitioner that she intended to attend an emergency hearing scheduled to commence on October 16, 1987, or she would be given at least fourteen days notice of a final hearing to be conducted at a later date in accordance with Section 120.57(1), Florida Statutes. At the time that the Emergency Order of Suspension and the Notice to Show Cause were served, nine pictures were taken on the property of the Egret reflecting the condition of part of the Egret's sewage system. The conditions reflected in the pictures are representative of the conditions in existence on October 5, 1987. Sewage was found to be leaking to the surface in at least three locations. There were exposed and broken pipes connecting the sewage system to the Egret, standing effluent and saturated ground, floating tissue paper and fecal matter. If a hotel has raw sewage on the ground and people are on the property, those people are in danger. Anyone coming into contact with human waste can contract hepatitis, a liver disease, or any number of other diseases. Although the Respondent indicated that the problem with the sewage system had been corrected, the weight of the evidence fails to support such a finding of fact. The Respondent indicated that she believed that the problem discovered with the sewage system in October had been caused by excessive rain and roots clogging the system. She indicated that the roots had now been cleared. Removing roots, however, will not stop broken pipes from leaking and the evidence failed to support a conclusion that the system will not fail again when it rains or otherwise.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent's license number 52-69H be suspended for a period of 12 months for violating Sections 509.211(1) and 509.215(1), Florida Statutes (1986 Supp.), Section 509.221(2) and (5), Florida Statutes (1985), and Rules 7C-1.004 (4) and (7), and 7C-3.00l(1) and (9), Florida Administrative Code. It is further RECOMMENDED that a total fine of $500.00 be imposed on the Respondent for violating Sections 509.201(1), and 509.221(2), Florida Statutes (1985), and Rules 7C-1.003(1), and 7C-3.002(i) and (2), Florida Administrative Code. DONE and ENTERED this 4th, day of November, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4484 The Petitioner has 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. Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 and 2. 4 and 5. The first paragraph is unnecessary. It only affects the weight to be given Mr. Varnadore's testimony. The last two para- graphs are technically not findings of fact; are statements about the witnesses' testimony. It will be assumed that such statements about testimony are intended to reflect the facts. See 7, 8 and 10. 8 and 9. 11. Mr. Dickson's "opinion" is irrelevant. 14 and 17. The last sentence is a con- clusion of law. 7. 17. 8. Irrelevant. 9. 17. 10. The last sentence is irrelevant. Irrelevant. 10. The last sentence is irrelevant. 8, 10 and 18. Dr. Grossman did not, how- ever, testify about a facility of "more than 30 units." Although Dr. Grossman was asked about a 30 unit facility he specifically indicated that his conclusion about the Egret had nothing to do with the size of the facility. 14. 5. 15. 6. 16. 3 and 19. 17-19. Irrelevant. COPIES FURNISHED: Van B. Poole, Secretary The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 R. Hugh Snow, Director Division of Hotels and Restaurants Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1000 Lynne A. Quimby, Esquire Department of Business Regulation The Johns Building 725 South Bronough Street Tallahassee, Florida 32399-1007 Harshada Nagda Egret Motel 300 Southwest 18th Street Ocala, Florida 32674
The Issue The issue in this case is whether Petitioner should be issued an air construction permit authorizing its Crystal River steam generating plant Units 1 and 2 to co-fire a five to seven percent blend of petroleum coke with coal.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioner, Florida Power Corporation (FPC), is an investor-owned public utility engaged in the sale of electricity to approximately 1.2 million customers. Among others, it operates the Crystal River Power Plant consisting of five electric-generating units in Citrus County, Florida. Units 1, 2, 4, and 5 are coal-fired, while Unit 3 is a nuclear unit. Respondent, Department of Environmental Regulation (DEP), is a state agency charged with the statutory responsibility of regulating the construction and operation of business enterprises in a manner to prevent air pollution in excess of specified limits. Among other things, DEP issues air construction permits for a limited period of time to undertake and evaluate initial operations of a business enterprise; long- term approval subsequently is available under an air operation permit. As a part of this process, and pursuant to federal law, DEP engages in a Prevention of Significant Deterioration (PSD) review to determine if non-exempt alterations to major facilities result in net emission increases greater than specified amounts. Under certain conditions, however, the use of alternative fuels or raw materials are exempted from PSD review. Intervenor, Legal Environmental Assistance Foundation, Inc. (LEAF), is a non-profit Alabama corporation licensed to do business in the State of Florida. It is a public interest advocacy organization whose corporate purposes include securing environmental and health benefits from clean air and water. Intervenor, Sierra Club, Inc. (Sierra Club), is a public interest advocacy organization incorporated in California and doing business in Florida. Its corporate purposes include securing the environmental and health benefits of clean air and water. On December 26, 1995, FPC filed an application with DEP for an air construction permit authorizing it to burn a blend of petroleum coke and coal in its existing coal-fired Units 1 and 2 at the