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
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.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's application for a permit to enlarge and expand its sewage treatment plant be DENIED. Respectfully submitted and entered this 30th day of December, 1976, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Mr. Harvey V. Delzer DELZER, EDWARDS, MARTIN, COULTER & PARKER P.O. Box 279 Port Richie, Florida 33568 Mr. Reynold L. Caleen, Jr. Acting General Counsel Department of Environmental Regulation 2562 Executive Center Circle, E. Montgomery Building Tallahassee, Florida 32301
Findings Of Fact The petitioner is a non-profit corporation consisting of individual members who are residents of Tallahassee and Leon County and organizational members who have chapters in Tallahassee and Leon County. The primary purpose of petitioner is to bring about a balanced transportation system in Tallahassee and Leon County taking into consideration certain criteria which include the following: the prevention of neighborhood disruption and deterioration; the prevention of environmental degradation; and the prevention of harm to historical sites. In conjunction with this purpose and these criteria, one of petitioner's primary concerns is the prevention of degradation of air quality in the Tallahassee, Leon County area. Some members of the petitioner use that part of Thomasville Road to be affected by the subject application. The project for which the Department of Transportation seeks a Complex Source Permit is the four-laning of Thomasville Road from Eighth Avenue to Interstate 10 in Tallahassee, Florida. The Complex Source Permit was originally submitted to the Department of Environmental Regulation on March 22, 1976. The Department of Environmental Regulation did not accept that application, however, due to unacceptable modeling and monitoring. Thereafter, two supplements to the application were submitted to the Department of Environmental Regulation. The first, dated September 21, 1976, and the second, dated November 16, 1976, contained additional monitoring and a repeat of the modeling effort. Because of allegedly incorrect counts and speeds, the Department of Transportation submitted yet another application with revised monitoring and modeling data on January 4, 1978. This latest revised application is the subject of this hearing. The Department of Transportation did not monitor for or project the concentrations of any pollutant listed in Section 17-2.05, F.A.C., except carbon monoxide. The Department of Environmental Regulation did not require the monitoring for or projection of concentrations of any pollutant listed in Section 17-2.05, F.A.C., except carbon monoxide. The evidence presented in this proceeding does not establish that construction of the project for which a Complex Source Permit is sought herein would result in or cause an increase in ambient pollutant concentrations of any pollutant listed in Section 17-2.05, F.A.C., with the exception of carbon monoxide. The evidence presented indicates that remaining pollutants listed in the foregoing section would be emitted in insignificant quantities having no effect on the ambient air quality standard for that pollutant. The Department of Environmental Regulation has not independently monitored for any of the pollutants considered by Section 17-2.04(8), F.A.C., but has relied entirely on data submitted by the Department of Transportation. The Department of Transportation has based its carbon monoxide projections upon the use of the California Line Source Model, also known as Calair I, which is a mathematical computer model. It appears from the evidence presented that the Calair I computer model was used in a reasonable and proper manner and produced data which could be relied upon by the Department of Environmental Regulation. The Complex Source Permit application as finally submitted on January 4, 1978, projects the following concentrations for carbon monoxide: one-hour concentration for 1979, 6.7 ppm and for 1939, 4.8 ppm; for eight-hour concentrations in 1969, 2.8 ppm and for 1989, 2.0 ppm. The ambient air quality standard for carbon monoxide set forth in Section 17-2.05(1)(c), F.A.C., is 9 ppm maximum eight-hour concentration and 35 ppm maximum one-hour concentration, both not to be exceeded more than once per year. The testimony indicates that even if the calibration factor with the Calair I model were doubled, the projected carbon monoxide concentrations would not exceed the foregoing standard. No evidence was presented on the issues initially raised in this proceeding involving the Major Thoroughfare Plan, the Transportation Improvement Plan, and the Urban Area Transportation Plan. The testimony and evidence presented in this proceeding establishes reasonable assurance that the subject project will not cause a violation of the ambient air quality standards for the major pollutants to be emitted.
The Issue The issue in this case is whether Respondent, Action Instant Concrete, LLC (AIC), should be allowed to use the Concrete Batching Plant Air General Permit promulgated by Respondent, Department of Environmental Protection (DEP), in Florida Administrative Code Rule 62-210.300(4)(c)2.1
Findings Of Fact Petitioners, Paul and Barbara Corbiey, live at 7380 Southwest 86th Lane, Ocala, Florida, in an area called Green Turf Acres. Petitioners' property shares a boundary with property owned by AIC at State Road 200. In 2003 AIC began construction of a relatively small cement silo and area for storage of rock aggregate and sand to mix with the cement, similar to facilities at a related operation some distance away. The other operation is within the jurisdiction of DEP's Central District, which did not require a permit for the operation. AIC's operation in Ocala is in DEP's Southwest District, which is headquartered in Tampa. Periodically (and irregularly but apparently usually early in the morning) AIC receives deliveries of cement to the silo at its facility next to the Corbieys. The silo is essentially a rectangular bin with a baghouse, essentially another rectangular structure attached to the silo and containing a combination of filters. Deliveries are made using an enclosed truck with a blower and flexible hose that can be positioned and attached to the fill spot on the silo. The transfer of cement from truck to silo is accomplished pneumatically, with the air exhausted through the baghouse, which is designed to capture and retain cement particles within the silo as the air passes through to the outside of the silo. If there are particulate emissions during the process, they typically would come from the baghouse. AIC also has aggregate and sand delivered to storage areas on either side of the silo. Each of the storage areas has walls made of 4-5 courses of cement block on three sides. The walls are there mainly to contain the aggregate and sand but also serve as a partial windbreak. During AIC's operations, trucks come to pick up cement, aggregate, and sand. To load cement onto the trucks, cement is gravity-fed from a hopper on the silo, through a flexible tube, and into the truck; aggregate and sand also are loaded into trucks using a front-end loader. Unconfined emissions can and, at least sometimes, do occur during the loading processes. After loading, the trucks are driven offsite, typically to a construction site, where the cement, aggregate, and sand are batched to form concrete. When AIC began operations, its yard was covered with grass and weeds, which helped suppress fugitive dust when trucks drove in and out. Later, the grass and weeds died, and AIC installed three sprinkler heads to keep the area watered to help suppress fugitive dust. When AIC began construction and operation, Petitioners complained to numerous authorities that AIC's construction and operation were illegal, inappropriate, and should not be allowed for various reasons, including alleged particulate emissions and fugitive dust that was harmful to the health and property of Petitioners and their neighbors.13 One complaint was lodged with DEP's Central District, which referred it to DEP's Southwest District. DEP's Southwest District investigated, determined that AIC should have obtained a permit, initiated compliance action, and required AIC to make use of the Concrete Batching Plant Air General Permit promulgated by DEP in Rule 62- 210.300(4)(c)2. DEP also fined AIC in the amount of $4,150, plus $100 to reimburse DEP for its costs, for constructing and operating without a permit.14 These amounts were paid. It does not appear from the evidence in the record that DEP ordered AIC to cease operations until DEP allowed AIC to use the Concrete Batching Plant Air General Permit. It does not appear that AIC ceased operations. As DEP instructed, AIC had a VE test performed in accordance with EPA Method 9 for submission with a Concrete Batching Plant Air General Permit Notification Form, fee, and proof of public notice. AIC retained Koogler & Associates for this purpose, and the test was performed on April 26, 2005. On April 29, 2005, AIC published notice in the Ocala Star-Banner that it intended to use the Concrete Batching Plant Air General Permit. On May 5, 2005, Koogler & Associates prepared a VE Observations Report for AIC. On May 16, 2005, Petitioners filed a Petition opposing AIC's use of the Concrete Batching Plant Air General Permit and seeking its revocation. On May 19, 2005, AIC submitted a Concrete Batching Plant Air General Permit Notification Form, fee, proof of public notice, and VE observation report to DEP. At the hearing, John B. Koogler, Ph.D., P.E., an expert in environmental science and air quality, and the principal of Koogler & Associates, testified as to the cement and concrete industry in general, EPA Method 9, required certifications for conducting a VE test under EPA Method 9, VE testing under EPA Method 9, and the VE Observations Report prepared for AIC by Koogler & Associates. In the case of AIC's operation, VE testing measures stack emissions during standard loading of cement under pressure. Typically, if there are emissions during the process, they will be seen at the baghouse on the silo--i.e., the dust collector at the exhaust point. This is where VE is measured during testing. AIC's stack emissions were tested at a loading rate of approximately 50 tons per hour; at that rate, 25 tons of cement were loaded into the silo in half an hour. According to AIC's VE Observations Report, there were no stack emissions during testing. Dr. Koogler did not perform the test himself and did not sign the Observations Report, but the test was performed and the report was prepared under his general supervision, and experts in his field routinely rely on VE testing performed by certified technicians under general supervision and on observations reports prepared by others under general supervision. According to Dr. Koogler, the test for AIC appeared to have been performed properly and met the requirements of EPA Method 9 and DEP's statutes and rules for use of the Concrete Batching Plant Air General Permit. Petitioners questioned the veracity of the VE Observations Report, primarily