Findings Of Fact The Respondent is a certified air conditioning contractor, holding license number CAC 017508. The Respondent has been in the central air conditioning and heating business in Gadsden County for approximately two years. Prior to entering this business on his own, the Respondent was employed by Central Heating and Consultants in Leon County as a salesman in charge of the duct department. While working for Central Heating and Consultants in Leon County, the Respondent was not involved in the permitting process. In Leon County, a separate mechanical permit is not required, while in Gadsden County a separate mechanical permit is required. The Respondent's first installation in Gadsden County was at the residence of Larry Geyer. When this job began, the Respondent was in partnership with two individuals from Leon County, all of whom were operating as Central Heating Consultants of Gadsden County. Upon inspecting the plumbing and electrical work, the building inspector noticed that certain mechanical work had been performed but that a permit had not been obtained. Within a day or two from the date that the inspector notified the Respondent of this situation, the Respondent pulled the permit. This permit had not been pulled earlier because when the Respondent first visited the Geyer project, he noticed a permit card on the premises and assumed that there was no need for any additional permit. On February 6, 1981, the Respondent pulled the permit for the Don Vickers job. This permit was obtained by the Respondent shortly after the County inspector and a State investigator visited the Respondent and informed him that the permit had not been pulled. The County inspector testified that he had contacted the Respondent concerning the need to pull a permit on the Vickers job prior to this visit. The Respondent testified that the first time he learned that he had failed to pull the permit was at the time of the visit. In any event, the Respondent pulled the permit for the Vickers job on or about the same day as the visit by the County inspector and the State investigator. The Respondent did not pull the permit on the Vickers job earlier, due to a misunderstanding concerning the relationship between Vickers and Luke Blackburn Builders. On Luke Blackburn jobs, Mr. Blackburn pulled all the permits. Since Mr. Vickers and Mr. Blackburn worked closely on various projects, the Respondent assumed that Mr. Vickers had pulled this permit as Mr. Blackburn had always done. At the time when the County inspector and the State investigator visited the Respondent at the Vickers project, the Respondent realized that he was operating under a misconception of the permitting procedure. To avoid future problems, the Respondent met with the county and the state officials to discuss in detail the procedure for pulling permits. It is one of the functions of the County Building Inspector's Office to assist contractors with procedural- type matters, including the permit process. When the Respondent began operating in Gadsden County, he would visit the County Inspectors Office on a regular basis. The Respondent also engaged in an advertising campaign in order to become better known in the Gadsden County area.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint against Christian B. Smith be dismissed. THIS RECOMMENDED ORDER entered on this 27th day of May, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS, 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 27th day of May, 1982. COPIES FURNISHED: Michael Egan, Esquire Post Office Box 1386 Tallahassee, Florida 32302 Robert D. Mendelson, Esquire 300 Lewis State Bank Building Tallahassee, Florida 32301 Mr. James Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue At issue is an agency decision which concluded that proposed alterations to the Florida Sun bulk cement transfer facility to be located in Ft. Pierce, St. Lucie County, Florida, do not constitute "modifications" or "substantial modifications" as those terms are defined by rule.
Findings Of Fact Mr. Benyon's letter of May 25, 1989, to counsel for Tuxedo provided, in pertinent part: The alterations are as follows: The plans delete the construction of the packhouse and rail unloading facilities. . . This change completely eliminates particulate discharges previously approved under the 1984 permit for the above mentioned facilities totaling 0.47 tons per year. The truck loadout facility has been moved from outside the silos, where it was exposed to the ambiant air, to inside the silos where it is fully enclosed. This change has eliminated the bin atop the truck loadout as a source of ambient emissions. Emissions from the bin were projected as 05 tons per year on the 1984 applications. As a result of this change, silo configuration and location has changed slightly to accommodate the trucks. . . There will be no emission points from the moved silo. * * * The model of the Fuller baghouse unit atop the silos has changed from Fuller Plenum 48-7-3500 to Fuller Jet 196 CI0FM. The outlet emissions of the unit remains the same (i.e. 0.02 gr/acf). Convey lines from ship to silo will now be 12" and 14" vis a vis a uniform 12", with the 12" portions being those located over water on floats or on the barge. This change has no effect on environmental efficiency of the system. * * * Although it is the Department's determination that the changes in design are not modifications that give rise to a point of entry because they decrease the emissions from the facility and provide improved air pollution controls, if you wish to contest that finding, a petition must be filed (received) in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400 within 14 days of your receipt of this notice. Upon receipt of the Benyon letter, Tuxedo timely filed the petition challenging the Department's determination which is the subject of this case. Official recognition has been taken of the record in DOAH case No. 89- 1121. In DOAH case No. 89-1121, Tuxedo challenged the Intent to Issue a permit for a barge-mounted unloading device for the same Florida Sun facility. The petition in DOAH case No. 89-1121 was filed with the Department on February 21, 1989. The permit challenged in DOAH case No. 89-1121 related to the unloading system which Florida Sun intended to utilize for the facility permitted in 1984. On April 12, 1989, the undersigned ruled on a motion to dismiss in DOAH case No. 89-1121, and found: Florida Sun and the Department have correctly concluded that Petitioner may not challenge the permits issued to Florida Sun in 1984. The point of entry for a challenge to those permits is long past. In denying the motion to dismiss, the petition has been considered only as a challenge to the permit for the barge-mounted unloader and the potential damages which may result from that installation. It is anticipated that discovery will clarify issues of fact regarding how the present permit conflicts, if at all, to the previously approved permits. (e.s.) Paragraph 11 of the petition filed in case No. 89- 1121 alleged that Florida Sun's proposed cement terminal "has materially and substantially changed and in fact has been drastically modified to be different from what was permitted in 1984." Tuxedo then itemized examples of the differences between the proposed facility and the one permitted in 1984. The examples itemized included, in pertinent part: The proposed location of the 1984 permitted facilities is ambiguous; placing the facilities on a 4.78 acre lot, closer to where the facilities are now proposed. However, Florida Sun now states that the lot is less than one acre. The proposed silos are different from those presented in 1984, and are at different locations in relation to one another and in relation to Tuxedo Fruit Company. The immense silos will be only 15 feet from the property line and right-of-way along Port Avenue The proposed truck loadout facility is completely different than originally proposed ... Moreover, the truck loadout has been relocated to areas beneath each silo. Air pollution control devices and some control methods have changed. Air pollutants will be released at different heights and at different locations than originally permitted. There will be a dramatic increase in airborne contaminants emitted over that which was originally permitted and reviewed by DER in 1984. The facilities as now proposed will offload, store, and load onto trucks almost twice as much cement as was contemplated by Manatee Cement Co.'s 1984 permit application as reviewed by DER. The vastly increased product throughput, physical changes, process changes, truck unloading, truck traffic, and operating hours will result in more emissions of pollutants from point sources, more pollutant emissions from unconfined sources of particulate matter, fugitive particulate, increased secondary emissions of particulate matter, and increased nuisance dust all of which will occur near or right next to Tuxedo Fruit. It is apparent from these allegations that Tuxedo considered the changes in the intended operation of the Florida Sun facility to be "modifications" as defined by the rule. During the hearing of DOAH case No. 89-1121, evidence was offered regarding the planned operation of the Florida Sun facility, the emissions which may be expected to result from its operation, and the impact on Tuxedo and others which may be expected. Specific alterations to the facility as permitted in 1984, with the resulting ramifications, were included in the evidence presented. Whether the alterations constitute "modifications" or "substantial modifications" as those terms are defined was implicit since the emissions resulting from the facility, as altered, were included in the presentation. Paragraph 13 of the petition filed in DOAH case 89-3309 set forth the differences between the facility to be built by Florida Sun and the one permitted in 1984. Those differences included: The parcel size is reduced from over four acres to less than one acre. The two silos are now located in east/west direction along Port Avenue and are both within 15 feet of the right-of-way. A provision is made for constructing a third silo. A different baghouse has been specified for the top silo, a Fuller Jet Pulse Dust Collector Model Size 196C10, to be located on the top of the western most silo. Separate structures no longer exist for the truck loadout operation or the bagging operation. The silo height has been increased to 178 feet in order to install a truck load-out operation underneath each silo. Thus, there are now two truck load out facilities. Each loadout spout would be controlled by Fuller Jet Pulse Dust Collector, Model 36DS8. Both the loading spout and bag house are of different design than originally proposed. The detailed plans no longer show a packing facility to be built at the site now as a 1,750 square foot two story office building. There will be an increase in ship unloading rates from 264 tons per hour in the 1984 permits to 400 tons per hour in the 1988 application. This would result in an increased through-put of 220,160 tons per year. The increase in either the hourly or annual through-put would result in increase in actual omissions (sic) from the side bag house. The bag house specified in the building plans are different than those specified in the permits granted by the Department in 1984, thus affecting the emission characteristics of the stack discharge. The increase in annual through-put would require additional truck loading. The 1984 