Findings Of Fact On January 23, 1985, following the filing of the and its on-site inspection, DER issued its notice of intent to grant the air construction permit, pursuant to Chapter 403, Florida Statutes (F.S.), and Chapters 17-2 and 17-4, Florida Administrative Code (F.A.C.). The notice stated that the proposed equipment, with a cyclone primary dust collector followed by a Dustex Baghouse Model DW-14-28W dust collector, was adequate to insure compliance with DER particulate emission standards. The ambient air standards for sulfur dioxide emissions by the plant were to be controlled by the use of low sulfur fuel oil (maximum 0.5 percent sulfur). Subsequent to the issuance of the notice of intent, DER received a Petition for Administrative Hearing regarding the issuance of the permit. The petition alleged, inter alia, that the plant would emit particulates and gases in contravention of Chapter 17-2, F.A.C., and that stormwater run-off from the plant would be contaminated with oil, scum and debris. The petition further asserted that this run-off would cause water pollution in contravention of Chapters 17-3 and 17-25, F.A.C., and would introduce pollution into Dry Branch and Bayou George, a Class I Water. The permit application covers only the proposed batch plant site and the immediately adjacent property consisting of 2.15 acres. The location of the building would be at the northern end of the parcel, approximately 0.10 miles from both Star Avenue and U.S. Highway 231. There is no residential use of property immediately adjacent to the project site. However, Petitioners all reside in the immediate area, and will be affected to some extent by this facility. Dust from construction activity has already been experienced. In this regard, it must be recognized that the area has no zoning restrictions and is therefore subject to industrial uses such as that proposed here. The Applicant owns several acres of property surrounding the location of the proposed batch plant. The permit application at issue covers only the request to construct the facility on a 2.15 acre portion of the larger parcel. Anticipated environmental problems caused by activity not on the immediate parcel are not related to this permit application and thus are not germane to a determination whether the permit should be issued or denied. Further, the construction permit will only allow the applicant to build the proposed air pollution source. Before such a source can actually be operated, a separate operation permit application must be made, and testing for compliance with standards by the facility must be satisfactorily completed. Petitioners demonstrated that the individuals who own Triangle Construction Company, Inc. were previously employed by Gulf Asphalt Company, which was occasionally out of compliance with state air emission standards. Petitioners asserted that these individuals would likely fail to operate the proposed facility in compliance with DER standards. Although these individuals did have managerial responsibility at Gulf Asphalt, final decisions concerning financial expenditures for repairs and maintenance were made by the owner of the plant, rather than the Applicant's owners. It was also established that the Gulf Asphalt Plant continued to have emission problems after such individuals left as employees. Petitioners contend the Applicant's unrelated dredging activities in an adjacent borrow pit area caused turbidity in Dry Branch Creek, and characterized the Applicant as a habitual violator who could not be expected to comply with state pollution control regulations in the operation of the proposed facility. Testimony revealed that the Applicant constructed a culvert in Dry Branch, which flows through a borrow pit area and did some other incidental dredging in areas within the landward extent of waters of the state. However, when the Applicant became aware that activities in the proposed borrow pit area were potentially in violation of DER rules, it ceased activities and applied for the appropriate permits. An asphalt concrete batch plant is a relatively simple operation in which sand and aggregate are dried, then mixed with hot liquid asphalt and loaded directly into trucks. It is the drying process which emits the particulates which the cyclone and the baghouse are designed to control. Baghouse operations are similar to those of a vacuum cleaner. Particulate-laden air from the drying process is vented into the baghouse, where it is filtered through a number of cloth bags. The bags trap the particulates, and pass the filtered air through the bag cloth and out of the building. When enough air has been filtered to cause a build-up of trapped particulates, a portion of the baghouse is taken off cycle and reverse air is blown through the bags. The reverse air causes the trapped particulates to fall into a hopper where they are removed for disposal. The baghouse was designed to function efficiently in conjunction with a plant producing up to 120 tons per hour of asphalt concrete. Applicants's plant will produce only 80-85 tons of asphalt concrete per hour due to the limited size of the dryer. The estimated air to cloth ratio in the amended permit application is 6:1, which will result in emissions substantially lower than DER standards. Air to cloth ratio is not a specific standard or requirement, but is a figure which is used by engineers to determine projected emissions which may reasonably be anticipated from facilities which use an air pollution control mechanism. A projected air to cloth ratio of 6:1 for this baghouse may be reasonably expected to yield emissions of approximately 0.014 micrograms per dry cubic foot, which is approximately one-third of the DER standard of 0.04 mg. per dry cubic foot. The equipment to be installed is used and in need of minor repairs. The testimony established that necessary repairs will be accomplished prior to plant activation, and that operations will not be adversely affected when such repairs are complete.
Recommendation Based on the foregoing, it is RECOMMENDED that the Department of Environmental Regulation issue a final order granting Triangle Construction Company an air construction permit. DONE and ENTERED this 21st day of June, 1985, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1985. COPIES FURNISHED: Lynn C. Higby, Esquire BRYANT, HIGBY & WILLIAMS, P.A. Post Office Box 124 Panama City, Florida 32402 E. Gary Early, Esquire and Clare E. Gray, Esquire Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32301 Richard Smoak, Esquire SALE, BROWN & SMOAK Post Office Box 1579 Panama City, Florida 32402 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32301
The Issue Whether applicable law authorizes the Division of Administrative Hearings to conduct a hearing on the merits of issuing a permit, where the referring agency issued the permit almost three months before the objectors' petition for hearing was filed?
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That DER enter a final order dismissing with prejudice the amended petition for formal proceeding under Section 120.7, Florida Statutes, filed by Freeport and STI. DONE and ENTERED this 25th day of September, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William L. Earl Esquire One Biscayne Tower, Suite 3636 Two South Biscayne Boulevard Miami, Florida 33131 Joe W. Fixel, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 John T. Allen, Jr., Esquire 4508 Central Avenue St. Petersburg, Florida 33711 Edward P. de la Parte, Jr., Esquire 403 N. Morgan Street, Suite 102 Tampa, Florida 33602 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION FREEPORT SULPHUR COMPANY, Division of FREEPORT MINERALS COMPANY, and SULPHUR TERMINALS, INC., Petitioner, vs. CASE NO. 78-527 DEPARTMENT OF ENVIRONMENTAL REGULATION, and AGRICO CHEMICAL COMPANY, Respondent. /
The Issue The issues in this case are whether the Gainesville Renewable Energy Center, LLC (GREC) is entitled to an Air Construction Permit from the Department of Environmental Protection (DEP) for the construction of a net 100-megawatt (MW) biomass-fired electrical power plant in Gainesville, Florida, pursuant generally to state rules that relate to the federal Clean Air Act, 42 U.S.C. §§ 7401, et seq. (Clean Air Act), which is administered by the U.S. Environmental Protection Agency (EPA). Specifically, the issues are whether the proposed project satisfies the requirements of Florida's EPA-authorized air program of Prevention of Significant Deterioration (PSD), as set forth in Florida Administrative Code Rule 62-212.400, and Florida's EPA-delegated air program of National Emission Standards for Hazardous Air Pollutants (NESHAP), as set forth in Florida Administrative Code Rule 62-204.800(10) and (11).
Findings Of Fact Introduction On November 30, 2009, GREC filed with DEP an Application for the construction and operation of a net 100 MW (gross 116 MW), biomass-fired electrical power plant at GRU's Deerhaven power plant complex. GREC seeks to place the biomass plant in service on or before December 31, 2013, which is the deadline for eligibility for a federal renewable-energy grant under the American Recovery and Reinvestment Act of 2009. GREC is a subsidiary of American Renewables, LLC, which develops, builds, and operates renewable-energy power plants. American Renewables, LLC, is jointly owned by affiliates of three corporations that develop, operate, invest, and manage various types of energy projects. American Renewables, LLC, recently obtained permits for a similar biomass plant, also net 100 MW, in Nacogdoches, Texas. This plant, which is expected to begin commercial operation in late 2012, has a power purchasing agreement with Austin Energy, a municipal utility owned by the City of Austin. American Renewables, LLC, recently sold the Nacogdoches plant to a subsidiary of Southern Company. GRU is a municipal utility of the City of Gainesville. GRU owns and operates a power generation, transmission, and distribution system to serve its 93,000 retail customers and its wholesale customers, which include the City of Alachua and Clay Electrical Cooperative, Inc. In addition to owning a 1.4-percent share of the Progress Energy Florida Crystal River Unit Three, GRU owns three power supply facilities with a summer capacity of net 608 MW. Of these, the largest is Deerhaven, which generates net 440 MW. A former mayor of the City of Gainesville, Petitioner Bussing served on the utility committee of the City Commission and participated in utility planning for GRU. Petitioner Bussing lives less than 10 miles from the GREC site and regularly walks outdoors, works in his yard, and bicycles in the area. He enjoys canoeing on local waterways and observing wildlife, such as eagles, hawks, and owls. Identifying himself as a "locavore," Petitioner Bussing favors locally grown food. The other petitioners are similarly situated to Petitioner Bussing. Application The findings in this section are generally based on the Application, although some are also based on the Site Application. According to the Application, the GREC site consists of 131 acres within the Deerhaven site in northwest Gainesville and north central Alachua County--eight miles from downtown Gainesville to the southeast and seven miles from downtown Alachua to the northwest. The Site Application states that the Deerhaven site is within a 1146-acre parcel owned by the City of Gainesville. The Site Application notes that the Deerhaven site includes several units. Unit 1 generates 88 MW by a natural gas or oil-fired steam unit. Unit 2, which was certified in 1978, generates 235 MW (sometimes described as 250 MW) by a pulverized coal-fired unit. Unit 3 generates 76 MW by a natural gas or oil-fired, simple-cycle combustion turbine unit. Deerhaven also includes two 19-MW, simple-cycle combustion turbine units. The Application reports that the GREC site abuts the northwest boundary of the GRU's existing generating facilities at Deerhaven. The Site Application identifies the GRU facilities immediately east of the GREC site as an ash landfill, brine landfill, and large stormwater management pond. Abutting these facilities, immediately to their east, are ash settling ponds and a wastewater treatment sludge disposal cell. Abutting these facilities, immediately to their east, is a large coal pile. A spur of the CSX rail line, which is used for coal deliveries to Deerhaven Unit 2, terminates just south of the GREC site. Except for secondary access roads and unpaved trails, no Deerhaven facilities occupy the GREC site. Immediately west of the GREC site is a site used by the Alachua County Public Works Department for an office and other facilities. Also west of the GREC site is a radio tower and undeveloped land. The southernmost extent of the GREC site fronts on U.S. Route 441, which is lined by intermittent commercial and retail uses in this area. Across U.S. Route 441, over one-half mile from the GREC site, is the nearest residential subdivision, which is called Turkey Creek. The Site Application reports that, in the early 2000s, the City of Gainesville purchased an additional 2328 acres of timberland north and east of the Deerhaven site for buffer and potential expansion. The entire area, including the GREC site, was historically devoted to agriculture and pine silviculture, but the GREC site is now occupied by ditches, swales, altered forested communities, and the roads and trails previously mentioned. By groupings from west to east, the proposed improvements on the GREC site are a fuel-storage area, which consists of four separate wood piles; a parking area, offices, a warehouse, a control room, fire pumps, a water treatment facility, and water tanks; a 50-foot wide band of unoccupied land; a switchyard with a transmission line running to a new GRU switchyard at U.S. Route 441, a switchyard control room, steam turbine, fuel day bins connected to the storage area by a conveyor, a boiler, a 230-foot-high stack, a baghouse, and an aqueous ammonia storage area; and a 53-foot-high cooling tower. These components are concentrated on the north side of the site, farthest from U.S. Route 441, and toward the east side of the site, nearest GRU's Deerhaven operations. The boiler, steam turbine, emissions-control equipment, stack, and cooling tower are 3200 feet northwest of U.S. Route 441 and 2200 feet east of the public works facility. The GREC site will also include roads, an administration building, a warehouse, several stormwater detention ponds, water and wastewater treatment facilities, storage facilities for the fly ash and sand from the BFBB, and two emergency diesel engines. The main components of the GREC facility will be a bubbling fluidized bed boiler (BFBB), which will produce steam to power a conventional steam turbine generator for the production of electricity. Except during startup, when the boiler will consume natural gas until it reaches operating temperatures, the BFBB will burn a wide range of clean, woody biomass fuels in a dense, fluidized sand bed at the bottom of the furnace and also in the area above the bed. GREC will obtain the biomass fuel from forest residue (i.e., material remaining after traditional logging), mill residue (e.g., sawdust, bark, and sander dust), precommercial tree thinnings, used pallets, and urban wood waste (e.g., woody tree trimmings from landscape contractors and power-line clearance contractors). Supplementary fuel will be derived from herbaceous plant matter, clean agricultural residues (e.g., rice hulls and straw, but no animal waste), diseased trees, woody storm debris, whole tree chips, and pulpwood chips. However, GREC will not accept any biomass in the form of treated or coated wood, municipal solid waste, coal, petroleum, coke, tires, or construction and demolition waste, about which some doubt arose at the hearing, so GREC represented that it would not accept construction and demolition debris at the facility. The BFBB will combust one million tons per year (tpy) of biomass. To obtain the fuel, GREC will enter into contracts with suppliers within 75 miles of the site. GREC will incorporate in supplier contracts requirements of sustainability and incentives for good stewardship in silvicultural practices. At offsite locations, suppliers will sort, chip and grind, and screen the biomass to design size. After this primary processing, suppliers will deliver the processed biomass to the GREC facility in 130-150 trucks per day. On average, the facility will unload 12 trucks per hour, although it will be capable of unloading trucks at double this rate. Typically, the GREC facility will be open for biomass deliveries 15 hours per day, six days per week. On arriving at the GREC facility, the trucks will proceed to a drive-through structure, which contains three truck dumpers and three receiving hoppers. From the hoppers, the fuel will be conveyed to a fuel processing system, where a metal detector and magnetic separator will remove ferrous metals, a disc screen will remove oversized chips, and a hammer hog will reduce the oversized chips to the design size of three inches or less. This equipment will be located in an enclosed building with a dust-collection system. After this secondary processing onsite, the fuel is conveyed outside to the fuel storage area where it is stored in piles. One wood pile will have an automatic stacker/reclaimer that will be able to deposit, churn, mix, and remove nearly the entire pile. Another wood pile, conical in shape, has a fixed stacker, and the material will be moved by bulldozers and front- end loaders. This rolling stock will transfer some of the wood chips to a smaller, manual-reclaim pile that will also be contoured by bulldozers and front-end loaders. A fourth, much smaller pile will be maintained for the delivery of presized material, mainly sawdust. As originally sized, the wood piles are intended to store sufficient fuel for 15-20 days of operations. In the Site Application, the automatic stacker/reclaimer pile is specified to be 85 feet high, but, after consultation with the Gainesville Fire Department, as detailed below, GREC agreed to reduce the height of this pile to 60 feet. The fixed stacker pile is 60 feet high, and the manual-reclaim pile is 35 feet high. The automatic stacker/reclaimer pile is 400 feet by 400 feet, and the manual- reclaim pile is 400 feet by 465 feet. GREC will manage the separate wood piles to maintain the fuel's design moisture content, which is about 50 percent, but also to ensure that no portion of the stored wood remains in the pile for too long. In general, GREC intends to use fuel on the basis of first-fuel-in, first-fuel-out, to avoid problems of odor and spontaneous combustion, the latter of which is discussed in detail below. The high combustion temperatures reached by the BFBB and the implementation of the requirement for clean woody fuel will, the Application reports, limit the generation of pollutants. Within the 179-foot-high boiler, fluidizing air will expand the combustion zone in the boiler