The Issue The issue in this case is whether the Department of Environmental Protection ("DEP") should issue an air construction permit authorizing Oleander Power Project, L.P. ("Oleander"), to build and operate an electrical power plant in Brevard County, Florida, that includes five combustion turbines and two fuel oil storage tanks (the "Project").
Findings Of Fact Oleander seeks an air construction permit to build and operate an electrical power plant in Brevard County, Florida. Oleander provided reasonable assurances that the Project will comply with all of the conditions and emissions limitations prescribed by DEP in the Draft Permit. The Project received adequate review from the state agency responsible for regulating the Project. DEP reviewed Oleander’s application, requested and received additional information concerning the Project, and independently verified the impacts assessments contained in the application. The Project received adequate review from Brevard County. Oleander executed a Stipulated Settlement Agreement with Brevard County (the "Brevard County Agreement") in which Oleander agreed to comply with restrictions concerning the Project’s hours of operation, minimum buffers, noise, odor, vibrations, traffic, and other issues. The Brevard County Agreement provides additional assurances that the Project will not adversely impact the public. Members of the public received adequate notice of the Project and had sufficient opportunity to make public comments. On March 3, 1999, DEP held a public meeting in Brevard County to receive public comments regarding Oleander’s application. On March 26, 1999, DEP issued its Public Notice of DEP’s intent to grant the Draft Permit to Oleander. On April 8, 1999, DEP’s Public Notice was published in Florida Today. On May 13, 1999, DEP held a second public meeting in Brevard County to receive public comments concerning Oleander’s application. Members of the public had an opportunity during the administrative hearing to enter their comments on the record. The Project includes the construction and operation of five 190 megawatt ("MW") combustion turbines that will be used to generate electricity. The Project also includes the construction and use of two fuel oil storage tanks, two water storage tanks, an administrative building, a stormwater management system, and other associated and ancillary facilities. The Project is a "peaking" power plant. It will operate only during times of peak demand caused by hot or cold weather or storm events. The Draft Permit authorizes Oleander to operate the Project’s combustion turbines for a maximum of 3,390 hours per year, or approximately 39 percent of the available hours in a year. During the remainder of the year, the combustion turbines will not operate and will not have any airborne emissions. Based on the historical experience of other peaking power plants in Florida, the combustion turbines are expected to operate less than 800 hours per year. Oleander’s combustion turbines will be the most advanced turbines used in Florida for peaking service. Oleander’s turbines will be more efficient, in terms of emissions and producing power, than the turbines currently used at other peaking plants in Florida. The Project will use General Electric ("GE") Frame 7FA combustion turbines. These turbines are capable of complying with the emission limits and requirements in the Draft Permit. Oleander will hire staff or train their own staff to operate the Project in compliance with the Draft Permit. Oleander’s parent company already has a training program for its plant operators. Oleander has operated similar projects successfully. The primary fuel for the power plant will be natural gas. Natural gas is the cleanest burning of all fossil fuels. In the event that natural gas becomes unavailable, the Draft Permit authorizes use of low sulfur distillate fuel oil ("fuel oil") for the equivalent of 1,000 hours of full-load operations per year. Fuel oil contains a maximum of 0.05 percent sulfur, is 35 to 50 percent more expensive than natural gas, and imposes economic incentives for Oleander to minimize the use of fuel oil. Water needed for the Project will be provided by the City of Cocoa. Oleander will not install any on-site wells to supply water to the Project. All of the wastewater from the Project will be sent by pipeline to the City of Cocoa’s wastewater treatment plant. The Project will not discharge any industrial wastewater on-site. The Project will be built on a site that is located northeast of the intersection of Interstate 95 ("I-95") and State Road ("SR") 520 in unincorporated Brevard County (the "Site"). The Site contains approximately 38 acres of land. The Site is appropriate for use as an electrical power plant. The Site already is zoned for industrial purposes. The surrounding areas are primarily zoned for industrial uses. An existing electrical substation is located on the north side of the Site. An existing electrical transmission line corridor is located on the west side of the Site. Townsend Road is located on the south side of the Site. An existing natural gas pipeline is located nearby, on the west side of I-95, and can provide gas for the Project. Residential, commercial, and industrial development within a three kilometer radius of the Site is minimal. The Project will be compatible with those industrial and commercial land uses that are located in the area near the Site. The closest residential areas are more than 1,400 feet from the Site. The Site is compatible with the closest residential neighborhoods. The Site and adjacent off-Site areas provide a significant buffer to the closest residential areas. The Site can be developed without causing adverse impacts on residential areas. Combustion turbines currently operate at many locations in diverse population centers in Florida. For example, combustion turbines are operated within 800 feet of the Shands Hospital at the University of Florida, within 1,200 feet of Cinderella’s Castle at Disney World’s Magic Kingdom, and near the Lake Worth High School. Combustion turbines also are located near several residential neighborhoods in the state. DEP and Oleander evaluated the Project in accordance with requirements prescribed in DEP’s Prevention of Significant Deterioration ("PSD") program. As part of the PSD review, a determination was made of the Best Available Control Technology ("BACT"). A BACT determination involves a case-by-case analysis of those air pollution control technologies that are feasible and can achieve the maximum emission reductions. A BACT determination also requires an analysis of the costs, environmental impacts, and energy impacts associated with the use of each one of the proposed control technologies. A BACT determination results in the establishment of an emission limit for each pollutant of concern. In this case, DEP determined the appropriate BACT limits for the Project’s emissions of carbon monoxide ("CO"), oxides of nitrogen ("NOx"), sulfur dioxide ("SO2"), sulfuric acid mist ("SAM"), volatile organic compounds ("VOCs"), particulate matter ("PM"), and particulate matter less than ten microns in diameter ("PM10"). (PM and PM10 are referred to herein as "PM/PM10.") BACT emission limits applicable to the Project are set forth in the Draft Permit, and are incorporated by reference in this Recommended Order. DEP determined that when the Project operates on natural gas, BACT for NOx is an emission limit of 9 parts per million ("ppm"), corrected to 15 percent oxygen. This emission limit is based on the use of dry low NOx ("DLN") combustion technology utilized in the combustion turbines included in the Project. The proposed NOx emission limit of 9 ppm is the lowest emission limit in Florida for simple cycle peaking power plants and sets the standard for similar facilities throughout the United States. DEP determined that when the Project operates on fuel oil, BACT for NOx is an emission limit of 42 ppm, corrected to 15 percent oxygen. This emission limit is based on the use of DLN and wet injection technology. Wet injection technology involves the injection of either water or steam directly into the combustor to lower the flame temperature and thereby reduce the formation of NOx. The U.S. Fish and Wildlife Service ("USFWS") provided comments to DEP concerning the Project. In their comments, the USFWS suggested that the NOx emission limit should be 25 ppm when the Project is operating with fuel oil. However, the USFWS’ suggestion was based on the USFWS’ misreading of the provisions of other PSD permits. When read correctly, those permits establish the same NOx emission limit when firing fuel oil that DEP established in this case, i.e., 42 ppm. In its BACT determination, DEP considered whether a selective catalytic reduction ("SCR") system should be used to reduce the Project’s NOx emissions. SCR is an add-on NOx control system in which ammonia is injected into the exhaust gases of a combustion turbine. The exhaust gases are then exposed to a catalyst where the ammonia and the NOx react to form nitrogen and water. SCR does not represent BACT in this case and should not be required for the Project. The use of SCR would impose excessive costs on the Project, adversely impact the Project’s energy efficiency, and cause increased emissions of particulate matter and ammonia. BACT for CO and VOCs is based on the Project’s use of an advanced combustor design, i.e., DLN technology, and good combustion practices. The use of an oxidation catalyst for CO removal is not required because an oxidation catalyst is not cost effective for the Project. BACT for PM/PM10, SO2, and SAM is based on good combustion practices and the use of clean low sulfur fuels. The PSD program establishes separate ambient air quality standards for Class I and Class II areas defined in Florida Administrative Code Rule 62-204.360(4). (Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.) The Project is located in a Class II area. The Project’s impacts on ambient air concentrations will be below all applicable PSD standards ("increments") prescribed in Rule 62-204.260(2) for Class II areas. The nearest PSD Class I area is the Chassahowitzka Wildlife Refuge (the "Refuge"). The Refuge is approximately 180 kilometers from the Site. An analysis of the Project’s impacts on the Refuge is not required because the Refuge is more than 150 kilometers from the Site. The impacts from the Project on the closest Class I area are expected to be insignificant within the meaning of Rule 62-204.200(29). DEP does not require Oleander to evaluate the cumulative impacts caused by the Project and other major sources of air pollution in the relevant Class II area. However, Oleander evaluated the Project’s impacts together with the impacts of the Florida Power & Light Cape Canaveral Plant, the Orlando Utilities Commission’s Indian River