permits would require 933 trucks per month or 11,198 trucks per year. The 1988 through-put requires 1,667 trucks per month for 20,004 trucks per year. This would be an increase of 734 trucks per month or 8,808 trucks per year. This increase would result in increased actual emissions from both' the truck load-out bag houses and the silo' bag house. Increase in truck traffic would increase the amount of fugitive and nuisance dust. There would be an increase in fugitive and nuisance dust due to the increase in number of trucks being loaded. From a review of the foregoing, the similarity in the allegations in DOAH case No. 89-1121 and DOAH case No. 89-3309 is obvious. Since the evidence related to the facility has been offered in DOAH case No. 89-1121, additional evidentiary hearing would appear unnecessary. More specific to the questions regarding emissions expected from this facility are the following findings of fact made in DOAH case No. 89-1121: The potential sources of air pollutant emissions associated with the Florida Sun cement facility are as follows: unconfined and unquantifiable particulate matter emitted from the hold of the ship during the unloading process; the emissions from the Cyclonaire unit (the venting required to separate the dust-laden air in order to pass the cement into the conveyor line); emissions from two diesel engines which generate energy for the extraction and conveying unit; `the baghouse which vents the silos as they are being loaded; the truck spout venting units; and the unconfined but quantifiable particulate matter generated by truck traffic. The total of the quantifiable emissions for the Florida Sun facility will be 19 tons per year. The Florida Sun facility will not contain the 240 ton cement storage bin authorized by the 1984 permits. Based upon Florida Sun's stipulation to that effect, potential emissions from that source have not been considered. The Florida Sun facility will not contain the packhouse authorized by the 1984 permits. Based upon Florida Sun's stipulation to that effect, potential emissions from that source have not been considered. The stipulated Florida Sun annual throughput of cement for this facility will be 279,000 tons per year, plus or minus 10 percent. In addition to the equipment to be utilized to limit the expected emissions, Florida Sun intends to pave or grass its entire facility. Regular maintenance of this area will provide reasonable precautions that unconfined particulate matter will not be released into the atmosphere. Further, training of personnel will aid in the proper operation and maintenance of the equipment. Operation of the Cyclonaire should not occur during wind conditions exceeding 35 miles per hour.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order dismissing the petition filed in DOAH case No. 89-3309 as that case has been rendered moot since the disputed issues were addressed in DOAH case No. 89-1121. DONE AND ENTERED this 4th day of October, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 4th day of October, 1989. COPIES FURNISHED: Bram D.E. Canter Haben & Culpepper, P.A. 306 North Monroe Street Tallahassee, Florida 32301 Sylvia M. Alderman Paul R. Ezatoff Katz, Kutter, Haigler, Alderman, Eaton, Davis and Marks, P.A. 215 South Monroe Street, Suite 400 Tallahassee, Florida 32301 Paul H. Amundsen Blank, Hauser, & Amundsen 204-B South Monroe Street Tallahassee, Florida 32301 Carol A. Forthman Deputy General Counsel Office of General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact In February, 1990, Respondent Paul Muniz (Muniz), was a duly appointed member of the City of Cape Coral Contractors' Regulatory Board (Board). He was appointed to the Board in 1986. As a member of the Board, Muniz was subject to the provisions of Chapter 112, Part III, Florida Statutes. A scheduled meeting of the Board took place on February 28, 1990, at which time two cases were heard concerning allegedly inappropriate actions by general contractor David Tracey doing business as Tracey Construction, Inc. (Tracey Construction). On February 28, 1990, the Board had authority to hold hearings on alleged violations of the City of Cape Coral's (City) Building Codes, authority to suspend, deny or revoke a contractor's license to operate within the City for violations of the City's Building Codes, and authority to impose fines up to $2,500.00, to issue reprimands, and to order restitution for violations of the City's Building Codes. On February 28, 1990, Muniz and his wife were the sole stockholders, officers, and directors of Delta T Air Conditioning Inc. (Delta T). Muniz owned 75 percent of Delta T's stock. Delta T does heating, ventilating, and heating construction work and services and some refrigeration work. Muniz oversees the work of Delta T, does the estimating and acts as general manager of the company. Muniz usually knows where Delta T's job sites are and who the general contractor is on each job. Tracey Construction is a residential construction company owned by David G. Tracey. Delta T has subcontracted with Tracey Construction to do air conditioning work on a number of occasions prior to February 28, 1990. Delta T had routinely subcontracted with Tracey Construction for several years before February, 1990. Over a number of years prior to February 28, 1990, Delta T had subcontracted with Tracey Construction on more than 200 jobs. Delta T was a subcontractor for Tracey Construction on about 50 jobs from 1989 through 1990. Tracey Construction paid Delta T more than $50,000 for air conditioning subcontractor work in 1989. In 1990, Tracey Construction paid Delta T at least $30,295.60 for air conditioning work. In the course of dealings between Delta T and Tracey Construction, Muniz depended on David Tracey to notify him of potential jobs and invite his company to bid on that job. Delta T competes with other air condition companies for Tracey Construction's business. At the February 28, 1990 Board meeting, two cases came before the Board concerning David Tracey and Tracey Construction: Contractor Board Case Nos. 90-01 and 90-02. Muniz recommended to the Board that they table Case No. 90-01. In Case No. 90-02, Muniz seconded a motion to find David Tracey and Tracey Construction not guilty of the alleged violation of the building code. Muniz voted in both cases to acquit Mr. David Tracey and Tracey Construction of all charges. At the time of the February 28, 1990, Board meeting, Delta T had contracts with Tracey Construction for at least seven jobs. On each of these jobs, either the air conditioning work had been begun but not yet completed, or the work had been completed and final payment had not yet been made by Tracey Construction. Muniz was aware that his company had active contracts with Tracey Construction. Muniz did not file a written conflict of interest form until 28 days after the February 28, 1990 Board meeting. Muniz did not disclose his company's business relationship with Tracey Construction prior to participating in the discussion of and voting on Case Nos. 90-01 and 90-02. Muniz is the same Paul Muniz as is mentioned in Commission on Ethics Opinion No. 91-3.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order and Public Report be entered finding that Paul Muniz violated Sections 112.3143(2)(b), and (3), Florida Statutes; imposing a civil penalty of $750 for each violation (a total of $1500); and issuing a public censure and reprimand. DONE AND ENTERED this 31st day of October, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5806EC To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Advocate's Proposed Findings of Fact. Paragraphs 1-19: Accepted. Paragraphs 20-23: Accepted in substance. Paragraph 24: Rejected as unnecessary detail. Paragraph 25: Rejected as irrelevant since the facts established that Muniz did not file a conflict of interest form within the time frames established in Sections 112.3143(2)(b) and (3). Paragraph 26: Rejected as unnecessary. Paragraph 27: The first sentence is rejected as constituting argument. The remainder is rejected as subordinate to the facts actually found. Paragraph 28: Rejected as constituting argument. Paragraph 29: Rejected as subordinate to the facts actually found. Paragraphs 30: The first sentence is accepted in substance. The second sentence is rejected as constituting argument. Paragraph 31: Accepted. Paragraph 32: The last sentence is rejected as subordinate to the facts found. The remainder is accepted in substance. Paragraph 33: Rejected as subordinate to the facts found. Respondent's Proposed Findings of Fact. Paragraphs 1a-1q: Accepted. Paragraphs 2a-2f: Rejected as recitation of testimony. Paragraph 3a: Accepted in substance. Paragraph 3b: Accepted in substance to the extent that there was no evidence presented which established that Delta T and Tracey Construction had entered into a formal continuing contract; however the evidence did establish that Delta T and Tracey Construction had routinely done business together prior to February 28, 1990. Paragraph 3c: Accepted in substance to the extent that there was no evidence presented that Paul Muniz had a contract with Tracey Construction; however the evidence did establish that the company, of which Paul Muniz owned 75 percent, did have a contractual relationship with Tracey Construction. Paragraph 3d: Rejected as immaterial. Paragraph 3e: Rejected to the extent that there would have been no affect on Delta T's business and rejected that there would have been little impact on Delta T's business as immaterial. Paragraphs 3f-3g: Rejected as immaterial since the Board did have the authority to do so. Paragraph 3h: Rejected as immaterial because the Board had the authority to suspend or revoke the license. Paragraph 3i: Rejected as immaterial because the Board had the authority to do so. Paragraph 3j: Rejected as not supported by the greater weight of the evidence. See 3i above. Paragraph 3k: Rejected as constituting argument. Paragraph 3l: Rejected as constituting a conclusion of law. Paragraph 3m-3q: Rejected as not supported by the greater weight of the evidence. COPIES FURNISHED: Stuart F. Wilson-Patton Assistant Attorney General Advocate for the Florida Commission on Ethics Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 John Charles Coleman, Esquire 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 Bonnie Williams Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, Esquire General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
