The Issue The issue is whether Prestige Gunite of Orlando, Inc. (Prestige) may use an air general permit pursuant to Florida Administrative Code Rule 62-210.300(4)(c)2. to operate a concrete batch plant in an unincorporated part of Lake County, Florida.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: A. The Parties Prestige is a wholly-owned subsidiary of Prestige Gunite, Inc.; the parent corporation is located at 7228-C Westport Place, West Palm Beach, Florida. The owner of the parent corporation was identified as Brian A. Mahoney, who also owns and controls a number of other entities in the State that are engaged in the business of producing cement. The record does not disclose the names of all of the corporate entities, but it does show that Mr. Mahoney has formed two corporate entities who operate at the same location in Lake County, Florida: Prestige Gunite of Orlando, Inc. (the applicant here), and a limited liability corporation known as Prestige/AB Ready Mix, LLC, which has a different parent corporation. The latter entity operates a ready-mix cement plant on the southern part of the property on which the applicant's operations will be located. In addition, the record shows that Mr. Mahoney operates at least two other cement plants in the State, one a "smaller facility" at Ocala, Florida, whose name and corporate status are unknown, and B & B South Florida, Inc., which operates a facility at an undisclosed location. Although these entities are owned and controlled by one individual, the applicant has represented without dispute that all of the cement plants are operated as separate entities, each with its own permit issued by the Department. The Department is an agency of the State that is authorized under Chapter 403, Florida Statutes (2006), to evaluate applications for air emission permits that are used by cement batching plants. The use of the permit in issue here was reviewed by the Department's Central District Office in Orlando, Florida. Petitioners all reside in close proximity to the proposed facility. In addition, their homes are in closer proximity to the existing ready-mix facility. Through testimony at hearing, Petitioners established that their substantial interests are affected by the new facility and they have standing to challenge the use of the permit. Background A general permit is established by rule and constitutes a "simplified procedure" used by the Department to allow a facility to begin operations, as compared with other types of permits issued by the Department. Department standards provide that if a facility such as that proposed by the applicant emits less than 100 tons per year of particulate matter and is therefore a Non-Title V source, it qualifies to operate under a general permit, assuming that all other criteria are satisfied. Under this process, the Department reviews the notification (application) for compliance with two applicable rules: Florida Administrative Code Rule 62-296.414, which establishes the substantive criteria for using a general permit for a concrete batching plant, and Florida Administrative Code Rule 62- 210.300(4)(c)2.a.-f., which contains the procedural requirements for obtaining a Non-Title V Air General Permit. Unless the Department decides to deny the application, no formal proposed agency action is issued. Therefore, none was issued in this case. Absent the filing of a protest by a third party, the applicant may then use the general permit after the time for third parties to file a challenge has expired. The facts underlying the filing of the instant application are somewhat confusing and form the basis, in part, for the allegations in the two Petitions filed in opposition to the notification. In May 1999, Prestige Gunite of Orlando, Inc., gave notification of its intention to use a general air permit to operate a concrete batching plant at 17600 State Road 50, near Clermont, Florida (also known as the Clermont Yard). Because no challenge to that notification was made, the applicant was issued Permit No. 7775088-001-AG, which became effective on July 8, 1999, and expired on July 9, 2004. Presumably, Prestige operated a gunite batching plant under that permit during that five-year period. In 2001, Prestige/AB Ready-Mix, LLC (then known as Prestige/AB, Inc.) applied for another air general permit at the same location (the Clermont Yard) to operate a concrete batching plant.3 (Apparently, multiple batching plants are authorized at the same geographic location so long as the total particulate of all facilities at that location does not exceed 100 tons per year, which would cause the facilities to lose their Non-Title V status.) Because no third party objections were filed, and all criteria were satisfied, Permit Number 7775088-003-AG was issued. Although the permit was scheduled to expire in 2006, it was recently renewed for another five years and will now expire on August 3, 2011. See Prestige Exhibit 2. (Florida Administrative Code Rule 62-4.540(13) limits the use of an air general permit to five years.) Prestige says that it incorrectly assumed that the air general permit issued to Prestige/AB Ready-Mix, LLC, in 2001 (and renewed in August 2006) also authorized it to continue to operate a gunite batching plant at the Clermont Yard after the first air general permit issued to Prestige Gunite of Orlando, Inc., expired in 2004. This explanation seems unusual, given the fact that the applicant's owner operates multiple permitted cement facilities throughout the State and should be familiar with the permitting process. In any event, Prestige continued to operate a gunite batching plant at the Clermont Yard without a permit. Apparently prompted by numerous and repeated complaints from nearby residents over air emission concerns from both operations, the Department eventually conducted an investigation of both facilities. Besides finding that emissions standards and hazardous waste rules were being violated, the Department discovered that Prestige was operating a gunite facility without a permit. On May 31, 2006, the Department issued a Warning Letter to the parent corporation advising that it must cease gunite operations until a permit was obtained. Despite the Warning Letter, operations at the facility continued, which prompted a second letter from the Department on August 29, 2006, advising that formal enforcement action would be taken unless operations were terminated. In early September 2006, operations ceased and have not resumed pending the outcome of this proceeding. On July 31, 2006, Prestige filed an Air General Permit Notification Form to notify the Department of its intent to use both a new and existing air general permit for its gunite batching plant at the Clermont Yard. This application was denied by the Department on August 29, 2006, because of "unconfined emissions," that is, the applicant had failed "to take reasonable precautions to contain particulate emissions from truck loading operations." During this same period of time, a meeting by the Central District staff and the applicant was held and on August 31, 2006, Prestige filed a second Air General Permit Notification Form advising that it intended to operate a concrete batching plant at the Clermont Yard. A new permit, rather than a renewal of the old permit, was sought since the original permit had expired in 2004. Thus, it was not necessary for Prestige to surrender any existing permits, a requirement found in the application form. Because the Department concluded that all rule criteria had been satisfied, it took no action regarding the application. On August 31, 2006, Prestige Gunite, Inc. (as opposed to Prestige Gunite of Orlando, Inc., which had filed the notification) caused to be published in the The Daily Commercial, a newspaper of general circulation in Lake County, a Public Notice of Application for a General Permit. The following day, a similar notice was published in the South Lake Press, also a newspaper of general circulation published in Lake County. On September 21, 2006, Mr. Koehnlein, who lives just east of a vacant lot on the eastern side of the site, filed his Petition challenging the use of the permit on numerous grounds. (Mr. Koehnlein's Petition was actually filed in response to the Department's notice of intent dated August 29, 2006, to deny the first application filed by Prestige. However, it was treated as a request for a hearing in response to the second notification filed by the applicant.) On the same date, and then through counsel, Petitioners, Aaron and Amy Wright, Joseph Maxwell, Donald Stone, and Marlene Matthews, who live in a residential subdivision immediately south of the site, filed their Petition challenging Prestige's use of the permit. Although numerous allegations were raised in the Petitions, most were struck by Order dated November 14, 2006, leaving only the allegation of whether Prestige is qualified to use the general permit by meeting the applicable requirements under Florida Administrative Code Rules 62-210.300(4)(c)2. and 62-296.414. The Permit The Notification filed by the applicant indicates that the facility will be located at 17600 State Road 50 near Clermont, Florida. In broader geographic terms, the facility is located just south of State Road 50 (which runs in an east-west direction), and it appears to be just west of the Florida Turnpike and approximately half way between the Cities of Winter Garden (in Orange County) and Clermont (in Lake County). The site is bordered by State Road 50 to the north, a mini-storage facility to the west, a light industrial area and vacant lot to the east, and as more fully discussed below, a residential area to the south. At least since 1985, a residential subdivision has occupied the area immediately south of and adjacent to the site of the proposed facility.4 For many years, the subject property just north of the subdivision was owned by Kelly Construction Company (Kelly) and remained vacant. At some point after 1985, however, Kelly began using the site as a gravel pit and commenced excavation operations as close as forty feet to the back property line of the homes in the subdivision. According to one long-time resident, Kelly then began using the vacant land as a dumping site for building materials and illegal trash. After a complaint was filed, in 1998 the Department shut down the landfill operations and a substantial berm was constructed between the subject property and the subdivision. Around 1999, Prestige's parent company either purchased or obtained authorization to use the property and commenced operations shortly thereafter under the permit issued to Prestige Gunite of Orlando, Inc. It also reduced the size of the berm between the plant operations and the subdivision property line to approximately seventy-five feet. Prestige's gunite facility will share a six-acre tract of property already used by Prestige/AB Ready Mix, Inc., under a permit obtained by that entity in 2001. The gunite portion of the business will use the northern part of the property, while the ready-mix operations are located on the southern part of the tract, which lie less than a hundred feet or so from the back property line of the closest homes. Access to both operations will be from State Road 50, which lies directly north of the property. In addition, there is a truck maintenance facility on the site, which will perform maintenance work on vehicles for both operations. The proposed gunite facility consists of an existing cement storage silo containing dry powdered cement, sand storage areas, and office space. The finished product (gunite) is used in the construction of swimming pools. The dry powdered cement will be loaded into the rear compartment of the cement trucks, while sand is loaded by a front end loader into the front compartment on the truck. The sand is stored in nearby storage piles and will be covered by tarpaulins when not in use. The materials are then transported to a job site, off-loaded, mixed with water, and sprayed into a swimming pool shell. These operations are in contrast to the existing ready-mix operations now being conducted on the southern half of the property, which involve the on-site mixing of cement, sand, aggregate, fly ash, and water to create cement, the loading of the wet mixture into trucks, and the hauling of the wet cement to the job site. In addition, the ready-mix cement trucks require continual cleaning on site, which creates a noisy environment for the surrounding area. Permit Requirements Under Florida Administrative Code Rule 62-296.414, which contains the substantive requirements for using the permit, an applicant must agree to comply with various requirements set forth in the rule. They include requirements relative to stack emissions, unconfined emissions, test methods and procedures, and compliance demonstration. Although the application and supporting documentation reflect that each of the above requirements has been met, perhaps the most relevant requirements to Petitioners' concerns are the two that the owner "limit visible emissions to 5 percent opacity" and "take reasonable precautions to control unconfined emissions from hoppers, storage and conveying equipment, conveyor drop points, truck loading and unloading, roads, parking areas, stock piles, and yards." Fla. Admin. Code R. 62- 296.414(1) and (2). To control unconfined emissions, Prestige will operate water and sweeper trucks (which are shared with the ready-mix operation) that will periodically water the grounds