Plant, and the Orlando Utilities Commission’s Stanton Energy Center. The Project itself will not have any measurable effect on the ambient conditions resulting from the operation of all of these sources. DEP has adopted primary and secondary Ambient Air Quality Standards ("AAQS") in accordance with requirements adopted by the U.S. Environmental Protection Agency ("EPA"). Primary standards are designed to create an adequate margin of safety for the protection of the public health, including the health of the young, the old, and those with respiratory diseases such as asthma. Secondary standards are designed to protect the public welfare from any known or anticipated adverse effects of air pollution. AAQS are reviewed every five years by scientists and physicians in light of the most recent scientific studies and data. In Brevard County, existing air quality is better than levels allowed under AAQS. Brevard County is classified as an attainment area. Oleander analyzed the Project’s potential impacts on ambient air quality in Brevard County in compliance with the applicable DEP requirements for such an analysis. Oleander’s analysis was based on conservative assumptions intended to over- estimate impacts from the Project. For example, the analysis assumed that the Project would operate continuously throughout the entire year, even though the Project’s annual operations will be limited to a maximum of 3,390 hours. In addition, Oleander assumed that the Project would use fuel oil for the entire year, even though the Project will be limited to firing fuel oil for a maximum of 1,000 hours per year. The Project’s maximum impacts on ambient air quality will be 0.6 percent or less of the applicable AAQS for each criteria pollutant. Oleander's analysis demonstrates a wide margin of safety for public health and welfare. The Project’s maximum potential impacts are less than the EPA "significant impact" levels. Consequently, the Project’s impacts are deemed insignificant from a regulatory perspective, and more detailed analyses of the Project’s impacts on ambient air quality are not required under applicable PSD requirements. The Project is not expected to cause any meaningful impacts on air quality in any neighborhood in Brevard County. In all neighborhoods, the Project’s impacts on air quality will be insignificant. Similarly, the Project’s impacts on soils, vegetation, wildlife, and visibility will be insignificant. The Project also will not cause any significant growth-related air quality impacts. The cumulative impacts from the Project and other sources of air pollution in the area will be insignificant. When all of these sources are considered together, the maximum impact from their combined emissions will be 50 percent or less of the applicable AAQS. The PSD program does not require Oleander to perform any ambient air quality monitoring for any pollutant prior to the time that construction of the Project commences because the Project’s air quality impacts will be less than the applicable DEP de minimis levels. Pre-construction monitoring for ozone is not required unless a facility will have VOC emissions equal to or greater than 100 tons per year. The Project’s maximum potential VOC emissions will be 64 tons per year. Therefore, the Draft Permit does not require Oleander to install any ozone monitors. DEP maintains two ambient air quality monitors in Brevard County to measure ozone concentrations. DEP also has ambient air quality monitors for ozone in Volusia, Seminole, Orange, Osceola, and St. Lucie Counties. The ambient air quality data from DEP monitors demonstrate that the ozone concentrations in Brevard County are below the applicable AAQS. Further, the data demonstrate that ozone is a regional issue because the ozone levels in the region tend to rise and fall at the same time and to the same degree. A requirement for Oleander to install an additional monitor in Brevard County would be unnecessary and unjustified. The impacts from the Project on ozone and other ambient air quality parameters are so small that the impacts could not be measured with an additional monitor. An additional monitor in Brevard County would provide no meaningful benefits when assessing whether Brevard County is meeting the AAQS for ozone and would cost between $75,000 and $100,000 a year to install and operate. Emissions from the Project will not cause any significant impact on the water quality of water bodies in Brevard County. There will be minimal, if any, "fallout" of particles into nearby waters, including the St. Johns and Indian Rivers. The maximum amount of nitrogen that could be deposited annually as a result of airborne NOx emissions from the Project is 0.0007 grams per square meter ("g/m2"). By comparison, the current nitrogen deposition rate from other sources in the area is 0.4 g/m2. Thus, the Project’s impact on nitrogen deposition in the area will be only a fraction of the deposition that is occurring already. Airborne emissions from the Project will not cause or significantly contribute to a violation of any ambient air quality standard or PSD increment. The Project complies with all applicable DEP air quality requirements, including the applicable policies, rules, and statutes.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED that: DEP enter a final order granting Oleander’s application for an air construction permit for the Project, subject to the conditions and limitations contained in the Draft Permit. DONE AND ENTERED this 27th day of September, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1999. COPIES FURNISHED: F. Perry Odom, General Counsel Department of Environmental Protection The Douglas Building 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Office of General Counsel Department of Environmental Protection The Douglas Building 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Clarence Rowe 418 Pennsylvania Avenue Rockledge, Florida 32955 David S. Dee, Esquire Landers & Parsons 310 West College Avenue Tallahassee, Florida 32301 W. Douglas Beason, Assistant General Counsel Scott A. Goorland, Assistant General Counsel Department of Environmental Protection The Douglas Building 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
The Issue Whether the alleged violation exists and, if so, whether orders for corrective action should be made final against respondents or either of them?
Findings Of Fact On October 17, 1984, Sunshine acquired from R & F what had been a filling station at the corner of U.S. Highway 98 and Laurie Avenue in Bay County, Florida. The old gas pumps had been moved some time before October 17, 1984. Only loose pipe connections leading to the underground storage tanks remained. The deed K & F executed in favor of Sunshine made no mention of these tanks. Respondent's Exhibit No. 1. Sunshine later contracted with Jake Walters, who began construction the following April to convert the site into a convenience store with gas pumps. On January 25, 1985, long before bringing any petroleum product onto the property, Jake Walters' construction foreman, John Kenneth Barnes, began taking up the two-foot slab of concrete that overlay K & F's underground storage tanks. The ground underneath the concrete smelled of gasoline. James Guris, who was overseeing the job for Sunshine, ordered work stopped and told Harold Millis, Sunshine's vice-president for real estate and construction, about the feel and smell of the soil. When Mr. Millis learned of the situation, he decided that DER should be notified. Because by then it was too late in the day to reach DER, Jim Guris called DER's office in Panama City on the following Monday, January 28, 1985. He spoke to DER's Grady Swann, who told him to file a discharge notification form with DER. Mr. Swann said removal of the underground tanks could go forward. Before removing the storage tanks, Mr. Barnes, or somebody at his direction, measured the depth of the tanks with a stick to determine how deep to dig. In this way two or three inches of gasoline were discovered in the bottom of each tank. Even though workmen secured a pump and pumped gasoline from each underground tank (into a 500-gallon tank mounted on a truck), they were unable to pump the tanks completely dry. In each of the three underground tanks, about a half inch of gasoline remained. With a crane and lifting rigs, they raised the tanks in an upright position, without spilling any gasoline. Except inside where the half inch of gasoline stood, the tanks and appurtenant pipes and tubing were dry. Mr. Guris ordered pressure tests done on the tanks, each a cylinder some five feet in diameter. Two of the tanks passed this test, but the third failed. That tank had a hole approximately one quarter inch in diameter a little left of center, about half way up one end of the tank. Groundwater on the site came within four and a half or five feet of the surface in early February of 1985. Because it contains less than 10,000 parts per million total dissolved solids, it is properly classified as G-II. A marine clay separates the surficial aquifer from the Floridan, but the surficial aquifer recharges the Floridan. Northeast of where the storage tanks were dug up and 300 to 350 feet way a two-inch well 390 feet deep supplies water from the Floridan aquifer to three households. Nobody has detected any odor or taste of gasoline in water from those wells. Grady Swann took soil samples on site on February 8 and again on February 26, 1985. On his first visit, he noticed no sheen on the surface of the water standing in the area excavated around the old tanks, smelled no odor emanating from the standing water and did not take a sample. On his second visit, he did notice evidence of groundwater contamination and took water as well as soil samples. Mr. Swann returned on March 11, 1986, with Kenneth L. Busen and Mike Wilson of DER's Operation Response Team and used a power augur to put in temporary wells from which additional water samples were taken. These tests confirmed suspicions that the old gas tanks had leaked and revealed groundwater contamination attributable to gasoline including, in some samples, more than 1,000 times the allowable concentration of benzene. Gasoline seeping through soil leaves residual hydrocarbons which contaminate percolating rain or other groundwater moving through the same soil. Petitioner's Exhibit No. 6 depicts the probable initial configuration of the plume of hydrocarbons in the vicinity of the old tanks. Contamination is moving down gradient to the northeast, spreading out but growing more dilute. The steps called for by the proposed corrective orders are a reasonable way to mitigate environmental damage.
The Issue Whether construction permit No. AC41-6819 issued to Manatee Energy Company, dated June 8, 1978, should be amended, as proposed in construction permit No. AC41-6819A, dated November 7, 1978.
