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
Findings Of Fact On or about August 4, 1990, Bio-Med Services, Inc., (hereinafter "BMS") submitted to the Department of Environmental Regulation (hereinafter "DER"), an application for the construction of a biohazardous waste incineration facility (hereinafter "facility") to be located on approximately 5.5 acres in the City of LaBelle Industrial Park. The application was prepared, signed and sealed by Robert A. Baker, Professional Engineer, and was signed by Gary V. Marsden, president of BMS. BMS is a wholly owned subsidiary of Bio-Med Management, Inc., (hereinafter BMM), and was formed for the express purpose of making application for construction of the facility at issue in this case. Gary V. Marsden has held the position of president of BMS for approximately one and one-half years. Prior to becoming BMS president, Gary Marsden was a telephone equipment salesman. Gary Marsden's father, Clarence, is president of BMM, and a director of BMS. The BMS business plan indicates that Clarence Marsden was integral to the formation of BMS, was the primary contact between BMS and engineer Baker, and will act as salesman for BMS. Clarence Marsden has been convicted approximately four times on felony counts related to illegal drug activities. Neither Marsden has any experience related to construction or operation of biohazardous waste incineration facilities. According to the first application, the incinerator facility will utilize two "Consumat-1200" incinerators and one "U-Burn 12060" incinerator. 1/ The Consumat-1200 units are each capable of incinerating approximately 2,000 pounds of waste hourly. The U-Burn incinerator is capable of incinerating 250 pounds of waste hourly. The total waste incineration capacity of the facility is approximately 50 tons daily. The waste to be incinerated consists of biological and biohazardous wastes, primarily from hospitals and medical offices. The facility would not be authorized to incinerate hazardous or radioactive wastes. The application seeks approval to construct an incinerator facility which could operate 24 hours daily, seven days weekly, on a year-round basis. Although the incinerators would be shut down for maintenance and repairs, the applicant hypothesized the constant operation of the facility for the purpose of predicting emissions levels. The air pollution control (hereinafter "APC") system proposed in the first application includes venturi scrubbers, caustic scrubbers, and a 50 foot tall, 30 inch diameter discharge stack. On or about April 19, 1991, BMS submitted amendments to the first application. The amendments, (hereinafter the "second application") were prepared and signed by Mr. Baker. The amendments deleted the venturi scrubbers/caustic scrubbers and substituted dry hydrated lime injection scrubbers and baghouses. The amendments also altered the discharge stack dimensions to provide for a stack height of 65 feet and a diameter of 40 inches. The second application also included a bypass stack to provide for APC system malfunctions. Such bypass stacks provide for uncontrolled discharge of emissions into the atmosphere, when such emissions could further damage a malfunctioning APC system. On or about September 24, 1991, an application was submitted by Eastern Grading, Inc. 2/ for a permit to construct a biohazardous waste incineration facility to be located on a site outside the City of LaBelle, rather than at the LaBelle Industrial Park. According to the third application, the incinerator facility still proposes to utilize two "Consumat- 1200" incinerators and one "U-Burn 12060" incinerator. The third application deleted the bypass stack system intended to handle emergency situations and substituted a proposed crossover mechanism. The Eastern Grading application, (hereinafter the "third application") prepared and signed by Mr. Baker and signed by Gary Marsden as president of Eastern Grading, Inc., is the application at issue in this proceeding. Subsequent to the filing of the third application, BMS has now abandoned plans to locate the facility on the site identified in the third application and instead seeks approval to construct the biohazardous waste incineration facility at the LaBelle Industrial Park site identified in the first application. The proposed site for the facility is located approximately 4,900 feet from the City of LaBelle Public Water Treatment Facility. The raw water supply comes from shallow wells southwest of the city, and is stored at the treatment plant in open holding areas. After sand-filtering and softening, the water is stored in vented tanks. Based upon the proximity of the water treatment plant to the incineration site, there is high potential for impact on the local water supply by the emissions discharged from the incineration facility. The site of the proposed facility is located next to the Cross Tie Mobile Home Estates Subdivision, approximately 75 feet from the closest residence, approximately 2,000 feet from a senior citizen service center, and approximately 3,700 feet from a local nursing home. It is likely that some individuals in the nursing home may be regarded as particularly health sensitive, as are a number of residents of Cross Tie Mobile Home Estates Subdivision who suffer from respiratory illnesses and who testified during the proceeding. The site is approximately 4,600 feet from a local elementary school, approximately 4,400 feet from an intermediate school, approximately 7,400 feet from a middle school, and approximately 8,600 feet from a high school. Persons with existing respiratory illnesses, elderly persons, and children are regarded as "sensitive receptors" and are substantially more at risk through exposure to airborne chemical pollutants than is the general population. Based upon the proximity of the incineration site to such sensitive receptors, there is high potential for impact on such persons by the emissions discharged from the incineration facility. There was no site-specific analysis of the proposed facility done by either the applicant during preparation of the application or by the DER during review of the proposal. The applicant has provided no data related to potential heath risks posed by the proposed facility. The DER has not specifically analyzed such health risks. The third application states that various requirements of the Department will be met. The application provides as follows: "Each incinerator will have the following equipment and operational requirements in order to comply with the requirements of FAC 17-2.600: Particulate emissions will not to (sic) exceed 0.020 grains per dry standard cubic foot (gr/dscf) corrected to 7% oxygen (O2). Hydrochloric acid (HCI) emissions to be reduced by 90% by weight on an hourly average basis. At least one second residence time at no less than 1800 F. in the secondary combustion chamber. An air lock system designed to prevent opening the incinerator doors to the room environment and to prevent overcharging. Carbon monoxide (CO) concentrations in the stack exhaust gases of less than 100 PPMv, dry basis, corrected to 7% 02 on an hourly basis. The secondary combustion chamber to be preheated to 1800 F. prior to burning and maintained at 1800 F. or greater during active burning of wastes. All incinerator operators will be trained by Consumat Systems or another qualified training organization. A training plan for the operators will be submitted to the Florida Department of Environmental Regulation (FDER) prior to the start of operations. Continuous monitoring and recording of temperatures and oxygen will be maintained at the exit of the secondary combustion chamber. Operating procedures and calibration requirements will be submitted to FDER upon selection of monitoring equipment. All air pollution control equipment will be functioning properly during operation of the incinerator system. The list of assurances set forth above are a recitation of the requirements of the DER's rules as provided at Chapter 17- 2.600, Florida Administrative Code. The evidence as to specific equipment and operational requirements is insufficient to support the assertion that the facility will meet such standards. As the applicant's professional engineer, Mr. Baker signed and sealed a statement as follows: This is to certify that the engineering features of this pollution control project have been examined by me and found to be in conformity with modern engineering principles applicable to the treatment and disposal of-pollutants characterized in the permit application. There is reasonable assurance, in my professional judgement, that the pollution control facilities, when properly maintained and operated, will discharge an effluent that complies with all applicable statutes of the State of Florida and the rules and regulations of the department. It is also agreed that the undersigned will furnish, if authorized by the owner, the applicant a set of instructions for the proper maintenance and operation of the pollution control facilities and, if applicable, pollution sources. Mr. Baker's certification relates only to his opinion that the facility, properly operated and maintained, will be capable of compliance with Chapter 17-2.600, Florida Administrative Code. The engineering and design of the incineration facility have not been completed. The application states, without qualification, that the two Consumat units will be utilized. The remaining equipment, including the entire air pollution control system, is identified by type of component, but is otherwise not specified. Where equipment specifications are provided, such specifications are qualified by language stating that the equipment installed will meet either such specifications "or their technical equivalents". No actual operating or test data related to any of the equipment or systems proposed for use is included in the application. There is no reliable operating or test data applicable to biohazardous waste incineration facilities available for this particular configuration of components. The application fails to contain sufficient information related to "engineering features" to permit a credible determination as to whether or not the incineration facility will conform with modern engineering principles. The application fails to support Mr. Baker's assertion that reasonable assurances are provided that when properly maintained and operated, the facility will discharge an effluent that complies with all applicable statutes of the State of Florida and the rules and regulations of the DER. Although there is no evidence to establish that the applicant intends not to comply with the requirements of the DER's regulations, the application, reflecting the fairly preliminary design of the incineration facility, fails to provide sufficient information to assure that, once final design decisions are made and the equipment acquired, that such equipment will be compatible and configured in a manner which assures compliance with the DER's acceptable emissions regulations. The applicant has no experience in construction or operation of such incineration facilities. There is no other existing and operating biohazardous waste incineration facility using this configuration of air pollution control equipment. Mr. Baker contends that the completion of final design plans and specifications is a relatively straightforward process, but nonetheless, it has not been done. The Consumat incinerators have already been purchased, are used equipment, and were subject to a cursory inspection conducted by a BMS investor prior to purchase and transportation of the used equipment from the original owner in South Carolina. There is no evidence that structural inspections by a qualified metallurgist are contemplated. The Consumat units are starved-air incinerators. A starved air incinerator consists of two chambers, one primary and one secondary. The inflow of air into the primary chamber is controlled to provide for partial combustion and volatilization of wastes. The maximum temperature of the primary chamber is 1400 degrees F. The gases produced in the primary chamber flow into the secondary chamber where the temperature is maintained through gas burners. The minimum temperature in the secondary chamber is 1800 degrees F. The application provides that the waste gases will remain in the secondary chamber for two seconds. Control of temperature and residence time is the secondary chamber is required to complete the combustion process. The draft permit conditions require the applicant to install, maintain and operate continuous emissions monitoring equipment to record the secondary combustion chamber's exit temperature and oxygen level. Each incinerator will have an oxygen probe and a thermal couple at the secondary chamber exit. The oxygen probe will provide data needed to ascertain whether the combustion process is adequate and permits the correction of oxygen levels to the 7% standard required to measure emissions levels. The thermal couple permits the monitoring of exit temperatures. The draft permit also requires BMS to maintain all testing measurements and calibration data, and other information related to equipment maintenance and adjustments. The Consumat units must be retrofitted to permit the residence time and temperature indicated in the application. The application does not contain design or engineering information related to retrofitting the secondary chambers. The U-Burn unit is, according to professional engineer Baker, a "very unique design of a company that's no longer in existence." The U-Burn would be operated only in conjunction with one of the Consumat units. One Consumat and the U-Burn would each have a separate connection into one of the two APC systems. The application provides no design or engineering data related to the connection of the U-Burn unit into the APC system. The application states that the incinerators will be loaded by means of an enclosed ram feed mechanism which will prevent the incinerator from being opened to the room environment and prohibit overloading of the unit. The enclosed ram feed mechanism has not yet been designed. Two parallel lines of identically sized pollution control equipment are proposed, each line designed to meet the requirements of one Consumat unit and the U-Burn unit. Each line of equipment will include a preconditioner ("quencher"), a lime injection dry scrubber, and a fabric filter baghouse. To control emissions, it is necessary to reduce the temperature of gases exiting the secondary chamber, where the minimum temperature is 1800 degrees F. According to the "Process Description" in the application, the gas stream will be preconditioned by the use of water injection to lower the gas stream temperature to 275 degrees F. The water from the preconditioning process will be evaporated as part of the exhaust gases. The preconditioner will be lined with refractory material to withstand the extreme temperature. The application contains preliminary design specifications for the preconditioner, however the application states that such specifications "or their technical equivalents" will be utilized in the final design, accordingly such specifications are subject to change. There has been no more than preliminary design and engineering work completed for the construction and operation of the preconditioner. The application states that the dry hydrated lime injection system (dry scrubber) and the fabric filter system have been designed to meet the requirements of Chapter 17-2.600 F.A.C. for particulate matter and HCI emissions control. Upon leaving the preconditioner, cooled flue gases move into the dry scrubber. According to the "Process Description" in the application, an ultra- fine, dry hydrated lime (calcium hydroxide) will be injected into the preconditioned gas stream via a metered pneumatic system inside a reactor. Although the velocity of the injection must be sufficient to ensure that the dry lime mixes thoroughly with the flue gases, the application contains no information related to expected injection velocity. Once mixed, the lime reacts with hydrochloric acid to produce calcium chloride. The dry scrubber will collect large particulate matter and will have an airlock system for removal of collected solids. The lime injection rate will be at a minimum of 30% greater than the stoichiometric requirements for the neutralization of the HCI. This system is intended to remove at least 90% of the HCI in the gas stream. The application contains preliminary design specifications for the dry scrubber, however the application states that such specifications "or their technical equivalents" will be utilized in the final design, accordingly such specifications are subject to change. No more than preliminary design work for the construction and operation of the dry scrubber has been completed. Following dry scrubber treatment, the flue gases proceed to a reverse jet fabric filter baghouse. Baghouse technology is a relatively standard methodology of controlling submicron particulate matter (and dioxins/furans condensed on such matter) and heavy metal vapors. According to the "Process Description" in the application, the reverse jet fabric filter will have a maximum air to cloth ratio of 5 to 1. 3/ Under some conditions, a 5 to 1 air to cloth ratio may result in the filter bags becoming clogged with ultrafine particulates. The baghouse is intended to have a removal efficiency of greater than 99% for submicron particulate matter. The application contains preliminary design specifications for the baghouse, however the application states that such specifications "or their technical equivalents" will be utilized in the final design, accordingly such specifications are subject to change. A substantial amount of manufacturer literature related to dry scrubbers, baghouses (including the fabric filter bags), and emissions monitoring equipment is included in the application, but is of no probative value given that the applicant has not committed to using any of the equipment for which literature is included. The application indicates that the incineration facility will include a "crossover" between the two APC systems, to provide for the possibility that one APC system could fail. During such "upset" conditions, there is a substantial potential for visible and fugitive emissions, as well as odors and smoke. The applicant has not yet designed the crossover mechanism and has no information related to the actual planned operation of a crossover mechanism. Standard incinerator design provides for the utilization of bypass stacks which permit the discharge of uncontrolled emissions upon the failure of an APC system. The crossover theoretically would shift the discharge from one incinerator's failed APC system to the second incinerator's APC system, during which time the operation of the second incinerator unit would be reduced or would cease in order to provide adequate capacity in the operating APC system for the discharge from either or both operating incinerators. The application does not provide information related to the operation, design or location of the crossover mechanism. There is no information as to how the facility would address the potential situation where, with only one incinerator and APC system operating, an APC system failure would occur. The utilization of the crossover mechanism is unique, there being no similar medical waste incineration facility crossovers in use elsewhere. It is not possible to determine, given the lack of detail in the application, whether the crossover mechanism could be expected to adequately and successfully address potential "upset" situations. The site plan identifies two buildings on the site, one for incineration operations and the second for ash storage. There is no information supplied related to the location or storage of delivered, but unincinerated, biohazardous wastes, although, if the site plan is accurate, such storage apparently occurs within the incineration building. The application states that solid wastes (ash and lime) will be collected and disposed of off-site in an approved landfill. At hearing, BMS submitted an ash residue management plan, providing the applicant's plan to manage ash from the incinerators and the baghouse discharge. The plan was not signed or sealed by the applicant's professional engineer although he attested to the plan at hearing. According to the plan, incinerator bottom ash generated by the facility "will be handled in a manner which will prevent danger of contamination or release to the environment". Ash will be removed from "the consumat Model CS 1200 incinerator" 4/ unit by means of an ash ejection ram and collected in a wet sump, designed to eliminate dust and blowing ash. The wet ("quenched") ash is removed from the water-filled sump by a drag chain from which excess water will drain for reuse in the ash sump. The wet ash will exit the building by conveyer and be deposited into a covered, metal, "roll-off"-type, water tight storage container. When full, the container contents will be sampled and a representative sample provided to a DER-approved laboratory for Toxicity Characteristic Leaching Procedure ("TCLP") analysis. The container will