during hours of operation and remove excess materials from roads and other loading areas which might otherwise be carried by the wind to surrounding neighborhoods. Prestige will place tarpaulins over sand piles, when not in use, to prevent sand from being blown out of the yard. To control stack emissions, a bag system has been installed on top of the silo in which the dry powdered cement is stored. This is intended to reduce emissions that may be generated from the gunite silo during loading and unloading operations. The baghouse will be periodically inspected and bags changed on a regular basis. Also, a shaker system is automatically initiated during the loading process which reduces emissions by moving cement and cement dust down into the silo rather than up and out of the silo. Further, the lid on the chute (which fits onto the opening of the truck where the material is loaded) has been modified to prevent sand or cement from "smoking" up and causing an emission problem. Prestige acknowledges that prior to shutting down operations in early September 2006, it experienced an emissions problem with the truck loading operation which will be corrected by the modification of the lid. Finally, within thirty days after operations are commenced, Prestige must conduct a visible emission test on each dust collector exhaust point. The procedural requirements for obtaining a Non-Title V Air General Permit to operate a concrete batching plant are found in Florida Administrative Code Rule 62-210.300(4)(c)2. and simply require that the owner (Prestige) provide a completed Concrete Batching Plant Air Permit Notification Form, agree to comply with the requirements of Florida Administrative Code Rule 62-296.414 (cited above), submit notification to the Department in the event the site of the plant is relocated, agree to meet certain requirements if nonmetallic minerals are processed, and that if more than one relocatable concrete batching plant is located at the same location, agree that the total operations would not be a Title V source. The record shows that each of these requirements has been met. Petitioners' Concerns Petitioners presented a wide array of concerns, most of which are not relevant to the narrow issues in this case and instead appear to be related to the operations of the ready-mix plant or matters outside the jurisdiction of the Department.5 Their undisputed testimony is that the occupants of the homes which lie near and adjacent to the six-acre site are now, and have been for years, the recipients of dust and other particulate matter in such quantities as to force them to keep their windows closed throughout the year and prevent them from enjoying any type of outside activity in the area. Virtually all of Petitioners and their witnesses testified about constant respiratory ailments which they or members of their family suffer from due to the air emissions from the cement plants. These ailments began after the adjoining property was converted to a cement plant. They also pointed out that vehicles which are not parked in enclosed garages are covered by dust after a relatively short period of time. For example, cars that are washed in the afternoon and parked in front of their owners' homes that evening will be covered in dust the next morning. See Petitioners' Exhibits 18A, B, and C. While not a consideration in this case, water truck and sweeping operations at the gunite facility will begin at 6:00 a.m., and operations have begun as early as 2:00 a.m. or 3:00 a.m. at the ready-mix facility. Thus, beginning early in the morning and continuing throughout the day, the neighbors are subjected to the sound of large cement trucks being driven throughout the yard while being loaded with cement, cleaned, or mechanically repaired. At the same time, Petitioners have indicated that the sale of their homes is not possible due to the operation of the cement plants, and one witness stated that it was unlikely he could even rent his home to a third party due to the issues facing the neighborhood. Petitioners uniformly expressed dissatisfaction with the Central District Office's handling of their long-standing complaints (beginning years ago) and the amount of time it took for the Department to actually perform an inspection of the adjoining property. After conducting an initial inspection in November 2005 and a follow-up inspection in March 2006, presumably because of Petitioners' complaints, in October 2006 the Department entered into a Short Form Consent Order with both Prestige and the ready-mix entity. To resolve a number of violations, including operating without a permit, the Department required Prestige to pay a $10,800.00 civil fine and take corrective action. (Also, Prestige/AB Ready Mix, LLC, was required to pay a $15,650.00 civil penalty for numerous violations associated with its operations and take corrective action.) The matter was finally resolved by a Department letter dated October 13, 2006. See Department Exhibit 9. According to a Department inspector, a follow-up inspection in early December 2006 did not detect any on-site violations by the ready-mix plant. Despite the corrective actions which the ready-mix operation may have undertaken, Petitioners complain that the air quality in the neighborhood has improved only slightly, and that was a result of Prestige shutting down the gunite operations in early September 2006 pending the outcome of this case, and was not due to any corrective measures required by the Short Form Consent Orders. Petitioners' complaints regarding air quality are real and not imagined. Credible testimony and photographs confirm them to be true. It is fair to assume that if emissions violations are still occurring, as Petitioners contend, they are due to the operations of the ready-mix plant and should be the subject of further inspections by the Department and an enforcement action, if appropriate. However, given the Department's straight-forward regulations pertaining to the use of an air general permit, the precautions which Prestige has stated it will take (and assuming that they will occur), and the expert testimony supporting a finding that all criteria have been met, Prestige is qualified to use the applied-for air general permit to operate a cement batching plant at the Clermont Yard.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order determining that Prestige Gunite of Orlando, Inc., is qualified to use an air general permit at 17600 State Road 50, Clermont, Florida. DONE AND ENTERED this 5th day of March, 2007, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2007.
Findings Of Fact Application No. 76-00451 seeks a consumptive water use permit for an existing use involving 14 withdrawal points. The application seeks a total average annual withdrawal of 20.2584 million gallons per day and a maximum daily withdrawal of 45.8539 million gallons per day. The water will be used for citrus processing. The Southwest Florida Water Management District's staff recommends issuance of the permit with the following conditions: That the applicant shall install totalizing flow meters of the propeller-driven type on all withdrawal points covered by this permit. That the applicant shall record the pumpage from the above-referenced meters on a weekly basis and submit a record of that pumpage to the district quarterly, beginning on January 15, 1977. That the permit shall expire on December 31, 1980.
Recommendation It is hereby Recommended that a consumptive use permit in the amounts and from the points set forth in the application be granted subject to the conditions set forth in paragraph 2 above. ENTERED this 13th day of October, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida 33512 Lykes Pasco Packing Company Post Office Box 97 Dade City, Florida
The Issue The issue is whether to approve an Environmental Resource Permit (ERP) modification for the construction of a surface water management system, to be issued to Respondent, Miromar Lakes, LLC (Miromar), which will serve a 29.08-acre single- family residential development known as The Peninsula Phase IV (Phase IV) located in Lee County, Florida.
Findings Of Fact The Parties Miromar is a Florida limited liability corporation that owns property in the Miromar Lakes community in Lee County on which a development known as Phase IV will be constructed. Miromar is the applicant for the Phase IV permit. The District is a government entity with the power and duty to exercise regulatory jurisdiction over the proposed project pursuant to part IV, chapter 373, Florida Statutes, and title 40E, Florida Administrative Code. In implementing this power and duty, the District has adopted the Applicant's Handbook (AH) to provide standards and guidance to applicants. Alico is a Florida limited liability corporation with its principal place of business in Fort Myers, Florida. It is the owner of property immediately adjacent to and north of Miromar's property. Respondents have stipulated to the facts necessary to establish Alico's standing. The Conceptual Permit This case concerns Miromar's application to modify a conceptual permit issued by the District more than 15 years ago. On June 10, 1999, the District issued ERP Permit No. 36-03568-P, a conceptual approval permit for the development of a large, mixed-use residential development with a golf course, known as Miromar Lakes, that lies east of Interstate 75 (I-75), south of Alico Road, and north of Florida Gulf Coast University. The permit also approved a surface water management system designed to serve a 1481.1-acre mixed-use development within Miromar Lakes. Alico asserts that the permit is so vague in future development details that it is impossible to determine whether Phase IV is consistent with its terms and conditions. However, the 1999 permit was not contested, and any attempt in this proceeding to challenge that permit, or subsequent modifications to the permit that are now final, is untimely. A conceptual permit is available to applicants who wish to have their design concept approved for a master plan or future plan. So long as the future phases are consistent with the conceptual permit and there are no changes to applicable state water quality standards or special basin criteria, the applicant does not need to reapply under the current rules for subsequent phases. Instead, it allows an applicant to take advantage of the rules in effect at the time of the original permit issuance. A conceptual permit typically leaves construction details to future development decisions. As District witness Waterhouse explained, this is "the nature of a conceptual permit." Because the landowner does not know the precise manner in which the property will be developed years down the road, "it doesn't make sense to force the landowner to pretend that they do because it's a pretty good bet that those things are going to change to some extent in the future." By way of example, Waterhouse noted that "[a]s long as it's single family proposed then and it's proposed now, I would characterize that as sufficient detail." It is not surprising, then, that the 1999 permit contains very little detail regarding the existence, location, or development of roads, lots, a stormwater management system, or grading, and that the construction permit for Phase IV has far more detail than the conceptual permit. Even Alico's expert agreed that there is no requirement that a conceptual permit include the details of each subsequent construction phase. A fair inference to draw is that the District intended for the developer to have considerable latitude in developing the large tract of undeveloped land, phase by phase, over the life of the conceptual permit. The 1999 permit has been modified over 60 times since its issuance, and to date, significant portions of Miromar Lakes have been constructed. Except for the current, on-going feud between Miromar and Alico over several recent or pending applications (see Case Nos. 15-1050, 15-3937, and 15-5621), none of these modifications were contested. The Property at Issue Phase IV is a 29.08-acre subdivision within an area of the Miromar Lakes community known as the Peninsula. Located within Basin 6, Phase IV is the last phase of development approved by the conceptual permit for residential development in the Peninsula. All prior Peninsula phases have been permitted and developed, or are in the process of development. Prior phases were permitted based on their consistency with the conceptual permit, and none were challenged by third parties. The area under Miromar's requested permit in the instant case was conceptually authorized for single-family residential development. This is confirmed by language in the 1999 permit, which describes the conceptual proposal for Basin 6 as "includ[ing] 639.7 acres of residential, golf course, and mixed-used [sic] development." Jt. Ex. 3, p. 275. The permit also provides that each of the four sub-basins in Basin 6 should "have a water quality structure that provides treatment for the first one inch of stormwater runoff from the sub-basin . . . and that attenuation for Basin 6 is achieved onsite via the proposed sub-basin lakes and also by an existing 244.2-acre borrow lake." Id. While the 1999 permit establishes standards for flood control elevations, minimum lot elevations, and discharge rates, more specific development guidance is not provided. When the conceptual permit was issued, Basin 6 contained one former mining pit dredged from uplands to be used as a