The Issue Whether the Department properly issued a warning letter for selling gasoline that failed to meet state standards regarding end point temperature contrary to Section 525.037, Florida Statutes.
Findings Of Fact Respondent is the state agency authorized to regulate the petroleum products (fuel) offered for sale in Florida for illuminating, heating, cooking, or power purposes. It does so by randomly sampling fuels offered for sale by vendors throughout the state to determine if the fuel meets standards set by the state pursuant to law. Petitioner operates a marina in central Florida where it offers gasoline for sale to its customers. Respondent's inspectors conducted a random sampling of Petitioner's gasoline. Subsequent testing revealed that the end point temperature of the gasoline was not in conformity with the standards for premium gasoline, the only grade sold by Petitioner. On this basis Respondent issued Petitioner a warning letter. It is undisputed that the gasoline sample failed to meet standards. The end point temperature of gasoline is not apparent from its color, smell, or appearance and can only be determined by testing in a laboratory equipped for that purpose. Petitioner has approximately 1,000 gallons of storage for gasoline and reorders when they have approximately 500 gallons on hand. The wholesaler will not hold Petitioner harmless for product that it sells. In order to assure the quality of the gasoline it sells, Petitioner would have to test each delivery. The cost to test a sample is approximately $100. This would add approximately 20 cents to the cost of each gallon sold on a 500-gallon order, and Petitioner asserts that it now loses 10 to 15 cents per gallon on the fuel it sells as a convenience to boaters at its marina. Respondent does free quality testing of gasoline for vendors as a service based upon the availability of its facilities and time. It takes at least 24 hours to test the fuel. These are unofficial, miscellaneous samples, and the results are reported to the person who provided the sample without follow up. The end point temperature of gasoline is typically altered by the addition of another type of petroleum product to the fuel being sold. This can occur at any point during the chain of delivery from the manufacturer to the ultimate vendor. While the standards of the depots have improved, contamination can and does occur there. Similarly, petroleum transporters have improved their standards, but contamination does occur by inadvertently mixing products when filling tank trucks. Lastly, contamination also occurs at the vendors where there are cases of unscrupulous vendors mixing waste oil with product to get rid of the waste oil. There is no evidence of the cause of the contamination in this case. The Department talked with the wholesaler of the gasoline that provided the gasoline to Petitioner, but that wholesaler was reticent to provide documentation for the fuel and to discuss the matter with representatives of the Department. The operation of engines with fuels that have the wrong end point can result in serious damage to a vehicular or marine engine. If Respondent finds Petitioner selling substandard fuel again, Petitioner will be liable to a fine up to $5,000. After three years, warning letters are expunged if there are no other violations, and Petitioner would receive a warning letter for another violation after three years.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department should enter its final order confirming the issuance of its warning letter. DONE AND ENTERED this 12th day of November, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 12th day of November, 2004. COPIES FURNISHED: David W. Young, Esquire Department of Agriculture and Consumer Services 407 South Calhoun Street Mayo Building, Suite 520 Tallahassee, Florida 32399-0800 Joseph T. Lewis Mount Dora Marina Company, Inc. 148 Charles Avenue Mount Dora, Florida 32757 Eric R. Hamilton, Chief Bureau of Petroleum Inspection Division of Standards Department of Agriculture and Consumer Services 3125 Conner Boulevard, Building 1 Tallahassee, Florida 32399-1650
Findings Of Fact On September 16, 1981, an inspector employed by the Petitioner, Department of Agriculture and Consumer Services took gasoline samples from leaded and unleaded pumps identified as "Way 44547513" and "Way 445475A" respectively, at the Cigar City Auto/Truck Plaza, in Tampa, Florida. The samples were tested and found to contain suspicious substances. Specifically, the unleaded gasoline was found to be contaminated with leaded gasoline. As a result of test results, the Department issued a stop sale notice to Robert Lawson, Manager of Cigar City, on September 18, 1981. The test analysis showed that the unleaded gasoline sample exceeded the standards established by the American Society of Testing and Materials (ASTM) for unleaded fuel which were adopted by the Department as Rule 5F-2.01, Florida Administrative Code. The sample in question contained 1.41 gram of lead per gallon and, therefore, violated Rule 5F-2.01(1)(j), Florida Administrative Code, which states that unleaded gasoline may not contain more than 0.05 gram of lead per gallon. The Respondent was permitted to post a $1,000 cash bond in lieu of confiscation in order to secure the release of 4,230 gallons of illegal gasoline for sale as leaded regular. The contamination was caused by a delivery man for a gasoline supplier who unintentionally placed-leaded gasoline into an unleaded tank. When the Respondent became aware of the problem, immediate steps were taken which included color coding the tanks so that the problem would not reoccur. This is the first incident concerning the sale of illegal gasoline in which the Respondent has been involved. No complaints were filed by any consumers concerning the gasoline sold by the Respondent.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department enter a final order returning $750 of the Respondent's cash bond which was required to be posted. DONE and ORDERED this 8th day of January, 1982, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1982. COPIES FURNISHED: Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Gerald Taylor, Esquire 3224 Bay to Bay Boulevard Tampa, Florida 33609
Findings Of Fact On February 27, 1980, Respondent converted one of its service station fuel tanks from gasoline to diesel. The tank was cleaned by Garrison Petroleum Equipment Company at Pinellas Park. Respondent paid $67.08 for this service. That same day, Respondent received 5,176 gallons of No. 2 diesel fuel from Jack Russell Oil Company, Inc., of Clearwater, a Union 76 dealer. On March 18, 1980, a standards inspector employed by Petitioner took samples from the Respondent's gasoline and diesel pumps. These samples were delivered to Petitioner's portable laboratory in Clearwater where they were analyzed. The gasoline was found to be satisfactory, but the diesel sample showed fuel contamination. The tests were conducted in accordance with the methods and standards established by Rule 5F-2.01(4)(b), Florida Administrative Code. Specifically, the "flash point" of the diesel sample was 88 degrees F, but must be 125 degrees F or above to meet the established standard. Petitioner's inspector then returned to the Pronto Car Wash station where he issued a stop-sale order to Respondent. Subsequently, the inspector accepted Respondent's cash bond in lieu of fuel confiscation. This procedure, agreed to by both parties, allowed Respondent to pay $865.36 to the State of Florida and retain the contaminated fuel. Respondent originally paid $5,286.25 for 5,176 gallons of diesel fuel. He had sold 736 gallons of this amount at the time of the stop-sale order on March 18, 1980. Total sales of this diesel fuel amounted to $865.36, which was the amount of bond demanded by Petitioner. Respondent paid $200 to Patriot Oil, Inc., to remove the contaminated fuel, but received a $3,225 credit for this fuel. Respondent does not deny that the fuel was contaminated, but seeks to establish that he acted in good faith. Respondent had the tank cleaned prior to the diesel changeover and dealt with established tank cleaning and fuel wholesaling companies. In addition, he kept the tank locked at all times after delivery of the fuel. Respondent does not contest forfeiture of his bond, but seeks refunds of state and federal taxes paid on the unsold fuel. However, Respondent was correctly informed that refund of tax payments will require him to communicate with agencies which are not parties to this proceeding.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That Petitioner enter its order declaring forfeiture of Respondent's $865.36 bond posted in lieu of confiscation of contaminated diesel fuel. RECOMMENDED this 7th day of August, 1980, in Tallahassee, Florida. COPIES FURNISHED: Stephenson Anderson Pronto Car Wash 220 34th Street North St. Petersburg, Florida 33713 Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 John Whitton, Chief Gasoline and Oil Section Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 R. T. CARPENTER Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-8584
Findings Of Fact On April 10, 1980, Randy Herring, a Petroleum Inspector for the Department of Agriculture and Consumer Services (hereafter "Department") took a gasoline sample from an unleaded pump identified as Ben 7011 at the Bay Station, SR 329 and I-75, Micanopy, Florida. This sample was taken to the mobile lab in Lake City, Florida, for analysis where it was tested by Mr. Pat Flanagan, Graduate Chemist, and found to be contaminated with diesel or kerosene fuel. The Department issued a stop sale notice on April 21, 1980, in that the unleaded sample tested contained diesel or kerosene fuel which exceeded the distillation range temperatures at 50 percent and 90 percent evaporated temperature as established by the American Society of Testing and Materials (hereafter "ASTM") and adopted by the Department as Rule 5F-2.01, Florida Administrative Code. Specifically, the product was tested at 322 percent F at 50 percent (maximum allowable 240 percent F) and 536 percent at 90 percent (maximum allowable 365 percent F). The end point exceeded the 437 percent limit by testing at 580 percent F+. Mr. Flanagan forwarded the sample to Mr. John Whitton, Bureau Chief of Petroleum Inspection in order to confirm his initial testing. Mr. Whitton also found the unleaded gasoline to be illegal under ASTM standards. The end point temperature exceeded 580 percent F in both tests which indicated the product was grossly contaminated. The Petitioner was permitted to post a $1,000 bond in lieu of confiscation in order to secure the release of the remaining 3,548 gallons of illegal unleaded gasoline for use in private equipment. Dixie Oil has no knowledge as to how the unleaded gasoline was contaminated. As a preventative measure, the company purchased a test kit in 1974 to enable its employees to randomly sample gasoline. Its own sampling indicates that the gasoline previously sold at the station has met standards. This is the first such incident at this station and Dixie Oil has taken steps to attempt to ensure that it will not be repeated. The Petitioner has not challenged the authority of the Department to require the posting of a $1,000 bond in lieu of confiscation.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department enter a final order denying Respondent's request for the return of its $1,000 bond which was required to be posted in lieu of confiscation of 3,548 gallons of contaminated unleaded gasoline. DONE and ORDERED this 9th day of March, 1981, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1981. COPIES FURNISHED: Robert A. Chastain, Esquire General Counsel Department of Agriculture and Consumer Services Room 513, Mayo Building Tallahassee, Florida 32301 Mr. Reheudean Denby, Vice President Dixie Oil Company of Fla, Inc. Post Office Box 1007 Tifton, Georgia
Findings Of Fact On March 22, 1977 during a routine inspection of various service stations in Vero Beach, a sample of No. 2 diesel fuel was taken from the pump at English Brothers Truck Stop. Upon analysis at the mobile laboratory the sample was found to be below the minimum flash point for No. 2 diesel fuel and the inspector returned to the station the same day and issued a stop sale notice. (Exhibit 3). Three additional samples were taken, and when analyzed they too were found to be below minimum flash point for this type fuel. Upon receipt of the stop sale notice the station manager notified Respondent. After the fuel had been analyzed at the state laboratory Respondent was notified that since the retail value of the contaminated fuel exceeded $1,000 it could pay $1,000 in lieu of having the fuel confiscated. Respondent owns the fuel at English Brothers Truck Stop until such time as the fuel is removed through the pump for sale. Upon receipt of the notice of the contaminated fuel, which was in one 4,000 gallon tank, Respondent immediately sent three employees to remove the contaminated fuel and clean the tank. Thereafter Respondent attempted to locate the source of the contamination but without success. Since the flash point was lower than allowed for diesel fuel the most likely source of contamination was gasoline which is a higher priced fuel than diesel. Standards used by the Petitioner in determining the required characteristics of fuels are those prescribed by the ASTM. Respondent distributes some 750,000 gallons of diesel fuel per month and this is the first report of contamination of its fuel in the eight and one half years Respondent has been in business.