Crystal River Power Plant in Citrus County, Florida. In the application, FPC did not address PSD review since it believed it qualified for an exemption from PSD permitting under Rule 62- 212.400(2)(c)4., Florida Administrative Code. That rule exempts from PSD review the [u]se of an alternative fuel or raw material which the facility was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975. After reviewing the application, DEP issued an Intent to Deny on June 25, 1996. In that document, DEP stated that [a]ccording to information in Department files, both Units 1 and 2 operated on liquid fuel prior to January 6, 1975. Very substantial modifications of the boilers and pollution control equipment were implemented thereafter by [FPC] to convert the units to coal-firing mode. Therefore the project does not qualify for the exemption from PSD review claimed by the company. Contending that it was entitled to an exemption from PSD review and therefore a permit, FPC filed a Petition for Administrative Hearing on October 4, 1996. In its Petition, FPC generally alleged that petroleum coke is a product with characteristics very similar to coal; Units 1 and 2 were capable of accommodating coal and petroleum coke as of January 6, 1975; and contrary to the statements in the Intent to Deny, any boiler modifications and pollution control improvements to those units were minor and not substantial. The Permitting Program The PSD program is based on similar PSD requirements found in the federal Clean Air Act of 1970, as amended (the Act). The permitting program is a federally required element of DEP's State Implementation Plan (SIP) under Section 110 of the Act. DEP has fulfilled the requirement of administering the federal PSD program by obtaining approval from the Environmental Protection Agency (EPA) of state PSD regulations that meet the requirements of federal law. The requirements of the SIP are found in Chapters 62-204, 62-210, 62-212, 62-296, and 62-297, Florida Administrative Code. Chapter 62-212 contains the preconstruction review requirements for proposed new facilities and modifications to existing facilities. Rule 62-212.400, Florida Administrative Code, establishes the general preconstruction review requirements and specific requirements for emission units subject to PSD review. The provisions of the rule generally apply to the construction or modification of a major stationary source located in an area in which the state ambient air quality standards are being met. Paragraph (2)(c) of the rule identifies certain exemptions from those requirements. More specifically, subparagraph (2)(c)4. provides that a modification that occurs for the following reason shall not be subject to the requirements of the rule: 4. Use of an alternative fuel or raw material which the facility was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975. The rule essentially tracks verbatim the EPA regulation found at 40 CFR 52.21(b)(2)(iii)(e)1. Therefore, in order to qualify for an exemption from PSD review, FPC must use "an alternative fuel . . . which [Units and 2 were] capable of accommodating before January 6, 1975." In addition, FPC must show that "such change would [not] be prohibited under any federally enforceable permit condition which was established after January 6, 1975." Contrary to assertions by Respondent and Intervenors, in making this showing, there is no implied or explicit requirement in the rule that FPC demonstrate that it had a subjective intent to utilize petroleum coke prior to January 6, 1975. The Application and DEP's Response In its application, FPC proposes to co-fire a five percent (plus or minus two percent) blend of petroleum coke with coal, by weight. It does not propose to make any physical changes to Units 1 and 2 to utilize petroleum coke. Also, it does not request an increase in any permitted air emission rates for the units because it can meet its current limits while burning the proposed blend rate of petroleum coke with coal. The application included extensive fuel analysis and air emissions data obtained from a DEP-authorized petroleum coke trial burn conducted from March 8 until April 4, 1995. Although it is not proposing to make physical changes to the plant, FPC applied for the air construction permit in deference to DEP's interpretation that such a permit is required when a permittee utilizes an alternative fuel. After completing his initial review, the DEP supervisor of the New Source Review program acknowledged in a memorandum to his supervisor that FPC was "entitled to a permit" but suggested that FPC be asked to "change their minds." Before the permit was issued, however, DEP changed its mind and issued an Intent to Deny on the ground that prior to January 6, 1975, Units 1 and 2 were not capable of accommodating coal or a blend of petroleum coke with coal. The Units Unit 1 has a generating capacity of 400 MW and commenced operation as a coal-fired plant in October 1966. It fired coal until March 1970, fuel oil until October 1978, and then again fired coal from June 1979 to the present. Unit 2 has a generating capacity of 500 MW and commenced operations as a coal-fired plant in November 1969. It fired coal until September 1971, fired fuel oil from December 1971 until October 1976, and then again fired coal from December 1976 to the present. Original equipment installed during the initial construction of Units 1 and 2 included the following: the barge unloader, which removes coal from barges that deliver coal from New Orleans; the stacker/reclaimer, which stacks the coal into piles and then reclaims the coal by directing it from the coal piles to conveyors that deliver it to the units; the crusher house, which has two crushers that crush the coal on the way to units down to nuggets no larger than three-quarters of an inch in diameter; the silos, which store the crushed coal; the feeders, located