man-made lake for recreational purposes. A second mining pit, later converted to a lake, continued mining operations until 2006. The following year, the District authorized the two borrow lakes to be connected by a series of channels and canals, forming a privately-owned, 660-acre waterbody now known as Lake 5/6. Alico's property includes Lake 5, which makes up the northern portion of Lake 5/6, while Lake 6 to the south, owned by the Miromar Lakes Community Development District, is surrounded by Miromar's development. Alico has an easement over portions of Lake 6 for recreational uses under a Lake Use Agreement. Because the two connected lakes are to be used only for recreation and attenuation purposes, Lake 5/6 is designated as Class III waters and cannot be used for stormwater treatment. It is not classified as an Outstanding Florida Water (OFW) or an Impaired Florida Waterbody. Lake 5/6 discharges over a control weir into an un- channeled slough system known as the Stewart Cypress Slough. The water travels several miles through the slough system, passes several intervening properties that also discharge waters into the slough, and then runs underneath I-75. It eventually reaches the Estero River, an OFW and Impaired Florida Waterbody, which flows into the Estero Bay, an OFW. There is no direct discharge of waters from Lake 5/6 to the Estero River. The evidence shows that the project will not increase the overall discharge rate from the control weir for Lake 5/6. In February 2013, the District approved another Miromar application, known as Phase III, which authorized the third phase of development within the same peninsula where the Phase IV project will be located. That development contains two wet detention structures (Lakes 1 and 3) that will also service the Phase IV project. The Phase III permit was issued using the 1999 rules and regulations and was not contested. The Application The Original Application On November 25, 2014, the District issued its notice of intent to issue Miromar a permit authorizing the construction and operation of a stormwater system serving 29.08 acres of residential development that included multi-family residences, single-family residences, 49 boat slips, and road construction. Phase IV is a very small portion of the 1,481-acre development approved in the conceptual permit. The project is located on Via Salerno Way and Via Cassina Court within Basin 6. Construction was originally proposed in Sub-Basins 1 and 3. There is an approved Master Plan for stormwater management facilities within the project area. The site was previously cleared and filled and no wetlands are located on the site. The original construction in Sub-Basin 1 consisted of a roadway, 22 single-family residential lots, and stormwater conveyance facilities. Also included were shoreline contour shaping, placement of rip-rap on portions of the Lake 5/6 shoreline to enhance stability, enhanced littoral zones, and boat docks. Stormwater within that Sub-Basin flows via sheet flow and interconnected inlets to the existing wet detention area (Lake 1) located in Phase III north of the site. The wet detention area provides the required water quality treatment volume for the project prior to discharge to Lake 5/6. The original proposed construction in Sub-Basin 3 consisted of a roadway, 11 single-family residential lots, and 16 multi-family buildings with associated internal roadway, parking areas, and stormwater treatment, storage, and conveyance facilities. Also included within the original plans were shoreline contour shaping, placement of rip-rap on portions of Lake 5/6 shoreline to enhance stability, enhanced littoral zones, and boat docks. Stormwater runoff within Sub-Basin 3 flows via sheet flow and interconnected inlets to the existing wet detention area (Lake 3) located in Phase III north of the site. The original application included a request to increase the surface area of Lake 3 by approximately 0.1 acre and to construct three dry detention areas within the multi-family development area. The wet and dry detention areas provide the required water quality treatment for the project prior to discharge to Lake 5/6. The Revised Project After the case was referred to DOAH, by letter dated June 8, 2015, Miromar's project engineer provided the District with proposed changes to the site plan, to be used at the final hearing then scheduled to begin on June 24, 2015, which include the replacement of 16 multi-family buildings and driveways on Via Cassina Court with 23 single-family residential lots; removal of the 16 multi-family boat docks located at the southern end of Via Cassina Court; reducing the number of boat docks to 45 single-family docks; relocation of the three dry detention areas shown on the proposed site plan; and clarification of the lot grading cross-section to ensure that stormwater runoff from the development will be directed to the stormwater management system and not Lake 5/6. Updated plans, drawings, and specifications, and new water quality calculations accompanied the letter and were intended to replace original Exhibits 2.0 and 2.3 of the permit. See Jt. Ex. JA-1, pp. 244- 257. The changes resulted in a continuance of the final hearing and Alico's filing of an Amended Petition. By amendment at final hearing, Miromar removed the 45 single-family docks. The June 8 letter states that the changes will not increase pollution or reduce the efficiency of the stormwater management system. Miromar acknowledges that some of these changes were to resolve concerns raised by Alico. Miromar now seeks approval of the Phase IV permit, incorporating the changes proposed by the June 8 letter and those agreed to at the final hearing. Because there was no requirement to provide a site- specific nutrient loading analysis when the 1999 permit was issued -- this analysis was not yet formally developed -- the District did not require, and Miromar did not submit, such an analysis with its application. Under the conceptual permit, Miromar was required to provide treatment for one inch of stormwater runoff in Basin 6. Relying on this condition, Miromar applied that treatment to the Phase IV permit. This results in the treatment of 7.09 acre- feet of stormwater for the basin. After the construction shown in the permit, the stormwater management system will treat 9.21 acre-feet, or more than is required under the 1999 permit. The District established that new flood routing calculations for the project were not necessary because Miromar has set elevations for the water control structures in Lakes 1 and 3 at the same level as the road elevations, and the project connects to an existing surface water treatment system. This provides reasonable assurance that the project will not cause flooding despite having no calculations from the applicant. Alico's Objections Although couched in different terms, Alico's concerns can be generally summarized as follows. First, it contends the application should be treated as a major modification of the conceptual permit and that Miromar must satisfy current rules and regulations, and not those in effect in 1999. Second, it contends both the original and revised applications are inconsistent with the conceptual permit and must be treated as a new design, subject to all current rules and regulations. Third, even though Miromar agreed at hearing to revise its permit to address certain errors/deficiencies identified by Alico's experts, Alico contends no revisions can be made at this stage of the proceeding, and that a new application must be filed with the District and the review process started anew. Is the Application a Major or Minor Modification? If the modification is minor, Miromar is required only to satisfy applicable rules for issuance of a permit when the conceptual permit was issued. Rule 62-330.315 and AH section 6.2.1 provide guidance in resolving this issue. Rule 62-330.315(2)(g) defines a minor modification as one "that do[es] not substantially alter the permit authorization, increase permitted off-site discharge, increase the environmental impact of the project, decrease required retention, decrease required detention, decrease required flood control elevations, or decrease pollution removal efficiency." The rule also provides that the "factors that will be considered in determining whether a change is minor are described in section 6.2.1 of Volume I [of the Applicant's Handbook]." Section 6.2.1(d) lists a series of 14 factors to be considered in determining whether a modification will cause more than minor changes under rule 62-330.315(2). None of the factors is dispositive alone, and the presence of any single one of the factors does not necessarily mean that a modification is major. All 14 factors are considered together in determining whether a modification is major. Using the factors set forth in rule 62-330.315(2), in conjunction with section 6.2.1, the District reviewed the application to determine whether it was a minor modification. Based on these criteria, the District determined that the application qualified as a minor modification of a conceptual permit and that it satisfied applicable rules for issuance of a permit for this subsequent phase of the project. Alico contends that the initial review by a District staffer was only cursory and was in no way a meaningful assessment. Even if this is true, subsequent reviews by District staff, including witness Waterhouse, who supervises the ERP Bureau, was a signatory on the 1999 permit, and has reviewed thousands of ERP applications, confirmed that the application, as revised on June 8 and at final hearing, meets the criteria for a minor modification. The testimony of District witnesses Waterhouse and Waters has been accepted as being the most credible on this issue. In its review of the original application, the District considered the inclusion of boat docks as the only aspect of the application that made the project a major modification. In all other respects, the District determined that the modification would not cause more than minor changes. With the removal of the boat docks, the District concluded that the application did not substantially alter the design of the activities or the conditions of the conceptual approval permit. Alico's expert, who has never performed a similar consistency analysis on any project, testified that several of the 14 factors in section 6.2.1(d) might be affected. But he opined with certitude that factor 2 is implicated by the Phase IV permit. Factor 2 comes into play when there is an "[i]ncrease in proposed impervious and semi-impervious surfaces more than 10 percent or 0.5 acres, whichever is less, unless the activities were permitted with stormwater treatment and flood attenuation capability sufficient to meet the permitting requirements for the proposed modification." By citing only one factor, the expert implicitly conceded that the other 13 factors are not present, thus weighing towards a finding of consistency. Alico's expert focused only on the first part of factor 2 by calculating the impervious area of the project, as he did not believe the conceptual permit approved a master stormwater management system capable of sufficiently meeting the treatment and attenuation requirements for the Phase IV project. However, the more persuasive evidence is that the Master Plan in the 1999 permit is capable of meeting the treatment and attenuation requirements for the project. Therefore, factor 2 is not implicated by the Phase IV permit. Even if the factor were present, it would be insufficient to outweigh the other 13 factors and render the project a major modification of the 1999 permit. The preponderance of the evidence supports a finding that the District may consider as minor the revised application. Consistency with the Conceptual Permit A consistency analysis is conducted under two related rules. First, rule 62-330.315 identifies when a subsequent permit is either a major or minor modification of a prior conceptual permit. As found in the previous section of this Recommended Order, the modification is minor. Second, rule 62- 330.056 provides a rebuttable presumption that subsequent consistent development phases are likely to meet the applicable rules and regulations if the factors listed in subsections (7)(a) through (7)(d) are met. The primary factors for consistency comparison are identified in subsection (7)(a) as "the size, location and extent of the activities proposed, the type and nature of the activities, percent imperviousness, allowable discharge and points of discharge, location and extent of wetland and other surface water impacts, mitigation plans implemented or proposed, control elevations, extent of stormwater reuse, detention and retention volumes, and the extent of flood elevations." Subsections (7)(b) and (c) provide that in order to have consistency, there can be no changes to state water quality standards, in this case the standards for Lake 5/6, or special basin criteria. There is no evidence that applicable state water quality standards or special basin criteria have changed. Finally, subsection (7)(d) requires that there can be no substantive changes to the site characteristics. Except for the conceptual permit, there is no requirement that the District compare the Phase IV permit with any other permit. The District views the location and the land use type of the project as the two most important criteria for determining consistency. As required by the rule, the District also compares