The Issue The central issue in this case is whether the permit to construct a Cyclonaire Docksider pneumatic unloading system, permit no. AC 56-157174, which was requested by Florida Sun Cement Company, Inc., should be approved.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Florida Sun is a Florida corporation whose address is 4550 Glades Cutoff Road, Fort Pierce, St. Lucie County, Florida 34949. Tuxedo is a Florida corporation whose address is 1110 North Second Street, Fort Pierce, Florida 34950. The City is an incorporated municipality with a boundary located approximately one and one-half miles north of the Tuxedo packing house. On November 15, 1984, the Department issued permit number AC-56-86471 to Roger Charles, President of Manatee Cement Co., Inc. This permit authorized the construction of a cement bulk terminal/ship unloading facility which would include two 10,000 metric ton silos for the storage of Portland cement which would be vented by one common baghouse. The location for the facility was to be at Port Avenue and Harbor Street in Fort Pierce, Florida. This location is directly across the street from the Tuxedo packing house. On November 15, 1984, the Department issued permit number AC-56-873l0 to Roger Charles, President of Manatee Cement Co., Inc. This permit authorized the construction of a cement Co., Inc. This permit authorized the construction of a cement bulk terminal/truck loading and packhouse which would include one 240 ton storage bin vented to one baghouse, two truck loading spouts vented to two baghouses, and one packing facility which would also be vented. On November 25, 1985, the Department extended the expiration dates for the permits identified in paragraphs 4 and 5 until November 15, 1989. Later, on August 11, 1987, the Department transferred the permits to Roger Charles, president of Florida Sun. On November 14, 1988, Florida Sun filed an application for a barge- mounted pneumatic Portland Cement unloader. This unloader, a Cyclonaire Docksider, was proposed to be used in connection with the facilities previously permitted. Florida Sun sought to utilize the pneumatic unloader to extract cement from the holds of ships moored at the Fort Pierce port which is adjacent to the mainside silo facility. From the dock area the cement would then be conveyed through a sealed pipeline to the storage silos. From the silos, the cement would be loaded into trucks and transported away from the site. Under the 1984 permits' proposal, Florida Sun intended to unload the cement via self-unloading ships which did not require a permit. The 1988 request for the barge-mounted unloader would allow more types of ships to unload at the facility. On February 7, 1989, the Department issued an Intent to Issue which announced its intent to issue the permit. On February 12, 1989, the notice of the Intent to Issue was published in the News Tribune, a newspaper published at Fort Pierce, St. Lucie County, Florida. Tuxedo and the City timely filed petitions challenging the proposed permit. Neither petitioner had timely challenged the permits which had been issued in 1984. The pneumatic unloader which is the subject of the permit request is to be manufactured by Cyclonaire Bulk Cargo Systems, Inc. (Cyclonaire). The Cyclonaire Docksider unit will be attached to a free-floating barge which will be secured to the dock. The barge will be capable of movement in an east-west direction to allow access to each opening of the ship's hold. The Cyclonaire Docksider operates by extending an arm into the hold of the ship. The arm is equipped with a pneumatic device which extracts the cement from the ship and conveys it through a pipeline. The Cyclonaire utilizes two diesel engines which operate the extraction and conveying portions of the device. The Cyclonaire is vented through filter cartridges manufactured by W.L. Gore and Associates. Cyclonaire has executed a warranty for the Docksider pneumatic unloading system which provides, in pertinent part: Not more than .02 grains of particulate matter shall be contained in each dry standard cubic foot of air discharged into the atmosphere from the vacuum pump exhaust ports during normal operation of ice system, as measured using the applicable test methods specified by the State of Florida Department of Environmental Regulation. The opacity of emissions measured across the vacuum pump exhaust ports during normal operation shall not exceed 5o/o when measured using the applicable test method specified by the State of Florida Department of Environmental Regulation. The opacity of emissions measured across the top of the hold of the vessel being discharged by the DOCKSIDER system shall not exceed 5o/o during normal operation of the system, when measured using the applicable test method specified by the State of Florida Department of Environmental Regulation. There shall be no leaks or fugitive emissions from the unloader suction line(s), from the filter vessel, from the cement receivers, from the cement discharge line(s), from the supply line(s) to the vacuum pump, or from the vacuum pump itself. Cyclonaire has also executed a warranty for the conveying lines to the silos which provides, in pertinent part: Not more than .02 grains of particulate matter shall be contained in each dry standard cubic foot of air discharged into the atmosphere from the vacuum pump exhaust ports of the system during normal operation of the system, as measured using the applicable test methods specified by the State of Florida Department of Environmental Regulation. The opacity of emissions measured across the vacuum pump exhaust ports during normal operation shall not exceed 5o/o when measured using the applicable test method specified by the State of Florida Department of Environmental Regulation. The opacity of emissions measured across the top of the hold of the vessel being discharged by the Docksider system shall net exceed 5o/o during normal operation of the system, when measured using the applicable test method specified by the State of Florida Department of Environmental Regulation. Not more than 0.02 grains of particulate matter shall be contained in each actual cubic foot of air discharged by the baghouse at the silos per performance warranties of the Fuller Company as measured using applicable test methods specified by the State of Florida DER. The opacity of emissions measured across the baghouse exhaust shall not exceed 5o/o when measured using the applicable test method specified by the State of Florida DER. There shall be no leaks or fugitive emissions from the unloader suction line(s), from the filter vessel, from the cement receivers, from the cement discharge line(s), from the supply line(s) to the vacuum pump, or from the vacuum pump itself. This warranty does not apply to situations which result due to factors beyond the reasonable control of Seller, e.g., equipment malfunctions, improper maintenance, improper operations or wind gusts in excess of 35 miles per hour. A system similar to the proposed Florida Sun Cyclonaire Docksider is located in Tampa, Florida. When tested, the Tampa unloading system resulted in an average particulate concentration of .0043 gr/dscf and the average particulate emission rate was .21 lb/hr at an average cement unloading rate of 236 tons per hour. The visible emissions were found to be less than 5 percent opacity. Florida Sun proposes to vent emission sources by use of baghouses. These filtering systems vent dust-laden air by extracting the particles which fall, by gravity, while the air is released through a filter to the outside. The filters are cleaned by a jet of air which is pulsed on the outside of the filter unit. The Florida Sun facility will have baghouses to vent the silos and the truck loadout spouts. The Fuller Company manufactures retractable loading spouts which will convey the cement from the storage silos to the transporting trucks. The truck loading process will take place within an enclosed silo. The truck will be positioned under the spout and a cone will be extended down into an opening on the top of the vehicle. Proper operation requires the spout to connect to the truck so that particles are not released into the air. The spout allows the cement to flow into the truck while air is displaced back into a venting system. Each loading spout will have its own venting system. The Fuller Company performance warranties provide, in pertinent part: Fuller Company warrants, when the equipment covered by this agreement, is adjusted and operates at the design operating conditions, as specified within the specifications, and as enumerated in Section A hereafter; that the maximum solid particulate emissions exiting the baghouse will not exceed 0.02 Gr/ACF excluding condensibles. The potential sources of air pollutant emissions associated with the Florida Sun cement facility are as follows: unconfined and unquantifiable particulate matter emitted from the hold of the ship during the unloading process; the emissions from the Cyclonaire unit (the venting required to separate the dust-laden air in order to pass the cement into the conveyor line); emissions from two diesel engines which generate energy for the extraction and conveying unit; the baghouse which vents the silos as they are being loaded; the truck spout venting units; and the unconfined but quantifiable particulate matter generated by truck traffic. The total of the quantifiable emissions for the Florida Sun facility will be 19 tons per year. The Florida Sun facility will not contain the 240 ton cement storage bin authorized by the 1984 permits. Based upon Florida Sun's stipulation to that effect, potential emissions from that source have not been considered. The Florida Sun facility will not contain the packhouse authorized by the 1984 permits. Based upon Florida Sun's stipulation to that effect, potential emissions from that source have not been considered. The stipulated Florida Sun annual throughput of cement for this facility will be 279,000 tons per year, plus or minus 10 percent. In addition to the equipment to be utilized to limit the expected emissions, Florida Sun intends to pave or grass its entire facility. Regular maintenance of this area will provide reasonable precautions that unconfined particulate matter will not be released into the atmosphere. Further, training of personnel will aid in the proper operation and maintenance of the equipment. Operation of the Cyclonaire should not occur during wind conditions exceeding 35 miles per hour. While helpful to determine air quality impacts, air quality modeling is not required by rule for permit approval for minor projects with a non-toxic source. To be helpful, an air quality model must be based upon assumptions of fact likely to occur. All parties utilized the Industrial Source Complex Short- Term model. That model is an EPA approved model for general air quality analysis. In this case, the model submitted by Tuxedo and the City contained numerous emission factor errors which rendered their model's results unreliable. Among the errors were: the assumption that the truck loading activities would occur twenty-four hours a day, 365 days a year; the by Tuxedo and the City contained numerous emission factor errors which rendered their model's results unreliable. Among the errors were: the assumption that the truck loading activities would occur twenty-four hours a day, 365 days a year; the assumption that the truck loading activities would result in a spillage of cement material at a rate of 1.2 grams per second for twenty-fours a day, 365 days a year; and the assumption that truck loading would occur outside of the enclosed silos. The air quality models run by Dr. Koogler and Mr. Rogers corroborated the other forms of assurances given by Florida Sun. The Tuxedo packing house is located directly across the street to the north from the Florida Sun facility. There is also another citrus packing house located directly across the street to the south from the Florida Sun property. The Tuxedo packing house boxes a variety of fresh citrus fruits for the fresh market. Citrus fruit is sensitive to skin abrasion which can result in a premature decay of the fruit and limited shelf-life of the fruit. As a result, prudent packers take every precaution to avoid abrasive particles from coming in contact with fresh fruit. Cement is an abrasive material. The Tuxedo packing house is ventilated by large doors located around the building and an opening at the top of the structure. In general, Tuxedo is located downwind from the Florida Sun facility.