with high turbulence, intimate solids-to-gas contact and a high heat transfer rate in the bed. Staging or overfire air will assist combustion through openings in the furnace walls. Fluidized bed temperatures will range from 1350 to 1700 degrees. (All temperatures are in Fahrenheit.) Temperatures in the overfire air will be 200 degrees hotter to vaporize the volatile gases, such as carbon monoxide (CO) and volatile organic compounds (VOCs). By staging the combustion in the fluidized bed, the formation of thermally induced nitrogen oxides (NOx) will also be reduced. To enhance the air-pollution controls represented by the effective combustion of clean biomass, the GREC facility will employ three additional measures. First, dry sorbent injection (DSI) will inject into the boiler material that, in addition to the calcium that naturally occurs in the ash, will reduce emissions of sulfur dioxide (SO2), sulfuric acid mist (SAM), hydrogen chloride (HCl), and hydrogen fluoride (HF). Second, a selective catalytic reduction (SCR) system will reduce NOx emissions. The SCR system will use a catalyst and a reactant (ammonia gas) to dissociate NOx into nitrogen gas and water vapor. Third, downstream of the boiler, a fabric filter baghouse will reduce emissions of particulate matter (PM) and particulate matter less than 10 microns in diameter (PM10). (Discussed below, PM2.5 is particulate matter less than 2.5 microns in diameter.) As described in the Site Application, the baghouse will comprise 12 filter compartments, each containing 250-350 bags that are six inches in diameter and 14- to 26-feet long. At the bottom of the baghouse will be a hopper to collect ash. As PM forms on the bags, it will form a filter cake that increases the filtration efficiency of the bags. But once the air pressure drops to specified limits, high-pressure air pulses will be directed, automatically, into each bag, loosening the caked fly ash and depositing it as ash in the hopper below. Fly ash from the boiler will be captured by the baghouse filter. Periodically, the fly ash will be collected dry and transported pneumatically to an onsite storage silo. From there--if needed, after stabilization with water--the ash will be transported--enclosed, if still in dry form--for use as a soil supplement or, if such use is unavailable, to an approved offsite landfill. When ash is transferred to trucks, the trucks are sealed, and the air in the trucks displaced by the ash is transferred back to the silo through a vacuum system. Coarser than fly ash, bottom ash will be landfilled, if relatively coarser grained, and transferred pneumatically to the silo, if relatively finer grained. Solid waste from the GREC facility will be transferred ultimately to the New River regional landfill in Raiford, which has a projected life of more than 50 years at current filling rates. The cooling tower will contain a drift eliminator. The purpose of this device is to capture PM/PM10 that has passed the baghouse. The GREC facility will also control PM/PM10 fugitive emissions by the use of pneumatic systems for the delivery of sand for the fluidized bed and sorbent for the DSI to their separate onsite storage silos. According to the Site Application, the City of Gainesville has identified numerous benefits from the GREC project. These include enhancing the integrity and reliability of the GRU generating system, reducing the average age of the GRU generating system, producing reasonably priced electricity, diversifying fuel sources, avoiding the price fluctuations of fossil fuels, hedging the risks of anticipated carbon-constraint legislation (if biomass is treated preferentially under such legislation), reducing construction and operation risks, reducing open burning of biomass products in forestry operations, reducing landfilling of woody biomass, and supporting the silviculture industry. In support of sound silvicultural practices and ecosystem biodiversity, GREC will require all biomass suppliers to adhere to sustainability principles by conforming to the best management practices (BMPs) of the Florida Division of Forestry and will refuse delivery of stumps (to avoid erosion in the source area) and biomass generated from the conversion of natural forests to plantation forests or from nonnative species, unless the nonnative-species biomass is generated from a forest restoration project. Additionally, GREC will pay premiums of $0.50 and $1.00 per ton to suppliers that comply with more ambitious forest stewardship practices. Among the socio-economic benefits of the GREC facility, the Site Application states that construction will generate $48 million of payroll, largely for local and regional labor, and $160 million in nonengineered construction equipment purchases. Facility operations will result in the employment of 44 fulltime employees, initially earning $4 million annually. NonGREC employment will include truck drivers and operators of wood-processing equipment. The Site Application explains that ambient air quality is a product of meteorology, atmospheric chemistry, and pollution emissions. Meteorology controls the distribution, dilution, and removal of pollutants. Atmospheric chemistry controls the transformation of primary pollutants into secondary pollutants. Primary pollutants are discharged directly from the source and, for GREC, will include NOx, SO2, CO, and PM, or, traditionally, soot, although, as a fugitive emission, PM is better considered as dust from the biomass fuel or ash residue. For GREC, the most important secondary pollutant is ozone, which forms from the combination of NOx and VOCs in sunlight. According to the Site Application, EPA has developed an air quality index that describes air quality in relative terms. Good is the highest rating and means that air pollution poses little or no risk. Moderate means that air pollution may be a moderate health concern to a very small number of persons. Unhealthy for sensitive groups means just that, and healthy groups are unlikely to be affected. Unhealthy means that air pollution may cause everyone to begin to experience health effects, and sensitive groups may experience more serious health effects. The two remaining classifications are very unhealthy and hazardous. For 2007, the EPA classified the air quality in Alachua County as 315 days of good, 44 days of moderate, and 6 days of unhealthy for sensitive groups. For 2008, the EPA classified the number of good days as only 258. In general, the EPA classifies the air quality of Alachua County as good with the main pollutant adversely affecting air quality as ozone. The Application analyzes air emissions in light of national ambient air quality standards (AAQS), Title I, Part A, § 109, Clean Air Act, 42 U.S.C. § 7409; New Source Review (NSR) for PSD (NSR/PSD), Title I, Part C, Clean Air Act, 42 U.S.C. §§ 7470-7492; New Source Performance Standards (NSPS) for sources, by category, that contribute significantly to air pollution, Title I, Part A, § 111, Clean Air Act, 42 U.S.C. § 7411--in particular, 40 CFR Part 60, Subparts A, DA, and IIII; and NESHAP, Title I, Part A, § 112, Clean Air Act, 42 U.S.C. § 7412. As discussed in the Conclusions of Law, PSD pollutants are subject to best available control technology (BACT), and hazardous air pollutants (HAPs) are subject to maximum achievable control technology (MACT). The Application reports that the EPA has established national AAQS for six pollutants: SO2, NO2, CO, lead, ozone, and PM, which comprises PM10 and PM2.5. Primary AAQS for these pollutants protect the public health, and secondary AAQS for these pollutants protect the public welfare, such as the environment and physical property. The Application discloses the national and Florida AAQS standards for the six pollutants and reports that the entire state of Florida is in attainment for all six pollutants. This results in the application of the NSR/PSD regulatory framework, rather than a more stringent NSR regulatory framework for areas that are determined to be nonattainment under national AAQS. The Application reports that the GREC facility will be a major facility, under NSR/PSD, because it has the potential to emit more than 250 tpy of a PSD pollutant. GREC must use BACT for all PSD pollutants that will exceed significant emission rates, which are expressed in tons per year by PSD pollutant, and show that its emissions will not violate any national AAQS or PSD increment. If emissions will adversely affect a "Class 1 area," such as a national park or wilderness area, more rigorous protection of the area and national AAQS and PSD increments would be imposed in terms of "air quality related values," but the GREC facility does not impact any of the four Class I areas in Florida. However, all NSR/PSD reviews include assessments of additional impacts on nearby land uses, as well as on soils, vegetation, and visibility. For PSD emissions that exceed their significant emissions rates, GREC must show that a PSD emission, in micrograms per cubic meter, is below what constitutes the PSD's significant impact level, which is, as a measure of ambient concentration, expressed as micrograms per cubic meter. For any PSD emission that exceeds its significant impact level, GREC would have to provide a more elaborate source-impact analysis. According to the Application, the GREC facility is expected to generate the following PSD emissions in the following amounts: NOX--418.1 tpy; SO2--243.9 tpy; CO--715.6 tpy; VOCs--78.1 tpy; PM (filterable)--130.4 tpy; PM10 (filterable and condensable)--281.2 tpy; SAM--5.9 tpy; lead--0.12 tpy; and mercury--0.0084 tpy. (Filterable PM is in a solid or liquid state in the exhaust stream and is subject to capture by a filter. Filterable and condensable PM is in a gaseous state in the exhaust stream and is converted to a solid or liquid state on condensation after passing through a filter.) All of these emissions exceed the significant emission rates except for lead, mercury, and SAM. (Mercury is not a PSD pollutant, but it has a PSD significant emission rate.) Over 95 percent of these emissions are from the BFBB; small amounts are from the diesel emergency generator and firewater pump. As noted below, DEP subsequently determined that GREC could net its SO2 and NOX emissions against offsetting decreases in emissions of these two pollutants by GRU, so that GREC would be required to demonstrate BACT only for CO, VOCs, and PM/PM10. The Application undertakes BACT analysis for PSD pollutants based on a top-down consideration of all available technology, technically feasible control technology in order from the most- to least-stringent, and the applicable control technology, which is both technologically and economically feasible. Because Petitioners' allegations concerning BACT relate only to SO2, NOX, and PM/PM10 emissions, it is unnecessary to consider GREC's BACT analysis for CO and VOCs. The Application also states that GREC will be a major source of HAPs because the GREC facility will emit more than 10 tpy of any individual HAP or more than 25 tpy of total HAPs. As noted below, DEP subsequently determined that GREC's initial projections of HAPs emissions were too high and that, as revised in the February RRAI, discussed below, the HAPs emissions were below both thresholds for a major source, as described below. Because GREC consequently was not required to demonstrate case- by-case MACT, it is unnecessary to consider GREC's MACT analysis. In Alachua County, HAPS are not attributable primarily to stationary fuel combustion. The Site Application states that 86 percent of these pollutants were emitted from mobile and area small sources, such as dry cleaners and gas stations. The Site Application reports that stationary fuel combustion generates about 91 percent of the SO2, about 28 percent of the NOX, about 14 percent of the PM2.5, about six percent of the PM10, and nearly none of the CO and VOCs. Applying 40 CFR Part 60, Subpart DA, which applies to electric utility steam generating units, the Application notes that the BFBB will meet all emissions limits for PM, NOx, SO2, and opacity or visible emissions. Also, the Application states that, to conform to Subpart DA, GREC will have to install with the BFBB an opacity monitoring system, a continuous bag leak detection system for the fabric filters, continuous emissions monitoring systems (CEMS) for SO2, NOX, and oxygen or CO2, and conduct initial performance tests for SO2, NOX, opacity, and PM. The Application states that the GREC emissions are below the significant impact levels for PSD Class II areas for all PSD pollutants except PM10, for which the GREC emissions, on a 24-hour average, will be 20.4 micrograms per cubic meter, as compared to the significant impact level, on a 24-hour average, of 10 micrograms per cubic meter. Thus, the Application analyzes national AAQS and PSD increments only for PM10. Including all significant stack sources of PM10 within 60 kilometers of the GREC facility (fugitive emissions being deemed too local to require consideration) and both stack and fugitive emissions from the GREC facility, the Application concludes that GREC should not be required to perform preconstruction ambient air quality monitoring because Alachua County already performs adequate air quality monitoring for PM10, and the modeling for the 24-hour projections, as opposed to annual projections, shows that GREC's PM10 emissions in excess of the significant impact levels will be highly localized and entirely contained within the Deerhaven site. Additionally, for the 24-hour and annual projections, the Application notes that the maximum distance to significant impacts for PM10 emissions will be only 1.1 kilometers. Referring to the nearest ambient PM10 air quality monitoring site, which is 7 kilometers south of GREC, the Application concludes that, based on modeling for cumulative PM10 impacts, the air quality impacts from all sources, including background, will be substantially below the 24-hour and annual PSD Class II increments and national AAQS, so the GREC facility will not cause or contribute to an exceedance of the PM10 PSD increments or national AAQS. Finally, turning to additional impacts, the Application reports that the GREC emissions are too low to significantly affect soils, vegetation, or wildlife. In discussing PM10 emissions, the Application advises that Florida's 24-hour and annual averages for PM10 emissions, under state AAQS, are 150 and 50 micrograms per cubic meter. As noted above, the GREC facility's PM10 emissions will result in an increase of PM10 concentrations by 20.4 micrograms per cubic meter, on a 24-hour average; its PM10 emissions will result in an increase of PM10 concentrations by 5.3 micrograms per cubic meter, on an annual average. Both of these increases are obviously below the state AAQS. (The national AAQS for PM10 is the same for a 24-hour average and omits an annual average.) Responses to Requests for Additional Information Attachment A to the February RRAI is a set of BMPs for biomass material handling and storage. Attachment A requires GREC to consult with the Gainesville Fire Department and develop a Fire Management Plan. Key components of the Fire Management Plan will be frequent rotation of the biomass and the prevention of biomass compaction. Attachment A provides for the covering or partial enclosing of drop points and conveyor systems for biomass. The in-ground receiving hoppers will be covered by a divided enclosure with roll-up entry doors, curtained exit doors, and stilling curtains in the upper roof. The fuel processing building, which houses the hammer hog and screens, will have local ventilation ducted to a fabric filter dust collector. Drop points to the wood piles will be minimized by telescoping discharge spouts. Boiler fill bins will have vent filters. To ensure that the dust control measures are effective, daily inspections of the equipment will take place. Also, regular maintenance of the equipment will be performed. All major roads at the GREC facility will be paved to suppress fugitive emissions. Trained GREC personnel will promptly remove excessive mud, dirt, or similar debris from paved roads. Attachment A provides that GREC will maintain the wood piles to avoid excessive wind erosion. GREC will develop a dust management plan for the storage areas. GREC will minimize the use of rolling stock on the wood piles during windy conditions. In a request for additional information, DEP commented that the projections of HAPs emissions seemed high because other biomass projects half the size of GREC had projected HAPs emissions one-quarter of those projected by GREC. Noting that 95 percent of the HAPs emissions from the GREC facility would be in the form of HF and HCl, GREC responded that the BFBB manufacturer, Metso Corporation, had recalculated the projected emissions from its boiler based on a redetermination of the fluorine and chloride content of the biomass fuel, BBFB chemical reactions, increased sorbent in the DSI, and optimization and sizing of the baghouse. Based on these recalculations, the February RRAI reports that the GREC facility will emit no more than 25 tpy of HAPs or 10 tpy of any single HAP. The February RRAI states that, based on these recalculations, the GREC will emit 170.7 tpy of SO2 (down from 243.9 tpy) and the following HAPS: HF--9.7 tpy (down from 71.4 tpy; and HCl--9.7 tpy (down from 35.7 tpy). Lead and mercury projected emissions will be the same, but total HAPs emissions will be 24.6 tpy. Also, the February RRAI projects emissions of PM2.5 to be 278.3 tpy. Due to these recalculations of HAPs, the February RRAI states that it is unnecessary for GREC to provide case-by-case MACT. Attachment D to the February RRAI is the Biomass Quality Assurance and Quality Control Plan (Biomass QAQC Plan). Restating the biomass specifications, the Biomass QAQC Plan requires GREC to contract with suppliers for woody biomass material that conforms to the material described in the Air Construction Permit. The Biomass QAQC Plan notes that the power purchase agreement between GRU and GREC requires GREC to hire two professional foresters to manage the biomass procurement. The Biomass QAQC Plan states that GREC is required to inspect each shipment of biomass, upon receipt, and reject all shipments that fail to conform to the specifications contained in the plan. The February RRAI explains why GREC is not required to perform AQRV analysis for impacts to Class I areas. The February RRAI notes that GREC has relocated several improvements by relatively short distances, but these relocations do not affect the PM modeling. The May RRAI mostly addresses PM. The May RRAI accedes to a DEP request to model fugitive emissions after the relocation of various improvements, as mentioned in the February RRAI. GREC supplied this analysis, which suggests that the GREC facility will not cause or contribute to an exceedance of the PM10 PSD Class II increments or national AAQS. Attachment B to the May RRAI describes the dispersion modeling that was