The Issue The issues in this case are whether the Gainesville Renewable Energy Center, LLC (GREC) is entitled to an Air Construction Permit from the Department of Environmental Protection (DEP) for the construction of a net 100-megawatt (MW) biomass-fired electrical power plant in Gainesville, Florida, pursuant generally to state rules that relate to the federal Clean Air Act, 42 U.S.C. §§ 7401, et seq. (Clean Air Act), which is administered by the U.S. Environmental Protection Agency (EPA). Specifically, the issues are whether the proposed project satisfies the requirements of Florida's EPA-authorized air program of Prevention of Significant Deterioration (PSD), as set forth in Florida Administrative Code Rule 62-212.400, and Florida's EPA-delegated air program of National Emission Standards for Hazardous Air Pollutants (NESHAP), as set forth in Florida Administrative Code Rule 62-204.800(10) and (11).
Findings Of Fact Introduction On November 30, 2009, GREC filed with DEP an Application for the construction and operation of a net 100 MW (gross 116 MW), biomass-fired electrical power plant at GRU's Deerhaven power plant complex. GREC seeks to place the biomass plant in service on or before December 31, 2013, which is the deadline for eligibility for a federal renewable-energy grant under the American Recovery and Reinvestment Act of 2009. GREC is a subsidiary of American Renewables, LLC, which develops, builds, and operates renewable-energy power plants. American Renewables, LLC, is jointly owned by affiliates of three corporations that develop, operate, invest, and manage various types of energy projects. American Renewables, LLC, recently obtained permits for a similar biomass plant, also net 100 MW, in Nacogdoches, Texas. This plant, which is expected to begin commercial operation in late 2012, has a power purchasing agreement with Austin Energy, a municipal utility owned by the City of Austin. American Renewables, LLC, recently sold the Nacogdoches plant to a subsidiary of Southern Company. GRU is a municipal utility of the City of Gainesville. GRU owns and operates a power generation, transmission, and distribution system to serve its 93,000 retail customers and its wholesale customers, which include the City of Alachua and Clay Electrical Cooperative, Inc. In addition to owning a 1.4-percent share of the Progress Energy Florida Crystal River Unit Three, GRU owns three power supply facilities with a summer capacity of net 608 MW. Of these, the largest is Deerhaven, which generates net 440 MW. A former mayor of the City of Gainesville, Petitioner Bussing served on the utility committee of the City Commission and participated in utility planning for GRU. Petitioner Bussing lives less than 10 miles from the GREC site and regularly walks outdoors, works in his yard, and bicycles in the area. He enjoys canoeing on local waterways and observing wildlife, such as eagles, hawks, and owls. Identifying himself as a "locavore," Petitioner Bussing favors locally grown food. The other petitioners are similarly situated to Petitioner Bussing. Application The findings in this section are generally based on the Application, although some are also based on the Site Application. According to the Application, the GREC site consists of 131 acres within the Deerhaven site in northwest Gainesville and north central Alachua County--eight miles from downtown Gainesville to the southeast and seven miles from downtown Alachua to the northwest. The Site Application states that the Deerhaven site is within a 1146-acre parcel owned by the City of Gainesville. The Site Application notes that the Deerhaven site includes several units. Unit 1 generates 88 MW by a natural gas or oil-fired steam unit. Unit 2, which was certified in 1978, generates 235 MW (sometimes described as 250 MW) by a pulverized coal-fired unit. Unit 3 generates 76 MW by a natural gas or oil-fired, simple-cycle combustion turbine unit. Deerhaven also includes two 19-MW, simple-cycle combustion turbine units. The Application reports that the GREC site abuts the northwest boundary of the GRU's existing generating facilities at Deerhaven. The Site Application identifies the GRU facilities immediately east of the GREC site as an ash landfill, brine landfill, and large stormwater management pond. Abutting these facilities, immediately to their east, are ash settling ponds and a wastewater treatment sludge disposal cell. Abutting these facilities, immediately to their east, is a large coal pile. A spur of the CSX rail line, which is used for coal deliveries to Deerhaven Unit 2, terminates just south of the GREC site. Except for secondary access roads and unpaved trails, no Deerhaven facilities occupy the GREC site. Immediately west of the GREC site is a site used by the Alachua County Public Works Department for an office and other facilities. Also west of the GREC site is a radio tower and undeveloped land. The southernmost extent of the GREC site fronts on U.S. Route 441, which is lined by intermittent commercial and retail uses in this area. Across U.S. Route 441, over one-half mile from the GREC site, is the nearest residential subdivision, which is called Turkey Creek. The Site Application reports that, in the early 2000s, the City of Gainesville purchased an additional 2328 acres of timberland north and east of the Deerhaven site for buffer and potential expansion. The entire area, including the GREC site, was historically devoted to agriculture and pine silviculture, but the GREC site is now occupied by ditches, swales, altered forested communities, and the roads and trails previously mentioned. By groupings from west to east, the proposed improvements on the GREC site are a fuel-storage area, which consists of four separate wood piles; a parking area, offices, a warehouse, a control room, fire pumps, a water treatment facility, and water tanks; a 50-foot wide band of unoccupied land; a switchyard with a transmission line running to a new GRU switchyard at U.S. Route 441, a switchyard control room, steam turbine, fuel day bins connected to the storage area by a conveyor, a boiler, a 230-foot-high stack, a baghouse, and an aqueous ammonia storage area; and a 53-foot-high cooling tower. These components are concentrated on the north side of the site, farthest from U.S. Route 441, and toward the east side of the site, nearest GRU's Deerhaven operations. The boiler, steam turbine, emissions-control equipment, stack, and cooling tower are 3200 feet northwest of U.S. Route 441 and 2200 feet east of the public works facility. The GREC site will also include roads, an administration building, a warehouse, several stormwater detention ponds, water and wastewater treatment facilities, storage facilities for the fly ash and sand from the BFBB, and two emergency diesel engines. The main components of the GREC facility will be a bubbling fluidized bed boiler (BFBB), which will produce steam to power a conventional steam turbine generator for the production of electricity. Except during startup, when the boiler will consume natural gas until it reaches operating temperatures, the BFBB will burn a wide range of clean, woody biomass fuels in a dense, fluidized sand bed at the bottom of the furnace and also in the area above the bed. GREC will obtain the biomass fuel from forest residue (i.e., material remaining after traditional logging), mill residue (e.g., sawdust, bark, and sander dust), precommercial tree thinnings, used pallets, and urban wood waste (e.g., woody tree trimmings from landscape contractors and power-line clearance contractors). Supplementary fuel will be derived from herbaceous plant matter, clean agricultural residues (e.g., rice hulls and straw, but no animal waste), diseased trees, woody storm debris, whole tree chips, and pulpwood chips. However, GREC will not accept any biomass in the form of treated or coated wood, municipal solid waste, coal, petroleum, coke, tires, or construction and demolition waste, about which some doubt arose at the hearing, so GREC represented that it would not accept construction and demolition debris at the facility. The BFBB will combust one million tons per year (tpy) of biomass. To obtain the fuel, GREC will enter into contracts with suppliers within 75 miles of the site. GREC will incorporate in supplier contracts requirements of sustainability and incentives for good stewardship in silvicultural practices. At offsite locations, suppliers will sort, chip and grind, and screen the biomass to design size. After this primary processing, suppliers will deliver the processed biomass to the GREC facility in 130-150 trucks per day. On average, the facility will unload 12 trucks per hour, although it will be capable of unloading trucks at double this rate. Typically, the GREC facility will be open for biomass deliveries 15 hours per day, six days per week. On arriving at the GREC facility, the trucks will proceed to a drive-through structure, which contains three truck dumpers and three receiving hoppers. From the hoppers, the fuel will be conveyed to a fuel processing system, where a metal detector and magnetic separator will remove ferrous metals, a disc screen will remove oversized chips, and a hammer hog will reduce the oversized chips to the design size of three inches or less. This equipment will be located in an enclosed building with a dust-collection system. After this secondary processing onsite, the fuel is conveyed outside to the fuel storage area where it is stored in piles. One wood pile will have an automatic stacker/reclaimer that will be able to deposit, churn, mix, and remove nearly the entire pile. Another wood pile, conical in shape, has a fixed stacker, and the material will be moved by bulldozers and front- end loaders. This rolling stock will transfer some of the wood chips to a smaller, manual-reclaim pile that will also be contoured by bulldozers and front-end loaders. A fourth, much smaller pile will be maintained for the delivery of presized material, mainly sawdust. As originally sized, the wood piles are intended to store sufficient fuel for 15-20 days of operations. In the Site Application, the automatic stacker/reclaimer pile is specified to be 85 feet high, but, after consultation with the Gainesville Fire Department, as detailed below, GREC agreed to reduce the height of this pile to 60 feet. The fixed stacker pile is 60 feet high, and the manual-reclaim pile is 35 feet high. The automatic stacker/reclaimer pile is 400 feet by 400 feet, and the manual- reclaim pile is 400 feet by 465 feet. GREC will manage the separate wood piles to maintain the fuel's design moisture content, which is about 50 percent, but also to ensure that no portion of the stored wood remains in the pile for too long. In general, GREC intends to use fuel on the basis of first-fuel-in, first-fuel-out, to avoid problems of odor and spontaneous combustion, the latter of which is discussed in detail below. The high combustion temperatures reached by the BFBB and the implementation of the requirement for clean woody fuel will, the Application reports, limit the generation of pollutants. Within the 179-foot-high boiler, fluidizing air will expand the combustion zone in the boiler with high turbulence, intimate solids-to-gas contact and a high heat transfer rate in the bed. Staging or overfire air will assist combustion through openings in the furnace walls. Fluidized bed temperatures will range from 1350 to 1700 degrees. (All temperatures are in Fahrenheit.) Temperatures in the overfire air will be 200 degrees hotter to vaporize the volatile gases, such as carbon monoxide (CO) and volatile organic compounds (VOCs). By staging the combustion in the fluidized bed, the formation of thermally induced nitrogen oxides (NOx) will also be reduced. To enhance the air-pollution controls represented by the effective combustion of clean biomass, the GREC facility will employ three additional measures. First, dry sorbent injection (DSI) will inject into the boiler material that, in addition to the calcium that naturally occurs in the ash, will reduce emissions of sulfur dioxide (SO2), sulfuric acid mist (SAM), hydrogen chloride (HCl), and hydrogen fluoride (HF). Second, a selective catalytic reduction (SCR) system will reduce NOx emissions. The SCR system will use a catalyst and a reactant (ammonia gas) to dissociate NOx into nitrogen gas and water vapor. Third, downstream of the boiler, a fabric filter baghouse will reduce emissions of particulate matter (PM) and particulate matter less than 10 microns in diameter (PM10). (Discussed below, PM2.5 is particulate matter less than 2.5 microns in diameter.) As described in the Site Application, the baghouse will comprise 12 filter compartments, each containing 250-350 bags that are six inches in diameter and 14- to 26-feet long. At the bottom of the baghouse will be a hopper to collect ash. As PM forms on the bags, it will form a filter cake that increases the filtration efficiency of the bags. But once the air pressure drops to specified limits, high-pressure air pulses will be directed, automatically, into each bag, loosening the caked fly ash and depositing it as ash in the hopper below. Fly ash from the boiler will be captured by the baghouse filter. Periodically, the fly ash will be collected dry and transported pneumatically to an onsite storage silo. From there--if needed, after stabilization with water--the ash will be transported--enclosed, if still in dry form--for use as a soil supplement or, if such use is unavailable, to an approved offsite landfill. When ash is transferred to trucks, the trucks are sealed, and the air in the trucks displaced by the ash is transferred back to the silo through a vacuum system. Coarser than fly ash, bottom ash will be landfilled, if relatively coarser grained, and transferred pneumatically to the silo, if relatively finer grained. Solid waste from the GREC facility will be transferred ultimately to the New River regional landfill in Raiford, which has a projected life of more than 50 years at current filling rates. The cooling tower will contain a drift eliminator. The purpose of this device is to capture PM/PM10 that has passed the baghouse. The GREC facility will also control PM/PM10 fugitive emissions by the use of pneumatic systems for the delivery of sand for the fluidized bed and sorbent for the DSI to their separate onsite storage silos. According to the Site Application, the City of Gainesville has identified numerous benefits from the GREC project. These include enhancing the integrity and reliability of the GRU generating system, reducing the average age of the GRU generating system, producing reasonably priced electricity, diversifying fuel sources, avoiding the price fluctuations of fossil fuels, hedging the risks of anticipated carbon-constraint legislation (if biomass is treated preferentially under such legislation), reducing construction and operation risks, reducing open burning of biomass products in forestry operations, reducing landfilling of woody biomass, and supporting the silviculture industry. In support of sound silvicultural practices and ecosystem biodiversity, GREC will require all biomass suppliers to adhere to sustainability principles by conforming to the best management practices (BMPs) of the Florida Division of Forestry and will refuse delivery of stumps (to avoid erosion in the source area) and biomass generated from the conversion of natural forests to plantation forests or from nonnative species, unless the nonnative-species biomass is generated from a forest restoration project. Additionally, GREC will pay premiums of $0.50 and $1.00 per ton to suppliers that comply with more ambitious forest stewardship practices. Among the socio-economic benefits of the GREC facility, the Site Application states that construction will generate $48 million of payroll, largely for local and regional labor, and $160 million in nonengineered construction equipment purchases. Facility operations will result in the employment of 44 fulltime employees, initially earning $4 million annually. NonGREC employment will include truck drivers and operators of wood-processing equipment. The Site Application explains that ambient air quality is a product of meteorology, atmospheric chemistry, and pollution emissions. Meteorology controls the distribution, dilution, and removal of pollutants. Atmospheric chemistry controls the transformation of primary pollutants into secondary pollutants. Primary pollutants are discharged directly from the source and, for GREC, will include NOx, SO2, CO, and PM, or, traditionally, soot, although, as a fugitive emission, PM is better considered as dust from the biomass fuel or ash residue. For GREC, the most important secondary pollutant is ozone, which forms from the combination of NOx and