Findings Of Fact The parties stipulated to the following facts: The Manatee Chapter of the Isaak Walton League of America ("Isaak Walton League") is a non-profit corporation, organized and existing under Florida law. The Isaak Walton League's address is 5314 Bay State Road, Palmetto, Florida 33561. Manatee Energy Company ("Manatee Energy") is a Florida corporation, whose address is 108 Appleyard Drive, Post Office Box 867, Tallahassee, Florida 32302, and was formerly a subsidiary of Belcher Oil Company. The State of Florida Department of Environmental Regulation ("DER") is an agency of the State of Florida charged with the regulation and control of air and water pollution under Chapter 403, Florida Statutes, whose address is Twin Towers Office Building, 2600 Blair Stone Road, Tallahassee, Florida 32301. The specific agency action at issue in this proceeding is DER's issuance of a revised permit to Manatee Energy to modify a crude oil splitting facility and modified or additional rundown tankage at Port Manatee, Florida. The facility at issue will be located in North Manatee County near the Hillsborough/Manatee County line in Port Manatee. On November 7, 1978, DER issued Manatee Energy Permit No. AC41- 6819A. The validity of the permit is disputed by the Petitioner. Manatee Energy has undertaken construction of the crude oil splitter and associated tankage under either Permit No. AC41-6819 and Permit No. AC41-6819A. (Exhibit 1) On June 8, 1978, after administrative proceedings conducted under Chapter 120, Florida Statutes, DER issued construction permit AC41-6819 to Manatee Energy for the construction of a 15,000 BPSD crude oil splitter at Port Manatee, Florida. The permit stated that the oil splitter is to separate crude oil by distillation into three fractions; i.e., LPG, jet fuel and bunker "C." It further provided that combustion devices were to be fired with LPG or fuel oil with a sulfur content of 0.7 percent or less. Various conditions were attached to the issuance of the permit, including analysis of samples of fuels to be burned in the furnace and boiler, performance testing of stacks after startup of the facility, emission limits for the furnace and boiler, and periodic monitoring and reporting of heat content and sulfur content of fuel oil combusted in the boiler and furnace. In addition, condition 5 required that all fugitive dust generated at the site be adequately controlled, and conditions 12- 13 required that steps be taken in conjunction with the Manatee Port Authority to correct any ambient particulate violations, such as paving of roads, parking lots and the like, prior to issuance of an operating permit. The Chapter 120 administrative proceedings resulted in a determination that the proposed facility would not release air pollutants exceeding ambient air quality standards, or significantly degrade applicable base line air quality. (Exhibits 1-2) On October 27, 1978, Manatee Energy applied to DER for revision of the existing permit. The proposed revision was prompted primarily by the fact that Manatee Energy had been sold by its parent company, Belcher Oil Company, and had become an independent operator subsequent to the issuance of the original permit. This change in ownership created a need for accurate recording and accounting of product volume and quality before its transfer to Belcher's storage tanks which are adjacent to the crude oil splitter facility. To accomplish this purpose, Manatee Energy proposed the addition of two 10,000 barrel JP-4 "rundown" tanks for jet fuel, and one 10,000 barrel diesel "rundown" tank in lieu of previously permitted tank No. 410. Also, a 33,000 barrel slop oil tank to temporarily receive and hold off-specification product, and a 40,000 barrel waste water tank replacing a 35,000 barrel tank previously permitted (tank No. 409), were proposed to be added. In view of the above proposed changes, the nine storage tanks owned by Belcher (tanks Nos. 401-409), four of which are leased by Manatee Energy (tanks Nos. 406-409), will store different products except for tanks Nos. 405 and 407 which will remain unchanged. Under the original permit, two 80,000 gallon tanks were to be used to store JP-4, (tanks Nos. 403-404), but under the new proposed arrangement, only one will be used for that purpose (tank No. 406). Tank No. 403 will be used exclusively by Belcher for asphalt storage. Tank No. 409 will he converted from a waste water tank to a No. 6 fuel oil tank. Based on revised determinations of hydrocarbon emission factors by the Environmental Protection Agency after Manatee's application for the original permit, secondary seals on internal floating roof tanks will be deleted, but existing floating roof tank No. 407 is proposed to be modified by adding secondary seals to reduce such emissions. Revised calculations by the applicant as to hydrocarbon emissions show that the proposed changes in tank service and design will offset expected emissions from the proposed new tanks. Such emissions from the revised facility are expected to be 16.8 tons less than the currently permitted tankage emission rate of 75.4 tons per year. (Testimony of Hutchinson, Borie, Exhibits 4, 6-9) Additional modifications to the existing permit proposed by Manatee Energy are to relocate the emergency flare stack, move the process heater, boiler and control room approximately 150 feet each from their previously contemplated locations, and to raise the crude tower approximately 16 feet. The tower produces no emissions and the change is designed to improve the distillation process. Movement of the flare stack and the other process equipment and control room are proposed for safety reasons and do not alter the process configuration or increase emissions. Finally, a Merox treating unit was added for the purpose of extracting impurities from jet fuel. This process does not involve any emissions. (Testimony of Hutchinson, Borie, Larsen, Exhibits 4, 6, 14-15) The revised permit application consisted of engineering drawings by the firm of Marsco Engineering Corporation, Tyler, Texas which was employed subsequent to issuance of the original permit, and a report concerning the proposed changes prepared by Walk, Haydel and Associates, Inc., an engineering consultant and design firm of New Orleans, Louisiana. A complete DER application form was not submitted or required by DER. Only a revised page 4 of the standard application form was submitted. There was no certification of the project by a professional engineer registered in Florida, although such a certification is required by DER rules. The application was reviewed and recommended for approval to DER by the Manatee County Pollution Control Director. Personnel of DER's Southwest District Office reviewed the application and determined that the applicant's calculations showing that proposed hydrocarbon emissions would be less than those projected under the original permit were correct. They further found that concentrations of sulfur dioxide and particulate emissions would be unchanged by the modifications to the facility. The latter determination was supported by the results of an air quality computer model programed under standard EPA criteria to estimate the impact of such emissions from pollutant sources on ambient air quality standards at ground level. The model determined the maximum impact of sulfur dioxide pollutants which would emanate from the relocated stacks at receptor points approximately .7 to .8 kilometers south of the facility. It was found that the maximum pollutant impact during the worst twenty-four hour period would not change significantly from the former configuration of the stacks and would be well within state ambient air standards of 260 micrograms per cubic meter. A separate computer model relative to particulates was not required because such emissions when extrapolated from the sulphur dioxide model would result in basically unchanged emissions compared to the originally permitted configuration. Manatee County Pollution Control has operated an air quality monitor at Port Manatee for a number of years. This device, which is used for monitoring emission of particulates, has reflected excessive emissions on a number of occasions during 1978 and 1979. However, it is a "source" monitor which is not located in an appropriate place under EPA standards to monitor ambient air quality and, accordingly, DER does not consider the site to be "ambient oriented" or the data to be usable for determinations involving air quality standards. There have been no violations of ambient air quality revealed by monitoring at other stations in Manatee County during the past year. In fact, Manatee County's annual geometric mean for 1978 for suspended particulates were the lowest ever recorded at 33.8 micrograms per cubic meter which was significantly lower than the air quality standard of 60 micrograms per cubic meter. (Testimony of George, McDonald, Williams, Koogler, Subramani, Exhibits 4, 11-13, 16-21) In 1978, subsequent to the issuance of the original permit but prior to the filing of the revision application, certain rules of the DER contained in Chapter 17-2, Florida Administrative Code, were changed. Rule 17-2.03 required the DER to make a determination of the Best Available Control Technology (BACT) after receipt of an application for a permit to construct an air pollution facility in certain instances under specific criteria stated in the rule, after public notice had been given of an application which required such a determination. DER did not make a BACT determination as to the permit revision application concerning hydrocarbon emissions since it determined that there was an existing emission limiting standard for volatile organic compounds in Rule 17-2.05(5), which required known vapor emission control devices or systems in the processing and use of such substances. DER also determined that Rule 17- 2.04(6) concerning Prevention of Significant Deterioration (PSD) did not require a BACT determination as to hydrocarbon emissions because the Rule does not apply to hydrocarbon emissions. Also, DER determined that neither the BACT nor the PSD rules were applicable to the modified facility as to sulfur dioxide and particulates because the ambient concentration of those emissions would be unchanged by the proposed modifications. (Testimony of Williams, Exhibit 13) On November 13, 1978, DER issued construction permit No. AC41-6819A to Manatee Energy for the proposed modifications. Conditions attached to the permit were the same as those of the original permit, plus conditions setting forth the modifications of the facility. Notification of the issuance of the permit revision was not made to Petitioner who had been a party to the Chapter 120 proceedings involving the original permit. Neither were the public notice provisions of Rule 17-2.04(9) complied with by DER prior to the issuance of the revised permit. The parties stipulated that opportunity for public participation and comment at the hearing held herein would cure any procedural defect in this regard. (Exhibit 5) Condition 12 of the proposed permit provides that before any startup of the facility, steps must be taken in conjunction with the Manatee Port Authority to correct any fugitive particulate problems and condition 13 states that an operating permit will not be issued until such time as the Port Authority has eliminated the "present violation of the ambient air quality standard with regard to particulates." Identical conditions were set forth in the prior permit based on findings that ambient particulate violations existed from fugitive dust created by road traffic at Port Manatee. As heretofore found above, the particulate violations at Port Manatee are not deemed to constitute violation of ambient air quality standards. Nevertheless, since the original permit was issued, various steps have been taken to reduce such emissions in the Port area by the use of a sweeper, paving of roadway, parking and driveway areas, planting of vegetation, grass, and shrubbery in critical areas, and the like. Although these efforts have shown little success, reasonable efforts are continuing to reduce the problem. (Testimony of McDonald, Subramani, Exhibit 18) Eight public witnesses testified at the hearing. Their concerns primarily focused on such subjects as lack of technology to prevent emission of hydrocarbons, oil spills, inefficiency of small facilities, opposition to "dirty industry" in the county, lack of adequate state rules for storage of hazardous waste, and the accumulation of emissions generally in the Tampa Bay area. One witness pointed out the presence of eagle and pelican habitats in the Bay area near the site in question. A statement on behalf of Sarasota County expressed the view that the modified facility should be subject to the review process of Chapter 380, Florida Statutes, concerning developments of regional impact prior to the issuance of a modified construction permit. (Testimony of Burger, Chiefari, Fernald, H. Greer, Blankenship, Morris, M. Greer, Lincer, Exhibit 22, Hearing Officer Exhibit 1)