by speculating that the certified technician who performed the test may have fabricated the observations, either with or without his employer's knowledge. This speculation is rejected as unfounded. Petitioners also repeatedly questioned the consistent and reasonable testimony of all the experts that valid, authorized VE observations could not be performed using Petitioners' videotapes. Besides, the videotape in evidence did not show loading of the silo. As a result, Petitioners presented no evidence that VE in excess of five percent opacity occurred during cement loading of the silo. Petitioners also alleged that violations occurred during the loading of trucks at AIC's operation. Witnesses testified to seeing various amounts of dust from various distances occurring at various times, but their testimony was not specific. Parts of the videotape in evidence show some unconfined emissions occurring during the loading of at least some of the trucks. However, as indicated above, VE testing is not done for unconfined emissions; in addition, standardized opacity measurements could not have been made from a videotape. Finally, the videotape showed that AIC uses a chute, or partial enclosure, to mitigate emissions at the drop point to the truck, and the evidence was that AIC maintains its parking areas and yards and applies water when necessary to control emissions. Cf. Conclusions 22-23, infra. Dr. Koogler also opined that AIC and its operation may use the Concrete Batching Plant Air General Permit under a proper interpretation of the statutes and rules, in particular Rule 62-296.414, which states that it not only applies to "emissions units producing concrete and concrete products by batching or mixing cement and other materials" but also applies to "facilities processing cement and other materials for the purposes of producing concrete." This opinion was consistent with DEP's interpretation of the statutes and rules. Petitioners also contended that AIC was ineligible for the Concrete Batching Plant Air General Permit because its facility already was in existence and was operating without a permit. However, expert witnesses for DEP and for AIC testified consistently and reasonably that DEP can require a facility operating without a permit to use the Concrete Batching Plant Air General Permit in order to come into compliance. It is not necessary for the facility to dismantle its facility and rebuild after obtaining authorization to use the Concrete Batching Plant Air General Permit under Rule 62-210.300(4)(a)2. Under these circumstances, it is reasonable for the facility to submit VE test results along with the facility's initial Concrete Batching Plant Air General Permit Notification Form, fee, and proof of public notice. In the exercise of its discretion to enforce compliance, DEP allowed AIC to continue to operate before and during the pendency of this proceeding. Petitioners questioned the wisdom and propriety of this choice, but DEP's exercise of discretion in enforcing compliance is not at issue in this proceeding. See Conclusion 24, infra.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order approving AIC's use of the Concrete Batching Plant Air General Permit under Rule 62-210.300(4)(a)2. Jurisdiction is retained to consider a motion for costs and attorney fees under Section 57.105, Florida Statutes, if filed within 30 days after issuance of the final order. DONE AND ENTERED this 31st day of March, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2006.
The Issue The issue is whether the Petition for Administrative Hearing should be dismissed for failure to state a cause cognizable under Florida Law.
Findings Of Fact On November 30, 1998, Suwannee American filed its application and fee for an air construction permit for a dry process, preheater/precalciner type portland cement plant. The cement plant will emit oxides of nitrogen as a result of the combustion of fuels. A small fraction of the nitrogen oxides will, through oxidation, convert to nitrate. Some of the nitrate will become available for deposition as fall- out through two mechanisms: (a) dry deposition from particulate deposition; and (b) wet deposition from rainfall. Nitrate that lands on land and water surfaces can remain there, be taken up by vegetation, or enter ground and surface waters. The cement plant will also emit mercury. Joseph Kahn, a permit engineer in the Department's Division of Air Resources, Bureau of Air Regulation, was assigned to review the application. Early in the review process, Mr. Kahn became aware that members of the public and the Department's staff in its park's division had concerns about the atmospheric deposition of mercury and nitrate emissions from the cement plant. By letter dated December 29, 1998, Mr. Kahn requested the applicant to furnish additional information, including but not limited to, an additional impacts analysis of mercury and nitrogen deposition pursuant to Rule 62-212.400(5)(e), Florida Administrative Code. 1/ Specifically, the December 29, 1998, letter made the following inquiries: 8. Please compare other NOx [nitrogen oxide] limits established by BACT (for LaFarge and Great Star Cement, for example) with the proposed NOx limit and discuss the variables that affect emissions of NOx from Portland cement plants that are applicable to the proposed facility. * ** Please discuss the basis for the estimated emissions of mercury and provide illustrative calculations. Please estimate the possible impact or deposition of mercury at the Ichetucknee Springs State Park and the Santa Fe and Suwannee Rivers in the vicinity of the proposed facility. Please perform an additional impact analysis in the PSD [prevention of significant deterioration] Class II area near the facility including the Ichetucknee springs State Park and the Santa Fe and Suwannee Rivers in the vicinity of the proposed facility. This analysis must include impact on growth, soils and vegetation, and visibility. On February 25, 1999, the Department received Suwannee American's response to the December 29, 1999, letter. The response states as follows in regards to the deposition of mercury: Response: The PSD report used an emission factor for mercury from AP-42, Table 11.6-9, for cement Kilns with fabric filters. The other available emission factor in AP-42 is for cement kilns with ESPs. As this kiln will utilize an ESP for the pyroprocessing system, this response uses the ESP emission factor: 0.00022 pounds/ton of clinker X 839,5000 tons/year = 185 tons per year. Mercury emission data from nine cement plants ere evaluated as reported in the EPA Document Locating and Estimating Air Emission From sources of Mercury and Mercury compounds. These data are shown in the following table: [Table Omitted] The use of the average value from these tests results in a lower and consistent value: 0.000171 pounds/ton of clinker X 839,500 tons/year = 144 pounds per year. Emission estimates based on expected mercury levels in limestone, clay, sand, fly ash, and coal that will be used by Suwannee American result in an estimated emission rate of 129 pounds per year. The ambient air impact of mercury at the Ichetucknee Springs State Park and the Santa Fe and Suwannee rivers in the vicinity of the proposed facility is estimated as 0.00003- 0.00005 ug/m 3/ as a maximum annual concentration. The Reference Air concentration (RAC) for mercury (40 CFR 266, Appendix IV) is 0.3/m 3/ annual average. The deposition of mercury at the Ichetucknee Springs State Park and the Santa Fe and Suwannee Rivers in the vicinity of the proposed facility is estimated as 0.00002- 0.00005 g/m 2/ as a maximum annual deposition. If this level of deposition continued for 50 years and if all deposited mercury was to accumulate in the top six inches of soil, the increase in mercury levels in the soil would be on the order of 0.006 mg/kg. Safe mercury levels in soil established by Rule 62-785, F.A.C., are 3.7 mg/kg for direct exposure and 2.1 mg/kg for groundwater protection. After receiving the applicant's response to the December 29, 1998, request for additional information, Mr. Kahn performed independent evaluations to determine whether nitrate or mercury deposition would be of special concern in the area around the proposed plant. As to nitrate deposition, Mr. Kahn determined that approximately 50 tons per year of the NOx would be converted and deposited as nitrate within a 23-mile radius of the plant. He concluded that the estimated nitrate deposition from the cement plant was not significant because it was less than 0.1 percent of the annual total loading rate of nitrate (50,000 tons per year) from all other sources in the counties surrounding the Suwannee River. Mr. Kahn's independent analysis of mercury deposition yielded similar results. He concluded that, compared to the background levels of mercury existing in the soils around the proposed facility, and compared to the criteria of the Department's direct exposure soil criteria, 2/ the estimated additional mercury deposition from the cement plant would not be significant. Mr. Kahn and the applicant made several conservative assumptions in making an analysis of mercury deposition. For example, they assumed that mercury would be emitted and deposited in the cement plant's vicinity at a constant rate for 50 years. They also assumed that all of the mercury deposited on the ground would remain in the top six inches of the soil and would not migrate into any other media. On March 25, 1999, the Department conducted a public meeting on Suwannee American's application. The public commented on various issues. As to atmospheric deposition of substances, the public's comments were not structured enough for the Department to consider them per se in the application review. By letter dated March 26, 1999, the Department summarized the public concerns and requested Suwannee American to furnish the following information in relevant part: 2. Estimate potential mercury emissions from the pyroprocessing system, and characterize the fraction of mercury that will come from other raw material, coal, petroleum coke and tires. Please evaluate control methods for mercury emissions. * * * 8. What portion of the proposed plant's Nox emissions will be deposited as nitrate through dry and wet deposition within an area 25 miles radius from the site? Investigate pollution prevention techniques that may result in lower overall NOx emissions. On or about April 21, 1999, Suwannee American responded to the above-referenced questions. As to question no. 2, the responses states as follows: Response: Potential mercury emissions were submitted to the Department on February 25, 1999. Using three different approaches, the projected emissions were in all cases below the 200 pound per year threshold established by Rule 62-212.400(2)(f) and Table 212.400-2, F.A.C. as a significant emission rate increase (for PSD permitting purposes). Because the expected emissions are below the threshold amount, there is no regulatory requirement to apply BACT review for the de minimis emissions that are expected. Approximately 40 percent of the mercury will be contributed by fuel (coal) and 60 percent by raw materials. When petroleum coke or