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order approving the application for permit no. AC 56-157174 with special conditions to include the prohibition of loading via the Cyclonaire Docksider during wind speeds in excess of 35 miles per hour, proper and routine inspection and maintenance of the equipment to assure it is operated in accordance with the manufacturers' directives, and training for operators of the Cyclonaire to assure compliance with manufacturer's guidelines equipment to assure it is operated in accordance with the manufacturers' directives, and training for operators of the Cyclonaire to assure compliance with manufacturer's guidelines. DONE and ENTERED this 4th day of October, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1989. APPENDIX TO CASE NOS. 89-1121 AND 89-1271 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY TUXEDO: Paragraphs 1 through 19 are accepted. Paragraph 20 is rejected as contrary to the weight of the evidence; during normal and proper operation of the truck loading spouts, spillage should not occur. Incidents of spillage would suggest a violation of the permit conditions and require immediate correction. Paragraph 21 is rejected as comment or irrelevant. It is accepted the loading spouts have a tolerance of approximately one-half inch; the balance of paragraph 22 is rejected as irrelevant, embellished comment, or argument. The first four sentences of paragraph 23 are accepted; the balance is rejected as comment, recitation of testimony, irrelevant, or argument. Paragraph 24 is accepted. With regard to paragraphs 25 and 26, it is accepted that Dr. Koogler visited the Tampa Cyclonaire facility on two occasions, that the winds on the first visit were approximately 2-5 miles per hour, that on the first visit he observed no visible emissions, that on the second visit the winds were 5-10 miles per hour, and that on the second visit he observed visible emissions while a front-end loader scraped the cement off the bottom of the hold to the center for the Cyclonaire to extract it; otherwise, the paragraphs are rejected as comment, argument, embellishment on fact, or irrelevant. Paragraph 27 is accepted. Paragraphs 28 and 29 are accepted. Paragraph 30 is rejected as contrary to the weight of the credible evidence. While the barge will be free-floating and capable of being located along side the hold to be unloaded, the barge will not be in motion during unloading, no assumption to the contrary has been made. Paragraph 31 is rejected as contrary to the weight of the evidence. Paragraph 32 is accepted. Paragraph 33 is rejected as repetitive, comment, unnecessary. See 7 above. Paragraphs 34 and 35 are accepted. With regard to paragraph 36, it is accepted that Dr. Koogler and Mr. Yocum used the same emission factors for the four sources identified and listed in the paragraph; otherwise, the paragraph is rejected as comment or irrelevant. It is accepted that Mr. Yocum utilized the AP-42 to compute the emission factors used for the diesel engines; otherwise the paragraph is rejected as irrelevant. It is accepted that Dr. Koogler utilized data from the diesel engine manufacturer to compute the emission factors he used; otherwise the paragraph is rejected as irrelevant. Paragraph 39 is rejected as irrelevant, immaterial, argument, or comment. Paragraph 40 is rejected as irrelevant, immaterial, argument, or comment. Paragraph 41 is rejected as contrary to the weight of the evidence. That individuals attempted to quantify the fugitive emissions from the hold does not render such attempts reliable for purposes of determining air quality impact. Such "best guesses" are only estimates which, in this case, do not suggest the project should not be permitted. Paragraph 42 is rejected as contrary to the weight of the evidence. Paragraph 43 is rejected as unsupported by the weight of the evidence to the extent that it suggests such occurrences would be under normal and proper operating conditions. Incidents of such operation would be a violation of the permit terms. With regard to paragraph 44, it is accepted that the spout's ability to collect the cement dust and route it up to the baghouse is not warranted; however, it should be noted that during that function the truck loading will take place within an enclosed silo. With that clarification, the paragraph may be accepted. Paragraph 45 is rejected as irrelevant; spillage is not anticipated under normal and proper operating conditions. Further, truck loading occurs within an enclosed silo. Paragraph 46 is rejected as a recitation of testimony/ Paragraph 47 is rejected as repetitive (see p. finding 15). Paragraph 48 is accepted to the extent that it recites Mr. Yocum's process for computing an emission factor; that factor, however, is rejected as unreliable and contrary to the weight of the evidence. Paragraph 49 is accepted but is irrelevant to the resolution of the issues of this case. With regard to paragraph 50, it is accepted that all parties attempted to model sources in connection with this application; otherwise, the paragraph is rejected as argument, comment, or irrelevant. Paragraph 51 is accepted. Paragraph 52 is rejected as irrelevant. Paragraph 53 is rejected as recitation of testimony, comment, or irrelevant. Paragraph 54 is rejected as irrelevant. Paragraph 55 is rejected as irrelevant. Paragraph 56 is rejected as argument, comment, or irrelevant. Paragraphs 57 and 58 are rejected as contrary to the weight of the evidence. Footnote 5 of paragraph 59 is accepted; the balance is rejected as irrelevant or contrary to the evidence. Paragraph 60 is accepted. Paragraph 61 is rejected as argument, comment or irrelevant. Paragraph 62 is rejected as irrelevant. Paragraph 63 is rejected as irrelevant. Paragraph 64 is rejected as irrelevant. Paragraph 65 is rejected as irrelevant. When modeling is required, paragraph 66 is accepted as the proper standard; otherwise, rejected as irrelevant. Paragraphs 67 through 69 are rejected as irrelevant. Paragraph 70 is accepted. Paragraph 71 is accepted. With the clarification that there would also be receptors with lower concentrations, paragraph 72 is accepted. Paragraphs 73 through 75 are rejected as irrelevant or contrary to the weight of the evidence. Paragraph 76 is rejected as argument, comment, or irrelevant. Paragraph 77 is rejected as irrelevant. Paragraphs 78 through 80 are rejected as contrary to the weight of the evidence or irrelevant. Paragraph 81 is accepted. Paragraphs 82 through 83 are accepted. Paragraphs 84 through 92 are rejected. The paragraphs accurately recite what Hoffnagle did; however, the facts proffered are rejected as contrary to the weight of the credible evidence, irrelevant, or unsupported by the record. Paragraphs 93 through 98 are accepted. Paragraph 99 is rejected as irrelevant. Paragraphs 100 through 106 are accepted. With the deletion of the word "strikingly" paragraph 107 is accepted. Paragraphs 108 through 115 are accepted. Paragraphs 116 through 118 are rejected as irrelevant. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE CITY: Paragraphs 1 through 6 are accepted. With regard to paragraph 7, the throughput stipulated to was 279,000 tons per year plus or minus 10 percent; otherwise, paragraph 7 is accepted. See comment p. 2 above, paragraph 8 accepted. Paragraphs 9 and 10 are accepted. With the substitution of the phrase "may be" for the word usually," paragraph 11 is accepted. There is no evidence as to whether Florida Sun will use such a system or not. With the deletion of the word "only" paragraph 12 is accepted. Paragraphs 13 through 21 are accepted. Paragraph 22 is accepted; however, there is no evidence which suggests the plant will, in fact, be operated 24 hours a day, seven days a week, 365 days a year. Further, the throughput limitation would suggest to the contrary. Paragraphs 23 through 31 are accepted. Paragraph 32 when clarified to include that emissions are sometimes less than the average, is accepted. Paragraph 33 is accepted. Paragraph 34 is rejected to the extent that it suggests Mr. Yocum's emission rate should be accepted as fact of this case. While the paragraph accurately states what Mr. Yocum did, his factor is rejected as unreliable or contrary to the weight of the evidence. Paragraph 35 is accepted. Paragraph 36 is rejected as irrelevant. Paragraph 37 is accepted. Paragraph 38 is rejected as irrelevant; that parties attempted to model the hold emissions does not render the results reliable, such "best guesses" may be noble but have not formed the basis for a finding of fact. Paragraph 39 is rejected as irrelevant. Paragraphs 40 through 43 are rejected as irrelevant, see comment in P. 16 above. Further, such fugitive emissions are unquantifiable under the present methodology. Paragraph 44 is accepted. Paragraph 45 is rejected as irrelevant. Paragraph 46 is accepted. With regard to paragraph 47, it is accepted Dr. Koogler and Mr. Yocum used the same emission factor for the silo baghouse/ Paragraph 48 is accepted. With regard to paragraph 49, it is accepted Dr. Koogler and Mr. Yocum used the same emission factor for the truck spout filters. With regard to paragraph 50, it is accepted that the doors to the silos will be closed during truck loading. In their models, both Dr. Koogler and Mr. Yocum assumed otherwise. Consequently, both may have obtained an inflated result. Paragraphs 51 and 52 are accepted. To the extent that paragraph 53 suggests spillage may result from improper operation, such paragraph is rejected as irrelevant. Under normal and proper operating conditions, spillage would not occur. If so, it would be a violation of the permit. Paragraph 54 is accepted. With regard to paragraph 55, see comment p. 27 above; consequently, the paragraph is rejected as irrelevant. Paragraph 56 is rejected as contrary to the weight of the evidence. Paragraph 57 is rejected as irrelevant and erroneous (math error). The number of trucks per year is limited to the throughput cap; the number which might be filled during a 24 hour period would depend on the factual circumstances at the time (whether the silos were full, etc.). Paragraphs 58 through 62 are accepted. Paragraph 63 is rejected as contrary to the weight of the evidence. While the paragraph correctly states what Mr. Yocum did, no confidence has been given his analysis. To the extent that Dr. Koogler attempted to tie the daily truck rate to the annual throughput cap, paragraph 64 is accepted; however, for the reasons set forth in p. 31 it is irrelevant. Paragraphs 65 through 68 are accepted but are unnecessary. Paragraph 69 is accepted to the extent that it recites Mr. Yocum's finding but is unnecessary and irrelevant. Mr. Yocum's emission factors are unreliable based upon the weight of the evidence in this case. Consequently, little value has been placed on the model results which were based on his factors. Paragraph 70 is rejected as argument, irrelevant, or contrary to the weight of the evidence. The last two sentences of paragraph 71 are accepted. The first sentence is rejected as rejected as speculative, irrelevant, or contrary to the weight of the evidence. The factual matters addressed in paragraphs 72 through 75 are accepted to the extent addressed in my findings of fact; otherwise, the paragraphs are rejected as comment or recitation of testimony. Paragraphs 76 and 77 are accepted. With the deletion of the word "much," paragraph 78 is accepted. With the deletion of the "s" on