undertaken after the relocation of the various site improvements. In response to an EPA comment, the May RRAI adds various offsite sources of PM10, including two simple cycle combustion turbines, three emergency diesel engines, and fugitive PM10 from coal handling at Deerhaven and three simple cycle combustion turbines at another nearby GRU facility. Also, the May RRAI increases the PM10 emission rates for a nearby cement plant. As before, GREC conceded that the PM10 emissions will exceed the PSD Class II significant impact levels, but contended that preconstruction ambient air quality monitoring is unnecessary because adequate data already exist in Alachua County for this pollutant and the 24-hour PM10 impacts will be highly localized and confined with the industrialized areas abutting the GREC site. Additionally, the May RRAI reports the results of cumulative PM10 modeling. Again, the May RRAI states that the result of this cumulative modeling is that the air quality impacts from all relevant sources, including background, will be well below the 24-hour and annual PSD Class II increments and national AAQS, so the GREC facility will not cause or contribute to an exceedance of the PM10 PSD increments or national AAQS. Responding to an EPA comment asking for justification for using PM10 as a surrogate for PM2.5, Attachment C of the May RRAI, citing an EPA guidance memo issued March 23, 2010, explains why PM10 may be used as a surrogate for PM2.5 for the GREC facility. Using the GREC facility's PM2.5/PM10 emission ratios, Attachment C assures that the GREC facility will not cause or contribute to an exceedance of PM2.5 national AAQS. In generating the PM2.5/PM10 emission ratios, Attachment C states that GREC assumed that all of the PM emissions from the BFBB would be PM2.5 because the baghouse filter would capture the larger PM. For fugitive dust and material handling, GREC relied on an EPA published 0.10-0.15 PM2.5/PM10 emission ratio, which is applicable to fugitive dust from paved and unpaved roads, material handling and storage piles, industrial wind erosion, and material transfer operations. GREC selected the 0.15 factor, which assumes a greater presence of PM2.5 in these emissions. For the cooling tower, GREC assumed the same 0.15 PM2.5/PM10 emission ratio. Noting that drift eliminators are the only technology that control PM2.5 and PM10 emissions for wet cooling towers, Attachment C cites a 2002 article finding that a cooling tower's PM2.5 emissions are less than one percent of its PM10 emissions. For its calculations, GREC assumed conservatively that its tower's PM2.5 emissions would be 15 percent of its PM10 emissions. Attachment C restates that, primarily due to the low elevation for fugitive PM emissions, the maximum PM10 impacts would be at the GREC fenceline. However, again taking a worst- case scenario, GREC assumed that all of its PM10 emissions would be stack emissions and that the BFBB PM emissions would coincide with all other PM emissions from the GREC facility. Adjusting the background PM2.5 data to remove the data for 2007, due to the pollution caused by extensive wildfires, GREC determined that, despite all of its conservative assumptions, in some instances resulting in worst-case assumptions, the GREC facility's PM2.5 emissions, when combined with background levels, would be below the 24-hour PM2.5 national AAQS. For this reason, responding to another EPA comment, GREC rejected the need for more additional impacts analysis. DEP's Technical Evaluation On July 14, 2010, DEP issued its Technical Evaluation. The Technical Evaluation identifies four specific elements for the control of fugitive emissions: the use of the first- in/first-out method for biomass and the telescoping chute to minimize drop lengths onto wood pile, use of BMPs and design features to control fugitive emissions from conveyor system, use of enclosures for dust collectors and (where possible) telescoping chutes, and wetting of wood piles and roads, as needed. For the handling of fly ash, the Technical Evaluation notes that a baghouse or similar filter will control fugitive PM emissions from the fly ash silo, and BMPs will be used to minimize PM emissions while loading trucks. For the BFBB, the Technical Evaluation identifies several elements for the control of emissions. The BFBB design, especially its efficient combustion, will control the formation of PM, CO, and VOCs, as well as HAPs. The fabric filter baghouse will control PM2.5 and PM10 emissions. Because the biomass fuel with be low in sulfur, SO2 and SAM emissions will be controlled. These emissions will also be controlled by reaction with the alkaline fly ash and DSI. The SCR will control NOX and VOCs. Low-chloride biomass fuel will control HAPs. HAPs will also be controlled by reaction with alkaline fly ash, DSI, the fabric filter baghouse, and SCR. And drift eliminators will control PM emissions from the cooling tower. The Technical Evaluation finds that the GREC facility is a major stationary source, under NSR/PSD, because it has the potential to emit 100 tpy of any PSD pollutant and is in one of 28 categories of major PSD facilities. The Technical Evaluation explains that, for major modifications of existing major stationary sources, PSD applicability depends on whether significant emission rates will be met. For net emissions exceeding these rates, an applicant must provide BACT for each pollutant exceeding its significant emission rate. The Technical Evaluation notes that PM2.5 is a PSD pollutant, but its significant emission rate has not yet been set, at least in Florida, so PM2.5 is regulated by its precursors and surrogates, including SO2, NOX, and PM/PM10. For the NOX and SO2 emissions of, respectively, 418.1 and 170.7 tpy, the Technical Evaluation discloses that, on July 12, 2010, DEP issued a permit to GRU imposing enforceable reductions in its Deerhaven NOX and SO2 emissions of, respectively, 418 and 171 tpy. In fact, based on a 2007 permit issued to GRU, DEP and GRU expect future reductions at Deerhaven in NOX and SO2 emissions of, respectively, 7139 and 3262 tpy. The air pollution control system permitted in 2007 will, in the long term, result in reductions of SAM and mercury, in excess of the GREC facility's emissions of these two pollutants, but DEP did not consider these offsets because of the lack of CEMS and enforceability. The Technical Evaluation thus concludes that, on a net basis, the GREC facility will emit PM/PM10, CO, and VOCs in excess of their respective PSD significant emission rates. The unnetted emissions of SAM are slightly below its significant emission rate. Although not shown on the table, the emissions of mercury are more than one order of magnitude less than its significant emission rate. Thus, GREC is subject to PSD ambient air modeling and BACT for PM/PM10, CO, and VOCs. The Technical Evolution relies on GREC's revised projections of HAPs with HCl and HF each at 9.72 tpy and total HAPs at 24.7 tpy. The Technical Evaluation concludes that the GREC facility, without regard to the Deerhaven facility, fails to trigger case-by-case MACT review because it is just under the thresholds of 10 tpy for any single HAP and 25 tpy for all HAPs. The Technical Evaluation notes that the 2007 air pollution control system permitted to GRU would result in reductions of HCl and HF greater than GREC's emissions of these two HAPs, but these offsets may not be considered in calculating the HAPs increases from the GREC facility due to the lack of a netting procedure in NESHAP. Reporting that GREC requested that the Air Construction Permit limit NOX and SO2 emissions even though, after netting, such limits were no longer required, the Technical Evaluation compares the GREC facility's emissions caps of these two PSD pollutants with the emissions caps of these two pollutants by other facilities. The GREC facility's emissions caps are lower than most other facilities, including the Nacogdoches biomass plant and another biomass plant in Ft. Gaines, Georgia, which are similar in size to the GREC facility. The biomass for the GREC facility will contain two orders of magnitude less sulfur than the coal burned at Deerhaven. For SAM, DEP imposed a limit of 6.6 tpy because the GREC projection of 5.9 tpy was close to the significant emission rate for SAM of 7 tpy. For the PSD pollutants requiring BACT, the Technical Evaluation observes that GREC has adopted a strategy in the BFBB of emphasizing the control of NOX, even where this means reduced control of VOCs and CO. Noting that the addition of an oxygen catalyst could reduce VOCs and CO, the Technical Evaluation reports that GREC chose instead SCR, which is superior to another system that its affiliate used at the Nacogdoches facility. With the ensuing reductions of NOX, GREC was able to retune the BFBB to back off the NOX control in order to gain additional control of VOCs and CO, which are emitted at slightly lower rates than the rates at the Nacogdoches and Ft. Gaines facilities. Due to the ongoing need to fine tune the BFBB combustion processes and the SCR, the Technical Evaluation notes that GREC agreed to tiered limits of VOCs and CO emission rates. Also, the Technical Evaluation provides that CO compliance will be measured by a CEMS, and VOCs compliance will be measured by an annual test. For PM/PM10/PM2.5, the Technical Evaluation reports that burnout of the constituents of these pollutants is superior in a BFBB than a stoker furnace. Because more-complete combustion reduces the risk of fires in the pollution control equipment, the BFBB permits GREC to use a baghouse to produce lower PM/PM10 limits and to minimize direct emissions of PM2.5. The Technical Evaluation states that the most effective control technologies for PM are fabric filters and electrostatic precipitators, but the former provide better control of fine PM. The Technical Evaluation identifies as supplementary control strategies the minimization of PM2.5 and visible emission precursors by limiting SO2, NOX, ammonia, VOCs, and chlorides. The Technical Evaluation notes that GREC's BACT proposal for filterable PM/PM10 is the NSPS of 89 tpy based on a fabric filter baghouse. The Technical Evaluation adds that GREC estimated 250 tpy for total PM/PM10, including filterable and condensible PM/PM10. Given the BFBB, baghouse, DSI, and SCR, DEP did not expect the emissions of filterable and condensible PM/PM10 to be as high as projected by GREC and expected these emissions to be below those of the Nacogdoches and Ft. Gaines facilities, which projected PM/PM10 emissions at rates about 75 and 43 percent, respectively, of the rate of these emissions at the GREC facility, even though it would emit less NOX and SO2 and would be equipped with a superior catalytic control system. DEP elected the NSPS limit for PM/PM10, but warned that the GREC facility will eventually need to comply with a filterable PM NSPS limit that, when initially proposed by EPA, was about half the emissions rate proposed by GREC. The Technical Evaluation requires compliance by initial and annual stack testing using EPA Method 5 or 17 for filterable PM/PM10 emissions and EPA Method 202 for filterable and condensible PM/PM10 emissions. The Technical Evaluation adds that a visible emissions limit of 10 percent opacity over a six-minute average, except for one six-minute period of not more than 20 percent opacity, which is BACT, will be demonstrated by the continuous opacity measurement system. The Technical Evaluation states that GREC has incorporated BACT into its proposal concerning PM2.5. This finding is based on the BACT limits for PM/PM10, CO, and VOCs; low emissions of SO2 and NOX; enforceable reductions in PM2.5 precursors from Deerhaven; the visible emissions limit, which controls the fraction of PM2.5 that interferes with light transmission; and limits on ammonia and HCl. Controlling SO2, NOX, CO, VOCs, chlorides, and ammonia controls PM2.5 because these pollutants are PM2.5 precursors. For HCl, the Technical Evaluation acknowledges that DSI and the fabric filter will control emissions, for which DEP will require a CEMS. For HF, the Technical Evaluation notes that the fly ash interaction, DSI, and the fabric filter will control emissions, for which DEP will also require a CEMS. For the four metallic HAPs, phosphorus, chromium, manganese, and lead, and nine organic HAPs, which exclude dioxins or furans, DEP will require initial and annual stack tests. For PM, the Technical Evaluation reviews the BMPs for biomass fuel delivery, preparation, storage, and handling. As for the quality of the biomass accepted at the GREC facility, the Technical Evaluation notes that GREC will contractually obligate its suppliers to provide biomass that conforms to the biomass described in the Air Construction Permit. The Technical Evaluation states that GREC must inspect each shipment of biomass and reject nonconforming biomass. GREC must document each shipment and document rejected shipments, including the ultimate disposition of such shipments. Discussing the three PSD pollutants--VOCs, CO, and PM/PM10--that the GREC facility will emit in excess of PSD significant emission rates, the Technical Evaluation approves of GREC's use of PM10 as a surrogate for PM2.5, especially due to the enforceable reductions at Deerhaven of SO2 and NOX. The Technical Evaluation reports that, between 2007 and 2009, Florida's power plants reduced their SO2 and NOX emissions by 38 percent and 54 percent, respectively. Agreeing with GREC that the only pollutant emissions to exceed their significant impact levels will be PM/PM10 for Class II areas, but not Class I areas, the Technical Evaluation also agrees with GREC that no purpose would be served by requiring preconstruction air monitoring for PM because of the low emissions of these pollutants by the GREC facility and the existence of adequate monitoring for PM in Alachua and Putnam counties, which disclose attainment with national AAQS for PM10 and PM2.5. In its multisource PSD Class II increment analysis, the Technical Evaluation explains that the PSD increment is the amount by which new sources may increase ambient ground level concentrations from a baseline concentration. For PM10, the Technical Evaluation agrees with GREC's modeling that the 24- hour and annual averages would not come close to the maximum allowable increment. Likewise, the Technical Evaluation agrees with GREC that its PM10 impacts would not come close to national or state AAQS for this pollutant. Lastly, the Technical Evaluation agrees with GREC in terms of additional impacts. The Technical Evaluation states that the GREC facility will not have an adverse impact on soils, wildlife, or vegetation. The Technical Evaluation reports that the U.S. Fish and Wildlife Service did not require an AQRV analysis due to the facility's low emissions. Based on its analysis, the Technical Evaluation found that the Application, as amended and conditioned by the Air Construction Permit, meets all federal and state air pollution control requirements. Air Construction Permit Draft Air Construction Permit Section 1 highlights the GREC facility's pollution control technology: the efficient combustion of clean woody biomass in the BFBB to minimize formation of PM/PM10/PM2.5 (which is referred to as PM in the draft Air Construction Permit), NOX, CO, and VOCs; limitation of biomass to clean woody biomass to minimize the formation of SO2 and HAPs, including HF and HCl; injection of ammonia into the SCR to SCR to destroy NOX; use of DSI and alkaline fly ash to control SO2, HF, and HCl; installation of fabric filter baghouse to control PM and remove injected sorbents; implementation of BMPs to minimize fugitive PM emissions from biomass handling, storage and processing, ash handling, storage and shipment and alkaline sorbent handling, storage, and processing; and appropriate design of draft cooling tower to minimize drift (PM). For emissions monitoring, draft Air Construction Permit Section 1 identifies the following: CEMS for CO, SO2, NOX, HCl, and HF and a continuous opacity measuring system for visual emissions. Draft Air Construction Permit Section 1 notes that GRU's Deerhaven facility is a major source of HAPs, but the GREC facility itself is not a major source of HAPs. The draft Air Construction Permit states that the GREC facility is a major stationary source under the NSR/PSD program and is subject to NSPS and NESHAP, under the Clean Air Act. Draft Air Construction Permit Section 2, Specific Condition 11 provides: No person shall cause . . . or allow the emissions of unconfined particulate matter from any activity, including vehicular movement; transportation of materials; construction, alteration, demolition, or wrecking; or industrial related activities such as loading, unloading, storing, or handling; without taking reasonable precautions to prevent such emissions. . . . Appendix BMP . . . provides a Best Management Plan of reasonable precautions specific to the GREC facility to control fugitive PM emissions. General reasonable precautions include the following: a. Paving and maintenance of roads, parking areas and yards; b. Application of water or chemicals to control emissions from such activities as demolition of buildings, grading roads, construction, and land clearing; c. Application of asphalt, water, oil, chemicals or other dust suppressants to unpaved roads, yards, open stock piles and similar activities; d. Removal of particulate matter from roads and other paved areas under the control of the owner or operator of the facility to prevent re- entrainment, and from buildings or work areas to prevent particulates from becoming airborne; e. Landscaping or planting of vegetation; f. Use of hoods, fans, filters, and similar equipment to contain, capture and/or vent particulate matter; g. Confining abrasive blasting where possible; and h. Enclosure or covering of conveyor systems. Draft Air Construction Permit Section 3.A applies to the emissions unit of biomass delivery, preparation, storage, and handling. Section 3.A describes the unit as consisting of three truck dumpers, two sets of screens and hogs, and automatic and manual stackers to maintain, on average, a 15-20 day supply of biomass based on full load operation and average biomass fuel moisture content. Noting that suppliers will initially chip, ground, and otherwise process the biomass at offsite locations before trucking it to the GREC facility, Section 3.A reports that 130-150 fuel truck deliveries are expected daily, six days per week. During peak periods, the GREC facility is expected to handle 24 truckloads of biomass per hour. By design, the maximum processing rate is 600 tons per hour with a maximum yearly rate of 1.395 million tons. Draft Air Construction Permit Section 3.A describes the four wood piles. The automatic stacker/reclaimer pile will be 85 feet high--the draft Air Construction Permit does not incorporate the 60-foot height restriction added at the hearing--with a storage capacity of 125,000 cubic yards of fuel. The