VOCs in sunlight. According to the Site Application, EPA has developed an air quality index that describes air quality in relative terms. Good is the highest rating and means that air pollution poses little or no risk. Moderate means that air pollution may be a moderate health concern to a very small number of persons. Unhealthy for sensitive groups means just that, and healthy groups are unlikely to be affected. Unhealthy means that air pollution may cause everyone to begin to experience health effects, and sensitive groups may experience more serious health effects. The two remaining classifications are very unhealthy and hazardous. For 2007, the EPA classified the air quality in Alachua County as 315 days of good, 44 days of moderate, and 6 days of unhealthy for sensitive groups. For 2008, the EPA classified the number of good days as only 258. In general, the EPA classifies the air quality of Alachua County as good with the main pollutant adversely affecting air quality as ozone. The Application analyzes air emissions in light of national ambient air quality standards (AAQS), Title I, Part A, § 109, Clean Air Act, 42 U.S.C. § 7409; New Source Review (NSR) for PSD (NSR/PSD), Title I, Part C, Clean Air Act, 42 U.S.C. §§ 7470-7492; New Source Performance Standards (NSPS) for sources, by category, that contribute significantly to air pollution, Title I, Part A, § 111, Clean Air Act, 42 U.S.C. § 7411--in particular, 40 CFR Part 60, Subparts A, DA, and IIII; and NESHAP, Title I, Part A, § 112, Clean Air Act, 42 U.S.C. § 7412. As discussed in the Conclusions of Law, PSD pollutants are subject to best available control technology (BACT), and hazardous air pollutants (HAPs) are subject to maximum achievable control technology (MACT). The Application reports that the EPA has established national AAQS for six pollutants: SO2, NO2, CO, lead, ozone, and PM, which comprises PM10 and PM2.5. Primary AAQS for these pollutants protect the public health, and secondary AAQS for these pollutants protect the public welfare, such as the environment and physical property. The Application discloses the national and Florida AAQS standards for the six pollutants and reports that the entire state of Florida is in attainment for all six pollutants. This results in the application of the NSR/PSD regulatory framework, rather than a more stringent NSR regulatory framework for areas that are determined to be nonattainment under national AAQS. The Application reports that the GREC facility will be a major facility, under NSR/PSD, because it has the potential to emit more than 250 tpy of a PSD pollutant. GREC must use BACT for all PSD pollutants that will exceed significant emission rates, which are expressed in tons per year by PSD pollutant, and show that its emissions will not violate any national AAQS or PSD increment. If emissions will adversely affect a "Class 1 area," such as a national park or wilderness area, more rigorous protection of the area and national AAQS and PSD increments would be imposed in terms of "air quality related values," but the GREC facility does not impact any of the four Class I areas in Florida. However, all NSR/PSD reviews include assessments of additional impacts on nearby land uses, as well as on soils, vegetation, and visibility. For PSD emissions that exceed their significant emissions rates, GREC must show that a PSD emission, in micrograms per cubic meter, is below what constitutes the PSD's significant impact level, which is, as a measure of ambient concentration, expressed as micrograms per cubic meter. For any PSD emission that exceeds its significant impact level, GREC would have to provide a more elaborate source-impact analysis. According to the Application, the GREC facility is expected to generate the following PSD emissions in the following amounts: NOX--418.1 tpy; SO2--243.9 tpy; CO--715.6 tpy; VOCs--78.1 tpy; PM (filterable)--130.4 tpy; PM10 (filterable and condensable)--281.2 tpy; SAM--5.9 tpy; lead--0.12 tpy; and mercury--0.0084 tpy. (Filterable PM is in a solid or liquid state in the exhaust stream and is subject to capture by a filter. Filterable and condensable PM is in a gaseous state in the exhaust stream and is converted to a solid or liquid state on condensation after passing through a filter.) All of these emissions exceed the significant emission rates except for lead, mercury, and SAM. (Mercury is not a PSD pollutant, but it has a PSD significant emission rate.) Over 95 percent of these emissions are from the BFBB; small amounts are from the diesel emergency generator and firewater pump. As noted below, DEP subsequently determined that GREC could net its SO2 and NOX emissions against offsetting decreases in emissions of these two pollutants by GRU, so that GREC would be required to demonstrate BACT only for CO, VOCs, and PM/PM10. The Application undertakes BACT analysis for PSD pollutants based on a top-down consideration of all available technology, technically feasible control technology in order from the most- to least-stringent, and the applicable control technology, which is both technologically and economically feasible. Because Petitioners' allegations concerning BACT relate only to SO2, NOX, and PM/PM10 emissions, it is unnecessary to consider GREC's BACT analysis for CO and VOCs. The Application also states that GREC will be a major source of HAPs because the GREC facility will emit more than 10 tpy of any individual HAP or more than 25 tpy of total HAPs. As noted below, DEP subsequently determined that GREC's initial projections of HAPs emissions were too high and that, as revised in the February RRAI, discussed below, the HAPs emissions were below both thresholds for a major source, as described below. Because GREC consequently was not required to demonstrate case- by-case MACT, it is unnecessary to consider GREC's MACT analysis. In Alachua County, HAPS are not attributable primarily to stationary fuel combustion. The Site Application states that 86 percent of these pollutants were emitted from mobile and area small sources, such as dry cleaners and gas stations. The Site Application reports that stationary fuel combustion generates about 91 percent of the SO2, about 28 percent of the NOX, about 14 percent of the PM2.5, about six percent of the PM10, and nearly none of the CO and VOCs. Applying 40 CFR Part 60, Subpart DA, which applies to electric utility steam generating units, the Application notes that the BFBB will meet all emissions limits for PM, NOx, SO2, and opacity or visible emissions. Also, the Application states that, to conform to Subpart DA, GREC will have to install with the BFBB an opacity monitoring system, a continuous bag leak detection system for the fabric filters, continuous emissions monitoring systems (CEMS) for SO2, NOX, and oxygen or CO2, and conduct initial performance tests for SO2, NOX, opacity, and PM. The Application states that the GREC emissions are below the significant impact levels for PSD Class II areas for all PSD pollutants except PM10, for which the GREC emissions, on a 24-hour average, will be 20.4 micrograms per cubic meter, as compared to the significant impact level, on a 24-hour average, of 10 micrograms per cubic meter. Thus, the Application analyzes national AAQS and PSD increments only for PM10. Including all significant stack sources of PM10 within 60 kilometers of the GREC facility (fugitive emissions being deemed too local to require consideration) and both stack and fugitive emissions from the GREC facility, the Application concludes that GREC should not be required to perform preconstruction ambient air quality monitoring because Alachua County already performs adequate air quality monitoring for PM10, and the modeling for the 24-hour projections, as opposed to annual projections, shows that GREC's PM10 emissions in excess of the significant impact levels will be highly localized and entirely contained within the Deerhaven site. Additionally, for the 24-hour and annual projections, the Application notes that the maximum distance to significant impacts for PM10 emissions will be only 1.1 kilometers. Referring to the nearest ambient PM10 air quality monitoring site, which is 7 kilometers south of GREC, the Application concludes that, based on modeling for cumulative PM10 impacts, the air quality impacts from all sources, including background, will be substantially below the 24-hour and annual PSD Class II increments and national AAQS, so the GREC facility will not cause or contribute to an exceedance of the PM10 PSD increments or national AAQS. Finally, turning to additional impacts, the Application reports that the GREC emissions are too low to significantly affect soils, vegetation, or wildlife. In discussing PM10 emissions, the Application advises that Florida's 24-hour and annual averages for PM10 emissions, under state AAQS, are 150 and 50 micrograms per cubic meter. As noted above, the GREC facility's PM10 emissions will result in an increase of PM10 concentrations by 20.4 micrograms per cubic meter, on a 24-hour average; its PM10 emissions will result in an increase of PM10 concentrations by 5.3 micrograms per cubic meter, on an annual average. Both of these increases are obviously below the state AAQS. (The national AAQS for PM10 is the same for a 24-hour average and omits an annual average.) Responses to Requests for Additional Information Attachment A to the February RRAI is a set of BMPs for biomass material handling and storage. Attachment A requires GREC to consult with the Gainesville Fire Department and develop a Fire Management Plan. Key components of the Fire Management Plan will be frequent rotation of the biomass and the prevention of biomass compaction. Attachment A provides for the covering or partial enclosing of drop points and conveyor systems for biomass. The in-ground receiving hoppers will be covered by a divided enclosure with roll-up entry doors, curtained exit doors, and stilling curtains in the upper roof. The fuel processing building, which houses the hammer hog and screens, will have local ventilation ducted to a fabric filter dust collector. Drop points to the wood piles will be minimized by telescoping discharge spouts. Boiler fill bins will have vent filters. To ensure that the dust control measures are effective, daily inspections of the equipment will take place. Also, regular maintenance of the equipment will be performed. All major roads at the GREC facility will be paved to suppress fugitive emissions. Trained GREC personnel will promptly remove excessive mud, dirt, or similar debris from paved roads. Attachment A provides that GREC will maintain the wood piles to avoid excessive wind erosion. GREC will develop a dust management plan for the storage areas. GREC will minimize the use of rolling stock on the wood piles during windy conditions. In a request for additional information, DEP commented that the projections of HAPs emissions seemed high because other biomass projects half the size of GREC had projected HAPs emissions one-quarter of those projected by GREC. Noting that 95 percent of the HAPs emissions from the GREC facility would be in the form of HF and HCl, GREC responded that the BFBB manufacturer, Metso Corporation, had recalculated the projected emissions from its boiler based on a redetermination of the fluorine and chloride content of the biomass fuel, BBFB chemical reactions, increased sorbent in the DSI, and optimization and sizing of the baghouse. Based on these recalculations, the February RRAI reports that the GREC facility will emit no more than 25 tpy of HAPs or 10 tpy of any single HAP. The February RRAI states that, based on these recalculations, the GREC will emit 170.7 tpy of SO2 (down from 243.9 tpy) and the following HAPS: HF--9.7 tpy (down from 71.4 tpy; and HCl--9.7 tpy (down from 35.7 tpy). Lead and mercury projected emissions will be the same, but total HAPs emissions will be 24.6 tpy. Also, the February RRAI projects emissions of PM2.5 to be 278.3 tpy. Due to these recalculations of HAPs, the February RRAI states that it is unnecessary for GREC to provide case-by-case MACT. Attachment D to the February RRAI is the Biomass Quality Assurance and Quality Control Plan (Biomass QAQC Plan). Restating the biomass specifications, the Biomass QAQC Plan requires GREC to contract with suppliers for woody biomass material that conforms to the material described in the Air Construction Permit. The Biomass QAQC Plan notes that the power purchase agreement between GRU and GREC requires GREC to hire two professional foresters to manage the biomass procurement. The Biomass QAQC Plan states that GREC is required to inspect each shipment of biomass, upon receipt, and reject all shipments that fail to conform to the specifications contained in the plan. The February RRAI explains why GREC is not required to perform AQRV analysis for impacts to Class I areas. The February RRAI notes that GREC has relocated several improvements by relatively short distances, but these relocations do not affect the PM modeling. The May RRAI mostly addresses PM. The May RRAI accedes to a DEP request to model fugitive emissions after the relocation of various improvements, as mentioned in the February RRAI. GREC supplied this analysis, which suggests that the GREC facility will not cause or contribute to an exceedance of the PM10 PSD Class II increments or national AAQS. Attachment B to the May RRAI describes the dispersion modeling that was undertaken after the relocation of the various site improvements. In response to an EPA comment, the May RRAI adds various offsite sources of PM10, including two simple cycle combustion turbines, three emergency diesel engines, and fugitive PM10 from coal handling at Deerhaven and three simple cycle combustion turbines at another nearby GRU facility. Also, the May RRAI increases the PM10 emission rates for a nearby cement plant. As before, GREC conceded that the PM10 emissions will exceed the PSD Class II significant impact levels, but contended that preconstruction ambient air quality monitoring is unnecessary because adequate data already exist in Alachua County for this pollutant and the 24-hour PM10 impacts will be highly localized and confined with the industrialized areas abutting the GREC site. Additionally, the May RRAI reports the results of cumulative PM10 modeling. Again, the May RRAI states that the result of this cumulative modeling is that the air quality impacts from all relevant sources, including background, will be well below the 24-hour and annual PSD Class II increments and national AAQS, so the GREC facility will not cause or contribute to an exceedance of the PM10 PSD increments or national AAQS. Responding to an EPA comment asking for justification for using PM10 as a surrogate for PM2.5, Attachment C of the May RRAI, citing an EPA guidance memo issued March 23, 2010, explains why PM10 may be used as a surrogate for PM2.5 for the GREC facility. Using the GREC facility's PM2.5/PM10 emission ratios, Attachment C assures that the GREC facility will not cause or contribute to an exceedance of PM2.5 national AAQS. In generating the PM2.5/PM10 emission ratios, Attachment C states that GREC assumed that all of the PM emissions from the BFBB would be PM2.5 because the baghouse filter would capture the larger PM. For fugitive dust and material handling, GREC relied on an EPA published 0.10-0.15 PM2.5/PM10 emission ratio, which is applicable to fugitive dust from paved and unpaved roads, material handling and storage piles, industrial wind erosion, and material transfer operations. GREC selected the 0.15 factor, which assumes a greater presence of PM2.5 in these emissions. For the cooling tower, GREC assumed the same 0.15 PM2.5/PM10 emission ratio. Noting that drift eliminators are the only technology that control PM2.5 and PM10 emissions for wet cooling towers, Attachment C cites a 2002 article finding that a cooling tower's PM2.5 emissions are less than one percent of its PM10 emissions. For its calculations, GREC assumed conservatively that its tower's PM2.5 emissions would be 15 percent of its PM10 emissions. Attachment C restates that, primarily due to the low elevation for fugitive PM emissions, the maximum PM10 impacts would be at the GREC fenceline. However, again taking a worst- case scenario, GREC assumed that all of its PM10 emissions would be stack emissions and that the BFBB PM emissions would coincide with all other PM emissions from the GREC facility. Adjusting the background PM2.5 data to remove the data for 2007, due to the pollution caused by extensive wildfires, GREC determined that, despite all of its conservative assumptions, in some instances resulting in worst-case assumptions, the GREC facility's PM2.5 emissions, when combined with background levels, would be below the 24-hour PM2.5 national