thereafter be sealed, and the ash trucked to an approved disposal facility. Baghouse waste will include fly ash and reagent waste related to the dry scrubber treatment. Such waste will be removed through a bottom drop hopper discharging into 55 gallon drums. The hopper/drum system will be shielded to prevent waste escape into the atmosphere. Upon filling, the drums will be sampled for the TCLP analysis and then sealed and transported to the approved disposal site. The BMS Ash Residue Management Plan also states: "Type A class waste will be disposed of by Waste Managements, Inc., at their facility located at 3000 N.W. 48th Street, Pompano Beach, Florida 33073. In the event ash residue would not be classified as Type A waste, it will be disposed of by Chemical Waste Management, Inc., whose offices are also located at 3000 N.W. 48th Street, Pompano Beach, Florida 33073." The Ash Residue Management Plan is insufficient to comply with the DER's requirement related to such plans. The plan fails to indicate the capacity of the disposal site or whether the disposal site is intended to receive ash residue from the solid waste combustor for the life of the facility. The plan is ambiguous as to whether the identified sites are actual disposal sites or are offices of the company which will allegedly handle disposition of the ash. The plan fails to address the beneficial uses, if any, of ash residue, although the plan does state that ash recycling is not anticipated. The plan fails to identify contractual requirements, or notification and inspection procedures, which assure that hazardous wastes are not received or burned in the facility. Although the plan states that the incinerator ash will be placed into a wet sump to eliminate dust and blowing ash, and that wet sump water will be recycled into the sump, the plan fails to address the cumulative effects such water reuse and the potential impact of exposure to humans or the environment. As to the baghouse hopper/drum system (shielded to prevent waste escape into the atmosphere) the plan fails to consider other pathways of human or environmental exposure such as through direct contact or ingestion, and the potential for soil and ground water contamination. The application states that any liquids generated from wash-downs and cleaning operations will be collected in a holding tank and thereafter incinerated. The application contains no design or engineering data which identifies the means for incinerating such liquids or establishes that such liquid incineration will be accomplished in a manner which will not adversely affect incinerator or APC operation. Petitioners assert that the facility is experimental in nature because the design is rudimentary and the crossover mechanism is not used in medical waste incinerators of this type. Respondents assert that the facility is not experimental, and that the various types of equipment proposed are in use at other incineration facilities elsewhere. The evidence fails to establish that the entire facility should be properly identified as "experimental", however, there is no credible test data available for a facility utilizing this proposed combination of equipment in the configuration identified in the application. It is likely to expect a biohazardous waste incinerator to emit multiple air pollutants. Such pollutants include particulate matter and hydrogen chloride (HCI), as well as toxic pollutants such as arsenic, cadmium, chromium, lead, mercury, manganese, nickel, zinc, and dioxin equivalents. As to toxic pollutants, the DER reviewed the anticipated chemical emissions of arsenic, mercury, manganese, cadmium, chromium VI, nickel, zinc, lead, tetrachlorodibenzo dioxin (TCDD), and hydrochloric acid. The draft permit in this case requires the proposed facility to conduct emissions tests for particulate matter, hydrogen chloride, oxygen and carbon monoxide within 60 days of initially operating the facility, and to conduct annual emissions tests thereafter. At hearing, the applicant agreed to monitor emissions for the toxic pollutants arsenic, cadmium, chromium, lead, mercury, manganese, nickel, zinc, and dioxin equivalents, and further agreed to continuously monitor carbon monoxide and opacity. The DER has established a policy related to the control of toxic emissions from an air pollution source. The "Air Toxics Policy" is an effort by the DER to protect public health from the potential dangers posed by inhalation of excessive levels of toxic air emissions. The DER has a working list of 756 chemicals for which acceptable emission levels have been established. In identifying chemicals for inclusion on the working list, the DER utilized sources which referenced chemicals of concern and also reviewed data related to the air toxics programs of other regulatory agencies. The DER air toxics working list suggests acceptable ambient air concentration levels for the identified toxic chemicals. The acceptable levels are identified as "no threat levels" or "NTL's" and are set forth at average eight hour, 24 hour, and annual concentration levels. The DER asserts that the NTL's are conservative figures and that adverse public health consequences are unlikely to occur when ambient concentration emission levels do not exceed the NTL's. In establishing the average eight and 24 hour concentration NTL's, the DER utilized the more conservative of figures available from either the federal Occupational Safety and Health Administration (OSHA) or the American Conference of Governmental Industrial Hygienists (ACGIH). The OSHA and ACGIH figures are applicable to exposure of a healthy employee to a single chemical for an eight hour working period. The annual NTL's are directly based on EPA health data values listed in the EPA's Integrated Risk Information System. Of the three NTL's, the EPA- based annual levels are considered to be more accurate. In situations where the eight and/or 24 hour averages are exceeded, additional consideration is given to whether the annual NTL is also exceeded. The DER has not reviewed the data upon which the EPA, OSHA and ACGIH levels rely, and has not independently reviewed the statistical methodology utilized by the EPA, OSHA and ACGIH in calculating the cited agencies acceptable emissions levels. However, the weight of the testimony in support of the methodology, absent specific evidence to the contrary, establishes that such reliance is reasonable. In attempting to establish eight and 24 hour NTL's for use in the DER's Air Toxics Policy, the DER considered the likelihood that air emissions would contain multiple toxic chemicals and would impact a less healthy population (including particularly susceptible individuals) for an extended period of time. The DER reduced the eight hour OSHA/ACGIH concentration by two orders of magnitude, resulting in DER eight hour NTL's which are 100 times less than the OSHA/ACGIH levels. The DER further reduced the 24 hour OSHA/ACGIH levels by a factor of 4.2 (based upon dividing the total hours in a seven day period by a 40 hour work week) resulting in DER average 24 hour NTL's which are 420 times less than the OSHA/ACGIH acceptable occupational levels. Petitioners assert that the uniform safety factors calculated by the DER which resulted in the reduction of OSHA/ACGIH figures to the DER NTL's are arbitrary, and that some NTL's were likely too high and others were too low. However, Petitioners did not identify any of the 756 chemical NTL's on the DER working list as inadequate or excessive. The greater weight of the evidence establishes that the DER's utilization of a two magnitude safety factor is appropriate. Based upon the lack of adverse health impacts on the working population subject to OSHA/ACGIH occupational levels, the dearth of toxicological data available for most substances of concern, and absent evidence to the contrary, the inclusion of safety factors which result in an average eight hour NTL 100 times less than the OSHA/ACGIH levels and an average 24 hour NTL 420 times less than the OSHA/ACGIH levels is a reasonable attempt to prohibit excessive emissions and protect the general public's health from dangers posed through inhalation of such toxic air emissions. The DER annual average air toxic concentration levels are directly derived from EPA data and are distinguished on the basis of whether or not a substance is a carcinogen. For carcinogens, the NTL is based upon a unit risk factor which equates to a one in one million increased risk of developing a cancer related to said chemical. For non-carcinogens, the DER NTL is based upon an "inhalation reference concentration" which relies directly upon inhalation toxicity data, where such data is available. Where "inhalation reference concentration" data is unavailable, the DER NTL is based upon an extrapolation of oral toxicity data. The evidence fails to establish that the reliance of the DER on such EPA data is inappropriate or unreasonable. The DER utilizes the air toxics working list to compare anticipated emissions from a proposed air pollution source to the NTL's. Not all 756 chemical comparisons are made in every case. The comparison is for the purpose of determining whether additional inquiry should be made related to specific chemical emissions. The instant application includes predicted emission rates supplied by engineer Baker. The Baker estimates are based upon actual uncontrolled incinerator emission test results, to which a predicted "control efficiency" was applied for each type of control technology proposed in the application. The control efficiency predictions were based upon a noncommercial Canadian pilot project utilizing a dry-scrubber/baghouse combination, on non peer-reviewed literature and, as to mercury emissions, on a telephone conversation with a representative of the municipal waste industry. At the hearing, Petitioners utilized a data base compiled by Dr. Paul Chrostowsky, who supplied emissions estimates based upon his data base. The data base consists of actual test results from incinerators (including 12 medical waste incinerators) and from peer-reviewed literature. None of the facilities in the Chrostowsky data base reflect data from facilities utilizing a dry scrubber/baghouse system. Half of the incinerators in his data base utilized no controls, one utilized a baghouse, and the remaining five utilized wet scrubbers. Dr. Chrostowsky took the average emissions levels and added one standard deviation to account for uncertainty related to the lack of an operating record for the proposed facility. The emissions estimates produced by Dr. Chrostowsky are deemed to be more reliable and are credited. Dr. Chrostowsky opined that the applicant's estimates did not reflect likely operating conditions and were unreasonably low. According to his estimates, the application underestimated emission rates for hydrogen chloride, arsenic, cadmium, lead, manganese, mercury, and nickel. He also opined that the application's predicted mercury removal rate of 94% was excessive and that a removal rate 70% would be more likely. However, even given Dr. Chrostowsky's emissions levels, only the 24 hour NTL for hydrogen chloride is exceeded. Although Dr. Chrostowsky's calculated an exceedance of the annual average HCI NTL, the calculation was based on error. Other emissions remain at levels below the DER's level of acceptable emissions established by rule. Utilization of a 70% mercury removal rate still results in mercury emissions within the DER's range of acceptable emissions. As to Dr. Chrostowsky's estimated hydrogen chloride emission in excess of the DER's 24 hour NTL, such calculation appears to have been based on the application's estimated HCI control efficiency of 90%. The application utilized a conservative figure based upon the DER minimum requirement of 90% HCI control, when the actual HCI control efficiency could likely be greater than 90%. However, given the preliminary state of design and the lack of test results and data reflective of this particular equipment configuration, the evidence is insufficient to determine with reasonable assurance that such requirement will be met, or that the 24 hour HCI NTL will not be exceeded. It should be noted that the DER's NTL's address only potential human impact through inhalation, on the assumption that the most likely human ingestion for air emissions is through inhalation. The policy does not address human consumption of toxics though contaminated water supplies or via other pathways, Given the proximity of the proposed facility to local water supplies, the potential for other ingestion impacts exists, and should be examined. The application also included the results from engineer Baker's air dispersion modeling, performed to predict local concentrations of certain pollutants in the ambient air. The results indicate that maximum one, eight, and 24 hour concentrations will occur approximately 100 meters from the stack, and that maximum annual average maximum concentrations will occur approximately 500 meters from the stack. Mr. Baker first utilized a standard screening model developed by the federal Environmental Protection Agency specifically for this purpose. Mr. Baker is not an expert in computer modeling and utilizes standard EPA programs to perform such functions. If an initial comparison demonstrates that expected emissions from a proposed pollution source exceed an NTL, additional review of anticipated emissions is conducted to determine whether the initial review data is inaccurate or, if not, whether additional APC technology is required to control the excess emission. The use of an initial screening model is standard scientific practice and is reasonable. Mr. Baker uses the screen model to determine whether there are exceedances of any relevant emissions standards. Where no exceedances occur, it is generally unnecessary to perform further modeling. The Baker screen model relied upon hypothetical meteorological data unrelated to the meteorological variables at the proposed incineration facility site. The screen model results are regarded as an estimation of maximum one hour air pollutant concentrations at or beyond a property line. A set of conversion factors is applied to the maximum one hour air pollutant concentration with the results predicting eight hour, 24 hour, and annual concentrations. According to Mr. Baker's screen model results, the proposed facility's emissions did not exceed the DER's air quality standards or the NTL's in the working list. Mr. Baker subsequently utilized a more advanced EPA model, identified as the "Industrial Source Complex" (ISC) model, which projects both short-term and long-term concentrations. Mr. Baker opined that the ISC model provides a more accurate estimation of pollutant dispersion into the atmosphere. In running the model, he relied upon National Weather Service (NWS) surface meteorological data from Fort Myers and on NWS upper air meteorological data from Tampa, (as the DER had directed) and upon default EPA options. The NWS data included five years of weather information. Based on the ISC model, Mr. Baker anticipates that the emissions will not exceed the DER's air quality standards or NTL's. Meteorological conditions in LaBelle may differ significantly from the NWS Tampa upper air meteorological data. Tampa is much closer to the Gulf of Mexico than LaBelle. Lake Okeechobee, located nearby to the east of LaBelle, may impact LaBelle's local conditions. There is no reliable LaBelle meteorological data easily available, and the DER did not require collection of such site-specific data. Although an expert witness opined that, based upon Orlando's inland location, available Orlando NWS upper air data would be more representative of LaBelle conditions than the Tampa data used, the witness utilized the Tampa data to run his models. There is no actual evidence that utilization of Orlando data would have resulted in different pollutant dispersion modeling results than those included in the application. On behalf of the Petitioners, the ISC model was run utilizing the same weather data used by Mr. Baker and the emissions projections calculated by Dr. Chrostowsky, resulting in substantial agreement between the modeling results. Petitioners suggest that the applicant should have been required to provide data related to the dispersion of air pollutants during certain specific meteorological events, such as temperature inversions. Such inversions occur when warm upper air traps the cooler air below, and holds air pollutants close to the Earth's surface. Although the evidence related to such inversions is based upon a one-year frequency of fog incidence for Ft. Myers, Tampa and Orlando (rather than an analysis of temperature and air pressure data) temperature inversions may occur in LaBelle as often as 20 or more times annually. Utilization of a five year set of NWS data would include occurrences of temperature inversions. Fumigation concentrations occur when, during the dissipation of temperature inversions, the cooler and warmer air levels mix, and pollutants concentrations at the top of the cooler air level may be pulled down resulting in short, but intense, concentrations of pollutants at ground level. It is likely that fumigation events occur in the LaBelle area. Stagnation events are similar to fumigation events, although apparently affecting a larger geographic area than does a fumigation event. It is likely than stagnation events occur in the LaBelle area, however, there is no model which simulates a stagnation event. The screen model utilized in this case by the DER does simulate a fumigation event. According to the screen model predictions, maximum pollutant concentrations would occur under neutral stability conditions, not during fumigation events. The DER utilized the ISC model to predict small particle deposition ("fallout"). Fallout is specific to the meteorology of a site. The ISC model does not accurately predict fallout and such modeling is not required by the DER's regulations. However, such information, if available, could provide useful particle deposition data, given the proximity of the site to the City of LaBelle public water supply. Petitioners assert that the DER should have required a full risk assessment to determine the facility's potential for adversely affecting the local environment and residents in the area. A limited assessment, solely related to dioxin risks and acid gas risks, was performed on behalf of the Petitioners. The evidence is insufficient to establish whether or not the proposed incineration facility will result in an adverse health risk to the general population residing in the area, but given the location of the proposed facility and proximity to the local water supply and to sensitive receptors, the completion of a full risk analysis is warranted. As to dioxin levels, the limited risk assessment estimated that the BMS facility would produce a cancer risk ten to 100 times greater than the risk associated with Lee County's proposed nonbiohazardous waste incineration facility. However, the predicted dioxin emission levels are within the range established by the EPA as acceptable. The Petitioner's expert further opined that such EPA figures overestimate the cancer potency of dioxin. An acid gas analysis was performed utilizing the "hazard quotient/hazard index" method of analysis. The hazard quotient/hazard index analysis provides an acceptable approach to determining air emission health risks. Acid gases include hydrogen chloride, sulfur dioxide, nitrogen oxides, hydrogen fluoride, and sulfuric acid mists. Certain meteorological conditions, including temperature inversions or fog, interact with acid gases to form acid mists and other agents injurious to human lung function. The acid gases/acid mists risk assessment indicates that the incineration facility increases the potential for hazardous health impacts on the local population.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the application of Bio-Med Services, Inc., for a permit to construct a biohazardous waste incineration facility at the LaBelle Industrial Park, in LaBelle, Florida. DONE and RECOMMENDED this 31st day of March, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1992.