below the silos, which regulate the flow of coal from the silos to the pulverizers; the pulverizers, which grind the coal in preparation for combustion and then direct the pulverized coal to the burners, which are located on the corners of each unit's boiler; and the boilers, where the fuel is combusted, imparting heat to water contained in the waterwalls and thereby producing steam for electrical generation. The foregoing equipment was reflected in the plant's construction specifications and remains in operation, on site, at the plant. Components and parts of this equipment have been maintained, replaced, and repaired periodically. The original operations manual for the barge unloader, stacker/reclaimer, crushers, and conveyor systems are still kept and utilized on site. The primary fuel utilized in Units 1 and 2 is coal, although these units also co-fire from one to five percent number fuel oil and used oil. The combustion of fuel in Units 1 and 2 results in air emissions. As a result of changing regulatory requirements, there have been substantial improvements to the units' air pollution control capabilities since original construction. Existing Air Permits Unit 1 currently operates under Air Operation Permit Number A009-169341. Unit 2 operates under Air Operation Permit Number A-009-191820. Both permits were amended by DEP on October 8, 1996. Although each air operation permit contains an expiration date that has been surpassed, the permits remain in effect under DEP's regulations during the pendency of the agency's review of FPC's applications for air operation permits under the new Title V program found in Chapter 62-213, Florida Administrative Code. The air operation permits governing Units 1 and 2 contain mass emission rate limitations of 0.1 pounds/million (mm) British thermal units (Btu) or particulate matter (PM), and 2.1 pounds/mmBtu for sulfur dioxide. These mass emission rate limitations restrict the amount of each pollutant (measured in pounds) that is to be released into the atmosphere per million Btu of heat energy by burning fuel. The PM limitation is applicable to Units 1 and 2 under state regulations originally promulgated in 1972. The sulfur dioxide limitation was established in 1978 as a result of a PSD air quality analysis performed in conjunction with the permitting of Units 4 and 5. Prior to 1978, sulfur dioxide limits promulgated early in 1975 imposed a limit of 6.17 pounds/mmBtu on coal-fired operations at Units 1 and 2. Because Units 1 and 2 were subjected to a PSD air quality impact analysis along with Units 4 and 5, the units' sulfur dioxide emission limits were reduced from 6.17 to 2.1 pounds/mmBtu. The 2.1 pounds/mmBtu sulfur dioxide emission limitation applicable to Units 1 and 2 was set with the intention of assuring no adverse air quality impacts. The sulfur dioxide impacts associated with Units 1, 2, 4, and 5, after collectively being subjected to PSD air quality review, were much lower than the sulfur dioxide impacts previously associated with only Units 1 and 2. Is Petroleum Coke an Alternative Fuel? Petroleum coke is a by-product of the oil refining process and is produced by many major oil companies. The oil refineries refine the light ends and liquid products of oil to produce gasoline and kerosene, resulting in a solid material that resembles and has the fuel characteristics of coal. Both historically and presently, it has been common- place for electric utilities to rely on petroleum coke as fuel. For example, during the period 1969 through 1974, regular shipments of petroleum coke were sent to various electric utility companies throughout the United States to be co-fired with coal. In addition, DEP has issued permits for Tampa Electric Company to co-fire petroleum coke with coal. In 1987 and again in 1990, the EPA promulgated air- emission regulations which specifically define "coal" as including "petroleum coke." DEP has incorporated these regulations by reference at Rule 62-204.800(7)(b) 3. and 4., Florida Administrative Code. Given these considerations, it is found that petroleum coke constitutes an alternative fuel within the meaning of Rule 62-212.400(4)(c)4., Florida Administrative Code. Were the Units Capable of Accommodating the Fuel? Petroleum coke and coal are operationally equivalent. Petroleum coke can be handled, stored, and burned with the existing coal handling equipment at Units 1 and 2. The barge unloader, stacker/reclaimer, storage areas, conveyors, silos, crusher house, pulverizers, and burners, all installed prior to 1975, can handle petroleum coke. The equipment comprising Units 1 and 2 does not require any modification in order to burn a blend of petroleum coke with coal. Also, there will be no net impact on steam generator design or operation, and there will be no decline in performance or adverse impacts to the boilers. FPC could have co-fired petroleum coke with coal historically without making physical alterations or derating the units. Similarly, petroleum coke can be fired in Units 1 and 2 now without alterations or derating. These findings are further supported by Petitioner's Exhibits 35 and 36, which are reference books published in 1948 and 1967 by the manufacturer of the equipment installed at Units 1 and 2. They confirm that prior to 1975, petroleum coke was suitable for the manufacturer's boilers and pulverizers. Unrebutted testimony demonstrated that Units 1 and 2 could have co-fired petroleum coke with oil during the oil-firing period. Even when Units 1 and 2 fired oil instead of coal for a period of time in the 1970s, the coal-handling equipment remained in existence on-site and available for use, and both units remained readily convertible to their original, coal-firing modes. Because the plant remained capable of accommodating coal, it also remained capable of accommodating petroleum coke. In light of the foregoing, it