stock pile will be shaped like a cone, 60-feet high, and capable of storing 8500 cubic yards of fuel. This pile will be fed with a fixed stacker, including a telescoping chute to minimize drop distances. The second storage pile will be 35 feet high with a storage capacity of 79,000 cubic yards of fuel. Rolling stock will transfer fuel from the stock pile to the second storage pile. A fourth, small pile will be for sawdust, which will be delivered, moist, by trucks to an open area adjacent to the second storage pile. Front-end loaders will reclaim the sawdust. Draft Air Construction Permit Section 3.A.1 authorizes the construction of biomass delivery, unloading, and processing equipment consisting of truck scales, a fully enclosed building containing surge bins, size disc screens and hogging equipment, three drive-through truck dumpers with receiving hoppers, six conveyors to transport the biomass from the truck dumpers to the fuel handling and storage system, a metal detector and self- cleaning magnetic separator on the conveyor entering the screen/hog building, two surge bins and two reclaimers within the screen/hog building to accept the biomass from the conveyors from the truck dumpers, two sizing discs in the screen/hog building to screen any oversized biomass and send it to the hogs for reduction to design size, and two hogs in the screen/hog building to reduce the size of any oversized biomass. Draft Air Construction Permit Section 3.A.2 authorizes the construction of biomass fuel handling and storage system equipment consisting of a stacker/reclaimer system for the first storage pile, a telescoping chute for the stock pile, two conveyors to transport the fuel to the stacker/reclaimer pile, a telescoping chute for the stock pile, five conveyors to transfer the fuel from the two storage piles to the BFBB bins, and scales and magnetic separators for some of the conveyors. The two BFBB bins will store sufficient biomass for 45 minutes of boiler operation and will be equipped with bin vent filters to control PM emissions. Draft Air Construction Permit Section 3.A.3 provides for the control of fugitive PM by the use of enclosed conveyors, where practical, and installation of dust collectors on conveyor drop transfer points, also where possible. One exception to the enclosure of the conveyors is a small section near the truck dumpers to allow visual inspection of biomass to ensure that the GREC facility has accepted conforming loads. Section 3.A.3.a requires the addition of a baghouse to the screen/hog building to control PM emissions, and the installation of a screw conveyor to transfer the PM captured in the baghouse to the conveyor taking the biomass to the biomass fuel handling and storage system. Section 3.A.3.b requires the installation of bin vent filters to control PM emissions from the boiler bins. Draft Air Construction Permit Section 3.A.4 requires a BMP plan to control fugitive emissions from this emissions unit. The BMP plan will include provisions to ensure that the biomass conforms to the qualitative standards imposed by the draft Air Construction Permit. A draft BMP plan is attached to the draft Air Construction Permit, but GREC must provide DEP with a final BMP plan at least 180 days prior to opening the facility. The draft BMP plan addresses fugitive emissions, pile management, and fire prevention. After reciting the clean woody biomass materials that are permitted, as noted above, the draft BMP plan prohibits wood that has been chemically treated or processed, yard trash, paper, treated wood such as CCA or creosote, painted wood, and wood from landfills. The draft BMP plan does not explicitly prohibit the acceptance of construction and demolition debris, although GREC offered at the hearing to add this prohibition. The draft BMP plan requires the covering or partial enclosure of conveyor systems and drop points for biomass. The hoppers into which biomass trucks deliver their loads must be covered for dust control. The hoppers will be in a divided enclosure with roll-up entry doors, slitted curtains at the exit doors, and stilling curtains in the upper roof area. Processing equipment will be in an enclosed building, identified above as the screen/hog building, which will be equipped with local ventilation and ducted to a fabric filter dust collector. Drop points to the wood piles will be designed to minimize the overall exposed drop height by using telescoping discharge spouts. Boiler fuel bins must be equipped with bin vent filters. GREC staff will conduct daily observations of the conveyor system and drop point integrity to ensure proper operation. All major roads at the GREC facility will be paved. GREC staff will promptly remove excessive mud, dirt, or similar debris from the paved roads. All paved roads and gravel areas will be wetted as needed to minimize fugitive dust emissions. GREC shall manage and maintain the biomass storage areas to avoid excessive wind erosion. Ninety days after the plant becomes operational, GREC shall submit to DEP a fugitive dust management plan for the biomass storage area. Front-end loaders and other equipment will minimize movement of the biomass on high wind event days. When necessary to minimize fugitive dust emissions, GREC will wet the biomass before moving it with front-end loaders and other equipment. GREC staff shall observe the biomass storage areas daily to determine if they need to implement elements of the fugitive dust management plan. GREC staff will work with the Gainesville Fire Department to develop a Fire Management Plan. GREC will avoid spontaneous combustion and odors by rotating the biomass in the wood piles. The stacker/reclaimer pile will be divided into zones to facilitate the removal of the oldest biomass first. The fuel yard manager will do the same with the manual pile. Compaction of the biomass will be minimized. To assure that the qualitative biomass specifications are met, GREC will require that suppliers perform most of the processing offsite. For each shipment of biomass, GREC must record the date, quantity, and description of the material received. GREC must inspect each shipment for nonconforming materials, and GREC must reject or segregate such material, if it is discovered. GREC must maintain records of rejected shipments and their disposition. Draft Air Construction Permit Section 3.A.6 specifies the qualitative standards for the biomass. GREC may receive only "in-forest residue and slash," which are defined as "tops, limbs, whole tree material and other residues from soft and hardwoods that result from traditional silvicultural harvests"; "mill residue," which is defined as "saw dust, bark, shavings and kerf waste from cutting/milling whole green trees; fines from planing kiln-dried lumber; wood waste material generated by primary wood products industries such as round-offs, end cuts, sticks, [and] pole ends; and reject lumber as well as residue material from the construction of wood trusses and pallets"; "pre-commercial tree trimmings and understory clearings," which are defined as "tops, limbs, whole tree material and other residues that result from the cutting or removal of certain, smaller trees from a stand . . .; and forest understory which includes smaller trees, bushes and saplings"; "storm, fire and disease debris," which are defined as "tops, limbs, whole tree material and other residues that are damaged due to storms, fires or infectious diseases"; "urban wood waste," which is defined as "tree parts and/or branches generated by landscaping contractors and power line/roadway clearance contractors that have been cut down for land development or right-of-way clearing purposes"; "recycled industrial wood," which is defined as "wood derived from used pallets packing crates; and dunnage disposed of by commercial or industrial users"; and "supplementary fuel material," which is defined as "herbaceous plant matter; clean agricultural residues (i.e. rice hulls, straw, etc.: no animal wastes or manure); and whole tree chips and pulpwood chips." Draft Air Construction Permit Section 3.A.8-13 describes visible emissions limits and opacity testing that GREC must perform. The description conforms to the limits described above. Draft Air Construction Permit Section 3.B applies to the BFBB. Section 3.B provides that the maximum heat input capacity is 1358 mmBTU per hour on a four-hour average basis. The BFBB's steam production capability will be 650,000 to 930,000 pounds per hour. Section 3.B repeats the description of the pollution-control technology contained in the introduction of the draft Air Construction Permit, adding only that the fabric filter baghouse will have a design efficiency of 99.99 percent to control PM and visible emissions. Draft Air Construction Permit Section 3.B describes the stack as 12 feet in diameter and at least 230 feet tall. It will release flue gas with a temperature of about 310 degrees at a volumetric flow rate of 520,600 actual cubic feet per minute. Draft Air Construction Permit Section 3.B requires CEMS for CO, NOX, SO2, HCl, and HF, as well as continuous opacity monitoring systems for visible emissions. Draft Air Construction Permit Section 3.B.1 describes the BFBB. Section 3.B.2.a requires the addition of a fabric filter baghouse to control PM and visible emissions. Section 3.B.2.b requires the addition of an ammonia-based SCR to reduce NOX emissions. Section 3.B.2.c requires the addition of DSI to control the emissions of SO2 and HAPs, particularly HCl and HF, although there seems to be no mention of the trona sorbent that GREC selected, after submitting the original application, to achieve greater pollution control. The 24-hour average from CEMS of SO2, HCl, and HF will be monitored daily by trained staff to determine if adjustments are required to DSI to assure that emissions of these pollutants do not exceed the limits stated in the draft Air Construction Permit. GREC must report these emissions data quarterly to DEP. Draft Air Construction Permit Section 3.B.9 states the emissions limits for the BFBB and the applicable tests. Selected limits are: NOX--416.4 tpy--12-month CEMS; SO2--170.7 tpy--12-month CEMS; SAM--1.4 lb/hr--initial and annual stack test; CO--0.12/0.18 lb/mmBTU--30-day CEMS; HCl--9.72 tpy-- 12-month CEMS; HF--9.72 tpy--12-month CEMS; HCl, HF, organic HAPs, and metallic HAPs--24.7 tpy--12 month CEMS plus initial and annual stack tests; visible emissions--10 percent opacity-- continuous opacity monitoring system and initial stack test; VOCs--0.01/0.009 lb/mmBTU--initial and annual stack test; and heat input rate--1,358 mmBTU/hr--four-hour average. "Lb/mmBTU" means pounds per million BTU heat input. The alternative values for CO and VOCs state the limit for the first 360 calendars after certification of the CEMS followed by the limit thereafter and allow GREC time to fine tune the BFBB and air pollution control technology. Draft Air Construction Permit Section 3.B.13 requires GREC to install, calibrate, maintain, and operate CEMS for SO2, NOX, CO, HCl, and HF, as well as a diluent monitor for either CO or oxygen, from the boiler stack to show compliance with Section 3.B.9. This section provides the standards for certification, operation, maintenance, and recordkeeping for each CEMS. Draft Air Construction Permit Section 3.B.18 provides that the initial and annual stack tests shall be conducted between 90 and 100 percent of maximum heat input rate. A note states that the initial test must be done at 90 to 100 percent of permitted capacity, but the draft Air Construction Permit will be modified to reflect true maximum capacity, as constructed, so, implicitly, the annual tests will be based on the adjusted maximum heat input rate. Draft Air Construction Permit Section 3.B.19 provides similarly for HAPs. Draft Air Construction Permit Section 3.B.20 identifies the EPA Method stack tests and calculations for various emissions. EPA Method 320 is for the measurement of Vapor Phase Organic and Inorganic Emissions by Extractive Fourier Transform Infrared Spectroscopy. EPA Methods 5, 5B, and 17 are for the measurement of PM. EPA Methods 201 and 201A are for the measurement of PM10. All but one of the EPA Methods are specified in 40 CFR Part 60, Appendix A. Despite the statement in the Technical Evaluation that DEP would require GREC to use EPA Method 202 to measure filterable and condensible PM emissions, the draft Air Construction Permit omits this test, as well as any other test for filterable and condensible PM emissions. Draft Air Construction Permit Sections 3.B.22 and 23 require GREC to continuously measure and record pressure drops across each baghouse compartment controlling PM boiler emissions. Draft Air Construction Permit Section 3.B.25 specifies the information to be contained in the stack test reports submitted to DEP. Section 3.B.26 provides that GREC will submit to DEP monthly records of the hours of operation of the BFBB, tons of woody biomass burned, cubic feet of natural gas burned (for start-ups), pounds of steam, total heat input rate, hourly heat input rate to the BFBB, and the updated 12- month rolling results for each of these parameters. Draft Air Construction Permit Section 3.B.27 provides that GREC will submit to DEP quarterly records of CO, NOX, SO2, HCl, HF, and opacity emissions. Draft Air Construction Permit Section 3.C pertains to ash handling, storage, and shipment. Section 3.C states that about two-thirds of the ash created by the combustion of the biomass will leave the BFBB as fly ash and the remaining one- third will leave as bottom ash. Fly ash from the boiler connective pass and baghouse hoppers will be collected dry and transported pneumatically to a single fly ash storage silo by means of two vacuum blowers. The transferred fly ash will first pass through a receiver/collector that will separate the fly ash from the conveying air stream. After passing through an air lock valve, the fly ash will be deposited into the storage silo, which will be vented through a baghouse to control PM emissions. The fly ash will either be stabilized with water or loaded dry into a receiving truck. If stabilized with water, the ash will be transferred by chute into covered trucks, which will haul it offsite for reuse or disposal. If transferred dry, the ash will be transferred by an enclosed process by chute into sealed trucks. Draft Air Construction Permit Section 3.C states that bottom ash from the bed will consist primarily of noncombustible materials (e.g., rocks, glass, sand, and metal) from the biomass fuel. The coarse bottom ash will be removed from the BFBB through ash hoppers and chutes. The coarse material will be sieved in a rotating screen prior to conveyance to the bottom ash container. The contents of this container will be taken offsite for disposal at a properly licensed landfill. Draft Air Construction Permit Section 3.C.1 authorizes GREC to construct an emissions unit consisting of the above-described equipment for the handling, storage, and shipment of fly and bottom ash. Section 3.C.2 requires GREC to install and operate, where practical, enclosed conveyors for bottom and fly ash to minimize fugitive PM and, where practical, dust collectors on the bottom and fly ash transfer points, drop points, hoppers, and chutes. Section 3.C.2 requires GREC to design, install, and maintain a baghouse to remove PM from the fly ash storage silo exhaust. This baghouse will achieve a PM emission rate of 0.15 grains per dry standard cubic foot. Draft Air Construction Permit Section 3.C.4 provides that the maximum design transfer rate of the fly ash handling system will be 3.2 tons per hour with a maximum annual design transfer rate of 27,594 tpy. Section 3.C.5 provides that the maximum design transfer rate of the bottom ash handling system will be 1.5 tons per hour with a maximum annual design transfer rate of 13,140 tpy. The overall ash handling, storage, and shipment system will have a maximum annual design transfer rate of 40,734 tpy. Draft Air Construction Permit Section 3.C.7 imposes a 10 percent opacity limit from the bottom and fly ash conveyors, transfer points, drop points, hoppers, chutes, and dust collectors, except for a 20 percent rate for one six-minute period per unspecified period of time. Section 3.C.8 limits PM emissions from the baghouse of the fly ash silo to 0.15 grains per dry standard cubic foot. Draft Air Construction Permit Sections 3.C.11 and 12 pertain to initial and annual testing for visible emissions. Section 3.C.13 provide that these tests sill serve as a surrogate for PM emissions tests. If the visible emissions standard is unmet, a PM test using EPA Method 5 must be conducted on the baghouse stack to show compliance with the PM emissions standard specified in Section 3.C.8. Section 3.C.14 requires GREC to maintain continuous operation of bag leak detection systems on the fly ash storage silo baghouse. Draft Air Construction Permit Section 3.D describes the cooling tower as a four-cell, mechanical, draft-type tower with high efficiency fill and drift eliminators. Cooling tower evaporation loss at maximum load is estimated to be 1.34 million gallons per day. GREC will obtain makeup water from two onsite wells drilled to the Floridan aquifer. Draft Air Construction Permit Section 3.E describes an emergency diesel generator with a maximum design rating of 564 kW. Draft Air Construction Permit Section 3.F describes an emergency diesel firewater pump engine with a maximum design rating of 275 hp. In addition to the draft BMP plan, described above, the draft Air Construction Permit contains several other appendices. Appendix CEMS requires GREC to evaluate the acceptability of each CEMS by conducting a performance specification. Appendix CEMS Section 8 provides: for CO CEMS, GREC will use EPA Performance Specification 4 or 4A; for NOX and SO2 CEMS, GREC will use EPA Performance Specification 2; for HCl, GREC will use EPA Performance Specification 15, Method OTM 22, or alternative specification approved by DEP; and for HF, GREC will use EPA Performance Specification 15, Method OTM 22, or alternative specification approved by DEP. The EPA performance specifications are found at 40 CFR Part 60, Appendix B. Appendix CEMS Section 9 requires GREC to implement EPA quality assurance procedures found at 40 CFR Part 60, Appendix F. These apply to each pollutant mentioned in the preceding paragraph. Appendix CTR covers common testing requirements. Appendix CTR Section 1 requires that emissions tests take place with the emissions unit, such as the BFBB, operating at permitted capacity, which is defined as 90 to 100 percent of the maximum operation rate allowed by the final Air Construction Permit. Appendix CC covers common conditions. Appendix CC Section 10 provides that GREC will comply with changes in Florida statutes and DEP rules after "a reasonable time for compliance." Other Findings Dioxin Petitioners claim that GREC has failed to provide reasonable assurance that the proposed facility protects public health and the