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 The central issue in this case is whether the permit to construct a Cyclonaire Docksider pneumatic unloading system, permit no. AC 56-157174, which was requested by Florida Sun Cement Company, Inc., should be approved.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Florida Sun is a Florida corporation whose address is 4550 Glades Cutoff Road, Fort Pierce, St. Lucie County, Florida 34949. Tuxedo is a Florida corporation whose address is 1110 North Second Street, Fort Pierce, Florida 34950. The City is an incorporated municipality with a boundary located approximately one and one-half miles north of the Tuxedo packing house. On November 15, 1984, the Department issued permit number AC-56-86471 to Roger Charles, President of Manatee Cement Co., Inc. This permit authorized the construction of a cement bulk terminal/ship unloading facility which would include two 10,000 metric ton silos for the storage of Portland cement which would be vented by one common baghouse. The location for the facility was to be at Port Avenue and Harbor Street in Fort Pierce, Florida. This location is directly across the street from the Tuxedo packing house. On November 15, 1984, the Department issued permit number AC-56-873l0 to Roger Charles, President of Manatee Cement Co., Inc. This permit authorized the construction of a cement Co., Inc. This permit authorized the construction of a cement bulk terminal/truck loading and packhouse which would include one 240 ton storage bin vented to one baghouse, two truck loading spouts vented to two baghouses, and one packing facility which would also be vented. On November 25, 1985, the Department extended the expiration dates for the permits identified in paragraphs 4 and 5 until November 15, 1989. Later, on August 11, 1987, the Department transferred the permits to Roger Charles, president of Florida Sun. On November 14, 1988, Florida Sun filed an application for a barge- mounted pneumatic Portland Cement unloader. This unloader, a Cyclonaire Docksider, was proposed to be used in connection with the facilities previously permitted. Florida Sun sought to utilize the pneumatic unloader to extract cement from the holds of ships moored at the Fort Pierce port which is adjacent to the mainside silo facility. From the dock area the cement would then be conveyed through a sealed pipeline to the storage silos. From the silos, the cement would be loaded into trucks and transported away from the site. Under the 1984 permits' proposal, Florida Sun intended to unload the cement via self-unloading ships which did not require a permit. The 1988 request for the barge-mounted unloader would allow more types of ships to unload at the facility. On February 7, 1989, the Department issued an Intent to Issue which announced its intent to issue the permit. On February 12, 1989, the notice of the Intent to Issue was published in the News Tribune, a newspaper published at Fort Pierce, St. Lucie County, Florida. Tuxedo and the City timely filed petitions challenging the proposed permit. Neither petitioner had timely challenged the permits which had been issued in 1984. The pneumatic unloader which is the subject of the permit request is to be manufactured by Cyclonaire Bulk Cargo Systems, Inc. (Cyclonaire). The Cyclonaire Docksider unit will be attached to a free-floating barge which will be secured to the dock. The barge will be capable of movement in an east-west direction to allow access to each opening of the ship's hold. The Cyclonaire Docksider operates by extending an arm into the hold of the ship. The arm is equipped with a pneumatic device which extracts the cement from the ship and conveys it through a pipeline. The Cyclonaire utilizes two diesel engines which operate the extraction and conveying portions of the device. The Cyclonaire is vented through filter cartridges manufactured by W.L. Gore and Associates. Cyclonaire has executed a warranty for the Docksider pneumatic unloading system which provides, in pertinent part: Not more than .02 grains of particulate matter shall be contained in each dry standard cubic foot of air discharged into the atmosphere from the vacuum pump exhaust ports during normal operation of ice system, as measured using the applicable test methods specified by the State of Florida Department of Environmental Regulation. The opacity of emissions measured across the vacuum pump exhaust ports during normal operation shall not exceed 5o/o when measured using the applicable test method specified by the State of Florida Department of Environmental Regulation. The opacity of emissions measured across the top of the hold of the vessel being discharged by the DOCKSIDER system shall not exceed 5o/o during normal operation of the system, when measured using the applicable test method specified by the State of Florida Department of Environmental Regulation. There shall be no leaks or fugitive emissions from the unloader suction line(s), from the filter vessel, from the cement receivers, from the cement discharge line(s), from the supply line(s) to the vacuum pump, or from the vacuum pump itself. Cyclonaire has also executed a warranty for the conveying lines to the silos which provides, in pertinent part: Not more than .02 grains of particulate matter shall be contained in each dry standard cubic foot of air discharged into the atmosphere from the vacuum pump exhaust ports of the system during normal operation of the system, as measured using the applicable test methods specified by the State of Florida Department of Environmental Regulation. The opacity of emissions measured across the vacuum pump exhaust ports during normal operation shall not exceed 5o/o when measured using the applicable test method specified by the State of Florida Department of Environmental Regulation. The opacity of emissions measured across the top of the hold of the vessel being discharged by the Docksider system shall net exceed 5o/o during normal operation of the system, when measured using the applicable test method specified by the State of Florida Department of Environmental Regulation. Not more than 0.02 grains of particulate matter shall be contained in each actual cubic foot of air discharged by the baghouse at the silos per performance warranties of the Fuller Company as measured using applicable test methods specified by the State of Florida DER. The opacity of emissions measured across the baghouse exhaust shall not exceed 5o/o when measured using the applicable test method specified by the State of Florida DER. There shall be no leaks or fugitive emissions from the unloader suction line(s), from the filter vessel, from the cement receivers, from the cement discharge line(s), from the supply line(s) to the vacuum pump, or from the vacuum pump itself. This warranty does not apply to situations which result due to factors beyond the reasonable control of Seller, e.g., equipment malfunctions, improper maintenance, improper operations or wind gusts in excess of 35 miles per hour. A system similar to the proposed Florida Sun Cyclonaire Docksider is located in Tampa, Florida. When tested, the Tampa unloading system resulted in an average particulate concentration of .0043 gr/dscf and the average particulate emission rate was .21 lb/hr at an average cement unloading rate of 236 tons per hour. The visible emissions were found to be less than 5 percent opacity. Florida Sun proposes to vent emission sources by use of baghouses. These filtering systems vent dust-laden air by extracting the particles which fall, by gravity, while the air is released through a filter to the outside. The filters are cleaned by a jet of air which is pulsed on the outside of the filter unit. The Florida Sun facility will have baghouses to vent the silos and the truck loadout spouts. The Fuller Company manufactures retractable loading spouts which will convey the cement from the storage silos to the transporting trucks. The truck loading process will take place within an enclosed silo. The truck will be positioned under the spout and a cone will be extended down into an opening on the top of the vehicle. Proper operation requires the spout to connect to the truck so that particles are not released into the air. The spout allows the cement to flow into the truck while air is displaced back into a venting system. Each loading spout will have its own venting system. The Fuller Company performance warranties provide, in pertinent part: Fuller Company warrants, when the equipment covered by this agreement, is adjusted and operates at the design operating conditions, as specified within the specifications, and as enumerated in Section A hereafter; that the maximum solid particulate emissions exiting the baghouse will not exceed 0.02 Gr/ACF excluding condensibles. The potential sources of air pollutant emissions associated with the Florida Sun cement facility are as follows: unconfined and unquantifiable particulate matter emitted from the hold of the ship during the unloading process; the emissions from the Cyclonaire unit (the venting required to separate the dust-laden air in order to pass the cement into the conveyor line); emissions from two diesel engines which generate energy for the extraction and conveying unit; the baghouse which vents the silos as they are being loaded; the truck spout venting units; and the unconfined but quantifiable particulate matter generated by truck traffic. The total of the quantifiable emissions for the Florida Sun facility will be 19 tons per year. The Florida Sun facility will not contain the 240 ton cement storage bin authorized by the 1984 permits. Based upon Florida Sun's stipulation to that effect, potential emissions from that source have not been considered. The Florida Sun facility will not contain the packhouse authorized by the 1984 permits. Based upon Florida Sun's stipulation to that effect, potential emissions from that source have not been considered. The stipulated Florida Sun annual throughput of cement for this facility will be 279,000 tons per year, plus or minus 10 percent. In addition to the equipment to be utilized to limit the expected emissions, Florida Sun intends to pave or grass its entire facility. Regular maintenance of this area will provide reasonable precautions that unconfined particulate matter will not be released into the atmosphere. Further, training of personnel will aid in the proper operation and maintenance of the equipment. Operation of the Cyclonaire should not occur during wind conditions exceeding 35 miles per hour. While helpful to determine air quality impacts, air quality modeling is not required by rule for permit approval for minor projects with a non-toxic source. To be helpful, an air quality model must be based upon assumptions of fact likely to occur. All parties utilized the Industrial Source Complex Short- Term model. That model is an EPA approved model for general air quality analysis. In this case, the model submitted by Tuxedo and the City contained numerous emission factor errors which rendered their model's results unreliable. Among the errors were: the assumption that the truck loading activities would occur twenty-four hours a day, 365 days a year; the by Tuxedo and the City contained numerous emission factor errors which rendered their model's results unreliable. Among the errors were: the assumption that the truck loading activities would occur twenty-four hours a day, 365 days a year; the assumption that the truck loading activities would result in a spillage of cement material at a rate of 1.2 grams per second for twenty-fours a day, 365 days a year; and the assumption that truck loading would occur outside of the enclosed silos. The air quality models run by Dr. Koogler and Mr. Rogers corroborated the other forms of assurances given by Florida Sun. The Tuxedo packing house is located directly across the street to the north from the Florida Sun facility. There is also another citrus packing house located directly across the street to the south from the Florida Sun property. The Tuxedo packing house boxes a variety of fresh citrus fruits for the fresh market. Citrus fruit is sensitive to skin abrasion which can result in a premature decay of the fruit and limited shelf-life of the fruit. As a result, prudent packers take every precaution to avoid abrasive particles from coming in contact with fresh fruit. Cement is an abrasive material. The Tuxedo packing house is ventilated by large doors located around the building and an opening at the top of the structure. In general, Tuxedo is located downwind from the Florida Sun facility.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order approving the application for permit no. AC 56-157174 with special conditions to include the prohibition of loading via the Cyclonaire Docksider during wind speeds in excess of 35 miles per hour, proper and routine inspection and maintenance of the equipment to assure it is operated in accordance with the manufacturers' directives, and training for operators of the Cyclonaire to assure compliance with manufacturer's guidelines equipment to assure it is operated in accordance with the manufacturers' directives, and training for operators of the Cyclonaire to assure compliance with manufacturer's guidelines. DONE and ENTERED this 4th day of October, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1989. APPENDIX TO CASE NOS. 89-1121 AND 89-1271 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY TUXEDO: Paragraphs 1 through 19 are accepted. Paragraph 20 is rejected as contrary to the weight of the evidence; during normal and proper operation of the truck loading spouts, spillage should not occur. Incidents of spillage would suggest a violation of the permit conditions and require immediate correction. Paragraph 21 is rejected as comment or irrelevant. It is accepted the loading spouts have a tolerance of approximately one-half inch; the balance of paragraph 22 is rejected as irrelevant, embellished comment, or argument. The first four sentences of paragraph 23 are accepted; the balance is rejected as comment, recitation of testimony, irrelevant, or argument. Paragraph 24 is accepted. With regard to paragraphs 25 and 26, it is accepted that Dr. Koogler visited the Tampa Cyclonaire facility on two occasions, that the winds on the first visit were approximately 2-5 miles per hour, that on the first visit he observed no visible emissions, that on the second visit the winds were 5-10 miles per hour, and that on the second visit he observed visible emissions while a front-end loader scraped the cement off the bottom of the hold to the center for the Cyclonaire to extract it; otherwise, the paragraphs are rejected as comment, argument, embellishment on fact, or irrelevant. Paragraph 27 is accepted. Paragraphs 28 and 29 are accepted. Paragraph 30 is rejected as contrary to the weight of the credible evidence. While the barge will be free-floating and capable of being located along side the hold to be unloaded, the barge will not be in motion during unloading, no assumption to the contrary has been made. Paragraph 31 is rejected as contrary to the weight of the evidence. Paragraph 32 is accepted. Paragraph 33 is rejected as repetitive, comment, unnecessary. See 7 above. Paragraphs 34 and 35 are accepted. With regard to paragraph 36, it is accepted that Dr. Koogler and Mr. Yocum used the same emission factors for the four sources identified and listed in the paragraph; otherwise, the paragraph is rejected as comment or irrelevant. It is accepted that Mr. Yocum utilized the AP-42 to compute the emission factors used for the diesel engines; otherwise the paragraph is rejected as irrelevant. It is accepted that Dr. Koogler utilized data from the diesel engine manufacturer to compute the emission factors he used; otherwise the paragraph is rejected as irrelevant. Paragraph 39 is rejected as irrelevant, immaterial, argument, or comment. Paragraph 40 is rejected as irrelevant, immaterial, argument, or comment. Paragraph 41 is rejected as contrary to the weight of the evidence. That individuals attempted to quantify the fugitive emissions from the hold does not render such attempts reliable for purposes of determining air quality impact. Such "best guesses" are only estimates which, in this case, do not suggest the project should not be permitted. Paragraph 42 is rejected as contrary to the weight of the evidence. Paragraph 43 is rejected as unsupported by the weight of the evidence to the extent that it suggests such occurrences would be under normal and proper operating conditions. Incidents of such operation would be a violation of the permit terms. With regard to paragraph 44, it is accepted that the spout's ability to collect the cement dust and route it up to the baghouse is not warranted; however, it should be noted that during that function the truck loading will take place within an enclosed silo. With that clarification, the paragraph may be accepted. Paragraph 45 is rejected as irrelevant; spillage is not anticipated under normal and proper operating conditions. Further, truck loading occurs within an enclosed silo. Paragraph 46 is rejected as a recitation of testimony/ Paragraph 47 is rejected as repetitive (see p. finding 15). Paragraph 48 is accepted to the extent that it recites Mr. Yocum's process for computing an emission factor; that factor, however, is rejected as unreliable and contrary to the weight of the evidence. Paragraph 49 is accepted but is irrelevant to the resolution of the issues of this case. With regard to paragraph 50, it is accepted that all parties attempted to model sources in connection with this application; otherwise, the paragraph is rejected as argument, comment, or irrelevant. Paragraph 51 is accepted. Paragraph 52 is rejected as irrelevant. Paragraph 53 is rejected as recitation of testimony, comment, or irrelevant. Paragraph 54 is rejected as irrelevant. Paragraph 55 is rejected as irrelevant. Paragraph 56 is rejected as argument, comment, or irrelevant. Paragraphs 57 and 58 are rejected as contrary to the weight of the evidence. Footnote 5 of paragraph 59 is accepted; the balance is rejected as irrelevant or contrary to the evidence. Paragraph 60 is accepted. Paragraph 61 is rejected as argument, comment or irrelevant. Paragraph 62 is rejected as irrelevant. Paragraph 63 is rejected as irrelevant. Paragraph 64 is rejected as irrelevant. Paragraph 65 is rejected as irrelevant. When modeling is required, paragraph 66 is accepted as the proper standard; otherwise, rejected as irrelevant. Paragraphs 67 through 69 are rejected as irrelevant. Paragraph 70 is accepted. Paragraph 71 is accepted. With the clarification that there would also be receptors with lower concentrations, paragraph 72 is accepted. Paragraphs 73 through 75 are rejected as irrelevant or contrary to the weight of the evidence. Paragraph 76 is rejected as argument, comment, or irrelevant. Paragraph 77 is rejected as irrelevant. Paragraphs 78 through 80 are rejected as contrary to the weight of the evidence or irrelevant. Paragraph 81 is accepted. Paragraphs 82 through 83 are accepted. Paragraphs 84 through 92 are rejected. The paragraphs accurately recite what Hoffnagle did; however, the facts proffered are rejected as contrary to the weight of the credible evidence, irrelevant, or unsupported by the record. Paragraphs 93 through 98 are accepted. Paragraph 99 is rejected as irrelevant. Paragraphs 100 through 106 are accepted. With the deletion of the word "strikingly" paragraph 107 is accepted. Paragraphs 108 through 115 are accepted. Paragraphs 116 through 118 are rejected as irrelevant. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE CITY: Paragraphs 1 through 6 are accepted. With regard to paragraph 7, the throughput stipulated to was 279,000 tons per year plus or minus 10 percent; otherwise, paragraph 7 is accepted. See comment p. 2 above, paragraph 8 accepted. Paragraphs 9 and 10 are accepted. With the substitution of the phrase "may be" for the word usually," paragraph 11 is accepted. There is no evidence as to whether Florida Sun will use such a system or not. With the deletion of the word "only" paragraph 12 is accepted. Paragraphs 13 through 21 are accepted. Paragraph 22 is accepted; however, there is no evidence which suggests the plant will, in fact, be operated 24 hours a day, seven days a week, 365 days a year. Further, the throughput limitation would suggest to the contrary. Paragraphs 23 through 31 are accepted. Paragraph 32 when clarified to include that emissions are sometimes less than the average, is accepted. Paragraph 33 is accepted. Paragraph 34 is rejected to the extent that it suggests Mr. Yocum's emission rate should be accepted as fact of this case. While the paragraph accurately states what Mr. Yocum did, his factor is rejected as unreliable or contrary to the weight of the evidence. Paragraph 35 is accepted. Paragraph 36 is rejected as irrelevant. Paragraph 37 is accepted. Paragraph 38 is rejected as irrelevant; that parties attempted to model the hold emissions does not render the results reliable, such "best guesses" may be noble but have not formed the basis for a finding of fact. Paragraph 39 is rejected as irrelevant. Paragraphs 40 through 43 are rejected as irrelevant, see comment in P. 16 above. Further, such fugitive emissions are unquantifiable under the present methodology. Paragraph 44 is accepted. Paragraph 45 is rejected as irrelevant. Paragraph 46 is accepted. With regard to paragraph 47, it is accepted Dr. Koogler and Mr. Yocum used the same emission factor for the silo baghouse/ Paragraph 48 is accepted. With regard to paragraph 49, it is accepted Dr. Koogler and Mr. Yocum used the same emission factor for the truck spout filters. With regard to paragraph 50, it is accepted that the doors to the silos will be closed during truck loading. In their models, both Dr. Koogler and Mr. Yocum assumed otherwise. Consequently, both may have obtained an inflated result. Paragraphs 51 and 52 are accepted. To the extent that paragraph 53 suggests spillage may result from improper operation, such paragraph is rejected as irrelevant. Under normal and proper operating conditions, spillage would not occur. If so, it would be a violation of the permit. Paragraph 54 is accepted. With regard to paragraph 55, see comment p. 27 above; consequently, the paragraph is rejected as irrelevant. Paragraph 56 is rejected as contrary to the weight of the evidence. Paragraph 57 is rejected as irrelevant and erroneous (math error). The number of trucks per year is limited to the throughput cap; the number which might be filled during a 24 hour period would depend on the factual circumstances at the time (whether the silos were full, etc.). Paragraphs 58 through 62 are accepted. Paragraph 63 is rejected as contrary to the weight of the evidence. While the paragraph correctly states what Mr. Yocum did, no confidence has been given his analysis. To the extent that Dr. Koogler attempted to tie the daily truck rate to the annual throughput cap, paragraph 64 is accepted; however, for the reasons set forth in p. 31 it is irrelevant. Paragraphs 65 through 68 are accepted but are unnecessary. Paragraph 69 is accepted to the extent that it recites Mr. Yocum's finding but is unnecessary and irrelevant. Mr. Yocum's emission factors are unreliable based upon the weight of the evidence in this case. Consequently, little value has been placed on the model results which were based on his factors. Paragraph 70 is rejected as argument, irrelevant, or contrary to the weight of the evidence. The last two sentences of paragraph 71 are accepted. The first sentence is rejected as rejected as speculative, irrelevant, or contrary to the weight of the evidence. The factual matters addressed in paragraphs 72 through 75 are accepted to the extent addressed in my findings of fact; otherwise, the paragraphs are rejected as comment or recitation of testimony. Paragraphs 76 and 77 are accepted. With the deletion of the word "much," paragraph 78 is accepted. With the deletion of the "s" on the word "meter" (used two times), paragraph 79 is accepted. Paragraph 80 is accepted. Paragraph 81 is rejected as argument or comment. There might also be receptor locations with smaller concentrations. Paragraph 82 is rejected as irrelevant. Paragraph 83 is rejected as irrelevant. Paragraph 84 is rejected as irrelevant. Paragraph 85 is accepted but is irrelevant. Paragraph 86 through 89 are rejected as irrelevant. Paragraph 90 is accepted. Paragraphs 91 through 96 are rejected as irrelevant or contrary to the weight of the evidence. Paragraphs 97 and 98 are accepted. Paragraphs 99 and 100 are rejected as irrelevant. Paragraph 101 is rejected as irrelevant. Paragraphs 102 through 105 are accepted. Paragraph 106 is rejected as irrelevant. RULINGS ON THE PROPOSED FINDINGS OF FACT, SUBMITTED BY FLORIDA SUN: To the extent addressed in findings of fact paragraphs 4 and 5, paragraph 1 is accepted otherwise rejected as irrelevant. Paragraphs 2 through 4 are accepted. Paragraph 5 is accepted to the extent in findings of fact paragraphs 20 and 21; otherwise, rejected as irrelevant or unsupported by the record. The first sentence of paragraph 6 is accepted. With regard to the balance of the paragraph it is rejected as irrelevant except to the annual throughput being 279,000 tons plus or minus 10 percent. Paragraphs 7 through 12 are accepted. Paragraph 13 is rejected as argument or conclusion of law. Paragraphs 14 through 23 are accepted. The second sentence of paragraph 24 is rejected as unsupported by the record. The balance of the paragraph is accepted. Paragraphs 25 and 26 are accepted. With the exclusion of the last phrase of the paragraph (which rated the opacity of the emissions on Koogler's second visit), paragraph 27 is accepted. Paragraphs 28 through 34 are accepted. To the extent that Dr. Koogler and Mr. Yocum used the same emission factors for the Docksider silo, and spouts, paragraph 35 is accepted. Otherwise, the paragraph is rejected as argumentative, comment, or irrelevant. The basis for determining the unreliability of Mr. Yocum's factors is addressed. The first sentence of paragraph 36 is accepted. The balance is rejected as irrelevant or argument. Paragraph 37 is accepted. To the extent that a facility which emits less than 100 tons per year is defined to a minor facility, paragraph 38 is accepted. Otherwise, is rejected as argument, comment, or irrelevant. Paragraphs 39 through the first sentence of paragraph 40 are accepted. The balance of paragraph 40 is rejected as irrelevant. Paragraphs 41 through 43 are accepted. Paragraph 44 is rejected as irrelevant. Paragraph 45 is rejected as recitation of testimony. The first sentence of paragraph 46 is rejected as contrary to the weight of the evidence. The balance of the paragraph is accepted. Paragraphs 47 and 48 are accepted. Paragraphs 49 and 50 are accepted but are irrelevant, immaterial or unnecessary. Paragraph 51 is rejected as argument. Paragraph 52 is accepted to the extent that it states this facility is a minor facility located in an attainment area; otherwise, rejected as irrelevant, immaterial, or argument. Paragraph 53 is accepted. Paragraphs 54 through 56 are rejected as irrelevant. Paragraph 57 is accepted. Paragraph 58 is accepted. Paragraph 59 is rejected as repetitive. Paragraph 60 is accepted. Paragraphs 61 and 62 are accepted. Paragraph 63 is rejected as irrelevant or unsupported by the record. Paragraph 64 is rejected as irrelevant or unsupported by the record. Paragraph 65 is accepted. The first three sentences of paragraph 66 are accepted; the balance is rejected as contrary to the weight of the evidence. Paragraph 67 is rejected as outside the scope of the record, contrary to the record, or argument. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 21 were accepted. Paragraph 22 is rejected as argument. Paragraphs 23 through the first sentence of paragraph 26 are accepted; the balance of paragraph 26 is rejected as argument, comment or irrelevant. Paragraph 27 is rejected as irrelevant. Paragraph 28 is rejected as irrelevant. Paragraphs 29 through 31 are accepted; however, it should be noted that modeling was not required, by rule in this case, and further, that the modeling performed by Mr. Hoffnagle based upon Mr. Yocum's emission factors is not reliable due to the erroneous assumptions built into the factors. Paragraph 32 is accepted. Paragraph 33 is rejected as irrelevant or contrary to the weight of the evidence. Paragraph 34 is rejected as irrelevant. Paragraph 35 is accepted. Paragraph 36 is accepted. Paragraph 37 is rejected as irrelevant, comment, argument, or immaterial. Paragraphs 38 and 39 are accepted. Paragraph 40 is accepted but is irrelevant. Paragraphs 41 through 44 are accepted. Paragraphs 45 through 57 are rejected as irrelevant, argument, comment, or recitation of Tuxedo's case-- for the reasons previously stated, the modeling efforts submitted by Tuxedo have not been the basis for a finding of fact. COPIES FURNISHED: Bram D.E. Canter Haben & Culpepper, P.A. 306 North Monroe Street Tallahassee, Florida 32301 Sylvia M. Alderman Paul R. Ezatoff Katz, Kutter, Haigler, Alderman, Eaton, Davis and Marks, P.A. 215 South Monroe Street, Suite 400 Tallahassee, Florida 32301 Paul H. Amundsen F. Phillip Blank, P.A. 204-B South Monroe Street Tallahassee, Florida 32301 Carol A. Forthman Deputy General Counsel Office of General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact PROPOSED FACILITY The applicant, FRI, plans to construct a Portland cement plant (the plant) at its existing quarry located off Alachua County Road 235, 2.5 miles northeast of Newberry, Florida. The plant site consists of 46 acres located near the center of more than 1,300 acres of limestone and overburden reserves. Portland cement is a material used to construct common items such as buildings, roads and pipelines. The necessary raw ingredients include sand, clay and limestone. Eighty percent of the raw feed material is limestone. The project includes a single kiln, clinker cooler, preheater, precalciner, crusher, raw mill, finish mill, silos, conveyors, and an assortment of equipment for particulate control/dust collection, cement and clinker handling, coal handling, air pollution control, and recycling. The proposed plant has seven emission units. The first emission unit is related to the mining and storage of raw materials. Limestone, sand and clay are sized and mixed at the quarry according to standards set by the American Society of Testing Materials (ASTM). Next, conveyors transport the raw material to a covered storage area. The second emission unit is the raw material grinding and blending unit. In the covered storage area, the plant operator further blends the raw feed material with other secondary materials, including coal ash. This unit contains an auxiliary heater which uses number two fuel oil and a roller mill where the material is ground. The raw material arrives at the second emission unit containing eight to ten percent moisture content to prevent the generation of dust. The auxiliary heater removes this moisture and dries the raw feed material. This step is necessary because the proposed facility is a dry process cement plant as opposed to a wet process cement plant. In the former, the feed material is dry when it enters the kiln. In the later, the feed material is a wet slurry. Emission unit three includes the preheater, precalciner, and kiln. The raw material proceeds from the grinder to the preheater where it is preheated as it falls vertically downward through exhaust gases rising upward from the kiln. Next, the feed material passes through the precalciner where fuel is added to calcine the feed material before it reaches the kiln. The calcining process involves the decomposition through heat of limestone (calcium carbonate) to lime (calcium oxide) and carbon dioxide. About sixty percent of the kiln system's fuel is fed into the precalciner. FRI may use tires as an alternate fuel. Tires are fed into the kiln system at the transition section between the base of the precalciner and the point where gases exit the kiln. As described in the record the tire feeder mechanism has a double airlock, vertical and horizontal guillotine gates, and a ram. The permitted feed rate for tires is thirty percent of the total heat input or approximately 400 tires per hour. After passing through the precalciner, the feed material passes into the raised end of the kiln to produce clinker. The kiln is an inclined rotating cylinder, approximately twelve feet in diameter and one hundred sixty-two feet long. FRI plans to feed fuel into the lower end of the kiln where it discharges the clinker. To produce clinker, the kiln must heat the feed material to a temperature of approximately 2700 degrees Fahrenheit. The gases in the subject kiln will reach temperatures between 3700 to 3800 degrees Fahrenheit. Emission unit four is the clinker cooler, belt transfer and two clinker silos. The clinker exits the kiln at temperatures in excess of 2,000 degrees Fahrenheit. The clinker then falls into the clinker cooler where ambient air is passed through the clinker to cool it. In the cooling process, the air becomes heated. The plant uses this hot air as combustion air in the kiln and heating air for the coal mill. A conveyor transfers the cooled clinker to two silos. The finish mill and cement storage silos are emission unit five. The plant transfers clinker from the silos to the finish mill (or roller mill) where the plant operator adds gypsum and/or limestone as required by ASTM standards. Next, the plant transports the finished cement to the cement storage silos. Emission unit six consists of cement handling and packaging operations. FRI plans to ship the finished product in bags or in bulk by rail or truck. Emission unit seven consists of coal handling operations. The plant receives coal on site by rail and stores it in a covered storage area. The plant grinds the coal in a grinder which is heated by hot gases from the clinker cooler. After being ground, the plant transfers the coal to a small storage silo and feeds it into the kiln and precalciner. The proposed plant has the capacity to produce 2300 tons of clinker per day. It will, on average, produce 712,500 tons of clinker per year. The plant will yield approximately 772,400 tons of Portland cement per year. BACT ESTIMATES, PROPOSALS, AND LIMITATIONS Best available control technology (BACT) is an emission limitation determination made on a case-by-case basis taking into account several factors including energy, environmental and economic impacts and other costs. Petitioner failed to present any persuasive evidence regarding the inadequacy any of the BACT factors listed in Rule 62-212.400(5) and (6), Florida Administrative Code. BACT for a particular source evolves and becomes more stringent over time as technology evolves. A regulating agency uses BACT to force applicants to develop technology which will optimize processes and improve emission rates. The plant will be a major emitting facility for certain regulated pollutants: particulate matter (PM and PM10), sulfur dioxide (SO2), nitrogen oxides (NOx), and carbon monoxide (CO). The project site is located in an area which has been designated attainment for all criteria pollutants. The proposed facility is subject to the Prevention of Significant Deterioration (PSD) regulations because the potential emission of each of the above referenced pollutants exceeds one hundred tons per year. PSD review consists of a determination of BACT and an air quality impact analysis for each of these regulated pollutants. The Department performed a BACT determination for emissions of SO2, NOx, PM/PM10, CO, VOCs and beryllium because the emissions of these six pollutants are at levels in excess of PSD Significant Emission Rates. Petitioner only challenges the BACT determination for SO2 emissions limits. However, Petitioner challenged the design of the proposed plant and the sufficiency of the control mechanisms to provide reasonable assurances that FRI will not meet BACT emission limits. CARBON MONOXIDE The BACT emission rate for CO is 3.6 pounds per ton of clinker or 346.38 pounds per hour. FRI has provided reasonable assurances that this limit will be met through process controls and the use of continuous emissions and process monitors. NITROGEN OXIDES The BACT emission rate for NOx is 2.8 pounds per ton of clinker after an initial limit for two years of 3.8 pounds per ton of clinker. The interim limit is necessary to allow for an optimization period in which FRI can comply with the 2.8 pounds per ton limit. The Department may revise the limit to less than 2.8 pounds per ton of clinker based on compliance tests and continuous emission monitoring data. The Department determined the NOx BACT emission limit in part after considering a California cement plant's NOx BACT emission limit of 2.5 pounds per ton of clinker and then normalizing the number for the FRI plant. FRI's feed material is wetter than the feed material at the California plant. Therefore, FRI will require more coal to dry the feed. The increased consumption of coal will result in higher NOx emissions. Additionally, the coal used at the California plant has greater volatility than the coal used at FRI's plant. During the two year optimization period, mechanical features of the plant will wear in and the refractory in the kiln will be cured. FRI will use the start-up time to determine the optimum oxygen levels and temperatures throughout the kiln system. The plant operator will make operational adjustments in the feed mix and the kiln rotation speed. It is not unusual for a cement plant to need approximately two years to make the operational adjustments necessary to comply with NOx emission limits. Other existing dry process cement plants meet their NOx emission limits using only one firing point. In the FRI plant, the use of two firing points (without using tires as fuel) and three firing points (using tires as fuel) will spread combustion over more locations. Spreading the combustion points will reduce the oxygen requirements thereby restricting NOx formation. Preheater type kilns burn some fuel at temperatures lower than the temperatures in the kiln burning zone. This results in NOx emissions which are lower than the emissions from a kiln without a preheater. The subject facility has a preheater and a precalciner which means that the proportion of the fuel burned at the calcining temperature is much greater than in a kiln with only a preheater. The result here will be even lower NOx emissions. Using tires as fuel will also reduce NOx emission rates because tires burn with less intense heat than coal. However, FRI will meet the NOx emission limit even if it decides not to burn tires as an alternate fuel. Therefore, a finding of reasonable assurance that the plant will meet the NOx BACT emission limit is not dependent upon FRI burning tires as fuel. The manufacturer of the kiln, Polysius Corporation, does not guarantee that the NOx emissions from the proposed facility will be below 4.0 pounds per ton of clinker. FRI stipulated at hearing that it would supply additional technology to reduce NOx emissions if the plant does not comply with the emission limit within two years. However, the greater weight of the evidence indicates that FRI will not need additional technology to meet the NOx emission limits. Therefore, the undersigned has not relied on this stipulation in finding reasonable assurances. FRI has provided reasonable assurances that the NOx emission rate will be met through process controls and the use of continuous emissions and process monitors. COMPLIANCE WITH NOx AND CO EMISSION LIMITS CO is a gas which is generated when there is inadequate oxygen in the combustion of fuel and the calcining of calcium carbonate or limestone. NOx is a gas which is a combination of oxides of nitrogen. The plant will produce NOx during the combustion process in the kiln system when nitrogen combines with oxygen. There are three specific sources of NOx: thermal NOx, fuel NOx, and feed material NOx. The generation of CO and NOx is inversely related and linked to the oxygen level that is present in the kiln system. As the oxygen level increases, the formation of NOx increases and the formation of CO decreases. Conversely, when the oxygen level decreases, the formation of NOx decreases and the formation of CO increases. FRI will meet CO and NOx emissions levels by controlling excess oxygen in the kiln to a level between one and one-half to three percent excess oxygen. FRI will use continuous oxygen process monitors to regulate the oxygen level. One such monitor will measure the oxygen content of the gases leaving the kiln where the feed material enters the kiln. Another monitor will measure the oxygen level in gases leaving the precalciner and proceeding to the preheater. FRI will use a continuous emissions monitor (CEM) to ensure compliance with NOx emission limits. A continuous CO process monitor will assist in the control of the CO content in the kiln. Expert testimony of professional engineers corroborates the Department's predicted emission rates for CO and NOx. Other information also supports the Department's BACT determination for CO and NOx. For instance, the Environmental Protection Agency's (EPA) AP-42, Fifth Edition, USEPA, Compilation of Air Pollutant Emission Factors, contains a broad spectrum of emission factors from cement plants around the country. The Department properly relied on another EPA document, Alternative Control Techniques, EPA-453/R-94-004 (3/1994) for the proposition that burning tires will reduce NOx emissions. The Department will not issue FRI an operation permit until it demonstrates compliance with CO and NOx emission limits. SULFUR DIOXIDE The interim BACT emission limit for SO2 is .28 pounds per ton of clinker or 28.82 pounds per hour. This limit is as low as the BACT emission limit imposed at any other cement plant in the country. The Department based the SO2 interim emission rate in part on the lowest number provided by the EPA, BACT Clearinghouse. In making the SO2 BACT determination, the Department correctly considered a survey of stack test data from different facilities around the country which have been in operation for three years. Because of the wide differences in fuels and raw materials at cement plants nationwide, FRI may be able to meet a lower SO2 emission rate. Accordingly, the Department may lower the SO2 emission limit before issuing FRI an operation permit. The Department will issue the final S02 emissions limit within 120 days following receipt of all tests that the permit requires. At that time, the Department will determine the final emission limit after reviewing the results of FRI's process/pollutant optimization program. The Department will publicly notice any change in the SO2 emission limit. The plant will generate SO2 during the combustion process when sulfur in the three fuels (coal, tires and number two fuel oil) reacts with oxygen. Sulfur is also present in the raw feed materials. The plant controls SO2 emissions for the most part through process design, i.e., the capacity of the feed materials in the kiln system to absorb SO2 emissions. SO2 emissions are very sensitive to the balance between alkali and sulfur in the kiln feed and operating conditions. FRI will minimize these emissions by maintaining proper ratios of sulfur and