is found that co-firing petroleum coke with coal at Units 1 and 2 could have been accomplished prior to January 6, 1975. Are there Post-January 6, 1975, Prohibitions? There is no evidence to support a finding that a federally enforceable permit condition was establshed after January 6, 1975, that prohibits co-firing petroleum coke with coal. I. Miscellaneous By letters dated February 14 and June 2, 1997, the EPA Region IV office replied to inquiries from DEP regarding the instant application. The conclusions reached in those letters, however, were based on a misapprehension of the facts in this case. Therefore, the undersigned has not credited these letters. To prove up its standing, LEAF introduced into evidence a copy of its articles of incorporation and a brochure describing the organization. In addition, it asserted that the air quality for its members would be "at risk" if Units 1 and 2 did not meet PSD standards and air emissions were "increased." Intervenor Sierra Club proffered that a substantial number of members "live, work, or recreate in the vicinity of the Crystal River Units 1 and 2, and in the area subject to the air emissions by those units," and that those members "would be substantially affected by the proposed exemption."
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 granting the application of Florida Power Corporation and issuing the requested air construction permit. DONE AND ORDERED this 23rd day of September, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1560 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1997. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 James S. Alves, Esquire Post Office Box 6526 Tallahassee, Florida 32314-6526 W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Gail Kamaras, Esquire 1115 North Gadsden Street Tallahassee, Florida 32303-6327 Jaime Austrich, Esquire Post Office Box 1029 Lake City, Florida 32056-1029 F. Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Petitioner applied for conditional use approval from Respondent for the package sale of beer, wine and liquor (4-COP) at 2779 Gulf-To-Bay Boulevard, Clearwater, Florida, on or after September 4, 1987. The subject property is zoned general commercial (CG), and conditional use approval is required for package sales on property zoned CG. Conditional use approval was previously granted for this property on June 30, 1987, to allow on-premises consumption of alcoholic beverages, but this prior approval is not under review in this proceeding. On October 13, 1987, the Planning and Zoning Board voted unanimously to deny Petitioner's application for the package sale of beer, wine and liquor. Petitioner has timely sought review of the Planning and Zoning Board decision. It is undisputed that the subject property is less than 500 feet from an adult congregate living facility (ACLF) which constitutes the residence of approximately 300 persons. Frank Pascoe, the President and representative of the ACLF, testified about the residents' concerns about security, and the adverse impact of this application on the general welfare of their neighborhood. Paula Harvey, Planning Director, testified about the adverse impacts of this application on neighborhood noise, traffic and parking. Ordinance 4470-87 applies to this application since said Ordinance, by its terms, governs applications filed subsequent to September 3, 1987. Petitioner offered no evidence in support of its application. Specifically, there is no evidence in the record favorable to the applicant concerning noise, parking and the compatibility of this application with the neighborhood.
The Issue The first issue is whether Petitioner, Jacqueline M. Lane (Lane) has standing. The second issue is whether International Paper Company (IP) provided reasonable assurances it has the ability to meet the conditions of the existing industrial wastewater permit for the wastewater treatment facility at the paper mill in Cantonment, Florida, pursuant to Rule 62- 620.340(3), Florida Administrative Code. A final issue is whether Lane litigated this matter for an improper purpose.
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following facts are found: The Parties The Department is charged with the responsibility for determining whether to approve the Application for transfer of permit number FL0002562-002-IWF/MT from Champion to IP. IP is a corporation authorized to do business in the State of Florida. IP operates a bleach kraft fine paper mill in Cantonment, Florida, formerly operated by Champion. Lane is a citizen of the State of Florida who lives on Perdido Bay. Application for Transfer of Industrial Wastewater Permit Number FL0002526-002-IWF/MT In June 2000, IP notified the Department it was acquiring Champion as a wholly owned subsidiary. IP took over operation of the facility in Cantonment on January 1, 2001. At that time, the companies had fully merged. On January 19, 2001, IP timely submitted an Application for Transfer of a Wastewater Facility or Activity Permit (Application) and advised the Department that "the permittee name for the pulp and paper mill in Cantonment, Florida[,] has been changed from 'Champion International Corporation, Inc.' to 'International Paper Company.'" Several wastewater permit- related documents were submitted to the Department as part of this name change. The Department processed IP's Application to transfer the facility's permit pursuant to Rule 62-620.340(3), Florida Administrative Code. "The parties agree that this matter is controlled by Rules 62-4.120 and 62-620.340, F.A.C., regarding the transfer of the permit. The parties [did not agree] upon what conditions of the combined permits are applicable to determine whether the Department has received 'reasonable assurances that the conditions of the permit will be met.' Rule 62-620.340(3), F.A.C." Rule 62-620.340(3), Florida Administrative Code, provides: "The Department shall allow the transfer under subsection (2) of this section unless it determines that the proposed permittee cannot provide reasonable assurance that conditions of the permit will be met. The determination shall be limited solely to the ability of the proposed permittee to comply with the conditions of the existing permit, and it shall not consider the adequacy of these permit conditions." (Emphasis added). This proceeding does not involve an enforcement action or consideration of whether the wastewater permit, and related documents, should be renewed. Champion's renewal application is under consideration by the Department. The parties agree that the documents described in Findings of Fact 10-19, infra, set forth the conditions of the permit number FL0002526-002-IWF/MT at this time. These documents are listed below: November 15, 1995, DEP Order (combining the NPDES permit and the State- issued wastewater permit) April 22, 1996, DEP Letter (clarifying November 15, 1995, Order regarding 1983 NPDES Permit) January 3,1983, EPA NPDES Permit December 13, 1989, DER Temporary Operating Permit December 1, 1989, DER Consent Order December 12, 1989, DER Variance The Permit(s), Consent Order, Variances, and Related Permit Documents Before May 1, 1995, in order to operate the wastewater treatment facility at the mill in Cantonment, both state and federal permits were required. The Department or its predecessor agency, the Department of Environmental Regulation (DER), issued state permits pursuant to Sections 403.08 and 403.088, Florida Statutes, and applicable rules. The United States Environmental Protection Agency (EPA) issued federal National Pollutant Discharge Elimination System (NPDES) permits pursuant to 40 Code of Federal Regulation Section 124.15. As a result of EPA's delegation of its NPDES authority to the Department in 1995, only one permit is now required. The 1995 Memorandum of Agreement between EPA and the Department does not allow the Department to modify a permit that has been administratively continued. Modifications to permit limits have to be made through the permit renewal process. On or about January 3, 1983, the EPA issued a NPDES permit to St. Regis Paper Company, authorizing discharge from the facility, located at the paper mill in Cantonment to the receiving waters named Eleven Mile Creek (creek). This NPDES permit contains the federal permit conditions applicable at this time. (EPA has since used the facility as a benchmark model to develop effluent guidelines for its new cluster rule.) On December 1, 1989, the DER entered into a Consent Order with Champion International Corporation. This Consent Order was issued as a result of Recommended and Final Orders issued in Perdido Bay Environmental Association, Inc. et al. v. Champion International Corporation and Florida Department of Environmental Regulation, 12 F.A.L.R. 126 (DER Nov. 14, 1989). This Consent Order allowed the continued operation of the facility. As a compliance requirement, a study report was required to include "an evaluation of technologies and treatment alternatives . . . to determine the most environmentally sound and practicable means to correct identified water quality violations caused by Champion." The studies required by the Consent Order are needed to pinpoint sources of pollutants in the creek and Perdido Bay (bay). The Consent Order has no expiration date although it is tied to the temporary operating permit (TOP) which had an expiration date of December 1, 1994. Extensive studies have been submitted to the Department pursuant to paragraph 14.A. of the Consent Order, which are necessary to trigger "the final compliance plan." This has been an ongoing process since the Consent Order and TOP were issued. The conditions in the Consent Order and TOP apply at this time. Various discharge limitations and monitoring requirements are set forth in the TOP. On December 13, 1989, DER issued a TOP, Number IT17- 156163, to the facility, which was issued in conjunction with the Consent Order. The TOP expressly relies on the Consent Order for authorization. It contains the effective state permit conditions at this time. On December 8, 1989, DER issued a Variance from water quality standards for color (transparency), iron, zinc, and the general water quality criterion for specific conductance. The standards in the Variance are part of the TOP and are effective at this time. The mill no longer needs the Variance for iron and zinc. As to those parameters, it currently operates at lower levels than under the Variance. On November 15, 1995, the Department combined the state and federal operating permits into a single permit identified as Wastewater Permit Number FL0002526-002-IWF/MT. The TOP and NPDES permit were administratively continued when renewal applications were filed. The Department will transfer to IP the permit documents described in Finding of Fact 9, supra. The Department will also transfer the pending permit renewal applications filed by Champion. Wastewater Treatment Facility at the Paper Mill in Cantonment, Florida In the past, Champion owned and operated a 1400-ton per day bleach and kraft pulp and paper mill in Cantonment. The operation is now conducted by IP. The paper mill treats its effluent from industrial activities at an on-site wastewater treatment facility (facility). Stormwater that falls on the industrial portion of the mill is also processed through the facility. The mill is required to and takes monthly samples from the creek for a few parameters, e.g., DO and pH, to provide data to the Department for use in developing possible changes to effluent limitations in a final compliance plan. There is an installed structure that continuously measures the flow of the effluent at the end of the facility's treatment system. This point, i.e., where the flow is measured, is called the Parshall Flume