Findings Of Fact Lee County's Proposed Resource Recovery Facility Lee County has been investigating alternate methods of solid waste disposal since 1979. In 1989, Lee County adopted a Solid Waste Master Plan to guide the County's solid waste management and disposal activities for the next 40 years. The County Commission, consultants and staff concluded that the County's long term needs would be best served by an integrated solid waste management system, which would include an aggressive recycling and materials recovery program, plus composting, landfilling, and the use of a resource recovery (waste-to- energy) facility. In June 1990, Lee County filed an application for site certification with the Florida Department of Environmental Regulation (DER) for the proposed resource recovery facility (Facility). The County also filed an application with DER for a Prevention of Significant Deterioration (PSD) permit for the Facility. Lee County's Facility will produce electricity from municipal solid waste that otherwise would be discarded in a landfill. Solid waste will be brought into the Facility by truck and deposited in a large concrete pit. The refuse will be thoroughly mixed in the pit and then placed by crane in a charging hopper, which will lead into a furnace. The combustion of refuse in the furnace will create heat, which will be used to produce steam, which will be used in a steam turbine to generate electricity. The County's Facility will include the energy recovery system, a scale house, cooling tower, a stack, a 138 kV transmission line, and a stormwater management system. The Facility will have two combustion units with a combined processing capacity of approximately 1200 tons per day (tpd). Theoretically, the Facility could be expanded in the future with a third 600 tpd combustion unit to reach an ultimate site capacity of 1800 tpd. The Facility will generate approximately 40 megawatts (MW) of electricity at 1200 tpd and approximately 60 MW if expanded to 1800 tpd. The Facility will generate more than 4.28 billion kilowatt hours of electricity during its minimum 20 year life. By using solid waste to produce electricity, the County will save nonrenewable resources such as oil or coal that otherwise would be needed for power production. The energy produced from garbage will offset the need for more than 7,000,000 barrels of oil. Assuming oil is worth $20 per barrel, approximately $140 million worth of oil will be saved. The Facility will help Lee County address its solid waste disposal crisis. The Facility will reduce the volume of waste materials up to 90%. With less waste, less landfill space will be required and less land will be used for landfills. The threat of groundwater contamination also will be reduced because the ash from the Facility will be much less toxic than municipal solid waste (MSW). The leachate from ash will be much less toxic than leachate from MSW. The Facility will compliment Lee County's aggressive recycling and materials recovery programs. The Facility will only process those waste materials that are left after recycling is completed. Moreover, ferrous metals will be recovered at the Facility and recycled. The Facility will provide regional benefits. It will serve the residents of both Lee County and Hendry County pursuant to an interlocal agreement between the two counties. It will serve a combined population of approximately 400,000 people initially, which is projected to grow to approximately one million people within 20 years. The Facility will have positive economic impacts. Over 325 people will be employed during the Facility's construction. The Facility will provide jobs for 54 full-time employees during normal operations. The annual payroll of $2.5 million will contribute more than $33 million to the local economy over 20 years. The construction costs of approximately $130 million will result in a positive regional economic impact of approximately $398 million. The site is undeveloped. It has been heavily impacted by past logging and agricultural activities, including ditching and cattle grazing. The site has been extensively invaded by exotic tree species such as melaleuca and Brazilian pepper. Vegetative diversity is low, offering few habitat niches for feeding or reproduction by wildlife. As a result, the numbers and diversity of wildlife on the site are extremely low due to the poor habitat conditions. There are no DER jurisdictional wetland areas on the site. There are isolated wetlands within the jurisdiction of SFWMD. No jurisdictional wetlands will be affected by the construction of the resource recovery facility structure, which will be constructed in a previously disturbed sector of the site which is vegetated with wax myrtle. No more than 2.7 acres of wetlands will be affected by the construction of the new 138 kV transmission line, which is necessary to connect the Facility to FPL's adjacent Buckingham substation. The proposed location of the new transmission line next to an existing dirt road minimizes potential wetland impacts from the transmission line. The County will provide several forms of mitigation for wetland impacts. Under the agreed conditions of certification, the County will create new wetlands at whatever mitigation ratio SFWMD deems appropriate. In addition, the County will restore the historic hydroperiod to a stressed 9.9 acre wetland tract located on the southeast portion of the site. Finally, the County will eradicate nuisance plant specimens now found on the site and continue removal of new specimens as part of an ongoing program of habitat enhancement. These mitigation activities will improve wetlands and wildlife habitat on the site compared to current conditions. These activities will increase habitat diversity, which should result in an increase in wildlife numbers and diversity on the site. The county plans to construct the Facility approximately 1500 feet from Buckingham Road, maintaining an existing wooded area as a visual buffer between the road and the Facility. Approximately 88% (137 acres) of the site will remain as undeveloped buffer zones. All of the primary activities at the Facility will occur inside a fully enclosed building, which will be maintained under negative air pressure for control of noise, dust, and odors. Based upon experience at similar fully-enclosed resource recovery facilities, it is not likely that noise, dust, or odor levels at the site will be elevated by operation of the Facility. The planned surface water management system for the site includes a wet detention area for stormwater which is eight times larger than that required under the application rules of SFWMD. This wet detention area is supplemented by a dry pretreatment system approximately 4.5 times larger than required. After treatment, stormwater will be discharged into a currently stressed wetland area for additional treatment; the discharge will assist in restoring the original hydroperiod of the area. The primary source of water to be used in the Facility will be the City of Fort Myers' domestic wastewater treatment plant, which currently discharges advanced-treated wastewater to the Caloosahatchee River. The Facility's cooling tower will use approximately 1.1 million gallons per day (mgd) of treated wastewater. DER and SFWMD strongly encourage reuse of wastewater in this fashion, and the use will reduce the levels of nutrients which would otherwise be discharged into the Caloosahatchee by the City of Fort Myers treatment plant. The Facility will use approximately 15,000 gallons per day (gpd) of potable water for boiler makeup and household-type uses. This water will be drawn from two wells located on site, which can also supply backup water for use during emergencies. Use of potable water as backup for cooling is limited to ten days per year. The Facility will not discharge any wastewater into groundwater or surface waters. Wastewater generated at the Facility will be recycled to the extent practicable and then routed by pipeline to the City of Fort Myers' wastewater treatment plant. The Facility is not expected to cause or contribute to groundwater contamination. A groundwater monitoring system will ensure that the Facility does not impact groundwater. Likewise, a surface water monitoring program will ensure that surface water quality is not affected. The Facility will not be authorized to burn hazardous waste, biohazardous waste, medical waste, or sewage sludge. County franchise agreements with waste haulers, the only persons authorized to bring waste to the Facility, prohibit the disposal of such wastes at the Facility. Spotters stationed at the scale house, tipping floor, and charging hopper will inspect the waste stream to ensure that proscribed wastes are not burned. Proscribed wastes will be segregated upon discovery and removed by a licensed hazardous waste hauler. The municipal waste stream contains a number of substances, such as nail polish, paints, pesticides and solvents, which are denominated as "household hazardous waste." It is anticipated that such products will be found in the MSW entering the Facility. The County intends to minimize the volume of such wastes by operating a household hazardous waste collection center open to all of the County's residents. Ash is produced as the by-product of MSW incineration. Ash produced by the Facility will be wetted in a water-filled tank, then taken by conveyor within the building to an enclosed ash-handling area to be hauled away by enclosed truck to a licensed landfill for disposal. The Facility will not be allowed to commence operation until the County identifies a licensed landfill able and willing to accept ash from the Facility. Ash from the Facility is not considered a hazardous waste for regulatory purposes. Status of the Project Lee County will own the Facility. Ogden-Martin (Ogden) will build and operate the Facility for 20 years pursuant to a contract Ogden executed with the County in 1990. Ogden was selected because it submitted the lowest and best bid for these services in a competitive bidding process. Ogden is one of the largest and best vendors of resource recovery facilities in the United States. Ogden currently operates three resource recovery facilities in Florida and twelve in the United States. Ogden uses the Martin technology which has been used successfully at more than 140 facilities around the world. Lee County already has secured $197 million in escrow financing for the construction of the Facility, which will take approximately 27 months to complete. The County hopes to have the Facility in operation in the spring of 1994. EPA's 1991 New Source Performance Standards In February 1991, the United States Environmental Protection Agency (EPA) promulgated New Source Performance Standards which established stringent minimum requirements for the construction and operation of new resource recovery facilities, including Lee County's Facility. Among other things, EPA's 1991 New Source Performance Standards (NSPS): (a) establish specific emission limits for a wide array of pollutants, including dioxin; (b) require facility operators to be trained and certified; and (c) require resource recovery facilities to install, calibrate and maintain continuous emission monitors that monitor the facility's operations around the clock. The 1991 NSPS are applicable to the Facility. Best Available Control Technology In accordance with DER and EPA procedures, Lee County conducted a detailed evaluation of the Best Available Control Technology (BACT) for the control of the Facility's airborne emissions. The BACT analysis included an evaluation of all feasible and available air pollution control technologies at existing and proposed resource recovery facilities in the United States and overseas. The energy, economic, and environmental impacts of each technology were quantified and compared on a pollutant-by-pollutant basis. The analysis resulted in a determination of the BACT and appropriate emission limit for each pollutant. The County's analysis demonstrated that the Best Available Control Technology for the Facility is: (a) a spray dryer scrubber; (b) a fabric filter; (c) a selective non-catalytic reduction (SNCR) system; and (d) good combustion practices. This BACT determination is consistent with EPA's 1991 NSPS, which were established on the basis that spray dryer scrubbers, fabric filters, and SNCR were the best demonstrated technology for resource recovery facilities. The dry scrubber system is used to control sulfur dioxide (SO2) emissions as well as those of other acid gases such as hydrogen chloride and hydrogen fluoride. The system involves the injection of