alkali in the pyroprocessing environment and by maximizing the intimate contact between raw materials and exhaust gases. Limestone contains sodium and potassium which are alkaline materials. As the feed material passes through the kiln system, the alkaline substances absorb the SO2 in a form that will not be released when it passes through the clinkering zone in the kiln. One hundred percent sulfur absorption is not possible because no absorption system is perfect. The plant's capacity to absorb SO2 emissions is in the range of ninety-five to ninety-six percent. FRI will install an SO2 CEM. The CEM will not limit SO2 emissions but it will indicate when the plant reaches the SO2 emission rate of 28.82 pounds per hour. FRI will perform annual stack tests to determine SO2 emission rate compliance. Doubling the amount of the sulfur put into the kiln system will not double the SO2 emissions. Much of the sulfur will stay in the clinker and will not be available for emissions. There is no need for a limit on the sulfur content in the coal that FRI uses as fuel. The limestone in the kiln system will absorb virtually all of the sulfur in coal at levels between one and two percent with SO2 emission levels remaining constant. SO2 emissions will not increase unless FRI uses coal with four to five percent sulfur levels. There is no known supply of coal with sulfur levels of four to five percent. The typical industrial grade coal in Florida has a sulfur content of approximately 1.2 percent. The proposed plant has sufficient capacity to absorb any possible variations of sulfur present in the fuel because of the massive amount of lime that it will process and the configuration of the air flows in the kiln system. Nevertheless, FRI agreed during the hearing to accept a specific permit condition limiting the sulfur content of the coal to 1.25 percent by weight and sulfur content of the number two fuel oil to .05 percent by weight. Additionally, using tires as fuel does not affect SO2 emission rates. The equilibrium state of the recycled cement kiln dust (CKD) will have no effect on SO2 emissions at the plant. FRI has provided reasonable assurance that it can comply with the SO2 emission limitation. VOLATILE ORGANIC COMPOUNDS The BACT emission rate for VOCs is 11.55 pounds per hour. FRI has provided reasonable assurances that this emission limitation will be met through process controls and the use of continuous emissions and process monitors. The Department correctly based its BACT determination for VOCs in part on data received from the EPA BACT Clearinghouse. VOCs are gaseous organic compounds which include a broad range of compounds in a gaseous form at room temperature. Incomplete combustion of fuel and organic material in the feed material to the kiln system generate VOCs. Limestone contains very low levels of organic material; therefore, cement plant kiln systems produce very low levels of VOCs. FRI will reduce the VOC emissions by controlling the temperatures in the kiln system. In the kiln, the feed material will reach about 2,700 degrees Fahrenheit. The temperature of the gases in the kiln will reach between 3,700 and 3,800 degrees Fahrenheit. The temperature in the precalciner will range from 2,000 to 2,100 degrees Fahrenheit. At these high temperatures, virtually all VOCs will be consumed or destroyed regardless of their source (limestone, coal, tires, and fuel oil). Clinker production requires certain temperatures, residence time, and turbulence within the kiln. These factors are sufficient to ensure the destruction of almost all VOCs at cement plants. PARTICULATE MATTER PM is small, finely-divided solid particles. PM is not a particular compound or chemical. It is a solid form of whatever material might be present. PM10, a subset of "total" PM, refers to particulate matter that is ten micrometers in diameter or less. For the kiln, the Department set the BACT emission limit for PM and PM10 at .31 and .26 pounds per ton of clinker respectively. For the clinker cooler, the Department determined that the BACT emission limit for PM and PM10 was .16 and .13 pounds per ton of clinker respectively. In making its PM/PM10 BACT determinations, the Department correctly considered data from EPA's AP-42 and the more stringent emission rates of other kilns in Florida. The standard reference work, Air Pollution Engineering Manual, Air and Waste Management Association (1992), provides further assurance that FRI will meet the PM/PM10 limitations set forth in the permit. FRI has provided reasonable assurances that the plant will comply with the emission limitations for PM and PM10 through the use of electrostatic precipitators (ESPs) as BACT to control major sources of controlled PM. Baghouses will control other minor sources of PM. The three most recent BACT determinations nationwide for cement plant kiln systems were met with ESPs. In this case, the gas stream for the clinker cooler and the gas stream from the kiln system will vent to two ESPs for PM control. PM is controlled in an ESP by first conditioning the gas stream entering the ESP. The gas stream then passes through an area of extremely high voltage differential (tens of thousands of volts at very low amperage) where the particles develop an electrical charge. As the charged particles pass through the ESP, they are collected on a plate of opposite charge. This plate is periodically rapped to dislodge the PM into a hopper for reuse in the kiln as raw material. A vender will supply the ESPs sized to meet the PM emission limits of the plant according to the design specifications and the engineering features which are contained in the record. The facility-specific ESP engineering features include gas flow rate, volume of gas passing through the ESP, the temperature of the air stream (stack gas), the moisture content of the air stream, the nature of the particles (including resistivity), and most importantly, the ultimate PM/PM10 limitations imposed in the permit. Polysius Corporation will estimate the concentration of dust approaching the ESP and supply that information to the vendors as a separate piece of information. The plant's ESPs will have a design specification of 99.9 percent control efficiency. This control efficiency is consistent with demonstrated efficiencies in standard reference works. The specifications also require a manufacturer's guarantee of .01 grams per actual cubic feet per minute (ACFM) for outlet dust concentration. FRI proposes to operate the kiln system in two alternative modes. The first proposal routes the gas stream from the preheater through a quench tower directly to a precipitator. The second proposal routes the gas stream through the raw mill to dry the feed material and then directly to the precipitator. The PM loadings and the nature of the PM will change under each of these two sets of conditions. It is not ordinary or necessary for an applicant to submit detailed engineering drawings of ESPs with an application. The evidence is overwhelming that ESPs built to the specifications contained in the record will meet the required PM/PM10 emission limits. The type of fuel will not affect the PM emission rate. The use of tires as supplementary fuel will not cause an increase in PM emissions. To the contrary, the firing of coal and tires together reduces PM emissions. Metal emissions will not clog an ESP. FRI intends to recycle 100 percent of its cement kiln dust (CKD.) This recycling will not affect the performance of the pollution control devices. There is a potential for PM generation at the plant any time FRI handles raw materials. At each material transfer point in the plant, a baghouse will control PM emissions. The plant will have twenty of these baghouses. They effectively limit the concentration of dust in the air stream. In addition to the grain loading limitation for the baghouses and the mass emission rates for the ESPs, the Department has set opacity limitations for these devices. Opacity is the visual density of PM. FRI will install a CEM for opacity on the ESPs for the kiln system and the clinker cooler. Baghouses and ESPs are commonly used in the cement industry nationally and internationally. The performance of the plant's baghouses and ESPs will be subject to empirical testing to ensure compliance with PM/PM10 emission limits before the Department issues FRI an operating permit. Baghouses and ESPs provide an equivalent degree of PM emission control in cement kilns and clinker coolers. FRI stipulates that the permit should contain a condition requiring the applicant to submit the manufacturer's performance guarantee to the Department prior to the commencement of construction of the plant. FUGITIVE EMISSIONS Unconfined PM emissions (fugitive emissions) are particles that are not collected and discharged through a stack or vent. Fugitive emissions may result from the storage and handling of coal ash. They may also be caused by mining activities and vehicles traveling on paved and unpaved roads. The Department establishes opacity limits on fugitive emissions because there is no way to establish a mass emission rate. FRI has provided reasonable assurances that the plant will meet the opacity limits for fugitive emissions by ensuring an adequate moisture content in all materials received at the plant such as coal ash. The utility supplying the coal will add approximately eight to ten percent moisture to the coal ash prior to delivery at the plant. At that level of moisture, the coal ash will generate virtually no fugitive emissions when FRI personal moves it with a front-end loader or any other mechanical device. FRI will place water lines, hoses and sprinklers near all storage stock piles. The plant operators will be trained in basic environmental compliance. They will perform visual inspections of materials before handling them. If an inspection reveals a lack of excess surface moisture, the plant operators will wet the material with the sprinklers. To eliminate unconfined particulate matter emissions from the material handling activities, FRI agrees to store all material under cover and on compacted clay or concrete. FRI will pave the plant area to limit the generation of fugitive emissions from trucking and equipment traffic. FRI will maintain and operate a sweeper truck at the plant to limit dust buildup on paved surfaces. FRI will not emit any fugitive emissions at the tire feeder mechanism because the kiln, precalciner and preheater are all under a negative pressure. The method of feeding tires through a double air lock system will also prevent fugitive emissions. FRI has agreed to special permit conditions requiring it to "immediately collect" any spilled CKD to prevent fugitive emissions. FRI also has agreed that the Department may incorporate into the permit a specific condition relative to a fugitive emission protocol. MERCURY Mercury is a metal that naturally occurs in the earth's crust. The plant's feed materials and fuels contain mercury. The temperatures in the kiln system cause the mercury in the feed material and fuels to become a part of the gas stream. As mercury in a gaseous state passes through the preheater, some of it will condense and solidify onto particulate matter. Additional mercury will condense as the gas stream approaches the electrostatic precipitator which will have operating temperatures between 220 and 350 degrees Fahrenheit. At this point, virtually all of the mercury will have condensed onto solid particles. The raw mill will collect some of the solid particles containing mercury. The ESP will also collect the particles and return them to the cement kiln process. Some of the mercury will leave the plant in the finished cement product. The plant will exhaust only a small fraction of the particles containing mercury with the stack gas. The record contains evidence of a mass balance calculation for mercury emissions of 180 pounds per year. This calculation was based on a worst-case scenario and assumed that all the mercury entering the plant would be released into the atmosphere. The Significant Emission Rate for mercury that would require a PSD/BACT review is 200 pounds per year. There are no demonstrated mercury controls or add-on controls for limiting mercury emissions in cement plants. Nevertheless, FRI has provided reasonable assurances that the plant's mercury emissions will be below the 200 pounds per year threshold. Evidence to the contrary is unpersuasive. FRI is willing to accept a permit condition limiting the total input of mercury to below 200 pounds. FRI will demonstrate compliance with this condition through monthly sampling and analysis of the raw mill feed, coal and tires. BERYLLIUM The combustion of coal in the kiln and calciner burner and the combustion of number two fuel oil in the raw mill auxiliary air heater will generate small quantities of beryllium as particulate emissions. The ESP on the kiln will control these emissions. The proposed emission rate for beryllium is .0006 tons per year. The PSD Significant Emission Rate for beryllium is .0004 tons per year. The Department will determine the final emission limit for beryllium after receiving the results of future stack tests. MODELING FRI performed air quality modeling to estimate the ambient air concentrations of emissions from the proposed facility based on many factors and highly-developed technology. FRI used three air quality models: (a) the Industrial Source Complex (ISC) model; (b) the SCREEN model; and (c) the long- range transport model (MESOOPUFF). The modeling included maximum emission rates (or worst case scenarios) for all expected pollutants. The modeling was very conservative because it incorporated FRI's initially proposed emission rates which were higher than the emission rates ultimately proposed in the draft permit. All predicted air toxic impacts, although not regulated, were below the Department's draft ambient reference concentrations. AMBIENT AIR QUALITY STANDARDS (PRIMARY AND SECONDARY) Primary air quality standards are limits on the concentration of materials in the ambient air to protect human health. Secondary air quality standards are limits on the concentration of materials in the ambient air necessary to protect public welfare, including, plants, animal life, visibility and the enjoyment of property. FRI provided reasonable assurance through air quality modeling that FRI would meet primary and secondary ambient air quality standards. IMPACT ON CLASS I AREAS/PSD INCREMENTS Class I air quality areas are areas with a pristine environment. The two closest Class I areas to the proposed plant are the Okefenokee Swamp and the Chassahowitzka National Wilderness area. Class II air quality areas are any areas of the state that have not been designated Class I areas. They include all areas around the proposed facility. Class I and II PSD increments are the incremental increases in air pollutants allowed in Class I and II areas respectively. FRI's air quality modeling provides reasonable assurance that the plant will not adversely impact Class I areas or exceed the Class I and II PSD increments. Additionally, the plant will not cause any visibility-related impacts in the Class I areas. COMPLETENESS OF APPLICATION The application contains complete information for each item on Form No. 62-210.900(1), Florida Administrative Code. It identified the applicant, the facility location, and the proposed activity. The application described each emission unit and the pollution control methods. FRI enclosed the appropriate application fee. It was sealed by a Florida Professional Engineer. In addition to the completed application form, FRI submitted a report with added detail in support of the application. This report described the applicant and the facility location. It included: a project description; a review of applicable rules; a BACT proposal; an air quality review; a description of stack height design; and, a statement of environmental impacts. FRI submitted documentation to support the report including emission calculations, detailed process diagrams, equipment lists, area map, site map, plot plan, plot plan with emission points, process flow diagram, and a description of the relationship of CO and NOx emissions. FRI submitted additional information in response to the Department's requests. The application as submitted into evidence and explicated during the hearing is substantially complete. CONSTRUCTION SCHEDULE FRI's application provides a start date, January 1, 1996, and completion date, December of 1997. The estimated time for the construction of the facility is two years. FRI submitted a detailed construction schedule into evidence. However, it will not be the schedule that FRI ultimately follows. FRI will furnish the Department with a final construction schedule after FRI selects the contractor. The construction schedule will not affect the two-year construction schedule. MALFUNCTIONS Petitioner failed to present any credible evidence that the malfunction provisions of the proposed permit were inadequate to ensure that FRI would not exceed the emission limits in the draft permit or interim determination. The presence of tires in the kiln at the time of a malfunction will not affect emissions because the tires will completely burn in five to six seconds. During the combustion process, any metal in the tires will completely disintegrate. Furthermore, there is no persuasive evidence that "Puff's Disease" is present at cement kilns where tires are continuously fed into the kiln system. Variability in stack gas flow causes Puff's Disease when an emission unit does not operate in a uniform steady state. ODORS The permit prohibits any objectionable odors from the proposed facility. There was no persuasive evidence that the plant will emit objectionable odors. DIOXIN FORMATION There is no persuasive evidence that the permit fails to adequately address the potential for dioxin formation. There is a potential for dioxin formation in ESPs with inlet gas temperatures from 450 degrees Fahrenheit to 750 degrees Fahrenheit. Dioxin will not form at the plant because the inlet gas temperatures of the ESP will range between 230 and 430 degrees Fahrenheit. If the temperature of gas in the plant's ESP ever rises above 450 degrees Fahrenheit, it will not remain at that temperature long enough to form dioxins. Particulate matter containing carbon contributes to dioxin formation. The particulate matter at the proposed plant will contain small amounts of organic carbon. The potential for dioxin formation on this basis is little or none. The Department has not adopted any standards or rules regulating dioxin formation or emission in cement plants. MANUFACTURER'S GUARANTEE The record does not contain a manufacturer's guarantee relative to the emission rate of any pollutant for any of the plant's equipment. Polysius Corporation, designed the facility. It will make whatever design modifications are necessary, if any, for FRI to comply with permit conditions before the Department issues an operational permit. As an additional permit condition, FRI shall provide the Department with the final designs and the manufacturer's guarantee for the ESPs before construction begins. FRI has never owned or operated a cement plant. However, FRI's project manager has forty years of experience in the cement industry, including experience working as Chief Executive Officer and President of Polysius Corporation. OTHER FLORIDA FACILITIES Florida Crushed Stone (FCS) operates a cement plant located in Brooksville, Florida. Polysius Corporation designed the FCS plant which was built in the 1980's. There are similarities between the FCS plant and the proposed plant. The FCS plant has a clinker production rate of approximately 75 tons per hour. The proposed facility has a clinker production rate of approximately 95 tons per hour. The physical size of the FCS kiln is approximately the same size as the proposed kiln. Like the proposed plant, the FCS plant uses a dry process to make cement. The FCS kiln recycles almost all of its CKD. There are also some differences between FCS and the proposed plant. FCS has a preheater but not a precalciner. It uses a baghouse instead of an ESP to control kiln emissions. The proposed plant and the FCS plant use different raw feed materials. The FCS plant is unique in that it has a coal-fired power plant built next to it. The power plant and the cement plant exhaust their stack gases through a common baghouse. FCS's heated clinker cooler gas is used in part as combustion air for the power plant. The power plant's exhaust gas is used for drying the raw materials fed to the cement plant. FCS's plant has a SO2 emission limit of 50 pounds per hour. It's NOx BACT limitation is about 4.8 pounds per ton of clinker. The coal feed rate at FCS's plant is about 10 tons per hour. Up to 15 percent of its BTU value can be from tires. This amounts to 123 tires an hour, or about a third of the BTU value specified in the proposed permit. Florida Mining and Material (FMM) also operates a plant in Brooksville, Florida. Polysius Corporation designed the FMM plant over twenty years ago. The FMM plant has two kilns with a clinker production capacity of about 75 to 80 tons per hour for each kiln. The FMM kilns are dry process. They both have preheaters but no precalciners. The FMM kilns are approximately the same physical size as the proposed kiln. Both FMM kilns have a single firing point. They recycle 99.9 percent of their CKD. Separate baghouses control emissions from the FMM kilns. There are differences in the raw feed materials used at the FMM kilns and the proposed plant. Rinker Corporation (RC) operates a cement plant in Dade County, Florida. It was built sometime in the early 1970's. The RC plant has two kilns which are about 400 feet long and use a wet process to make cement. The designer of the RC plant is unknown. Each of the RC kilns produce about 35 to 40 tons of clinker per hour. Neither of them has a preheater or a precalciner. Both of them control PM with ESPs. They do not recycle 100 percent CKD. The RC plant is not similar to the proposed plant. However, the FCS plant and the FMM plant are sufficiently similar to the proposed plant to provide an expert witness with a basis for comparing their processes, operations, and potential emissions. The differences in the raw materials used by these plants and the differences in design characteristics between these plants and the proposed plant are within an expected range of other cement plants. The basic chemistry involved in making cement at FCS, FMM and the proposed plant is the same. Test results from FCS and FMM can be normalized for making comparisons with the proposed plant.