environment from emissions of dioxins, including furans and PCBs, and the draft Air Construction Permit fails to impose emissions limits for dioxins. Dioxins are not among the pollutants covered under national AAQS. Dioxins are classified as HAPs, but, unlike the situation with HCl and HF, Petitioners do not contend that DEP incorrectly concluded that dioxin emissions would be under 10 tpy. Instead, Petitioners claim that the projected emissions of dioxins by the GREC facility, although indisputably well under 10 tpy, are nonetheless high enough to endanger public health and the environment. Dioxins are compounds that result from the combustion of chlorine-containing materials, including wood. The family of "dioxins" includes furans and polychlorinated biphenyls (more commonly known as PCBs), which all are within the family of persistent organic pollutants. Common sources of dioxins include boilers, electrical power plants, municipal and medical waste incinerators, crematoriums, cement kilns, forest fires, household fireplaces, cigarette smoking, pulp production, and open burning. Dioxins have been associated with cancer and disorders of the immune, skin, digestive, and reproductive systems, where dioxins may act as endocrine disruptors. Work with rats suggests that a major effect of excessive dioxin exposure in utero is upon the reproductive system of the fetus. Dioxins are persistent. Their half lives in the environment range from 30 to 40 years. Because they are hydrophobic and accumulate in fatty tissue, dioxins enjoy half lives of 7-12 years in humans. Humans acquire dioxins by breathing, skin contact, consuming water, consuming food, breastfeeding, and transplacental movement while in utero. The last three means are the principal routes of human exposure. The virtually safe dose, or reference dose, for dioxins is low: one picogram per kilogram per day. One picogram is one-trillionth of one gram. An EPA work in progress may lower this reference dose to 0.7 picograms per kilogram per day. For the late 1990s, the EPA estimated that the average American acquired 6-10 picograms per kilogram per day, later reducing this estimate to 6-8 picograms per kilogram per day. The EPA estimate for children, including breast-fed infants, is five to seven times higher, around 40 picograms per kilogram per day. This is about 60 times higher than the virtually safe dose. However, the trends for dioxin levels are good. In its 2006 reassessment of dioxin, the EPA reported that dioxin levels in the environment had decreased by over 90 percent since the late 1980s. Over roughly the same period, the Centers for Disease Control reported that dioxin concentrations in human blood had decreased 80 percent, although decreases in dioxin concentrations in human fatty tissue over the same period of time are likely less. To some extent, dioxin emissions will be limited by the pollution control equipment, especially the redesigned fabric baghouse and SCR catalyst, which, according to the Technical Evaluation, will help destroy VOCs and is a documented strategy for dioxin control. Also, the temperature of the air leaving the stack will be about 310 degrees--90 degrees below the temperature at which dioxins form. GREC has provided reasonable assurance that the GREC facility will not emit dioxins in significant amounts. Thomas Davis is the principal engineer of GREC's consultant, ECT. Mr. Davis, who has considerable experience in air pollution control technology, analyzed the potential for dioxin emissions from the GREC boiler. Mr. Davis found five, operational fluidized bed boilers for which relevant data were available on the rate of dioxin emissions. He then applied the derived emissions rate to the GREC boiler. Mr. Davis determined that the GREC boiler will likely emit .11 grams per year of all dioxins and about .012 grams per year of 2,3,7,8 TCDD, the most potent dioxin. Expressed in another way, the .11 grams per year of total dioxins emitted by the GREC boiler is 110,000,000,000 picograms per year or 301,369,860 picograms per day. If the average person--young and old--weighs 50 kilograms, this emission rate translates to about 6 million picograms per kilogram per day. If the population of Alachua County were 250,000 persons, then the daily exposure, without regard to dispersion patterns, would be 24 picograms per day. For many reasons, 24 picograms of dioxins per kilogram per day of exposure represents only a starting point in the calculations necessary to grasp the limited extent of the dioxin exposure posed by the GREC boiler. An adjustment of one order of magnitude is suggested by the fact that Mr. Davis calculated the emissions rate of most toxic 2,3,7,8 TCDD at one- tenth the rate of the dioxins family. This means that the most toxic dioxin is produced at the rate of only 2.4 picograms per kilogram per day. A larger adjustment is required because the GREC biomass plant will displace substantial open burning that presently takes place in North Florida. The result will be a large net reduction in dioxin emissions. How much and over what area is hard to say, partly due to the replacement of dispersed burning with point-source combustion. The record supports an estimate that about half of the biomass to be combusted by GREC would have been open burned. Using this estimate, the open burning of this biomass would have produced dioxin emissions of 3-8 grams per year. GREC has effectively replaced these dioxin emissions with .11 gram per year. And, if the dispersed dioxin emissions displaced by the GREC facility were closer to agricultural areas, given the role of food consumption, not inhalation, as the primary means of consumption, another adjustment downward in effective dose would be necessary. Calculations by two witnesses support GREC's reasonable assurance of the insubstantiality of the impact posed by the GREC boiler in terms of dioxins. Mr. Davis calculated dioxin dispersal patterns for air and deposition and found that the average annual maximum concentration was .000000000149 micrograms per liter of air per and the average annual wet and dry deposition rate was .0000000000206 grams per square meter. These are reassuringly low numbers. Making more elaborate dioxin calculations, Dr. Christopher Teaf, an expert in environmental chemistry, toxicology, and human health risk assessment, performed a large number of calculations in the most conservative manner possible, such as by assuming that all dioxins were 2,3,7,8 TCDD and treating the emissions from the GREC boiler as new emissions (i.e., disregarding the fact that GREC's dioxin emissions displace far higher dioxin emissions from open burning). Dr. Teaf showed that air concentrations and wet and dry deposition rates were well below--usually, by one or more orders of magnitude--recently published EPA regional screening levels for air, water, and soil. Petitioners' contention for a limitation on dioxins emissions in the Air Construction Permit misses a couple of points. The GREC boiler will result in a net reduction in dioxin emissions, and, even without regard to the netting, GREC has provided reasonable assurance that the GREC facility's dioxin emissions are not, themselves, significant. GREC has provided reasonable assurance that the GREC facility adequately protects the public health and environment from emissions of dioxins, including furans and PCBs, and, based on the circumstances of this case, the Air Construction Permit is not required to contain a dioxins emissions limit. Mercury Petitioners claim that GREC has failed to provide reasonable assurance that the proposed facility protects public health from emissions of mercury. Mercury is not among the pollutants covered under national AAQS. Although not a PSD pollutant, as noted above, NSR/PSD sets a significant emission rate for mercury, and the mercury emissions of the GREC facility will not exceed this rate. Although a HAP, mercury, like dioxins, is not emitted at rates anywhere near the 10 tpy threshold. Instead, as with dioxins, Petitioners claim that the projected emissions of mercury by the GREC facility, although indisputably well under 10 tpy, are nonetheless high enough to endanger public health and the environment. The biomass fuel contains trace amounts of mercury. Combustion at 1500 degrees vaporizes the mercury into gaseous elemental mercury. Subsequent cooling may produce elemental mercury, particle-bound mercury, and oxidized mercury compounds, which is also known as reactive gaseous divalent mercury (RGM). The baghouse filters might capture some of these mercury emissions, although GREC's analysis conservatively assumed that they would not. Of the 16.7 pounds per year of all forms of mercury projected to be emitted by the GREC biomass plant, about 70 percent of it, according to GREC's conservative assumptions, will be elemental mercury and 30 percent of it will be RGM. The former has long residence time in the atmosphere and travels long distances, and the latter deposits locally and regionally. By comparison, annual anthropogenic emissions of mercury in the United States were 145 tons in 2005, including 48 tons from power plant emissions. In 1999, mercury emissions from Florida coal-fired plants were 1923 pounds. Worldwide, anthropogenic emissions of mercury account for two-thirds of total mercury emissions, the remainder being from natural causes, such as volcanic eruptions and oceans. The Site Application considers wet and dry deposition rates of mercury in the Santa Fe River basin. After calculating an average areal wet deposition rate from the GREC facility, the Site Application concludes that it is 6000 times less than the average areal wet deposition at the nearest location for which such data are available. The Site Application also concludes that the wet plus dry deposition rate of mercury from the GREC facility will be 400 times less than the wet-only rate at the comparison location. Additionally, as noted above, the air pollution control system installed at Deerhaven will reduce mercury emissions by more than the increases caused by the GREC project. Because these decreases will not be subject to CEMS and will not be enforceable, DEP's NSR/PSD analysis could not net the GREC facility's mercury emissions against the corresponding decreases in mercury emissions at Deerhaven. However, the GREC facility will emit mercury at a rate over one order of magnitude less than the PSD significant emission rate for mercury. And, to the extent that Petitioners have questioned the safety of GREC's projected mercury emissions outside of NSR/PSD and NESHAP, then the limitations on netting do not preclude attaching significance to the fact that, when considered in conjunction with roughly contemporaneous pollution control improvements at Deerhaven, the GREC facility's mercury emissions are nonexistent. GREC has provided reasonable assurance that the GREC facility adequately protects the public health and environment from emissions of mercury. Netting of NOX and SO2 To Avoid BACT Petitioners claim that DEP improperly allowed GREC to net its NOX and SO2 emissions against enforceable reductions of NOX and SO2 by GRU at Deerhaven, so as to avoid BACT analysis. On July 12, 2010, DEP issued a permit to GRU imposing enforceable and permanent reductions on Deerhaven Unit 2's emissions of NOx and SO2--418 tpy of the former and 171 tpy of the latter. These reductions were achieved by GRU's installation of more effective pollution control technology. Under NSR/PSD, GREC may net out its emissions of NOx and SO2 by taking into account these offsetting GRU reductions because GREC and GRU constitute one major stationary source, under NSR/PSD permitting. Offsetting the increased emissions of GREC with the decreased emissions of GRU is authorized by the proximity of the two operations and their common operational control. Specifically, GRU controls GREC's operations through their power purchasing agreement, which gives GRU the authority to dispatch the power generated by the GREC facility, to determine when the biomass plant will start up and shut down, to control the amount of electricity that the GREC biomass plant will produce while operating, and to regulate the voltage of such electricity. GRU will supply the switchyard and transmission lines by which GREC-produced power will enter the power grid and will distribute GREC-produced power among GRU customers. GRU will also supply the natural gas that GREC requires for start-up and the electricity that GREC requires for start-up and stand-by operations. GRU even agreed to reduce its groundwater withdrawals by 1.4 million gallons per day, so GREC could withdraw an equal amount of groundwater for its operations. Contrary to Petitioners' contention, this aggregate treatment of GRU and GREC is not a legal fiction designed to circumvent BACT under the NSR/PSD program. On these facts, it would be much easier to prove that the independence of GREC is a legal fiction, or that GREC serves as GRU's contractor, ushering the biomass plant through certification, permitting, the acquisition of supplier contracts, and start-up, perhaps then to sell it to GRU at the same late stage that GREC's affiliate sold the Nacogdoches plant. But whatever the precise relationship between the two entities is, or proves to be, at this stage, without doubt, GRU controls GREC. Contrary to Petitioners' contention, the emissions reduction achieved by GRU at Deerhaven cannot somehow be disregarded in this case and "banked" as a gain in achieving cleaner air. From all appearances, GRU pursued this emissions reduction--and certainly the permit modification enforcing the emissions reduction against GRU permanently--for the same reason that it agreed to reduce its groundwater withdrawals. The reason is not an abundance of good will among corporate partners working shoulder to shoulder in providing America's power needs or a gestalt moment of environmental awareness. GRU effected this emissions reduction as a strategic decision to enable GREC to come online sooner and provide GRU with a reliable source of power from a plant much newer than any that it has in place at Deerhaven. This is the economic reality of the closer-than- armslength relationship that exists between GRU and GREC. The netting of NOx and SO2 emissions means that GREC effectively emits no such pollutants. But to put GREC's offset emissions into context, Deerhaven Unit 2 produces roughly 2.5 times the power that the GREC plant will produce. Even after the July 2010 emission reductions, Deerhaven Unit 2 is permitted to emit 3381 tpy of NOx emissions and 8005 tpy of SO2 emissions. If the GREC plant were scaled up to Deerhaven Unit 2's capacity and the NOX and SO2 emissions could be extrapolated linearly, the GREC biomass plant would produce about one-third as much NOx and one-twentieth as much SO2. Nothing in the record suggests that GREC's relatively low emissions of NOx and SO2--even without regarding to netting--presents a significant risk to human health or the environment. GREC has provided reasonable assurance that its NOx and SO2 emissions properly should be netted against offsetting reductions in these emissions at Deerhaven and that BACT analysis for these pollutants is thus unnecessary. Not Major Source of HAPs So No MACT Petitioners claim that DEP improperly determined that the GREC facility will not be a major source of HAPs, so DEP improperly relieved GREC of the burden of demonstrating case-by- case MACT. As noted above, originally, GREC stated that its emissions of HCl and HF, as well as total HAPs, were sufficiently high to trigger MACT case-by-case review. Originally, the HCl and HF emissions were projected to be 36 tpy and 71 tpy, respectively, and total HAPs were 114 tpy. However, after DEP representatives advised GREC representatives that their HCl and HF projections seemed very high, based on DEP's experience with comparable facilities, GREC representatives met with representatives of the boiler manufacturer, Metso, to determine if they could implement more stringent emission control technology. The purpose was to reduce HAPs emissions to levels more in line with DEP's experience, which would be sufficiently low to avoid triggering MACT case-by-case review. The means by which GREC and Metso achieved this reduction essentially constituted MACT. The difference was that, by following DEP's recommendations, GREC was able to avoid months of formal MACT analysis. On February 2010, GREC presented to DEP a revised set of projections of HAPs emissions that were just beneath the MACT thresholds of 10 tpy for any single HAP and 25 tpy of all HAPS. As noted above, the revised projections are for 9.72 tpy of HCl and HF, each, and 24.7 tpy of all HAPs. GREC justified these revised projections by several means. First, Metso reconsidered the chlorine and fluorine concentrations in the clean woody biomass to be received by the GREC facility, reevaluated the chemical reactions, and reduced its earlier assumptions. Second, Metso and GREC selected for the DSI a more effective sorbent, trona, which reduces the emissions of HF and HCl. Third, Metso and GREC increased the amount of sorbent to be injected into the flue gas system, which will further reduce emissions of HF, HCl, and SO2. Fourth, Metso and GREC changed the catalyst in the SCR, which will remove HAPs more effectively. Fifth, Metso and GREC increased the size and optimized the design of the fabric filter baghouse, which will further reduce stack emissions of PM, but also HAPs to a lesser degree. These are not paper adjustments, but are actual investments in technology that will cost GREC millions of dollars. Petitioners, though, remain skeptical, partly due to the proximity of the revised projections to the regulatory thresholds. For HF, at least, the skepticism is clearly misplaced. The actual projection for HF emissions is much less than 9.72 tpy. Metso and GREC selected 9.72 tpy for HF to allow for a margin of error in the projections. GREC's motivation was obviously to a avoid a sub-threshold breach of a projected emissions limit and the resulting regulatory intervention of DEP. Metso's motivation probably arises from the fact that, to induce GREC to purchase its boiler, Metso provided GREC a guarantee that, at least initially, the boiler will meet these revised HAPs emissions limitations. So, the proximity to regulatory thresholds, at least for HF, is not a ground for skepticism. As revised, the pollution control systems restrict HAPs, and other pollutants, as follows: 1) good combustion practices in the BFBB control PM, CO, VOCs, and HAPs generally; 2) the fabric filter baghouse controls emissions of PM10, PM2.5, and HAPs; 3) clean biomass fuel, reaction with alkaline fly ash, and DSI control SO2 and SAM; 4) ammonia-based SCR controls NOx, VOCs, and HAPs generally; and 5) high-efficiency drift eliminators in the cooling tower control PM. Assurances that these close margins for the HAPs thresholds, as well as the other pollutant limits, will not be breached is also supplied