tires are used as fuel, the mercury contributed by fuel is expected to decrease. As to question no. 8, Suwannee American's response stated as follows: Response: The applicant notes that the matters inquired of in this request are not related to those matters allowed under Section 403.0876(1), F.S., and therefore requests that the Department begin processing the permit application under Section 403.0876(2)(a), F.S. However, in a continuing effort to be responsive to the concerns behind the questions asked, the applicant submits the following information, provided the submittal does not affect the permit processing time clock. Approximately 7% or less of the plant's NOx emissions will be deposited as nitrate through dry and wet deposition within an area 25 miles radius from the site. This is approximately 0.1 pounds per acre per year, and is less than one percent of the wet and dry background deposition measured at the Bradford Forest, near Starke, Florida. This analysis was very conservative, as it assumed nitrate deposition between five miles and 25 miles to be equal to the deposition rate at five miles (i.e., there was no credit taken for the decrease in deposition rate with distance beyond five miles). This approach is also conservative in that it assumed all NOx from the plant would immediately convert to nitrate and be available for deposition. This is a worst case assumption. Pollution prevention operating procedures that may result in lower overall NOx emissions are being evaluated. One technique planned for the facility is the stockpiling of limestone to allow natural drainage before pyroprocessing. Lower material moisture contents allow for the use of less fuel and hence, less NOx. After receiving Suwannee American's response to the Department's March 26, 1999, letter, Mr. Kahn reviewed the applicant's analysis. He compared information presented by the applicant with his own estimates of nitrate and mercury deposition. Suwannee American's data confirmed Mr. Kahn's prior conclusion that atmospheric depositions of mercury and nitrate from the cement plant would not be a significant fraction of the existing total deposition and total loading of those elements from all sources. Mr. Kahn did not perform any further analysis to estimate the impact of nitrate or mercury emissions on the area surrounding the proposed plant. He never made any comparisons to the Department's surface water quality criteria or standards related to Outstanding Florida Water (OFW) bodies. In other words, Mr. Kahn did not attempt to discern the specific impact of mercury and nitrate deposition on the ground water and surface water surrounding the proposed plant. His additional impact analysis was limited to comparing the estimated mercury and nitrate depositions from the proposed facility to the existing total loading of those elements from all sources in the area around the cement plant. Concluding that the impacts would be insignificant, he then informally advised certain members of the public, including Mr. Greenhalgh and some of Sierra Club/SOS' members, that the water pollution and OFW rules did not apply. The Department's Division of Air Resources never applies the standards relating to water quality or an OFW. Those standards are applied and enforced by the Department's staff in its water resource division when a water pollution permit is required. If there are off-site impacts that are not covered by the PSD rules, the applicant will be required to apply for other applicable permits. 3/ The parties do not assert that, in order to construct the cement plant, Suwannee American requires a separate water pollution permit to determine its compliance with the OFW rules. No one from the Department's water resource division officially reviewed the application at issue here. In performing his independent evaluation of additional impacts, Mr. Kahn sought information regarding the total nutrient loading in the Middle Suwannee River Basin from all sources from the Department's water resource staff, including Mr. Greenhalgh. Mr. Greenhalgh is a professional geologist who works for the Department in its water resource division. Specifically, Mr. Greenhalgh is one of the individuals working on the Department's Total Maximum Daily Load (TMDL) analysis for the Middle Suwannee River Basin. In response to Mr. Kahn's inquires, Mr. Greenhalgh stated that the basin had already exceeded its assimilative capacity and could not tolerate additional inputs of nitrate. Other members of the Department's water resource division gave Mr. Kahn similar opinions. However, Mr. Greenhalgh admits that he has not done any calculations to determine the impact of atmospheric deposition of nitrates from the proposed plant on the surrounding area. Mr. Greenhalgh directed Mr. Kahn's attention to a paper written by David Hornsby, an employee of a water management district, concerning the total nitrate loading from all sources in the Middle Suwannee River Basin. Mr. Kahn used data from the paper to make his comparisons between the total nitrate loading from all sources in the area to his estimate of nitrate deposition from the proposed plant. Mr. Kahn then informed Mr. Greenhalgh that the Department could not deny the permit on the basis of nitrate atmospheric deposition because the Department did not regulate all sources of nitrate in the basin. Except for the applicant, and the informal consultations with members of the Department's Division of Water Resources, no one furnished Mr. Kahn with any technical information regarding the atmospheric deposition of mercury and nitrates. The Federal Environmental Protection Agency has not developed or approved methods for calculating air deposition rates for emissions. In the absence of such standards, the methods used by Suwannee American and Mr. Kahn to determine the proposed facility's additional impact on the surrounding area were appropriate and reliable. The Department has adopted the federal government's acid rain rule (Rule 62-214.420, Florida Administrative Code.) That rule specifically addresses water quality impacts from the emissions and atmospheric deposition of sulfur dioxide and NOx from certain electric power plant facilities. The parties agree that the acid rain rule does not apply in this case. Permits for electrical power plants are issued under the authority of the Florida Electrical Power Plant Siting Act. The Governor and Cabinet sitting as the electrical power plant siting board approve power plant siting applications. The Department's Division of Air Resources performs a PSD review for electric power plant siting applications. Unlike the circumstances in this case, an electrical power plant siting application also requires other sections of the Department to consider impacts on water quality, solid waste, and land use. Under the terms of the Florida Electrical Power Plant Siting Act, the Department has required one other applicant to perform the type of additional impact analysis that was performed in this case. That application involved an existing Florida Power and Light Company, Inc. (FP&L) electrical power plant located near Tampa Bay, an OFW. The FP&L electrical power plant requested permission to convert to orimulsion fuel. In the FP&L power plant case, the Department took the position that water quality concerns were satisfied by a demonstration of compliance with air quality standards. There is no specific permit application that one would fill out or apply for to determine if one would be in compliance with the OFW rule. The OFW rule is usually considered in the context of another permit. However, there is no evidence that the Department has ever considered the OFW rule in the context of a new source PSD permit application. Suwannee American's proposed cement plant will be located within three miles of an OFW. There is no evidence that the Department has ever considered another application for a new source PSD (prevention of significant deterioration) permit within such close proximity to an OFW. Sierra Club/SOS' only factual allegation is that Suwannee American has not provided reasonable assurances that it would not significantly degrade the Santa Fe River, an OFW, through the atmospheric deposition of mercury, in contravention to Rule 62-302.700, Florida Administrative Code. 4/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter a final order dismissing the Petition for Administrative Hearing in DOAH Case No. 99-3096, with prejudice for lack of standing. DONE AND ENTERED this 21st day of October, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1999.
The Issue This is a license discipline proceeding in which, on the basis of facts alleged in a First Amended Administrative Complaint, Petitioner seeks to take disciplinary action against Respondent. It is alleged that Respondent violated Section 386.204, Florida Statutes, “by and through Section 386.207(3), Florida Statutes,” by allowing patrons to smoke in an enclosed indoor workplace.
Findings Of Fact The parties have stipulated to the fourteen paragraphs of findings of fact which follow. Petitioner is the State of Florida, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco. Respondent is Old Cutler Oyster Company, Inc., d/b/a Old Cutler Oyster Company. Respondent holds license number 22-20655, Series 4-COP, issued by Petitioner. Michael Pace is the President of Respondent and holds 100 percent of the stock of Respondent. Lisa Tyrell was the manager and person in charge at Respondent’s licensed premises on July 9, 2003. Ms. Tyrell is currently employed by Respondent as a manager. Ms. Tyrell called Michael Pace on the telephone, then gave the receiver to Fernandez (Special Agent), who explained to Mr. Pace that violations of the Florida Clean Indoor Air Act were occurring on the licensed premises. On July 9, 2003, Special Agent Fernandez issued an Official Notice of Warning to Ms. Tyrell as a result of observing patrons smoking which, he claimed, was in violation of the Florida Clean Indoor Air Act. On August 15, 2003, Special Agent Fernandez issued a Notice to Comply to Mr. Pace and told him that he had thirty days to comply with the notice or administrative charges would be filed. The notice alleged a violation of the Florida Clean Indoor Air Act by “allowing patron to smoke cigarettes on 4-COP SRX licensed premises.” Special Agent Fernandez visited the licensee a third time on September 18, 2003. At all times material hereto, Respondent held a valid retail tobacco products dealer permit issued by Petitioner. At no time did Special Agent Fernandez observe any of Respondent’s employees smoking within Respondent’s business premises. No patron received a citation for violating the Florida Clear Indoor Air Act. On July 9, on August 15, and on September 18 of 2003, Special Agent Fernandez observed patrons smoking tobacco products within Respondent’s licensed premises.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a final order be issued in this case dismissing the First Amended Administrative Complaint and denying all relief sought by the Petitioner. DONE AND ENTERED this 24th day of September, 2004, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 24th day of September, 2004.