slaked lime to neutralize acid gases in the exhaust gas stream. Because the lime injection process effectively cools the gas stream, the scrubber system also effectively removes heavy metals except mercury; these metals adsorb to particulate matter which is removed by the fabric filter baghouse. Nitrogen oxides (NOx) are controlled by SNCR, which involves the injection of ammonia or urea into the post- combustion zone of the boiler to dissociate NOx, which is formed at high combustion temperatures, into nitrogen and water vapor. Good combustion practices minimize emissions of substances produced by incomplete combustion of solid waste, including carbon monoxide (CO), unburned hydrocarbons, soot, and toxic organic compounds such as dioxins, furans, and polycyclic organic matter (POM). The adherence to good combustion practices will assure that emissions of total dioxins and furans will not exceed the NSPS standard. Lee County considered the possibility of using a wet scrubber system, but the wet scrubber was rejected because it suffers from a variety of problems. Wet scrubbers have never been selected as BACT for any resource recovery facility in the United States. Wet scrubbers are not BACT in this case. Control Technology for Mercury The mercury emissions from the Facility will be minimized by at least four factors. First, many sources of mercury in municipal solid waste have been or soon will be eliminated. EPA has banned the use of mercury in paints and pesticides. In addition, there has been a significant national effort to reformulate consumer products and thereby eliminate mercury in the waste stream. For example, battery manufacturers nationwide have substantially reduced the mercury content of household batteries and it is expected that household batteries will be virtually mercury-free by 1995 (i.e., one year after the Facility becomes operational). This development is particularly important because as much as 90% of the mercury in municipal solid waste is contained in household batteries. Second, Lee County has implemented a battery collection program to reduce the number of household batteries in the waste stream and thereby further reduce the amount of mercury that might enter the Facility. The County has 46 drop-off stations at retail stores for the collection of button cell batteries. The County has worked with the School Board to educate students about the need to collect household batteries. The County currently is working on a curbside program for the collection of household batteries. As a result of these efforts, Lee County collected more than 40,000 batteries in just three months in 1991. Third, if there is mercury in the refuse entering the Facility, it will be controlled in part by the Facility's spray dryer scrubber and fabric filter, which may reduce mercury emissions by as much as 70%. Indeed, in a November 1990 case EPA stated that a spray dryer scrubber and fabric filter represented the most stringent control mechanisms for mercury. Fourth, Lee County will utilize an additional pollution control device to control mercury emissions. Specifically, Lee County will use a reagent injection system which will inject activated carbon, sodium sulfide, or other reagent into the flue gases. The mercury will adhere to the reagent and then be removed from the flue gases by the fabric filter. The reagent injection system should be very effective at capturing mercury and it also should reduce some other emissions (e.g., dioxins). The reagent injection system has been used in Europe, but it has never been used on a full-time basis on any resource recovery facility in the United States. This technology is not required under any state or federal regulatory program. The Facility's reagent injection system for mercury will provide the highest degree of mercury control that is technologically possible at this time. As a result of the County's extraordinary efforts to control mercury, the mercury emissions from the facility will be among the lowest in the world. Emission Limits For Mercury In August 1991, EPA completed a series of experiments with a reagent injection system at a resource recovery facility in Stanislaus, California. EPA will use its new test data from Stanislaus and its existing mercury data base to establish numerical limits for mercury emissions from new resource recovery facilities. EPA's new emission limits for mercury must be promulgated by November 15, 1991, pursuant to the 1990 amendments to the Clean Air Act. The new emission limits will be based on Maximum Achievable Control Technology (MACT), which will be even more stringent than BACT. EPA's mercury emission limits for "new facilities" are not applicable to Lee County's Facility, but Lee County has stipulated that it will comply with the new EPA emission limits for mercury when they are promulgated. DER's proposed conditions of certification provide that the Facility's maximum mercury emission rate "shall not exceed" 6.0 x 10-4 lbs/MMBtu or the new EPA limit, whichever is more stringent. The conditions of certification also expressly provide that DER can reduce the County's emission limit for mercury if a reduction is shown to be necessary in the future. The mercury emission limit in the conditions of certification is equivalent to approximately 560 micrograms per dry standard cubic meter (ug/dscm). To ensure consistent compliance with DER's "not to exceed" emission limit, Lee County's contract with Ogden-Martin requires Ogden to meet an emission limit of 150 ug/dscm. The County wanted Ogden to guarantee a lower emission limit to ensure that the Facility would never violate the conditions of certification. The County also wanted to ensure that Ogden would use its best efforts to reduce mercury emissions to the maximum extent possible. EPA's new test data from Stanislaus will provide a scientific basis for a new mercury emission limit that can be reasonably achieved with MACT. Until EPA's data are published, however, it would be imprudent and inappropriate to establish a mercury emission limit for the Facility that is lower than the level proposed by DER in the conditions of certification. The proposed mercury emission limit for the Facility represents a reasonable upper limit, given the available test data, and it rests on sound engineering judgment. Mercury emission rates of 130 ug/dscm or 80% removal recently were proposed in two pending cases in New York, but there are no reliable data available at this time to confirm that such levels can be consistently achieved. SFCARE contends that the BACT analysis should have set the Facility's mercury emission limit at 50 ug/dscm or 90% removal, however this limit is not supported by the evidence of record. SFCARE's proposed emission limits have never been established as BACT for any resource recovery facility in the United States. SFCARE's witness (Craig Volland) admitted that vendors for air pollution control equipment tend to exaggerate about the capabilities of their products, but no vendor in the world would guarantee that its equipment would meet his proposed emission limit of 50 ug/dscm. No vendor in the United States would guarantee the 90% removal limit. Another SFCARE witness (Richard Cook) conceded that he was unaware of any resource recovery facility that could achieve SFCARE's proposed emission limits for mercury. Nonetheless, SFCARE believes the County's mercury control system can reduce mercury emissions by 90% and limit them to 50 ug/dscm. To the extent that SFCARE is correct, the State of Florida can be reasonably assured that the mercury emissions from the Facility will be far below the levels established in the conditions of certification. Lee County's Air Quality Analyses The County's analyses of the Facility's impacts on air quality were performed in accordance with all of the applicable air quality regulations. Further, the County's analyses demonstrate that the Facility will operate in compliance with those regulations. Lee County's analyses were based on a series of "worst case" assumptions that intentionally maximized and over-predicted the Facility's potential impacts on air quality. For example, Lee County analyzed the air quality impacts associated with an 1800 tpd facility, even though the County only plans to build a 1200 tpd facility. The County also assumed that the Facility would operate 100% of the time, even though resource recovery facilities normally operate only 85 to 95% of the time. The County assumed that the Facility would emit every pollutant at the maximum permitted emission rate, continuously throughout the year, even though it would be impossible for this to occur. The County used a screening analysis to identify the operating conditions (e.g., loading rates, refuse Btu values) that would cause the maximum ground level impacts and then the County used those "worst case" operating conditions in all subsequent air quality analyses. Lee County also utilized a conservative approach (i.e, one designed to over-predict actual impacts) when determining the ambient air quality at the Site. The County used ambient air quality data from areas of heavy urban or industrial growth, which reflect levels of air pollution that are much greater than the levels expected at the County's Site. The County used EPA and DER approved computer models to evaluate the Facility's air quality impacts. These computer models have been tested extensively in the field to confirm that the models will over-predict a facility's maximum impacts. In accordance with DER's recommendation, the computer models used five years of consecutive hourly meteorological data from Fort Myers to calculate the Facility's impacts on air quality. As a result, the models will over-predict the Facility's maximum potential impacts at any time under any meteorological conditions. Ambient Air Quality Standards Primary ambient air quality standards are established by EPA to protect public health "with an adequate margin of safety." Primary standards are designed to protect the health of the most susceptible groups of the population, including children, the elderly, asthmatics and those with respiratory problems. Secondary ambient air quality standards are designed to protect the public welfare against "any known or anticipated adverse effects" from air pollution. Florida has adopted the national ambient air quality standards, except in some instances where Florida has adopted standards that are more protective. The Facility's maximum impacts are extremely small when compared to the national ambient air quality standards (NAAQS) and Florida ambient air quality standards (FAAQS). The Facility's maximum impacts are less than one percent of any NAAQS or FAAQS. For example, the maximum impact from an 1800 tpd Facility would be only 0.8% of the health-based standard for lead. The County analyzed the Facility's maximum predicted impacts together with the maximum background levels for the ambient air, which take into account the impacts of all existing sources of air pollution. In the worst case, the combined impact of the Facility and all existing sources is only 60% of the standard for particulate matter, and only 0.05% of the impact results from the Facility's emissions. In all other instances, the combined impact of the Facility and all existing sources ranges from 7% to 46% of the NAAQS and FAAQS. Non-Criteria Pollutants Non-criteria pollutants are those substances for which EPA has not adopted ambient air quality standards. Non-criteria pollutants include mercury and dioxin. DER has identified certain levels (i.e., "no threat" thresholds) below which no adverse impacts are anticipated from non- criteria pollutants. In this case, the Facility's maximum impacts for non-criteria pollutants are 10 to 100 times less than DER's no-threat thresholds. The Facility's maximum impacts were compared to health-based standards and guidelines adopted by New York, North Carolina, Kentucky, and the American Conference of Governmental and Industrial Hygienists. The Facility's maximum impacts for non-criteria pollutants were far below all of the applicable criteria. The dioxin emissions from the Facility will be well below all of the health-based standards and guidelines that have been established by DER, EPA, the World Health Organization, and the European Community. The Facility's maximum impacts will be about 1,000 times less than the ambient air quality standard for dioxin that was established by Connecticut, the first state to adopt an ambient air quality standard for dioxin. Prevention of Significant Deterioration EPA and DER enforce the Prevention of Significant Deterioration (PSD) program, which