AAQS. For this reason, responding to another EPA comment, GREC rejected the need for more additional impacts analysis. DEP's Technical Evaluation On July 14, 2010, DEP issued its Technical Evaluation. The Technical Evaluation identifies four specific elements for the control of fugitive emissions: the use of the first- in/first-out method for biomass and the telescoping chute to minimize drop lengths onto wood pile, use of BMPs and design features to control fugitive emissions from conveyor system, use of enclosures for dust collectors and (where possible) telescoping chutes, and wetting of wood piles and roads, as needed. For the handling of fly ash, the Technical Evaluation notes that a baghouse or similar filter will control fugitive PM emissions from the fly ash silo, and BMPs will be used to minimize PM emissions while loading trucks. For the BFBB, the Technical Evaluation identifies several elements for the control of emissions. The BFBB design, especially its efficient combustion, will control the formation of PM, CO, and VOCs, as well as HAPs. The fabric filter baghouse will control PM2.5 and PM10 emissions. Because the biomass fuel with be low in sulfur, SO2 and SAM emissions will be controlled. These emissions will also be controlled by reaction with the alkaline fly ash and DSI. The SCR will control NOX and VOCs. Low-chloride biomass fuel will control HAPs. HAPs will also be controlled by reaction with alkaline fly ash, DSI, the fabric filter baghouse, and SCR. And drift eliminators will control PM emissions from the cooling tower. The Technical Evaluation finds that the GREC facility is a major stationary source, under NSR/PSD, because it has the potential to emit 100 tpy of any PSD pollutant and is in one of 28 categories of major PSD facilities. The Technical Evaluation explains that, for major modifications of existing major stationary sources, PSD applicability depends on whether significant emission rates will be met. For net emissions exceeding these rates, an applicant must provide BACT for each pollutant exceeding its significant emission rate. The Technical Evaluation notes that PM2.5 is a PSD pollutant, but its significant emission rate has not yet been set, at least in Florida, so PM2.5 is regulated by its precursors and surrogates, including SO2, NOX, and PM/PM10. For the NOX and SO2 emissions of, respectively, 418.1 and 170.7 tpy, the Technical Evaluation discloses that, on July 12, 2010, DEP issued a permit to GRU imposing enforceable reductions in its Deerhaven NOX and SO2 emissions of, respectively, 418 and 171 tpy. In fact, based on a 2007 permit issued to GRU, DEP and GRU expect future reductions at Deerhaven in NOX and SO2 emissions of, respectively, 7139 and 3262 tpy. The air pollution control system permitted in 2007 will, in the long term, result in reductions of SAM and mercury, in excess of the GREC facility's emissions of these two pollutants, but DEP did not consider these offsets because of the lack of CEMS and enforceability. The Technical Evaluation thus concludes that, on a net basis, the GREC facility will emit PM/PM10, CO, and VOCs in excess of their respective PSD significant emission rates. The unnetted emissions of SAM are slightly below its significant emission rate. Although not shown on the table, the emissions of mercury are more than one order of magnitude less than its significant emission rate. Thus, GREC is subject to PSD ambient air modeling and BACT for PM/PM10, CO, and VOCs. The Technical Evolution relies on GREC's revised projections of HAPs with HCl and HF each at 9.72 tpy and total HAPs at 24.7 tpy. The Technical Evaluation concludes that the GREC facility, without regard to the Deerhaven facility, fails to trigger case-by-case MACT review because it is just under the thresholds of 10 tpy for any single HAP and 25 tpy for all HAPs. The Technical Evaluation notes that the 2007 air pollution control system permitted to GRU would result in reductions of HCl and HF greater than GREC's emissions of these two HAPs, but these offsets may not be considered in calculating the HAPs increases from the GREC facility due to the lack of a netting procedure in NESHAP. Reporting that GREC requested that the Air Construction Permit limit NOX and SO2 emissions even though, after netting, such limits were no longer required, the Technical Evaluation compares the GREC facility's emissions caps of these two PSD pollutants with the emissions caps of these two pollutants by other facilities. The GREC facility's emissions caps are lower than most other facilities, including the Nacogdoches biomass plant and another biomass plant in Ft. Gaines, Georgia, which are similar in size to the GREC facility. The biomass for the GREC facility will contain two orders of magnitude less sulfur than the coal burned at Deerhaven. For SAM, DEP imposed a limit of 6.6 tpy because the GREC projection of 5.9 tpy was close to the significant emission rate for SAM of 7 tpy. For the PSD pollutants requiring BACT, the Technical Evaluation observes that GREC has adopted a strategy in the BFBB of emphasizing the control of NOX, even where this means reduced control of VOCs and CO. Noting that the addition of an oxygen catalyst could reduce VOCs and CO, the Technical Evaluation reports that GREC chose instead SCR, which is superior to another system that its affiliate used at the Nacogdoches facility. With the ensuing reductions of NOX, GREC was able to retune the BFBB to back off the NOX control in order to gain additional control of VOCs and CO, which are emitted at slightly lower rates than the rates at the Nacogdoches and Ft. Gaines facilities. Due to the ongoing need to fine tune the BFBB combustion processes and the SCR, the Technical Evaluation notes that GREC agreed to tiered limits of VOCs and CO emission rates. Also, the Technical Evaluation provides that CO compliance will be measured by a CEMS, and VOCs compliance will be measured by an annual test. For PM/PM10/PM2.5, the Technical Evaluation reports that burnout of the constituents of these pollutants is superior in a BFBB than a stoker furnace. Because more-complete combustion reduces the risk of fires in the pollution control equipment, the BFBB permits GREC to use a baghouse to produce lower PM/PM10 limits and to minimize direct emissions of PM2.5. The Technical Evaluation states that the most effective control technologies for PM are fabric filters and electrostatic precipitators, but the former provide better control of fine PM. The Technical Evaluation identifies as supplementary control strategies the minimization of PM2.5 and visible emission precursors by limiting SO2, NOX, ammonia, VOCs, and chlorides. The Technical Evaluation notes that GREC's BACT proposal for filterable PM/PM10 is the NSPS of 89 tpy based on a fabric filter baghouse. The Technical Evaluation adds that GREC estimated 250 tpy for total PM/PM10, including filterable and condensible PM/PM10. Given the BFBB, baghouse, DSI, and SCR, DEP did not expect the emissions of filterable and condensible PM/PM10 to be as high as projected by GREC and expected these emissions to be below those of the Nacogdoches and Ft. Gaines facilities, which projected PM/PM10 emissions at rates about 75 and 43 percent, respectively, of the rate of these emissions at the GREC facility, even though it would emit less NOX and SO2 and would be equipped with a superior catalytic control system. DEP elected the NSPS limit for PM/PM10, but warned that the GREC facility will eventually need to comply with a filterable PM NSPS limit that, when initially proposed by EPA, was about half the emissions rate proposed by GREC. The Technical Evaluation requires compliance by initial and annual stack testing using EPA Method 5 or 17 for filterable PM/PM10 emissions and EPA Method 202 for filterable and condensible PM/PM10 emissions. The Technical Evaluation adds that a visible emissions limit of 10 percent opacity over a six-minute average, except for one six-minute period of not more than 20 percent opacity, which is BACT, will be demonstrated by the continuous opacity measurement system. The Technical Evaluation states that GREC has incorporated BACT into its proposal concerning PM2.5. This finding is based on the BACT limits for PM/PM10, CO, and VOCs; low emissions of SO2 and NOX; enforceable reductions in PM2.5 precursors from Deerhaven; the visible emissions limit, which controls the fraction of PM2.5 that interferes with light transmission; and limits on ammonia and HCl. Controlling SO2, NOX, CO, VOCs, chlorides, and ammonia controls PM2.5 because these pollutants are PM2.5 precursors. For HCl, the Technical Evaluation acknowledges that DSI and the fabric filter will control emissions, for which DEP will require a CEMS. For HF, the Technical Evaluation notes that the fly ash interaction, DSI, and the fabric filter will control emissions, for which DEP will also require a CEMS. For the four metallic HAPs, phosphorus, chromium, manganese, and lead, and nine organic HAPs, which exclude dioxins or furans, DEP will require initial and annual stack tests. For PM, the Technical Evaluation reviews the BMPs for biomass fuel delivery, preparation, storage, and handling. As for the quality of the biomass accepted at the GREC facility, the Technical Evaluation notes that GREC will contractually obligate its suppliers to provide biomass that conforms to the biomass described in the Air Construction Permit. The Technical Evaluation states that GREC must inspect each shipment of biomass and reject nonconforming biomass. GREC must document each shipment and document rejected shipments, including the ultimate disposition of such shipments. Discussing the three PSD pollutants--VOCs, CO, and PM/PM10--that the GREC facility will emit in excess of PSD significant emission rates, the Technical Evaluation approves of GREC's use of PM10 as a surrogate for PM2.5, especially due to the enforceable reductions at Deerhaven of SO2 and NOX. The Technical Evaluation reports that, between 2007 and 2009, Florida's power plants reduced their SO2 and NOX emissions by 38 percent and 54 percent, respectively. Agreeing with GREC that the only pollutant emissions to exceed their significant impact levels will be PM/PM10 for Class II areas, but not Class I areas, the Technical Evaluation also agrees with GREC that no purpose would be served by requiring preconstruction air monitoring for PM because of the low emissions of these pollutants by the GREC facility and the existence of adequate monitoring for PM in Alachua and Putnam counties, which disclose attainment with national AAQS for PM10 and PM2.5. In its multisource PSD Class II increment analysis, the Technical Evaluation explains that the PSD increment is the amount by which new sources may increase ambient ground level concentrations from a baseline concentration. For PM10, the Technical Evaluation agrees with GREC's modeling that the 24- hour and annual averages would not come close to the maximum allowable increment. Likewise, the Technical Evaluation agrees with GREC that its PM10 impacts would not come close to national or state AAQS for this pollutant. Lastly, the Technical Evaluation agrees with GREC in terms of additional impacts. The Technical Evaluation states that the GREC facility will not have an adverse impact on soils, wildlife, or vegetation. The Technical Evaluation reports that the U.S. Fish and Wildlife Service did not require an AQRV analysis due to the facility's low emissions. Based on its analysis, the Technical Evaluation found that the Application, as amended and conditioned by the Air Construction Permit, meets all federal and state air pollution control requirements. Air Construction Permit Draft Air Construction Permit Section 1 highlights the GREC facility's pollution control technology: the efficient combustion of clean woody biomass in the BFBB to minimize formation of PM/PM10/PM2.5 (which is referred to as PM in the draft Air Construction Permit), NOX, CO, and VOCs; limitation of biomass to clean woody biomass to minimize the formation of SO2 and HAPs, including HF and HCl; injection of ammonia into the SCR to SCR to destroy NOX; use of DSI and alkaline fly ash to control SO2, HF, and HCl; installation of fabric filter baghouse to control PM and remove injected sorbents; implementation of BMPs to minimize fugitive PM emissions from biomass handling, storage and processing, ash handling, storage and shipment and alkaline sorbent handling, storage, and processing; and appropriate design of draft cooling tower to minimize drift (PM). For emissions monitoring, draft Air Construction Permit Section 1 identifies the following: CEMS for CO, SO2, NOX, HCl, and HF and a continuous opacity measuring system for visual emissions. Draft Air Construction Permit Section 1 notes that GRU's Deerhaven facility is a major source of HAPs, but the GREC facility itself is not a major source of HAPs. The draft Air Construction Permit states that the GREC facility is a major stationary source under the NSR/PSD program and is subject to NSPS and NESHAP, under the Clean Air Act. Draft Air Construction Permit Section 2, Specific Condition 11 provides: No person shall cause . . . or allow the emissions of unconfined particulate matter from any activity, including vehicular movement; transportation of materials; construction, alteration, demolition, or wrecking; or industrial related activities such as loading, unloading, storing, or handling; without taking reasonable precautions to prevent such emissions. . . . Appendix BMP . . . provides a Best Management Plan of reasonable precautions specific to the GREC facility to control fugitive PM emissions. General reasonable precautions include the following: a. Paving and maintenance of roads, parking areas and yards; b. Application of water or chemicals to control emissions from such activities as demolition of buildings, grading roads, construction, and land clearing; c. Application of asphalt, water, oil, chemicals or other dust suppressants to unpaved roads, yards, open stock piles and similar activities; d. Removal of particulate matter from roads and other paved areas under the control of the owner or operator of the facility to prevent re- entrainment, and from buildings or work areas to prevent particulates from becoming airborne; e. Landscaping or planting of vegetation; f. Use of hoods, fans, filters, and similar equipment to contain, capture and/or vent particulate matter; g. Confining abrasive blasting where possible; and h. Enclosure or covering of conveyor systems. Draft Air Construction Permit Section 3.A applies to the emissions unit of biomass delivery, preparation, storage, and handling. Section 3.A describes the unit as consisting of three truck dumpers, two sets of screens and hogs, and automatic and manual stackers to maintain, on average, a 15-20 day supply of biomass based on full load operation and average biomass fuel moisture content. Noting that suppliers will initially chip, ground, and otherwise process the biomass at offsite locations before trucking it to the GREC facility, Section 3.A reports that 130-150 fuel truck deliveries are expected daily, six days per week. During peak periods, the GREC facility is expected to handle 24 truckloads of biomass per hour. By design, the maximum processing rate is 600 tons per hour with a maximum yearly rate of 1.395 million tons. Draft Air Construction Permit Section 3.A describes the four wood piles. The automatic stacker/reclaimer pile will be 85 feet high--the draft Air Construction Permit does not incorporate the 60-foot height restriction added at the hearing--with a storage capacity of 125,000 cubic yards of fuel. The stock pile will be shaped like a cone, 60-feet high, and capable of storing 8500 cubic yards of fuel. This pile will be fed with a fixed stacker, including a telescoping chute to minimize drop distances. The second storage pile will be 35 feet high with a storage capacity of 79,000 cubic yards of fuel. Rolling stock will transfer fuel from the stock pile to the second storage pile. A fourth, small pile will be for sawdust, which will be delivered, moist, by trucks to an open area adjacent to the second storage pile. Front-end loaders will reclaim the sawdust. Draft Air Construction Permit Section 3.A.1 authorizes the construction of biomass delivery, unloading, and processing equipment consisting of truck scales, a fully enclosed building containing surge bins, size disc screens and hogging equipment, three drive-through truck dumpers with receiving hoppers, six conveyors to transport the biomass from the truck dumpers to the fuel handling and storage system, a metal detector and self- cleaning magnetic separator on the conveyor entering the screen/hog building, two surge bins and two reclaimers within the screen/hog