by the CEMS: for SO2 and NOx, 24-hour, 30-day, and 12-month CEMS; for SAM, an initial and annual stack test; for CO, a 30-day CEMS; for HCl and HF, an initial stack test and 12-month CEMS; for HAPs generally, an initial and annual stack test and 12-month CEMS; for PM/PM10, an initial and annual stack test; and for visible emissions and VOCs, an initial and annual stack test, as well as continuous opacity monitoring. Finally, the GREC facility's HAPs emissions are offset by decreases in emissions of HCl and HF, as well as SAM and mercury, as a result of the enhanced pollution control technology adopted by GRU at Deerhaven. Although these reductions, which are all greater than the emissions of these pollutants by the GREC facility, are not enforceable and netting is unavailable under NESHAP, these reductions are relevant in assessing Petitioners' broader claims concerning human health, again outside of the context of NESHAP. GREC has provided reasonable assurance that its facility will not emit more than 9.72 tpy annually of any individual HAP or 25 tpy of all HAPs. Thus, DEP properly determined that case-by-case MACT analysis was unnecessary. Stack and Diesel-Exhaust Emissions of PM/PM10 and Failure to Require BACT Petitioners claim that the draft Air Construction Permit inadequately accounts for stack and diesel-exhaust emissions of PM and PM10 and fails to require BACT for these pollutants. In one respect, Petitioners' claim is correct. The failure of the draft Air Construction Permit to incorporate the provision of the Technical Evaluation that DEP would require GREC to measure filterable and condensible PM with EPA Method 202, in conjunction with the apparent absence of any other test for filterable and condensible PM, is, literally, inadequate accounting for stack emissions of PM/PM10, at least where such a test is commonly enough available to be identified as an EPA Method. But DEP can easily repair this defect by adding this requirement to the Air Construction Permit. In all other respects, though, GREC has adequately accounted for stack emissions of PM/PM10 and provided BACT for these PSD pollutants. As noted in the Technical Evaluation, GREC has provided BACT through the superior combustion of a BFBB, baghouse, DSI, and SCR, as well through the control of SO2 and NOX and visible emissions. GREC's stack emissions of PM10 do not exceed the NSPS limit for this pollutant. Although GREC's stack emissions of PM10 require more elaborate PSD analysis due to their exceeding the PSD significant impact level for PM10, GREC's modeling supports a finding that the these impacts will be highly localized-- restricted to the GREC/GRU site, mostly along the south fenceline--and will require no ambient air quality sampling due to the sampling program already in existence in Alachua County. GREC's modeling also supports findings that the impacts of GREC's stack emissions of PM10, when combined with the air quality impacts from all sources, will be substantially below the 24-hour and annual PSD Class II increments and national AAQS, so the GREC facility will not cause or contribute to an exceedance of the PM10 PSD increments or national AAQS. Fugitive Emissions of PM/PM10 Petitioners claim that the draft Air Construction Permit inadequately accounts for fugitive emissions from the wood piles and biomass handling of PM and PM10. The preceding analysis included all of GREC's PM10 emissions--stack and fugitive. The draft BMP plan and other design elements adequately account for fugitive emissions of PM/PM10, and the procedures described in the BMPs plan and other design elements constitute BACT. Spontaneous Combustion of Wood Piles and PM Emissions Petitioner claims that the draft Air Construction Permit fails to adequately protect against spontaneous combustion and the PM emissions that would result from a fire. The wood piles present a risk of fire from spontaneous combustion. Microbial metabolic action within the pile can generate sufficient heat to cause the wood pile to combust. The primary safeguard against this risk is proper fuel management to minimize the heat buildup within the pile. One way to manage the fuel for fire safety is to mix the wood piles to aerate the piles and prevent hot spots. Another way to manage the fuel is to ensure that the fuel is not allowed to remain in the pile too long. GREC's first-fuel-in, first-fuel-out policy limits the age of any part of the wood pile. The implementation of this policy is further assured by the fact that the fuel loses heat value over time, so GREC will gain more burn for the dollar by combusting the fuel sooner, rather than later. The ratio of stored fuel to combustion rates suggests that all fuel will be turned over within 20 days--probably sooner, after the late revision lowering the height of the automatic stacker/reclaimer pile by 25 feet. Anecdotal evidence suggests that 20 days' residence in the wood pile is well short of the age of fuel that has spontaneously combusted in piles in the past. The stormwater management system will also enhance fire safety by draining rainwater and runoff from the piles and discouraging the ongoing saturation of the fuel piles. Excessive, intermittent saturation of the pile may encourage the microbial activity that can lead to combustion. As part of the local review that took place for the GREC facility, Gainesville Fire Department representatives met three times with GREC representatives to address fire safety, as the Development Review Board of the City of Gainesville reviewed the GREC proposal. As a result of these meetings, GREC agreed to a number of changes to assure substantial compliance with the National Fire Protection Association (NFPA) standards for the management of wood storage areas. As noted above, one change after consultations with the fire department was to reduce the automatic stacker/reclaimer pile from 85 feet to 60 feet. This reduces the risk of fire by making it easier to mix the entire pile and reduces the volume of fuel stored onsite and, thus, the time that that the fuel may remain unused in the wood pile. Secondarily, this change also reduces the volume of fuel available to burn in an unintended fire. To conform to NFPA standards, GREC also agreed to place low barrier walls between the fuel piles; to drive stakes around the perimeter of the piles, so inspectors could more easily check that the piles are not migrating or expanding; and to insert temperature probes into the piles to allow timely detection and elimination of hot spots that might otherwise develop into fires. A revised site plan, as reflected in Exhibits 50A, 50B, and 50C, incorporates the barrier walls and perimeter stakes identified above, as well as the layout of the fire main and fire hydrants that loop the fuel storage area and some access issues for firefighting equipment, which may weigh as much as 30 tons. After DEP adds to the Air Construction Permit the changes to the above-described changes to the site plan, which do not relocate emissions units so as to require remodeling emissions, GREC has provided reasonable assurance that the draft Air Construction Permit adequately protects against spontaneous combustion and the PM emissions that would result from a fire. Failure To Assure Uncontaminated Supplies of Biomass Petitioner claims that the draft Air Construction Permit fails to adequately assure that the biomass fuel will be free from contaminants prior to its combustion in the BFBB. Draft Air Construction Permit Section 3.A.6 requires clean woody biomass, and the draft BMP plan addresses the means to ensure that only clean woody biomass is burned in the BFBB. Suppliers must perform most of the processing offsite; for each shipment, GREC must record the date, quantity, and description of the material received; GREC must inspect each shipment for nonconforming materials; GREC must reject or segregate nonconforming material, if it is discovered; and GREC must maintain records of rejected shipments and their disposition. At the hearing, GREC agreed to another prohibition--namely, that it may not burn construction and demolition debris. GREC has provided reasonable assurance that only clean woody biomass will be combusted at the GREC facility.
Recommendation It is RECOMMENDED that, subject to the additional conditions set forth in the preceding paragraph, DEP enter a final order granting the Air Construction Permit. DONE AND ENTERED this 7th day of December, 2010, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 7th day of December, 2010. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Mimi Drew, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 David S. Dee, Esquire Young Van Assenderp, P.A. 225 South Adams Street Suite 200 Tallahassee, Florida 32301-1700 Mick G. Harrison, Esquire 205 North College Avenue, Suite 311 Bloomington, Indiana 47404 Jack Chisolm, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Raymond O. Manasco, Jr., Esquire Gainesville Regional Utilities 301 Southwest 4th Avenue Gainesville, Florida 32614 Douglas S. Roberts, Esquire Hopping Green & Sams 119 South Monroe Street Suite 300 Post Office Box 6526 Tallahassee, Florida 32301 Richard E. Condit, Esquire 1612 K Street, Northwest, Suite 1100 Washington, DC 20006
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.
The Issue The issue in this case is whether Respondent, Action Instant Concrete, LLC (AIC), should be allowed to use the Concrete Batching Plant Air General Permit promulgated by Respondent, Department of Environmental Protection (DEP), in Florida Administrative Code Rule 62-210.300(4)(c)2.1
Findings Of Fact Petitioners, Paul and Barbara Corbiey, live at 7380 Southwest 86th Lane, Ocala, Florida, in an area called Green Turf Acres. Petitioners' property shares a boundary with property owned by AIC at State Road 200. In 2003 AIC began construction of a relatively small cement silo and area for storage of rock aggregate and sand to mix with the cement, similar to facilities at a related operation some distance away. The other operation is within the jurisdiction of DEP's Central District, which did not require a permit for the operation. AIC's operation in Ocala is in DEP's Southwest District, which is headquartered in Tampa. Periodically (and irregularly but apparently usually early in the morning) AIC receives deliveries of cement to the silo at its facility next to the Corbieys. The silo is essentially a rectangular bin with a baghouse, essentially another rectangular structure attached to the silo and containing a combination of filters. Deliveries are made using an enclosed truck with a blower and flexible hose that can be positioned and attached to the fill spot on the silo. The transfer of cement from truck to silo is accomplished pneumatically, with the air exhausted through the baghouse, which is designed to capture and retain cement particles within the silo as the air passes through to the outside of the silo. If there are particulate emissions during the process, they typically would come from the baghouse. AIC also has aggregate and sand delivered to storage areas on either side of the silo. Each of the storage areas has walls made of 4-5 courses of cement block on three sides. The walls are there mainly to contain the aggregate and sand but also serve as a partial windbreak. During AIC's operations, trucks come to pick up cement, aggregate, and sand. To load cement onto the trucks, cement is gravity-fed from a hopper on the silo, through a flexible tube, and into the truck; aggregate and sand also are loaded into trucks using a front-end loader. Unconfined emissions can and, at least sometimes, do occur during the loading processes. After loading, the trucks are driven offsite, typically to a construction site, where the cement, aggregate, and sand are batched to form concrete. When AIC began operations, its yard was covered with grass and weeds, which helped suppress fugitive dust when trucks drove in and out. Later, the grass and weeds died, and AIC installed three sprinkler heads to keep the area watered to help suppress fugitive dust. When AIC began construction and operation, Petitioners complained to numerous authorities that AIC's construction and operation were illegal, inappropriate, and should not be allowed for various reasons, including alleged particulate emissions and fugitive dust that was harmful to the health and property of Petitioners and their neighbors.13 One complaint was lodged with DEP's Central District, which referred it to DEP's Southwest District. DEP's Southwest District investigated, determined that AIC should have obtained a permit, initiated compliance action, and required AIC to make use of the Concrete Batching Plant Air General Permit promulgated by DEP in Rule 62- 210.300(4)(c)2. DEP also fined AIC in the amount of $4,150, plus $100 to reimburse DEP for its costs, for constructing and operating without a permit.14 These amounts were paid. It does not appear from the evidence in the record that DEP ordered AIC to cease operations until DEP allowed AIC to use the Concrete Batching Plant Air General Permit. It does not appear that AIC ceased operations. As DEP instructed, AIC had a VE test performed in accordance with EPA Method 9 for submission with a Concrete Batching Plant Air General Permit Notification Form, fee, and proof of public notice. AIC retained Koogler & Associates for this purpose, and the test was performed on April 26, 2005. On April 29, 2005, AIC published notice in the Ocala Star-Banner that it intended to use the Concrete Batching Plant Air General Permit. On May 5, 2005, Koogler & Associates prepared a VE Observations Report for AIC. On May 16, 2005, Petitioners filed a Petition opposing AIC's use of the Concrete Batching Plant Air General Permit and seeking its revocation. On May 19, 2005, AIC submitted a Concrete Batching Plant Air General Permit Notification Form, fee, proof of public notice, and VE observation report to DEP. At the hearing, John B. Koogler, Ph.D., P.E., an expert in environmental science and air quality, and the principal of Koogler & Associates, testified as to the cement and concrete industry in general, EPA Method 9, required certifications for conducting a VE test under EPA Method 9, VE testing under EPA Method 9, and the VE Observations Report prepared for AIC by Koogler & Associates. In the case of AIC's operation, VE testing measures stack emissions during standard loading of cement under pressure. Typically, if there are emissions during the process, they will be seen at the baghouse on the silo--i.e., the dust collector at the exhaust point. This is where VE is measured during testing. AIC's stack emissions were tested at a loading rate of approximately 50 tons per hour; at that rate, 25 tons of cement were loaded into the silo in half an hour. According to AIC's VE Observations Report, there were no stack emissions during testing. Dr. Koogler did not perform the test himself and did not sign the Observations Report, but the test was performed and the report was prepared under his general supervision, and experts in his field routinely rely on VE testing performed by certified technicians under general supervision and on observations reports prepared by others under general supervision. According to Dr. Koogler, the test for AIC appeared to have been performed properly and met the requirements of EPA Method 9 and DEP's statutes and rules for use of the Concrete Batching Plant Air General Permit. Petitioners questioned the veracity of the VE Observations Report, primarily by speculating that the certified technician who performed the test may have fabricated the observations, either with or without his employer's knowledge. This speculation is rejected as unfounded. Petitioners also repeatedly questioned the consistent and reasonable testimony of all the experts that valid, authorized VE observations could not be performed using Petitioners' videotapes. Besides, the videotape in evidence did not show loading of the silo. As a result, Petitioners presented no evidence that VE in excess of five percent opacity occurred during cement loading of the silo. Petitioners also alleged that violations occurred during the loading of trucks at AIC's operation. Witnesses testified to seeing various amounts of dust from various distances occurring at various times, but their testimony was not specific. Parts of the videotape in evidence show some unconfined emissions occurring during the loading of at least some of the trucks. However, as indicated above, VE testing is not done for unconfined emissions; in addition, standardized opacity measurements could not have been made from a videotape. Finally, the videotape showed that AIC uses a chute, or partial enclosure, to mitigate emissions at the drop point to the truck, and the evidence was that AIC maintains its parking areas and yards and applies water when necessary to control emissions. Cf. Conclusions 22-23, infra. Dr. Koogler also opined that AIC and its operation may use the Concrete Batching Plant Air General Permit under a proper interpretation of the statutes and rules, in particular Rule 62-296.414, which states that it not only applies to "emissions units producing concrete and concrete products by batching or mixing cement and other materials" but also applies to "facilities processing cement and other materials for the purposes of producing concrete." This opinion was consistent with DEP's interpretation of the statutes and rules. Petitioners also contended that AIC was ineligible for the Concrete Batching Plant Air General Permit because its facility already was in existence and was operating without a permit. However, expert witnesses for DEP and for AIC testified consistently and reasonably that DEP can require a facility operating without a permit to use the Concrete Batching Plant Air General Permit in order to come into compliance. It is not necessary for the facility to dismantle its facility and rebuild after obtaining authorization to use the Concrete Batching Plant Air General Permit under Rule 62-210.300(4)(a)2. Under these circumstances, it is reasonable for the facility to submit VE test results along with the facility's initial Concrete Batching Plant Air General Permit Notification Form, fee, and proof of public notice. In the exercise of its discretion to enforce compliance, DEP allowed AIC to continue to operate before and during the pendency of this proceeding. Petitioners questioned the wisdom and propriety of this choice, but DEP's exercise of discretion in enforcing compliance is not at issue in this proceeding. See Conclusion 24, infra.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order approving AIC's use of the Concrete Batching Plant Air General Permit under Rule 62-210.300(4)(a)2. Jurisdiction is retained to consider a motion for costs and attorney fees under Section 57.105, Florida Statutes, if filed within 30 days after issuance of the final order. DONE AND ENTERED this 31st day of March, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2006.