is designed to protect existing air quality. The PSD program limits airborne emissions by establishing maximum allowable increments that can be consumed in Class I, II, and III areas by potential sources of air pollution. Lee County and all adjacent areas are designated as PSD Class II areas, except for the Everglades National Park, which is a Class I area. The Facility will consume no more than 2.8% of any of the applicable PSD Class II increments. It will consume between 0.02 and 3.2% of the PSD Class I increments at the nearest location in the Everglades National Park, which is approximately 88 kilometers (55 miles) south-southeast of the Site. At the request of the National Park Service, Lee County evaluated the Facility's impacts on the closest border of the Big Cypress National Preserve, which is 61 kilometers (38 miles) southeast of the Site. The Facility's maximum impacts in the Big Cypress area will range from 0.02 to 4.4% of the Class I increments. Health Risk Analyses The environmental and human health effects of resource recovery facilities have been studied extensively. In 1987, EPA evaluated the data from resource recovery facilities around the world and then submitted a nine volume report to Congress, including a one volume health risk assessment. EPA conducted another comprehensive evaluation of resource recovery facilities when preparing the 1991 New Source Performance Standards. Based on these studies, EPA has concluded that well-designed, well-constructed and well-operated resource recovery facilities pose no unacceptable levels of risk to human health or the environment. The World Health Organization has reached the same conclusion. Similarly, the Florida Department of Environmental Regulation and the California Air Resources Board funded an extensive "worst case" health risk assessment of Pinellas County's 3000 tpd resource recovery facility. They concluded that the impacts from the Pinellas County facility were "minimal." In light of this extensive data base, EPA and DER do not require applicants to conduct health risk assessments for proposed resource recovery facilities. Nonetheless, Lee County analyzed the potential health impacts of the Facility's emissions. The County's analyses demonstrated that the maximum predicted impacts from the Facility will be far below any level that might cause any human health problems. Lee County evaluated the Facility's effects on human health and the environment by using standard health risk assessment techniques that were developed by EPA and other agencies. The evaluation was performed by Dr. Paul Chrostowski, a nationally recognized expert who teaches courses concerning health risk assessments for EPA and state regulatory agencies. Lee County's evaluation was based on a series of very conservative assumptions about the project that were intentionally designed to greatly over-predict the potential risks associated with the Facility's emissions. For example, the County's evaluation was based on the assumption that the Facility will operate at 1800 tpd, 100% of the time, for 70 years, even though Lee County only intends to build a 1200 tpd facility, which will operate approximately 85-95% of the time, over a useful life of approximately 30 years. The Facility's maximum impacts will occur relatively close to the Site in an undeveloped agricultural area, but the County assumed that hypothetical people would be located at the point of maximum impact for 24 hours a day, 365 days a year, for 70 years. The County assumed that these hypothetical individuals would never leave the area of maximum impact or even go indoors, where air conditioning would reduce the Facility's impacts. The County also used EPA's potency factor for dioxin when evaluating the Facility's potential impacts, even though EPA's value is too high and is approximately 200 times greater than the potency factor used by the Florida Department of Health and Rehabilitative Services. Health risk assessments result in a statistical probability that a hypothetical person might get some form of cancer (not a fatal cancer). For regulatory purposes, EPA considers acceptable risks to range from 1 in 10,000 up to 1 in 1,000,000. Even after using all of its conservative assumptions, the County found that the probability of a person getting any type of cancer from dioxin inhalation was only 3 in 100,000,000. The health risk would be reduced by a factor of up to 100 if the County used more reasonable exposure assumptions. The calculated risk would be reduced by an additional factor of 200 if the County used the potency factor for dioxin that is used by the Florida Department of Health and Rehabilitative Services. In any event, a risk of 3 in 100,000,000 indicates that the Facility will not cause any cases of cancer from dioxin inhalation. In general, there is a 10:1 ratio between all potential exposure pathways and the inhalation pathway for dioxin. Accordingly, the risk from all exposure pathways for dioxin would be 3 in 10,000,000. This risk is well below any level of concern for regulatory purposes. To put these risks in perspective, it should be recognized that a 1 in 1,000,000 risk would be experienced if a person smoked two cigarettes at any time during his or her life. A risk of 1 in 1,000,000 also would be encountered if a person drank one liter of wine during his or her entire lifetime. Hence, the risk from drinking one liter of wine or smoking two cigarettes during a person's lifetime is approximately 10 times greater than the risk that would be experienced if a person located at the point of maximum impact received 70 years of uninterrupted exposure to the maximum predicted dioxin emissions from an 1800 tpd facility. When the risks are considered in this context, it is clear that the Facility's dioxin emissions will pose no meaningful risk to human health. Similarly, the Facility's mercury emissions pose no threat to human health. The Center for Disease Control (CDC) has developed "minimal risk levels" for short term and long term exposure to mercury. If a person's exposure is below the minimal risk level, the CDC does not anticipate any adverse health effects. In this case, the maximum short-term impact from the Facility's mercury emissions at 1800 tpd will be about 1,000 times less than the CDC's minimal risk level for short term exposure. The Facility's maximum annual impact will be many thousands of times lower than the CDC's minimal risk level for long- term exposure. Environmental Impacts of Mercury Emissions The County also conducted a very conservative "worst case" analysis of the Facility's maximum impacts on Florida's ecosystems. Using standard EPA approved techniques, the County identified two environmentally sensitive areas where the Facility's impacts might have the greatest effects: (a) Lake Tarpon in the Ding Darling Refuge on Sanibel Island; and (b) the northern reaches of the Caloosahatchee River in Lee County. Since the Everglades National Park (Everglades) and Big Cypress Refuge (Big Cypress) are much further away from the Site, the potential impacts on the Everglades and Big Cypress will be much smaller than the impacts on the areas selected for study. The Facility's potential impacts on the Everglades and Big Cypress also will be minimized because the prevailing winds normally will blow the Facility's emissions away from those areas. The County identified the wildlife species of greatest concern to be the Florida panther, the bald eagle, the wood stork, and the snail kite. The County selected the snail kite and wood stork for the closest scrutiny because they are the species that are the most likely to be affected by the Facility's emissions. Here, too, Lee County's analyses were based on very conservative assumptions. Among other things, the County assumed that: the Facility will operate continuously at 1800 tpd for 70 years; Lake Tarpon and the Caloosahatchee River will receive the Facility's maximum impacts; (c) virtually all of the Facility's emissions will be deposited on the soil and then washed into the water bodies under investigation; (d) the snail kite and wood stork will only feed in the two areas that are under investigation; (e) the birds' food (i.e., snails for the snail kite; fish for the wood stork) will stay in one location where it will receive maximum exposure; and (f) the fish and snails will live 70 years and accumulate mercury over that period. The County also used the lowest sensitivity levels that could be found for any bird species and then applied a toxicological safety factor of 20. The County's analyses demonstrated that after 70 years of Facility operations at 1800 tpd, the mercury concentration in snails would be three times less than any levels that might cause an impact on the snail kite. Wood storks would be exposed to even less risk than snail kites because the bioaccumulation of mercury in fish would be less than the bioaccumulation of mercury in snails. Since eagles also eat fish, this same conclusion is true for eagles. Bald eagles and panthers would be at even less risk than snail kites or wood storks because they feed over a larger range than snail kites or wood storks. Panthers and eagles would not get all of their food from the area of maximum impact near the Site. Panthers and eagles are very mobile and they would not remain for a long period of time in the areas where the Facility's maximum impacts would occur. Panthers can range over hundreds of square miles of land. Indeed, one young panther once moved through the general area near the Site, but since then it has spent most of its time roaming through Hendry County and Collier County. The panther's activities have taken it approximately 20 miles northeast and 50 miles southeast of the Site. Since the Facility's impacts will be lowest to the southeast and east, the Facility's impacts will be much smaller in those areas where the panther is located than in the areas that were studied by Lee County. Parenthetically, dioxin concentrations resulting from the Facility's emissions would be up to one billion times less than the levels of concern for dioxin in snails, fish, or their predator species. The County's analyses demonstrate that the Facility, when considered individually or when combined with other existing sources of mercury, will not have any adverse impacts on threatened or endangered species in southwest Florida. There is a very wide margin of safety for these species because the Facility's emissions will be extremely small. Soil Deposition Lee County evaluated the possibility that the Facility's emissions would be deposited on the soil and accumulate over time. To evaluate this issue, the County assumed that there would be 70 years of soil deposition resulting from the Facility's maximum emissions at 1800 tpd. The Facility's maximum impact on lead concentrations in the soil after 70 years would be 2 x 10-4 parts per million (ppm). In the southeastern United States, lead occurs naturally in the soils at levels up to 40 ppm. Children do not experience any effects from lead until soil concentrations reach at least 200 ppm. EPA sets a safe level of 500 ppm. Similarly, after 70 years of worst case impacts, the Facility's contribution to arsenic concentrations in the soil would be 3 x 10-6 ppm. Naturally occurring levels of arsenic in Florida's soil range up to 15 ppm. The Facility's maximum contribution to beryllium concentrations in the soil would be about 1,000,000 times less than the levels that naturally occur in Florida soils. The Facility's maximum contribution to mercury levels in the soil would be 2 x 10-4 ppm. By comparison, sugar cane contains approximately 1.2 ppm of mercury. In all of these worst case analyses, the 1800 tpd Facility's maximum contribution to soil concentrations would be at least 100 times below any level that the EPA or CDC has associated with health impacts. Indeed, the Facility's contributions to these soil concentrations could not be measured with any known analytical technique. Air Quality Monitoring Lee County will utilize sophisticated operational safeguards to ensure that the Facility is operated properly. The Facility will have continuous emission monitors (CEM) to continuously measure the levels of carbon monoxide, nitrogen oxide, sulfur dioxide, and oxygen in the Facility's emissions. Opacity and other parameters also will be monitored with CEMs. These monitors will be connected to visible and audible alarms in the Facility's main control room, which will alert the Facility operators to potential problems. The data collected by the CEMs will be reported regularly to DER. Shortly after the Facility completes construction, Lee