the environmental impacts of the modification to the conceptual permit, control elevations, and discharge rates. The District credibly determined there is no inconsistency. While some site characteristics in Basin 6 have obviously changed over the last 16 years, the District's review found no substantive changes that would affect whether the design concepts approved in the conceptual approval permit can continue to be reasonably expected to meet the conditions for authorizing construction of future phases. The District credibly determined that the activities in Phase IV, as revised, were similar to or less intensive than those authorized in the conceptual approval permit and may actually provide a net benefit to Lake 5/6. Alico contends that a meaningful consistency analysis was not conducted by the District staffer who reviewed the original application. But subsequent reviews by witnesses Waterhouse and Waters confirmed that Phase IV, as revised, is consistent with the conceptual permit based upon the rule and AH criteria. Besides the District's review, Miromar's expert testified that Phase IV is consistent in land use as a single- family residential development. He also testified that the Phase IV permit was consistent with the 1999 permit in size and location; it maintained the same allowable rate of stormwater discharge; and it maintained required flood control elevations. He further testified that the Phase IV permit did not change the mitigation plans, permitted stormwater reuse, flood routings, or storm stages provided by the 1999 permit. This testimony has been credited in resolving the issue. The preponderance of the evidence supports a finding that the Phase IV land uses are the same as contemplated in the conceptual permit and the already-approved prior phases of Miromar Lakes, and the new permit is consistent with the conceptual permit. Therefore, Miromar is entitled to a rebuttable presumption that it meets the applicable rules and standards in place when the 1999 permit was issued. Alico failed to rebut this presumption. Revisions and Amendments at the Final Hearing During the final hearing, Alico's experts identified several errors and/or deficiencies in the design of Miromar's project, described below, that should be addressed before a permit can be issued. Miromar agrees with some of these concerns and asks that they be addressed through revisions incorporated into its permit. The District also concurs with these changes. The record shows that they are appropriate, minor in nature, and do not change the character of the permit. There is no evidence that Alico is prejudiced by allowing these revisions. Alico's expert testified that the Phase IV permit does not provide sufficient information regarding the soils on the Phase IV site. At hearing, Miromar agreed that any unsuitable soils discovered during construction would be excavated and removed and correctly disposed of in a landfill or other uplands. This is the common method of dealing with soils in Lee County, where it is not unusual to find unsuitable soils during construction. A special condition to this effect should be included in the final permit to ensure clarity. Through a series of treatment ponds, Miromar proposes to treat nearly all stormwater that falls on-site prior to its discharge to off-site properties. Alico's expert testified that the lot grading detail drawings inaccurately reflect the elevations of certain portions of the lots and can result in runoff from some lots being routed to Lake 5/6, instead of Lakes 1 and 3. Miromar agrees with this concern and represented that the intent of the June 8 letter is that drainage for all lots, except for the portion of lots within the 20-foot Lake Maintenance Easement (LME), which surrounds the project on three sides, be directed to the front of the lots toward the street, and then to the treatment ponds. Water that falls naturally within the LME will be treated by attenuation in Lake 5/6 prior to off-site discharge. Miromar also agrees to submit new Tabular Lot Grading Revisions and a new Typical Lot Grading Detail and to update its June 8 plans to reflect proposed lot grading elevations consistent with the lot detail. Alico's expert acknowledged that roof gutters are an additional solution, and they should be installed on all roofs in order to direct runoff to the front yards and then to the stormwater system. Finally, to ensure proper lot drainage, Miromar agrees that the secondary drainage pipes to convey runoff from roofs, gutters, and grassed areas will have a minimum size of six inches. The District agrees that these changes will improve water quality and ensure that all stormwater is properly captured and directed into the stormwater system. A special condition requiring these revisions should be included in the final permit to ensure clarity. Alico's expert also testified that the plans should include a requirement that Miromar follow best management practices (BMPs) for the replacement of a control structure in Lake 3, which serves as a stormwater treatment pond. General Condition 3 already addresses this issue by requiring Miromar to use BMPs that prevent adverse impacts to the water resources and adjacent lands. In addition, the June 8 letter provides plans for BMPs for work at the site, including Lake 3. Although the District found that reasonable assurances were provided by General Condition 3 and the June 8 letter, to ensure clarity, a special condition should be included in the final permit that requires the use of BMPs for all construction, including the replacement of an old boat ramp and the control structure in Lake 3. Miromar and the District agree that this revision is appropriate. Alico's expert opined that control structures CS-1 (Lake 1) and WQS-1.3 (Lake 3), which have a circular bleeder orifice with a four-inch diameter, should be limited to a bleeder orifice of 3.7 inches in diameter. Although the District found reasonable assurances existed with four-inch bleeder orifices, Special Condition 3 should be modified to reflect a 3.7-inch bleeder for these control structures. This will ensure that before being discharged, the water leaving the two control structures receives the appropriate amount of water quality treatment. Both Miromar and the District agree that this revision is appropriate. With the removal of all docks and an old boat ramp, Special Conditions 2, 10, 11, and 13 through 17 require modification, or deletion if necessary, to eliminate obsolete language relating to the docks and ramp and to add language to provide that construction and operation of the docks shown on the plans, specifications, and drawings are not authorized. Miromar and the District agree to these revisions. Other Concerns Alico's expert contended that under current District rules, Miromar is required to provide stormwater treatment equal to the greater of (a) one inch multiplied by the total project acreage, and (b) 2.5 inches multiplied by the project's impervious area. However, Alico did not pursue this issue in its PRO, probably because its expert agrees that the current design of the project meets District rule criteria for one inch of water quality treatment. Alico's expert also contends that Miromar is required to provide an additional 50 percent of stormwater treatment above the one-inch requirement. This is contrary to the conceptual permit, which does not require additional stormwater treatment. Also, the requirement does not apply when there is no direct discharge of stormwater into an OFW. Even so, Miromar voluntarily agreed to increase the stormwater treatment capacity for Phase IV, which results in excess treatment in Basin 6 greater than 50 percent above the treatment required for the Phase IV area. Alico argues that the additional treatment is illusory, as it relies on additional treatment from an adjoining phase, and not Phase IV. Even if this is true, Alico's expert admits that the current one inch treatment meets the requirements of the rule for issuance of a permit. Alico's expert contended that the Phase IV permit allows the bulkhead to be developed on more than 40 percent of total shorelines, in contravention of AH section 5.4.2, Volume II, which restricts a bulkhead to no more than 40 percent of the lake perimeter. However, Miromar's expert established that the Phase IV hardened shorelines would comprise less than 40 percent of the total shoreline in the Phase IV area and therefore comply with this requirement. His testimony was not credibly refuted. Even though there is no direct discharge from the project into the Estero River or Estero Bay, and the project will not result in higher discharge rates from the overall system outfall from Lake 5/6, based on water samples taken in August 2015, Alico's expert opined that the project will cause a discharge of excess nutrients into an OFW. The evidence shows, however, that these water samples were taken after heavy rains when the expert observed water flowing upstream from the slough into Lake 5/6, rather than downstream. The expert also admitted he had done no testing, analysis, or modeling demonstrating that any pollutant would even reach the Estero River. He failed to take a baseline sample of water quality for any nutrients for which the slough, Estero River, or Estero Bay may be impaired, and he conceded that it was possible that there was no net discharge from Lake 5/6 into the slough during the time of his testing. There is insufficient evidence to sustain this allegation. Other alleged deficiencies or errors in the application, as revised, that are not addressed in this Recommended Order have been considered and found to be without merit. ERP and Public Interest Criteria The criteria the District uses when reviewing an ERP application are contained in the AH and rules 62-330.301 and 62-330.302. In addition, an applicant must provide reasonable assurance that a proposed project is not contrary to the public interest. § 373.414, Fla. Stat.; AH § 10.2.3. Alico failed to prove by a preponderance of the evidence that Miromar has not provided reasonable assurance that the activities authorized by the ERP comply with all applicable ERP permitting criteria. Alico failed to prove by a preponderance of the evidence that Miromar has not provided reasonable assurance that the proposed project is not contrary to the public interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order approving Miromar's application, as revised, for a permit modification, subject to the following additional conditions: That the plans, drawings, and specifications submitted with the June 8 letter that appear in Joint Exhibit JA-1, pages 244-53, be used as Exhibit 2.0 of the permit. That the water quality calculations submitted with the June 8 letter that appear in Joint Exhibit JA-1, pages 254-57, be used as Exhibit 2.3 of the permit. That Special Conditions 2, 10, 11, and 13 through 17 be revised or eliminated to remove obsolete language relating to the removal of the boat docks and boat ramp. That Special Condition 10 be revised to require that all construction, including the removal of the boat ramp and replacement of Control Structure No. 3, be conducted using BMPs. That a new special condition be added to reflect that the construction and operation of docks will not be authorized by the permit. That a new special condition be added with new Tabular Lot Grading Revisions and a revised Typical Lot Grading Detail and address the following: the project shall be constructed to ensure that stormwater from the project, except stormwater from within the LME, is routed to the stormwater treatment system prior to discharge to Lake 5/6; the lot grading on all lots shall be in accordance with the revised lot grading to reflect the high point of the lots located adjacent to the LME to ensure that runoff from the lots is directed to Lakes 1 and 3; that the revised lot grading require the installation of six-inch secondary drainage pipes; and that roof gutters be installed on all roofs to ensure that runoff from the residential lots is directed to the stormwater treatment system. That a new special condition be added to address unsuitable soils encountered during construction and to ensure that they are removed and disposed of in an appropriate manner. That Special Condition 3, relating to discharge facilities, be revised to reflect that a 3.7-inch circular orifice will be installed in Sub-Basins 1 and 3, rather than a four-inch orifice shown in the existing plans. DONE AND ENTERED this 27th day of January, 2016, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2016. COPIES FURNISHED: Peter Antonacci, Executive Director South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 (eServed) Kevin S. Hennessy, Esquire Lewis Longman & Walker, P.A. Suite 620 101 Riverfront Boulevard Bradenton, Florida 34205-8841 (eServed) Brian J. Accardo, General Counsel South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 (eServed) Keith L. Williams, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 (eServed) Martin L. Steinberg, Esquire Hogan Lovells US, LLP Suite 2700 600 Brickell Avenue Miami, Florida 33131-3085 (eServed) Timothy J. Perry, Esquire Oertel, Fernandez, Bryant & Atkinson, P.A. Post Office Box 1110 Tallahassee, Florida 32302-1110 (eServed)
The Issue Whether Bay North Corporation should be issued a permit to construct a domestic wastewater treatment and disposal system at Camp Weed, Franklin County, Florida, pursuant to Chapter 403, Florida Statutes.