the word "meter" (used two times), paragraph 79 is accepted. Paragraph 80 is accepted. Paragraph 81 is rejected as argument or comment. There might also be receptor locations with smaller concentrations. Paragraph 82 is rejected as irrelevant. Paragraph 83 is rejected as irrelevant. Paragraph 84 is rejected as irrelevant. Paragraph 85 is accepted but is irrelevant. Paragraph 86 through 89 are rejected as irrelevant. Paragraph 90 is accepted. Paragraphs 91 through 96 are rejected as irrelevant or contrary to the weight of the evidence. Paragraphs 97 and 98 are accepted. Paragraphs 99 and 100 are rejected as irrelevant. Paragraph 101 is rejected as irrelevant. Paragraphs 102 through 105 are accepted. Paragraph 106 is rejected as irrelevant. RULINGS ON THE PROPOSED FINDINGS OF FACT, SUBMITTED BY FLORIDA SUN: To the extent addressed in findings of fact paragraphs 4 and 5, paragraph 1 is accepted otherwise rejected as irrelevant. Paragraphs 2 through 4 are accepted. Paragraph 5 is accepted to the extent in findings of fact paragraphs 20 and 21; otherwise, rejected as irrelevant or unsupported by the record. The first sentence of paragraph 6 is accepted. With regard to the balance of the paragraph it is rejected as irrelevant except to the annual throughput being 279,000 tons plus or minus 10 percent. Paragraphs 7 through 12 are accepted. Paragraph 13 is rejected as argument or conclusion of law. Paragraphs 14 through 23 are accepted. The second sentence of paragraph 24 is rejected as unsupported by the record. The balance of the paragraph is accepted. Paragraphs 25 and 26 are accepted. With the exclusion of the last phrase of the paragraph (which rated the opacity of the emissions on Koogler's second visit), paragraph 27 is accepted. Paragraphs 28 through 34 are accepted. To the extent that Dr. Koogler and Mr. Yocum used the same emission factors for the Docksider silo, and spouts, paragraph 35 is accepted. Otherwise, the paragraph is rejected as argumentative, comment, or irrelevant. The basis for determining the unreliability of Mr. Yocum's factors is addressed. The first sentence of paragraph 36 is accepted. The balance is rejected as irrelevant or argument. Paragraph 37 is accepted. To the extent that a facility which emits less than 100 tons per year is defined to a minor facility, paragraph 38 is accepted. Otherwise, is rejected as argument, comment, or irrelevant. Paragraphs 39 through the first sentence of paragraph 40 are accepted. The balance of paragraph 40 is rejected as irrelevant. Paragraphs 41 through 43 are accepted. Paragraph 44 is rejected as irrelevant. Paragraph 45 is rejected as recitation of testimony. The first sentence of paragraph 46 is rejected as contrary to the weight of the evidence. The balance of the paragraph is accepted. Paragraphs 47 and 48 are accepted. Paragraphs 49 and 50 are accepted but are irrelevant, immaterial or unnecessary. Paragraph 51 is rejected as argument. Paragraph 52 is accepted to the extent that it states this facility is a minor facility located in an attainment area; otherwise, rejected as irrelevant, immaterial, or argument. Paragraph 53 is accepted. Paragraphs 54 through 56 are rejected as irrelevant. Paragraph 57 is accepted. Paragraph 58 is accepted. Paragraph 59 is rejected as repetitive. Paragraph 60 is accepted. Paragraphs 61 and 62 are accepted. Paragraph 63 is rejected as irrelevant or unsupported by the record. Paragraph 64 is rejected as irrelevant or unsupported by the record. Paragraph 65 is accepted. The first three sentences of paragraph 66 are accepted; the balance is rejected as contrary to the weight of the evidence. Paragraph 67 is rejected as outside the scope of the record, contrary to the record, or argument. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 21 were accepted. Paragraph 22 is rejected as argument. Paragraphs 23 through the first sentence of paragraph 26 are accepted; the balance of paragraph 26 is rejected as argument, comment or irrelevant. Paragraph 27 is rejected as irrelevant. Paragraph 28 is rejected as irrelevant. Paragraphs 29 through 31 are accepted; however, it should be noted that modeling was not required, by rule in this case, and further, that the modeling performed by Mr. Hoffnagle based upon Mr. Yocum's emission factors is not reliable due to the erroneous assumptions built into the factors. Paragraph 32 is accepted. Paragraph 33 is rejected as irrelevant or contrary to the weight of the evidence. Paragraph 34 is rejected as irrelevant. Paragraph 35 is accepted. Paragraph 36 is accepted. Paragraph 37 is rejected as irrelevant, comment, argument, or immaterial. Paragraphs 38 and 39 are accepted. Paragraph 40 is accepted but is irrelevant. Paragraphs 41 through 44 are accepted. Paragraphs 45 through 57 are rejected as irrelevant, argument, comment, or recitation of Tuxedo's case-- for the reasons previously stated, the modeling efforts submitted by Tuxedo have not been the basis for a finding of fact. COPIES FURNISHED: Bram D.E. Canter Haben & Culpepper, P.A. 306 North Monroe Street Tallahassee, Florida 32301 Sylvia M. Alderman Paul R. Ezatoff Katz, Kutter, Haigler, Alderman, Eaton, Davis and Marks, P.A. 215 South Monroe Street, Suite 400 Tallahassee, Florida 32301 Paul H. Amundsen F. Phillip Blank, P.A. 204-B South Monroe Street Tallahassee, Florida 32301 Carol A. Forthman Deputy General Counsel Office of General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as the stipulations of fact entered into by the parties prior to the hearing, the following relevant facts are found: Petitioner Manasota-88, Inc., is a nonprofit corporation organized for the protection of the environment and has members who are residents of Manatee County. This organization filed a timely petition for hearing on the subject November 19, 1980, and January 1981 permit revisions. The intervenor Manatee Energy Company is the owner and operator of a crude oil splitter located in Port Manatee, Manatee County, Florida. This facility is a potential source of air pollutants, received a construction permit in 1978, and is permitted to operate under Permit Number A041-26555 issued by the DER in March of 1980. The intervenor's application to obtain a construction permit indicated a total process input rate of 15,000 to 22,000 barrels per day of crude oil. The splitter was to be fueled by either liquid petroleum gas or fuel oil with a sulfur content of 0.7 percent weight or less. The type of crude oil to be processed was not specified. The application further specified that the maximum heat input rate would be 70 million BTU/hr, and that the normal operating time would be 350 days per year, seven days per week and 24 hours per day. DER's Permit Number A041-26555, which authorized the operation of the crude oil splitter, described the facility as follows: ". . .a Crude Oil Splitter (15,000 BPSD) to separate crude oil by distillation into jet fuel (JP4 and/or Jet A), diesel fuel, and Bunker C. This permit includes the furnaces, boiler, burnoff flare, and storage tanks under the supervision of Manatee Energy. Combustion devices to be fired with LPG or fuel oil with a sulfur content of 0.7 percent or less. Facility located at Port Manatee." This permit also included specific conditions limiting particulate and sulfur dioxide emissions in terms of an amount of emissions per unit of heat input into the furnace and boiler. Because the crude oil splitter operates as a closed system, the heat input to the combustion units--the furnace and boiler-- determines the level of emissions from those sources. During the application and original permit process, Manatee Energy Company did not know the precise quality or grade of crude oil which would be utilized. In the early course of operations, it was discovered that considerably larger volumes of input (as much as 28,000 barrels per day), if processed at the normal design heat input rate, would not result in atmospheric emissions which violated the original permit conditions. For this reason, Manatee Energy Company, by letter dated October 22, 1980, and supplemented by letter dated October 29, 1980, sought a "clarification" in the conditions pertaining to its operating permit. In effect, Manatee Energy Company wanted to know if the original permit allowed a product input of greater than 15,000 barrels per day if other limitations on emissions from the furnace and boiler would not be violated. In support of its request for clarification, Manatee Energy Company submitted data regarding results from emission tests. The information submitted was not on a DER application form and did not include the certification of a professional engineer registered in the State of Florida, DER has subsequently received a letter dated November 22, 1982, from a Florida registered engineer certifying that the data submitted by Manatee Energy Company on October 22 and 29, 1980, was in conformity with sound engineering principles and offering the opinion that current permit conditions would not be violated by the facts submitted. DER responded to the October 22 and 29, 1980, letters from Manatee Energy Company by issuing a revised operating permit on November 10, 1980. This revised permit deleted the prior restriction on product input rate (15,000 barrels per day) contained in the project description and added a specific condition restricting the maximum heat input to the crude oil furnace to 55 million BTU per hour and to the boiler to 15 million BTU per hour. The permit revision issued by DER on November 10, 1980, did not allow a change in the physical premises of the plant, a change in the sulfur content of the fuel, or a change in the amount of heat input to the plant. Consequently, Manatee Energy Company did not request, and the revision did not allow, any additional atmospheric emissions, nor did it allow any increase in emissions which would exceed the limitations imposed in the original operating permit. An increase in the rate at which raw material is processed does not result in an increase in emissions. A cap on the amount of heat input also caps the amounts of emission. Stated differently, if the combustion of the fuel is being held constant by a limitation on the amount of allowable heat input, there will be no increase in emission regardless of the product input rate. The main effect of an increase in product input is on storage. The furnace and the boiler burn the same fuel. Further operating experience revealed that the boiler did not require 15 million BTU of heat input to perform its function, but only required 5 or 6 million BTU depending on the type of oil or other circumstances, such as wind. Manatee Energy Company therefore sought another clarification of the conditions of its operating permit as to the need to have separate allocations of heat input to the furnace and the boiler. In response to this request, DER, by letter dated January 19, 1981, changed the permit conditions by restricting the combined heat input to the furnace and boiler to 70 million BTU per hour, and removing the separate allocations of 55 million BTU/hr for the furnace and 15 million BTU/hr for the boiler. No changes were made to the emissions or the quality of fuel authorized under the original permit. This revision was not preceded by a permit application on a DER form certified by a professional engineer registered in the State of Florida. The level of emission from the furnace and boiler at the heat input capacity of 55 million BTU per hour and 15 million BTU per hour, respectively, would