Recommendation Based on the Findings of Fact and Conclusions of Law set forth above, it is recommended that Respondent Department of Environmental Protection issue a Final Order granting permit number AC01-267311/PSD-FL-228 as proposed in the Department's Intent to Issue dated September 29, 1995, as modified by the Interim Determination of November 17, 1995, and with the additional conditions detailed in this Recommended Order. DONE and ENTERED this 23rd day of July, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1996. APPENDIX CASE NO. 95-5531 The following constitutes the undersigned's rulings on each of the parties' proposed findings of fact. Petitioner's Proposed Findings of Fact. Accepted. See Conclusions of Law. First sentence accepted in FOF 104. Reject balance of paragraph as contrary to more persuasive evidence. 3-16. Accept as subordinate to FOF 1-116. Relevant only as background information to summarize the agency's review process. 17. Accept in part, reject in part. See FOF 19, 22-72, 79- 86. No credible evidence that proposed plant will emit lead or mercury in excess of PSD Significant Emission Rates. 18-19. Accept as subordinate to FOF 10, 103-104. Accept as restated in FOF 105-116. Accepted. The record contains preliminary designs showing engineering features and specifications. The record, considered in its entirety, is sufficient to determine that FRI has met its burden of providing reasonable assurances. There is no mechanism for disposal of CKD because FRI will recycle 100 percent of the CKD. Accepted as restated in FOF 96-97. FRI will have to provide a more detailed construction schedule when the Department issues the construction permit. 23-24. Accepted. FRI will select the contractor and vendors after receiving the construction permit. 25. Accepted. See FOF 22-23, 35-36, 44, 70. CEMs do not control emissions but they assist the plant operator in making necessary adjustments to achieve certain emission rates. 26-33. Accepted as subordinate to FOF 105-116. 34-35. Reject. The record contains sufficient information about emissions from other Florida cement plants for an expert like Dr. Koogler to draw comparisons with the emissions from the FRI plant. Accept that emission data may need to be "normalized" when comparing the pollutants of one plant to another to allow for differences in raw feed material and fuels. Reject second sentence as not supported by the record. Dr. Koogler made all of his comparisons of the Florida cement plants after considering the technical differences between the plants. In some instances Dr. Koogler analyzed the technical differences in the physical design of the plants to explain the differences in emission rates. Accept all but the last sentence. AP-42 contains emission factors for all types of cement plants including the type at issue here. Accept only as to information under consideration early in the permit review process and before the formal hearing. Accept as if incorporated in 105-116. 40-50. Accept in part and reject in part. See FOF 57-72. 51-59. Accept in part and reject in part. See FOF 39-52. 60-78. Accept in part and reject in part. See FOF 22-38, 53-56. 79-87. Accept in part and reject in part. See FOF 1-116. Using tires as fuel is discussed through out the Recommended Order. The description in the record of the tire feeder mechanism is sufficient to determine that it will meet all applicable standards. 88. Reject. See FOF 87-92. 89-93. Accept in part and reject in part. See FOF 79-84. Respondent Department's Proposed Findings of Fact. 1-2. Accept in FOF 1-21. 3. Accept in FOF 22. 4-6. Accept in FOF 23-31. 7-11. Accept in FOF 39-52. 12. Accept in FOF 57-72. 13. Accept in FOF 53-56. 14. Accept in FOF 17-72. 15. Accept in FOF 93-95. 16-26. Accept in FOF 32-38. 27-31. Accept in FOF 39-52. 32-45. Accept in FOF 57-72. 46. Accept in FOF 53-56. 47. Accept in FOF 79-84. 48. Accept in FOF 73-78. 49-51. Accept in FOF 9 and 77. 52-53. Accept in FOF 96-97. 54-59. Accept in FOF 105-116. Accept in 87-92. Accept in FOF 103-104. Respondent FRI's Proposed Findings of Fact. 1. Accepted. 2-12. Accept in or as subordinate to FOF 1-16. 13. Accept in FOF 49, 78, and 84. 14-15. Accept in or as subordinate to FOF 17-21. 16-18. Accept in or as subordinate to 39-52. 19. Accept in or as subordinate to FOF 22. 20-22. Accept in or as subordinate to FOF 23-31. 23. Accept in or as subordinate to FOF 53-56. 24. Accept in or as subordinate to FOF 57-72. 25. Accept in or as subordinate to FOF 79-84. 26-29. Accept in or as subordinate to FOF 87-92. 30-37. Accept in or as subordinate to FOF 32-38. 38-42. Accept in or as subordinate to FOF 53-56. 43-71. Accept in or as subordinate to FOF 57-78. 72-77. Accept in or as subordinate to FOF 79-83. 78-88. Accept in or as subordinate to FOF 39-52. Accept in FOF 96-97. Accept in FOF 98. 91-93. Accept in or as subordinate to FOF 87-92, and 99-104. COPIES FURNISHED: Priscilla N. Harris, Esquire Stewart Harris, Esquire Post Office Box 702 Green Cove Springs, Florida 32040 Segundo J. Fernandez, Esquire Timothy P. Atkinson, Esquire Oertel, Hoffman, Fernandez et al. 2800 Blair Stone Road Tallahassee, Florida 32399-2400 Jefferson M. Braswell, Esquire W. Douglas Beason, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth Plante, Esquire Department of Enviromental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Conclusions An Administrative Law Judge with the Division of Administrative Hearings ("DOAH") submitted his Recommended Order of Dismissal to the Department of Environmental Protection ("DEP") in these consolidated administrative proceedings. The Recommended Order of Dismissal indicates that copies thereof were served upon counsel for the Co-Respondent, Escambia County Utilities Authority (“Authority”), and upon pro se Petitioners, Kerry Culligan (*Culligan’ ) Mary Pueschel Studstill (“Studstill’), and Chris Englert Cnglert. A copy. of the Recommended Ofder of Dismissal i is attached hereto as s Exhibit A The matter is now "before the Secretary o of DEP for final agency action. a | BACKGROUND The Authority owns and operates a public water system in Escambia County, Florida. These consolidated cases involve an application fi fi led with DEP seeking a permit to construct fluoridation treatment facilities at six of the Authority’s potable water a supply wells. On September 5, 2000. DEP executed an Intent to Issue and draft permit . } 4 F tor the Applicant’ fluoridation treatment construction project. The Petitioners then fi led “similar petitions with DEP contesting the issuance of the permit to the Applicant and requesting formal administrative hearings. The Petitions, which were forwarded to : r appropriate proceedings, basically questioned the safety and effi icacy of oe DOAH fc fluoridation i in their drinking water. Administrative Law w Judge, Donald R. Alexander, AL, was assigned to “~ insuffi cient to state a cause ofa action for relief f against DEP under the controling ‘provisions of Rule 62- 555. 328, Florida Administrative Code. Rule 62- 555. 325 establishes conditions and requirements for the issuance by of permits to public oO Bo yee ee water systems for the installation and operation of fluoridation treatment equipment. _ sad The ALS J recommended that DEP center a fi ina alorer dismissing, with prejudice, t the wale) eh as ed squares sas chante és antes? CONCLUSION The case law of Florida holds that parties to. formal administrative proceedings ‘must alert agencies to any perceived defects in DOAH hearing procedures or in the findings of fact of administrative law judges by filing exceptions to the DOAH recommended orders. See Couch v. Commission on Ethics, 617 So.2d 1119, 1124 (Fla. 5th DCA 1993); Florida Dept. of Corrections v. Bradley, 510 So.2d 1122, 1124 (Fla. 1st DCA 1987). The ALJ ruled in his Recommended Order of Dismissal that Petitioners’ allegations were legally insufficient to state a cause of action warranting denial of the construction permit for Applicant's proposed fluoridation treatment facilities. Nevertheless, no exceptions were filed by any of the Petitioners objecting to this critical adverse ruling or objecting to the ALJ’s ultimate recommendation that DEP enter a final order dismissing the three petitions with prejudice. Having considered the Recommended Order of Dismissal and other matters of record and faving | reviewed the applicable law, | concur with the rulings and ultimate recommendation of the ALJ. Itis therefore ORDERED: A. The ALJ’s Recommended Order of Dismissal is adopted in its entirety and is incorporated by reference herein. - B. Culligan’s amended petition for administrative hearing and the initial petitions for administrative hearings of Studstill and Englert are dismissed, with prejudice, for failure to state a cause of action upon which a final order can be entered denying the Authority’s requested permit to construct the fluoridation treatment facilities. seals Lae eee es i x A a Mk ii i ie aL C. DEP's Northwest District Office shall ISSUE to the Authority the construction permit for the fluoridation treatment facilities, subject to the terms and conditions of the draft permit issued in DEP File No. 0083021 -001 -WCIMA. Any party to these proceedings has the right to seek judicial review of this Final : pursuant “to Rife 9.110, Florida Rules of Appellate Procedure, ‘with the clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, MS. 35, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal accompanied by the applicable fi iling fees with the appropriate District Court of Appeal. The Notice of ‘Appeal must be fi led within 30 days from the date ‘this Final Order is fi led ; with the clerk of the Department. -DONE AND ORDERED this Z day of January, 2001, in Tallahassee, Florida. bn STATE OF FLORIDA DEPARTMENT . OF ENVIRONMENTAL PROTECTION LS DAVID B. STRUHS Secretary Marjory Stoneman Douglas Building AOS OSU ue SAAS ai head. te 3900 Commonwealth Boulevard ; Tallahassee, Florida 32399-3000 moun i}76lo1 CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy of the foregoing Final Order has-been sent by United States Postal Service to: Kerry Culligan Mary Pueschel Studstill 814 North 13" Avenue 414 North Guillemard Street Pensacola, FL 32501 Pensacola, FL 32501 Chris Englert Robert W. Kievet, Esquire 4121 West Avery Avenue Kievet, Kelly & Odom Pensacola, FL 32501 15 West Main Street Pensacola, FL 32401 Ann Cole, Clerk and Donald R. Alexander, Administrative Law Judge David S. Dee, Esquire Division of Administrative Hearings John T. LaVia, Ill, Esquire The DeSoto Building Landers & Parsons, P.A. 1230 Apalachee Parkway Post Office Box 271 Tallahassee, FL 32399-1550 Tallahassee, FL 32302 and by hand delivery to: Craig D. Varn, Esquire Department of Environmental Protection . . 3900 Commonwealth Blvd., M.S. 35 ° “~~~ Tallahassee, FL 32399-3000 this LStkd ay of January, 2001. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION : “TERRELL WILLIAMS Assistant General Counsel ate ) Mhea 3900 Commonwealth Blvd., M.S. 35 Tallahassee, FL 32399-3000 “Telephone 850/488-9314 ce it 1a ea
The Issue The issue presented is whether Respondent, S.M.G., Inc. (SMG), has provided reasonable assurance that its existing air curtain incinerator will be operated in accordance with applicable statutory and rule provisions.
Findings Of Fact The Parties The Department is the state agency responsible for receiving applications for, and the issuance of, permits for the construction and operation of air curtain incinerators in the State of Florida. SMG is a contracting company, with residential, trucking, agricultural, and commercial driver's license divisions. SMG is the applicant for a permit to operate an air curtain incinerator. Petitioners reside in Citrus County, Florida, in the vicinity of the constructed and operational air curtain incinerator. For the most part, Petitioners reside northeast, east, or southeast of the site. The Petitioners demonstrated their standing in this proceeding. SMG's Construction Permit On May 23, 2001, SMG submitted an application for an air construction permit to the Department's Southwest District Office. The application sought authorization to construct an air curtain incinerator "[o]n the east or west side of 6844 N. Citrus Avenue, Crystal River," Citrus County, Florida. 1 The general purpose of pursuing this permit was to burn wood waste. On July 9, 2001, the Department issued SMG a Notice of Intent to Issue the Proposed Air Construction Permit (Permit No. 0170360-001-AC). A copy of the Notice of Intent was published in the Citrus Times in Citrus County on July 19, 2001. On August 6, 2001, the Department issued SMG an air construction permit for the proposed air curtain incinerator. The construction permit authorized the construction of a McPherson Systems, Inc. - Model M30E air curtain destructor (incinerator) with under fire air at a natural non-Title V facility. Pursuant to the terms of the construction permit, in November 2001, SMG constructed an air curtain incinerator on approximately 500 acres of land on the east side of State Route 495 north of Crystal River in Citrus County, Florida, on property owned by the Gerrits family. See Endnote 1. Pursuant to the construction permit, SMG installed a McPherson Systems, Inc. - Model M30E air curtain incinerator with under fire air, a refractory lined burning pit, three upper chamber refractory lined walls (ten feet high), and a stainless steel spark arrester screen. The manifold blower and under fire air fans are powered by an electric engine. The manufacture designs and specifications for the McPherson model were submitted with the application for the air construction permit and admitted in evidence. Construction of a portable air curtain incinerator with a blower/fan system powered by a diesel-fired engine was contemplated by the air construction permit. Although cheaper, SMG instead chose to install the McPherson model that would produce the cleanest burn, i.e., one with fewer emissions, that was operated by electricity. The McPherson model used by SMG is recognized as an efficient, reliable model of air curtain incinerator. The diesel-fired blower/fan/engine system contemplated by the construction permit is considered exempt from permitting. An engine operated by electricity has no emissions and therefore does not require an air permit from the Department. The Department could not require a permit for the blower/fan system alone. The operating permit supercedes the construction permit, except as amended. Testing after Construction of the Incinerator On November 23, 2001, SMG began operating the air curtain incinerator. Pursuant to Special Condition 22 of the air construction permit, an initial visible emissions (VE) (opacity test) compliance test was performed on November 23, 2001, by Bernard A. Ball, Jr., an environmental engineer with Southern Environmental Services, Inc. The results of the initial VE compliance test were within the opacity limits contained in the construction permit. Specific Condition 19 of the construction permit requires SMG to maintain daily operating logs of the air curtain incinerator's daily operations. In order to obtain an air operating permit, a permit applicant is required to demonstrate compliance with the Department's rules and with the conditions of the construction permit. The Department requires an applicant for an operating permit to submit copies of recent daily operating records for the facility and copies of the emissions test required by the construction permit. These operating records are submitted in order for the Department to determine whether the applicant is complying with the applicable emissions standards and that the applicant is, in fact, maintaining the required operating logs as required by the construction permit. In order for SMG to obtain the operating permit for the incinerator, Specific Condition 28 of the construction permit required SMG to file an application for an air operating permit with the Department within 45 days of testing and required the application to include a copy of the VE test report and copies of at least two recent weeks of daily operating logs. On March 14, 2002, a second VE test was conducted by Mr. Ball, which also indicated that emissions were within the construction permit's opacity limits. On April 1, 2002, SMG submitted its application for the air operation permit to the Department. The application was signed by Sean Gerrits, and contained copies of the VE test reports for the November 2001 and March 2002 tests, as well as three and one-half months of daily operating logs, certificates showing that the incinerator operators were trained, and photographs of the incinerator in operation. SMG submitted the documentation required under the construction permit. On April 19, 2002, Robert E. Soich, Jr., air compliance inspector for the Department's Southwest District Office, performed an unannounced inspection and conducted a VE test in response to a complaint by Mr. Leonard Kaplan (a Petitioner), complaining of odors present. Excessive visible emissions were observed by Mr. Soich on April 19, 2002. The incinerator did not pass the VE test because of the improper alignment of the blade angle on the manifold of the blower system and because of green leaves and inadequate drying of the materials to be burned in the incinerator. Mr. Soich also observed, in part, that "materials need to be prepared better for burning." As a result of this unannounced inspection and the negative VE test, the Department requested SMG to provide an explanation of the VE test results and of the type of changes SMG planned to implement to correct the problem. On learning of the problem, SMG shut down the incinerator and called a McPherson mechanical contractor to come out and adjust the blade angle. Southern Environmental Services conducted another VE test to ensure the problem had been corrected. On April 22, 2002, a VE test was conducted by Southern Environmental Services on-site which showed compliance with the construction permit. On April 30, 2002, SMG advised the Department that adjustments were made to the baffles to correct the angles. SMG provided the Department with the April 22, 2002, VE test results. SMG also implemented better operational procedures. On May 30, 2002, with Mr. Soich present, SMG, by Byron E. Nelson, performed another VE test. The test results showed compliance with the opacity limits in the construction permit and the results were submitted to the Department.2 Mr. Nelson, an environmental engineer with Southern Environmental Sciences, testified that he has been involved in preparing approximately two dozen applications for air curtain incinerators and has conducted probably "thousands" of visible emissions tests. Mr. Nelson is certified by the State of Florida to conduct VE tests. He has seen "two or three dozen" air curtain incinerators in operation and has conducted VE tests on about 20 of them. Based on his experience, Mr. Nelson testified that SMG employed the same practices and controls to control odor, smoke, and fugitive emissions as other such incinerators he is familiar with. He testified that the amount of smoke and odors from the SMG incinerator is similar to that emitted from other air curtain incinerators, and that the fugitive emissions from the SMG incinerator were probably less than others he is familiar with. Based on his experience, Mr. Nelson opined that SMG has taken reasonable measures to minimize odor, smoke and dust/particulates from the operation of the incinerator. Mr. Nelson likewise opined that the SMG incinerator is well run, perhaps better run than other incinerators. (Mr. Nelson had been on the SMG site twice when the incinerator was operating and burning wood products.) Based on his experience, Mr. Nelson opined that SMG meets the requirements necessary