The Issue The issue in this case is whether Petitioner should be issued an air construction permit authorizing its Crystal River steam generating plant Units 1 and 2 to co-fire a five to seven percent blend of petroleum coke with coal.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioner, Florida Power Corporation (FPC), is an investor-owned public utility engaged in the sale of electricity to approximately 1.2 million customers. Among others, it operates the Crystal River Power Plant consisting of five electric-generating units in Citrus County, Florida. Units 1, 2, 4, and 5 are coal-fired, while Unit 3 is a nuclear unit. Respondent, Department of Environmental Regulation (DEP), is a state agency charged with the statutory responsibility of regulating the construction and operation of business enterprises in a manner to prevent air pollution in excess of specified limits. Among other things, DEP issues air construction permits for a limited period of time to undertake and evaluate initial operations of a business enterprise; long- term approval subsequently is available under an air operation permit. As a part of this process, and pursuant to federal law, DEP engages in a Prevention of Significant Deterioration (PSD) review to determine if non-exempt alterations to major facilities result in net emission increases greater than specified amounts. Under certain conditions, however, the use of alternative fuels or raw materials are exempted from PSD review. Intervenor, Legal Environmental Assistance Foundation, Inc. (LEAF), is a non-profit Alabama corporation licensed to do business in the State of Florida. It is a public interest advocacy organization whose corporate purposes include securing environmental and health benefits from clean air and water. Intervenor, Sierra Club, Inc. (Sierra Club), is a public interest advocacy organization incorporated in California and doing business in Florida. Its corporate purposes include securing the environmental and health benefits of clean air and water. On December 26, 1995, FPC filed an application with DEP for an air construction permit authorizing it to burn a blend of petroleum coke and coal in its existing coal-fired Units 1 and 2 at the Crystal River Power Plant in Citrus County, Florida. In the application, FPC did not address PSD review since it believed it qualified for an exemption from PSD permitting under Rule 62- 212.400(2)(c)4., Florida Administrative Code. That rule exempts from PSD review the [u]se of an alternative fuel or raw material which the facility was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975. After reviewing the application, DEP issued an Intent to Deny on June 25, 1996. In that document, DEP stated that [a]ccording to information in Department files, both Units 1 and 2 operated on liquid fuel prior to January 6, 1975. Very substantial modifications of the boilers and pollution control equipment were implemented thereafter by [FPC] to convert the units to coal-firing mode. Therefore the project does not qualify for the exemption from PSD review claimed by the company. Contending that it was entitled to an exemption from PSD review and therefore a permit, FPC filed a Petition for Administrative Hearing on October 4, 1996. In its Petition, FPC generally alleged that petroleum coke is a product with characteristics very similar to coal; Units 1 and 2 were capable of accommodating coal and petroleum coke as of January 6, 1975; and contrary to the statements in the Intent to Deny, any boiler modifications and pollution control improvements to those units were minor and not substantial. The Permitting Program The PSD program is based on similar PSD requirements found in the federal Clean Air Act of 1970, as amended (the Act). The permitting program is a federally required element of DEP's State Implementation Plan (SIP) under Section 110 of the Act. DEP has fulfilled the requirement of administering the federal PSD program by obtaining approval from the Environmental Protection Agency (EPA) of state PSD regulations that meet the requirements of federal law. The requirements of the SIP are found in Chapters 62-204, 62-210, 62-212, 62-296, and 62-297, Florida Administrative Code. Chapter 62-212 contains the preconstruction review requirements for proposed new facilities and modifications to existing facilities. Rule 62-212.400, Florida Administrative Code, establishes the general preconstruction review requirements and specific requirements for emission units subject to PSD review. The provisions of the rule generally apply to the construction or modification of a major stationary source located in an area in which the state ambient air quality standards are being met. Paragraph (2)(c) of the rule identifies certain exemptions from those requirements. More specifically, subparagraph (2)(c)4. provides that a modification that occurs for the following reason shall not be subject to the requirements of the rule: 4. Use of an alternative fuel or raw material which the facility was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975. The rule essentially tracks verbatim the EPA regulation found at 40 CFR 52.21(b)(2)(iii)(e)1. Therefore, in order to qualify for an exemption from PSD review, FPC must use "an alternative fuel . . . which [Units and 2 were] capable of accommodating before January 6, 1975." In addition, FPC must show that "such change would [not] be prohibited under any federally enforceable permit condition which was established after January 6, 1975." Contrary to assertions by Respondent and Intervenors, in making this showing, there is no implied or explicit requirement in the rule that FPC demonstrate that it had a subjective intent to utilize petroleum coke prior to January 6, 1975. The Application and DEP's Response In its application, FPC proposes to co-fire a five percent (plus or minus two percent) blend of petroleum coke with coal, by weight. It does not propose to make any physical changes to Units 1 and 2 to utilize petroleum coke. Also, it does not request an increase in any permitted air emission rates for the units because it can meet its current limits while burning the proposed blend rate of petroleum coke with coal. The application included extensive fuel analysis and air emissions data obtained from a DEP-authorized petroleum coke trial burn conducted from March 8 until April 4, 1995. Although it is not proposing to make physical changes to the plant, FPC applied for the air construction permit in deference to DEP's interpretation that such a permit is required when a permittee utilizes an alternative fuel. After completing his initial review, the DEP supervisor of the New Source Review program acknowledged in a memorandum to his supervisor that FPC was "entitled to a permit" but suggested that FPC be asked to "change their minds." Before the permit was issued, however, DEP changed its mind and issued an Intent to Deny on the ground that prior to January 6, 1975, Units 1 and 2 were not capable of accommodating coal or a blend of petroleum coke with coal. The Units Unit 1 has a generating capacity of 400 MW and commenced operation as a coal-fired plant in October 1966. It fired coal until March 1970, fuel oil until October 1978, and then again fired coal from June 1979 to the present. Unit 2 has a generating capacity of 500 MW and commenced operations as a coal-fired plant in November 1969. It fired coal until September 1971, fired fuel oil from December 1971 until October 1976, and then again fired coal from December 1976 to the present. Original equipment installed during the initial construction of Units 1 and 2 included the following: the barge unloader, which removes coal from barges that deliver coal from New Orleans; the stacker/reclaimer, which stacks the coal into piles and then reclaims the coal by directing it from the coal piles to conveyors that deliver it to the units; the crusher house, which has two crushers that crush the coal on the way to units down to nuggets no larger than three-quarters of an inch in diameter; the silos, which store the crushed coal; the feeders, located below the silos, which regulate the flow of coal from the silos to the pulverizers; the pulverizers, which grind the coal in preparation for combustion and then direct the pulverized coal to the burners, which are located on the corners of each unit's boiler; and the boilers, where the fuel is combusted, imparting heat to water contained in the waterwalls and thereby producing steam for electrical generation. The foregoing equipment was reflected in the plant's construction specifications and remains in operation, on site, at the plant. Components and parts of this equipment have been maintained, replaced, and repaired periodically. The original operations manual for the barge unloader, stacker/reclaimer, crushers, and conveyor systems are still kept and utilized on site. The primary fuel utilized in Units 1 and 2 is coal, although these units also co-fire from one to five percent number fuel oil and used oil. The combustion of fuel in Units 1 and 2 results in air emissions. As a result of changing regulatory requirements, there have been substantial improvements to the units' air pollution control capabilities since original construction. Existing Air Permits Unit 1 currently operates under Air Operation Permit Number A009-169341. Unit 2 operates under Air Operation Permit Number A-009-191820. Both permits were amended by DEP on October 8, 1996. Although each air operation permit contains an expiration date that has been surpassed, the permits remain in effect under DEP's regulations during the pendency of the agency's review of FPC's applications for air operation permits under the new Title V program found in Chapter 62-213, Florida Administrative Code. The air operation permits governing Units 1 and 2 contain mass emission rate limitations of 0.1 pounds/million (mm) British thermal units (Btu) or particulate matter (PM), and 2.1 pounds/mmBtu for sulfur dioxide. These mass emission rate limitations restrict the amount of each pollutant (measured in pounds) that is to be released into the atmosphere per million Btu of heat energy by burning fuel. The PM limitation is applicable to Units 1 and 2 under state regulations originally promulgated in 1972. The sulfur dioxide limitation was established in 1978 as a result of a PSD air quality analysis performed in conjunction with the permitting of Units 4 and 5. Prior to 1978, sulfur dioxide limits promulgated early in 1975 imposed a limit of 6.17 pounds/mmBtu on coal-fired operations at Units 1 and 2. Because Units 1 and 2 were subjected to a PSD air quality impact analysis along with Units 4 and 5, the units' sulfur dioxide emission limits were reduced from 6.17 to 2.1 pounds/mmBtu. The 2.1 pounds/mmBtu sulfur dioxide emission limitation applicable to Units 1 and 2 was set with the intention of assuring no adverse air quality impacts. The sulfur dioxide impacts associated with Units 1, 2, 4, and 5, after collectively being subjected to PSD air quality review, were much lower than the sulfur dioxide impacts previously associated with only Units 1 and 2. Is Petroleum Coke an Alternative Fuel? Petroleum coke is a by-product of the oil refining process and is produced by many major oil companies. The oil refineries refine the light ends and liquid products of oil to produce gasoline and kerosene, resulting in a solid material that resembles and has the fuel characteristics of coal. Both