be the same as the level of emission from the furnace and boiler at the combined heat input capacity of 70 million BTU per hour. Therefore, the January 1981 permit revision did not allow emissions in excess of that allowed by the November 1980 permit revision. The 70 million BTU per hour heat input rate to the furnace and boiler specified in the two challenged revisions is the same as that indicated in the construction application submitted by Manatee Energy Company for the crude oil splitter. There being no increases in allowable heat input to the furnace and boiler, there is no increase in pollutant emissions from the two sources. By letter dated July 1, 1982, Manatee Energy Company requested that the storage tanks be deleted from Permit Number A041-26555 for the reason that it no longer contemplated using this previously leased tankage in connection with further refinery operations. By letter dated September 14, 1982, DER informed Manatee Energy Company that its permit was being changed by deleting reference to the storage tanks in the project description and by replacing a condition concerning the storage tanks with the following language: "6. The crude oil splitter cannot be operated unless the necessary storage tanks are in the possession and control of Manatee Energy Company, the tanks meet all Department regulations, and Manatee Energy Company obtains the required permit(s)." This permit revision or modification is not the subject of challenge in the instant proceeding. It is relevant only to illustrate that any issue as to an increase in hydrocarbon discharges resulting from increased production is now mooted, since the storage tanks were the only source of hydrocarbon and volatile organic compound emissions associated with the crude oil splitter.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Intervenor's request for revisions to its Permit Number A041-26555 be GRANTED as proposed by the Department of Environmental Regulation on November 10, 1980, and January 19, 1981. Respectfully submitted and entered this 17th day of March, 1983, in Tallahassee, Leon County, Florida. DIANE D. TREMOR, 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 17th day of March, 1983. COPIES FURNISHED: Thomas W. Reese 123 Eighth Street, North St. Petersburg, Florida 33701 Martha Harrell Hall Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32301 W. Guy McKenzie McKenzie & Panebianco Post Office Box 1200 Tallahassee, Florida 32302 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue This matter began when Respondent, a certified air conditioning contractor, was charged by Petitioner in an administrative complaint with violation of Section 489.129(1)(m), Florida Statutes, through the commission of gross negligence, incompetence, or misconduct in connection with a certain job undertaken by the air conditioning business for which Respondent was responsible as the qualifying agent. Respondent requested a formal administrative hearing. This proceeding followed. At hearing, Petitioner presented testimony of two witnesses and six evidentiary exhibits. Respondent presented testimony of two witnesses, including himself, and three evidentiary exhibits. Petitioner was granted leave to submit a post hearing exhibit no later than March 3, 1989. Proposed findings of fact submitted by Petitioner are addressed in the appendix to this recommended order. No proposed findings were received from Respondent by the required deadline or at the time of the preparation of this recommended order. Based upon all of the evidence, the following findings of fact are determined:
Findings Of Fact Respondent is Steven E. Taucher, a certified air conditioning contractor and the qualifying agent for Discount Air Conditioning & Heating Services, Inc., at all times pertinent to these proceedings. He has been licensed by Petitioner since 1985 and holds license CA-CO36835. His address of record is Tampa, Florida. In May of 1987, Janet Daniels contracted with Respondent's company for the installation in her home of a heat pump system. The system was to consist of one supply duct and a filter back return; a three ton condenser heat pump; a three ton air handler; a 3 ton coil; and a heat strip, thermostat and outdoor slab. The unit was to fulfill heating and cooling functions. Installation work was to be completed in a "substantial and workmanlike manner"; using existing ductwork and electrical connections. Upon execution of the written agreement, Daniels paid Respondent $2,000. A sales rebate of $525 was also signed over to Respondent by Daniels, leaving a total owed to Respondent of $125. This amount was to be paid by June 30, 1987. Daniels never paid this final sum to Respondent because she was not satisfied with his work and eventually had to pay another contractor $420 to make certain repairs to the system. Respondent, by his own admission, failed to timely pull the permits for the project; however, he did install the system, connecting it to existing ductwork and electrical connections as specified in the contractual agreement. Within two and a half hours after installation, the temperature gauge reflected that the unit was not cooling the Daniels' house to the desired 76 degree thermostat setting. Respondent informed Daniels that the unit's capacitor wasn't functioning. Respondent replaced the capacitor. The unit did not function properly and Respondent attempted other repairs at later dates varying from replacement of the thermostat to installation of a sump pump for removal of condensation from the unit. Daniels was still unable to get the unit to cool the residence to the desired thermostat setting. Further, there was a disparity in the temperature between rooms in the residence. On July 23, 1987, Respondent, accompanied by a factory representative from the manufacturer of the heat pump system, returned to the Daniels home. It is undisputed by the parties that the factory representative found that a portion of the unit, the vertical air handler, was not level and not well mounted and, as a result, was poorly installed. He further determined that the unit contained an excess amount of freon, a refrigerant gas. Respondent maintains that he performed the installation task strictly in accordance with the contract between the parties. It is his position that the installation of the air handler without a new wooden support base under it or replacement of the leaking existent return air plenum was in compliance with the parties' agreement to use existing ductwork. Respondent's position as to compliance with contractual terminology is supported by testimony of Petitioner's expert that the meaning within the trade of the terminology "use of existing ductwork" ordinarily includes the existing return air plenum as part of that ductwork. However, testimony of Petitioner's expert also establishes that Respondent's failure to realize and advise Daniels that the existing ductwork was obviously inadequate and might not permit the system to function effectively, demonstrated incompetence with regard to his ability to properly design and install a relatively simple system. The overall sloppiness of the workmanship in the system installation also reflects incompetence on the part of Respondent.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered assessing the Respondent an administrative penalty of $500 in accordance with disciplinary guidelines set forth in section 21E-17.001(19)(b), Florida Administrative Code. RECOMMENDED this day of March, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5193 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS 1.-6. Addressed and adopted in substance. COPIES FURNISHED: David Bryant, Esquire 220 East Madison Street, Suite 530 Tampa, Florida 33617 Steven E. Taucher Post Office Box 271581 Tampa, Florida 33688 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
Findings Of Fact Respondent, George A. Wallace, was, at all times material hereto, licensed as a Class "A" air conditioning contractor by the State of Florida, having been issued license number CA CO13239. Respondent was, at all times material hereto, the qualifier for EMC Corp. On May 14, 1981, EMC Corp. entered into a written agreement with Sophie Griffin to replace the heating and air conditioning unit at Ms. Griffin's home in Fort Lauderdale, Florida. The unit was installed in May, 1981, and Ms. Griffin promptly paid the full contract price of $2,200.00. Section 301(a), South Florida Building Code, provides: It shall be unlawful . . . to install or alter any equipment for which provision is made or the installation of which is regulated by this Code without first having filed application and obtained a permit therefore from the Building Official. A permit shall be deemed issued when signed by the Building Official and impressed with the seal of the governmental agency issuing said permit. Section 301.1(1), South Florida Building Code, provides: Permits, to be issued by the Building Official, shall be required for the following operations: * * * The installation, alteration, or repair of any air conditioning or refrigeration apparatus. . . . The South Florida Building Code has been adopted by Broward County. EMC Corp. installed the new heating and air conditioning unit at Ms. Griffin's home without first having obtained a building permit from the City of Fort Lauderdale, Florida. On March 20, 1984, EMC Corp. obtained the required permit, and paid a penalty of $25.00 for having failed to secure the permit before undertaking the work. On March 26, 1984 an inspector with the City of Fort Lauderdale inspected the installation of the unit and found, contrary to the provisions of Sections 2306 and 4801.10, South Florida Building Code, that the unit had not been anchored. EMC Corp. promptly anchored the unit. Section 4505.1. South Florida Building Code, provides: PERMITS REQUIRED: It shall be unlawful to do or commence to do any electrical work on a new installation of permanent or temporary wiring, any electrical apparatus or equipment or make extensions and/or changes to existing wiring systems . . . without having first filed application and obtained an electrical permit therefore from the Electrical Inspector. APPLICATIONS: Applications for permit will be accepted from only qualified persons or firms. . . . Neither Respondent nor EMC Corp. was a qualified electrician, nor were they licensed by the state of Florida as electrical contractors. EMC, without an electrical permit, connected the wiring of the new unit with the existing electrical service. Respondent contends, and the City of Fort Lauderdale agrees, that it is an accepted practice for an air conditioning contractor to disconnect the leads from an existing air conditioning unit and reconnect them to the new unit, without the necessity of an electrical permit, if there is no difference between the units. In this case the evidence establishes that, although the replacement and existing units were 3-ton units, the amperage demands of the replacement unit were greater than the existing unit, and that the existing wiring was inadequate. However, no hazardous condition was created by EMC Corp. reconnecting the leads from the existing unit to the replacement unit. Apart from the foregoing discrepancies, EMC Corp.'s installation of Ms. Griffin's new unit met all standards established by the South Florida Building Code. Further, EMC Corp. has faithfully fulfilled all warranty and service work it contracted to perform.