to obtain an air operating permit from the Department and has demonstrated that it has complied with the conditions of its construction permit. Mr. Soich is the air compliance inspector for the Department's Southwest District Office. He testified that he has inspected the operations of other air curtain incinerators over the last 15 years. Mr. Soich testified that SMG is one of the "better operators" of air curtain incinerators he is familiar with. (Mr. Soich visited the SMG site approximately nine times from March 13, 2002, to October 15, 2002.) Mr. McDonald is the Air Permitting Engineer for the Southwest District Office of the Department. He is responsible for reviewing all applications for air curtain incinerators in the Southwest District and has reviewed applications for between 25 and 30 incinerators. Mr. McDonald reviewed the SMG permit applications. Based on the latest VE test results, copies of the records attached to the operating permit application, and his experience, Mr. McDonald, for the Department, determined that SMG had demonstrated compliance with the conditions of the construction permit and recommended issuance of the operating permit for the incinerator. He maintained the same position at hearing. SMG provided assurance that the DeRosa Fire Department would respond in the event of a fire at the incinerator. On June 19, 2002, the Department issued the proposed air operating permit. Operation of the Air Curtain Incinerator 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 air curtain traps smoke and small particles and recirculates them to enhance combustion and reduce smoke. The underfire air introduces air underneath the air curtain to ensure complete combustion and minimize opacity at start-up. The refractory-tiled ceramic concrete burn pit provides a safe combustion chamber, and the refractory panels keep excess heat from escaping. The upper chamber refractory panels, which surround three sides of the burn pit, allow more retention time in the burner to better control opacity and sparks. The stainless screen spark arrestor also controls sparks and debris from leaving the burner. The operating permit application proposed the use of an air curtain blower along with a manifold to provide forced air to the burning pit. According to the manufacturer specifications, the blower can force air into the pit at velocities of between 100 and 120 mph. This ensures that the flames in the burn pit receive enough oxygen to combust completely. The air circulates inside the burn pit to ensure a complete burn, which reduces smoke and odor. The combustion temperature for the burning pit ranges from approximately 1,800 to 2,500 degrees Fahrenheit. The operating permit allows a maximum charging rate of ten tons per hour on a daily average basis and 31,200 tons per any consecutive 12 month period. The incinerator has been operating below the maximum charging rate. The operating permit limits the hours of operation (charging) to 3,120 hours per year, i.e., ten hours/day, six days/week, 52 weeks/year. According to various SMG operating and maintenance logs, the incinerator has been operated below this limit. The operating permit, in accordance with Rule 62- 296.401(7), Florida Administrative Code, allows the burning of only wood waste, yard waste, and clean lumber, and prohibits the burning/incineration of materials such as sawdust, paper, trash, tires, garbage, rubber material, plastics, liquid wastes, Bunker C residual oil, roofing materials, tar, asphalt, railroad cross ties, or other creosoted lumber, chemically treated or painted wood, and other similar materials. Biological waste shall not be burned in the incinerator. During its operation, the incinerator only burned wood and yard waste, and Mr. Gerrits testified that the waste materials are inspected before being burned in order to ensure that no prohibited materials are burned. If any non-authorized materials are observed, they are removed before the waste is burned. See Finding of Fact 24. The operating permit allows visible emissions during start-up periods (not to exceed the first 30 minutes of operation) of an opacity up to 35 percent, averaged over a six- minute period, as provided for in Rule 62-296.401(7)(a)-(b), Florida Administrative Code. The McPherson model is designed to meet the requirements of the above-referenced rule, and the VE tests run during start-up periods (except one performed by Mr. Soich on April 19, 2002) demonstrated compliance with this requirement. Id. The operating permit limits visible emissions outside of start-up periods (the first 30 minutes of daily operation) to no more that five percent opacity, with visible emissions of up to ten percent opacity allowed up to three minutes in any one hour as provided for in Rule 62-296.401(7)(a), Florida Administrative Code, and 40 Code of Federal Regulations Part 60, Subpart CCCC, adopted and incorporated by reference in Rule 62- 204.800(8)(b)74, Florida Administrative Code. (Rule 62- 296.401(7)(a) permits up to 20 percent opacity. The ten percent rate is required by the new federal standard. See SMG Exhibit 13, page 3 of 9.) The opacity limits in the operating permit are more stringent than those contained in the construction permit, which allows visible emissions of up to 20 percent opacity up to three minutes in any one-hour period. (By definition, a "visible emission" is "[a]n emission greater than 5 percent opacity or 1/4 Ringelmann measured by standard methods." Rule 62-296.200(278), Florida Administrative Code.) The VE test results submitted by SMG demonstrate compliance with the opacity limits in the operating permit and with the opacity limits in the construction permit for the days tested. See Findings of Fact 18, 22, 27, and 29. The operating permit requires that the incinerator must be attended at all times while materials are being burned and that public access to the incinerator must be restricted. A certified operator is in attendance whenever the incinerator is operated, i.e., when something is burning in the incinerator. A fence has been constructed around the property. The operating permit prohibits starting the incinerator before sunrise and requires that all charging of the incinerator be completely stopped before sunset as required by Rule 62- 296.401(7)(h), Florida Administrative Code. Mr. Gerrits testified that the incinerator is never started before sunrise and is typically started after 8:00 a.m. Mr. Gerrits testified that the incinerator is never charged after sunset and that charging typically stops at 4:00 or 5:00 p.m. See Endnote 4. These practices are consistent with the Operations and Maintenance Guide for the incinerator. The operating permit limits the height of the ash in the 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(7)(m), Florida Administrative Code. The one-third depth line is marked on the outside of the incinerator. Mr. Gerrits testified that ash is regularly removed from the burning pit every third day to keep the ash level low, which helps ensure better combustion and reduces smoke. The operating permit provides that material shall not be loaded into the incinerator in such a way that it will protrude above the air curtain. Testimony established that the SMG incinerator is properly loaded. The operating permit requires that all operators of the incinerator be trained in the proper operation and maintenance of the incinerator and that an operations and maintenance guide be maintained at the facility at all times. All of the operators of the SMG incinerator have taken a four-hour training course to learn how to operate the incinerator in accordance with Department regulations and good operating practices, and certificates attesting to that training were submitted with the application for the operating permit. An Operations and Maintenance Guide was submitted with the application for the construction permit. The operating permit requires the maintenance of a daily operating log. The daily operating log must be maintained at the facility for at least five years and must be available for inspection by the Department upon request. SMG currently maintains a daily operating log that meets the requirements of the construction permit. SMG submits those daily logs to the Department on a monthly basis after the Department requested that SMG do so. The log includes a date and site location, daily operating hours, total charges, total material charged in tons, average hourly charging rate, any maintenance performed, fuel usage in gallons, and the operator's signature. The logs of record contain this information and have been initialed by SMG's operator for each day when the incinerator has been operated. SMG operators responsible for preparing the logs have no incentive to indicate the incinerator is not operating on days or during hours when it is running, as a deliberate misstatement on the operating logs could result in enforcement action by the Department and being fired by SMG. The operating permit requires that all reasonable precautions be undertaken to prevent and control the generation of unconfined emissions of particulate matter in accordance with Rule 62-296.320(4)(c), Florida Administrative Code. SMG takes reasonable precautions to prevent and control the generation of unconfined emissions of particulate matter, including paving the road that leads to the incinerator to reduce dust, wetting the ashes removed from the burn pit, wetting the ash piles and ramp that addresses the incinerator, approaching the incinerator at a slow rate, and placing a charge into the incinerator slowly and carefully. SMG voluntarily added a sprinkler system on all four corners of the burning pit that was not contemplated by the construction permit. The Department witness Mr. McDonald testified that this provided an additional method to control unconfined emissions. Although the construction permit and proposed permit do not contain conditions prohibiting the burning of green wood or wet wood waste, SMG takes precautions at the request of Mr. Soich to ensure that the wood is properly dried before being burned. See Finding of Fact 24. This helps to reduce smoke and emissions from the incinerator. (Moisture is the primary factor that inhibits burning and causes smoke and potentially odor.) As part of the routine practice in handling the wood waste before it is burned, trucks bringing wood waste to the incinerator are instructed to dump it into a pile. SMG operators then use a loader to flatten out the pile and remove dirt, prohibited materials, and harvestable pieces of wood. Harvestable pieces of wood and dirt are removed to separate staging areas. The remaining wood waste is separated into long windrows, with the oldest row closest to the incinerator. The windrows are flipped or rolled over in the direction of the incinerator, allowing the waste to dry. The waste in the row closest to the incinerator is burned, and subsequent windrows are rolled over in its place. Ash is generally removed from the burn pit every third day; it is wetted on removal to reduce dust, and the ash piles adjacent to the incinerator are also kept wetted by the sprinkler system. The ash is eventually mixed with the dirt in a composter for use as Class-A unrestricted compost. The SMG operator in charge on a particular day decides whether the incinerator will operate that day, in accordance with standard operational practices. The operator checks the weather forecast. If it is raining or if there are high winds (over 20 miles per hour), the incinerator will not be operated that day, and SMG typically waits four days after a rain to begin operating the incinerator again. These procedures are not contained in any permit conditions. The purpose of not operating during or immediately after a rain and taking steps to ensure the wood is dry is to reduce smoke; wet wood smokes more. Rainy weather can also affect odor. The purpose of not operating during windy conditions is to reduce the possibility of fire on SMG's property, but wind can also affect odor and visible emissions. On days when the incinerator is not operating, SMG conducts yard maintenance, maintains the waste windrows, and runs the composter. The composter is a source of noise and is located adjacent to the incinerator and is run when the incinerator is shut down. To ensure that the visible emission limitations are not exceeded and objectionable odors3 not generated, the operating 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. Generally, the incinerator keeps burning an hour to an hour and one-half. Mr. Gerrits testified that the fan is kept running until the flames and smoke die out and that a certified operator is present until the fan is switched off. The operating permit requires that the testing of visible emissions must be conducted within 90-100 percent of the maximum allowable charging rate of 10 tons/hour and shall be conducted when the highest emissions can reasonable be expected to occur.4 Testing of the SMG incinerator was conducted at within 90-100 percent of the maximum allowable charging rate of 10 tons per hour, and the May 30, 2002, test results indicated that the incinerator was operating within the opacity limits of its permit even when operating at close to maximum capacity. Evidence established that the May 30, 2002, VE test complied with the specific conditions of both the construction and operating permit. See Finding of Fact 29. The test method for visible emissions required by both the construction permit and the operating permit is EPA Method 9, adopted and incorporated by reference at Rule 62- 204.800(8)(b)74, Florida Administrative Code. (Method 22 is not required pursuant to Department rules for compliance testing of an air curtain incinerator.) Testimony established that Method 9 was the method used for the VE tests conducted on the SMG incinerator. As required by both the construction and operating permits, the incinerator is located in excess of 300 feet from any pre-existing occupied building located off site as required by Rule 62-296.401(7)(j), Florida Administrative Code. The closest residences, that of Mr. Gerrits' father and his tenant, are approximately 1,500 feet away. Petitioners' Challenge For the most part, Petitioners reside northeast, east, or southeast of the incinerator. One Petitioner resides approximately three-tenths of a mile southeast of the incinerator; others reside at greater distances, up to approximately a mile and one-half away from the incinerator. Each of the Petitioners who testified have resided in this area for many years, pre-dating the operation of the incinerator. The Petitioners who testified were credible and well- intentioned. Each of these Petitioners maintained daily logs covering several months when the incinerator was authorized to operate. Some kept logs for several months, while others kept logs for several days. They noted their observations and perceptions in the logs. Admittedly, Petitioners are not experts in the detection of odors or noise levels. Nevertheless, they recorded their own experiences as to what they saw, heard, and/or smelled, believing that the odors and noise came from the incinerator. Some recorded that they smelled the strong odor of smoke, an "acrid smell," a "pungent smell," for example; "it makes your eyes burn and throat burn" said another during the hearing. One witness described the experience as being a prisoner in his house. Another does not go outside when the smell is bad. Generally, the level of odor varied with the weather conditions, i.e., a stronger odor was noticed on foggy and wet days or nights and when the wind blows from the west, which Petitioners contend is the prevailing wind. Some witnesses only smelled the odor during the night and not during the day, and not all of the time. Some complained about the odor and noise, or one and not the other. Some believed the noise coming from the incinerator was a major problem. At least two witnesses who live approximately three-tenths of a mile and 3,500 feet, respectively, from the incinerator site, described the noise as being like a jet airplane. One witness shuts her windows to keep out the noise. (SMG also operates a "wood chipper" or "composter" on site which is loud. Mr. Gerrits stated that he did not think the sound was the same as made by the incinerator fan. He also stated that "[i]t doesn't exceed the noise decibels. It doesn't exceed background noise levels at [their] property line.") Petitioners documented their concerns which are described, in part, above, and also documented their complaints to the Department and local government. It appears that each of the logs prepared by the Petitioners (who kept logs) were given to Petitioner Martha Futscher, who summarized and compiled a hand-written master list of the complaints. Then, Mr. Harvey inputted this data on the master list (spread sheet) of complaints, which appears as Petitioners' Exhibit F1. The master list contains recorded observations from May 2002 through January 2003. The master list contains a representation of when the incinerator started and stopped for various days and when it was operational or not, and this information was derived, according to Mr. Harvey, from the logs maintained by SMG. The master list also provides tons per hour of waste burned on particular days, the observer's initials, and the approximate distance each observer lived from the incinerator, and the comments, with time of observation or perception noted. There are discrepancies between the master list and the actual logs maintained by SMG as to when the incinerator was operational. There also appears to be several differences in observations between the Petitioners' master list and other evidence which indicates when Mr. Soich inspected the incinerator and determined that the incinerator was operating satisfactorily. Compare Petitioners' Exhibit 2 with Petitioners' Exhibit F1. For example, the master list records an observation from May 30, 2002, when the incinerator was operating, when there was noise and smoke noted at 8:00 a.m., and flames at the incinerator and odor at 5:30 p.m. Conversely, Mr. Soich was on-site on May 30, 2002, and observed the scheduled VE test. No problems were noted with the operation on this date by Mr. Soich. Mr. Soich also noted that "wood waste was properly dry and free of debris." The VE test on May 30, 2002, was performed from 10:29 a.m. to 11:59 a.m. and showed compliance with opacity limits. The master list indicates that black smoke was observed (no time given) on May 7, 2002, when the incinerator was operational, yet Mr. Soich inspected the incinerator on that day and there is a notation in the record that the incinerator was operating between 0-5 percent visible emissions. (Mr. Soich opined that it should be very rare to smell objectionable odors if the visible emissions run at a 5 percent level.) For October 15, 2002, there is a notation in the master list that a Petitioner commented that the incinerator was running during the day ("AM/PM Running") and that there was a strong smell at approximately 7:05 p.m. A strong smell at the person's house was also noted at approximately 9:30 p.m. on that day. However, Mr. Soich performed an annual inspection of the incinerator on October 15, 2002, and there is a notation on the master list, Petitioners' Exhibit 2, that the incinerator was not operating due to recent rain. As one Petitioner testified, her point was that the inspectors are not there when she hears the noise, sees smoke, and smells the odor. Mr. Soich confirmed that he does not inspect the facility in the evening. Petitioners also provided, as evidence in support of their position, six videotapes of the incinerator for September 19, October 3, October 23, November 25 (2 tapes), 2002, and January 10, 2003. (Mr. Harvey took the videotapes from the same location, across the street and west of the incinerator.) Each tape, except for September 19, 2002, showed smoke emanating from the operational incinerator. On September 19, 2002, the incinerator was not running according to the SMG log. There was a malfunction which was reported to the Department. The SMG log indicates that the pit was cleaned out, site cleared and rows moved. There is also a notation in the SMG log for this date that there was a power failure/malfunction at the incinerator at 9:00 a.m., and that the power was out. According to Mr. Gerrits, the malfunction caused smoke. (One Petitioner observed smoke from ashes on September 19, 2002.) While the Petitioners proved that there was smoke emanating from the operation of the incinerator on the days which were videotaped, with the exception of September 19, 2002, this did not necessarily prove that the emissions exceeded the requirements of the Department rules or that there was an objectionable odor emanating therefrom. Mr. Stoich observed the videotapes played during the hearing. In particular, with respect to the January 10, 2003, videotape, Petitioners' Exhibit 12, Mr. Stoich stated that a level of opacity cannot be determined from photographs and videotapes. He also noted that there was "a lot of white smoke," an atypical situation according to him, emanating from the incinerator and that he, as a compliance inspector, would