The Issue Whether the Department of Environmental Protection (DEP) has issued an agency statement defined as a rule which has not been adopted by rulemaking as required by Section 120.54(1)(a), Florida Statutes. (All statutory citations are to the 2000 codification of the Florida Statutes. All rule citations are to the current Florida Administrative Code.)
Findings Of Fact On April 20, 2001, DEP's Southwest District office issued an Intent to Issue with respect to Tampa Bay Desal's application for a NPDES permit for the construction and operation of a proposed desalination facility (DEP File No. FL0186813-001-IW1S). DEP's Intent to Issue for the Tampa Bay Desal NPDES permit provided in part: A person whose substantial interests are affected by the Department's proposed permitting decision may petition for an administrative proceeding (hearing) under sections 120.569 and 120.57 of the Florida Statutes. The Intent to Issue for the NPDES permit also specified the type of information that must be included in a petition filed under Sections 120.569 and 120.57. SOBAC timely challenged DEP's proposed agency action concerning the Tampa Bay Desal permit application. The challenge is currently pending as DOAH Case No. 01-1949. The Intent to Issue the Tampa Bay Desal permit also included the statement: "Mediation under section 120.573 of the Florida Statutes is not available for this proceeding." On June 7, 2001, SOBAC filed a Petition to Invalidate Agency Statement under Section 120.56(4). SOBAC alleged that the statement regarding mediation met the definitions of a rule but was not adopted by rulemaking as required by Section 120.54(1)(a). By correspondence dated June 13, 2001, DEP notified counsel for SOBAC of DEP's willingness to participate in mediation in an effort to resolve the issues underlying the administrative challenge. However, DEP's offer to participate in mediation was predicated, at least in part, on the following conditions: the parties would agree on the selection of the mediator; any discussions and documents introduced in the mediation would remain confidential; and notwithstanding the mediation, discovery in the administrative proceeding would continue, and the parties would be prepared to proceed to the final hearing as scheduled. On or about June 14, 2001, Tampa Bay Desal agreed, at least in principle, to participate in mediation with SOBAC under those conditions. There was no evidence that either DEP or Tampa Bay Desal ever agreed to toll the administrative proceeding (DOAH Case No. 01-1949) pending mediation. On or about June 15, 2001, counsel for SOBAC contacted DEP and accepted DEP's offer to participate in a mediation conference. On or about July 23, 2001, the Department, SOBAC and Tampa Bay Desal participated in a mediation conference in an effort to resolve the issues underlying SOBAC's challenge to Tampa Bay Desal's permit application. Mediation efforts failed. According to the evidence, SOBAC is an organization with an interest in various environmental permitting activities in and around Tampa Bay. SOBAC monitors local newspapers for DEP notices of intent to issue permits. Besides the Tampa Bay Desal permit, SOBAC has become aware of three other DEP notices of intent of interest to SOBAC. One was a notice of intent to issue a permit to Tampa Electric Company (TECO) for NPDES permit modifications relating to and for purposes of accommodating the Tampa Bay Desal project. This notice of intent also contained the statement: "Mediation under Section 120.573, Florida Statutes, is not available for this proceeding." SOBAC nonetheless requested mediation under Section 120.573. When the time to challenge the notice of intent was about to expire, SOBAC also filed an administrative challenge under Sections 120.569 and 120.57. The TECO challenge also was referred to DOAH, where it was given Case No. 01-2720 and consolidated with Case No. 01-1949. TECO never agreed to mediation, and DEP never responded to SOBAC's request for mediation. Another case involved a TECO air pollution permit unrelated to the desalination project. The notice of intent to issue stated: "Mediation is not available for this proceeding." The evidence did not indicate that SOBAC took any action with respect to this notice of intent to issue. The third case involved IMC Phosphates Company and a permit to operate a barge loading facility handling phosphate materials. The notice of intent to issue stated: "Mediation under Section 120.573, F.S. is not available in this proceeding." SOBAC filed an administrative challenge to this permit under Sections 120.569 and 120.57. IMC never agreed to mediation. The evidence was not clear whether SOBAC received a response to its request for mediation. After initiating the instant proceeding, SOBAC researched the Florida Administrative Weekly (FAW) from September 1999 through the date of final hearing and found 30 notices of intent, all of which stated essentially that mediation was not available for (or in) the proceeding, and one notice of intent. No further explanation was given. Of the 30, 24 were electric power plant siting cases, 4 were water quality exemptions, one involved a state revolving loan fund, and one was a joint coastal permit case with consent to use sovereign lands and requested variances. SOBAC presented no evidence as to DEP intents to issue not published in FAW. However, DEP entered into the record evidence of one other DEP notice, apparently not published in FAW, of intent to issue a coastal construction control line permit stating that mediation under Section 120.573 was available and describing procedures to be followed for mediation. SOBAC presented no other evidence to explain why mediation was not offered in the examples given or why it was offered on the one occasion. There also was no evidence as to whether any of the statements regarding availability of mediation reflected by the evidence were intended to mean that mediation was available in one type of case but not in another. Such an intent would have to be inferred. But the evidence was not sufficient to infer such an intent. SOBAC complains that the statements in DEP's notices of intent as to availability of mediation under Section 120.573 force SOBAC to either waive rights or timely initiate administrative challenges under Sections 120.569 and 120.57 and incur litigation costs which might be unnecessary if mediation were initiated. But there was no evidence of any case in which the parties agreed to mediation under Section 120.573. (The failed attempt at mediation in DOAH Case No. 01-1949 was not conducted under Section 120.573.) Second, even if the parties agreed to mediation under Section 120.573, the evidence did not prove the likelihood that mediation would be successful; if not, and if administrative litigation resumed, mediation would have added to the cost of litigation.
The Issue The issue in this case is whether a reasonable attorney's fee should be assessed against Respondents, Paul and Barbara Corbiey, and their attorneys, and awarded to Petitioner, Action Instant Concrete, LLC (AIC), under Section 57.105, Florida Statutes,2 after the Corbieys unsuccessfully challenged AIC's use the Concrete Batching Plant Air General Permit promulgated by the Department of Environmental Protection (DEP) in Florida Administrative Code Rule 62-210.300(4)(a)2.3
Findings Of Fact No Service Without Filing AIC made no motion or request for attorney's fees under Section 57.105, Florida Statutes, prior to the filing of proposed recommended orders (PROs) in DOAH Case 05-2891. The joint PRO filed by DEP and AIC in DOAH Case 05-2891 proposed a reservation of jurisdiction to enter an award of costs and attorney fees to DEP and AIC pursuant to Section 57.105(1) and (5), Florida Statutes. The Recommended Order in DOAH Case 05-2891 granted the request and retained jurisdiction to consider a motion for costs and attorney fees under Section 57.105, Florida Statutes, if filed within 30 days after issuance of the Final Order. AIC did not serve a motion seeking sanctions under Section 57.105, Florida Statutes, without filing it, prior to either its PRO in Case 05-2891 or its Motion for Award of Attorney's Fees, which was filed within 30 days of the Final Order in Case 05-2891 and initiated this Case 06-1552F. Failure to Present Evidentiary Record Under a pre-hearing Order entered in this case, AIC was required to present the evidentiary record from DOAH Case 05- 2891, which had been transmitted to DEP, for use in this case. AIC failed to present the evidentiary record. But no findings made in this Final Order require the evidentiary record (i.e., the exhibits) from Case 05-2891, and AIC was not required to present a transcript of the final hearing in that case since the hearing had not been transcribed. Unsupported Claims AIC proved that some claims raised by the Corbieys in DOAH Case 05-2891 were not supported by the material facts necessary to establish the claims. The Corbieys had and presented no evidence to prove that visual emissions (VE) in excess of five percent opacity occurred during cement loading of the silo, which is the demonstration clearly established by Rule 62-296.414(1) for determining compliance of stack emissions. Their entire case on that issue was based on two claims: questioning the veracity of the VE Observations Report, primarily by speculating that the certified technician who performed the test may have fabricated the observations, either with or without his employer's knowledge; and questioning the consistent and reasonable testimony of all the experts that valid, authorized VE observations could not be performed using Petitioners' videotapes. The first claim was speculation and was rejected as unfounded; and, besides having no evidence to counter the expert testimony on the inability to use videotapes for the stack emission demonstration, the videotape presented in evidence by the Corbieys did not even show loading of the silo. As a result, Petitioners presented no evidence that VE in excess of five percent opacity occurred during cement loading of the silo, or that AIC's stack emission demonstration was invalid. AIC proved that some claims raised by the Corbieys in Case 05-2891--specifically, claims relating to zoning, the location and hours of operation of AIC's facility, local construction permitting and licensing, roadway debris, diesel truck emissions, noise, and bright lights on trucks and on a billboard on the property--were not supported by the application of then-existing law to the material facts necessary to establish the claims, and were not presented as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success were stricken as irrelevant. The other claims made by the Corbieys in DOAH Case 05-2891 either were supported by the application of then-existing law to the material facts necessary to establish the claims, or were presented as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success.
The Issue Whether Respondent is in violation of various provisions of Chapter 403, Florida Statutes, as alleged in the Notice of Violation and Orders for Corrective Action dated October 30, 1991.
Findings Of Fact BEI's composting facility is a potential source of water and air pollution and to operate the facility, BEI requires a permit issued by DER. The original permit issued to DER for this facility expired on June 1, 1991 and has not been renewed. Although its permit had expired, BEI was allowed to continue to operate while informal proceedings were ongoing between BEI and DER. When these informal proceedings were terminated by DER on May 20, 1992, further operation of this composting facility was in violation of Chapter 403.707(1), Florida Statutes, and Rule 17-709.400(1), Florida Administrative Code. On at least two occasions while this composting facility was in operation, the air around the facility was polluted by foul odors. During the period following the expiration of BEI's license, BEI failed to submit monthly operating reports and did not conduct quarterly samplings and testing of the compost and submit the testing to DER as required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary of the DER enter a Final Order finding that BEI has violated Section 403.161(1)(b), Florida Statutes, on each of five counts; and that BEI should immediately cease operation of its solid waste facility, volume reduction plant, until and unless it obtains an appropriate and valid permit from DER and in that regard, BEI shall: Immediately cease acceptance of all materials on the property. In the event that Respondent does not receive a permit from the Department to resume operations at the facility, within 90 days of the effective date of the Final Order, Respondent shall remove all solid waste from the property to an approved solid waste management facility and provide the Department written documentation of its disposal within 30 days of removal. In the event that Respondent does receive a permit from the Department to resume operation at the facility, Respondent shall remain in strict compliance with all terms and conditions of such permit. Within 30 days of the effective date of the Final Order, Respondent shall, if it has not already done so, provide the following to the Department: All records of testing and monitoring conducted on the compost material since January 1, 1990, including daily reports on the temperature and moisture content of compost material, and any testing of compost material conducted prior to distribution. All records documenting application rates of stillage, manure, and leachate to the compost withdrows since January 1, 1990. All records, documenting distribution of composted or mulch material, including amount of compost or mulch material delivered, date of delivery, specific destination of compost or mulch, and intended use of compost or mulch material delivered, since January 1, 1990. All records documenting amount of yard trash received at the facility since January 1, 1990. Within 30 days of execution of the Final Order, Respondent shall make payment to the Department for costs and expenses in the amount of $500.00. Payment shall be made by, cashier's check or money order to the "State of Florida Department of Environmental Regulation". Payment, specifying Office of General Counsel Case No. 91-2006, shall be sent by certified mail to Administrator, Division of Waste Management, Department of Environmental Regulation, 3804 Coconut Palm Drive, Tampa, Florida 33619. DONE AND ENTERED this 16th day of June, 1993, in Tallahassee, Florida. K. N. AYERS 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 16th day of June, 1993. COPIES FURNISHED: Tracey S. Hartman, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Howard C. Batt, Esquire 611 Druid Road East Suite 712 Clearwater, Florida 34616 Virginia B. Wetherell, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Ken Plante, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether the finger pier portion of Respondent Raab's dock creates a navigational hazard. The resolution of that issue will determine whether the dock qualifies for an exemption from an environmental resource permit under Rule 40E-4.051(3)(b), Florida Administrative Code, and Section 403.813, Florida Statutes.
Findings Of Fact DEP has the authority to regulate the construction of docks in jurisdictional wetlands and other waters of the State of Florida and on state submerged lands under Chapters 253, 373, and 403, Florida Statutes, and Chapters 62-330 (which adopts Chapter 40E-4) and 18-21, Florida Administrative Code. The Association is a residential community located in Sewall's Point, Martin County, Florida. All lots within the community abut navigable channels which provide ingress and egress to the ICW. These channels converge so that there is only one channel that connects to the ICW. Most of the residents of the community have large vessels that routinely navigate the channels within the community. At the time of the formal hearing, many of the vessels owned by residents of the community had drafts of four feet and at least two had drafts of five feet. In 1997, Mr. Raab purchased a residence in the Association that is located very close to where the channel meets the ICW. Because of that location, practically all residents of the Association have to pass in front of Mr. Raab's property when going into or returning from the ICW. The property at issue is located at 22 Simara Street, Sewalls Point, Martin County, Florida. The dock at issue in this proceeding is subject to DEP's regulatory authority. When Mr. Raab purchased this property in 1997, there was an existing marginal dock parallel to the bulk-head. Mr. Raab subsequently sought and received approval from DEP to demolish the existing marginal dock and replace it with a virtually identical structure. The existence and configuration of the marginal dock is not at issue in this proceeding. Mr. Raab thereafter sought to modify his approved marginal dock by adding a finger pier which extended into the channel 36 feet so he could dock his vessel perpendicular to the bulkhead. Mr. Raab's plan also called for the construction of two pilings 12 feet from the end of the finger pier. Mr. Raab had, as of the time of the formal hearing, re-constructed the marginal dock and had constructed the finger pier. 3/ The two additional pilings had not been constructed at the time of the formal hearing. After reviewing the modified project, DEP determined that the project was exempt from the need for an environmental resource permit under Rule 40E-4.051(3)(b), Florida Administrative Code, and Section 403.813, Florida Statutes. DEP also authorized Mr. Raab to use state-owned submerged lands if necessary. The Association thereafter timely challenged DEP's determination that the finger pier portion of the project (and the two additional pilings) did not require an environmental resource permit. There was a conflict in the evidence as to the functional width of the channel in front of Mr. Raab's property. 4/ Mr. Holly testified on behalf of the Association that the functional width of the channel was 83 feet. Mr. Lidberg, testifying on behalf of Mr. Raab, testified that the functional width was 101 feet. This conflict is resolved by finding that the functional width of the channel in front of the Raab property is 101 feet. 5/ The prevailing winds in the area in front of Mr. Raabb's dock blow into the dock. The depth of the water in the channels is influenced by tides. The principal reason Mr. Raab wants the finger pier is so that he can moor his boat with the bow to the prevailing winds in times of high winds. At the time of the formal hearing, Mr. Raab owned a vessel with an overall length of 44 feet. There was a conflict in the evidence as to whether Mr. Raab's finger pier and the two pilings that have been authorized, but not constructed, constitute a hazard to navigation. 6/ Based on the totality of the evidence, it is found that these structures do not create a navigational hazard. 7/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order dismissing the Association's challenge to the determination that Mr. Raab's project qualifies for an exemption from an environmental resource permit. DONE AND ENTERED this 1st day of March, 2000, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 1st day of March, 2000.