The Issue The issue to be determined by this Order is whether the Petition for Formal Proceedings filed with the Department of Environmental Protection (DEP) on February 4, 2009, was timely 1/ and, if so, whether Petitioners have standing to challenge the DEP?s issuance of the Minor Modification to FDEP Operation Permit 171331-002-UO for IW-1 under 171331-003-UC (the Permit Modification).
Findings Of Fact The Parties The Conservation Alliance is a Florida not-for-profit corporation in good-standing, with its corporate offices currently located at 5608 Eagle Drive, Fort Pierce, Florida. The Conservation Alliance has approximately 200 members. Elaine Romano is a resident of St. Lucie County, Florida. The DEP is an agency of the State of Florida having jurisdiction for permitting UIC facilities and the waste-streams being discharged to such facilities, pursuant to chapter 403, Florida Statutes, and the rules promulgated thereunder. Pursuant to that authority, the DEP issued the Permit Modification that is the subject of this proceeding. FPUA provides utility service to the City of Fort Pierce, Florida. FPUA owns and operates a Class I industrial injection well (IW-1), discharges to which are the subject of the Permit Modification. Allied owns and operates a chlorine bleach manufacturing facility which produces a brine waste-stream that is proposed for disposal to IW-1. Issuance of the Permit Modification On December 19, 2008, the DEP issued a Notice of Permit, Permit Number 171331-002-UO (FPUA operation permit), which authorized the operation of IW-1 at the Gahn wastewater treatment plant. The Gahn wastewater treatment plant and IW-1 are owned and operated by the FPUA. The FPUA operation permit authorized the disposal of concentrate and water treatment by- product from FPUA?s reverse-osmosis water facility at a permitted rate of 2.8 million gallons per day. FPUA also owns and operates water production wells that serve the City of Fort Pierce potable water supply system. IW-1 was constructed within 500 feet of three of the FPUA production wells, which required FPUA to obtain a variance from setback requirements. On July 17, 2008, prior to the issuance of the FPUA operation permit, Allied submitted an application for a major modification of the FPUA operation permit. The application proposed the disposal to IW-1 of up to 21,600 gallons per day of a brine waste-stream that is a by-product of the production of chlorine bleach. The application cover letter provides that “[w]hile we have been notified that this project is only a Minor Permit Modification, we feel by submitting for a Major Permit Modification that the Department will have the ability to review the application and downgrade the application to a Minor Permit Modification, if needed.” On December 30, 2008, the DEP issued the Permit Modification as a minor modification of the FPUA operation permit. The Permit Modification allowed a maximum of 21,600 gallons of brine to be received at the FPUA facility and disposed of in IW-1. Notice of the Permit Modification On or about September 12, 2008, a paralegal for Ruden McClosky, Lucinda Sparkman, requested information from the DEP regarding the procedure for receiving notification of permit applications and DEP action thereon. Her request was subsequently refined to request notice regarding two permits, those being “injection Well Construction, application #171331- 003,” and the other being “Water-Industrial Wastewater, application #FLA017460-004.” DEP File No. 171331-003 is that pertaining to the Permit Modification. At the time of the request, Ruden McClosky represented Odyssey Manufacturing Company (Odyssey), an economic competitor of Allied.3/ On September 24, 2008, Ms. Sparkman asked to be “put on the distribution list for the URIC permit for Fort Pierce.” From September 24, 2008 through December 15, 2008, Ms. Sparkman made periodic requests for information, and received periodic updates from the DEP. On December 19, 2008, the DEP sent Ms. Sparkman an e- mail indicating that the FPUA operation permit had been issued, and later that same day sent Ms. Sparkman an electronic copy of the permit. On December 19, 2008, Ruden McClosky made a public records request to FPUA for, among other items, records pertaining to the disposal of brine to the Gahn Water Plant underground injection well, and any agreements between FPUA and Allied regarding the disposal of brine. The request was made on behalf of Florida Tire Recycling, Inc. (Florida Tire). On December 22, the DEP sent Ms. Sparkman a copy of the notice of intent for the FPUA operation permit. There is no record evidence of further communication or inquiry between Ruden McClosky and the DEP from December 22, 2008 to January 14, 2009. On January 9, 2009, notice of the Permit Modification was published in the Fort Pierce Tribune. The notice was prepared and publication arranged by counsel for Allied. The published notice provides the information required by rule 62-110.106(7)(d), and stated that any challenge to the Permit Modification was required to be received by DEP within 14 days of publication or, for persons that requested actual notice, within 14 days of receipt of such actual notice. On January 14, 2009, Ms. Sparkman called her contact person at the DEP to inquire about the Permit Modification. That call was not returned. On January 21, 2009, Ms. Sparkman again called the DEP to inquire about the Permit Modification. In response to Ms. Sparkman?s inquiry, the DEP sent Ms. Sparkman an electronic copy of the Permit Modification. Ms. Sparkman made further inquiry on January 21, 2009, as to whether the notice of the Permit Modification had been published in a newspaper. On January 22, 2009, the DEP replied that “[e]verything was noticed as required.” On January 22, 2009, the Fort Pierce Tribune prepared an affidavit of publication of the notice. The affidavit of publication was received by counsel for Allied on January 28, 2009, who sent the affidavit to the DEP by certified mail on January 29, 2009. Alleged Defects in the Notice of Permit Modification Petitioners have alleged a number of procedural defects that they contend render the published notice ineffective to establish a deadline of 14 days from the date of the notice to file a challenge to the Permit Modification. Late Proof of Publication Petitioners allege that Allied filed the proof of publication with the DEP more than seven days from the date of publication, and that delay made such publication ineffective to establish a deadline for filing the petition. Although the proof of publication was provided to the DEP on or shortly after January 29, 2009, the evidence demonstrates that Allied provided the proof of publication to the DEP immediately upon receipt from the Fort Pierce Tribune newspaper. The delay in filing was not within the control of Allied, or anyone else associated with the Permit Modification. As established by rule 62-110.106(9), proof of publication is required by the DEP to provide assurance to the DEP that required notice has, in fact, been published, with the sanction being the delay or denial of the permit. The rule does not suggest that a delay in providing proof of publication to the DEP serves to alter or extend the time for filing a petition. There is little case law construing the effect of a delay in providing proof of publication on the petition rights of a person challenging the proposed agency action. However, the undersigned agrees with, and adopts, the following analysis of the issue provided by Administrative Law Judge P. Michael Ruff: . . . the purpose of requiring an applicant to publish notice of agency action is to give substantially affected persons an opportunity to participate in an administrative proceeding. See Section 403.815, Florida Statutes, and Rule 17- 103.150(4), Florida Administrative Code. Consequently, the crucial element in the Department's publication requirement is that the notice be published to trigger the commencement of the time for affected persons to request a hearing. The requirement that proof of publication be provided to the Department does nothing to affect the rights of third parties, but merely is a technical requirement which allows the Department to determine whether a third party has timely exercised its rights to contest a published notice of intended agency action. If an applicant publishes notice of intended agency action, but fails to timely provide the Department with proof of that publication, the deficiency is one which is easily cured. No harm will occur because the permit will not be issued until proof of publication is received by the Department, in any event, because of Rule 17-103.510(4), Florida Administrative Code. Bio-Tech Tracking Systems, Inc. v. Dep?t of Envtl. Reg., Case No. 90-7760, ¶32 (Fla. DOAH Apr. 3, 1991; Fla. DER May 17, 1991). The filing of the notice beyond the seven-day period in rule 62-110.106(5) was, at most, harmless error, did not adversely affect any rights or remedies available to Petitioners, and does not affect the fairness of this proceeding. Notice Prepared by Counsel Petitioners allege that the notice was prepared by Allied?s counsel, rather than the DEP, and that the notice was therefore ineffective to establish a deadline for filing the petition. Publication of the notice of the Permit Modification was not required, since it was a minor modification. Thus, publication was at Allied?s option. Rule 62-110.106(10)(a) provides, in pertinent part, that: Any applicant or person benefiting from the Department?s action may elect to publish notice of the Department?s intended or proposed action . . . in the manner provided by subsection (7) or (8) above. Upon presentation of proof of publication to the Department before final agency action, any person who has elected to publish such notice shall be entitled to the same benefits under this rule as a person who is required to publish notice. The most logical construction of rule 62-110.106 is that the DEP is responsible for preparing required notices pursuant to rule 62-110.106(7)(c), but that non-required notices may be prepared and published at the applicant?s or beneficiary?s option without direct DEP involvement. In this case, the notice was prepared by an authorized agent of the corporate “person” that benefitted from the Permit Modification. The more salient point regarding the preparation of the notice is whether it contained all of the information required by rule. The evidence demonstrates that it did, and that the notice was sufficient to provide a meaningful and complete point of entry to the public of the Permit Modification and the rights attendant thereto. The fact that the notice was prepared by Allied?s counsel was, at most, harmless error, did not adversely affect any rights or remedies available to Petitioners, and does not affect the fairness of this proceeding. Lack of Actual Notice Petitioners allege error in the notice process because actual notice of the Permit Modification was not provided to Petitioners. The basis for the alleged deficiency was that Mr. Stinnette had, in 2003, asked to be placed on the DEP?s UIC mailing list, but did not receive the notice of the Permit Modification. Rule 62-110.106(2) provides that published notice establishes the point of entry for the public to challenge proposed agency action “except for persons entitled to written notice personally or by mail under Section 120.60(3), Florida Statutes, or any other statute.” Section 120.60(3) provides that a notice of proposed agency