which is the compliance point for the facility. The effluent at Parshall Flume is automatically sampled each day, analyzed, and reported on a monthly basis to the Department. The analyses are reviewed and compared to the effluent limitations for a particular permit. The treated effluent is discharged from the Parshall Flume through a pipe to natural wetlands. In this wetland area, the treated effluent combines with several streams, non- processed stormwater, and runoff from land south and west of the facility. Runoff from residential areas and areas west of the mill, including the City of Cantonment, also flows into this area. The IP mill is not the only source of discharge into this area. After passing through the natural wetlands, the treated effluent runs through a pipe that discharges into the creek from below the surface. This point is about a half-mile from the facility. It is called the "boil" because the water from the pipe boils up into the creek. The "boil" is not a compliance point. On occasion, a Department inspector has taken water samples at the boil. Each time, his sampling has shown water quality standards were met at the boil. At the boil, the water flowing into the creek from the pipe contains treated effluent and drainage from areas not associated with the mill. From the boil, the creek flows a distance of fourteen miles to Perdido Bay (the bay). At the boil, there is also stormwater runoff and drainage from residential areas flowing into the creek in addition to the water from the pipe. Along the sides of the creek to the bay is a large drainage basin, which includes agricultural and residential runoff that flows into the creek. The boil, which is non-processed stormwater of the creek, could be contaminated from non-IP sources. Sources of pollutants in the bay include residential and agricultural stormwater runoff, Perdido River, and the creek. The Escambia County Utility Authority (ECUA) also has a treatment plant that has a discharge into the bay. Saltwater intrusion and runoff from development are additional sources of pollutants in the bay. Lane takes samples at the boil and most recently in May and June of 2001. Her measurement of dissolved oxygen (DO) was approximately 2.6 and for specific conductance, between 1600 and 2000. Lane also samples the water at a bridge (279A) two miles down the creek from the boil. Lane testified regarding bacteriological quality at the boil or further down stream, that fecal coliforms, including the bacteria Klebsiella, were present. Lane is not a certified sampler. She does not have the required quality control/quality assurance program. Lane does not know the Department requirements to sample dissolved oxygen. She could not describe an approved standard for such sampling. Surface Water Quality Standards Unless otherwise provided through relief mechanisms, discharges into surface waters must meet the minimum water quality standards set forth in Rules 62-302, Florida Administrative Code. Relief mechanisms include variances, consent orders, and temporary operating permits. The Department has issued variances, consent orders, and temporary operating permits to allow permit holders time to respond to changes in water quality standards and related regulations that reflect changes in understanding of environmental impacts to water bodies. Permit Conditions The permit conditions do not require compliance with all the water quality criteria in Chapter 62-302, Florida Administrative Code, for water quality parameters. The Department has not yet agreed on "final treatment solutions" it can require under the Consent Order. See, e.g., Finding of Fact 49. Specific deviations from the surface water quality standards in Chapter 62-302, Florida Administrative Code, are authorized by the Consent Order, TOP, variance, and NPDES permit. The specific effluent discharge limitations in the TOP and NPDES permit, are for BOD5, TSS, iron, specific conductance, pH, and zinc. (The reference to condition 12 in paragraph 25 of the TOP has not been amended.) Several of the effluent limitations (e.g., specific conductance) were granted by the Variance. Paragraph 26 of the TOP specifies the monitoring and frequency requirements for the monitoring at the Parshall Flume. This monitoring information can be used by the Department to pinpoint sources of pollutants in the creek and in order to establish numerical, water-quality based effluent limitations for those sources. General Condition 5 of the TOP does not per se impose on the mill the duty to meet all water quality standards in Chapter 62-302, Florida Administrative Code. The TOP authorizes "a certain amount of pollution" and "certain relief." The TOP further established a "compliance schedule" for Champion to study the impacts of the discharge. However, the Department rules allow for reopening of the TOP and changing the permit conditions to reflect new evidence causing a concern regarding pollution. Here, the Department has not reopened the TOP. The permit, including the TOP and Consent Order, allows the mill a period of time to come into compliance with all minimum water quality standards. When a final permit is eventually issued, the facility will have to meet these standards absent some express relief mechanism at that time. IP Provided Reasonable Assurances of Its Ability to Meet Permit Conditions The Department employee who reviewed IP's Application to transfer the permit is an expert in environmental engineering. At the time he reviewed the Application, he was familiar with the existing permit conditions. As part of his review, he ascertained whether IP was satisfying the conditions of the permit and determined it was. The Department reviewed IP's annual report and other corporate brochures as part of its processing of the transfer Application. Information in these documents revealed IP has obtained other Federal-type