building to accept the biomass from the conveyors from the truck dumpers, two sizing discs in the screen/hog building to screen any oversized biomass and send it to the hogs for reduction to design size, and two hogs in the screen/hog building to reduce the size of any oversized biomass. Draft Air Construction Permit Section 3.A.2 authorizes the construction of biomass fuel handling and storage system equipment consisting of a stacker/reclaimer system for the first storage pile, a telescoping chute for the stock pile, two conveyors to transport the fuel to the stacker/reclaimer pile, a telescoping chute for the stock pile, five conveyors to transfer the fuel from the two storage piles to the BFBB bins, and scales and magnetic separators for some of the conveyors. The two BFBB bins will store sufficient biomass for 45 minutes of boiler operation and will be equipped with bin vent filters to control PM emissions. Draft Air Construction Permit Section 3.A.3 provides for the control of fugitive PM by the use of enclosed conveyors, where practical, and installation of dust collectors on conveyor drop transfer points, also where possible. One exception to the enclosure of the conveyors is a small section near the truck dumpers to allow visual inspection of biomass to ensure that the GREC facility has accepted conforming loads. Section 3.A.3.a requires the addition of a baghouse to the screen/hog building to control PM emissions, and the installation of a screw conveyor to transfer the PM captured in the baghouse to the conveyor taking the biomass to the biomass fuel handling and storage system. Section 3.A.3.b requires the installation of bin vent filters to control PM emissions from the boiler bins. Draft Air Construction Permit Section 3.A.4 requires a BMP plan to control fugitive emissions from this emissions unit. The BMP plan will include provisions to ensure that the biomass conforms to the qualitative standards imposed by the draft Air Construction Permit. A draft BMP plan is attached to the draft Air Construction Permit, but GREC must provide DEP with a final BMP plan at least 180 days prior to opening the facility. The draft BMP plan addresses fugitive emissions, pile management, and fire prevention. After reciting the clean woody biomass materials that are permitted, as noted above, the draft BMP plan prohibits wood that has been chemically treated or processed, yard trash, paper, treated wood such as CCA or creosote, painted wood, and wood from landfills. The draft BMP plan does not explicitly prohibit the acceptance of construction and demolition debris, although GREC offered at the hearing to add this prohibition. The draft BMP plan requires the covering or partial enclosure of conveyor systems and drop points for biomass. The hoppers into which biomass trucks deliver their loads must be covered for dust control. The hoppers will be in a divided enclosure with roll-up entry doors, slitted curtains at the exit doors, and stilling curtains in the upper roof area. Processing equipment will be in an enclosed building, identified above as the screen/hog building, which will be equipped with local ventilation and ducted to a fabric filter dust collector. Drop points to the wood piles will be designed to minimize the overall exposed drop height by using telescoping discharge spouts. Boiler fuel bins must be equipped with bin vent filters. GREC staff will conduct daily observations of the conveyor system and drop point integrity to ensure proper operation. All major roads at the GREC facility will be paved. GREC staff will promptly remove excessive mud, dirt, or similar debris from the paved roads. All paved roads and gravel areas will be wetted as needed to minimize fugitive dust emissions. GREC shall manage and maintain the biomass storage areas to avoid excessive wind erosion. Ninety days after the plant becomes operational, GREC shall submit to DEP a fugitive dust management plan for the biomass storage area. Front-end loaders and other equipment will minimize movement of the biomass on high wind event days. When necessary to minimize fugitive dust emissions, GREC will wet the biomass before moving it with front-end loaders and other equipment. GREC staff shall observe the biomass storage areas daily to determine if they need to implement elements of the fugitive dust management plan. GREC staff will work with the Gainesville Fire Department to develop a Fire Management Plan. GREC will avoid spontaneous combustion and odors by rotating the biomass in the wood piles. The stacker/reclaimer pile will be divided into zones to facilitate the removal of the oldest biomass first. The fuel yard manager will do the same with the manual pile. Compaction of the biomass will be minimized. To assure that the qualitative biomass specifications are met, GREC will require that suppliers perform most of the processing offsite. For each shipment of biomass, GREC must record the date, quantity, and description of the material received. GREC must inspect each shipment for nonconforming materials, and GREC must reject or segregate such material, if it is discovered. GREC must maintain records of rejected shipments and their disposition. Draft Air Construction Permit Section 3.A.6 specifies the qualitative standards for the biomass. GREC may receive only "in-forest residue and slash," which are defined as "tops, limbs, whole tree material and other residues from soft and hardwoods that result from traditional silvicultural harvests"; "mill residue," which is defined as "saw dust, bark, shavings and kerf waste from cutting/milling whole green trees; fines from planing kiln-dried lumber; wood waste material generated by primary wood products industries such as round-offs, end cuts, sticks, [and] pole ends; and reject lumber as well as residue material from the construction of wood trusses and pallets"; "pre-commercial tree trimmings and understory clearings," which are defined as "tops, limbs, whole tree material and other residues that result from the cutting or removal of certain, smaller trees from a stand . . .; and forest understory which includes smaller trees, bushes and saplings"; "storm, fire and disease debris," which are defined as "tops, limbs, whole tree material and other residues that are damaged due to storms, fires or infectious diseases"; "urban wood waste," which is defined as "tree parts and/or branches generated by landscaping contractors and power line/roadway clearance contractors that have been cut down for land development or right-of-way clearing purposes"; "recycled industrial wood," which is defined as "wood derived from used pallets packing crates; and dunnage disposed of by commercial or industrial users"; and "supplementary fuel material," which is defined as "herbaceous plant matter; clean agricultural residues (i.e. rice hulls, straw, etc.: no animal wastes or manure); and whole tree chips and pulpwood chips." Draft Air Construction Permit Section 3.A.8-13 describes visible emissions limits and opacity testing that GREC must perform. The description conforms to the limits described above. Draft Air Construction Permit Section 3.B applies to the BFBB. Section 3.B provides that the maximum heat input capacity is 1358 mmBTU per hour on a four-hour average basis. The BFBB's steam production capability will be 650,000 to 930,000 pounds per hour. Section 3.B repeats the description of the pollution-control technology contained in the introduction of the draft Air Construction Permit, adding only that the fabric filter baghouse will have a design efficiency of 99.99 percent to control PM and visible emissions. Draft Air Construction Permit Section 3.B describes the stack as 12 feet in diameter and at least 230 feet tall. It will release flue gas with a temperature of about 310 degrees at a volumetric flow rate of 520,600 actual cubic feet per minute. Draft Air Construction Permit Section 3.B requires CEMS for CO, NOX, SO2, HCl, and HF, as well as continuous opacity monitoring systems for visible emissions. Draft Air Construction Permit Section 3.B.1 describes the BFBB. Section 3.B.2.a requires the addition of a fabric filter baghouse to control PM and visible emissions. Section 3.B.2.b requires the addition of an ammonia-based SCR to reduce NOX emissions. Section 3.B.2.c requires the addition of DSI to control the emissions of SO2 and HAPs, particularly HCl and HF, although there seems to be no mention of the trona sorbent that GREC selected, after submitting the original application, to achieve greater pollution control. The 24-hour average from CEMS of SO2, HCl, and HF will be monitored daily by trained staff to determine if adjustments are required to DSI to assure that emissions of these pollutants do not exceed the limits stated in the draft Air Construction Permit. GREC must report these emissions data quarterly to DEP. Draft Air Construction Permit Section 3.B.9 states the emissions limits for the BFBB and the applicable tests. Selected limits are: NOX--416.4 tpy--12-month CEMS; SO2--170.7 tpy--12-month CEMS; SAM--1.4 lb/hr--initial and annual stack test; CO--0.12/0.18 lb/mmBTU--30-day CEMS; HCl--9.72 tpy-- 12-month CEMS; HF--9.72 tpy--12-month CEMS; HCl, HF, organic HAPs, and metallic HAPs--24.7 tpy--12 month CEMS plus initial and annual stack tests; visible emissions--10 percent opacity-- continuous opacity monitoring system and initial stack test; VOCs--0.01/0.009 lb/mmBTU--initial and annual stack test; and heat input rate--1,358 mmBTU/hr--four-hour average. "Lb/mmBTU" means pounds per million BTU heat input. The alternative values for CO and VOCs state the limit for the first 360 calendars after certification of the CEMS followed by the limit thereafter and allow GREC time to fine tune the BFBB and air pollution control technology. Draft Air Construction Permit Section 3.B.13 requires GREC to install, calibrate, maintain, and operate CEMS for SO2, NOX, CO, HCl, and HF, as well as a diluent monitor for either CO or oxygen, from the boiler stack to show compliance with Section 3.B.9. This section provides the standards for certification, operation, maintenance, and recordkeeping for each CEMS. Draft Air Construction Permit Section 3.B.18 provides that the initial and annual stack tests shall be conducted between 90 and 100 percent of maximum heat input rate. A note states that the initial test must be done at 90 to 100 percent of permitted capacity, but the draft Air Construction Permit will be modified to reflect true maximum capacity, as constructed, so, implicitly, the annual tests will be based on the adjusted maximum heat input rate. Draft Air Construction Permit Section 3.B.19 provides similarly for HAPs. Draft Air Construction Permit Section 3.B.20 identifies the EPA Method stack tests and calculations for various emissions. EPA Method 320 is for the measurement of Vapor Phase Organic and Inorganic Emissions by Extractive Fourier Transform Infrared Spectroscopy. EPA Methods 5, 5B, and 17 are for the measurement of PM. EPA Methods 201 and 201A are for the measurement of PM10. All but one of the EPA Methods are specified in 40 CFR Part 60, Appendix A. Despite the statement in the Technical Evaluation that DEP would require GREC to use EPA Method 202 to measure filterable and condensible PM emissions, the draft Air Construction Permit omits this test, as well as any other test for filterable and condensible PM emissions. Draft Air Construction Permit Sections 3.B.22 and 23 require GREC to continuously measure and record pressure drops across each baghouse compartment controlling PM boiler emissions. Draft Air Construction Permit Section 3.B.25 specifies the information to be contained in the stack test reports submitted to DEP. Section 3.B.26 provides that GREC will submit to DEP monthly records of the hours of operation of the BFBB, tons of woody biomass burned, cubic feet of natural gas burned (for start-ups), pounds of steam, total heat input rate, hourly heat input rate to the BFBB, and the updated 12- month rolling results for each of these parameters. Draft Air Construction Permit Section 3.B.27 provides that GREC will submit to DEP quarterly records of CO, NOX, SO2, HCl, HF, and opacity emissions. Draft Air Construction Permit Section 3.C pertains to ash handling, storage, and shipment. Section 3.C states that about two-thirds of the ash created by the combustion of the biomass will leave the BFBB as fly ash and the remaining one- third will leave as bottom ash. Fly ash from the boiler connective pass and baghouse hoppers will be collected dry and transported pneumatically to a single fly ash storage silo by means of two vacuum blowers. The transferred fly ash will first pass through a receiver/collector that will separate the fly ash from the conveying air stream. After passing through an air lock valve, the fly ash will be deposited into the storage silo, which will be vented through a baghouse to control PM emissions. The fly ash will either be stabilized with water or loaded dry into a receiving truck. If stabilized with water, the ash will be transferred by chute into covered trucks, which will haul it offsite for reuse or disposal. If transferred dry, the ash will be transferred by an enclosed process by chute into sealed trucks. Draft Air Construction Permit Section 3.C states that bottom ash from the bed will consist primarily of noncombustible materials (e.g., rocks, glass, sand, and metal) from the biomass fuel. The coarse bottom ash will be removed from the BFBB through ash hoppers and chutes. The coarse material will be sieved in a rotating screen prior to conveyance to the bottom ash container. The contents of this container will be taken offsite for disposal at a properly licensed landfill. Draft Air Construction Permit Section 3.C.1 authorizes GREC to construct an emissions unit consisting of the above-described equipment for the handling, storage, and shipment of fly and bottom ash. Section 3.C.2 requires GREC to install and operate, where practical, enclosed conveyors for bottom and fly ash to minimize fugitive PM and, where practical, dust collectors on the bottom and fly ash transfer points, drop points, hoppers, and chutes. Section 3.C.2 requires GREC to design, install, and maintain a baghouse to remove PM from the fly ash storage silo exhaust. This baghouse will achieve a PM emission rate of 0.15 grains per dry standard cubic foot. Draft Air Construction Permit Section 3.C.4 provides that the maximum design transfer rate of the fly ash handling system will be 3.2 tons per hour with a maximum annual design transfer rate of 27,594 tpy. Section 3.C.5 provides that the maximum design transfer rate of the bottom ash handling system will be 1.5 tons per hour with a maximum annual design transfer rate of 13,140 tpy. The overall ash handling, storage, and shipment system will have a maximum annual design transfer rate of 40,734 tpy. Draft Air Construction Permit Section 3.C.7 imposes a 10 percent opacity limit from the bottom and fly ash conveyors, transfer points, drop points, hoppers, chutes, and dust collectors, except for a 20 percent rate for one six-minute period per unspecified period of time. Section 3.C.8 limits PM emissions from the baghouse of the fly ash silo to 0.15 grains per dry standard cubic foot. Draft Air Construction Permit Sections 3.C.11 and 12 pertain to initial and annual testing for visible emissions. Section 3.C.13 provide that these tests sill serve as a surrogate for PM emissions tests. If the visible emissions standard is unmet, a PM test using EPA Method 5 must be conducted on the baghouse stack to show compliance with the PM emissions standard specified in Section 3.C.8. Section 3.C.14 requires GREC to maintain continuous operation of bag leak detection systems on the fly ash storage silo baghouse. Draft Air Construction Permit Section 3.D describes the cooling tower as a four-cell, mechanical, draft-type tower with high efficiency fill and drift eliminators. Cooling tower evaporation loss at maximum load is estimated to be 1.34 million gallons per day. GREC will obtain makeup water from two onsite wells drilled to the Floridan aquifer. Draft Air Construction Permit Section 3.E describes an emergency diesel generator with a maximum design rating of 564 kW. Draft Air Construction Permit Section 3.F describes an emergency diesel firewater pump engine with a maximum design rating of 275 hp. In addition to the draft BMP plan, described above, the draft Air Construction Permit contains several other appendices. Appendix CEMS requires GREC to evaluate the acceptability of each CEMS by conducting a performance specification. Appendix CEMS Section 8 provides: for CO CEMS, GREC will use EPA Performance Specification 4 or 4A; for NOX and SO2 CEMS, GREC will use EPA Performance Specification 2; for HCl, GREC will use EPA