Findings Of Fact On February 27, 1978, Lomax Smith, a builder and developer in Tallahassee, Florida, entered into an agreement with the Protestant Episcopal Church in the Diocese of Florida to purchase some 42 acres of real property and the improvements thereon known as "Camp Weed" which is located in Franklin County, Florida. The purchase price of the property was $725,000, with an earnest money deposit of $20,000, and closing of the transaction to be on or before July 1, 1978. At the time of purchase, eight dormitory and several accessory buildings were located on the property which utilized septic tanks for sewage disposal. An existing deep well is in the northwest portion of the property for a water supply. Smith proposed to develop the property by the sale of lots, remodel some of the existing buildings, and construct new housing units. He employed the engineering firm of Broward Davis and Associates, Inc., Tallahassee, Florida, to prepare the necessary design plans and a state environmental permit application for a proposed domestic wastewater treatment plant to be located on the site. (Testimony of L. Smith, N. Smith, Exhibits 12, 13) On September 6, 1978, Smith filed an application with Respondent Department of Environmental Regulation (DER) for a permit to construct the sewage treatment plant (STP) at Camp Weed. He signed the application as owner of the property although he had not closed the purchase transaction nor acquired legal title at that time. The application and supporting plans were reviewed in the Northwest District Office of the Department of Environmental Regulation after site investigation, and it was determined that construction of the facility would be in accordance with applicable laws and regulations. A construction permit was issued to Smith for the STP on October 10, 1978, subject to certain specified conditions attached to the permit. Notification of the permit issuance was not preceded by a notice of intent to grant the permit, nor were any third parties advised of its issuance. Petitioners St. Teresa Dock Association, Inc. (then St. Teresa Dock Association) and H.S. Oven first learned of the permit issuance when their counsel was informed by Smith's counsel on November 3, 1978, that the permit had been issued. Petitioners thereafter on November 17 filed a petition for hearing with DER. (Testimony of L. Smith, Huff, Exhibits 1, 4-5, 8) Camp Weed is bounded on the north by U.S. Highway 98 and on the south by the Gulf of Mexico. The planned site for the STP is in the northeast corner of the tract which is some twelve feet above mean sea level and approximately 950 feet from the shoreline. The elevation of the property on the northwestern side is about 24 feet and is five feet in the middle. The land slopes generally toward the middle area and drains in a southerly direction to the gulf. The subdivision of St. Teresa where Petitioners' members own summer homes is located immediately west of Camp Weed. The members of the St. Teresa Dock Association, Inc., and Petitioner Hamilton S. Oven use the beach and gulf waters for boating, fishing, and other recreational purposes. About a dozen shallow wells in the St. Teresa subdivision provide drinking water for the residents. They are located over 1700 feet southwest from the site of the proposed STP. There are two ponds north of the St. Teresa area adjacent to U.S. Highway 98. An artesian well is located in the gulf about 25 feet south of the Camp Weed property. (Testimony of Huff, N. Smith, Oven, Sensabaugh, Exhibits 2,7, 9-11, 22, 24) The proposed plant is designed to provide sewage treatment for 132 housing units containing an estimated population of 3 persons per unit. A gravity flow collection system to a pumping station will produce a peak influent rate of 29,700 gallons per day with an estimated biological oxygen demand (BOD) loading of 49.6 pounds per day. A basket strainer on the influent line will remove trash. Plant operation will involve the use of aeration tanks, clarifier, chlorination, sand filter and clear well for discharge to a percolation pond. A polishing pond was originally planned, but was deleted at the suggestion of the DER because it performs the same function as the proposed sand filter. Two percolation ponds for alternate use will be construed so that the pond bottom is twelve feet above sea level. A soil test revealed that a sand layer extends under the shallow surface top soil to a depth of approximately 10 feet before reaching the shallow ground water table and that the effluent will percolate through the sand at the rate of one inch per minute. A five foot soil boring by DER failed to encounter ground water at that level and show that rate of percolation through the sand would be acceptable. The ground water table is subject to an unknown variance indepth during the wet and dry seasons of the year depending on the amount of rainfall. Although tide fluctuations may also have some effect on depth of the ground water table, the tide most likely will be of minimum influence due to the distance of the plant site from the gulf. Percolation of at least three feet through sand before reaching ground water is sufficient to meet DER policy requirements. (Testimony of Huff, N. Smith, Bishop, Exhibits 1, 3, 16-17). Based on the design of the STP, it is predicted by applicant's design engineer that there will be at least 90 percent removal of pollutants after chlorination and prior to passage of the effluent through the sand filter. The engineer predicts that after such filtration, there will be approximately 95 percent removal prior to percolation and that the effluent will then be pure enough to use as drinking water. Further purification will take place during the percolation process. The DER District Supervisor of Domestic Wastewater Permitting, who also is a professional engineer, substantially agrees with those predictions. Actual results of the treatment process can be determined, however, only after tests from monitoring wells are made during actual trial operations of the plant. It is further agreed by those experts that the average chlorine residual content in the effluent will be 0.5 parts per million. The DER supervisor therefore is of the opinion that, if the STP is properly operated, the processed effluent will not degrade ground waters, not adversely affect the wells in the St. Teresa Community or the waters of the gulf. After percolation, there is further dilution and ultimately the ground water which reaches the gulf in eight to ten days will be in a purer form than prior to introduction of the effluent. Although a twenty-year storm criterion was applied in the design of the percolation ponds, a catastrophic storm such as a hurricane was not taken into consideration since it would not be economically feasible to design for such an effect and, in any event, super dilution caused by such a storm would negate the possibility of water quality degradation. (Testimony of Huff, N. Smith, Exhibit 1) The buildup of sludge in the plant's holding tank will require removal about once a year when the plant is in full operation. The applicant will employ a certified individual to operate the plant and to remove sludge periodically to an appropriate place for disposal in an authorized manner. DER regards sludge disposal to be a matter for determination at the time application is made for an operating permit. (Testimony of Huff, L. Smith, McNeill, N. Smith, Exhibit 1) The applicant estimates that the construction of the plant and collection system will cost approximately $1,000 per housing unit for a total of $132,000. It is planned to recover this cost on the sale of lots. A condition of such purchases will be that the sewage system and treatment plant will be operated by a home owners association which is to be activated in the near future. Maintenance cost of the sewage plant will be shared by the individual members. Approximately twenty or twenty-five members are required for economical operation of the plant. (Testimony of N. Smith, L. Smith) The county zoning classification for the Camp Weed area is currently the subject of litigation by the applicant in the Franklin County Circuit Court and the result of that litigation as to permitted density of housing will determine the amount of units to be constructed by the applicant. In any event, if the applicant does not secure a county building permit, any DER construction permit would expire at the termination of the time granted therefor. (Testimony of L. Smith, Huff, Exhibit 24) At the time Intervenor Lomax Smith signed the permit application, Bay North Corporation had not been formed. It was incorporated in November, 1978, in order that Smith could obtain financing to complete the property purchase. The transaction was closed November 6, 1978, and a warranty deed to the property was issued to Bay North Corporation by the Episcopal Church in the Diocese of Florida, Inc. The deed was recorded in the public records of Franklin County on November 7, 1978. Lomax Smith is the president and principal stockholder of Bay North Corporation. Promissory notes secured by mortgages to the Southern Bank of Tallahassee and the Episcopal Diocese of Florida in the amounts of $350,000 and $362,500 respectively, were executed by Bay North Corporation on the same date. Pursuant to a request to DER from Lomax Smith on May 15, 1979, the Northwest District DER Office, on June 29, 1979, purported to transfer the permit to Bay North Corporation and extend the expiration date to September 30, 1980. (Testimony of L. Smith, Huff, Exhibits 6, 14-15, 21) The construction permit issued in October, 1978, was subject to standard and special conditions, including the requirement that the permit holder comply with county and municipal regulations prior to construction. They provided that monthly reports be furnished to the DER prior to issuance of an operation permit setting forth wastewater characteristics during a trial period of plant operation. They also required that the facility meet the treatment requirements contained in Chapter 17-3, F.A.C., including a 90 percent reduction in BOD and suspended solids based on concentration of the influent entering the plant. The conditions further provide that at the time of application for an operation permit, it must be shown that a certified operator under Chapter 17- 16, F.A.C., is retained, together with a copy of any contract for contract operation of the facility. Additionally, the conditions require that two monitoring wells be established upstream and downstream of the ponds and that quarterly ground water samples be analyzed and reported to DER. A further condition provides that a three-foot buffer zone must be maintained between the bottom of the percolation ponds and the maximum elevation of the ground water. (Exhibit 8)
Recommendation That the Department of Environmental Regulation issue the requested permit to Bay North Corporation, subject to the conditions attached to the permit issued on October 10, 1978. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of November, 1979. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: George E. Lewis, II, Esq. 316 East Park Avenue Tallahassee, FL 32303 William L. Hyde, Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Ben H. Wilkinson, Esq. Pennington, Wilkinson, Gary and Dunlap Post Office Box 3875 Tallahassee, FL 32303 Alfred O. Shuler, Esq. Post Office Box 850 Apalachicola, FL 32320
Findings Of Fact The following findings are based on the uncontested facts alleged in Petitioner's Motion For Summary Recommended Order and from the Final Orders issued in Bayshore Homeowners Association v. Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354. On December 29, 1980 DER entered a Final Order on the application of Petitioner for a 90 slip marina in Biscayne Bay, Florida. The Order denied the permit because Grove Isle had not demonstrated that the project is "affirmatively in the public interest" and because the applicant had not demonstrated that it "can meet ambient water quality standards within the project area itself." In the Recommended Order on Remand the Hearing Officer had defined "existing ambient waters" to be the area in the cove between Grove Isle and the Miami mainland. The Final Order rejected that concept and held if any waters others than those contained within the immediate project site were to be considered as ambient, Petitioner must request a mixing zone as part of its application. See Section 17-4.242, (1)(a)2.b. and Section 17-4.244, Florida Administrative Code. By a letter received at the Department of Environmental Regulation on May 20, 1981, Grove Isle reapplied for the boat dock permit which was the subject of the foregoing proceedings. Petitioner's application, which was in the form of a letter from counsel, stated: May 18, 1981 Mr. Larry O'Donnell Department of Environmental Regulation Post Office Box 3858 West Palm Beach, Florida 33402 RE: GROVE ISLE - Application for Boat Dock Dear Mr. O'Donnell: On behalf of Grove Isle, LTD, I am reapplying for the boat dock permit previously applied for by Grove Isle, LTD. Please consider this a short-form application. Your office designated a previous file number, DF 13-7956, to this matter. In conjunction with that application I am applying for a mixing zone, pursuant to Rule 17-4.244, for both the construction and operation of this marina. Please refer to your file on the previous application and incorporate said documents into this reapplication. I am submitting with this application: A scale drawing (one inch = 100') of the proposed facility. (which you have) A certified survey of the proposed mixing zone. (one inch = 100') An application fee of $20.00 A copy of the Final Order issued by Jacob D. Varn, former secretary of DER, on the previous application. A copy of the Notice of Intent previously issued for this project, dated 9/23/79. (which you have) As you will note from reading Mr. Varn's Final Order, he concluded that issuance of this permit was not appropriate inasmuch as the applicant had not applied for nor received a designated mixing zone. We do not necessarily agree with this order and have, in fact, appealed this decision to the First District Court of Appeal. However, in an attempt to keep this matter from becoming any more complicated, we have decided to reapply for the permit and to apply for a mixing zone. We do not concede that a mixing zone should be required for this project or that the facility will result in the release of any pollutants so as to significantly degrade ambient water quality. However, should this project, through its construction or operation, result in the release of any pollutants, I believe they would be limited to: Bottom sediments placed in suspension by the installation of the concrete piles used to support the docking facility during construction; Minimal amounts of oil and grease which may escape from the various vessels moored to the docks; The constituants of anti-fouling paint which may be applied to the hulls of the various vessels moored at the docks. Turbidity will be controlled by the use of curtains during construction. If lowered water quality occurs at all in this project it would only occur within the designated mixing zone, as per Rule 17-4.242 (2)(b) F.A.C. Please advise me should additional information be needed to process this re-application. Yours truly, /s/ KENNETH G. OERTEL On June 19, 1981, DER sent a "completeness summary letter" to Petitioner which requested the following information: Your project is in Outstanding Florida Waters. Please provide the following items demonstrating compliance with Section 17-4.242, Florida Administrative Code. Please demonstrate that this project is clearly in the public interest and that this project will not result in the degradation of ambient water quality beyond the 30 day construction period. Petitioner responded by letter dated June 22, 1981 and which was received at DER on June 25, 1981. Petitioner said in pertinent part: Dear Mr. Duke: If you would check your previous file no. DF-13-7956, I believe you will find all the information you have requested has previously been provided to your office either in that permit file or through the administrative hearings held in pursuit of this application. I think it would be more fruitful if you would communicate with Al Clark, Attorney for DER, with regard to the status of this application. As I do not wish to speak on behalf of Mr. Clark, I believe you should confirm the status of this application with him, particularly in view of our attempt to comply with Secretary Varn's Final Order which suggests the application for this mixing zone. The record reflects no further correspondence between the parties until September 23, 1981 when the Department entered a Final Order Denying Application for Permit. The Order provided that: This project was reviewed previously (DF 13-7956) and was determined not to be clearly in the public interest pursuant to Section 17-4.242, F.A.C. No further evidence upon resubmittal, has been provided to clearly demonstrate that this project is in the public interest. Furthermore, the requested mixing zone exceeds that allowable pursuant to Section 17-4.244, F.A.C. and can be applied only during the construction period, pursuant to Section 17-4.242, F.A.C. During the operation of this facility ambient water quality is expected to be degraded in violation of Section 17-4.242, F.A.C. This order was entered ninety-one days after DER received Petitioner's June 22, 1981 letter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation issue the permit applied for by Petitioner, Grove Isle, Ltd. on May 20, 1981 subject to the conditions contained in the Notice of Intent To Issue Permit dated October 23, 1979 which is a part of the record in Bayshore Homeowners Association et al., v. State of Florida Department of Environmental Regulation and Grove Isle, Inc., Case Nos. 79-2186, 79-2324 and 79-2354. DONE and RECOMMENDED this 12th day of February, 1982, in Tallahassee, Florida. MICHAEL P. DODSON 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 12th day of February, 1982.