Recommendation That a permit for the construction of modifications to the facility which is the subject of this proceeding be granted to the Manatee Energy Company, subject to the conditions heretofore proposed by the Department of Environmental Regulation, dated November 7, 1978, and with a precondition that the applicant fully complies with the provisions of Rule 17-4.05, Florida Administrative Code, prior to such issuance. DONE and ENTERED this 22nd day of May, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mary F. Clark, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Ronald C. LaFace, Esquire Post Office Box 1752 Tallahassee, Florida 32302 Paul Amundsen, Esquire One Biscayne Tower Suite 3636 Two South Biscayne Boulevard Miami, Florida 33131
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint issued against him and, if so, what disciplinary action should be taken.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is a Spanish-speaking native of Cuba with little or no understanding of the English language. He has resided in Miami-Dade County since coming to this country 18 or 19 years ago. In or around 2006, Respondent decided he wanted to start an air conditioning contracting business in Miami-Dade County, and he went to the downtown Miami location of the Miami- Dade County Code Compliance Office (Compliance Office) to inquire about the licensing requirements with which he would have to comply to legally operate such a business in the county. The Compliance Office is responsible for licensing construction contractors (in various trades) operating in Miami- Dade County. The contractors whom the Compliance Office licenses include mechanical contractors doing air conditioning work. Individuals who desire to go into the air conditioning contracting business in Miami-Dade County must complete and submit to the Compliance Office an eight-page "initial application," accompanied by "letters of experience" and a $315.00 application fee. The application is reviewed by the Miami-Dade County Construction Trades Qualifying Board (CTQB). If the CTQB determines that the applicant is qualified to take the licensure examination, the applicant is allowed to sit for the examination. Passing the examination is a prerequisite to licensure. If a passing score is attained, the applicant is notified by the Compliance Office and given the opportunity to submit a "business application" and supporting material (including proof of liability insurance and workers' compensation coverage), accompanied by another $315.00 application fee. If the CTQB approves the "business application," the "applicant is issued a contractor's license number" and given a "competency card" (reflecting such licensure) by the Compliance Office. The applicant then must register with the Department before being able to engage in any contracting work in the county. When Respondent went to the Compliance Office's location in downtown Miami, he was approached by a man carrying a clipboard who spoke Spanish. Respondent was led to believe by the man that he worked for the county (although the man did not present any identification verifying his employment status). The man offered to help Respondent apply for a license, an offer Respondent accepted. After obtaining information from Respondent, the man filled out an application form (which was in English) for Respondent and "kept" the completed form. He then collected from Respondent $350.00. The man told Respondent that Respondent would be receiving his license "by mail." Respondent did nothing further (including taking the licensure examination) to obtain a Compliance Office-issued license for his air conditioning contracting business. Given what he was told by the man (whom he trusted) at the Compliance Office's downtown Miami location, Respondent did not think anything else was required of him, and he acted accordingly. Approximately a month after his visit to the Compliance Office, Respondent received what, on its face, appeared to be a Compliance Office-issued "competency card" indicating that his business, G & G Air Conditioning, Inc., had been issued an "A/C UNLTD" license, License No. 05M000987, with an expiration date of September 30, 2007, and that he was the "qualifying agent" for the business. Although Respondent did not realize it at the time, the "competency card" was a "fraudulent document." The Compliance Office had never in fact issued any license to Respondent or his air conditioning contracting business. Indeed, the Compliance Office had not even received a licensure application, or, for that matter, anything else, from Respondent (including the $350.00 he had paid for what he thought was an application fee). Reasonably, but erroneously, believing that the "competency card" was authentic, Respondent, with the assistance of a friend able to read and write English, completed and submitted the paperwork necessary to register with the Department so that he would be able to engage in the business of air conditioning contracting in Miami-Dade County. Respondent had picked up the application packet (the contents of which were in English) when he had visited the Compliance Office's downtown Miami location. Respondent's friend translated the contents of the application materials for Respondent. For each item requiring a response, Respondent told his friend what entry to make. The final page of the application materials contained the following "Attest Statement," which Respondent signed (after it was translated for him by his friend): I have read the questions in this application and have answered them completely and truthfully to the best of my knowledge. I have successfully completed the education, if any, required for the level of licensure, registration, or certification sought. I have the amount of experience required, if any, for the level of licensure, registration, or certification sought.[1] I pledge to comply with the applicable standards of practice upon licensure, registration, or certification. I understand the types of misconduct for which disciplinary proceedings may be initiated. Among the representations Respondent made in his completed application was that he possessed a valid "local competency card" issued by the Compliance Office. He believed, in good faith, but again, incorrectly, that the "competency card" he had received in the mail was such a card. In accordance with the instructions in the application materials, Respondent attached a copy of this card to his application. The Department received Respondent's completed application for registration on April 20, 2006. On May 23, 2006, the Department issued the registration for which Respondent had applied. Had the Department known that the "competency card" Respondent had attached to his application and had falsely, but not fraudulently, claimed to be valid was in fact a counterfeit that did not accurately represent the local licensure status of Respondent and his business, the Department would have denied Respondent's application for registration. Following a police investigation, two Compliance Office employees, along with a former Compliance Office employee, were arrested for selling "fraudulent licenses." The police alerted the Compliance Office of the results of its investigation in or around July 2006 (after the Department had already granted Respondent's application for registration). The Compliance Office thereupon conducted an audit, which revealed that Respondent was among those who had received a "fraudulent competency card" from the arrestees. Respondent was so notified by letter (sent by the Compliance Office). Prior to his receipt of the letter, Respondent had no idea that the "competency card" he had received in the mail was not what it purported to be. Had he known it was a "fraudulent document" he would have never applied for registration with the Department. The total investigative and prosecutorial costs incurred by the Department in connection with the instant case (excluding costs associated with any attorney's time) was $32.66.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a Final Order revoking Respondent's registration and requiring him to pay the Department $32.66 (representing the Department's investigative and prosecutorial costs, excluding costs associated with attorney time) for the violation of Section 489.129(1)(a), Florida Statutes, Section 455.227(1)(h), Florida Statutes, and Section 489.129(1)(m), Florida Statutes, described above that the Department alleged in its Administrative Complaint and subsequently proved by clear and convincing evidence at the final hearing. DONE AND ENTERED this 22nd day of October, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2007.
Findings Of Fact DER is the agency that has been charged by statute with the responsibility of administering programs to advance the legislative policy to preserve and protect air quality. Chapter 403, Florida Statutes (1977). DER has adopted what is commonly called its "Complex Air Source Rule". The Rule has been codified in Chapter 17-2, Florida Administrative Code. A copy of Chapter 17-2 was received into evidence at the hearing. The Complex Air Source Rule requires that a permit be obtained before certain potential sources of air pollution are constructed or operated. An applicant for a permit is required to provide reasonable - assurances that the proposed project will not violate DER's air quality standards. The rule establishes air quality standards for the following pollutants: sulphur dioxide, particulate matter, carbon monoxide, photochemical oxidants, hydrocarbons, and nitrogen dioxide. The Petitioners own property along Gulf Boulevard in Treasure Island, Pinellas County, Florida. The Department of Transportation has applied to DER for a complex air source permit to engage in a road widening project along Gulf Boulevard. Petitioners are parties to an administrative proceeding currently pending before the Division of Administrative Hearings. The issue in that proceeding is whether DER should grant the Department of Transportation the requested permit. The parties have stipulated that the Petitioners have standing to maintain the instant action. In its Motion to Intervene the Jacksonville Transport tation Authority alleged that it is proposing construction of an expressway system in Duval County, Florida. The Intervenor alleges that it will need to obtain a complex source permit from DER in order to engage in the construction. The Intervenor presented no evidence respecting these allegations at the hearing. DER's rule 17-2.05(3), Florida Administrative Code, provides for complex air source permits. A "complex source" is defined in Rule 17- 2.05(8)(a)(1) as follows: Any facility or group of facilities, which is a source of air pollution by reason that it causes, directly or indirectly, significant increases or emissions of pollutants into the atmosphere or which reasonably can be expected to cause an increase in the ambient air concentrations of pollutants, either by itself or in association with mobile sources. Roadways and widened roadways constitute complex sources under the definition. Permits must be obtained from DER before new roads, or road modifications can be constructed. Rule 17-2.05(8)(c) 3-5. Rule 17-2.05(8)(b) provides: No person shall construct or modify or operate or maintain any complex source of air pollution which results in or causes an increase in ambient pollutant concentrations in violation of the ambient air quality standards. DER may