Performance Specification 15, Method OTM 22, or alternative specification approved by DEP; and for HF, GREC will use EPA Performance Specification 15, Method OTM 22, or alternative specification approved by DEP. The EPA performance specifications are found at 40 CFR Part 60, Appendix B. Appendix CEMS Section 9 requires GREC to implement EPA quality assurance procedures found at 40 CFR Part 60, Appendix F. These apply to each pollutant mentioned in the preceding paragraph. Appendix CTR covers common testing requirements. Appendix CTR Section 1 requires that emissions tests take place with the emissions unit, such as the BFBB, operating at permitted capacity, which is defined as 90 to 100 percent of the maximum operation rate allowed by the final Air Construction Permit. Appendix CC covers common conditions. Appendix CC Section 10 provides that GREC will comply with changes in Florida statutes and DEP rules after "a reasonable time for compliance." Other Findings Dioxin Petitioners claim that GREC has failed to provide reasonable assurance that the proposed facility protects public health and the environment from emissions of dioxins, including furans and PCBs, and the draft Air Construction Permit fails to impose emissions limits for dioxins. Dioxins are not among the pollutants covered under national AAQS. Dioxins are classified as HAPs, but, unlike the situation with HCl and HF, Petitioners do not contend that DEP incorrectly concluded that dioxin emissions would be under 10 tpy. Instead, Petitioners claim that the projected emissions of dioxins by the GREC facility, although indisputably well under 10 tpy, are nonetheless high enough to endanger public health and the environment. Dioxins are compounds that result from the combustion of chlorine-containing materials, including wood. The family of "dioxins" includes furans and polychlorinated biphenyls (more commonly known as PCBs), which all are within the family of persistent organic pollutants. Common sources of dioxins include boilers, electrical power plants, municipal and medical waste incinerators, crematoriums, cement kilns, forest fires, household fireplaces, cigarette smoking, pulp production, and open burning. Dioxins have been associated with cancer and disorders of the immune, skin, digestive, and reproductive systems, where dioxins may act as endocrine disruptors. Work with rats suggests that a major effect of excessive dioxin exposure in utero is upon the reproductive system of the fetus. Dioxins are persistent. Their half lives in the environment range from 30 to 40 years. Because they are hydrophobic and accumulate in fatty tissue, dioxins enjoy half lives of 7-12 years in humans. Humans acquire dioxins by breathing, skin contact, consuming water, consuming food, breastfeeding, and transplacental movement while in utero. The last three means are the principal routes of human exposure. The virtually safe dose, or reference dose, for dioxins is low: one picogram per kilogram per day. One picogram is one-trillionth of one gram. An EPA work in progress may lower this reference dose to 0.7 picograms per kilogram per day. For the late 1990s, the EPA estimated that the average American acquired 6-10 picograms per kilogram per day, later reducing this estimate to 6-8 picograms per kilogram per day. The EPA estimate for children, including breast-fed infants, is five to seven times higher, around 40 picograms per kilogram per day. This is about 60 times higher than the virtually safe dose. However, the trends for dioxin levels are good. In its 2006 reassessment of dioxin, the EPA reported that dioxin levels in the environment had decreased by over 90 percent since the late 1980s. Over roughly the same period, the Centers for Disease Control reported that dioxin concentrations in human blood had decreased 80 percent, although decreases in dioxin concentrations in human fatty tissue over the same period of time are likely less. To some extent, dioxin emissions will be limited by the pollution control equipment, especially the redesigned fabric baghouse and SCR catalyst, which, according to the Technical Evaluation, will help destroy VOCs and is a documented strategy for dioxin control. Also, the temperature of the air leaving the stack will be about 310 degrees--90 degrees below the temperature at which dioxins form. GREC has provided reasonable assurance that the GREC facility will not emit dioxins in significant amounts. Thomas Davis is the principal engineer of GREC's consultant, ECT. Mr. Davis, who has considerable experience in air pollution control technology, analyzed the potential for dioxin emissions from the GREC boiler. Mr. Davis found five, operational fluidized bed boilers for which relevant data were available on the rate of dioxin emissions. He then applied the derived emissions rate to the GREC boiler. Mr. Davis determined that the GREC boiler will likely emit .11 grams per year of all dioxins and about .012 grams per year of 2,3,7,8 TCDD, the most potent dioxin. Expressed in another way, the .11 grams per year of total dioxins emitted by the GREC boiler is 110,000,000,000 picograms per year or 301,369,860 picograms per day. If the average person--young and old--weighs 50 kilograms, this emission rate translates to about 6 million picograms per kilogram per day. If the population of Alachua County were 250,000 persons, then the daily exposure, without regard to dispersion patterns, would be 24 picograms per day. For many reasons, 24 picograms of dioxins per kilogram per day of exposure represents only a starting point in the calculations necessary to grasp the limited extent of the dioxin exposure posed by the GREC boiler. An adjustment of one order of magnitude is suggested by the fact that Mr. Davis calculated the emissions rate of most toxic 2,3,7,8 TCDD at one- tenth the rate of the dioxins family. This means that the most toxic dioxin is produced at the rate of only 2.4 picograms per kilogram per day. A larger adjustment is required because the GREC biomass plant will displace substantial open burning that presently takes place in North Florida. The result will be a large net reduction in dioxin emissions. How much and over what area is hard to say, partly due to the replacement of dispersed burning with point-source combustion. The record supports an estimate that about half of the biomass to be combusted by GREC would have been open burned. Using this estimate, the open burning of this biomass would have produced dioxin emissions of 3-8 grams per year. GREC has effectively replaced these dioxin emissions with .11 gram per year. And, if the dispersed dioxin emissions displaced by the GREC facility were closer to agricultural areas, given the role of food consumption, not inhalation, as the primary means of consumption, another adjustment downward in effective dose would be necessary. Calculations by two witnesses support GREC's reasonable assurance of the insubstantiality of the impact posed by the GREC boiler in terms of dioxins. Mr. Davis calculated dioxin dispersal patterns for air and deposition and found that the average annual maximum concentration was .000000000149 micrograms per liter of air per and the average annual wet and dry deposition rate was .0000000000206 grams per square meter. These are reassuringly low numbers. Making more elaborate dioxin calculations, Dr. Christopher Teaf, an expert in environmental chemistry, toxicology, and human health risk assessment, performed a large number of calculations in the most conservative manner possible, such as by assuming that all dioxins were 2,3,7,8 TCDD and treating the emissions from the GREC boiler as new emissions (i.e., disregarding the fact that GREC's dioxin emissions displace far higher dioxin emissions from open burning). Dr. Teaf showed that air concentrations and wet and dry deposition rates were well below--usually, by one or more orders of magnitude--recently published EPA regional screening levels for air, water, and soil. Petitioners' contention for a limitation on dioxins emissions in the Air Construction Permit misses a couple of points. The GREC boiler will result in a net reduction in dioxin emissions, and, even without regard to the netting, GREC has provided reasonable assurance that the GREC facility's dioxin emissions are not, themselves, significant. GREC has provided reasonable assurance that the GREC facility adequately protects the public health and environment from emissions of dioxins, including furans and PCBs, and, based on the circumstances of this case, the Air Construction Permit is not required to contain a dioxins emissions limit. Mercury Petitioners claim that GREC has failed to provide reasonable assurance that the proposed facility protects public health from emissions of mercury. Mercury is not among the pollutants covered under national AAQS. Although not a PSD pollutant, as noted above, NSR/PSD sets a significant emission rate for mercury, and the mercury emissions of the GREC facility will not exceed this rate. Although a HAP, mercury, like dioxins, is not emitted at rates anywhere near the 10 tpy threshold. Instead, as with dioxins, Petitioners claim that the projected emissions of mercury by the GREC facility, although indisputably well under 10 tpy, are nonetheless high enough to endanger public health and the environment. The biomass fuel contains trace amounts of mercury. Combustion at 1500 degrees vaporizes the mercury into gaseous elemental mercury. Subsequent cooling may produce elemental mercury, particle-bound mercury, and oxidized mercury compounds, which is also known as reactive gaseous divalent mercury (RGM). The baghouse filters might capture some of these mercury emissions, although GREC's analysis conservatively assumed that they would not. Of the 16.7 pounds per year of all forms of mercury projected to be emitted by the GREC biomass plant, about 70 percent of it, according to GREC's conservative assumptions, will be elemental mercury and 30 percent of it will be RGM. The former has long residence time in the atmosphere and travels long distances, and the latter deposits locally and regionally. By comparison, annual anthropogenic emissions of mercury in the United States were 145 tons in 2005, including 48 tons from power plant emissions. In 1999, mercury emissions from Florida coal-fired plants were 1923 pounds. Worldwide, anthropogenic emissions of mercury account for two-thirds of total mercury emissions, the remainder being from natural causes, such as volcanic eruptions and oceans. The Site Application considers wet and dry deposition rates of mercury in the Santa Fe River basin. After calculating an average areal wet deposition rate from the GREC facility, the Site Application concludes that it is 6000 times less than the average areal wet deposition at the nearest location for which such data are available. The Site Application also concludes that the wet plus dry deposition rate of mercury from the GREC facility will be 400 times less than the wet-only rate at the comparison location. Additionally, as noted above, the air pollution control system installed at Deerhaven will reduce mercury emissions by more than the increases caused by the GREC project. Because these decreases will not be subject to CEMS and will not be enforceable, DEP's NSR/PSD analysis could not net the GREC facility's mercury emissions against the corresponding decreases in mercury emissions at Deerhaven. However, the GREC facility will emit mercury at a rate over one order of magnitude less than the PSD significant emission rate for mercury. And, to the extent that Petitioners have questioned the safety of GREC's projected mercury emissions outside of NSR/PSD and NESHAP, then the limitations on netting do not preclude attaching significance to the fact that, when considered in conjunction with roughly contemporaneous pollution control improvements at Deerhaven, the GREC facility's mercury emissions are nonexistent. GREC has provided reasonable assurance that the GREC facility adequately protects the public health and environment from emissions of mercury. Netting of NOX and SO2 To Avoid BACT Petitioners claim that DEP improperly allowed GREC to net its NOX and SO2 emissions against enforceable reductions of NOX and SO2 by GRU at Deerhaven, so as to avoid BACT analysis. On July 12, 2010, DEP issued a permit to GRU imposing enforceable and permanent reductions on Deerhaven Unit 2's emissions of NOx and SO2--418 tpy of the former and 171 tpy of the latter. These reductions were achieved by GRU's installation of more effective pollution control technology. Under NSR/PSD, GREC may net out its emissions of NOx and SO2 by taking into account these offsetting GRU reductions because GREC and GRU constitute one major stationary source, under NSR/PSD permitting. Offsetting the increased emissions of GREC with the decreased emissions of GRU is authorized by the proximity of the two operations and their common operational control. Specifically, GRU controls GREC's operations through their power purchasing agreement, which gives GRU the authority to dispatch the power generated by the GREC facility, to determine when the biomass plant will start up and shut down, to control the amount of electricity that the GREC biomass plant will produce while operating, and to regulate the voltage of such electricity. GRU will supply the switchyard and transmission lines by which GREC-produced power will enter the power grid and will distribute GREC-produced power among GRU customers. GRU will also supply the natural gas that GREC requires for start-up and the electricity that GREC requires for start-up and stand-by operations. GRU even agreed to reduce its groundwater withdrawals by 1.4 million gallons per day, so GREC could withdraw an equal amount of groundwater for its operations. Contrary to Petitioners' contention, this aggregate treatment of GRU and GREC is not a legal fiction designed to circumvent BACT under the NSR/PSD program. On these facts, it would be much easier to prove that the independence of GREC is a legal fiction, or that GREC serves as GRU's contractor, ushering the biomass plant through certification, permitting, the acquisition of supplier contracts, and start-up, perhaps then to sell it to GRU at the same late stage that GREC's affiliate sold the Nacogdoches plant. But whatever the precise relationship between the two entities is, or proves to be, at this stage, without doubt, GRU controls GREC. Contrary to Petitioners' contention, the emissions reduction achieved by GRU at Deerhaven cannot somehow be disregarded in this case and "banked" as a gain in achieving cleaner air. From all appearances, GRU pursued this emissions reduction--and certainly the permit modification enforcing the emissions reduction against GRU permanently--for the same reason that it agreed to reduce its groundwater withdrawals. The reason is not an abundance of good will among corporate partners working shoulder to shoulder in providing America's power needs or a gestalt moment of environmental awareness. GRU effected this emissions reduction as a strategic decision to enable GREC to come online sooner and provide GRU with a reliable source of power from a plant much newer than any that it has in place at Deerhaven. This is the economic reality of the closer-than- armslength relationship that exists between GRU and GREC. The netting of NOx and SO2 emissions means that GREC effectively emits no such pollutants. But to put GREC's offset emissions into context, Deerhaven Unit 2 produces roughly 2.5 times the power that the GREC plant will produce. Even after the July 2010 emission reductions, Deerhaven Unit 2 is permitted to emit 3381 tpy of NOx emissions and 8005 tpy of SO2 emissions. If the GREC plant were scaled up to Deerhaven Unit 2's capacity and the NOX and SO2 emissions could be extrapolated linearly, the GREC biomass plant would produce about one-third as much NOx and one-twentieth as much SO2. Nothing in the record suggests that GREC's relatively low emissions of NOx and SO2--even without regarding to netting--presents a significant risk to human health or the environment. GREC has provided reasonable assurance that its NOx and SO2 emissions properly should be netted against offsetting reductions in these emissions at Deerhaven and that BACT analysis for these pollutants is thus unnecessary. Not Major Source of HAPs So No MACT Petitioners claim that DEP improperly determined that the GREC facility will not be a major source of HAPs, so DEP improperly relieved GREC of the burden of demonstrating case-by- case MACT. As noted above, originally, GREC stated that its emissions of HCl and HF, as well as total HAPs, were sufficiently high to trigger MACT case-by-case review. Originally, the HCl and HF emissions were projected to be 36 tpy and 