The Issue Whether construction permit No. AC41-6819 issued to Manatee Energy Company, dated June 8, 1978, should be amended, as proposed in construction permit No. AC41-6819A, dated November 7, 1978.
Findings Of Fact The parties stipulated to the following facts: The Manatee Chapter of the Isaak Walton League of America ("Isaak Walton League") is a non-profit corporation, organized and existing under Florida law. The Isaak Walton League's address is 5314 Bay State Road, Palmetto, Florida 33561. Manatee Energy Company ("Manatee Energy") is a Florida corporation, whose address is 108 Appleyard Drive, Post Office Box 867, Tallahassee, Florida 32302, and was formerly a subsidiary of Belcher Oil Company. The State of Florida Department of Environmental Regulation ("DER") is an agency of the State of Florida charged with the regulation and control of air and water pollution under Chapter 403, Florida Statutes, whose address is Twin Towers Office Building, 2600 Blair Stone Road, Tallahassee, Florida 32301. The specific agency action at issue in this proceeding is DER's issuance of a revised permit to Manatee Energy to modify a crude oil splitting facility and modified or additional rundown tankage at Port Manatee, Florida. The facility at issue will be located in North Manatee County near the Hillsborough/Manatee County line in Port Manatee. On November 7, 1978, DER issued Manatee Energy Permit No. AC41- 6819A. The validity of the permit is disputed by the Petitioner. Manatee Energy has undertaken construction of the crude oil splitter and associated tankage under either Permit No. AC41-6819 and Permit No. AC41-6819A. (Exhibit 1) On June 8, 1978, after administrative proceedings conducted under Chapter 120, Florida Statutes, DER issued construction permit AC41-6819 to Manatee Energy for the construction of a 15,000 BPSD crude oil splitter at Port Manatee, Florida. The permit stated that the oil splitter is to separate crude oil by distillation into three fractions; i.e., LPG, jet fuel and bunker "C." It further provided that combustion devices were to be fired with LPG or fuel oil with a sulfur content of 0.7 percent or less. Various conditions were attached to the issuance of the permit, including analysis of samples of fuels to be burned in the furnace and boiler, performance testing of stacks after startup of the facility, emission limits for the furnace and boiler, and periodic monitoring and reporting of heat content and sulfur content of fuel oil combusted in the boiler and furnace. In addition, condition 5 required that all fugitive dust generated at the site be adequately controlled, and conditions 12- 13 required that steps be taken in conjunction with the Manatee Port Authority to correct any ambient particulate violations, such as paving of roads, parking lots and the like, prior to issuance of an operating permit. The Chapter 120 administrative proceedings resulted in a determination that the proposed facility would not release air pollutants exceeding ambient air quality standards, or significantly degrade applicable base line air quality. (Exhibits 1-2) On October 27, 1978, Manatee Energy applied to DER for revision of the existing permit. The proposed revision was prompted primarily by the fact that Manatee Energy had been sold by its parent company, Belcher Oil Company, and had become an independent operator subsequent to the issuance of the original permit. This change in ownership created a need for accurate recording and accounting of product volume and quality before its transfer to Belcher's storage tanks which are adjacent to the crude oil splitter facility. To accomplish this purpose, Manatee Energy proposed the addition of two 10,000 barrel JP-4 "rundown" tanks for jet fuel, and one 10,000 barrel diesel "rundown" tank in lieu of previously permitted tank No. 410. Also, a 33,000 barrel slop oil tank to temporarily receive and hold off-specification product, and a 40,000 barrel waste water tank replacing a 35,000 barrel tank previously permitted (tank No. 409), were proposed to be added. In view of the above proposed changes, the nine storage tanks owned by Belcher (tanks Nos. 401-409), four of which are leased by Manatee Energy (tanks Nos. 406-409), will store different products except for tanks Nos. 405 and 407 which will remain unchanged. Under the original permit, two 80,000 gallon tanks were to be used to store JP-4, (tanks Nos. 403-404), but under the new proposed arrangement, only one will be used for that purpose (tank No. 406). Tank No. 403 will be used exclusively by Belcher for asphalt storage. Tank No. 409 will he converted from a waste water tank to a No. 6 fuel oil tank. Based on revised determinations of hydrocarbon emission factors by the Environmental Protection Agency after Manatee's application for the original permit, secondary seals on internal floating roof tanks will be deleted, but existing floating roof tank No. 407 is proposed to be modified by adding secondary seals to reduce such emissions. Revised calculations by the applicant as to hydrocarbon emissions show that the proposed changes in tank service and design will offset expected emissions from the proposed new tanks. Such emissions from the revised facility are expected to be 16.8 tons less than the currently permitted tankage emission rate of 75.4 tons per year. (Testimony of Hutchinson, Borie, Exhibits 4, 6-9) Additional modifications to the existing permit proposed by Manatee Energy are to relocate the emergency flare stack, move the process heater, boiler and control room approximately 150 feet each from their previously contemplated locations, and to raise the crude tower approximately 16 feet. The tower produces no emissions and the change is designed to improve the distillation process. Movement of the flare stack and the other process equipment and control room are proposed for safety reasons and do not alter the process configuration or increase emissions. Finally, a Merox treating unit was added for the purpose of extracting impurities from jet fuel. This process does not involve any emissions. (Testimony of Hutchinson, Borie, Larsen, Exhibits 4, 6, 14-15) The revised permit application consisted of engineering drawings by the firm of Marsco Engineering Corporation, Tyler, Texas which was employed subsequent to issuance of the original permit, and a report concerning the proposed changes prepared by Walk, Haydel and Associates, Inc., an engineering consultant and design firm of New Orleans, Louisiana. A complete DER application form was not submitted or required by DER. Only a revised page 4 of the standard application form was submitted. There was no certification of the project by a professional engineer registered in Florida, although such a certification is required by DER rules. The application was reviewed and recommended for approval to DER by the Manatee County Pollution Control Director. Personnel of DER's Southwest District Office reviewed the application and determined that the applicant's calculations showing that proposed hydrocarbon emissions would be less than those projected under the original permit were correct. They further found that concentrations of sulfur dioxide and particulate emissions would be unchanged by the modifications to the facility. The latter determination was supported by the results of an air quality computer model programed under standard EPA criteria to estimate the impact of such emissions from pollutant sources on ambient air quality standards at ground level. The model determined the maximum impact of sulfur dioxide pollutants which would emanate from the relocated stacks at receptor points approximately .7 to .8 kilometers south of the facility. It was found that the maximum pollutant impact during the worst twenty-four hour period would not change significantly from the former configuration of the stacks and would be well within state ambient air standards of 260 micrograms per cubic meter. A separate computer model relative to particulates was not required because such emissions when extrapolated from the sulphur dioxide model would result in basically unchanged emissions compared to the originally permitted configuration. Manatee County Pollution Control has operated an air quality monitor at Port Manatee for a number of years. This device, which is used for monitoring emission of particulates, has reflected excessive emissions on a number of occasions during 1978 and 1979. However, it is a "source" monitor which is not located in an appropriate place under EPA standards to monitor ambient air quality and, accordingly, DER does not consider the site to be "ambient oriented" or the data to be usable for determinations involving air quality standards. There have been no violations of ambient air quality revealed by monitoring at other stations in Manatee County during the past year. In fact, Manatee County's annual geometric mean for 1978 for suspended particulates were the lowest ever recorded at 33.8 micrograms per cubic meter which was significantly lower than the air quality standard of 60 micrograms per cubic meter. (Testimony of George, McDonald, Williams, Koogler, Subramani, Exhibits 4, 11-13, 16-21) In 1978, subsequent to the issuance of the original permit but prior to the filing of the revision application, certain rules of the DER contained in Chapter 17-2, Florida Administrative Code, were changed. Rule 17-2.03 required the DER to make a determination of the Best Available Control Technology (BACT) after receipt of an application for a permit to construct an air pollution facility in certain instances under specific criteria stated in the rule, after public notice had been given of an application which required such a determination. DER did not make a BACT determination as to the permit revision application concerning hydrocarbon emissions since it determined that there was an existing emission limiting standard for volatile organic compounds in Rule 17-2.05(5), which required known vapor emission control devices or systems in the processing and use of such substances. DER also determined that Rule 17- 2.04(6) concerning Prevention of Significant Deterioration (PSD) did not require a BACT determination as to hydrocarbon emissions because the Rule does not apply to hydrocarbon emissions. Also, DER determined that neither the BACT nor the PSD rules were applicable to the modified facility as to sulfur dioxide and particulates because the ambient concentration of those emissions would be unchanged by the proposed modifications. (Testimony of Williams, Exhibit 13) On November 13, 1978, DER issued construction permit No. AC41-6819A to Manatee Energy for the proposed modifications. Conditions attached to the permit were the same as those of the original permit, plus conditions setting forth the modifications of the facility. Notification of the issuance of the permit revision was not made to Petitioner who had been a party to the Chapter 120 proceedings involving the original permit. Neither were the public notice provisions of Rule 17-2.04(9) complied with by DER prior to the issuance of the revised permit. The parties stipulated that opportunity for public participation and comment at the hearing held herein would cure any procedural defect in this regard. (Exhibit 5) Condition 12 of the proposed permit provides that before any startup of the facility, steps must be taken in conjunction with the Manatee Port Authority to correct any fugitive particulate problems and condition 13 states that an operating permit will not be issued until such time as the Port Authority has eliminated the "present violation of the ambient air quality standard with regard to particulates." Identical conditions were set forth in the prior permit based on findings that ambient particulate violations existed from fugitive dust created by road traffic at Port Manatee. As heretofore found above, the particulate violations at Port Manatee are not deemed to constitute violation of ambient air quality standards. Nevertheless, since the original permit was issued, various steps have been taken to reduce such emissions in the Port area by the use of a sweeper, paving of roadway, parking and driveway areas, planting of vegetation, grass, and shrubbery in critical areas, and the like. Although these efforts have shown little success, reasonable efforts are continuing to reduce the problem. (Testimony of McDonald, Subramani, Exhibit 18) Eight public witnesses testified at the hearing. Their concerns primarily focused on such subjects as lack of technology to prevent emission of hydrocarbons, oil spills, inefficiency of small facilities, opposition to "dirty industry" in the county, lack of adequate state rules for storage of hazardous waste, and the accumulation of emissions generally in the Tampa Bay area. One witness pointed out the presence of eagle and pelican habitats in the Bay area near the site in question. A statement on behalf of Sarasota County expressed the view that the modified facility should be subject to the review process of Chapter 380, Florida Statutes, concerning developments of regional impact prior to the issuance of a modified construction permit. (Testimony of Burger, Chiefari, Fernald, H. Greer, Blankenship, Morris, M. Greer, Lincer, Exhibit 22, Hearing Officer Exhibit 1)