action shall be mailed “to each person who has made a written request for notice of agency action.” The preponderance of the evidence demonstrates that Mr. Stinnette was acting solely as an agent of Indian Riverkeeper when he requested to be placed on the UIC mailing list. He was not requesting notices in his personal capacity, or as an agent of the Conservation Alliance or Ms. Romano. Thus, Indian Riverkeeper was entitled to notice of the Permit Modification. Indian Riverkeeper is not a party to this proceeding. The undersigned is not willing to attribute a request for actual notice to any person other than the person requesting such notice. The DEP?s failure to provide written notice of the Permit Modification to Indian Riverkeeper did not adversely affect any rights or remedies available to the Conservation Alliance or Ms. Romano, and does not affect the fairness of this proceeding. Lack of Information Pursuant to Rule 62-528.315(7) Finally, Petitioners argue that the published notice was ineffective because it did not include the name, address, and telephone number of a DEP contact person, citing rule 62- 528.315(7)(d). The provision cited by Petitioners involves DEP notices that are required when the DEP has prepared a draft permit, draft consent order, or has scheduled a public meeting as identified in rule 62-528.315(1). The notice requirement in rule 62-528.315(7) does not apply to a notice of proposed agency action, which is governed by rule 62-528.315(10), and which provides that: “[a]fter the conclusion of the public comment period described in Rule 62-528.321, F.A.C., and after the conclusion of a public meeting (if any) described in Rule 62- 528.325, F.A.C., the applicant shall publish public notice of the proposed agency action including the availability of an administrative hearing under Sections 120.569 and 120.57, F.S. This public notice shall follow the procedure described in subsection 62-110.106(7), F.A.C. (emphasis added). The published notice of the Permit Modification was consistent with the notice described in rule 62-110.106(7), and therefore complied with rule 62-528.315(10). For the reasons set forth herein, there were no defects in the published notice of proposed agency action that serve to minimize the effect of that published notice on the time for filing a petition challenging the Permit Modification, that adversely affect any rights or remedies available to the Conservation Alliance or Ms. Romano, or that affect the fairness of this proceeding. Representation of Petitioners by Ruden McClosky Petitioners were not represented by Ruden McClosky at the time Ruden McClosky requested actual notice of any DEP agency action regarding FPUA. Petitioners were not represented by Ruden McClosky at the time Ruden McClosky requested actual notice of any DEP agency action regarding Allied. The parties stipulated that an attorney-client relationship was formed between the Petitioners and Ruden McClosky on or after January 1, 2009. No further specificity was stipulated. On February 3, 2009, Ruden McClosky sent an engagement letter to the Conservation Alliance regarding governmental and administrative challenges to the Permit Modification. The engagement was accepted by Mr. Stinnette on behalf of the Conservation Alliance on February 4, 2009. The Petition for Formal Proceedings, which named the Conservation Alliance as a party, was filed with the DEP on February 4, 2009. On February 10, 2009, Ruden McClosky sent an engagement letter to Ms. Romano regarding governmental and administrative challenges to the Permit Modification. There is no evidence that the engagement was accepted by Ms. Romano. Ms. Romano testified that she has never spoken or corresponded with anyone from Ruden McClosky, and had no knowledge that she was being represented by Ruden McClosky. Ms. Romano had no input in drafting any of the petitions filed on her behalf, and had no recollection of having ever read the petitions. The Amended Petition for Formal Proceedings, which named Ms. Romano as a party, was filed with the DEP on February 12, 2009. Both of the Ruden McClosky engagement letters reference an “Other Client” that had an interest in challenging the Permit Modification, which “Other Client” would be responsible for paying all fees and costs, and would be involved in the approval of all work performed by Ruden McClosky. The parties stipulated that the “Other Client” was Odyssey. The date of an engagement letter is not dispositive as to the date on which an attorney-client relationship is established. It is, however, evidence that can be assessed with other evidence to draw a conclusion as to the date that the relationship commenced. The preponderance of the evidence demonstrates that requests for notice made prior to January 21, 2009, regarding the FPUA operation permit and the Permit Modification that is the subject of this proceeding were made on behalf of Odyssey or Florida Tire, existing clients of Ruden McClosky. The preponderance of the evidence leads the undersigned to find that Ruden McCloskey commenced its representation of the Conservation Alliance with regard to the instant case no earlier than January 21, 2009, the date on which Ruden McClosky received notice that the Permit Modification had been issued. The preponderance of the evidence leads the undersigned to find that Ruden McCloskey commenced its representation of Ms. Romano with regard to the instant case after January 21, 2009, if at all. Filing of the Petitions The 14th day after publication of the notice of the Permit Modification fell on January 23, 2009. On February 4, 2009, the initial Petition for Formal Proceedings was filed challenging the DEP issuance of the Permit Modification. The Petition named the Conservation Alliance as a party. On February 12, 2009, an Amended Petition for Formal Proceedings was filed that, among other things, added Ms. Romano as a party. Allegations of Standing - Conservation Alliance The Conservation Alliance is a non-profit, Florida corporation incorporated in 1985. It has at least 100 members that reside in St. Lucie County. It was formed for the general purpose of protecting the “water, soil, air, native flora and fauna,” and thus the environment of St. Lucie County. In the Petition for Formal Proceedings, as it has been amended, the Conservation Alliance made specific allegations as to how the issuance of the Permit Modification may affect its substantial interests. Those allegations are related, first, to the effect of the Permit Modification on the FPUA public water supply that serves members of the Conservation Alliance and, second, to the effect of the Permit Modification on the ability of the members to recreate and enjoy the waters of St. Lucie County. FPUA Water Service In its Second Amended Petition for Formal Proceedings, the Conservation Alliance alleged that “[m]embers of the Alliance own real property or otherwise reside within the service area of FPUA, and are, in fact, serviced by FPUA.” As a result, the members “will be adversely affected by the injection of the Allied waste stream into IW-1, which is located within 500 feet of three potable water supply sources, from which . . . Romano and the Alliance?s members are provided with potable water,” resulting in “a potential for those contaminants and hazardous materials to get into Petitioners? source of potable water.” Mr. Brady, the Conservation Alliance?s president, does not receive water service from the FPUA. Mr. Brady did not know how many members of the Conservation Alliance received water service from the FPUA. Persons living in unincorporated areas of Fort Pierce do not receive potable water from the FPUA. A mailing address of “Fort Pierce” does not mean that the person lives in the incorporated City of Fort Pierce. Mr. Brady “assumed” many of the members lived in the City of Fort Pierce, but offered no admissible, non-hearsay evidence of any kind to support that assumption. Mr. Stinnette testified that he was “confident that we have members that receive water from [FPUA]” but was not able to quantify the number of said members. As with Mr. Brady, Mr. Stinnette offered no admissible, non-hearsay evidence of any kind to support his belief. Recreational and Environmental Interests In its Second Amended Petition for Formal Proceedings, the Conservation Alliance alleged that “. . . Romano and the Alliance?s members utilize and protect the waters of St. Lucie County. Petitioners? recreational and environmental interests will be adversely affected if the Allied waste stream leaves the injection well area and flows into the rivers, streams, and or ocean.” Mr. Brady understood that one member of the Conservation Alliance, George Jones, fished in the C-24 canal, although Mr. Brady had not personally fished there for 25 years. Mr. Brady otherwise provided no evidence of the extent to which members used or enjoyed the waters in or around St. Lucie County. Mr. Stinnette has recreated in various water bodies that are tributaries of the Indian River Lagoon system. He indicated that he had engaged in recreational activities in and on the waters of St. Lucie County with “dozens” of people over the past 16 years, some of whom were members of the Conservation Alliance. There was no evidence offered as to how many of those persons were members of the Conservation Alliance, as opposed to members of other organizations or of no organization at all, or whether they were current members during the period relevant to this proceeding. Mr. Stinnette testified that the previously mentioned Mr. Jones said that he kayaked in the waters of St. Lucie County but, as to the recreational activities of other members, testified that “I don't know, I don't keep up with their day-to-day activities to that extent.” Although Mr. Jones testified at the hearing, he provided no information as to the nature or extent of his recreational uses of the waters of St. Lucie County. The only evidence of Mr. Jones? use of the waters of St. Lucie County is hearsay. Thus, the only finding that can be made as to the recreational use of the waters of St. Lucie County by current members of the Conservation Alliance is limited to the recreational use by a single member, Mr. Stinnette. Petitioner, Elaine Romano Ms. Romano is a member of the Conservation Alliance. The allegations regarding Ms. Romano?s substantial interests in this proceeding were the same as those of the Conservation Alliance as set forth above. FPUA Water Service Ms. Romano has her primary residence at 3436 Roselawn Boulevard, Fort Pierce, Florida. Her residence is not served by FPUA. Ms. Romano is the executor of the estate of her mother, Marion Scherer. The estate owns a residence at 1903 Royal Palm Drive, Fort Pierce, Florida that is currently vacant. That residence is served by FPUA. The estate is not a party to this proceeding. Recreational and Environmental Interests Ms. Romano attends certain meetings and functions of the Conservation Alliance, but offered no testimony of her use or enjoyment of any natural resources that could be affected by the Permit Modification. In that regard, her interest in this case was precipitated by a desire to support her mother?s interest in ecology.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that Respondent, Department of Environmental Protection, enter a final order dismissing the Petition for Formal Proceeding as amended. DONE AND ENTERED this 24th day of May, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 24th day of May, 2013.