NPDES permits for other companies at several other facilities. The Department was familiar with IP's local management at the Cantonment facility when it processed the transfer Application. IP brings considerable "capability and talent" to the mill. The Department performed inspections during the last six (6) months and was familiar with the facility and wastewater system. IP is an international company with greater financial resources than Champion. It has approximately $30 billion in annual sales. Champion, in comparison, generated about $5 billion a year. It is clear that that the operation of the mill and the facility would have less capital and financial support without IP. Since June 2000, IP has worked with the Department in a continuation of the Department's concept of relocating the facility's discharge to wetlands. The plan considers removal of the facility's treated effluent from the creek to wetlands on IP's land and effectively eliminates it as a point source discharge and removes the discharge from the creek. IP will have a greater ability than Champion to meet permit conditions due to greater financial sources, technical staff, and resources. IP's management is committed to resolving water quality issues like specific conductance and is willing to resolve outstanding water quality issues in the bay and creek. In the view of the former Northwest District Director who worked on water quality issues at the facility for twelve years ending March 31, 2001, the current plan to discharge to wetlands will be implemented and allow compliance with all water quality standards. He also opines that IP has the ability to comply with water quality standards under the plan to discharge to wetlands. In the Department's view, IP has provided reasonable assurances that it has the ability to meet the existing conditions of the permit sought to be transferred. IP Complies with Permit Conditions as Evidence of Ability According to the Department's expert, Mr. William A. Evans, a professional engineer with a Master's degree in civil engineering and an expert in environmental engineering, there have been no verifiable violations of permit conditions and no exceedances since January 2000, before IP took over operations of the mill. On the other hand, Mr. Evans, in reviewing a discharge monitoring report for IP for April 2001, advised, during cross-examination, that there appeared to be "an apparent violation, exceedance of the permit" for specific conductance pursuant to the 1500 micromhons per centimeter limit in the EPA's version of the permit. However, the Variance, which is part of the Application, was granted "because there is no practicable means known or available for the adequate control of the pollution involved," i.e., specific conductance. The Department applies the limit of 2500 micromhos per centimeter set forth in the Variance for specific conductance, which is a reasonable interpretation of the permit documents. When the permit documents, including the Variance are read in this light, IP is in compliance with this limit. IP is in compliance with the Consent Order, NPDES permit, and Variance. In making this finding, the undersigned is mindful of Lane's arguments and facts presented. The issue here is not black or white; violation or no violation. As noted by Mr. Evans: This permit is recognized since '89 is [sic] not meeting water quality standards. It has all these documents because it doesn't. And they're still working under those. And the Department agrees with Ms. Lane that they are not meeting water quality standards in the creek. And we're working under these documents to make improvements. And so is Champion and so is IP. But they are not, in our opinion, violating the conditions of the permit. There [sic] are complying with studying it, meeting the interim limits that are set forth in the permit. And that is what the Statutes require when a facility can not meet all the standards of a permit. The Department, while considering the renewal application, has not approved it yet because they have not received reasonable assurances that new permit conditions can be met. Champion, and now IP, are facing the continuing challenge of satisfying, among other requirements, water quality standards, which takes time, money, and know-how. The Department rightly believes that IP can best meet this challenge. The Department's review of the monthly monitoring reports submitted by the mill since Champion was purchased reveals the facility has complied with permit conditions. The most recent monthly report was submitted May 23, 2001, and includes data through April 2001. During inspections at the facility since June 2000, the Department found no violations of permit conditions. The mill, under IP's operation, has not exceeded the fecal coliform conditions of its permit. The mill has no significant contribution to fecal coliform in the creek because it treats its own domestic sewage and meets the fecal coliform limit at the compliance point. Runoff along the creek from agricultural and domestic sources could contribute to fecal and total coliform in the creek. The Department enforces the "more stringent" pH condition in the 1989 TOP and Variance which is controlling over the less stringent standard in the 1983 NPDES permit. The pH limit in the NPDES permit is 6.0-9.0. The Department reasonably interprets the freshwater stream pH rule to mean enforcement is not required if the permittee meets the range in the rule (6.0-8.5), more stringent than the 9.0 limit in the NPDES permit. The facility's pH data satisfies this range. If the Department were to enforce a limit of 6.5, instead of 8.5, IP has the ability to meet the lower limit by installing one of several available technologies to control the pH levels. IP's current proposal includes one of these technologies. The biological integrity provision in the Consent Order