71 tpy, respectively, and total HAPs were 114 tpy. However, after DEP representatives advised GREC representatives that their HCl and HF projections seemed very high, based on DEP's experience with comparable facilities, GREC representatives met with representatives of the boiler manufacturer, Metso, to determine if they could implement more stringent emission control technology. The purpose was to reduce HAPs emissions to levels more in line with DEP's experience, which would be sufficiently low to avoid triggering MACT case-by-case review. The means by which GREC and Metso achieved this reduction essentially constituted MACT. The difference was that, by following DEP's recommendations, GREC was able to avoid months of formal MACT analysis. On February 2010, GREC presented to DEP a revised set of projections of HAPs emissions that were just beneath the MACT thresholds of 10 tpy for any single HAP and 25 tpy of all HAPS. As noted above, the revised projections are for 9.72 tpy of HCl and HF, each, and 24.7 tpy of all HAPs. GREC justified these revised projections by several means. First, Metso reconsidered the chlorine and fluorine concentrations in the clean woody biomass to be received by the GREC facility, reevaluated the chemical reactions, and reduced its earlier assumptions. Second, Metso and GREC selected for the DSI a more effective sorbent, trona, which reduces the emissions of HF and HCl. Third, Metso and GREC increased the amount of sorbent to be injected into the flue gas system, which will further reduce emissions of HF, HCl, and SO2. Fourth, Metso and GREC changed the catalyst in the SCR, which will remove HAPs more effectively. Fifth, Metso and GREC increased the size and optimized the design of the fabric filter baghouse, which will further reduce stack emissions of PM, but also HAPs to a lesser degree. These are not paper adjustments, but are actual investments in technology that will cost GREC millions of dollars. Petitioners, though, remain skeptical, partly due to the proximity of the revised projections to the regulatory thresholds. For HF, at least, the skepticism is clearly misplaced. The actual projection for HF emissions is much less than 9.72 tpy. Metso and GREC selected 9.72 tpy for HF to allow for a margin of error in the projections. GREC's motivation was obviously to a avoid a sub-threshold breach of a projected emissions limit and the resulting regulatory intervention of DEP. Metso's motivation probably arises from the fact that, to induce GREC to purchase its boiler, Metso provided GREC a guarantee that, at least initially, the boiler will meet these revised HAPs emissions limitations. So, the proximity to regulatory thresholds, at least for HF, is not a ground for skepticism. As revised, the pollution control systems restrict HAPs, and other pollutants, as follows: 1) good combustion practices in the BFBB control PM, CO, VOCs, and HAPs generally; 2) the fabric filter baghouse controls emissions of PM10, PM2.5, and HAPs; 3) clean biomass fuel, reaction with alkaline fly ash, and DSI control SO2 and SAM; 4) ammonia-based SCR controls NOx, VOCs, and HAPs generally; and 5) high-efficiency drift eliminators in the cooling tower control PM. Assurances that these close margins for the HAPs thresholds, as well as the other pollutant limits, will not be breached is also supplied by the CEMS: for SO2 and NOx, 24-hour, 30-day, and 12-month CEMS; for SAM, an initial and annual stack test; for CO, a 30-day CEMS; for HCl and HF, an initial stack test and 12-month CEMS; for HAPs generally, an initial and annual stack test and 12-month CEMS; for PM/PM10, an initial and annual stack test; and for visible emissions and VOCs, an initial and annual stack test, as well as continuous opacity monitoring. Finally, the GREC facility's HAPs emissions are offset by decreases in emissions of HCl and HF, as well as SAM and mercury, as a result of the enhanced pollution control technology adopted by GRU at Deerhaven. Although these reductions, which are all greater than the emissions of these pollutants by the GREC facility, are not enforceable and netting is unavailable under NESHAP, these reductions are relevant in assessing Petitioners' broader claims concerning human health, again outside of the context of NESHAP. GREC has provided reasonable assurance that its facility will not emit more than 9.72 tpy annually of any individual HAP or 25 tpy of all HAPs. Thus, DEP properly determined that case-by-case MACT analysis was unnecessary. Stack and Diesel-Exhaust Emissions of PM/PM10 and Failure to Require BACT Petitioners claim that the draft Air Construction Permit inadequately accounts for stack and diesel-exhaust emissions of PM and PM10 and fails to require BACT for these pollutants. In one respect, Petitioners' claim is correct. The failure of the draft Air Construction Permit to incorporate the provision of the Technical Evaluation that DEP would require GREC to measure filterable and condensible PM with EPA Method 202, in conjunction with the apparent absence of any other test for filterable and condensible PM, is, literally, inadequate accounting for stack emissions of PM/PM10, at least where such a test is commonly enough available to be identified as an EPA Method. But DEP can easily repair this defect by adding this requirement to the Air Construction Permit. In all other respects, though, GREC has adequately accounted for stack emissions of PM/PM10 and provided BACT for these PSD pollutants. As noted in the Technical Evaluation, GREC has provided BACT through the superior combustion of a BFBB, baghouse, DSI, and SCR, as well through the control of SO2 and NOX and visible emissions. GREC's stack emissions of PM10 do not exceed the NSPS limit for this pollutant. Although GREC's stack emissions of PM10 require more elaborate PSD analysis due to their exceeding the PSD significant impact level for PM10, GREC's modeling supports a finding that the these impacts will be highly localized-- restricted to the GREC/GRU site, mostly along the south fenceline--and will require no ambient air quality sampling due to the sampling program already in existence in Alachua County. GREC's modeling also supports findings that the impacts of GREC's stack emissions of PM10, when combined with the air quality impacts from all sources, will be substantially below the 24-hour and annual PSD Class II increments and national AAQS, so the GREC facility will not cause or contribute to an exceedance of the PM10 PSD increments or national AAQS. Fugitive Emissions of PM/PM10 Petitioners claim that the draft Air Construction Permit inadequately accounts for fugitive emissions from the wood piles and biomass handling of PM and PM10. The preceding analysis included all of GREC's PM10 emissions--stack and fugitive. The draft BMP plan and other design elements adequately account for fugitive emissions of PM/PM10, and the procedures described in the BMPs plan and other design elements constitute BACT. Spontaneous Combustion of Wood Piles and PM Emissions Petitioner claims that the draft Air Construction Permit fails to adequately protect against spontaneous combustion and the PM emissions that would result from a fire. The wood piles present a risk of fire from spontaneous combustion. Microbial metabolic action within the pile can generate sufficient heat to cause the wood pile to combust. The primary safeguard against this risk is proper fuel management to minimize the heat buildup within the pile. One way to manage the fuel for fire safety is to mix the wood piles to aerate the piles and prevent hot spots. Another way to manage the fuel is to ensure that the fuel is not allowed to remain in the pile too long. GREC's first-fuel-in, first-fuel-out policy limits the age of any part of the wood pile. The implementation of this policy is further assured by the fact that the fuel loses heat value over time, so GREC will gain more burn for the dollar by combusting the fuel sooner, rather than later. The ratio of stored fuel to combustion rates suggests that all fuel will be turned over within 20 days--probably sooner, after the late revision lowering the height of the automatic stacker/reclaimer pile by 25 feet. Anecdotal evidence suggests that 20 days' residence in the wood pile is well short of the age of fuel that has spontaneously combusted in piles in the past. The stormwater management system will also enhance fire safety by draining rainwater and runoff from the piles and discouraging the ongoing saturation of the fuel piles. Excessive, intermittent saturation of the pile may encourage the microbial activity that can lead to combustion. As part of the local review that took place for the GREC facility, Gainesville Fire Department representatives met three times with GREC representatives to address fire safety, as the Development Review Board of the City of Gainesville reviewed the GREC proposal. As a result of these meetings, GREC agreed to a number of changes to assure substantial compliance with the National Fire Protection Association (NFPA) standards for the management of wood storage areas. As noted above, one change after consultations with the fire department was to reduce the automatic stacker/reclaimer pile from 85 feet to 60 feet. This reduces the risk of fire by making it easier to mix the entire pile and reduces the volume of fuel stored onsite and, thus, the time that that the fuel may remain unused in the wood pile. Secondarily, this change also reduces the volume of fuel available to burn in an unintended fire. To conform to NFPA standards, GREC also agreed to place low barrier walls between the fuel piles; to drive stakes around the perimeter of the piles, so inspectors could more easily check that the piles are not migrating or expanding; and to insert temperature probes into the piles to allow timely detection and elimination of hot spots that might otherwise develop into fires. A revised site plan, as reflected in Exhibits 50A, 50B, and 50C, incorporates the barrier walls and perimeter stakes identified above, as well as the layout of the fire main and fire hydrants that loop the fuel storage area and some access issues for firefighting equipment, which may weigh as much as 30 tons. After DEP adds to the Air Construction Permit the changes to the above-described changes to the site plan, which do not relocate emissions units so as to require remodeling emissions, GREC has provided reasonable assurance that the draft Air Construction Permit adequately protects against spontaneous combustion and the PM emissions that would result from a fire. Failure To Assure Uncontaminated Supplies of Biomass Petitioner claims that the draft Air Construction Permit fails to adequately assure that the biomass fuel will be free from contaminants prior to its combustion in the BFBB. Draft Air Construction Permit Section 3.A.6 requires clean woody biomass, and the draft BMP plan addresses the means to ensure that only clean woody biomass is burned in the BFBB. Suppliers must perform most of the processing offsite; for each shipment, GREC must record the date, quantity, and description of the material received; GREC must inspect each shipment for nonconforming materials; GREC must reject or segregate nonconforming material, if it is discovered; and GREC must maintain records of rejected shipments and their disposition. At the hearing, GREC agreed to another prohibition--namely, that it may not burn construction and demolition debris. GREC has provided reasonable assurance that only clean woody biomass will be combusted at the GREC facility.
Recommendation It is RECOMMENDED that, subject to the additional conditions set forth in the preceding paragraph, DEP enter a final order granting the Air Construction Permit. DONE AND ENTERED this 7th day of December, 2010, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings This 7th day of December, 2010. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Mimi Drew, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 David S. Dee, Esquire Young Van Assenderp, P.A. 225 South Adams Street Suite 200 Tallahassee, Florida 32301-1700 Mick G. Harrison, Esquire 205 North College Avenue, Suite 311 Bloomington, Indiana 47404 Jack Chisolm, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Raymond O. Manasco, Jr., Esquire Gainesville Regional Utilities 301 Southwest 4th Avenue Gainesville, Florida 32614 Douglas S. Roberts, Esquire Hopping Green & Sams 119 South Monroe Street Suite 300 Post Office Box 6526 Tallahassee, Florida 32301 Richard E. Condit, Esquire 1612 K Street, Northwest, Suite 1100 Washington, DC 20006
Findings Of Fact In late 1988, information was received by Department of Professional Regulation (DPR) investigators that a Georgia licensed contractor was building Shoney's restaurants in Florida with a permit pulled in the name of a deceased Florida licensed contractor, Donald Loftin. The contractor, Quality Construction Builders, Inc., owned by Fred Pringle, was not licensed in Florida. Prior to 1986, Pringle had worked for a restaurant management services who had built several Shoney's restaurants in Florida and Georgia. Pringle, in 1980, obtained a power of attorney from Donald Loftin, a licensed Florida contractor, to pull permits under Loftin's license. Loftin died in December 1981, but Pringle renewed Loftin's license once or twice after Loftin's death and pulled construction permits under this license. An extensive investigation was commenced with particular emphasis on construction projects commenced under permits pulled with Loftin's license. Some 25 witnesses were interrogated, including contractors who had pulled permits for Shoney's restaurants on which construction had been stopped, or threatened with stoppage by local officials, because of the initial permit being pulled on Loftin's license. One of these contractors contacted in this investigation was Samuel Whitener who had pulled a permit for a Shoney's restaurant under construction in Ellenton, Florida, on which a stop order had been issued because of the invalid permit. Other contractors who had pulled similar permits for a fee were questioned as were numerous subcontractors, the superintendent for Quality Construction Builders, Inc., and officials of Restaurant Management Services. When the restaurant at Ellenton was approximately 80 percent completed, the local construction authorities stopped work on the project because of the invalid permit which had been pulled using Loftin's license. After the stop order was issued, Restaurant Management Services (RMS), an arm of Shoney's restaurants, entered into a contract with Petitioner herein to complete the project for which Petitioner was paid $4000. When questioned by DPR investigators regarding this function, Petitioner acknowledged that he was paid $4000, that the subcontractors working on the restaurant continued on the job, that these subcontractors were paid by RMS, that he could not hire or fire the subcontractors, and the construction was supervised by Shoney's general contractor, Quality Construction Builders, who had built several other Shoney's restaurants in Florida. Petitioner further told, or led the investigators to conclude, that he had no responsibility for the ongoing construction and that he visited the site once or twice per week; and that the superintendent was primarily in charge of the construction. Other Florida contractors who had also pulled permits for Shoney's restaurants admitted that, although they had pulled the permits, they did not hire, fire, or pay subcontractors and that they performed little, if any, supervision of the construction. Based on this information, the investigator concluded that Petitioner and other contractors were aiding and abetting an unlicensed contractor to do contracting in this State, and submitted this investigative report recommending that Petitioner be charged with violation of Section 489.129(1)(e) and (f), Florida Statutes. The investigative file, which also included a copy of the Construction Management Services contract between Whitener and RMS, was forwarded to the Probable Cause Panel with recommendation that probable cause for a violation of the Construction Industry License Law be found. This contract contains six specific management services which Whitener would supply on the Ellenton project. The contract did not provide that Whitener would obtain the building permit, gave Whitener no control over the financial aspects of the construction, provided for RMS to pay all subcontractors, and did not provide for Whitener to be the qualifying contractor for RMS or Quality Construction. After reviewing the investigation file, including the management services contract, the Probable Cause Panel found probable cause that Whitener violated Section 489.129(1)(e) and (f), Florida Statutes.