Findings Of Fact Rayco Properties, Inc. d/b/a Woody's Septic Tank Service is a company authorized by the State of Florida to perform septic tank construction and repair services. All of its contractors and other employees have practiced in the septic system business for many years. The registered contractor, who is the company qualifier, is the person responsible for all contracting services performed by the septic company and for compliance with the applicable regulatory statutes and rules. Donald P. Roberts is a registered septic tank contractor for Woody's Septic Tank Service. At all times material to these causes, he was the company's sole qualifier. At all times material, he was responsible for obtaining all necessary permits for the company. DHRS is the agency responsible for septic contractor registration, septic tank company authorization, and the enforcement of the statutes and rules pertaining to registration and authorization pursuant to Chapters 381 and 489, Part III, F.S. and Chapter 10D-6 F.A.C. This includes the authority to cite, fine, and to suspend or revoke registrations and authorizations. Donald P. Roberts has never previously been cited by the agency. Before 1991, permits were not required for repairs to septic systems. However, at all times material to these causes, repair, installation, and abandonment permits had to be obtained from DHRS, usually through its local units in the respective county public health unit offices. These offices take septic system permit applications, perform site evaluations, issue permits, and perform final inspections. At all times material, no permits were required for replacing dosing pumps, fixing cracked dosing tanks, maintenance of existing systems or service of existing systems. No permits were necessary for replacing a D (or distribution) box, which is a non-mechanical, non-electrical item that serves as a distribution point for pipes. At all times material, the act of installing a dosing tank was a repair that required a permit. At all times material, the act of abandoning a septic tank (pumping it out, punching a hole in it, filling it with dirt and covering it or hauling it away) also required a permit. The standard operating procedure for obtaining a septic system permit is as follows: 1) the contractor or landowner submits a permit application with a plot/site plan to the agency's county office; 2) the agency conducts a site evaluation, sometimes including soil borings and/or a percolation test; 3) the agency reviews and issues the permit; 4) the contractor performs the permitted work; 5) the contractor calls the agency for inspection before covering up with earth; 6) agency inspection occurs and the project is approved OR the contractor is told of a violation, perhaps cited therefor, and must fix any problems pointed out by the agency inspector. If there is a violation to be corrected, the contractor is supposed to call DHRS for re-inspections until the problem is solved and the job is approved by the agency. Some jobs are so routine that some county offices do not do a site inspection before septic system work is done or reinspect after septic system work is done. This appears to be discretionary within the local office. However, if a violation is noted, the problem must be corrected and reinspected or negotiated out. See Finding of Fact 15. An approved plot/site plan becomes part of the permit when the permit is issued, and contractors are expected to adhere to the combined items. Permits state the requirements for the project or job. If a contractor experiences problems on a particular job, such as a well that does not show up on the plot/site plan, he is expected to contact the local public health unit to try to resolve the issue. "Resolution" has traditionally been to revise the plot/site plan or modify the permit. In past years, this has been an informal procedure, sometimes accomplished by telephone calls from the field, sometimes by negotiations in the public health office. All but one of the alleged violations (the Mahalik property) in these causes arose after DHRS decided to strictly require contractors to stop work and apply for and receive a formal modification of the permit or a new permit when unforeseen problems were encountered on any particular job. This procedure was codified in new Rule 60D-6.044(5) F.A.C., effective January 3, 1995. At approximately the same time, DHRS also adopted a policy of forbidding its personnel to discuss such field problems with, or to issue permits to, anyone other than the qualifying registered contractor for each authorized septic tank company. The agency has pointed to no specific statute or rule which provides that only a qualifying registered contractor may pull a DHRS permit or which forbids DHRS personnel discussing modifying a permit with any other company employees. However, it is clear that only registered contractors may pull permits. Two exceptions are recognized: A landowner or homeowner may pull a permit for septic system work with septic system contractors as their "agents"; and in locations where DHRS has an agreement with a city or county plumbing permit office, DHRS acknowledges the local plumbing permits and does not require owners or plumbers to also pull a separate septic system permit from DHRS's local public health unit. I. Case No. 95-5973 Deltona Hills Golf & Country Club Respondents applied for a permit to do repairs to a septic system for Deltona Golf & Country Club on August 7, 1995. A dosing tank is a mechanical device which lifts wastewater to a drainfield. DHRS issued a permit to Respondent to replace the dosing tank with a 900 gallon tank. The original tank being replaced was a 50 gallon tank. Respondents properly abandoned the existing 50 gallon dosing tank and installed the high water alarm, but they installed a 750 gallon tank, contrary to the express terms of the permit. Travis Vickers, then DHRS's Environmental Specialist in the Volusia County Health Unit, ultimately cited Respondents for not complying with the permit and for not calling for re-inspection after the discrepancy in tank size was brought to their attention. Respondents' reason for installing the 750 gallon tank was that they had used a 3:1 ratio to the drainfield which is codified in the agency rules. Thereby, they determined that a 714 gallon tank would be the ideal size tank to install. Then they simply installed the next largest size tank without reference to the permit. Respondents' employees also maintained that when Mr. Vickers notified them they had installed the wrong size tank, they contacted someone else in the local county public health unit and that person orally approved the smaller size tank they had already installed. Therefore, they did not call Mr. Vickers again for re-inspection. The person who supposedly gave the oral authorization was not called to testify, and no written permit modifications or amendment were made, as required by the agency rules then in effect. In this light, Respondents' excuses for failing to install the 900 gallon tank according to permit specifications and failure to call for a re-inspection are not credible. Therefore, it is clear that Respondents installed a smaller tank contrary to the permit specifications and received no modification of permit as required by agency rules in effect at the material time. In making the foregoing findings of fact, I have not overlooked the fact that there are several ways to calculate the appropriate size of a dosing tank; that during his testimony, Mr. Vickers, himself, demonstrated at least two ways of calculating; or that Mr. Vickers' 900 gallon figure on the permit arose in part from considerations in addition to the published agency rules, which additional considerations were the result of workshops with septic system contractors and DHRS personnel which had been reduced to written form in a document nicknamed "the memo from hell," to which Respondent had no access in August 1995. However, that memorandum was designed to help DHRS personnel interpret the code and issue the permit. Its use by agency personnel in issuing a permit does not absolve the contractor of the responsibility to install the system according to the permit as issued, nor does it allow the contractor to unilaterally recalculate tank capacity at will on some other basis. At Deltona Golf & Country Club, Respondents simply did not follow the permit requirements or replace the wrong size tank and call for re-inspection. The fact that Respondents were able to demonstrate alternative methodologies of computation does not change those salient facts. Case No. 95-5973 Pine Street, Enterprise Florida a/k/a the Gleasons' Job Respondents applied for a repair permit for 450 Pine Street, Enterprise, Florida. Mr. and Mrs. Gleason, referred to by some witnesses as "the homeowners," were actually leasing the property. DHRS issued the permit to Respondents on October 3, 1995. It was valid for 90 days. The repair job occurred during a rainy period when the water table was high. Respondents had to drill wellpoints to lower the water table. Further, they were hindered by rain, mud, muck, and debris on the property. A two days' job turned into 15 days' work. Respondents finally installed the drainfield in a slightly different location than the approved location shown on the plot/site plan. Although contrary to the permit, Respondents' installation met minimum 10D-6 F.A.C. requirements, including those for setbacks. Respondents' employees testified that they chose to place the drainfield in an unpermitted location so as accommodate the Gleasons' urgent need for a septic system, because they considered the different location necessary to comply with Chapter 10D-6 F.A.C.'s setback requirements, and because the northeast corner where the drainfield had been permitted was covered with too much muck, and too many stumps, old tires, and pieces of tin and fencing to proceed there. In the experience of Respondent Donald P. Roberts, and Willie Suggs and Jerry Thompson, who also are registered septic contractors, drainfields are not always installed according to the plot/site plan, but the location may be negotiated with DHRS prior to inspection. Respondents claimed to have received oral authorization to relocate the drainage field from an official in the local public health unit, but that person did not testify. Also, Respondents admitted they never applied for a permit modification in writing or obtained an amended permit, as required after January 3, 1995. Therefore, the concept of an oral permit modification is not credible. See, Findings of Fact 15-16. Mr. Vickers inspected the work performed by Respondents on October 17, 1995. He arrived five hours late, creating bad feelings in Respondents. On October 18, 1995, Mr. Vickers notified Respondents that they had located the drainfield in a different area than the area shown on the plot/site plan and approved by the permit. After the violation notice was issued, Mr. Vickers refused to talk to anyone associated with the Respondent company except Donald P. Roberts, the qualified registered contractor, thereby creating further bad feelings in Respondents. To put it mildly, communication between the parties broke down completely. The Gleasons had sent a demand that Respondents complete the Pine Street project by October 25, 1995, but then, approximately October 18, 1995, they hired Acme Septic to complete the project. On October 19, 1995, Acme pulled a DHRS permit for the same repair project in which Respondents were mired at the Pine Street location. Acme then installed the drainfield in the same general area as shown on Respondents' permit's original plot/site plan. In doing so, Acme used Respondents' materials and built on their prior work. Acme successfully installed the drainfield as required by the permit and all agency rules. Under the circumstances, Respondents felt they had no duty to call Mr. Vickers for re-inspection of their discarded work. Despite considerable use of the word "abandonment," Respondents technically remain charged only with failure to comply with the permit and failure to call for re-inspection on the Pine Street Job. Case No. 96-0573 Avocado Street a/k/a The Hale Project The Avocado Street Project was a private residence to which Respondents were originally called to do repair work on a septic system. Many septic repairs do not require a permit. See Findings of Fact 8- Also, repair permits are not required where a problem is discovered on a larger project which has already been permitted, but if contractors discover a problem during the course of an unpermitted repair, which problem would otherwise require its own permit, contractors were expected, post-January 3, 1995, to stop work and obtain an (amended) permit. See Rule 10D-6.044(5) F.A.C. and Finding of Fact 16. Replacement of "like kind" parts of a dosing tank such as a pump, do not require a permit. Repair of a crack in a dosing or septic tank does not require a permit. Replacement of an entire dosing tank or septic tank unless there is already an umbrella permit does require a new permit. See above, Findings of Fact 9 and 10. It is not standard practice for DHRS to inspect/evaluate the site before a replacement permit or an abandonment permit is issued. Such inspections are discretionary in practice and such permits are often issued on the spot at the time of application. See Findings of Fact 12 and 13. At Avocado Street, Respondents pumped out the Hales' septic tank and discovered that the dosing pump was not working. Respondents replaced the pump, but also discovered that the existing dosing tank was inadequate. Due to the inadequacy of the existing dosing tank, dosing pumps repeatedly had burned up. Respondents sent an employee to pull a DHRS permit for replacement of the existing dosing tank, which permit they felt could be pulled immediately. Then they proceeded, without permit in hand, to replace the dosing pump and install a larger dosing tank. Andrew Trapp, DHRS' Environmental Health Specialist in the Orange City office, became aware of the Avocado Street situation only because of a phone call from an employee of the Respondent company asking if a permit had ever been issued. Because a permit never had been issued, Trapp's suspicion was aroused. Therefore, he performed the discretionary onsite inspection and found the new dosing tank. The Avocado Street work of Respondents did not represent a public nuisance. The agency intentionally and violationally issued an after-the-fact permit to Mr. Hale with an employee of Respondent as Mr. Hale's agent on August 23-24, 1995. Any other suggested dates for this permit application are rejected as computer error. The project was reinspected by agency personnel who oversaw Respondents' employees repair a tank leak. DHRS finally approved the whole project. II. Case 96-0573 Clyde Morris Boulevard a/k/a The IWS or BFI Job The Clyde Morris Boulevard property was leased by IWS/BFI from the City of Daytona Beach. Mastercraft Plumbing was the prime contractor responsible for connecting an existing septic system on the Clyde Morris Boulevard property to a public sewer system. Mastercraft hired Respondents to handle the abandonment of a septic tank which Mastercraft was replacing. Abandonment is more fully described above in Finding of Fact 10. Although DHRS presented some hearsay to the effect that Mastercraft expected Respondents to obtain the DHRS abandonment permit, there is no direct evidence for such hearsay to support or explain. Contrary evidence was presented that persons within the IWS/BFI hierarchies had led Respondents to believe that Mastercraft had pulled the necessary DHRS permit or an umbrella plumbing permit which would cover Respondents' abandonment activities. See, Finding of Fact 19. However, there is no direct, competent, or conclusive evidence one way or the other. Respondents' actual abandonment work was completed on or about April 10, 1995. Respondents charged Mastercraft for the work but not for pulling any abandonment permit from DHRS, because Respondents did not pull any such permit. Once Respondents discovered that Mastercraft had not pulled the DHRS septic permit, Jerry Thompson, as an employee of Respondent company, pulled a permit as Mastercraft's agent on May 9, 1995. As previously stated, pre- inspection is not standard practice and DHRS abandonment permits are often issued in a single day. II. Case No. 96-0573 Bridal (or Briddle) Path Lane a/k/a Oakridge Acres a/k/a Mrs. Mahalik's Property Respondents were called to repair a septic tank at Mrs. Mahalik's home on Bridal Path Lane in October 1994. Most of the work did not require DHRS permits. See Findings of Fact 8-10. Respondents charged Mrs. Mahalik, among other things, for installing a new 300 gallon dosing tank. Approximately four months later, in February 1995, Mrs. Mahalik telephoned the Flagler County Public Health Unit and asked whether Respondents' repair had been permitted. DHRS had no record of it. An after-the-fact application was made for the job and a permit for the Mahalik job was issued in March 1995 to Mrs. Mahalik with Respondent company as her agent. Replacement of a dosing tank required a permit under Rule 10D-6.043 F.A.C. in 1994 but Rule 10D-6.044(5) F.A.C., requiring the stoppage of work while applying for an amended permit, did not exist until January 3, 1995.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order finding Respondents Donald P. Roberts and Rayco Properties, Inc. d/b/a Woody's Septic Tank Service guilty as set out in the Conclusions of Law and assessing against both Donald P. Roberts and the company, jointly and severally a total fine of $4,450 and suspending both for 120 days from the date of the final order. DONE and ENTERED this 1st day of November, 1996, at Tallahassee, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1996.