historically and presently, it has been common- place for electric utilities to rely on petroleum coke as fuel. For example, during the period 1969 through 1974, regular shipments of petroleum coke were sent to various electric utility companies throughout the United States to be co-fired with coal. In addition, DEP has issued permits for Tampa Electric Company to co-fire petroleum coke with coal. In 1987 and again in 1990, the EPA promulgated air- emission regulations which specifically define "coal" as including "petroleum coke." DEP has incorporated these regulations by reference at Rule 62-204.800(7)(b) 3. and 4., Florida Administrative Code. Given these considerations, it is found that petroleum coke constitutes an alternative fuel within the meaning of Rule 62-212.400(4)(c)4., Florida Administrative Code. Were the Units Capable of Accommodating the Fuel? Petroleum coke and coal are operationally equivalent. Petroleum coke can be handled, stored, and burned with the existing coal handling equipment at Units 1 and 2. The barge unloader, stacker/reclaimer, storage areas, conveyors, silos, crusher house, pulverizers, and burners, all installed prior to 1975, can handle petroleum coke. The equipment comprising Units 1 and 2 does not require any modification in order to burn a blend of petroleum coke with coal. Also, there will be no net impact on steam generator design or operation, and there will be no decline in performance or adverse impacts to the boilers. FPC could have co-fired petroleum coke with coal historically without making physical alterations or derating the units. Similarly, petroleum coke can be fired in Units 1 and 2 now without alterations or derating. These findings are further supported by Petitioner's Exhibits 35 and 36, which are reference books published in 1948 and 1967 by the manufacturer of the equipment installed at Units 1 and 2. They confirm that prior to 1975, petroleum coke was suitable for the manufacturer's boilers and pulverizers. Unrebutted testimony demonstrated that Units 1 and 2 could have co-fired petroleum coke with oil during the oil-firing period. Even when Units 1 and 2 fired oil instead of coal for a period of time in the 1970s, the coal-handling equipment remained in existence on-site and available for use, and both units remained readily convertible to their original, coal-firing modes. Because the plant remained capable of accommodating coal, it also remained capable of accommodating petroleum coke. In light of the foregoing, it is found that co-firing petroleum coke with coal at Units 1 and 2 could have been accomplished prior to January 6, 1975. Are there Post-January 6, 1975, Prohibitions? There is no evidence to support a finding that a federally enforceable permit condition was establshed after January 6, 1975, that prohibits co-firing petroleum coke with coal. I. Miscellaneous By letters dated February 14 and June 2, 1997, the EPA Region IV office replied to inquiries from DEP regarding the instant application. The conclusions reached in those letters, however, were based on a misapprehension of the facts in this case. Therefore, the undersigned has not credited these letters. To prove up its standing, LEAF introduced into evidence a copy of its articles of incorporation and a brochure describing the organization. In addition, it asserted that the air quality for its members would be "at risk" if Units 1 and 2 did not meet PSD standards and air emissions were "increased." Intervenor Sierra Club proffered that a substantial number of members "live, work, or recreate in the vicinity of the Crystal River Units 1 and 2, and in the area subject to the air emissions by those units," and that those members "would be substantially affected by the proposed exemption."
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting the application of Florida Power Corporation and issuing the requested air construction permit. DONE AND ORDERED this 23rd day of September, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1560 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1997. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 James S. Alves, Esquire Post Office Box 6526 Tallahassee, Florida 32314-6526 W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Gail Kamaras, Esquire 1115 North Gadsden Street Tallahassee, Florida 32303-6327 Jaime Austrich, Esquire Post Office Box 1029 Lake City, Florida 32056-1029 F. Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact On or about August 4, 1990, Bio-Med Services, Inc., (hereinafter "BMS") submitted to the Department of Environmental Regulation (hereinafter "DER"), an application for the construction of a biohazardous waste incineration facility (hereinafter "facility") to be located on approximately 5.5 acres in the City of LaBelle Industrial Park. The application was prepared, signed and sealed by Robert A. Baker, Professional Engineer, and was signed by Gary V. Marsden, president of BMS. BMS is a wholly owned subsidiary of Bio-Med Management, Inc., (hereinafter BMM), and was formed for the express purpose of making application for construction of the facility at issue in this case. Gary V. Marsden has held the position of president of BMS for approximately one and one-half years. Prior to becoming BMS president, Gary Marsden was a telephone equipment salesman. Gary Marsden's father, Clarence, is president of BMM, and a director of BMS. The BMS business plan indicates that Clarence Marsden was integral to the formation of BMS, was the primary contact between BMS and engineer Baker, and will act as salesman for BMS. Clarence Marsden has been convicted approximately four times on felony counts related to illegal drug activities. Neither Marsden has any experience related to construction or operation of biohazardous waste incineration facilities. According to the first application, the incinerator facility will utilize two "Consumat-1200" incinerators and one "U-Burn 12060" incinerator. 1/ The Consumat-1200 units are each capable of incinerating approximately 2,000 pounds of waste hourly. The U-Burn incinerator is capable of incinerating 250 pounds of waste hourly. The total waste incineration capacity of the facility is approximately 50 tons daily. The waste to be incinerated consists of biological and biohazardous wastes, primarily from hospitals and medical offices. The facility would not be authorized to incinerate hazardous or radioactive wastes. The application seeks approval to construct an incinerator facility which could operate 24 hours daily, seven days weekly, on a year-round basis. Although the incinerators would be shut down for maintenance and repairs, the applicant hypothesized the constant operation of the facility for the purpose of predicting emissions levels. The air pollution control (hereinafter "APC") system proposed in the first application includes venturi scrubbers, caustic scrubbers, and a 50 foot tall, 30 inch diameter discharge stack. On or about April 19, 1991, BMS submitted amendments to the first application. The amendments, (hereinafter the "second application") were prepared and signed by Mr. Baker. The amendments deleted the venturi scrubbers/caustic scrubbers and substituted dry hydrated lime injection scrubbers and baghouses. The amendments also altered the discharge stack dimensions to provide for a stack height of 65 feet and a diameter of 40 inches. The second application also included a bypass stack to provide for APC system malfunctions. Such bypass stacks provide for uncontrolled discharge of emissions into the atmosphere, when such emissions could further damage a malfunctioning APC system. On or about September 24, 1991, an application was submitted by Eastern Grading, Inc. 2/ for a permit to construct a biohazardous waste incineration facility to be located on a site outside the City of LaBelle, rather than at the LaBelle Industrial Park. According to the third application, the incinerator facility still proposes to utilize two "Consumat- 1200" incinerators and one "U-Burn 12060" incinerator. The third application deleted the bypass stack system intended to handle emergency situations and substituted a proposed crossover mechanism. The Eastern Grading application, (hereinafter the "third application") prepared and signed by Mr. Baker and signed by Gary Marsden as president of Eastern Grading, Inc., is the application at issue in this proceeding. Subsequent to the filing of the third application, BMS has now abandoned plans to locate the facility on the site identified in the third application and instead seeks approval to construct the biohazardous waste incineration facility at the LaBelle Industrial Park site identified in the first application. The proposed site for the facility is located approximately 4,900 feet from the City of LaBelle Public Water Treatment Facility. The raw water supply comes from shallow wells southwest of the city, and is stored at the treatment plant in open holding areas. After sand-filtering and softening, the water is stored in vented tanks. Based upon the proximity of the water treatment plant to the incineration site, there is high potential for impact on the local water supply by the emissions discharged from the incineration facility. The site of the proposed facility is located next to the Cross Tie Mobile Home Estates Subdivision, approximately 75 feet from the closest residence, approximately 2,000 feet from a senior citizen service center, and approximately 3,700 feet from a local nursing home. It is likely that some individuals in the nursing home may be regarded as particularly health sensitive, as are a number of residents of Cross Tie Mobile Home Estates Subdivision who suffer from respiratory illnesses and who testified during the proceeding. The site is approximately 4,600 feet from a local elementary school, approximately 4,400 feet from an intermediate school, approximately 7,400 feet from a middle school, and approximately 8,600 feet from a high school. Persons with existing respiratory illnesses, elderly persons, and children are regarded as "sensitive receptors" and are substantially more at risk through exposure to airborne chemical pollutants than is the general population. Based upon the proximity of the incineration site to such sensitive receptors, there is high potential for impact on such persons by the emissions discharged from the incineration facility. There was no site-specific analysis of the proposed facility done by either the applicant during preparation of the application or by the DER during review of the proposal. The applicant has provided no data related to potential heath risks posed by the proposed facility. The DER has not specifically analyzed such health risks. The third application states that various requirements of the Department will be met. The application provides as follows: "Each incinerator will have the following equipment and operational requirements in order to comply with the requirements of FAC 17-2.600: Particulate emissions will not to (sic) exceed 0.020 grains per dry standard cubic foot (gr/dscf) corrected to 7% oxygen (O2). Hydrochloric acid (HCI) emissions to be reduced by 90% by weight on an hourly average basis. At least one second residence time at no less than 1800 F. in the secondary combustion chamber. An air lock system designed to prevent opening the incinerator doors to the room environment and to prevent overcharging. Carbon monoxide (CO) concentrations in the stack exhaust gases of