Findings Of Fact On January 23, 1985, following the filing of the and its on-site inspection, DER issued its notice of intent to grant the air construction permit, pursuant to Chapter 403, Florida Statutes (F.S.), and Chapters 17-2 and 17-4, Florida Administrative Code (F.A.C.). The notice stated that the proposed equipment, with a cyclone primary dust collector followed by a Dustex Baghouse Model DW-14-28W dust collector, was adequate to insure compliance with DER particulate emission standards. The ambient air standards for sulfur dioxide emissions by the plant were to be controlled by the use of low sulfur fuel oil (maximum 0.5 percent sulfur). Subsequent to the issuance of the notice of intent, DER received a Petition for Administrative Hearing regarding the issuance of the permit. The petition alleged, inter alia, that the plant would emit particulates and gases in contravention of Chapter 17-2, F.A.C., and that stormwater run-off from the plant would be contaminated with oil, scum and debris. The petition further asserted that this run-off would cause water pollution in contravention of Chapters 17-3 and 17-25, F.A.C., and would introduce pollution into Dry Branch and Bayou George, a Class I Water. The permit application covers only the proposed batch plant site and the immediately adjacent property consisting of 2.15 acres. The location of the building would be at the northern end of the parcel, approximately 0.10 miles from both Star Avenue and U.S. Highway 231. There is no residential use of property immediately adjacent to the project site. However, Petitioners all reside in the immediate area, and will be affected to some extent by this facility. Dust from construction activity has already been experienced. In this regard, it must be recognized that the area has no zoning restrictions and is therefore subject to industrial uses such as that proposed here. The Applicant owns several acres of property surrounding the location of the proposed batch plant. The permit application at issue covers only the request to construct the facility on a 2.15 acre portion of the larger parcel. Anticipated environmental problems caused by activity not on the immediate parcel are not related to this permit application and thus are not germane to a determination whether the permit should be issued or denied. Further, the construction permit will only allow the applicant to build the proposed air pollution source. Before such a source can actually be operated, a separate operation permit application must be made, and testing for compliance with standards by the facility must be satisfactorily completed. Petitioners demonstrated that the individuals who own Triangle Construction Company, Inc. were previously employed by Gulf Asphalt Company, which was occasionally out of compliance with state air emission standards. Petitioners asserted that these individuals would likely fail to operate the proposed facility in compliance with DER standards. Although these individuals did have managerial responsibility at Gulf Asphalt, final decisions concerning financial expenditures for repairs and maintenance were made by the owner of the plant, rather than the Applicant's owners. It was also established that the Gulf Asphalt Plant continued to have emission problems after such individuals left as employees. Petitioners contend the Applicant's unrelated dredging activities in an adjacent borrow pit area caused turbidity in Dry Branch Creek, and characterized the Applicant as a habitual violator who could not be expected to comply with state pollution control regulations in the operation of the proposed facility. Testimony revealed that the Applicant constructed a culvert in Dry Branch, which flows through a borrow pit area and did some other incidental dredging in areas within the landward extent of waters of the state. However, when the Applicant became aware that activities in the proposed borrow pit area were potentially in violation of DER rules, it ceased activities and applied for the appropriate permits. An asphalt concrete batch plant is a relatively simple operation in which sand and aggregate are dried, then mixed with hot liquid asphalt and loaded directly into trucks. It is the drying process which emits the particulates which the cyclone and the baghouse are designed to control. Baghouse operations are similar to those of a vacuum cleaner. Particulate-laden air from the drying process is vented into the baghouse, where it is filtered through a number of cloth bags. The bags trap the particulates, and pass the filtered air through the bag cloth and out of the building. When enough air has been filtered to cause a build-up of trapped particulates, a portion of the baghouse is taken off cycle and reverse air is blown through the bags. The reverse air causes the trapped particulates to fall into a hopper where they are removed for disposal. The baghouse was designed to function efficiently in conjunction with a plant producing up to 120 tons per hour of asphalt concrete. Applicants's plant will produce only 80-85 tons of asphalt concrete per hour due to the limited size of the dryer. The estimated air to cloth ratio in the amended permit application is 6:1, which will result in emissions substantially lower than DER standards. Air to cloth ratio is not a specific standard or requirement, but is a figure which is used by engineers to determine projected emissions which may reasonably be anticipated from facilities which use an air pollution control mechanism. A projected air to cloth ratio of 6:1 for this baghouse may be reasonably expected to yield emissions of approximately 0.014 micrograms per dry cubic foot, which is approximately one-third of the DER standard of 0.04 mg. per dry cubic foot. The equipment to be installed is used and in need of minor repairs. The testimony established that necessary repairs will be accomplished prior to plant activation, and that operations will not be adversely affected when such repairs are complete.
Recommendation Based on the foregoing, it is RECOMMENDED that the Department of Environmental Regulation issue a final order granting Triangle Construction Company an air construction permit. DONE and ENTERED this 21st day of June, 1985, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 1985. COPIES FURNISHED: Lynn C. Higby, Esquire BRYANT, HIGBY & WILLIAMS, P.A. Post Office Box 124 Panama City, Florida 32402 E. Gary Early, Esquire and Clare E. Gray, Esquire Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32301 Richard Smoak, Esquire SALE, BROWN & SMOAK Post Office Box 1579 Panama City, Florida 32402 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioner, a disappointed bidder, waived its right to pursue administrative remedies by failing timely to file a notice of intent to protest.
Findings Of Fact On November 26, 2002, Respondent Department of Transportation ("Department") issued a request for proposals on a contract for the development of a transportation facility, which was to be located adjacent to the Miami International Airport. On March 3, 2002, Petitioner MIC Development, LLC ("MIC") submitted the only proposal that the Department received in response to this solicitation. The next activity of relevance to this case occurred three years later, on May 20, 2005, when a selection committee decided to reject all proposals (as mentioned, there was just one) and discontinue the procurement. By two letters dated May 31, 2005, each of which was addressed to a principal of MIC and marked "certified mail," "return receipt requested," the Department notified MIC of its decision. It is undisputed that the Department did not post its decision on the internet. There is, however, a genuine and spirited dispute concerning the date on which MIC received the Department's decision-letters; as a result, the evidence is in conflict regarding whether MIC received the Department's notice of rejection on June 3, 2005, as the Department contends, or on June 10, 2005, as MIC maintains. It is not necessary to resolve this particular dispute because——for reasons that will soon become apparent——the contested fact is immaterial. On June 14, 2005, MIC filed a notice of intent to protest the Department's decision to reject its proposal. Nine days later, on June 23, MIC filed its formal written protest. The Department insists that MIC's initial protest- notice, having been filed more than 72 hours after MIC's receipt of the notice of rejection, was untimely, thereby constituting a waiver of the right to a hearing. The Department urges that this case be dismissed on that basis. MIC asserts that its notice was filed within 72 hours after receiving the Department's letters——which it claims were defective in any event and hence legally insufficient to trigger the 72-hour filing period——and that, even its protest-notice were untimely, equitable principles should be invoked to allow this case to go forward notwithstanding the filing delay.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department refer this matter to DOAH for a final hearing on the merits of MIC's protest of the rejection of its proposal. DONE AND ENTERED this 20th day of April, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 20th day of April, 2006.
The Issue The issue in this case is whether the State of Florida Department of Environmental Regulation (DER, or the Department) should grant the request of Medico Environmental Services, Inc. (Medico) for a one-year extension of the expiration date for air construction permit AC52-184546 for a biological waste incinerator located at 13200-58th Street North, Clearwater, Florida.
Findings Of Fact The Prior and Related Proceedings.-- Medico holds an air construction permit issued by the DER on March 8, 1991, for the construction of a biological waste incinerator in Pinellas County, Florida. The permit contains general and special conditions, including prohibitions against the incineration of non-exempt amounts of radioactive and hazardous wastes, a requirement that all operators be trained in a DER-approved training program, and a requirement that the facility undergo compliance testing after it is constructed to assure that its operation complies with emission standards established by DER rule. Several weeks after the grant of the air construction permit, on March 29, 1991, the DER changed the equipment model number on the permit, but the change in model number represented no change in the actual equipment described in the application. Local government building and construction permit procedures, and negotiations with potential investors, delayed construction of the facility. By letter dated November 14, 1991, Medico requested an extension of the expiration date of the permit from January 7, 1992, to January 7, 1993. No other change in the permit was sought. On or about December 6, 1991, the Department issued a second air construction permit for a biological waste incinerator in Pinellas County to Bayfront Medical Center (Bayfront). Bayfront has since requested two extensionns on the expiration date of its permit. The second request is currently pending challenge in Division of Administrative Hearings Case Nos. 92- 6879 and 92-6880. The Applicant and Principals.-- Medico is a corporation consisting of two fifty percent shareholders: Gerald Hubbell; and Robert Sheehan. Hubbel operates a funeral home and Bay Area Crematory, Inc., in Pinellas County; he has less than 50 percent ownership of those businesses. Previously, Sheehan co-founded a medical waste incineration facility in New York known as Medi-Waste, Limited, of which he was one-third owner. In 1986, he sold the company, and it merged with Medi-Gen, Medical Generation Associates, a wholly owned subsidiary of a company known as Legeis Resources (Legeis). Sheehan held two percent of the shares of Legeis and served as an officer of Medi-Gen until he resigned in 1989. Sheehan does not own more than 50 percent of Medico, and he has not had any interest in any other air construction or air operation permit in the State of Florida. Since March, 1991, he has not held an interest in any other entity involved in medical waste incineration. Air Quality. Medico will be capable of incinerating 2,350 pounds of medical waste per hour, which is about ten percent of Flrodia's medical waste. Pinellas County generates about 75,000 pounds of such waste per day but currently has the capacity to burn only 480 pounds per hour. A computer-generated air dispersion model was run on the theoretical maximum impact of Medico, of Bayfront, and of both facilities, on the ambient air in the affected parts of Pinellas County. The model used was the EPA's Industrial Source Complex, Short Term, Version 2, March, 1992. This model is recommended by the DER and preferred by the EPA. It follows the DER's Guideline on Air Quality Models. Average background ambient air was calculated using monitoring data collected by Pinellas County for the EPA criteria pollutants (sulfur dioxide, nitrogen dioxide, carbon monoxide, ozone, lead, and particulate matter) and for hydrochloric acid in accordance with the requirements of title 40, part 58, of the Code of Federal Regulations, as reported in the DER's 1991 ALLSUM. (According to EPA publications, hydrochloric acid is the only toxic pollutant on the DER's air toxics list for which medical waste incinerators like Medico's are considered to be a source.) The theoretical maximum impacts of Medico and Bayfront were based on the AP42 emission standards for those kinds of facilities. Meteorological data was taken from the nearest national weather service station (at the Tampa International Airport). The air model shows that none of the National Ambient Air Quality Standards for any of the criteria pollutants would be exceeded by adding either the impact of the Medico facility, or the impact of the Bayfront facility, or both combined, to the average ambient air in the affected parts of Pinellas County. (Both Total Suspended Particulate (TSP) and the newer PM10 category of particulates less than ten microns in size cases, which is more relevant to public health concerns, were considered for particulate matter levels.) Testimony indicates that the National Ambient Air Quality Standards would not be exceeded for any of the criteria pollutants by adding either the impact of the Medico facility, or the impact of the Bayfront facility, or both combined, to the maximum ambient air in the affected parts of Pinellas County. Also, even assuming a "worst case" weather scenario, no problematic toxic pollutants are expected, based on a Pinellas County Department of Environmental Management, Air Quality Division, screening computer model. Lead and hydrochloric acid would be under the EPA's "no threat level" (NTL). (As for the original application, these determinations are based on the scrubber manufacturer's hydrochloric acid efficiency claim of 99.9% and, in the case of lead, on its particulate efficiency claim.) As previously stated, according to EPA publications, there are no other toxic pollutants on the DER's air toxics list for which medical waste incinerators like Medico's are considered to be a source. The theoretical emissions for the Medico facility are below 100 tons per year, and the facility does not have the potential to emit more than ten tons per year of any hazardous air pollutant, as defined by the EPA. Past Conduct and Reliablily of the Principals.-- On or about March 5, 1991, the temperature in the secondary chamber of the biohazardous waste incinerator then operated by Hubbell dropped below 1800o at the end of a burn, and there was still a small amount of waste in the primary chamber and some small amount of flame still visible in the primary chamber. This violation, however, did not result in visible emissions, which would be an indication that there was a combustion or related problem in the incinerator. On or about March 4, 1991, one of the crematory units operated by Hubbell had visible emissions of 44% opacity. Identical warning letters regarding the March 4 and March 5 violations were sent on March 20 and March 27, 1991. Hubbell respondent by telephone on April 1, and in writing on April 5, 1991. There have been no other violation of Florida Statutes or DER rules since the original construction permit issued. Taking these violations into consideration, the compliance history of Hubbell's facilities does not undermine Medico's ability to give the necessary reasonable assurances. Between October, 1981, and October, 1991, Hubbell's facilities have been guilty of only the following violations: On or about March 25, 1987, Hubbell began to incinerate biohazardous medical waste before he was aware that a special permit for incinerating medical waste, in addition to his permit to operate the crematory, was required by law. On or about August 19, 1988, Hubbell's facility was notified that the Pinellas County Division of Air Quality had received a written complaint about smoke, and that a county permit would be required for the infectious waste incinerator along with retrofitting some controls. On or about October 4, 1989, Hubbell's facility apparently had a visible emissions violation. Three annual operating reports for Hubbell's facilities--for 1981, 1985, and 1989--would be considered late under current policy. There was no evidence whether they were late under the policy in effect at the time the reports were filed. Over the course of those ten years, there is no suggestion in the evidence that any of the other annual operating reports may have been late, and there are no other violations recorded in the Pinellas County compliance contact logs. To the contrary, the records indicate that no violations were found on 15 inspections. Hubbell voluntarily has shut down the old, smaller and less sophisticated medical waste incinerator where some of the recorded violations occurred, pending the construction of the Medico facility. Sheehan has not had an interest in any biohazardous waste incinerators in the State of Florida, other than the Medico application, and has not had a controlling interest in, or operational role in, any entity operating a medical or biohazardous waste facility in any state since June, 1989. Although, under the prehearing rulings, it would not even be relevant to this proceeding, the only evidence of any violations by any entity in which Sheehan had a controlling interest in, or operational role in, that operated a medical or biohazardous waste facility in any state, at any time, was evidence of two New York State Department of Environmental Conservation ash container violations and one failure to close up the back of the building housing an incinerator in October, 1988.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation enter a final order extending the expiration date for air construction permit AC52-184546 for one year from the entry of the final order, subject to a DER determination that construction did not begin by March 20, 1992, and that the Chapter 92-31 moratorium applies. RECOMMENDED this 6th day of January, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0851 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioners' Proposed Findings of Fact. I.1.-3. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated. Second sentence, argument and subordinate. Accepted and incorporated. First four sentences, accepted and incorporated to the extent not subordinate or unnecessary. Fifth sentence, rejected as not supported by the evidence and as contrary to facts found. Fifth sentence, accepted but subordinate to facts contrary to those found. First four sentences, accepted and incorporated to the extent not subordinate or unnecessary. Fifth sentence, accepted but subordinate to facts contrary to those found. (He raised questions but had no answers; other witnesses satisfactorily answered the question.) Last sentence, rejected as contrary to the greater weight of the evidence and to the facts found. First sentence, accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, irrelevant to the extension the expiration date of an air construction permit, and unnecessary. Also, state law and regulations govern some aspects of the handling of these wastes. First two sentences, accepted but subordinate and unnecessary. Third and fourth sentences, rejected as contrary to the greater weight of the evidence and to facts found. (Reasonable assumptions can be made, in accordance with EPA publications, based on the nature of the facility.) Also, irrelevant to the extension the expiration date of an air construction permit, and unnecessary. Finally, res judicata. Rejected as contrary to the greater weight of the evidence and to facts found. Also, irrelevant to the extension the expiration date of an air construction permit, and unnecessary. Finally, res judicata. First sentence, accepted but accepted but subordinate to facts contrary to those found, and unnecessary. Second sentence, rejected as contrary to the greater weight of the evidence and to facts found. Also, irrelevant to the extension the expiration date of an air construction permit, and unnecessary. Finally, res judicata. First two sentences, accepted and incorporated in part (another reason was that the application passed a screening model both initially and on the extension request and that most of the toxics would not be expected to be generated from this source), but res judicata, and unnecessary. Third sentence, accepted and incorporated. Fourth and fifth sentences, accepted but res judicata, subordinate to facts contrary to those found, and unnecessary. II.9.-10. Rejected as contrary to facts found and to the greater weight of the evidence. III.1.-2. Rejected as being conclusions of law. Medico's Proposed Findings of Fact. 1.-3. Accepted and incorporated. 4. Accepted but subordinate and unnecessary. 5.-7. Accepted and incorporated. Accepted but subordinate and unnecessary. Accepted and incorporated. Irrelevant and unnecessary. 11.-23. Generally accepted but largely subordinate. Incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted but subordinate and unnecessary. Generally accepted, but largely res judicata, irrelevant, subordinate and unnecessary. Accepted and incorporated. 30.-31 Accepted but subordinate and unnecessary. Generally, accepted but subordinate and unnecessary. Last sentence, rejected as contrary to the greater weight of the evidence. Rest, accepted but subodinate and unnecessary. 34.-35. Generally, accepted but subordinate and unnecessary. Accepted and incorporated. Accepted but subordinate and unnecessary. 38.-43. Accepted and incorporated. 44.-45. Accepted but subordinate and unnecessary. Accepted and incorporated. Accepted but largely subordinate and unnecessary. Some, irrelevant. 48.-49. Accepted but subordinate and unnecessary. 50. Accepted but irrelevant, subordinate and unnecessary. DER's Proposed Findings of Fact. 1.-9. Accepted and incorporated to the extent not subordinate or unnecessary. 10. The law was signed on March 20, 1992. Otherwise, accepted and incorporated. 11.-15. Accepted but subordinate and unnecessary. COPIES FURNISHED: Adrien W. Helm, Esquire 925 Fourteenth Avenue North St. Petersburg, Florida 33705 Sandra P. Stockwell, Esquire Douglas L. Stowell, Esquire Post Office Box 11059 Tallahassee, Florida 32302 W. Douglas Beason, Esquire Assistant General Counsel Dept. of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue presented for decision herein is whether or not Petitioner, by failing to disclose an arrest conviction and sentencing on a license application (as the applicant administrator), constitutes grounds for revocation of an ACLF license granted pursuant to that application as provided in Section 400.414(1), (2), (b), Florida Statutes.