Recommendation That a permit for the construction of modifications to the facility which is the subject of this proceeding be granted to the Manatee Energy Company, subject to the conditions heretofore proposed by the Department of Environmental Regulation, dated November 7, 1978, and with a precondition that the applicant fully complies with the provisions of Rule 17-4.05, Florida Administrative Code, prior to such issuance. DONE and ENTERED this 22nd day of May, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mary F. Clark, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Ronald C. LaFace, Esquire Post Office Box 1752 Tallahassee, Florida 32302 Paul Amundsen, Esquire One Biscayne Tower Suite 3636 Two South Biscayne Boulevard Miami, Florida 33131
The Issue The issue in this case is whether Respondent, Action Instant Concrete, LLC (AIC), should be allowed to use the Concrete Batching Plant Air General Permit promulgated by Respondent, Department of Environmental Protection (DEP), in Florida Administrative Code Rule 62-210.300(4)(c)2.1
Findings Of Fact Petitioners, Paul and Barbara Corbiey, live at 7380 Southwest 86th Lane, Ocala, Florida, in an area called Green Turf Acres. Petitioners' property shares a boundary with property owned by AIC at State Road 200. In 2003 AIC began construction of a relatively small cement silo and area for storage of rock aggregate and sand to mix with the cement, similar to facilities at a related operation some distance away. The other operation is within the jurisdiction of DEP's Central District, which did not require a permit for the operation. AIC's operation in Ocala is in DEP's Southwest District, which is headquartered in Tampa. Periodically (and irregularly but apparently usually early in the morning) AIC receives deliveries of cement to the silo at its facility next to the Corbieys. The silo is essentially a rectangular bin with a baghouse, essentially another rectangular structure attached to the silo and containing a combination of filters. Deliveries are made using an enclosed truck with a blower and flexible hose that can be positioned and attached to the fill spot on the silo. The transfer of cement from truck to silo is accomplished pneumatically, with the air exhausted through the baghouse, which is designed to capture and retain cement particles within the silo as the air passes through to the outside of the silo. If there are particulate emissions during the process, they typically would come from the baghouse. AIC also has aggregate and sand delivered to storage areas on either side of the silo. Each of the storage areas has walls made of 4-5 courses of cement block on three sides. The walls are there mainly to contain the aggregate and sand but also serve as a partial windbreak. During AIC's operations, trucks come to pick up cement, aggregate, and sand. To load cement onto the trucks, cement is gravity-fed from a hopper on the silo, through a flexible tube, and into the truck; aggregate and sand also are loaded into trucks using a front-end loader. Unconfined emissions can and, at least sometimes, do occur during the loading processes. After loading, the trucks are driven offsite, typically to a construction site, where the cement, aggregate, and sand are batched to form concrete. When AIC began operations, its yard was covered with grass and weeds, which helped suppress fugitive dust when trucks drove in and out. Later, the grass and weeds died, and AIC installed three sprinkler heads to keep the area watered to help suppress fugitive dust. When AIC began construction and operation, Petitioners complained to numerous authorities that AIC's construction and operation were illegal, inappropriate, and should not be allowed for various reasons, including alleged particulate emissions and fugitive dust that was harmful to the health and property of Petitioners and their neighbors.13 One complaint was lodged with DEP's Central District, which referred it to DEP's Southwest District. DEP's Southwest District investigated, determined that AIC should have obtained a permit, initiated compliance action, and required AIC to make use of the Concrete Batching Plant Air General Permit promulgated by DEP in Rule 62- 210.300(4)(c)2. DEP also fined AIC in the amount of $4,150, plus $100 to reimburse DEP for its costs, for constructing and operating without a permit.14 These amounts were paid. It does not appear from the evidence in the record that DEP ordered AIC to cease operations until DEP allowed AIC to use the Concrete Batching Plant Air General Permit. It does not appear that AIC ceased operations. As DEP instructed, AIC had a VE test performed in accordance with EPA Method 9 for submission with a Concrete Batching Plant Air General Permit Notification Form, fee, and proof of public notice. AIC retained Koogler & Associates for this purpose, and the test was performed on April 26, 2005. On April 29, 2005, AIC published notice in the Ocala Star-Banner that it intended to use the Concrete Batching Plant Air General Permit. On May 5, 2005, Koogler & Associates prepared a VE Observations Report for AIC. On May 16, 2005, Petitioners filed a Petition opposing AIC's use of the Concrete Batching Plant Air General Permit and seeking its revocation. On May 19, 2005, AIC submitted a Concrete Batching Plant Air General Permit Notification Form, fee, proof of public notice, and VE observation report to DEP. At the hearing, John B. Koogler, Ph.D., P.E., an expert in environmental science and air quality, and the principal of Koogler & Associates, testified as to the cement and concrete industry in general, EPA Method 9, required certifications for conducting a VE test under EPA Method 9, VE testing under EPA Method 9, and the VE Observations Report prepared for AIC by Koogler & Associates. In the case of AIC's operation, VE testing measures stack emissions during standard loading of cement under pressure. Typically, if there are emissions during the process, they will be seen at the baghouse on the silo--i.e., the dust collector at the exhaust point. This is where VE is measured during testing. AIC's stack emissions were tested at a loading rate of approximately 50 tons per hour; at that rate, 25 tons of cement were loaded into the silo in half an hour. According to AIC's VE Observations Report, there were no stack emissions during testing. Dr. Koogler did not perform the test himself and did not sign the Observations Report, but the test was performed and the report was prepared under his general supervision, and experts in his field routinely rely on VE testing performed by certified technicians under general supervision and on observations reports prepared by others under general supervision. According to Dr. Koogler, the test for AIC appeared to have been performed properly and met the requirements of EPA Method 9 and DEP's statutes and rules for use of the Concrete Batching Plant Air General Permit. Petitioners questioned the veracity of the VE Observations Report, primarily by speculating that the certified technician who performed the test may have fabricated the observations, either with or without his employer's knowledge. This speculation is rejected as unfounded. Petitioners also repeatedly questioned the consistent and reasonable testimony of all the experts that valid, authorized VE observations could not be performed using Petitioners' videotapes. Besides, the videotape in evidence did not show loading of the silo. As a result, Petitioners presented no evidence that VE in excess of five percent opacity occurred during cement loading of the silo. Petitioners also alleged that violations occurred during the loading of trucks at AIC's operation. Witnesses testified to seeing various amounts of dust from various distances occurring at various times, but their testimony was not specific. Parts of the videotape in evidence show some unconfined emissions occurring during the loading of at least some of the trucks. However, as indicated above, VE testing is not done for unconfined emissions; in addition, standardized opacity measurements could not have been made from a videotape. Finally, the videotape showed that AIC uses a chute, or partial enclosure, to mitigate emissions at the drop point to the truck, and the evidence was that AIC maintains its parking areas and yards and applies water when necessary to control emissions. Cf. Conclusions 22-23, infra. Dr. Koogler also opined that AIC and its operation may use the Concrete Batching Plant Air General Permit under a proper interpretation of the statutes and rules, in particular Rule 62-296.414, which states that it not only applies to "emissions units producing concrete and concrete products by batching or mixing cement and other materials" but also applies to "facilities processing cement and other materials for the purposes of producing concrete." This opinion was consistent with DEP's interpretation of the statutes and rules. Petitioners also contended that AIC was ineligible for the Concrete Batching Plant Air General Permit because its facility already was in existence and was operating without a permit. However, expert witnesses for DEP and for AIC testified consistently and reasonably that DEP can require a facility operating without a permit to use the Concrete Batching Plant Air General Permit in order to come into compliance. It is not necessary for the facility to dismantle its facility and rebuild after obtaining authorization to use the Concrete Batching Plant Air General Permit under Rule 62-210.300(4)(a)2. Under these circumstances, it is reasonable for the facility to submit VE test results along with the facility's initial Concrete Batching Plant Air General Permit Notification Form, fee, and proof of public notice. In the exercise of its discretion to enforce compliance, DEP allowed AIC to continue to operate before and during the pendency of this proceeding. Petitioners questioned the wisdom and propriety of this choice, but DEP's exercise of discretion in enforcing compliance is not at issue in this proceeding. See Conclusion 24, infra.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order approving AIC's use of the Concrete Batching Plant Air General Permit under Rule 62-210.300(4)(a)2. Jurisdiction is retained to consider a motion for costs and attorney fees under Section 57.105, Florida Statutes, if filed within 30 days after issuance of the final order. DONE AND ENTERED this 31st day of March, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 31st day of March, 2006.
The Issue The issue in this case is whether the Department of Environmental Protection ("DEP") should issue an air construction permit authorizing Oleander Power Project, L.P. ("Oleander"), to build and operate an electrical power plant in Brevard County, Florida, that includes five combustion turbines and two fuel oil storage tanks (the "Project").