less than 100 PPMv, dry basis, corrected to 7% 02 on an hourly basis. The secondary combustion chamber to be preheated to 1800 F. prior to burning and maintained at 1800 F. or greater during active burning of wastes. All incinerator operators will be trained by Consumat Systems or another qualified training organization. A training plan for the operators will be submitted to the Florida Department of Environmental Regulation (FDER) prior to the start of operations. Continuous monitoring and recording of temperatures and oxygen will be maintained at the exit of the secondary combustion chamber. Operating procedures and calibration requirements will be submitted to FDER upon selection of monitoring equipment. All air pollution control equipment will be functioning properly during operation of the incinerator system. The list of assurances set forth above are a recitation of the requirements of the DER's rules as provided at Chapter 17- 2.600, Florida Administrative Code. The evidence as to specific equipment and operational requirements is insufficient to support the assertion that the facility will meet such standards. As the applicant's professional engineer, Mr. Baker signed and sealed a statement as follows: This is to certify that the engineering features of this pollution control project have been examined by me and found to be in conformity with modern engineering principles applicable to the treatment and disposal of-pollutants characterized in the permit application. There is reasonable assurance, in my professional judgement, that the pollution control facilities, when properly maintained and operated, will discharge an effluent that complies with all applicable statutes of the State of Florida and the rules and regulations of the department. It is also agreed that the undersigned will furnish, if authorized by the owner, the applicant a set of instructions for the proper maintenance and operation of the pollution control facilities and, if applicable, pollution sources. Mr. Baker's certification relates only to his opinion that the facility, properly operated and maintained, will be capable of compliance with Chapter 17-2.600, Florida Administrative Code. The engineering and design of the incineration facility have not been completed. The application states, without qualification, that the two Consumat units will be utilized. The remaining equipment, including the entire air pollution control system, is identified by type of component, but is otherwise not specified. Where equipment specifications are provided, such specifications are qualified by language stating that the equipment installed will meet either such specifications "or their technical equivalents". No actual operating or test data related to any of the equipment or systems proposed for use is included in the application. There is no reliable operating or test data applicable to biohazardous waste incineration facilities available for this particular configuration of components. The application fails to contain sufficient information related to "engineering features" to permit a credible determination as to whether or not the incineration facility will conform with modern engineering principles. The application fails to support Mr. Baker's assertion that reasonable assurances are provided that when properly maintained and operated, the facility will discharge an effluent that complies with all applicable statutes of the State of Florida and the rules and regulations of the DER. Although there is no evidence to establish that the applicant intends not to comply with the requirements of the DER's regulations, the application, reflecting the fairly preliminary design of the incineration facility, fails to provide sufficient information to assure that, once final design decisions are made and the equipment acquired, that such equipment will be compatible and configured in a manner which assures compliance with the DER's acceptable emissions regulations. The applicant has no experience in construction or operation of such incineration facilities. There is no other existing and operating biohazardous waste incineration facility using this configuration of air pollution control equipment. Mr. Baker contends that the completion of final design plans and specifications is a relatively straightforward process, but nonetheless, it has not been done. The Consumat incinerators have already been purchased, are used equipment, and were subject to a cursory inspection conducted by a BMS investor prior to purchase and transportation of the used equipment from the original owner in South Carolina. There is no evidence that structural inspections by a qualified metallurgist are contemplated. The Consumat units are starved-air incinerators. A starved air incinerator consists of two chambers, one primary and one secondary. The inflow of air into the primary chamber is controlled to provide for partial combustion and volatilization of wastes. The maximum temperature of the primary chamber is 1400 degrees F. The gases produced in the primary chamber flow into the secondary chamber where the temperature is maintained through gas burners. The minimum temperature in the secondary chamber is 1800 degrees F. The application provides that the waste gases will remain in the secondary chamber for two seconds. Control of temperature and residence time is the secondary chamber is required to complete the combustion process. The draft permit conditions require the applicant to install, maintain and operate continuous emissions monitoring equipment to record the secondary combustion chamber's exit temperature and oxygen level. Each incinerator will have an oxygen probe and a thermal couple at the secondary chamber exit. The oxygen probe will provide data needed to ascertain whether the combustion process is adequate and permits the correction of oxygen levels to the 7% standard required to measure emissions levels. The thermal couple permits the monitoring of exit temperatures. The draft permit also requires BMS to maintain all testing measurements and calibration data, and other information related to equipment maintenance and adjustments. The Consumat units must be retrofitted to permit the residence time and temperature indicated in the application. The application does not contain design or engineering information related to retrofitting the secondary chambers. The U-Burn unit is, according to professional engineer Baker, a "very unique design of a company that's no longer in existence." The U-Burn would be operated only in conjunction with one of the Consumat units. One Consumat and the U-Burn would each have a separate connection into one of the two APC systems. The application provides no design or engineering data related to the connection of the U-Burn unit into the APC system. The application states that the incinerators will be loaded by means of an enclosed ram feed mechanism which will prevent the incinerator from being opened to the room environment and prohibit overloading of the unit. The enclosed ram feed mechanism has not yet been designed. Two parallel lines of identically sized pollution control equipment are proposed, each line designed to meet the requirements of one Consumat unit and the U-Burn unit. Each line of equipment will include a preconditioner ("quencher"), a lime injection dry scrubber, and a fabric filter baghouse. To control emissions, it is necessary to reduce the temperature of gases exiting the secondary chamber, where the minimum temperature is 1800 degrees F. According to the "Process Description" in the application, the gas stream will be preconditioned by the use of water injection to lower the gas stream temperature to 275 degrees F. The water from the preconditioning process will be evaporated as part of the exhaust gases. The preconditioner will be lined with refractory material to withstand the extreme temperature. The application contains preliminary design specifications for the preconditioner, however the application states that such specifications "or their technical equivalents" will be utilized in the final design, accordingly such specifications are subject to change. There has been no more than preliminary design and engineering work completed for the construction and operation of the preconditioner. The application states that the dry hydrated lime injection system (dry scrubber) and the fabric filter system have been designed to meet the requirements of Chapter 17-2.600 F.A.C. for particulate matter and HCI emissions control. Upon leaving the preconditioner, cooled flue gases move into the dry scrubber. According to the "Process Description" in the application, an ultra- fine, dry hydrated lime (calcium hydroxide) will be injected into the preconditioned gas stream via a metered pneumatic system inside a reactor. Although the velocity of the injection must be sufficient to ensure that the dry lime mixes thoroughly with the flue gases, the application contains no information related to expected injection velocity. Once mixed, the lime reacts with hydrochloric acid to produce calcium chloride. The dry scrubber will collect large particulate matter and will have an airlock system for removal of collected solids. The lime injection rate will be at a minimum of 30% greater than the stoichiometric requirements for the neutralization of the HCI. This system is intended to remove at least 90% of the HCI in the gas stream. The application contains preliminary design specifications for the dry scrubber, however the application states that such specifications "or their technical equivalents" will be utilized in the final design, accordingly such specifications are subject to change. No more than preliminary design work for the construction and operation of the dry scrubber has been completed. Following dry scrubber treatment, the flue gases proceed to a reverse jet fabric filter baghouse. Baghouse technology is a relatively standard methodology of controlling submicron particulate matter (and dioxins/furans condensed on such matter) and heavy metal vapors. According to the "Process Description" in the application, the reverse jet fabric filter will have a maximum air to cloth ratio of 5 to 1. 