Findings Of Fact Petitioner applied for an initial ACLF license on or about April 10, 1985 and a license was issued pursuant thereto on July 17, 1985. In Section 4 of the initial license application, the question is asked "have you ever been arrested or convicted of a crime involving injury or harm to persons, or financial or business management (e.g., assault, battery, robbery, embezzlement or fraud)". Applicant Lorraine Cooney, answered "no" and marked the section seeking further information about such arrest or conviction: "N/A". In fact, applicant Cooney's 1986 renewal application filed June 7, 1986, indicates that she was convicted in March 5, 1985, in Federal Court of Income Tax Fraud. Specifically, a review of a letter from Ms. Cooney's U.S. Probation Officer, Terry M. Levix, indicates that Ms. Cooney pled guilty on January 4, 1985 to two counts of a two count indictment charging that she filed a fraudulent claim to the United States Treasury and was placed on two years probation effective February 5, 1985. Ms. Cooney did not contest the conviction of the fact that she was placed on probation. At hearing, applicant Cooney admitted the facts of the arrest and conviction but contested the revocation of her license based on her contention that she has operated the facility in accordance with all applicable standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner's appeal of the Department's revocation of her ACLF license be DENIED. RECOMMENDED this 20th day of June, 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 20th day of June, 1988. COPIES FURNISHED: Leonard T. Helfand, Esquire Department of HRS 5190 Northwest 167th Street Miami, Florida 33014 Joaquin J. Iglesias, Esquire 2001 Northwest 7th Street Suite 303 Miami, Florida 33125 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in the case is whether Albert E. and Renee Warner's application for an Airspace Obstruction Permit should be granted.
Findings Of Fact Charles W. Brammer owns the Tampa North Aero Park, Inc., which is a Florida-licensed public use landing strip surrounded by private home sites. The landing strip is located in Pasco County. Albert E. Warner and Renee Warner own a lot adjoining the Tampa North Aero Park, Inc. The Warners desire to construct and live in a single family home on the lot identified as Lot 123, Quail Hollow Village Subdivision. According to the Warners, the structure will be concrete block with a wood frame roof. The highest peak of the roof will be no more than 30 feet above ground level (98 feet above mean sea level.) Mr. Brammer is essentially concerned that his airport remain licensed for public use, and is wary of encroachments which may alter its licensing status in the future. The location of the proposed construction exceeds certain federally-established standards and triggers regulatory review of the Warner project. In November of 1995, the Warners began the process of obtaining the permits required for construction of the home at the airstrip. The evidence establishes that the Warners have been cooperative and forthcoming in their attempts to meet regulatory requirements related to their proposed construction. The Warners provided all information as requested by the Department. One of the requirements is that the Federal Aviation Administration (FAA) review the proposal and issue a "Determination of No Hazard to Air Navigation." On March 27, 1996, the FAA issued the "Determination of No Hazard to Air Navigation." The document states that an aeronautical study has been completed (study #96-ASO-286_OE) and identifies the location of the proposed residence as approximately 0.14 nautical miles northeast of the Tampa North Aero Park Airport. The FAA determination contained an incorrect latitude and longitude for the location of the proposed construction. The "Determination of No Hazard to Air Navigation" sets forth the factors considered by the FAA and concludes as follows: Therefore, it is determined that the proposed structure would have no substantial adverse effect on the safe and efficient utilization of the navigable airspace by aircraft or on the operation of air navigation facilities and would not be a hazard to air navigation. By letter of July 12, 1996, the Department issued notice of its intent to grant the Warner application for an Airspace Obstruction Permit. The letter states as follows: We have review results of the Federal Aviation Administration Aeronautical Study of your proposed construction. They have issued a determination your construction can be accommodated without a significant adverse impact on the safe and efficient use of navigable airspace for Tampa North Aero Park and is thus not a hazard to air navigation. We have been unable to identify any aviation activity not addressed by the Aeronautical Study that would necessitate altering flight operations to accommodate your proposed construction or be otherwise adversely impacted by its height at the location proposed.... The Department's permit contained the same incorrect latitude and longitude for the location of the proposed construction as had been set forth in the FAA determination. A condition of the permit requires the structure to be lighted with a red beacon and marked as an obstruction. At some point after issuing the initial determination, the FAA issued a correction to the determination. There is no date on the correction which identifies the date of issuance. Other than the location, the FAA's correction made no changes to the initial determination. The correction states as follows: This corrects a minor change in the latitude and longitude based on survey data provided regarding actual runway location and which moves proposal 2 feet closer to runway. Because this minor move will not change the results of the determination, a new circularization and determination was not considered necessary. All else remains same as on original determination. The Department has not issued a corrected notice of its intent to issue the Warner permit. Although the permit applicants have provided the information requested by the Department, the evidence fails to establish that the applicants have met the criteria set forth by statute for the issuance of an Airspace Obstruction Permit. The evidence fails to establish that the Department gave adequate consideration to the requirements of Section 333.025, Florida Statutes, in reviewing the permit application filed by the Warners.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order denying the Warner application for Airspace Obstruction Permit. RECOMMENDED this 4th day of March, 1997, in Tallahassee, Florida. _ WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 1997. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Charles W. Brammer, Pro Se Tampa North Aero Park 4241 Birdsong Avenue Tampa, Florida 33549 Albert E. Warner, Pro Se Post Office Box 7084 Wesley Chapel, Florida 33543 Francine M. Ffolkes, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact Based upon all of the evidence, the following findings are fact are determined: In this examination for licensure challenge, petitioner, Mason L. Flint, contends that he is entitled to a higher score on the March 1994 deputy pilot examination for the Port of Jacksonville. The examination is administered by the Department of Business and Professional Regulation (DBPR) on behalf of respondent, Board of Pilot Commissioners (Board). Although the original petition challenged the grade in twelve respects, petitioner now contends that only two items are in issue, item 21 relating to the local knowledge part of the examination, and item 270 relating to the aids to navigation part of the examination. Both are true-false questions. Unlike the more than fifty other professional licensure examinations administered by the DBPR, the seven-part pilot examination requires a candidate to achieve a minimum passing grade on each part, but candidates doing so then compete with each other for vacant positions. In other words, if only one position at a particular port is open, the candidate achieving the highest score above the minimum passing grade is the only candidate receiving a license. In this case, three deputy pilot positions were available at the Port of Jacksonville, and thus the candidates having the three highest scores among those exceeding the minimum passing grade would be given a license. Petitioner finished sixth on the original grading, but after having his examination regraded by the Board prior to hearing, he was ranked number four. By this challenge, he seeks to have his grade changed on items 21 and 270 so as to raise his ranking to number three. In order to preserve the confidentiality of Item 21 for future examinations, it is suffice to say that the item required a response of true or false concerning limitations on vessels leaving the Talleyrand Docks in Jacksonville, Florida. The examination answer key shows true as the correct response. In preparing all questions pertaining to local knowledge, including item 21, the Board's consultant used the U. S. Coast Pilot, a compilation of operational guidelines governing the movement of vessels in the St. Johns River (and Port of Jacksonville). The specific source of authority for item 21 was paragraph (16) on page 153 of the 1993 edition of the U. S. Coast Pilot. That paragraph reads in pertinent part as follows: (16) Outbound vessels: Vessels with a draft of over 23 (sic) feet sailing between Main Street Bridge to, and including, U. S. Gypsum Co. Pier, shall get underway after 1-1/2 hours after flood current with a cut off time at the beginning of ebb current . . . Because Talleyrand Docks lies between the Main Street Bridge and the U. S. Gypsum Company Pier, this paragraph has application to vessels leaving those docks. The 1993 version of the U. S. Coast Pilot contained a typographical error. Rather than "23" feet, the guidelines should have read "32" feet. To correct this error, paragraph (16) was revised in mid-March 1994, or the same month the examination was given, to provide that any vessel drawing more than 32 feet would be subject to the above movement restrictions. However, candidates were advised that only revisions to the U. S. Coast Pilot through January 1, 1994, would be included in the March 1994 examination. Besides the limitation described in paragraph (16), two other paragraphs on the same page of the U. S. Coast Pilot made reference to the correct 32 foot limitation. In addition, the Guidelines of Vessel Movements on St. Johns River, which form the basis for the data in the U. S. Coast Pilot, used the correct 32 foot limitation. Candidates familiar with those provisions should have been on notice that a typographical error existed in paragraph (16). Although the Board's suggested response is arguably correct, the more persuasive evidence shows that the statement in item 21 was confusing and unclear due to the typographical error in the U. S. Coast Pilot and the conflicting provisions on the same page of the source material. Thus, item 21 does not reliably measure the specified area of competency. Under these circumstances, a candidate should be given credit for either a true or false response, or alternatively, the question should be discarded in calculating a candidate's final score. Accordingly, petitioner's grade should be adjusted in this respect. Petitioner has also contended that only a false response is correct since the question implies that a restriction exists because of its use of the words "up to the beginning of ebb current." The evidence shows, however, that a candidate could reasonably reject that suggested implication and properly make a true response. Item 270 requires a true or false response to a statement regarding identifying marks or buoys marking a channel. The item identifies a set of conditions and then states that such a marking "could" properly be made. The examination answer key shows true as the correct response. The primary source of authority for item 270 is 33 CFR 62.43. According to that federal regulation, buoys marking the side of a channel (lateral aids) are always a solid color, and all solid color buoys marking a channel are numbered. The regulation goes on to provide that, in addition to a number, all solid color numbered buoys may also carry a letter suffix to aid in their identification, or to indicate their purpose. They cannot, however, be identified by letter only, but only by number and letter. Because the more credible and persuasive evidence shows that the question, as stated on the examination, clearly suggests that only a letter could be used for identification of a sidemark buoy, the correct response should be false. Therefore, petitioner should be given credit for his answer. The record is not altogether clear as to how changing petitioner's overall grade will impact his ranking. According to the DBPR psychometrician who is in charge of the pilot examination development, both petitioner and the third ranked candidate gave the same response on one of the challenged questions. On the other item, the two gave different responses, but if either response is deemed to be a correct response, it would have no bearing on their overall ranking. The pychometrician added that if an item is challenged and credit given to the protesting candidate, the answer key is changed and all candidates' scores are adjusted to reflect the change in the answer key.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Board regrading petitioner's examination consistent with the above findings and conclusions. DONE AND ENTERED this 18th day of January, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5327 Petitioner: 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4-5. Rejected as being unnecessary. 6-8. Partially accepted in finding of fact 2. Partially accepted in finding of fact 12. Rejected as being unnecessary. Partially accepted in finding of fact 2. Partially accepted in finding of fact 12. Partially accepted in finding of fact 3. 14-27. Partially accepted in findings of fact 3-8. 28-39. Partially accepted in findings of fact 9-11. Respondent: 1. Partially accepted in finding of fact 1. 2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 3. 4. Partially accepted in finding of fact 4. 5. Partially accepted in finding of fact 5. 6. Partially accepted in finding of fact 7. 7. Partially accepted in finding of fact 8. 8. Partially accepted in finding of fact 9. 9-11. Partially accepted in finding of fact 10. 12. Rejected. See finding of fact 11. Note: Where a proposed findings has been partially accepted, the remainder has been rejcted as being unnecessary, irrelevant, subordiante, not supported by the evidence, or cumulative. COPIES FURNISHED: Mason L. Flint 1605 Brookside Circle East Jacksonville, Florida 32207 Wellington H. Meffert, II, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Jack L. McRay, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Susan J. Foster, Executive Director Board of Pilot Commissioners 1940 North Monroe Street Tallahassee, FL 32399-0773