not issue a complex air source permit unless it is reasonably assured that the proposed project will not violate the ambient air quality standards set out in Rule 17-2.06, and in Table 3 thereof. The applicant is required to submit such information as DER requires to make its determination. Rule 17- 2.05(8)(d) provides: Any person seeking a permit shall submit such information that is necessary for the Department to determine that the complex source will not cause a violation of Ambient Air Quality Standards and submit to the Department such information that shall include, but not be limited to: The nature and amounts of pollutants to be emitted or caused to be emitted by the complex source, or by associated mobile sources, and an air quality impact statement. The location, design, construction and operation of such facility. The Petitioners contend that DER has a practice of requiring applicants for complex source permits to submit information, and to provide the requisite reasonable assurances only with respect to projected emissions of carbon monoxide. It is alleged that DER does not require applicants to submit data respecting other pollutants, or to provide any reasonable assurances with respect to the other pollutants described in DER's Ambient Air Quality Standards. It is further alleged that DER evaluates only expected emissions of carbon monoxide when evaluating an application for a complex air source permit. These allegations are not supported by the evidence. DER has a policy of requiring applicants for complex air source permits to submit in the initial application only data respecting projected carbon monoxide emissions. With respect to automobile related pollutants, carbon monoxide is known as a controlling pollutant. Automobile related pollutants essentially are carbon monoxide, hydrocarbons, and nitrogen oxides. A decrease of carbon monoxide emissions causes a greater decrease in hydrocarbon emissions. A decrease in carbon monoxide emissions causes a decrease of nitrogen oxide emissions at a slightly reduced percentage. Changes in ambient levels of these related pollutants can be predicted by considering carbon monoxide data. Furthermore, high concentrations of carbon monoxide are a localized problem. High carbon monoxide readings generally reflect one or just a few sources of carbon monoxide emissions within a localized area. High readings of hydrocarbons, nitrogen dioxide, and photochemical oxidants, on the other hand, are not localized, but rather reflect a number of pollutant emitting activities over a broad area. DER has established monitoring stations, where concentrations of pollutants are measured. Data obtained from these stations is utilized to provide DER with information as to areas that experience high concentrations of hydrocarbons, nitrogen oxides, and photochemical oxidants. When a project is proposed in such an area, DER requires applicants to submit ad ditional data respecting projected emissions of these pollutants that would result from the project. Such additional data has been requested by the Department in several cases. Where there is no indication that concentrations of these pollutants are occuring in an area, DER is able factually to assure itself that a given project will not result in violations of the standards respecting these pollutants by considering the carbon monoxide data. It is for this reason that applicants are not initially required to submit data respecting pollutants other than carbon monoxide. DER is able to assure itself that roadway projects will have no impact upon concentrations of sulphur dioxide and particulate matter because these are not pollutants that are associated with automobiles. DER's policy of not requiring applicants to submit data respecting pollutants other than carbon monoxide does not relieve an applicant of its duty to provide information necessary for DER to determine that the proposed project will not cause violations of any of the ambient air quality standards. The Department utilizes its own data in making such determinations, and if a project is proposed in an area where there are high concentrations of pollutants other than carbon monoxide, DER requires the submission of further data. DER's practices and Policies are thus not contrary to its rules, and the practices and policies do not constitute rule making.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department was the state agency responsible for receiving applications for, and issuance of, permits for the construction of air curtain incinerators in the State of Florida. Respondent Daughtrey, the applicant for a permit for the construction of an air curtain incinerator, is a corporation authorized to do business in the State of Florida and is located at 6816 Southwest County Road (C.R.) 769, Arcadia, DeSoto County, Florida. The property upon which the proposed air curtain incinerator would be placed is located approximately two miles north of the intersection of C.R. 761 and C.R. 769, southwest of Arcadia, DeSoto County, Florida and is owned by Harry and Hilda Johnson. On January 24, 1994, Daughtrey submitted a permit application to the Department's Southwest District Office for a permit to construct an air curtain incinerator (incinerator) in DeSoto County, Florida. On February 22, 1994, August 9, 1994, and September 8, 1994, the Department requested additional information from Daughtrey concerning the application. On July 13, 1994, August 16, 1994, and September 30, 1994, Daughtrey furnished the Department the requested information. The application was considered complete on September 30, 1994. On November 2, 1994, after Daughtrey had complied with the several requests for additional information, the Department issued an Intent To Issue Permit No. AC14-244330 to Daughtrey for the construction of an incinerator in DeSoto County, Florida. On November 18, 1994, Petitioners filed a Petition For Formal Administrative Hearing with the Department challenging the Department's Intent To Issue Permit No. AC14-244330 to Daughtrey for the construction of an incinerator in DeSoto County, Florida. On July 6, 1995, the Department issued an amended Intent To Issue Permit No. AC14-244330 to Daughtrey for the construction of an incinerator in DeSoto County, Florida. The amendment was necessary to change the name of the manufacturer of the incinerator. The proposed permit would authorize the construction of an incinerator with a clay strata burning pit having dimensions 10 feet wide x 11 feet deep x 35 feet long. The dimensions of the clay strata burning pit are in accordance with Rule 62-296.401(6)(d), Florida Administrative Code. Emissions from the incinerator are controlled by a curtain of forced air at a very high static pressure over and around the burning pit. The permit application proposed the use of an air curtain blower along with a manifold to provide forced air to the burning pit. The combustion temperature range for the burning pit ranges from approximately 2,000 to 2,800 degrees Fahrenheit. As requested by Daughtrey, the proposed permit would allow a maximum charging rate of 4.5 tons per hour on a daily average which, based on the proposed 8 hours of operation per day, would equal a burning rate of 36 tons per day and would not exceed the tons per day burning rate authorized under Rule 62- 296.401(6)(i), Florida Administrative Code. As requested by Daughtrey, the proposed permit limits the hours of operation to 1,088 hours per year. The proposed permit, in accordance with Rule 62-296.401(6)(e), Florida Administrative Code, would allow the burning of only wood products consisting of trees, logs, large brush, stumps relatively free of soil, unbagged leaves and yard trash, tree surgeon debris, and clean dry lumber such as pallets. Daughtrey proposes the burning of only wood products as set out in the above-referenced rule and proposed permit. The proposed permit, in accordance with Rule 62-296.401(6)(f), Florida Administrative Code, expressly prohibits the incineration of materials such as sawdust, paper, trash, tires, garbage, plastics, liquid wastes, chemically treated or painted wood, and other similar materials. Daughtrey does not propose the burning of any of the materials set out in the above-referenced rule or the proposed permit. The proposed permit allows the use of virgin oil, natural gas or liquefied petroleum gas to start the fire as provided for in Rule 62- 296.401(6)(g), Florida Administrative Code. Daughtrey proposes the use of diesel fuel (considered by the Department to be a virgin oil) to start the fire. The proposed permit allows visible emissions during start-up periods (not to exceed the first thirty minutes of operation) of an opacity up to 35 percent averaged over a six minute period as provided for in Rule 62- 296.401(6)(b), Florida Administrative Code. The proposed incinerator is designed to meet the requirements of the above-referenced rule and Daughtrey proposes to meet the emission requirements of the above-referenced rule during start-up periods. The proposed permit limits visible emissions outside of start-up periods to no more that five percent opacity, with visible emissions of up to 20 percent opacity allowed up to three minutes in any one hour as provided for in Rule 62-296.401(6)(a), Florida Administrative Code. The proposed incinerator is designed to meet the requirements of the above-referenced rule and Daughtrey proposes to meet the visible emissions requirements outside of start-up periods as provided in the above-referenced rule. The proposed permit prohibits starting the incinerator before sunr ise and requires that all charging of the incinerator be completely stopped before sunset as required by Rule 62-296-401(6)(h), Florida Administrative Code. Since Daughtrey proposes an eight-hour day operation, Daughtery proposes charging the incinerator after sunrise and to completely stop charging the incinerator before sunset. The proposed permit limits the height of the ash in burning pit to one-third of the depth of the pit or to a point where the ash begins to impede combustion, whichever occurs first as provided in Rule 62-296.401(6)(m), Florida Administrative Code. Daughtrey proposes to remove the ash when it reaches one- third the height of the burning pit or when it reaches a point where the ash begins to impede combustion in accordance with the above-referenced rule. Furthermore, Daughtrey proposes, in accordance with Rule 62-296.401(6)(l), Florida Administrative Code, not to allow the material loaded into the incinerator to protrude above the air curtain. The proposed permit requires the maintenance of a operating log which must contain the following information: total charges total materials charged (tons) daily operating hours (start and stop times) a calendar year cumulative total for hours of operation (recorded on monthly basis) daily average hourly charging rate type of maintenance performed comments and operator's signature The daily operating log shall be maintained at the facility for at least two years and must be available for inspection by the Department at all times. Daughtrey proposes maintaining an operating log in accordance with the above- referenced rule and proposed permit. The proposed permit requires that all reasonable precautions be undertaken to prevent and control the generation of unconfined emissions of particulate matter in accordance with Rule 62-296.310(3), Florida Administrative Code. These precautions include requirements that: (a) ash must be wetted with water prior to removal; (b) a front-end loader must be utilized to remove ash from the bottom of the pit; and (c) water be applied as necessary to the plant grounds. Daughtrey proposes to take all reasonable precautions to prevent and control the generation of unconfined emissions of particulate matter as set out above. To ensure that the visible emission limitations are not exceeded and objectionable odors not generated, the proposed permit requires that the incinerator's fan shall continue to operate after the last charge of the day until all combustion (presence of any flame or smoke) has ceased. Daughtrey proposes to continue the operation of the incinerator's fan in accordance with the above-referenced rule and proposed permit. The proposed permit, in accordance with