County will conduct an initial stack test to demonstrate compliance with the various emission limits established in the conditions of certification. Lee County will conduct annual stack tests thereafter, even though annual stack tests are not required at most resource recovery facilities. The Southwest Florida Regional Planning Council suggested that Lee County should monitor mercury emissions on a monthly "or other appropriate basis." There are several reasons why annual, not monthly, stack tests for mercury will be most appropriate for the Facility. First, monthly stack tests at the Facility would cost a minimum of $300,000 each year. Second, there are no resource recovery facilities in the United States that are required to conduct monthly or even quarterly stack tests for mercury. Third, there will be a substantially larger data base for mercury compiled prior to the commencement of operations at the Facility in 1994. Fourth, DER has recommended annual stack tests. Fifth, DER could require more frequent testing in the future if DER concluded that additional tests were necessary. SFCARE contends that ambient air quality monitoring should be conducted on or around the Site. This proposal is rejected because ambient air monitoring would be of no scientific value. The Facility's maximum impacts at 1800 tpd will be so small that they could not be measured with an EPA approved ambient air monitoring system located at the point of maximum impact or anywhere else in Lee County. For this reason, state and federal regulations will not require ambient air quality monitoring at or near the Site. Facility operations can be better evaluated by using CEMs and stack tests to measure the Facility's emissions, rather than ambient air monitors. Lee County's Recycling Programs Lee County has a very aggressive and innovative recycling program. Lee County expects to achieve the state recycling goal of 30% by 1994. Moreover, the County Commission established a county recycling goal of 40% and the County is doing everything practicable to achieve its 40% goal. Lee County's residential curbside recycling program will serve 100% of the County by the end of 1991. The County expects to have 50% of the County's commercial businesses in its recycling program by 1992 and 100% of the businesses by 1994. The County already collects used oil, automobile batteries, and telephone books. The County is implementing a mulching program for horticultural wastes. The County's recycling rates are among the best in the State of Florida. The County's overall recycling program is among the best in the nation. The County received an award from EPA for its innovative approach to recycling. Among other things, the County has a contract with Goodwill Industries that allows Goodwill to process and market all of the recyclable materials collected in the County's curbside program. The County recently awarded $1,200,000 to Goodwill for an automated materials separation facility for recyclables. The County also awarded $600,000 to Goodwill for an intrusion molding plant that will utilize PET and HDPE plastics to create plastic lumber. The County recently used a $100,000 DER grant to construct a facility for the collection and disposal of household hazardous wastes. The County recently received a DER recycling grant for $619,000 and a DER tire recycling grant for $209,000. Although the County has an innovative recycling and materials recovery program, the County only wants to use demonstrated technologies. The County does not want to gamble its public funds on experimental technologies that might not work. The County does not want to invest in a program like the Agripost composting facility in Miami, which was a "dismal failure" and cost more than $25 million. Some citizens suggested that Lee County should recycle 60% or more of the waste stream, but such proposals are not feasible. Some materials cannot be recycled. Other materials are not marketable and cannot be reused. Facility Sizing When the County filed its PSD and PPSA applications in June 1990, the County wanted authorization to construct an 1800 tpd facility that could be expanded to 2400 tpd. On May 1, 1991, the County Commission decided to reduce the size of the Facility to 1200 tpd, with expansion capabilities to 1800 tpd. The County Commission reduced the size of the Facility because the County wanted to maximize its recycling programs and minimize its reliance on the Facility. As a result of the County's decision, it will be very expensive to expand the Facility. The County has created a strong financial disincentive against expansion of the Facility. Resource recovery facilities normally are designed with excess capacity to provide for future growth. In this case, however, the Facility will be full when it begins commercial operations, unless the County achieves a 30% recycling rate. Even if the County achieves a 30% recycling rate, the Facility will be full within two years after it commences operation. Source Separation As BACT SFCARE contends that the BACT determination in this case should require additional recycling or source separation (i.e., the removal of certain materials from the waste stream prior to their disposal at the resource recovery facility). SFCARE's proposal is rejected. Recycling and source separation programs do not significantly affect the emissions from resource recovery facilities, with two exceptions. Removing household batteries from the waste can reduce mercury emissions. Removing lead-acid batteries, as required by Florida law, can reduce lead emissions. In this case, Lee County already has taken steps to remove these two types of batteries from the waste stream. In general, however, recycling and source separation programs have not been demonstrated to reduce emissions from resource recovery facilities and, therefore, such programs do not constitute Best Available Control Technology. In a 1989 case involving a resource recovery facility in Spokane, Washington, EPA concluded that source separation had not been demonstrated to be BACT. In the 1991 NSPS for resource recovery facilities, EPA stated that there are no reliable data to demonstrate that recycling or source separation requirements should be imposed as part of the NSPS. Consequently, recycling, source separation, and similar requirements have never been imposed as part of a BACT determination by EPA or any state agency in the United States. The available data indicate that additional source separation programs (i.e., over and above what the County already proposes) would not be cost effective and would not produce any meaningful reductions in the Facility's emissions. For example, several studies have shown that the removal of plastics from the waste will not reduce dioxin or other emissions. BACT determinations require a quantitative analysis of the energy, economic and environmental impacts associated with any proposed BACT technology. In this case, SFCARE did not perform any analyses of the energy, economic, or environmental impacts of its proposals concerning recycling or source separation. Indeed, SFCARE has not specifically explained what additional recycling or source separation should be done in this case, what these activities would cost, or what environmental benefits (if any) would result. Thus, SFCARE's proposal is fatally defective. SFCARE SFCARE has approximately 600 people on its mailing list, but the actual number of SFCARE members is unknown. The members of SFCARE fish, jog, and otherwise enjoy the natural resources of Lee County; however, SFCARE's President readily admitted that SFCARE's members are just like all of the other citizens in Lee County in this regard. The Facility will be approximately five miles from the nearest home of any SFCARE member. The evidence demonstrated that the Facility's impacts on the public will be negligible. The Facility's impacts on the members of SFCARE will be no different than its impacts on other members of the community. Several members of SFCARE complained of personal illnesses or physical infirmities, but here, too, the members of SFCARE are like any other typical cross-section of the community. The evidence did not demonstrate that any member of SFCARE would be affected in any manner that would be different than the public at large. Notice of Certification Hearing On July 27, 1990, Lee County published a large notice in the Fort Myers News-Press to announce that Lee County had filed its application for site certification. On July 23, 1991, Lee County published a full page notice in the Fort Myers News-Press concerning the Facility and the certification hearing. Notice of the certification hearing was published by DER in the Florida Administrative Weekly on August 2, 1991--37 days before the hearing started. DER issued a news release concerning the certification hearing on August 9, 1991. Substantial public notice of the certification hearing also was provided by the press and media coverage in the area. Notice of the certification hearing and copies of the DER report about the Facility were provided to EPA, the Federal Lands Manager, and other appropriate officials in compliance with DER rules. Notice of the certification hearing and the copies of the DER report were available for public inspection at several locations in Lee County 30 days prior to the public comment portion of the certification hearing. Ultimate Findings of Fact Lee County has utilized all reasonable and available methods to ensure that the location, construction, and operation of its proposed Facility will produce minimal impacts on human health, the environment, the ecology of the land and its wildlife, and the ecology of state waters and their aquatic life. The evidence establishes that the proposed Facility will comply with all of the applicable and substantive environmental regulations of all of the local, regional, and state agencies involved in the PPSA process. The operational safeguards proposed by Lee County, together with the conditions of certification proposed by the regulatory agencies, are more than sufficient to protect Florida's citizens and its environment. The Facility will create electrical power while providing a regional solution to the solid waste needs of Lee County and Hendry County. The beneficial impacts of the Facility are substantial, while the environmental impacts resulting from the Facility's construction and operation are negligible. Indeed, the Facility will not have any meaningful impacts on Florida's air, water, soil, or wildlife. The conditions of certification attached hereto as Appendix A are reasonable and appropriate to ensure that the construction and operation of the Facility will have minimal impacts on the environment and natural resources of the state and on the welfare of the citizens of Florida. Additionally, the County has agreed to comply with these conditions of certification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Siting Board enter a Final Order and therein: Grant site certification for the Lee County Solid Waste Resource Recovery Facility, subject to the conditions of certification attached hereto as Appendix A; Order that the Department of Environmental Regulation issue PSD construction permit authorizing construction of the Lee County Solid Waste Resource Recovery Facility in accordance with the DER BACT determination and subject to the conditions of certification attached hereto as Appendix A; and Deny and dismiss the Motion to Intervene filed by SFCARE. RECOMMENDED this 9th day of December, 1991, at Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1991.
The Issue Whether the Respondent, Florida Public Utilities Company, established the natural gas account for Mother's Kitchen Restaurant in compliance with all applicable statutes, and Florida Public Service Commission (PSC) rules concerning establishment of service and customer deposits, specifically Rule 25-7.083(4)(a), Florida Administrative Code. Whether Petitioner, Mother's Kitchen, Ltd., provided a deposit of $500 to Respondent at any time to establish a new account for Mother's Kitchen Restaurant. Whether Respondent administered the account of Mother's Kitchen Restaurant in compliance with all applicable statutes and PSC rules concerning refusal or discontinuance of service, specifically Rules 25-7.089(2)(g), (3), (5), (6)(a) and (e), Florida Administrative Code. Whether Respondent should be required to provide a refund of all or any part of any deposit made to establish an account for Mother's Kitchen Restaurant or any amounts paid for natural gas usage, service charges, returned check charges, or other fees charged to that account.