Findings Of Fact Oleander seeks an air construction permit to build and operate an electrical power plant in Brevard County, Florida. Oleander provided reasonable assurances that the Project will comply with all of the conditions and emissions limitations prescribed by DEP in the Draft Permit. The Project received adequate review from the state agency responsible for regulating the Project. DEP reviewed Oleander’s application, requested and received additional information concerning the Project, and independently verified the impacts assessments contained in the application. The Project received adequate review from Brevard County. Oleander executed a Stipulated Settlement Agreement with Brevard County (the "Brevard County Agreement") in which Oleander agreed to comply with restrictions concerning the Project’s hours of operation, minimum buffers, noise, odor, vibrations, traffic, and other issues. The Brevard County Agreement provides additional assurances that the Project will not adversely impact the public. Members of the public received adequate notice of the Project and had sufficient opportunity to make public comments. On March 3, 1999, DEP held a public meeting in Brevard County to receive public comments regarding Oleander’s application. On March 26, 1999, DEP issued its Public Notice of DEP’s intent to grant the Draft Permit to Oleander. On April 8, 1999, DEP’s Public Notice was published in Florida Today. On May 13, 1999, DEP held a second public meeting in Brevard County to receive public comments concerning Oleander’s application. Members of the public had an opportunity during the administrative hearing to enter their comments on the record. The Project includes the construction and operation of five 190 megawatt ("MW") combustion turbines that will be used to generate electricity. The Project also includes the construction and use of two fuel oil storage tanks, two water storage tanks, an administrative building, a stormwater management system, and other associated and ancillary facilities. The Project is a "peaking" power plant. It will operate only during times of peak demand caused by hot or cold weather or storm events. The Draft Permit authorizes Oleander to operate the Project’s combustion turbines for a maximum of 3,390 hours per year, or approximately 39 percent of the available hours in a year. During the remainder of the year, the combustion turbines will not operate and will not have any airborne emissions. Based on the historical experience of other peaking power plants in Florida, the combustion turbines are expected to operate less than 800 hours per year. Oleander’s combustion turbines will be the most advanced turbines used in Florida for peaking service. Oleander’s turbines will be more efficient, in terms of emissions and producing power, than the turbines currently used at other peaking plants in Florida. The Project will use General Electric ("GE") Frame 7FA combustion turbines. These turbines are capable of complying with the emission limits and requirements in the Draft Permit. Oleander will hire staff or train their own staff to operate the Project in compliance with the Draft Permit. Oleander’s parent company already has a training program for its plant operators. Oleander has operated similar projects successfully. The primary fuel for the power plant will be natural gas. Natural gas is the cleanest burning of all fossil fuels. In the event that natural gas becomes unavailable, the Draft Permit authorizes use of low sulfur distillate fuel oil ("fuel oil") for the equivalent of 1,000 hours of full-load operations per year. Fuel oil contains a maximum of 0.05 percent sulfur, is 35 to 50 percent more expensive than natural gas, and imposes economic incentives for Oleander to minimize the use of fuel oil. Water needed for the Project will be provided by the City of Cocoa. Oleander will not install any on-site wells to supply water to the Project. All of the wastewater from the Project will be sent by pipeline to the City of Cocoa’s wastewater treatment plant. The Project will not discharge any industrial wastewater on-site. The Project will be built on a site that is located northeast of the intersection of Interstate 95 ("I-95") and State Road ("SR") 520 in unincorporated Brevard County (the "Site"). The Site contains approximately 38 acres of land. The Site is appropriate for use as an electrical power plant. The Site already is zoned for industrial purposes. The surrounding areas are primarily zoned for industrial uses. An existing electrical substation is located on the north side of the Site. An existing electrical transmission line corridor is located on the west side of the Site. Townsend Road is located on the south side of the Site. An existing natural gas pipeline is located nearby, on the west side of I-95, and can provide gas for the Project. Residential, commercial, and industrial development within a three kilometer radius of the Site is minimal. The Project will be compatible with those industrial and commercial land uses that are located in the area near the Site. The closest residential areas are more than 1,400 feet from the Site. The Site is compatible with the closest residential neighborhoods. The Site and adjacent off-Site areas provide a significant buffer to the closest residential areas. The Site can be developed without causing adverse impacts on residential areas. Combustion turbines currently operate at many locations in diverse population centers in Florida. For example, combustion turbines are operated within 800 feet of the Shands Hospital at the University of Florida, within 1,200 feet of Cinderella’s Castle at Disney World’s Magic Kingdom, and near the Lake Worth High School. Combustion turbines also are located near several residential neighborhoods in the state. DEP and Oleander evaluated the Project in accordance with requirements prescribed in DEP’s Prevention of Significant Deterioration ("PSD") program. As part of the PSD review, a determination was made of the Best Available Control Technology ("BACT"). A BACT determination involves a case-by-case analysis of those air pollution control technologies that are feasible and can achieve the maximum emission reductions. A BACT determination also requires an analysis of the costs, environmental impacts, and energy impacts associated with the use of each one of the proposed control technologies. A BACT determination results in the establishment of an emission limit for each pollutant of concern. In this case, DEP determined the appropriate BACT limits for the Project’s emissions of carbon monoxide ("CO"), oxides of nitrogen ("NOx"), sulfur dioxide ("SO2"), sulfuric acid mist ("SAM"), volatile organic compounds ("VOCs"), particulate matter ("PM"), and particulate matter less than ten microns in diameter ("PM10"). (PM and PM10 are referred to herein as "PM/PM10.") BACT emission limits applicable to the Project are set forth in the Draft Permit, and are incorporated by reference in this Recommended Order. DEP determined that when the Project operates on natural gas, BACT for NOx is an emission limit of 9 parts per million ("ppm"), corrected to 15 percent oxygen. This emission limit is based on the use of dry low NOx ("DLN") combustion technology utilized in the combustion turbines included in the Project. The proposed NOx emission limit of 9 ppm is the lowest emission limit in Florida for simple cycle peaking power plants and sets the standard for similar facilities throughout the United States. DEP determined that when the Project operates on fuel oil, BACT for NOx is an emission limit of 42 ppm, corrected to 15 percent oxygen. This emission limit is based on the use of DLN and wet injection technology. Wet injection technology involves the injection of either water or steam directly into the combustor to lower the flame temperature and thereby reduce the formation of NOx. The U.S. Fish and Wildlife Service ("USFWS") provided comments to DEP concerning the Project. In their comments, the USFWS suggested that the NOx emission limit should be 25 ppm when the Project is operating with fuel oil. However, the USFWS’ suggestion was based on the USFWS’ misreading of the provisions of other PSD permits. When read correctly, those permits establish the same NOx emission limit when firing fuel oil that DEP established in this case, i.e., 42 ppm. In its BACT determination, DEP considered whether a selective catalytic reduction ("SCR") system should be used to reduce the Project’s NOx emissions. SCR is an add-on NOx control system in which ammonia is injected into the exhaust gases of a combustion turbine. The exhaust gases are then exposed to a catalyst where the ammonia and the NOx react to form nitrogen and water. SCR does not represent BACT in this case and should not be required for the Project. The use of SCR would impose excessive costs on the Project, adversely impact the Project’s energy efficiency, and cause increased emissions of particulate matter and ammonia. BACT for CO and VOCs is based on the Project’s use of an advanced combustor design, i.e., DLN technology, and good combustion practices. The use of an oxidation catalyst for CO removal is not required because an oxidation catalyst is not cost effective for the Project. BACT for PM/PM10, SO2, and SAM is based on good combustion practices and the use of clean low sulfur fuels. The PSD program establishes separate ambient air quality standards for Class I and Class II areas defined in Florida Administrative Code Rule 62-204.360(4). (Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.) The Project is located in a Class II area. The Project’s impacts on ambient air concentrations will be below all applicable PSD standards ("increments") prescribed in Rule 62-204.260(2) for Class II areas. The nearest PSD Class I area is the Chassahowitzka Wildlife Refuge (the "Refuge"). The Refuge is approximately 180 kilometers from the Site. An analysis of the Project’s impacts on the Refuge is not required because the Refuge is more than 150 kilometers from the Site. The impacts from the Project on the closest Class I area are expected to be insignificant within the meaning of Rule 62-204.200(29). DEP does not require Oleander to evaluate the cumulative impacts caused by the Project and other major sources of air pollution in the relevant Class II area. However, Oleander evaluated the Project’s impacts together with the impacts of the Florida Power & Light Cape Canaveral Plant, the Orlando Utilities Commission’s Indian River Plant, and the Orlando Utilities Commission’s Stanton Energy Center. The Project itself will not have any measurable effect on the ambient conditions resulting from the operation of all of these sources. DEP has adopted primary and secondary Ambient Air Quality Standards ("AAQS") in accordance with requirements adopted by the U.S. Environmental Protection Agency ("EPA"). Primary standards are designed to create an adequate margin of safety for the protection of the public health, including the health of the young, the old, and those with respiratory diseases such as asthma. Secondary standards are designed to protect the public welfare from any known or anticipated adverse effects of air pollution. AAQS are reviewed every five years by scientists and physicians in light of the most recent scientific studies and data. In Brevard County, existing air quality is better than levels allowed under AAQS. Brevard County is classified as an attainment area. Oleander analyzed the Project’s potential impacts on ambient air quality in Brevard County in compliance with the applicable DEP requirements for such an analysis. Oleander’s analysis was based on conservative assumptions intended to over- estimate impacts from the Project. For example, the analysis assumed that the Project would operate continuously throughout the entire year, even though the Project’s annual operations will be limited to a maximum of 3,390 hours. In addition, Oleander assumed that the Project would use fuel oil for the entire year, even though the Project will be limited to firing fuel oil for a maximum of 1,000 hours per year. The Project’s maximum impacts on ambient air quality will be 0.6 percent or less of the applicable AAQS for each criteria pollutant. Oleander's analysis demonstrates a wide margin of safety for public health and welfare. The Project’s maximum potential impacts are less than the EPA "significant impact" levels. Consequently, the Project’s impacts are deemed insignificant from a regulatory perspective, and more detailed analyses of the Project’s impacts on ambient air quality are not required under applicable PSD requirements. The Project is not expected to cause any meaningful impacts on air quality in any neighborhood in Brevard County. In all neighborhoods, the Project’s impacts on air quality will be insignificant. Similarly, the Project’s impacts on soils, vegetation, wildlife, and visibility will be insignificant. The Project also will not cause any significant growth-related air quality impacts. The cumulative impacts from the Project and other sources of air pollution in the area will be insignificant. When all of these sources are considered together, the maximum impact from their combined emissions will be 50 percent or less of the applicable AAQS. The PSD program does not require Oleander to perform any ambient air quality monitoring for any pollutant prior to the time that construction of the Project commences because the Project’s air quality impacts will be less than the applicable DEP de minimis levels. Pre-construction monitoring for ozone is not required unless a facility will have VOC emissions equal to or greater than 100 tons per year. The Project’s maximum potential VOC emissions will be 64 tons per year. Therefore, the Draft Permit does not require Oleander to install any ozone monitors. DEP maintains two ambient air quality monitors in Brevard County to measure ozone concentrations. DEP also has ambient air quality monitors for ozone in Volusia, Seminole, Orange, Osceola, and St. Lucie Counties. The ambient air quality data from DEP monitors demonstrate that the ozone concentrations in Brevard County are below the applicable AAQS. Further, the data demonstrate that ozone is a regional issue because the ozone levels in the region tend to rise and fall at the same time and to the same degree. A requirement for Oleander to install an additional monitor in Brevard County would be unnecessary and unjustified. The impacts from the Project on ozone and other ambient air quality parameters are so small that the impacts could not be measured with an additional monitor. An additional monitor in Brevard County would provide no meaningful benefits when assessing whether Brevard County is meeting the AAQS for ozone and would cost between $75,000 and $100,000 a year to install and operate. Emissions from the Project will not cause any significant impact on the water quality of water bodies in Brevard County. There will be minimal, if any, "fallout" of particles into nearby waters, including the St. Johns and Indian Rivers. The maximum amount of nitrogen that could be deposited annually as a result of airborne NOx emissions from the Project is 0.0007 grams per square meter ("g/m2"). By comparison, the current nitrogen deposition rate from other sources in the area is 0.4 g/m2. Thus, the Project’s impact on nitrogen deposition in the area will be only a fraction of the deposition that is occurring already. Airborne emissions from the Project will not cause or significantly contribute to a violation of any ambient air quality standard or PSD increment. The Project complies with all applicable DEP air quality requirements, including the applicable policies, rules, and statutes.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED that: DEP enter a final order granting Oleander’s application for an air construction permit for the Project, subject to the conditions and limitations contained in the Draft Permit. DONE AND ENTERED this 27th day of September, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1999. COPIES FURNISHED: F. Perry Odom, General Counsel Department of Environmental Protection The Douglas Building 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Office of General Counsel Department of Environmental Protection The Douglas Building 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Clarence Rowe 418 Pennsylvania Avenue Rockledge, Florida 32955 David S. Dee, Esquire Landers & Parsons 310 West College Avenue Tallahassee, Florida 32301 W. Douglas Beason, Assistant General Counsel Scott A. Goorland, Assistant General Counsel Department of Environmental Protection The Douglas Building 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