Rules 62-297.340(1)(a) and 62- 297.570(2), Florida Administrative Code, requires that the incinerator shall be tested for visible emissions within 30 days after the date the incinerator is placed into operation and that the test report shall be submitted within 45 days of testing to the Department's Southwest District Office in conjunction with an operating permit application. The proposed permit requires that the testing of visible emissions must be conducted within 90-100 percent of the maximum allowable charging rate of 4.5 tons/hour and such testing of emissions must be accomplished when the incinerator is charged with a mixture of materials as listed in Specific Condition 8 of the proposed permit. The proposed permit provides that the visible emission test report shall include the charging rate, a description of the materials burned, starter fuel used and a copy of the daily operating log for the test day. The application included an emission factor of 13 pounds per ton for uncontrolled emissions of particulate matter for a total of 58.5 pounds per hour of particulate matter per hour using the permitted charging rate of 4.5 tons per hour and 2 pounds per ton for controlled emissions of particulate matter for a total of 9.0 pounds per hour of particulate matter using the permitted charging rate of 4.5 tons per hour. The Department estimated the emissions at approximately 9 pounds per hour of particulate matter. The estimated emissions of 9.0 pounds per hour of particulate comes within the emissions limits set forth in Rule 62-296.310(1)(b), Florida Administrative Code. The incinerator is located in excess of 300 feet from any preexisting occupied building located off site as required by Rule 62-296.401(6)(j), Florida Administrative Code. The incinerator will not have a control gate or check-in station but, in accordance with Rule 62-296.401(6)(k), Florida Administrative Code, will not be operated within 1000 feet of any active portion of a landfill. The proposed permit provides that, in accordance with Rule 62- 296.401(1)(b), Florida Administrative Code, no objectionable odor will be allowed. Daughtrey's proposed operation of the incinerator is designed to prevent objectionable odors. Upon being removed from the burning pit, the ash generated by the project will be placed in a holding area close to the burning pit, covered with soil. Subsequently, the ash and soil will be mixed and spread over the Johnsons' property. There is no well on the property. Water to be used in the operation (wetting ashes and fire prevention) will be supplied using a 3,000 gallon water tank furnished by Daughtrey. Daughtrey has furnished a Fire Prevention Plan. There was no evidence to show that the project would result in any type of water pollution. The permit application included the manufacturer's plans and specifications for the manifold and burner fan. The permit application included design drawings and specifications for the burning pit as prepared by the Daughtrey's registered professional engineer. There is sufficient evidence to show that Daughtrey has provided the Department with reasonable assurance that the proposed project will comply with the appropriate provisions of Chapters 62-4 and 62-200 through 62-297, Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order granting Daughtrey's application and issue Permit No. AC14-244330, subject to all conditions, including but not limited to the specific conditions, set forth in the Intent To Issue, for the construction of an air curtain incinerator to be located approximately two miles north of the intersection of C.R. 761 and C.R. 769, southwest of Arcadia, DeSoto County, Florida RECOMMENDED this day 29th of December, 1995, at Tallahassee, Florida. WILLIAM R. CAVE, 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 29th day of December, 1995. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 94-6934 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Department and Petitioners in this case. Proposed Findings of Fact of Petitioners Sue Ann Eagleton's and Susie Hayden. Proposed findings of fact 1, 2, 6, 10, 28-32, 34-37, and 42-48 are neither relevant nor material to this proceeding. Proposed findings of fact 3-5, 7-9, 11-18, 49 and 50 are not supported by evidence in the record. Proposed findings of fact 19-27 are adopted in substance as modified in Finding of Fact 14, otherwise these proposed findings are not supported by evidence in the record. Proposed findings of fact 33 and 38-41 are adopted in substance as modified in Findings of Fact 8, and 31, respectively. Proposed Findings of Fact of Petitioners DeSoto Citizens Against Pollution, Inc., Barbara Buck, Alan Behrens, John Marin and Pat Marin. Proposed findings of fact 1, is adopted in substance as modified in Finding of Fact 31. Proposed findings of fact 2-4, 8-10, 12-13, 15-20 and 22-28 are neither relevant nor material to this proceeding. Proposed findings of fact 5-7, and 11 are not supported by evidence in the record and additionally, are neither relevant nor material to this proceeding. Proposed findings of fact 14 and 21 are not supported by evidence in the record. Proposed Findings of Fact of Respondent Department. 1. Proposed findings of fact 1 through 35 are adopted in substance as modified in Findings of Fact 1 through 37 of the Recommended Order. Respondent Daughtrey elected not to file any Proposed Findings of Fact. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Blvd. Tallahassee, Florida 32399-3000 Kenneth Plante, Esquire Department of Environmental Protection Douglas Building 3900 Commonwealth Blvd. Tallahassee, Florida 32399-3000 W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Blvd. Sarasota, Florida 32399-3000 Diane Daughtrey Qualified Representative c/o Dwight Daughtrey Construction, Inc. 6816 SW C.R. 769 Arcadia, Florida 33821 William Mulloy, Esquire 7025 Manasota Key Road Englewood, Florida 34223 Alan Behrens Qualified Representative 4070 Armadillo Trail Arcadia, Florida 33821
The Issue The issue in this case is whether Petitioner should be issued an air construction permit authorizing its Crystal River steam generating plant Units 1 and 2 to co-fire a five to seven percent blend of petroleum coke with coal.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioner, Florida Power Corporation (FPC), is an investor-owned public utility engaged in the sale of electricity to approximately 1.2 million customers. Among others, it operates the Crystal River Power Plant consisting of five electric-generating units in Citrus County, Florida. Units 1, 2, 4, and 5 are coal-fired, while Unit 3 is a nuclear unit. Respondent, Department of Environmental Regulation (DEP), is a state agency charged with the statutory responsibility of regulating the construction and operation of business enterprises in a manner to prevent air pollution in excess of specified limits. Among other things, DEP issues air construction permits for a limited period of time to undertake and evaluate initial operations of a business enterprise; long- term approval subsequently is available under an air operation permit. As a part of this process, and pursuant to federal law, DEP engages in a Prevention of Significant Deterioration (PSD) review to determine if non-exempt alterations to major facilities result in net emission increases greater than specified amounts. Under certain conditions, however, the use of alternative fuels or raw materials are exempted from PSD review. Intervenor, Legal Environmental Assistance Foundation, Inc. (LEAF), is a non-profit Alabama corporation licensed to do business in the State of Florida. It is a public interest advocacy organization whose corporate purposes include securing environmental and health benefits from clean air and water. Intervenor, Sierra Club, Inc. (Sierra Club), is a public interest advocacy organization incorporated in California and doing business in Florida. Its corporate purposes include securing the environmental and health benefits of clean air and water. On December 26, 1995, FPC filed an application with DEP for an air construction permit authorizing it to burn a blend of petroleum coke and coal in its existing coal-fired Units 1 and 2 at the Crystal River Power Plant in Citrus County, Florida. In the application, FPC did not address PSD review since it believed it qualified for an exemption from PSD permitting under Rule 62- 212.400(2)(c)4., Florida Administrative Code. That rule exempts from PSD review the [u]se of an alternative fuel or raw material which the facility was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975. After reviewing the application, DEP issued an Intent to Deny on June 25, 1996. In that document, DEP stated that [a]ccording to information in Department files, both Units 1 and 2 operated on liquid fuel prior to January 6, 1975. Very substantial modifications of the boilers and pollution control equipment were implemented thereafter by [FPC] to convert the units to coal-firing mode. Therefore the project does not qualify for the exemption from PSD review claimed by the company. Contending that it was entitled to an exemption from PSD review and therefore a permit, FPC filed a Petition for Administrative Hearing on October 4, 1996. In its Petition, FPC generally alleged that petroleum coke is a product with characteristics very similar to coal; Units 1 and 2 were capable of accommodating coal and petroleum coke as of January 6, 1975; and contrary to the statements in the Intent to Deny, any boiler modifications and pollution control improvements to those units were minor and not substantial. The Permitting Program The PSD program is based on similar PSD requirements found in the federal Clean Air Act of 1970, as amended (the Act). The permitting program is a federally required element of DEP's State Implementation Plan (SIP) under Section 110 of the Act. DEP has fulfilled the requirement of administering the federal PSD program by obtaining approval from the Environmental Protection Agency (EPA) of state PSD regulations that meet the requirements of federal law. The requirements of the SIP are found in Chapters 62-204, 62-210, 62-212, 62-296, and 62-297, Florida Administrative Code. Chapter 62-212 contains the preconstruction review requirements for proposed new facilities and modifications to existing facilities. Rule 62-212.400, Florida Administrative Code, establishes the general preconstruction review requirements and specific requirements for emission units subject to PSD review. The provisions of the rule generally apply to the construction or modification of a major stationary source located in an area in which the state ambient air quality standards are being met. Paragraph (2)(c) of the rule identifies certain exemptions from those requirements. More specifically, subparagraph (2)(c)4. provides that a modification that occurs for the following reason shall not be subject to the requirements of the rule: 4. Use of an alternative fuel or raw material which the facility was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975. The rule essentially tracks verbatim the EPA regulation found at 40 CFR 52.21(b)(2)(iii)(e)1. Therefore, in order to qualify for an exemption from PSD review, FPC must use "an alternative fuel . . . which [Units and 2 were] capable of accommodating before January 6, 1975." In addition, FPC must show that "such change would [not] be prohibited under any federally enforceable permit condition which was established after January 6, 1975." Contrary to assertions by Respondent and Intervenors, in making this showing, there is no implied or explicit requirement in the rule that FPC demonstrate that it had a subjective intent to utilize petroleum coke prior to January 6, 1975. The Application and DEP's Response In its application, FPC proposes to co-fire a five percent (plus or minus two percent) blend of petroleum coke with coal, by weight. It does not propose to make any physical changes to Units 1 and 2 to utilize petroleum coke. Also, it does not request an increase in any permitted air emission rates for the units because it can meet its current limits while burning the proposed blend rate of petroleum coke with coal. The application included extensive fuel analysis and air emissions data obtained from a DEP-authorized petroleum coke