Findings Of Fact Petitioner, Mother's Kitchen, Ltd., is a partnership formed to operate a restaurant under the name of Mother's Kitchen Restaurant. The partners consist of Anthony Brooks, II; Daniele M. Dow-Brooks; Eddie Hodges; and Arthur L. Brooks. Mr. Alford Byrd was an original partner, but has since withdrawn from the partnership. At all times in dispute, Mother's Kitchen Restaurant was physically located at 1744 West Airport Boulevard, Sanford, Florida 32772-0134. Respondent, Florida Public Utilities Company, is a natural gas utility regulated by the Florida Public Service Commission (PSC) pursuant to Chapter 366, Florida Statutes, and Chapter 25-7, Florida Administrative Code. On March 21, 1996, Mr. Alfred Byrd (Byrd), a partner in Mother's Kitchen Ltd., signed a Job-Work Contract authorizing Respondent to prepare and connect appliances at Mother's Kitchen Restaurant to receive natural gas service. On March 21, 1996, Byrd provided, in person at Respondent's Sanford Office, a $200 deposit on behalf of the partnership to Respondent in order to establish a gas account for Mother's Kitchen Restaurant. Byrd received a deposit receipt from Respondent dated March 21, 1996, in the amount of $200. On March 21, 1996, Respondent established account number 0131-07252 in the name of "Alfred Byrd, d/b/a Mother's Kitchen" with a mailing address of "P. O. Box 134, Sanford, Florida 32772- 0134." This was based on the information provided by and the instructions of Byrd. On March 22, 1996, Respondent's serviceman prepared and connected a range and a fryer at Mother's Kitchen Restaurant for gas service, pursuant to the March 21, 1996, Job-Work Contract, and turned on the gas supply to Mother's Kitchen Restaurant. On March 31, 1996, Respondent billed Byrd $126.59 for the labor and materials required to prepare and connect the appliances under the March 21, 1996, Job-Work Contract. On April 9, 1996, Respondent billed the "Alfred Byrd d/b/a Mother's Kitchen" account $67.32, consisting of $46.32 for gas usage from March 22, 1996, through April 2, 1996, and a $21.00 turn on charge from March 22, 1996. On April 23, 1996, Respondent credited $126.59 to the "Alfred Byrd d/b/a Mother's Kitchen" account, paid by Mother's Kitchen check No. 1013, dated April 22, 1996. On May 8, 1996, Respondent billed the "Alfred Byrd d/b/a Mother's Kitchen" account $297.07, consisting of $229.75 for gas usage from April 2, 1996, through May 1, 1996, and $67.32 in arrears. On May 23, 1996, Respondent credited $150.00 to the "Alfred Byrd d/b/a Mother's Kitchen" account, paid by Mother's Kitchen check No. 1074, dated May 20, 1996, and signed by Anthony Brooks (Brooks). Respondent issued a receipt in the name of "Mother's Kitchen" for this payment. On June 3, 1996, Byrd signed a Job-Work Contract authorizing Respondent to clean the pilot light on the gas oven at Mother's Kitchen Restaurant. Respondent's serviceman completed this work the same day. On June 7, 1996, Respondent billed the "Alfred Byrd d/b/a Mother's Kitchen" account $391.72, consisting of $244.65 for gas usage from May 1, 1996, through May 31, 1996, and $147.07 in arrears. On June 7, 1996, Mother's Kitchen check No. 1074 was returned for insufficient funds. Respondent imposed a $20.00 service charge on the "Alfred Byrd d/b/a Mother's Kitchen" account for the returned check. On June 11, 1996, Respondent credited $170.00 to the "Alfred Byrd d/b/a Mother's Kitchen" account, paid in cash on June 10, 1996, as reimbursement for the $150.00 returned check No. 1074 and the corresponding $20.00 service charge. Respondent issued a receipt in the name of "A. Byrd" for this payment. On July 9, 1996, Respondent billed the "Alfred Byrd d/b/a Mother's Kitchen" account $657.36, consisting of $265.64 for gas usage from May 31, 1996, through July 1, 1996, and $371.72 in arrears. On July 11, 1996, Respondent credited $160.00 to the "Alfred Byrd d/b/a Mother's Kitchen" account, paid in cash on July 11, 1996. Respondent issued a receipt in the name of "A. Byrd" for this payment. No person paid a $500.00 deposit on behalf of Petitioner to establish a new gas account with Respondent for Mother's Kitchen Restaurant on July 11, 1996. At no time during the month of July did any person pay such a deposit. On July 15, 1996, Respondent added a service charge of $30.00 to the "Alfred Byrd d/b/a Mother's Kitchen" account for service performed pursuant to the June 3, 1996, Job-Work Contract. On July 25, 1996, Respondent credited $211.72 to the "Alfred Byrd d/b/a Mother's Kitchen" account, paid by Mother's Kitchen check No. 1131, dated July 24, 1996, and signed by Alfred Byrd. Respondent issued a receipt in the name of "Mother's Kitchen" for this payment. On August 7, 1996, Respondent billed the "Alfred Byrd d/b/a Mother's Kitchen" account $540.04, consisting of $224.40 for gas usage from July 1, 1996, through July 31, 1996, $285.64 in arrears, and the $30 service charge added on July 15, 1996. On August 8, 1996, Mother's Kitchen check No. 1131 was returned for insufficient funds. Respondent imposed a $20.00 service charge on the "Alfred Byrd d/b/a Mother's Kitchen" account for the returned check. On August 12, 1996, Respondent discontinued gas service to Mother's Kitchen Restaurant for nonpayment of $285.64 in arrears on the "Alfred Byrd d/b/a Mother's Kitchen" account. On August 12, 1996, Brooks hand-delivered a $290.00 cash payment to Respondent's Sanford Office to be applied to the "Alfred Byrd d/b/a Mother's Kitchen" account. Respondent issued a receipt in the name of "Mother's Kitchen" for this payment. This payment was not credited to the account until August 28, 1996. The delayed crediting of this payment had no effect on any notices or bills concerning the account. On August 12, 1996, Brooks, in person at Respondent's Sanford office, requested that the mailing address for the "Alfred Byrd d/b/a Mother's Kitchen" account be changed to the physical address of Mother's Kitchen Restaurant. Respondent made the requested change that same day. On August 13, 1996, Respondent's serviceman reconnected gas service to Mother's Kitchen Restaurant based on the August 12, 1996, cash payment of $290.00. On August 28, 1996, Respondent credited $521.72 to the "Alfred Byrd d/b/a Mother's Kitchen" account. This credit consisted of the $290 cash payment made August 12, 1996, and a $231.72 payment made August 28, 1996. The $231.72 payment was made as reimbursement for the $211.72 returned check No. 1131 and the corresponding $20 service charge. Respondent prepared an in- house receipt for this credit. No person made a $521.72 payment to Respondent for the "Alfred Byrd d/b/a Mother's Kitchen" account on August 28, 1996. On August 30, 1996, Respondent mailed a disconnect notice for the "Alfred Byrd d/b/a Mother's Kitchen" account to the physical address of Mother's Kitchen Restaurant. This notice stated that gas service to the restaurant would be discontinued if payment of $230.04 in arrears on the account was not made by September 10, 1996. On September 9, 1996, Respondent billed the "Alfred Byrd d/b/a Mother's Kitchen" account $471.29, consisting of $221.25 for gas usage from July 31, 1996, through August 29, 1996, and $230.04 in arrears. This bill was mailed to the physical address of Mother's Kitchen Restaurant. On September 12, 1996, Respondent discontinued gas service to Mother's Kitchen Restaurant for nonpayment of $230.04 in arrears on the "Alfred Byrd d/b/a Mother's Kitchen" account. On September 12, 1996, Harry Johnson, an employee of Petitioner, hand-delivered a $261.04 cash payment, consisting of payments for the $230.04 in arrears and a $31 reconnect fee, to Respondent's Sanford office to be applied to the "Alfred Byrd d/b/a Mother's Kitchen" account. Respondent issued a receipt in the name of "Mother's Kitchen" for this payment. On September 13, 1996, Respondent's serviceman was dispatched between 8:30 a.m. and 9:00 a.m. to reconnect gas service to Mother's Kitchen Restaurant. On September 13, 1996, between 8:30 a.m. and 9:00 a.m., Byrd, in person at Respondent's Sanford office, spoke to Diane Keitt (Keitt) and requested that gas service be discontinued on the "Alfred Byrd d/b/a Mother's Kitchen" account. Keitt contacted the serviceman by radio as he was en route to Mother's Kitchen Restaurant and instructed him to tell someone at the restaurant to call Keitt at Respondent's Sanford office. The serviceman arrived at Mother's Kitchen Restaurant at approximately 9:00 a.m. Upon entering the restaurant's kitchen, the serviceman told the occupants that someone needed to call Keitt immediately at the Respondent's Sanford office. Next, he inspected the restaurant's natural gas appliances to make sure there were no open gas lines then exited the building to perform a meter test to check for the possibility of a gas leak on the customer's side of the meter. After natural gas service has been discontinued on any existing account, Respondent performs a meter test before reestablishing service in order to determine if there is a leak on the customer's side of the meter. The serviceman's meter test revealed a gas leak on the customer's side of the meter. He searched for the leak by inspecting the gas appliances and applying a soapy solution used to detect leaks to the gas connections on each appliance. The serviceman located the leak on a worn pilot adjustment screw on the range. The leak could not be repaired without replacing the pilot adjustment screw. Brooks was present at the restaurant and called Keitt while the serviceman was performing the meter test. Keitt informed Brooks that Byrd had requested discontinuance of service to the restaurant. Keitt also told Brooks that Respondent would continue providing service on a temporary basis, in order to provide Petitioner time to pay a $500 deposit to establish a new account. Keitt then called Respondent's Vice President Darryl Troy (Troy) at Respondent's home office in West Palm Beach, Florida, to inform him of the situation. Brooks called Troy, who confirmed Keitt's statements concerning Byrd's desire to have service discontinued and the necessity of providing a new deposit to establish a new account. The serviceman interrupted this phone conversation to tell Brooks that there was a gas leak on the restaurant's range. Brooks was upset that the serviceman had not yet restored gas service. Brooks refused to authorize or pay for repairs to the range. The serviceman prepared a Report of Hazardous Condition or Corrective Action Required to document the gas leak on the range and inform the customer of the necessary repairs. Brooks refused to sign this form. The serviceman capped the gas connection to the range, plugged the range, and placed the Report of Hazardous Condition or Corrective Action Required and a red tag on the range. He determined that the fryer could be operated safely, so he lit its pilot before exiting the restaurant. The serviceman spoke with Keitt by radio and told her that he had located a gas leak and that Brooks refused to authorize its repair. Keitt then called Troy for instructions on how to handle the account. Troy felt that Brooks did not believe a gas leak was present on the range. Troy was concerned that someone at the restaurant may attempt to reconnect the range, so he instructed Keitt to have the meter turned off and locked. The meter was turned off and locked due only to safety concerns; Byrd's request to discontinue service to the restaurant played no part in Troy's decision. Keitt contacted the serviceman by radio and instructed him to turn the meter off and lock it. The serviceman turned off the meter and locked it. He then notified Brooks that he had turned off the meter and locked it upon instructions from Keitt. The serviceman left the restaurant at approximately 10:00 a.m. That afternoon, Brooks, in person at Respondent's Sanford office, requested that Keitt provide him a refund of the $261.04 payment made September 12, 1996. Keitt refused to refund this amount. No record evidence exists to show that Petitioner paid a $500 deposit, or a deposit of any amount, to establish a new account with Respondent after gas service to Mother's Kitchen Restaurant was disconnected on September 12, 1996. On September 16, 1996, a serviceman took a final reading from the gas meter at Mother's Kitchen Restaurant and officially turned off the meter. On September 16, 1996, Respondent charged $100.50 to the "Alfred Byrd d/b/a Mother's Kitchen" account for gas usage from August 29, 1996, through September 16, 1996, to finalize the account. On September 19, 1996, Respondent applied Petitioner's $200.00 deposit from March 21, 1996, to the outstanding, final balance of $310.75 on the "Afred Byrd d/b/a Mother's Kitchen" account. No record evidence exists to show that any person paid a $500 deposit, or a deposit of any amount, on behalf of Petitioner to establish a new account with Respondent for gas service to Mother's Kitchen Restaurant since the "Alfred Byrd d/b/a Mother's Kitchen" account was established on March 21, 1996.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found to have acted in compliance with Public Service Commission rules concerning the establishment of new service and management of customer deposits when service was established in the name of Alfred Byrd, d/b/a Mother's Kitchen on March 21, 1996. It is further RECOMMENDED the Respondent be found to have properly administered the account at issue here at all times leading up to its disconnection on September 13, 1996, and that Respondent be found to have acted in compliance with all Commission rules regarding that disconnection and refusal to reconnect. It is further RECOMMENDED that Respondent not be required to provide a refund of any part of the deposit made on this account or any amounts paid for service or fees on the account. DONE AND ENTERED this 11th day of June, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 11th day of June, 1998. COPIES FURNISHED: Anthony Brooks, II Qualified Representative Mother's Kitchen, Ltd. Post Office Box 1363 Sanford, Florida 32772 Kathryn G. W. Cowdery, Esquire Gatlin, Schiefelbein & Cowdery, P.A. 3301 Thomasville Road, Suite 300 Tallahassee, Florida 32312 Wm. Cochran Keating, IV, Esquire Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399 Blanca Bayo, Director of Records Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399 William D. Talbott, Executive Director Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399 Rob Vandiver, General Counsel Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399