3/ Under some conditions, a 5 to 1 air to cloth ratio may result in the filter bags becoming clogged with ultrafine particulates. The baghouse is intended to have a removal efficiency of greater than 99% for submicron particulate matter. The application contains preliminary design specifications for the baghouse, however the application states that such specifications "or their technical equivalents" will be utilized in the final design, accordingly such specifications are subject to change. A substantial amount of manufacturer literature related to dry scrubbers, baghouses (including the fabric filter bags), and emissions monitoring equipment is included in the application, but is of no probative value given that the applicant has not committed to using any of the equipment for which literature is included. The application indicates that the incineration facility will include a "crossover" between the two APC systems, to provide for the possibility that one APC system could fail. During such "upset" conditions, there is a substantial potential for visible and fugitive emissions, as well as odors and smoke. The applicant has not yet designed the crossover mechanism and has no information related to the actual planned operation of a crossover mechanism. Standard incinerator design provides for the utilization of bypass stacks which permit the discharge of uncontrolled emissions upon the failure of an APC system. The crossover theoretically would shift the discharge from one incinerator's failed APC system to the second incinerator's APC system, during which time the operation of the second incinerator unit would be reduced or would cease in order to provide adequate capacity in the operating APC system for the discharge from either or both operating incinerators. The application does not provide information related to the operation, design or location of the crossover mechanism. There is no information as to how the facility would address the potential situation where, with only one incinerator and APC system operating, an APC system failure would occur. The utilization of the crossover mechanism is unique, there being no similar medical waste incineration facility crossovers in use elsewhere. It is not possible to determine, given the lack of detail in the application, whether the crossover mechanism could be expected to adequately and successfully address potential "upset" situations. The site plan identifies two buildings on the site, one for incineration operations and the second for ash storage. There is no information supplied related to the location or storage of delivered, but unincinerated, biohazardous wastes, although, if the site plan is accurate, such storage apparently occurs within the incineration building. The application states that solid wastes (ash and lime) will be collected and disposed of off-site in an approved landfill. At hearing, BMS submitted an ash residue management plan, providing the applicant's plan to manage ash from the incinerators and the baghouse discharge. The plan was not signed or sealed by the applicant's professional engineer although he attested to the plan at hearing. According to the plan, incinerator bottom ash generated by the facility "will be handled in a manner which will prevent danger of contamination or release to the environment". Ash will be removed from "the consumat Model CS 1200 incinerator" 4/ unit by means of an ash ejection ram and collected in a wet sump, designed to eliminate dust and blowing ash. The wet ("quenched") ash is removed from the water-filled sump by a drag chain from which excess water will drain for reuse in the ash sump. The wet ash will exit the building by conveyer and be deposited into a covered, metal, "roll-off"-type, water tight storage container. When full, the container contents will be sampled and a representative sample provided to a DER-approved laboratory for Toxicity Characteristic Leaching Procedure ("TCLP") analysis. The container will thereafter be sealed, and the ash trucked to an approved disposal facility. Baghouse waste will include fly ash and reagent waste related to the dry scrubber treatment. Such waste will be removed through a bottom drop hopper discharging into 55 gallon drums. The hopper/drum system will be shielded to prevent waste escape into the atmosphere. Upon filling, the drums will be sampled for the TCLP analysis and then sealed and transported to the approved disposal site. The BMS Ash Residue Management Plan also states: "Type A class waste will be disposed of by Waste Managements, Inc., at their facility located at 3000 N.W. 48th Street, Pompano Beach, Florida 33073. In the event ash residue would not be classified as Type A waste, it will be disposed of by Chemical Waste Management, Inc., whose offices are also located at 3000 N.W. 48th Street, Pompano Beach, Florida 33073." The Ash Residue Management Plan is insufficient to comply with the DER's requirement related to such plans. The plan fails to indicate the capacity of the disposal site or whether the disposal site is intended to receive ash residue from the solid waste combustor for the life of the facility. The plan is ambiguous as to whether the identified sites are actual disposal sites or are offices of the company which will allegedly handle disposition of the ash. The plan fails to address the beneficial uses, if any, of ash residue, although the plan does state that ash recycling is not anticipated. The plan fails to identify contractual requirements, or notification and inspection procedures, which assure that hazardous wastes are not received or burned in the facility. Although the plan states that the incinerator ash will be placed into a wet sump to eliminate dust and blowing ash, and that wet sump water will be recycled into the sump, the plan fails to address the cumulative effects such water reuse and the potential impact of exposure to humans or the environment. As to the baghouse hopper/drum system (shielded to prevent waste escape into the atmosphere) the plan fails to consider other pathways of human or environmental exposure such as through direct contact or ingestion, and the potential for soil and ground water contamination. The application states that any liquids generated from wash-downs and cleaning operations will be collected in a holding tank and thereafter incinerated. The application contains no design or engineering data which identifies the means for incinerating such liquids or establishes that such liquid incineration will be accomplished in a manner which will not adversely affect incinerator or APC operation. Petitioners assert that the facility is experimental in nature because the design is rudimentary and the crossover mechanism is not used in medical waste incinerators of this type. Respondents assert that the facility is not experimental, and that the various types of equipment proposed are in use at other incineration facilities elsewhere. The evidence fails to establish that the entire facility should be properly identified as "experimental", however, there is no credible test data available for a facility utilizing this proposed combination of equipment in the configuration identified in the application. It is likely to expect a biohazardous waste incinerator to emit multiple air pollutants. Such pollutants include particulate matter and hydrogen chloride (HCI), as well as toxic pollutants such as arsenic, cadmium, chromium, lead, mercury, manganese, nickel, zinc, and dioxin equivalents. As to toxic pollutants, the DER reviewed the anticipated chemical emissions of arsenic, mercury, manganese, cadmium, chromium VI, nickel, zinc, lead, tetrachlorodibenzo dioxin (TCDD), and hydrochloric acid. The draft permit in this case requires the proposed facility to conduct emissions tests for particulate matter, hydrogen chloride, oxygen and carbon monoxide within 60 days of initially operating the facility, and to conduct annual emissions tests thereafter. At hearing, the applicant agreed to monitor emissions for the toxic pollutants arsenic, cadmium, chromium, lead, mercury, manganese, nickel, zinc, and dioxin equivalents, and further agreed to continuously monitor carbon monoxide and opacity. The DER has established a policy related to the control of toxic emissions from an air pollution source. The "Air Toxics Policy" is an effort by the DER to protect public health from the potential dangers posed by inhalation of excessive levels of toxic air emissions. The DER has a working list of 756 chemicals for which acceptable emission levels have been established. In identifying chemicals for inclusion on the working list, the DER utilized sources which referenced chemicals of concern and also reviewed data related to the air toxics programs of other regulatory agencies. The DER air toxics working list suggests acceptable ambient air concentration levels for the identified toxic chemicals. The acceptable levels are identified as "no threat levels" or "NTL's" and are set forth at average eight hour, 24 hour, and annual concentration levels. The DER asserts that the NTL's are conservative figures and that adverse public health consequences are unlikely to occur when ambient concentration emission levels do not exceed the NTL's. In establishing the average eight and 24 hour concentration NTL's, the DER utilized the more conservative of figures available from either the federal Occupational Safety and Health Administration (OSHA) or the American Conference of Governmental Industrial Hygienists (ACGIH). The OSHA and ACGIH figures are applicable to exposure of a healthy employee to a single chemical for an eight hour working period. The annual NTL's are directly based on EPA health data values listed in the EPA's Integrated Risk Information System. Of the three NTL's, the EPA- based annual levels are considered to be more accurate. In situations where the eight and/or 24 hour averages are exceeded, additional consideration is given to whether the annual NTL is also exceeded. The DER has not reviewed the data upon which the EPA, OSHA and ACGIH levels rely, and has not independently reviewed the statistical methodology utilized by the EPA, OSHA and ACGIH in calculating the cited agencies acceptable emissions levels. However, the weight of the testimony in support of the methodology, absent specific evidence to the contrary, establishes that such reliance is reasonable. In attempting to establish eight and 24 hour NTL's for use in the DER's Air Toxics Policy, the DER considered the likelihood that air emissions would contain multiple toxic chemicals and would impact a less healthy population (including particularly susceptible individuals) for an extended period of time. The DER reduced the eight hour OSHA/ACGIH concentration by two orders of magnitude, resulting in DER eight hour NTL's which are 100 times less than the OSHA/ACGIH levels. The DER further reduced the 24 hour OSHA/ACGIH levels by a factor of 4.2 (based upon dividing the total hours in a seven day period by a 40 hour work week) resulting in DER average 24 hour NTL's which are 420 times less than the OSHA/ACGIH acceptable occupational levels. Petitioners assert that the uniform safety factors calculated by the DER which resulted in the reduction of OSHA/ACGIH figures to the DER NTL's are arbitrary, and that some NTL's were likely too high and others were too low. However, Petitioners did not identify any of the 756 chemical NTL's on the DER working list as inadequate or excessive. The greater weight of the evidence establishes that the DER's utilization of a two magnitude safety factor is appropriate. Based upon the lack of adverse health impacts on the working population subject to OSHA/ACGIH occupational levels, the dearth of toxicological data available for most substances of concern, and absent evidence to the contrary, the inclusion of safety factors which result in an average eight hour NTL 100 times less than the OSHA/ACGIH levels and an average 24 hour NTL 420 times less than the OSHA/ACGIH levels is a reasonable attempt to prohibit excessive emissions and protect the general public's health from dangers posed through inhalation of such toxic air emissions. The DER annual average air toxic concentration levels are directly derived from EPA data and are distinguished on the basis of whether or not a substance is a carcinogen. For carcinogens, the NTL is based upon a unit risk factor which equates to a one in one million increased risk of developing a cancer related to said chemical. For non-carcinogens, the DER NTL is based upon an "inhalation reference concentration" which relies directly upon inhalation toxicity data, where such data is available. Where "inhalation reference concentration" data is unavailable, the