trial burn conducted from March 8 until April 4, 1995. Although it is not proposing to make physical changes to the plant, FPC applied for the air construction permit in deference to DEP's interpretation that such a permit is required when a permittee utilizes an alternative fuel. After completing his initial review, the DEP supervisor of the New Source Review program acknowledged in a memorandum to his supervisor that FPC was "entitled to a permit" but suggested that FPC be asked to "change their minds." Before the permit was issued, however, DEP changed its mind and issued an Intent to Deny on the ground that prior to January 6, 1975, Units 1 and 2 were not capable of accommodating coal or a blend of petroleum coke with coal. The Units Unit 1 has a generating capacity of 400 MW and commenced operation as a coal-fired plant in October 1966. It fired coal until March 1970, fuel oil until October 1978, and then again fired coal from June 1979 to the present. Unit 2 has a generating capacity of 500 MW and commenced operations as a coal-fired plant in November 1969. It fired coal until September 1971, fired fuel oil from December 1971 until October 1976, and then again fired coal from December 1976 to the present. Original equipment installed during the initial construction of Units 1 and 2 included the following: the barge unloader, which removes coal from barges that deliver coal from New Orleans; the stacker/reclaimer, which stacks the coal into piles and then reclaims the coal by directing it from the coal piles to conveyors that deliver it to the units; the crusher house, which has two crushers that crush the coal on the way to units down to nuggets no larger than three-quarters of an inch in diameter; the silos, which store the crushed coal; the feeders, located below the silos, which regulate the flow of coal from the silos to the pulverizers; the pulverizers, which grind the coal in preparation for combustion and then direct the pulverized coal to the burners, which are located on the corners of each unit's boiler; and the boilers, where the fuel is combusted, imparting heat to water contained in the waterwalls and thereby producing steam for electrical generation. The foregoing equipment was reflected in the plant's construction specifications and remains in operation, on site, at the plant. Components and parts of this equipment have been maintained, replaced, and repaired periodically. The original operations manual for the barge unloader, stacker/reclaimer, crushers, and conveyor systems are still kept and utilized on site. The primary fuel utilized in Units 1 and 2 is coal, although these units also co-fire from one to five percent number fuel oil and used oil. The combustion of fuel in Units 1 and 2 results in air emissions. As a result of changing regulatory requirements, there have been substantial improvements to the units' air pollution control capabilities since original construction. Existing Air Permits Unit 1 currently operates under Air Operation Permit Number A009-169341. Unit 2 operates under Air Operation Permit Number A-009-191820. Both permits were amended by DEP on October 8, 1996. Although each air operation permit contains an expiration date that has been surpassed, the permits remain in effect under DEP's regulations during the pendency of the agency's review of FPC's applications for air operation permits under the new Title V program found in Chapter 62-213, Florida Administrative Code. The air operation permits governing Units 1 and 2 contain mass emission rate limitations of 0.1 pounds/million (mm) British thermal units (Btu) or particulate matter (PM), and 2.1 pounds/mmBtu for sulfur dioxide. These mass emission rate limitations restrict the amount of each pollutant (measured in pounds) that is to be released into the atmosphere per million Btu of heat energy by burning fuel. The PM limitation is applicable to Units 1 and 2 under state regulations originally promulgated in 1972. The sulfur dioxide limitation was established in 1978 as a result of a PSD air quality analysis performed in conjunction with the permitting of Units 4 and 5. Prior to 1978, sulfur dioxide limits promulgated early in 1975 imposed a limit of 6.17 pounds/mmBtu on coal-fired operations at Units 1 and 2. Because Units 1 and 2 were subjected to a PSD air quality impact analysis along with Units 4 and 5, the units' sulfur dioxide emission limits were reduced from 6.17 to 2.1 pounds/mmBtu. The 2.1 pounds/mmBtu sulfur dioxide emission limitation applicable to Units 1 and 2 was set with the intention of assuring no adverse air quality impacts. The sulfur dioxide impacts associated with Units 1, 2, 4, and 5, after collectively being subjected to PSD air quality review, were much lower than the sulfur dioxide impacts previously associated with only Units 1 and 2. Is Petroleum Coke an Alternative Fuel? Petroleum coke is a by-product of the oil refining process and is produced by many major oil companies. The oil refineries refine the light ends and liquid products of oil to produce gasoline and kerosene, resulting in a solid material that resembles and has the fuel characteristics of coal. Both historically and presently, it has been common- place for electric utilities to rely on petroleum coke as fuel. For example, during the period 1969 through 1974, regular shipments of petroleum coke were sent to various electric utility companies throughout the United States to be co-fired with coal. In addition, DEP has issued permits for Tampa Electric Company to co-fire petroleum coke with coal. In 1987 and again in 1990, the EPA promulgated air- emission regulations which specifically define "coal" as including "petroleum coke." DEP has incorporated these regulations by reference at Rule 62-204.800(7)(b) 3. and 4., Florida Administrative Code. Given these considerations, it is found that petroleum coke constitutes an alternative fuel within the meaning of Rule 62-212.400(4)(c)4., Florida Administrative Code. Were the Units Capable of Accommodating the Fuel? Petroleum coke and coal are operationally equivalent. Petroleum coke can be handled, stored, and burned with the existing coal handling equipment at Units 1 and 2. The barge unloader, stacker/reclaimer, storage areas, conveyors, silos, crusher house, pulverizers, and burners, all installed prior to 1975, can handle petroleum coke. The equipment comprising Units 1 and 2 does not require any modification in order to burn a blend of petroleum coke with coal. Also, there will be no net impact on steam generator design or operation, and there will be no decline in performance or adverse impacts to the boilers. FPC could have co-fired petroleum coke with coal historically without making physical alterations or derating the units. Similarly, petroleum coke can be fired in Units 1 and 2 now without alterations or derating. These findings are further supported by Petitioner's Exhibits 35 and 36, which are reference books published in 1948 and 1967 by the manufacturer of the equipment installed at Units 1 and 2. They confirm that prior to 1975, petroleum coke was suitable for the manufacturer's boilers and pulverizers. Unrebutted testimony demonstrated that Units 1 and 2 could have co-fired petroleum coke with oil during the oil-firing period. Even when Units 1 and 2 fired oil instead of coal for a period of time in the 1970s, the coal-handling equipment remained in existence on-site and available for use, and both units remained readily convertible to their original, coal-firing modes. Because the plant remained capable of accommodating coal, it also remained capable of accommodating petroleum coke. In light of the foregoing, it is found that co-firing petroleum coke with coal at Units 1 and 2 could have been accomplished prior to January 6, 1975. Are there Post-January 6, 1975, Prohibitions? There is no evidence to support a finding that a federally enforceable permit condition was establshed after January 6, 1975, that prohibits co-firing petroleum coke with coal. I. Miscellaneous By letters dated February 14 and June 2, 1997, the EPA Region IV office replied to inquiries from DEP regarding the instant application. The conclusions reached in those letters, however, were based on a misapprehension of the facts in this case. Therefore, the undersigned has not credited these letters. To prove up its standing, LEAF introduced into evidence a copy of its articles of incorporation and a brochure describing the organization. In addition, it asserted that the air quality for its members would be "at risk" if Units 1 and 2 did not meet PSD standards and air emissions were "increased." Intervenor Sierra Club proffered that a substantial number of members "live, work, or recreate in the vicinity of the Crystal River Units 1 and 2, and in the area subject to the air emissions by those units," and that those members "would be substantially affected by the proposed exemption."
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting the application of Florida Power Corporation and issuing the requested air construction permit. DONE AND ORDERED this 23rd day of September, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1560 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1997. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 James S. Alves, Esquire Post Office Box 6526 Tallahassee, Florida 32314-6526 W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Gail Kamaras, Esquire 1115 North Gadsden Street Tallahassee, Florida 32303-6327 Jaime Austrich, Esquire Post Office Box 1029 Lake City, Florida 32056-1029 F. Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issues in this case are whether each of the two respondents practiced contracting and electrical contracting without a license in violation of Subsections 489.113(2), 489.127(1)(f), 489.531(1), Florida Statutes (2004),1 and, if so, what penalty, if any, should be imposed pursuant to Subsections 455.228(1) and 489.13(3).
Findings Of Fact Petitioner is the state agency defined in Subsection 489.105(2) that is responsible for regulating the practice of contracting and electrical contracting pursuant to Subsection 455.228(1). Neither of the respondents has ever been licensed as either a contractor or an electrical contractor. On April 14, 2005, Mr. Adams and Bay Breeze Maintenance, LLC (Bay Breeze), practiced contracting and electrical contracting within the meaning of Subsections 489.105(3) and (6) and 489.505(9) and (12). Mr. Adams, as agent for Bay Breeze, submitted to Mr. Christopher King, as agent for Dome Flea Market in Venice, Florida, a written proposal to remodel part of the Dome Flea Market for a cost not to exceed $60,000. The proposed remodeling involved an upgrade of a snack bar into a grill and bar to be known as the Sawmill Grill. In relevant part, the proposed remodeling required performance of plumbing, carpentry, and electrical contracting, including the installation of electrical wiring and electrical fixtures. Between April 14 and May 20, 2005, Mr. King paid approximately $39,350 to the respondents for the proposed remodeling job. On April 14, 2005, Mr. King paid $8,000 and $1,500 by respective check numbers 7725 and 7726. On April 19, 2005, Mr. King paid $8,000 and $1,700 by respective check numbers 7730 and 7731. On May 3 and 20, 2005, Mr. King paid $5,150 and $14,000 by respective check numbers 7742 and 7770. The respondents never actually performed any remodeling work. Mr. Adams testified that Mr. King forged the written proposal and that neither Mr. Adams nor Bay Breeze submitted a proposal for the remodeling project. That testimony was neither credible nor persuasive. The financial harm to the public was substantial. Mr. Adams and Bay Breeze have not paid any restitution. Petitioner incurred investigative costs, excluding attorney fees and costs, in the amount of $844.07. The investigative costs are reasonable within the meaning of Subsection 489.13(3).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Mr. Adams and Bay Breeze guilty of committing the violations alleged in each Amended Administrative Complaint and imposing an aggregate administrative fine against Mr. Adams and Bay Breeze, collectively, in the amount of $10,000. DONE AND ENTERED this 12th day of March, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 2007.