Findings Of Fact On June 28, 1978, the respondent Department of Environmental Regulation gave notice that the Environmental Regulation Commission would consider the adoption of an emergency rule at their regularly scheduled meeting on July 12, 1978. The impetus for such an emergency rule was apparently the results of the Florida Sulfur Oxides Study which were orally presented to the Commission at a meeting held on June 20-22, 1978. The study is an eleven volume text, parts of which were separately submitted to the Commission in January, February, and April of 1978, involving the environmental effects of sulfur dioxide and related matters. The written final report was submitted in May of 1978. Pursuant to the provisions of Florida Statutes, Section 120.54(4), petitioner Florida Lung Association filed with the Division of Administrative Hearings its "petition for determining the validity of a proposed emergency rule" on July 7, 1978. The emergency rule was approved by the Environmental Regulation Commission at its meeting on July 12, 1978, and said rule was filed with the Secretary of State on July 14, 1978. On the same date, July 14th, Florida Power and Light Company and Jacksonville Electric Authority filed their motion to intervene in the rule challenge proceeding. On July 16, 1978, Jacksonville Electric Authority filed its motion to dismiss the petition. The cause was noticed for hearing on July 19, 1978. On July 20th, Florida Power and Light filed its motion to dismiss. On July 26, 1978, the Division of Administrative Hearings received petitioner's amendment to the petition seeking relief pursuant to the provisions of Florida Statutes, Section 120.56, should relief under Florida Statutes, Section 120.54 be deemed improper. The petitioner and the Department of Environmental Regulation entered into a Stipulation prior to the hearing agreeing as to certain factual matters and stipulating that the Florida Lung Association is a substantially interested party in the proceeding and had standing to bring this action. The undersigned was duly designated by the Director of the Division of Administrative Hearings as the Hearing Officer in this proceeding. It was determined by her that all pending motions would be heard and ruled upon at the time of the scheduled hearing inasmuch. as the time constraints imposed upon rule challenge proceedings did not allow for all parties to respond in writing to all motions within the seven day period specified by Rule 28-5.25(3), F.A.C., and inasmuch as the Hearing Officer was to be out of town on the three days prior to the hearing. At the beginning of the hearing on July 28, 1978, the undersigned granted the motions to intervene. The motions to dismiss were based upon the allegations that petitioner lacked standing to challenge the emergency rule in question; that the Environmental Regulation Commission, rather than the Department of Environmental Regulation, was the agency whose rule was being challenged and that an emergency rule cannot be contested under Florida Statutes, Section 120.54(4) The undersigned denied both motions to dismiss. It was and is concluded from the pleadings, the evidence adduced at the hearing and the stipulation between petitioner and respondent that the petitioner herein does have standing to challenge the emergency rule in question. Respondent the proper agency to be named in this proceeding, inasmuch as the Environmental Regulation Commission (ERC) is simply a part of that agency and sits as the agency head on certain specified matters. While Chapter 120 does not appear to make adequate provision for a challenge to a proposed emergency rule, that issue is now moot in light of the presently existing status off the challenged rule and the amendment to the petition alleging a cause of action under Florida Statutes, Section 120.56. As amended by Chapter 78-425, Laws of Florida (SB 860) Section 120.56 now provides explicitly for challengers to the validity of emergency rules before the Division of Administrative Hearings. Turning now to the merits of the petition, as amended, it is contended that the rule in question is an invalid exercise of legislative authority because no immediate danger to the public health, safety or welfare existed which would justify the enactment of an emergency rule pursuant to Florida Statutes, Section 120.54(9). The factual background of the emergency rule is not in dispute. On April 7, 1977, respondent adopted a rule which permitted Florida Power and Light and Jacksonville Electric, the intervenors herein, to burn a higher sulfur content fuel at their respective plants in Manatee and Duval Counties until August 1, 1978. On that date, those plants would be required to burn fuel with a lower sulfur content. On June 15, 1977, the ERC considered a proposed rule which would extend the time within which the intervenors herein could burn the higher sulfur content fuel from August 1, 1978, to February 1, 1979. The Commission refused to approve this proposed rule and it was not enacted. On June 20-22, 1978, the Commission was given an oral presentation of the results of the Florida Sulfur Oxides Study. As a result of this meeting, the Commission gave notice on June 28, 1978, of its intent to consider an emergency rule allowing the intervenors to extend the date for burning higher content fuel from August 1, 1978, until October 1, 1978. The Commission considered the emergency rule at its meeting held on July 12, 1978, approved it and filed it with the Secretary of State on July 14, 1978. The ERC gave the following "specific reasons for finding an immediate danger to public health, safety and welfare": If the emergency rule is not immediately adopted and Section 17-2.05(6), Table II, Item E(1)(c), F.A.C., amended, the cost to Florida Power & Light Company and Jacksonville Electric Authority to use lower sulfur fuel between August 1, 1978 and October 1, 1978 will be $1,373,000.00. This cost will be directly passed on to the customers of these utilities through fuel adjustment provisions. The additional cost would be paid to foreign countries for the purchase of oil. These passed on costs are not warranted in light of the fact that the Environmental Regulation Commission is presently considering to permanently amend by October 1, 1978 Section 17-2.p.5(6), Table II, Item E(1)(c), F.A.C., so that both of these power plants may use at least the higher sulfur fuel allowed by the emergency rule. As a result of the Florida Sulfur Oxides Study, the presentations made pursuant thereto at the June 20, 21 and 22, 1978 Environmental Regulation Commission Hearing, and the bearing held on this emergency rule on July 12, 1978, the Commission finds no significant environmental benefits to be gained by using the lower sulfur fuel during the two months period. (Copies of the monitoring data for these two power plants modeling data for the Manatee power plant and the Florida Sulfur Oxides Study may be inspected at the address below.) Both of these power plants have been using the sulfur content fuel proposed in the emergency rule since June of 1977 without violating any of the applicable ambient air quality standards. Also because of the large amounts of oil purchased at one time by the utilities and the lead time required for such purchases, it would not be economical for the utilities involved to order a different sulfur content fuel for only a two month period. Accordingly, unless the emergency rule is enacted the customers of these utilities will be charged $1,373,000.00 without obtain- ing any significant environmental benefits and the utilities will be unable to economically purchase fuel. These facts present an immediate danger to the public health, safety and welfare which can only be remedied by the enactment of the emergency rule and by making this emergency rule effective as of the date of filling (sic) or July 13, 1978 whichever is earliest. It was further stated, as "reasons for concluding that procedure used is fair under the circumstances" that the emergency rule procedure was the only procedure available to grant the relief required in that a permanent rule could not be promulgated in time. The Commission noted that the emergency rule was only effective for a two-month period "at which time the Commission will decide on a permanent rule pursuant to Chapter 120 Florida Statutes, for these two power plants." The transcript of the hearing held by the ERC on July 12, 1978, makes it abundantly clear that the Commission did not consider the adoption of the emergency rule to be a commitment to adopt a similar permanent rule which would be effective subsequent to October 1, 1978. Indeed, it was stated by several Commissioners that the entire matter would be dealt with anew and on its merits in September. Were there no emergency rule in effect permitting the intervenors to burn the higher sulfur content fuel, it would cost Florida Power and light $680,000.00 to purchase the lower content fuel for the two month period of August, and September. This cost would be passed on the the consumer. The cost to the average residential customer using one thousand kilowatt hours of electricity would be thirteen cents ($.13) per month. For the average utility bill, this would result in an increase of .03 percent. For Jacksonville Electric, the same costs are $693,000.00 or approximately $1.65 per month per average residential consumer, or a 3.5 percent increase in the average utility bill. The higher sulfur content fuel results in an additional discharge of from 2.4 to 2.6 tons of sulfur dioxide per hour into the air. Neither the Jacksonville nor the Manatee County plants have violated the State's ambient air quality standard during the one and a half years they have been permitted by rule to burn the higher content fuel. Section 120.54(9), Florida Statutes, permits agencies to avoid the formalities of proper rulemaking procedures only when there is a bona fide finding that "an immediate danger to the public health safety, or welfare requires emergency action." Thus, in order to sustain the exercise of emergency action, there must be a clear showing of danger to the public health, safety or welfare and that danger must be shown to be an immediate danger. As recognized in Fuller v. Gardner, 190 So. 442 (Fla. 1939), an agency's assumption of emergency powers in the absence of a bona fide emergency violates basic rights of due process, and constitutes a usurpation of power. A review of the testimony and the record of this proceeding does not support respondent's finding of either a danger to the public health, safety or welfare or an immediacy necessitating emergency action. The substance of the emergency rule -- permission to burn a higher sulfur content fuel than would otherwise be permitted -- certainly does not alleviate or obviate some immediate danger to the public health or safety. Petitioner's only witness on this subject testified that any ingested particles of sulfur dioxide could cause damage to the human lung. However, there was no testimony as to whether the higher sulfur contents allowed by the rule, as opposed to the lower content which would be binding upon the intervenors in the absence of a rule, would present a definite health hazard to residents of Duval or Manatee Counties. Nevertheless, the respondent's own statement of specific findings and reason's of immediate danger do not illustrate an emergency situation with regard to public health or safety. These findings are that there are "no environmental benefits to be gained by using the lower sulfur fuel during the two months period." A mare showing of no harm is not sufficient to satisfy the statutory test for the adoption of emergency rules. The statute requires an immediate danger to the public health. The fact that there may be no significant environmental benefit if a rule is not enacted simply does not justify noncompliance with proper rulemaking procedures. This then leaves the issue of whether there is an immediate danger to the public welfare absent the enactment of the emergency rule. The concept of public welfare is broad and embraces a variety of interests, including monetary and economic interests. It was the testimony of petitioner's expert witness on this subject that the costs involved if the intervenors were required to burn the lower sulfur content fuel would be passed on to the average consumer at the rate of increases in their utility bills of .03 and 3.5 percent. This witness opined that such an increase would not be significant for a two-month period and that the impact on the Florida economy would be inconsequential. There simply is no evidence in the record herein to illustrate that the situation was of such a nature that normal rulemaking procedures were precluded. Even if it were conceded that the total expenditure of $1,373,000.00 could have an adverse impact upon the Florida economy, where is the urgency or immediacy which must exist prior to the exercise of emergency rulemaking procedures? The rule sought to be amended has been in effect since April of 1977. It was to self-destruct on August 1, 1978. The agency was aware of this, as were the intervenors. When confronted in June of 1977 with a request to extend the rule's operation to February 1, 1979, the Environmental Regulation Commission refused the request and failed to so amend the rule. The first three volumes of the Florida Sulfur Oxides Study came in to the Commission in January, 1978. Six volumes were received in February, and the remaining two volumes were received in April, 1978. In May, the ERC received the final written report. Apparently, the summarizing results were orally presented to the Commission at a meeting held on June 20, 21 and 22, 1978. The transcript of the Commission's - July 12, 1978, hearing on the emergency rule, as well as the findings and reasons attending the emergency rule, indicate that the Commission still has not reached a decision as to whether the rule's contents will be repromulgated to be effective after October 1, 1978. 