DER NTL is based upon an extrapolation of oral toxicity data. The evidence fails to establish that the reliance of the DER on such EPA data is inappropriate or unreasonable. The DER utilizes the air toxics working list to compare anticipated emissions from a proposed air pollution source to the NTL's. Not all 756 chemical comparisons are made in every case. The comparison is for the purpose of determining whether additional inquiry should be made related to specific chemical emissions. The instant application includes predicted emission rates supplied by engineer Baker. The Baker estimates are based upon actual uncontrolled incinerator emission test results, to which a predicted "control efficiency" was applied for each type of control technology proposed in the application. The control efficiency predictions were based upon a noncommercial Canadian pilot project utilizing a dry-scrubber/baghouse combination, on non peer-reviewed literature and, as to mercury emissions, on a telephone conversation with a representative of the municipal waste industry. At the hearing, Petitioners utilized a data base compiled by Dr. Paul Chrostowsky, who supplied emissions estimates based upon his data base. The data base consists of actual test results from incinerators (including 12 medical waste incinerators) and from peer-reviewed literature. None of the facilities in the Chrostowsky data base reflect data from facilities utilizing a dry scrubber/baghouse system. Half of the incinerators in his data base utilized no controls, one utilized a baghouse, and the remaining five utilized wet scrubbers. Dr. Chrostowsky took the average emissions levels and added one standard deviation to account for uncertainty related to the lack of an operating record for the proposed facility. The emissions estimates produced by Dr. Chrostowsky are deemed to be more reliable and are credited. Dr. Chrostowsky opined that the applicant's estimates did not reflect likely operating conditions and were unreasonably low. According to his estimates, the application underestimated emission rates for hydrogen chloride, arsenic, cadmium, lead, manganese, mercury, and nickel. He also opined that the application's predicted mercury removal rate of 94% was excessive and that a removal rate 70% would be more likely. However, even given Dr. Chrostowsky's emissions levels, only the 24 hour NTL for hydrogen chloride is exceeded. Although Dr. Chrostowsky's calculated an exceedance of the annual average HCI NTL, the calculation was based on error. Other emissions remain at levels below the DER's level of acceptable emissions established by rule. Utilization of a 70% mercury removal rate still results in mercury emissions within the DER's range of acceptable emissions. As to Dr. Chrostowsky's estimated hydrogen chloride emission in excess of the DER's 24 hour NTL, such calculation appears to have been based on the application's estimated HCI control efficiency of 90%. The application utilized a conservative figure based upon the DER minimum requirement of 90% HCI control, when the actual HCI control efficiency could likely be greater than 90%. However, given the preliminary state of design and the lack of test results and data reflective of this particular equipment configuration, the evidence is insufficient to determine with reasonable assurance that such requirement will be met, or that the 24 hour HCI NTL will not be exceeded. It should be noted that the DER's NTL's address only potential human impact through inhalation, on the assumption that the most likely human ingestion for air emissions is through inhalation. The policy does not address human consumption of toxics though contaminated water supplies or via other pathways, Given the proximity of the proposed facility to local water supplies, the potential for other ingestion impacts exists, and should be examined. The application also included the results from engineer Baker's air dispersion modeling, performed to predict local concentrations of certain pollutants in the ambient air. The results indicate that maximum one, eight, and 24 hour concentrations will occur approximately 100 meters from the stack, and that maximum annual average maximum concentrations will occur approximately 500 meters from the stack. Mr. Baker first utilized a standard screening model developed by the federal Environmental Protection Agency specifically for this purpose. Mr. Baker is not an expert in computer modeling and utilizes standard EPA programs to perform such functions. If an initial comparison demonstrates that expected emissions from a proposed pollution source exceed an NTL, additional review of anticipated emissions is conducted to determine whether the initial review data is inaccurate or, if not, whether additional APC technology is required to control the excess emission. The use of an initial screening model is standard scientific practice and is reasonable. Mr. Baker uses the screen model to determine whether there are exceedances of any relevant emissions standards. Where no exceedances occur, it is generally unnecessary to perform further modeling. The Baker screen model relied upon hypothetical meteorological data unrelated to the meteorological variables at the proposed incineration facility site. The screen model results are regarded as an estimation of maximum one hour air pollutant concentrations at or beyond a property line. A set of conversion factors is applied to the maximum one hour air pollutant concentration with the results predicting eight hour, 24 hour, and annual concentrations. According to Mr. Baker's screen model results, the proposed facility's emissions did not exceed the DER's air quality standards or the NTL's in the working list. Mr. Baker subsequently utilized a more advanced EPA model, identified as the "Industrial Source Complex" (ISC) model, which projects both short-term and long-term concentrations. Mr. Baker opined that the ISC model provides a more accurate estimation of pollutant dispersion into the atmosphere. In running the model, he relied upon National Weather Service (NWS) surface meteorological data from Fort Myers and on NWS upper air meteorological data from Tampa, (as the DER had directed) and upon default EPA options. The NWS data included five years of weather information. Based on the ISC model, Mr. Baker anticipates that the emissions will not exceed the DER's air quality standards or NTL's. Meteorological conditions in LaBelle may differ significantly from the NWS Tampa upper air meteorological data. Tampa is much closer to the Gulf of Mexico than LaBelle. Lake Okeechobee, located nearby to the east of LaBelle, may impact LaBelle's local conditions. There is no reliable LaBelle meteorological data easily available, and the DER did not require collection of such site-specific data. Although an expert witness opined that, based upon Orlando's inland location, available Orlando NWS upper air data would be more representative of LaBelle conditions than the Tampa data used, the witness utilized the Tampa data to run his models. There is no actual evidence that utilization of Orlando data would have resulted in different pollutant dispersion modeling results than those included in the application. On behalf of the Petitioners, the ISC model was run utilizing the same weather data used by Mr. Baker and the emissions projections calculated by Dr. Chrostowsky, resulting in substantial agreement between the modeling results. Petitioners suggest that the applicant should have been required to provide data related to the dispersion of air pollutants during certain specific meteorological events, such as temperature inversions. Such inversions occur when warm upper air traps the cooler air below, and holds air pollutants close to the Earth's surface. Although the evidence related to such inversions is based upon a one-year frequency of fog incidence for Ft. Myers, Tampa and Orlando (rather than an analysis of temperature and air pressure data) temperature inversions may occur in LaBelle as often as 20 or more times annually. Utilization of a five year set of NWS data would include occurrences of temperature inversions. Fumigation concentrations occur when, during the dissipation of temperature inversions, the cooler and warmer air levels mix, and pollutants concentrations at the top of the cooler air level may be pulled down resulting in short, but intense, concentrations of pollutants at ground level. It is likely that fumigation events occur in the LaBelle area. Stagnation events are similar to fumigation events, although apparently affecting a larger geographic area than does a fumigation event. It is likely than stagnation events occur in the LaBelle area, however, there is no model which simulates a stagnation event. The screen model utilized in this case by the DER does simulate a fumigation event. According to the screen model predictions, maximum pollutant concentrations would occur under neutral stability conditions, not during fumigation events. The DER utilized the ISC model to predict small particle deposition ("fallout"). Fallout is specific to the meteorology of a site. The ISC model does not accurately predict fallout and such modeling is not required by the DER's regulations. However, such information, if available, could provide useful particle deposition data, given the proximity of the site to the City of LaBelle public water supply. Petitioners assert that the DER should have required a full risk assessment to determine the facility's potential for adversely affecting the local environment and residents in the area. A limited assessment, solely related to dioxin risks and acid gas risks, was performed on behalf of the Petitioners. The evidence is insufficient to establish whether or not the proposed incineration facility will result in an adverse health risk to the general population residing in the area, but given the location of the proposed facility and proximity to the local water supply and to sensitive receptors, the completion of a full risk analysis is warranted. As to dioxin levels, the limited risk assessment estimated that the BMS facility would produce a cancer risk ten to 100 times greater than the risk associated with Lee County's proposed nonbiohazardous waste incineration facility. However, the predicted dioxin emission levels are within the range established by the EPA as acceptable. The Petitioner's expert further opined that such EPA figures overestimate the cancer potency of dioxin. An acid gas analysis was performed utilizing the "hazard quotient/hazard index" method of analysis. The hazard quotient/hazard index analysis provides an acceptable approach to determining air emission health risks. Acid gases include hydrogen chloride, sulfur dioxide, nitrogen oxides, hydrogen fluoride, and sulfuric acid mists. Certain meteorological conditions, including temperature inversions or fog, interact with acid gases to form acid mists and other agents injurious to human lung function. The acid gases/acid mists risk assessment indicates that the incineration facility increases the potential for hazardous health impacts on the local population.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the application of Bio-Med Services, Inc., for a permit to construct a biohazardous waste incineration facility at the LaBelle Industrial Park, in LaBelle, Florida. DONE and RECOMMENDED this 31st day of March, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1992.