The Issue Sloan Construction Company, Inc. (Sloan) has applied to the Department of Environmental Regulation (DER) for a permit to relocate its drum mix asphalt plant, a source of air emissions, from its current site in Flagler County to Brevard County. The issue in this proceeding is whether that permit should be granted. More specifically, it must be determined whether the proposed activity will meet applicable statutory and regulatory standards. An ancillary issue regarding Respondent, Sloan's entitlement to attorneys fees and costs pursuant to Section 120.57(1)(b)5., F.S. is addressed in a separate order entered this same date.
Findings Of Fact Sloan Construction Company, Inc., (Sloan) is a highway contractor doing business in the southeastern United States. It operates asphalt plants in South Carolina and in Florida; in addition to the portable plant at issue here, its Florida plants, permitted by the Department of Environmental Regulation (DER) are in Jacksonville, St. Augustine, and Orlando. On December 9, 1991, Sloan applied to DER to relocate its portable asphalt plant from Flagler County to Brevard County. The company has a contract with the Florida Department of Transportation for work on I-95 and on A-1-A in Brevard County and needs the plant for that work. This same plant was initially permitted by DER's southwest district office on November 9, 1989 for operation in Highlands County. Pursuant to subsequent permits the plant moved to Lake County in 1990, and to Flagler County in 1991. Each time it was moved, the relevant DER district office reviewed the air pollution impact before granting the permit. The permit will expire in November 1994. A consent order was entered in December 1990 between Sloan and DER regarding violations in May and June 1990. The violations described in the consent order were that visible emissions exceeded 20% opacity, and the metal tanks serving as the scrubber final settling basin were low on water with large amounts of particle flotation. The company paid a fine of $7,750 and made the DER-required changes in its maintenance and operation. The company monitors its own system and makes necessary repairs and improvements when problems are anticipated. When the scrubbers fail to operate properly, they are shut down and fixed. The scrubbers do not involve water discharge as they are a closed circuit system. This permit application is not requesting approval to discharge into the waters of the state. For this permit DER requires annual stack testing to determine whether the plant is meeting air emission limitations for particulates (.04 grains per dry standard cubic foot) and opacity (20%). Sloan retains an engineering consultant, Bottorf and Associates, to conduct those tests. The last stack test, May 1991, indicates that the emissions meet the standards. It is anticipated that this same plant will perform just as well in Brevard County. However, a proposed condition of the new permit is that another stack test be performed within 20 days of commencement of operation, in order to assure that equipment is functioning properly after the move. A condition of the existing permit is that unconfined emissions of particulate matter from vehicular movement, loading, construction or demolition be controlled by paving of traffic areas and the sprinkling of stockpiles with water. Sulphur dioxide is considered to be the pollutant of greatest concern in a facility such as this. Sulphur dioxide is generated from the burning of fuel containing sulphur. The applicant has agreed to reduce sulphur content of its fuel from 1.8% to .5%, and to reduce its sulphur dioxide emission limit from 96 tons per year to 26 tons per year. No DER rule requires air pollution source modelling for an asphalt plant or other minor source (defined as less than 100 tons per year of a single pollutant emission). However, because of the proximity of the proposed facility to the existing Orlando Utilities Commission (OUC) power plant, and public concern about sulphur dioxide emissions in the area, DER air permitting engineer, John Turner, ran SCREEN models to predict the combination of emissions from this proposed facility and other sources in the area. The total projected sulphur dioxide ambient air level from the SCREEN models run by John Turner for the Sloan facility at 26 tons per year included four other local sources, and included a more specific model for the nearby OUC plant, which model considered additional sources. John Turner's modelling yielded 241.63 micrograms/ cubic meter on a 24 hour basis. The ambient air quality standard is 260. John Turner's modelling yielded a conservative estimate, that is, it most likely over-predicted sulphur dioxide levels. The model assumed no reduction in sulphur dioxide from aggregate in asphalt plant dryers; tests actually reflect a 70-89% reduction, and the U.S. Environmental Protection Agency (EPA) assumes a 50% reduction when no tests are available. The model assumed all sources would be operating 24 hours a day, when they actually operate for a more limited period. Moreover, the model assumed all sources would be operating at the same time at their maximum permitted rates. Turner's assumptions also assumed worst case meteorological conditions, such as wind inversions, that would combine plumes from two sources in opposite directions. In the OUC model used by Turner a worst case sulphur dioxide background of 44 was assumed when the normal background level would be much lower. "Downwash" is the effect of wind hitting a large, generally flat, structure or impediment, rising to go over the top and then dropping---an effect which would cause a pollution plume to drop to the earth more quickly. The County's expert conceded that John Turner's modelling was conducted properly, but criticized the model for failing to consider downwash. John Turner and his supervisor, Allen Zahm, did consider downwash but they suggest that it would lower, not raise, the ambient air level, as downwash tends to retain the concentration closer to the stack. The County's expert stated that he did not know that downwash would actually occur on the site. As provided in the permit conditions, the applicant intends to use "on specification" used oil for fuel. "On-specification" used oil must meet standards not to exceed certain allowable levels for arsenic, cadmium, chromium and other substances. There is no allowable level of PCB; that is, the standard level is zero. The sulphur and heavy metal content of the fuel is monitored through certificates of quality required by DER. Sloan has complied with the permit requirements as to its fuel quality. The proposed site for the facility is in Delespine, north of Cocoa in Brevard County, near Highway U.S. 1 and near the Indian River Lagoon. The plant will be approximately 700 meters southwest of an existing mid-sized power plant, OUC, and approximately a mile northwest of a Florida Power and Light Company power plant. Adjacent to the site is a large residential community, Port St. John, with approximately 18,000 residents. The community has expanded rapidly as a result of the availability of affordable housing, and it includes a mix of elderly citizens and young families with children. The residents are genuinely and sincerely concerned for their health and safety and the character of their neighborhoods. They provided anecdotal testimony of increased respiratory problems and negative environmental impacts which they attribute to the power plants and other industrial uses in the area. They are concerned about increased traffic and problems of evacuation in the event of an emergency. They are worried that the traffic and emissions from the proposed facility will cause special problems for students at the nearby elementary schools. As real and sincere as those concerns are, they do not overcome the substantial evidence presented by the applicant that the proposed permit meets the specific requirements of the responsible state agency. The citizens' concerns are classic land use issues, which through zoning and land use regulation, are the jurisdiction of their local governments.
Recommendation Based on the foregoing, it is hereby, recommended that the Department grant Sloan's application to amend its operating permit for its asphalt plant (Permit No. 167794) with the change in permit conditions as noticed by the Department (Sloan Ex. #27), and with the condition, as stipulated, that the stack for air emissions from the facility will be 42.5 feet in height above ground level. RECOMMENDED this 22nd day of June, 1992, in Tallahassee, Leon County, Florida. MARY CLARK 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 22nd day of June, 1992. COPIES FURNISHED: Petitioners #92-1801 Thomas Lanham Asst. County Attorney Brevard County Attorney's Office Building C, Suite 346 2725 St. Johns Street Melbourne, FL 32940 #92-1802 Joseph & Katherine Tidwell 4000 Delespine Road Cocoa, FL 32927 #92-1803 Carol L. Harris 6040 Gilson Avenue Cocoa, FL 32927 #92-1804 Harry S. Rice 931 Galleon Street Cocoa, FL 32927 #92-1805 Joseph F. DeBarry 950 Galleon Street Cocoa, FL 32927 #92-1806, 92-1807, 92-1813 (Counsel for Port St. John Homeowners Assn., Jessie Fleming, & Don L. Williams) F. Michael Driscoll, Esquire 1530 S. Federal Highway Rockledge, FL 32955 #92-1808 Bea Polk 101 River Park Blvd. Titusville, FL 32780 #92-1809 Russell Harris 6040 Gilson Avenue Cocoa, FL 32927 #92-1811 Opal Hall 7655 South U.S. 1 - Lot 17 Titusville, FL 32780 #92-1812 John Ferguson 7020 Song Drive Cocoa, FL 32927 #92-1814 First Baptist Church of Port St. John Joseph E. Tidwell 4000 Delespine Road Cocoa, FL 32927 #92-1815 David & Rhonda Tidwell 4530 Robert Street Cocoa, FL 32927 #92-1816 Felicia Cardone, et al. 7230 N. U.S. Hwy. 1, #106 Cocoa, FL 32927 #92-2471 James M. Shellenberger, et al. Sunrise Village Condominium 7040 N. U.S. Hwy. 1, Unit #101 Cocoa, FL 32927 Respondents (for Sloan Construction Company, Inc.) F. Alan Cummings, Esquire Michael Riley, Esquire P.O. Box 589 Tallahassee, FL 32302 (for DER) Douglas H. MacLaughlin, Esquire DER-Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary DER-Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel DER-Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