have investigated further and performed an inspection, including a VE test, to determine if there was a violation, had he seen this smoke. However, he stated that without actually seeing the operation, he could not determine whether a violation had occurred. There was persuasive evidence that compliance with the opacity limits of a permit can only be determined through VE tests conducted using the Department-approved EPA Method 9. The VE test takes into account wind, the angle of the plume, the position of the sun, and other factors, and must use appropriate averaging to ensure that the test is valid. A smoke plume can look quite dense at the wrong angle or if the light is reflecting off the plume in a certain way, when in fact it is in compliance with Department rules. The VE tests for the incinerator have, with one exception, see Finding of Fact 24, demonstrated compliance with the opacity limits in the construction permit. As noted herein, upon receipt of notice that one VE test failed, SMG implemented corrective actions, and two VE tests conducted after the time showed the incinerator was operating in compliance with the opacity limits of the permit. See Findings of Fact 27 and 29. The Department relies on its compliance inspectors, such as Mr. Soich, to make a determination of whether an air emission source is causing an objectionable odor. There does not appear to be an approved Department method for measuring odors from incinerators. (Mr. Nelson stated that odors are difficult to test and that "odor is done collecting samples." No samples were taken or analyzed.) On the other hand, Mr. Soich testified that, based on his years of experience, he has developed certain methods for determining whether a facility is emitting an objectionable odor under the rules. If he receives an odor complaint, which he has in this case, he goes to the site and checks the prevailing winds. He also travels around the facility to determine the source of the odor. An odor can be deemed objectionable if it is very strong and overpowering, such that he cannot stay on- site and breathe in the odors. An odor can also be deemed objectionable if, after being on-site for some extended period of time, he begins to develop symptoms such as runny eyes, a scratchy throat, or a headache as a result of the smell. Finally, he may bring along another Department employee to determine whether the other individual finds the odor objectionable. Enforcement actions can be taken if objectionable odors are detected. Mr. Soich testified that he has inspected the incinerator at least nine times in the past year and never detected an objectionable odor. On some of the visits, the incinerator was not operational. On rebuttal, several residents of the area testified that they had not experienced objectionable odors from the incinerator. David Stevens, the Chief of the DeRosa County Fire Department, testified that an open land-clearing burn emits black smoke, more so than he observed from the incinerator. This fire department only had to respond to false alarms at the incinerator. Mr. Stevens personally inspected the operation of the incinerator and thought it was a very safe operation. Randy Morgan, a wildlife firefighter and certified burner with the Division of Forestry with over 16 years of experience in fire control, testified that approximately 50,000 acres of the state land burns occurred in Citrus County last year. These land burns can be a significant source of smoke and odor. In addition, approximately 50 open burn authorizations are issued each day. He also testified that controlled burns of approximately 15 fires of approximately 50 to 2,000 acres a day occurred in 2002 in proximity of the SMG incinerator which is a source of smoke and odor. The state also conducts open burns of some kind approximately ten months out of the year. Other witnesses testified that, given the rural nature of the community, open burning of trash, wood, and leaves occurs on a regular basis. Ultimate Findings of Fact Credible evidence established that SMG meets or exceeds the requirements in the construction permit to reduce smoke, dust, and odor, and these requirements are carried over to the operating permit. Credible evidence established that SMG employs the same, if not better, practices and permit conditions to control smoke, dust, and odor as other air curtain incinerators in the state. Credible evidence established that the SMG incinerator is operated in accordance with its construction permit. Credible evidence established that the SMG incinerator can be expected to be operated in accordance with its operating permit. Credible evidence established that the SMG incinerator is operated in accordance with Department rules. In light of the foregoing, SMG has demonstrated reasonable assurance that its air curtain incinerator has been operated in compliance with the construction permit and that the incinerator can continue to be operated in accordance with the conditions of the operating permit.
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 SMG's application and issuing Permit No. 0170360-002-AO, as amended, and subject to all conditions, including but not limited to the Specific Conditions set forth in the Department's Notice of Intent to Issue, for the operation of an air curtain incinerator in Citrus County, Florida. It is further recommended that Petitioners' challenge to the amendment to the operating permit be dismissed. See Preliminary Statement. DONE AND ENTERED this 21st day of April, 2003, in Tallahassee, Leon County, Florida.5 CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 2003.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background This controversy arose as the result of an application being filed by respondent/applicant, G. T. Williams (Williams or applicant), seeking a permit to construct a biological waste incinerator at 1530 North Beal Street Extension, Fort Walton Beach, Florida. The original application reflected that applicant intended to incinerate type 4 cardboard, paper and plastics furnished by area hospitals, laboratories and doctors' offices at a rate of 440 pounds per hour. Also, the proposed unit included a secondary chamber with a 3,000,000 BTU burner and controls for one second retention at 1800 degrees. However, on August 20, 1990, applicant amended its application to reflect that, instead of a one second retention chamber, it would employ a two second retention chamber to ensure total combustion in the secondary unit. After receiving the application and conducting a review and on-site inspection, respondent, Department of Environmental Regulation (DER), gave notice of its intent to grant the permit on August 23, 1990. The agency action also required applicant to publish notice of such intended action in a local newspaper of general circulation and to provide the agency with proof of publication. Because applicant had obtained a draft of the notice prior to its formal issuance by DER, it published notice of the intended action on August 1, 1990, or more than three weeks prior to the date of the formal proposed agency action. Considering such publication to be ineffective, DER gave notice on October 15, 1990, that it was reversing its earlier action and denying the permit. On October 20, 1990, applicant published notice of the agency action. After DER issued a final order denying the permit, applicant filed an appeal but later dismissed it after DER agreed to issue the permit subject to a petition for hearing filed by a third party prior to the issuance of the final order. On November 1, 1990, petitioner, Okaloosa County (County), the county in which the facility will be located, filed its petition for administrative hearing. As later amended on December 12, 1990, the petition contested the proposed issuance of a permit generally on the grounds that its employees working in nearby areas would be exposed to harmful emissions from the facility and the applicant had not given reasonable assurances that the facility would comply with all DER pollution standards. The Application Type of permit being sought In order for the facility to become operational, Williams is required to obtain both a construction and operating permit. This application concerns only a construction permit and, if approved, Williams will be allowed to construct the facility, have an initial start-up period, and perform compliance testing within the start-up period to demonstrate that the facility can meet the requirements and limitations set forth in the permit. Before obtaining an operating permit, Williams must first perform compliance testing under the auspices of a certified testing consultant employed by DER and submit those results to the agency. If the testing results do not meet all DER standards, an operating permit will not be issued until and if all deficiencies are corrected. The unit Applicant proposes to utilize an incinerator manufactured by Cleaver- Brooks, model CBU-500, with a design capacity to burn 500 pounds of Class 4 biological waste per hour. 1/ As a unit designed to burn no more than 500 pounds of waste per hour, the unit falls in the smallest of the three categories of incinerators regulated by DER. The unit was described by a DER witness as being a "relatively small" one and the size typically found "behind your medium sized hospital". It costs in excess of one hundred thousand dollars. The unit is a modular, factory built, packaged and tested system that burns combustible waste of varying heat content. The basic system consists of the main (pyrolysis) chamber, secondary chamber, which is the primary pollution control device, burners, stack and controls. The incinerator employs a two-stage waste combustion process. In more technical terms, the first stage is a pyrolysis process whereby combustible gases are generated under controlled air and temperature conditions. The main chamber receives waste through a manual batch door or from an optional hydraulically powered feeder, and with the aid of a temperature controlled burner and sub-stoichiometric underfire air supply, combustible gases with minimum particle entrainment are produced. Complete destruction of the fixed carbon and less volatile material takes place continually in the firebed. The second stage is an excess air combustion process whereby the combustible gases generated in the main chamber are ignited in the secondary chamber producing a high temperature carbon dioxide and water vapor flue gas. The secondary chamber supplies all the air for this combustion through temperature controlled forced air jets and employs temperature controlled burners to ensure complete ignition of the gases. The flue gas is then ducted to the stack and exhausted to the atmosphere. Although the applicant originally proposed to use a thirty foot stack on the unit, he has agreed to install a stack having a height that will be a minimum of two and one-half times the height of any building within one hundred fifty feet. Location The proposed site for the incinerator is on a flat, three-acre lot within an industrial park located approximately 1,150 feet east of North Beal Street Extension, a paved collector road that serves an industrial area north of the City of Fort Walton Beach. This location was selected by Williams because it was "run down", was basically "heavy industrial", and was "already polluted" with junk cars and plastic. Indeed, adjacent to or in the general vicinity of the site are undeveloped Eglin Air Force Base property, a plastic recycling plant, a landfill operated by the County, a City of Fort Walton Beach sewer plant and an auto salvage yard. According to the County engineer, the surrounding area "looks pretty bad" but is "probably an average industrial site." There is also an older residential area known as Pine Subdivision which, at its closest point, lies approximately 200 feet southeast of the edge of applicant's property. Applicant owns a 3,000 square foot metal frame building of an undisclosed height on the southeast end of his property and intends to lift up one of the garage bay doors in the front, slide the lower unit in place, peel back three or four sections of metal roof, set the horizontal unit on top, and replace the roof. A stack will then be added to the unit. The property is fenced and access may be had only by a dirt road leading into the area. Treatment process Applicant intends to provide service to various hospitals, physicians, and laboratories in the area. At the present time, approximately one-half of the medical waste in the Panhandle portion of the state is being transported to incinerators in central and south Florida for disposal because there are inadequate facilities in the Panhandle area. Williams will use a panel truck registered with the Department of Transportation to transport all materials to the site. He will also give all customers special sealed containers in which to place their waste materials. These containers, which are known as sharps containers, are designed to hold syringes, scalpels, and other objects capable of penetrating the skin, as well as cotton swabs saturated to the point of dripping. After arriving at the site the truck will be unloaded and the material and containers placed in the incinerator and burned. Because Williams contemplates burning waste as often as needed, waste materials will not be stored on premises except for very short periods of time. In addition, the unit will be operated by a state certified gas operator who has received special training from the manufacturer. The unit into which the waste is fed is approximately eight feet in diameter, nine feet high and cylindrically shaped. Through the use of natural gas, the burn chamber reaches a temperature of sixteen hundred degrees, a temperature at which no organisms can survive. The gases from the first burn chamber then circulate into the secondary burn chamber for two seconds, which is greater than the one second retention time required by DER rules. The only visible emission seen from the stack will be heat waves. All emissions will be well within the air quality standards utilized by DER. Any glass slag or ashes remaining in the unit can be handled as regular waste and disposed of in a class 2 landfill. Finally, the prevailing winds throughout most of the year are from the south and southeast and thus all emissions will blow primarily to the northwest across the sewage treatment plant area. d. DER's review of the application In connection with the processing of the application, DER reviewed it for completeness and accuracy and was satisfied that the application was complete and accurate in all respects, including the submission by applicant of a topographic map. In addition, DER staff conducted an on-site inspection of applicant's property. Also, during the course of the review, DER technical staff had a number of discussions with Williams to clarify the information submitted with the application. Finally, based upon its review of the data originally filed together with information provided by Williams during the review process, DER staff reached the preliminary conclusion that Williams had satisfied all applicable rules and statutes. Petitioner's Concerns In its amended petition, the County raised two principal concerns regarding the construction of the facility. First, it contended that its employees who worked in areas adjacent to the facility would be subject to harmful emissions from the unit. Second, it argued that the applicant had failed to give reasonable assurance that the unit would comply with all DER standards. During the course of the hearing, the County focused principally on the issues of (a) "hot spots", which are high concentrations of pollutants which may occur at a distance of ten feet up to as far as five hundred feet downwind from the point of emission if the stack height on the unit is not at an adequate height, (b) applicant's lack of a storage facility for waste to prevent the potential leaching into the ground of medical waste waiting to be incinerated, and (c) the agency's failure to require Williams to post proof of financial responsibility through a bond. These concerns will be addressed below. The agency does not have a have a specific stack height rule applicable to the incineration process but rather requires that the unit be constructed in accordance with good engineering practices and that it meet all emission requirements. At hearing petitioner's expert agreed that any potential "hot spots" problem would be resolved by applicant agreeing to utilize a stack having a height of at least two and one-half times the height of any building within one hundred fifty feet of the unit. Moreover, DER has required that Williams place a monitoring device on the stack so that all emissions can be measured 24 hours per day. Since the applicant has agreed to both of these conditions, this issue has been resolved. County employees occasionally work on several roads within Pine Subdivision, one of which is only 250 feet from the proposed facility. They also are engaged in the periodic maintenance of ditches which run along the sides of North Beal Street Extension, and eight to ten employees regularly work at the County landfill approximately 1,350 feet away. To this extent, then, it may be reasonably inferred that any potential injury suffered by County employees would differ in degree and kind from that suffered by members of the general public. Even so, with the resolution of the "hot spots" problem, the County's expert agreed that the proposed incinerator would meet all applicable requirements contained in Chapter 403, Florida Statutes, and that all pertinent agency rules would be satisfied. Thus, the employees would not be exposed to emissions that contravene DER's air pollution requirements. There is no evidence of record to support a finding that applicant should file a bond as a prerequisite to being issued a permit. Indeed, the only evidence on this issue suggests that DER requires a bond from an applicant when it believes the applicant has not proceeded in good faith or has a history of violating DER regulations. Neither situation is applicable here. As to the storage issue, the evidence shows that applicant will incinerate materials as often as needed, and waste materials will be kept on the premises only for brief periods of time when the unit is already filled and then only until those materials are burned and the unit is ready to receive new waste. Thus, as a practical matter, the facility will not be used to "store" waste materials within the meaning of that term. In addition, the area where waste materials will be kept until being fed into the unit will be an integral part of the treatment facility, and DER represents it has no authority to require Williams to submit information regarding storage areas associated with the incinerator. Put another way, in the construction permit review process, DER is concerned only with the air pollution source and the adequacy of the proposed control equipment. This was not contradicted. Finally, there was no evidence to suggest that the materials will leak into the ground. Indeed, petitioner's expert suggested only that the facility should be "secure" and that the material should be covered in the event of rain. The Required Reasonable Assurance Effective on an undisclosed date in 1991, new and more stringent DER rules became applicable to all new medical waste incinerators, including that proposed by Williams. Thus, his application was reviewed to determine its consistency with those new standards. An agency rule [rule 17-2.600(1)] provides that facilities with a capacity equal to or less than 500 pounds per hour, such as the Cleaver-Brooks 500 model, shall not have particulate matter emissions exceeding 0.100 grains per dry standard cubic foot of flue gas, corrected to 7% 0 or hydrochloric acid (HCL) emissions that exceed 4 pounds per hour. When operated as proposed by Williams, and as guaranteed by the manufacturer, emissions of small amounts of particulate matter and hydrocloric acid will not exceed those amounts allowed by rule. In addition, any emissions of water vapors and carbon dioxide will be in very small amounts and will not result in unlawful emissions. This finding is based upon the testimony of witnesses Middleswart and Dzurik which has been accepted as being persuasive on this issue. Thus, Williams has given reasonable assurance that the proposed facility will not cause air pollution in contravention of DER standards. The applicant has given reasonable assurance that the proposed facility will comply will all other applicable DER standards and rules. This was not controverted. Therefore, Williams has demonstrated his entitlement to the permit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that G. T. Williams' application for a permit to construct a biological waste incinerator adjacent to North Beal Street Extension, Fort Walton Beach, Florida, should be GRANTED subject to the following condition: That the applicant utilize a stack height of two and one-half times the height of any building within 150 feet of his unit. DONE AND ENTERED this 13th day of January, 1992, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1992.