requires studies on biological components of the creek and pH impacts this condition. Permit Conditions Affecting the Creek and Bay The permit does not require the facility to meet all the minimum surface water quality standards of Chapter 62-302, Florida Administrative Code, in the creek and bay. That is because of the relief mechanisms in the Consent Order, TOP, NPDES permit, and Variance. The Consent Order provides a time frame for the facility to come into compliance with water quality standards in the creek and bay. In terms of the Consent Order, the Department considers IP to be at the paragraph 14.A. step of the compliance schedule since the Department has not yet "resolved or agreed on the final corrective action required under this [C]onsent [O]rder." The Department considers the facility to be in compliance with permit conditions because it is "working under a complying [sic] schedule and an order or a temporary operating permit." See Finding of Fact 49. As long as IP is meeting the "interim limits that are set forth in the permit," it is not violating conditions of the permit. The Department is aware of water quality exceedances from the standards in the creek and bay caused by the mill. This data was reported in the "fifth year surveys." This information serves as a basis for making improvements and finding "a new solution for the effluent as required by the consent order." See Finding of Fact 49. Proposal for Joint Project with ECUA IP and the ECUA are working with the Department on a plan than would result in the discharge of IP's treated effluent to wetlands, thereby removing the effluent from the creek. IP's financial capability, size, and technical human resources make this plan feasible. IP will propose a plan to satisfy the Consent Order which consists of three parts: upgrading IP's industrial wastewater treatment facility; allowing ECUA to locate an advanced domestic wastewater treatment plant on its land; and disposing the treated effluent from both facilities to wetlands on IP's land through a pipeline. The proposed plan to discharge the facility's treated effluent to wetlands is a suitable solution that will allow the mill to meet minimum water quality standards. Lane has no objection to the plan to discharge to wetlands. It will resolve all her water quality issues. She believes the plan, similar to a prior plan, is "feasible." Standing and Improper Purpose Lane admits the Department is not making any changes to existing permit conditions before transferring it to IP. Lane agrees that changing the name on the permit from Champion to IP has no adverse affect on her. Lane brought this proceeding because she is dissatisfied with the manner in which the Department is enforcing conditions in the facility's permit. According to Lane, "They haven't done their duty." Her main complaints are with the Department's failure to enforce the permit conditions and the lack of a permit that makes the permit holder comply with Florida law. Lane feels that Champion violated permit conditions in the past, and IP is currently violating permit conditions and, as a result, the permit should not be transferred because a decision to transfer is an implicit finding of compliance. In this light, Lane argues that past performance can be an indication of future ability or lack thereof. Lane acknowledges that in order to add conditions to the existing permit, the Department must provide notice to the mill and give it a chance to meet the proposed conditions. She further admits the Department has not provided such notice. Lane proved that the environmental situation attending Champion's, and now IP's, operation of the mill and the wastewater facility has been and is less than optimum and in need of positive changes. The Department agrees and so does IP. Lane's personal observations of the condition of the creek and bay are documented. However, Lane did not prove that she will suffer an "injury in fact" if the permit and related documents are transferred to IP. Lane is not otherwise substantially affected by the Department's decision to approve the transfer. Lane's evidence did not rebut IP and the Department's proof that IP has the ability to comply with the permit conditions. The preponderance of the evidence shows that the environment in and around the mill and the facility has a better opportunity for improvement if IP takes control of the mill and facility. On the other hand, based on this record, Lane did not bring this case for an improper purpose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a final order be rendered as follows: Lane lacks standing to challenge the transfer of industrial wastewater permit number FL0002526-002-IWF/MT to IP because Lane did not prove that her substantial interests were being determined by the Department's transfer of the permit from Champion to IP; IP provided reasonable assurances it has the ability to comply with the conditions of industrial wastewater permit number FL0002526-002-IWF/MT; IP has complied with the conditions of industrial wastewater permit number FL0002526-002-IWF/MT, as the Department construes those conditions, since assuming control of the mill on January 1, 2001; and Lane did not participate in this administrative proceeding for an improper purpose. DONE AND ENTERED this 24th day of August, 2001, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS 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 24th day of August, 2001. COPIES FURNISHED: Jacqueline M. Lane 10738 Lillian Highway Pensacola, Florida 32506 Terry Cole, Esquire Patricia A. Renovitch, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 1110 301 S. Bronough Street, Fifth Floor Tallahassee, Florida 32302-1110 Craig D. Varn, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 David B. Struhs, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building Tallahassee, Florida 32399-3000