1/ Thus, it appears that any immediate danger in July of 1978 was not created by newly acquired knowledge concerning the effect of the emission of certain levels of sulfur dioxide into the air or by some sudden change which would adversely affect Florida's economy. The emergency was therefore not created by considerations of the public health, safety or welfare. Rather, if there was an emergency at all, it was created by an avoidable administrative failure to properly amend the existing rule to provide an extension for the desired time period. As clearly held in Postal Colony Co., Inc. v. Askew, 348 So.2d 338 (Fla. App. 1st 1977), an emergency created wholly by an agency's failure to take timely action cannot justify extraordinary measures. The emergency rule provisions of Florida Statutes, Section 120.54(9) constitute an extraordinary means of adopting a rule when a true emergency exists which makes compliance with normal rulemaking procedures impossible. The record in this case is barren of evidence that, in mid-July of 1978, there was an immediate danger to the public health, safety or welfare requiring emergency action. IT IS THEREFORE ORDERED THAT the respondent's emergency rule 17ER78-1, which purports to amend Section 17-2.05(6), Table II, Item E(1)(c), F.A.C., by extending the date from August 1, 1978, to October 1, 1978, constitutes an invalid exercise of legislative authority. Done and entered this 7th day of August, 1978, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact On March 21, 1990, the School Board of Broward County issued an invitation to bid, No. 90-597T (ITB). The ITB sought to purchase a computerized fuel system, less trade-in. The general conditions of the ITB are common to all purchasing by the School Board and are contained on a single green cover sheet; the remainder of the ITB is made up of the special conditions applicable to the specific purchase. According to page 3, paragraph 1 of those special conditions, the School Board solicited bids on a "new on-line automated fuel dispensing and accounting system, less trade-in." The bidders were required to include in their proposals "all software, hardware (except an IBM Series/1 computer, if used), installation, labor, and training to complete the following objectives:" improve the efficiency and control of the Board's existing automated fuel system; improve fuel inventory management by intergrating in-tank monitoring and leak detection into the automated fuel dispensing system. Monitoring and leak detection devices were to be completely integrated using the same communication lines and computer hardware; record the acquisition, transfer and disposal of equipment; automate the collection and transfer of data to the Board's equipment management and financial accounting systems in the same format as the Board's current data and require no additional support or action by the Board; make appropriate reports available to user departments, and schedule and notify remote sites when preventive maintenance is due for a vehicle. Specifications for the system begin at page 10 of the ITB. Section I of the Specifications is a General System Description which fills pages 10-13 of the ITB. Section II at the bottom of page 13, describes a Fuel Dispensing Procedure. Section III, on page 14 describes Operating Procedures. Section IV on pages 15 and 16 specifies Hardware; the system is to include a computer, remote terminals, and actuator cards, installation criteria are also given for power and wiring. Section V, at pages 16-22 of the ITB, specifies Software and Programming. Its subsection I describes tank level monitors and says: The system will provide for in-tank level monitoring devices which are fully incorporated into the system. The tank level system will be as follows: The fuel island terminal will monitor the tank sensoring devices and generate and send a separate transaction each time it calls the Central Control Processor. This transaction will include fuel in inches and in gallons (gaged balance), water level in inches and temperature in degrees Fahrenheit. The most current readings will be stored in the system and will be available on the fuel inventory and receipts report. The calculated balance will continue to be the "primary balance." The Central Control Processor will generate a special transaction (unique transaction code) indicating sudden loss when the gauged balance drops more than the calculated balance by 1%. A special transaction or flag will be generated when more than 1/2 inch water exists in the tank (high water). Deliveries will be captured through the fuel monitor at sites so equipped. All/any manual delivery input will be recorded and flagged, but will not change the tank files. At sites without the monitor, manual readings will still be accepted. The PFR report will show water level, temperature, sudden loss and low inventory (re- order point). The fuel island terminal will also be equipped to monitor hydro-carbon wells. When hydro-carbon is detected the Fuel Infringement Circuit (FIR) will open and the pumps will be shut down. A FIR transaction will also be generated and sent to the Central Control Processor. Hydro-carbon probes will be included for all listed monitoring wells. The School Board received bids from three bidders which were open on April 26, 1990, at 2:00 p.m.. According to the bid tabulation, Tel-Star Systems bid $59,616, Cherokee group bid $882,924 and E. J. Ward, Inc. bid $106,816. Although Tel-Star was the low bidder, board staff believed that its bid did not meet the minimum advertised specifications. Staff intended to solicit bids for hardware for automatic in-tank fuel level monitoring and hydro-carbon well monitoring (i.e., leak monitoring) capabilities, and all software necessary to perform these functions. In reviewing the literature which accompanied Tel- Star's bid, staff had found no mention of hardware to automatically monitor the level of the fuel tanks or to monitor hydro-carbon wells. The marketing director for Tel-Star told staff that the necessary hardware for in-tank fuel level monitoring or hydro-carbon well monitoring was not included in the bid because Tel-Star did not interpret the ITB to require that hardware. Board staff determined the bid should be awarded to E. J. Ward, Inc., as the lowest bidder who met all advertised specifications. To companies dealing in computerized fuel systems, a computerized fuel dispensing and accounting system is separate from a system which provides in- tank monitoring and leak detection, although these two functions can be and are commonly integrated. No single manufacturer makes a system which will provide both computerized fuel dispensing, and in-tank monitoring and leak detection. Separate systems from different manufacturers can be combined to achieve both functions. The sales manager for Tel-Star Systems, Inc., who first reviewed the ITB noted the very brief reference to tank level monitors and hydro-carbon well monitors on page 22 of the ITB. He was unsure whether the bid called for that type of hardware. He discussed the matter with the president of Tel-Star, Mr. DeVoll. It was determined that because the reference to the in-tank monitoring and leak detection (hydro-carbon monitoring) was made only in the portion of the ITB dealing with Software and Programming (Part V), the School Board only wanted an automated fuel system which was capable of being integrated with fuel tank monitors and leak detection (hydro-carbon well) monitors. Based upon the structure of the ITB, this interpretation by Tel-Star and its officers was reasonable. It is also consistent with an objective reading of the bid made by one of Tel-Star's competitors, which also received the Board's invitation to bid and contemplated submitting a bid. According to Mr. Busbee, had he submitted a bid on behalf of his firm, based on the language of School Board's ITB, he would not have included hardware for in-tank level monitoring or leak detection (hydro-carbon well) monitoring. The bid from E. J. Ward, Inc., did include hardware for in-tank monitoring and leak detection, but this was not the result of the wording of the ITB. E. J. Ward, Inc., is the manufacturer of the present fuel dispensing system which the School Board of Broward County uses. Through servicing the account, representatives of E. J. Ward knew exactly what the School Board of Broward County had on site, and what it sought to acquire through its ITB. While E. J. Ward enjoyed no undue advantage by reason of its long association with the School Board, it was able to read the ITB with the gloss of its own experience, and knowledge of what staff intended to procure through the ITB. Its response to the ITB was not solely the product of a reading of the special conditions. The School Board believes that Tel-Star should have taken steps to determine whether the ITB was intended to include fuel level monitoring and leak detection monitoring, and points to page 7 of the Special Conditions, paragraph 30 which states: Any questions by prospective bidders concerning this Invitation to Bid should be addressed to Mr. George Toman, Buyer, Purchasing Department, (305) 765-6119, who is authorized only to direct the attention of prospective bidders to various portions of the Bid so they may read and interpret such for themselves. Neither Mr. Toman nor any employee of the School Board of Broward County is authorized to interpret any portion of the bid or give information as to the requirements of the Bid in addition to that contained in the written Bid Document. Interpretations of the Bid or additional information as to its requirements, where necessary, shall be communicated to bidders only by written addendum. Section 8 of the General Conditions states: Any questions concerning conditions and specifications should be submitted in writing and received by the Department of Purchasing no later than three (3) working days prior to the Bid opening. Tel-Star and its officers made no inquiry of Mr. Toman to attempt to determine whether the Board expected bids responding to the ITB to include hardware for in-tank monitoring and leak detection. Under the wording of paragraph 30, however, it is doubtful that any such inquiry would have been enlightening. Nothing in that paragraph states that if an inquiry is made, anyone at the School Board will attempt to interpret the bid or provide additional information which all bidders will receive through a written addendum. It merely advises potential bidders should any interpretation of the ITB be made by the School Board, it will be communicated through a written addendum. Paragraph 30 does not describe a procedure which Tel-Star should have followed in order to receive a clarification of what the School Board wished to purchase through its ITB. Paragraph 8 also fails to state that requests for interpretations will be answered, or that failure to submit a written question precludes a bidder from relying on the structure and language of an ITB. The references to hardware for monitoring are found only in the specifications for software. The interpretation made by Tel-Star, that its equipment would have to be capable of integration with monitoring hardware which would be separately procured was reasonable.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the School Board of Broward County upholding the protest of Tel-Star Systems, Inc., rejecting all bids for the computerized fuel system less trade-in, Bid No. 90-597T, ordering that the bid specifications be clarified, and that a new invitation to bid be circulated. DONE and ENTERED this 13th day of September, 1990, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 1990. APPENDIX TO RECOMMENDED ORDER Rulings on the proposed findings by the School Board of Broward County: Adopted in Finding 1. Adopted in Finding 3. Implicit in Finding 4. 4.-5. Rejected as unnecessary. No party disputes that Tel-Star Systems, Inc., followed the appropriate protest procedures. Discussed in Findings 6 and 7. Rejected as recitation of testimony rather than a finding of fact. Adopted in Finding 9. Discussed in Finding 6. Generally adopted in Finding 10. Copies furnished: Norris J. DeVoll, President Tel-Star Systems, Inc. Post Office Box 791753 San Antonio, Texas 78279-1753 Edward J. Marko, Esquire Marko & Stephany Suite 201 Victoria Park Centre 1401 East Broward Boulevard Post Office Box 4369 Fort Lauderdale, Florida 33338 John K. Featherston Vice President E. J. Ward, Inc. 6410 Southwest Boulevard Suite 224 Fort Worth, Texas 76109 Virgil L. Morgan, Superintendent Broward County School Board 1320 Southwest 4th Street Fort Lauderdale, Florida 33312 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
