The Issue The issue presented is whether Respondent, S.M.G., Inc. (SMG), has provided reasonable assurance that its existing air curtain incinerator will be operated in accordance with applicable statutory and rule provisions.
Findings Of Fact The Parties The Department is the state agency responsible for receiving applications for, and the issuance of, permits for the construction and operation of air curtain incinerators in the State of Florida. SMG is a contracting company, with residential, trucking, agricultural, and commercial driver's license divisions. SMG is the applicant for a permit to operate an air curtain incinerator. Petitioners reside in Citrus County, Florida, in the vicinity of the constructed and operational air curtain incinerator. For the most part, Petitioners reside northeast, east, or southeast of the site. The Petitioners demonstrated their standing in this proceeding. SMG's Construction Permit On May 23, 2001, SMG submitted an application for an air construction permit to the Department's Southwest District Office. The application sought authorization to construct an air curtain incinerator "[o]n the east or west side of 6844 N. Citrus Avenue, Crystal River," Citrus County, Florida. 1 The general purpose of pursuing this permit was to burn wood waste. On July 9, 2001, the Department issued SMG a Notice of Intent to Issue the Proposed Air Construction Permit (Permit No. 0170360-001-AC). A copy of the Notice of Intent was published in the Citrus Times in Citrus County on July 19, 2001. On August 6, 2001, the Department issued SMG an air construction permit for the proposed air curtain incinerator. The construction permit authorized the construction of a McPherson Systems, Inc. - Model M30E air curtain destructor (incinerator) with under fire air at a natural non-Title V facility. Pursuant to the terms of the construction permit, in November 2001, SMG constructed an air curtain incinerator on approximately 500 acres of land on the east side of State Route 495 north of Crystal River in Citrus County, Florida, on property owned by the Gerrits family. See Endnote 1. Pursuant to the construction permit, SMG installed a McPherson Systems, Inc. - Model M30E air curtain incinerator with under fire air, a refractory lined burning pit, three upper chamber refractory lined walls (ten feet high), and a stainless steel spark arrester screen. The manifold blower and under fire air fans are powered by an electric engine. The manufacture designs and specifications for the McPherson model were submitted with the application for the air construction permit and admitted in evidence. Construction of a portable air curtain incinerator with a blower/fan system powered by a diesel-fired engine was contemplated by the air construction permit. Although cheaper, SMG instead chose to install the McPherson model that would produce the cleanest burn, i.e., one with fewer emissions, that was operated by electricity. The McPherson model used by SMG is recognized as an efficient, reliable model of air curtain incinerator. The diesel-fired blower/fan/engine system contemplated by the construction permit is considered exempt from permitting. An engine operated by electricity has no emissions and therefore does not require an air permit from the Department. The Department could not require a permit for the blower/fan system alone. The operating permit supercedes the construction permit, except as amended. Testing after Construction of the Incinerator On November 23, 2001, SMG began operating the air curtain incinerator. Pursuant to Special Condition 22 of the air construction permit, an initial visible emissions (VE) (opacity test) compliance test was performed on November 23, 2001, by Bernard A. Ball, Jr., an environmental engineer with Southern Environmental Services, Inc. The results of the initial VE compliance test were within the opacity limits contained in the construction permit. Specific Condition 19 of the construction permit requires SMG to maintain daily operating logs of the air curtain incinerator's daily operations. In order to obtain an air operating permit, a permit applicant is required to demonstrate compliance with the Department's rules and with the conditions of the construction permit. The Department requires an applicant for an operating permit to submit copies of recent daily operating records for the facility and copies of the emissions test required by the construction permit. These operating records are submitted in order for the Department to determine whether the applicant is complying with the applicable emissions standards and that the applicant is, in fact, maintaining the required operating logs as required by the construction permit. In order for SMG to obtain the operating permit for the incinerator, Specific Condition 28 of the construction permit required SMG to file an application for an air operating permit with the Department within 45 days of testing and required the application to include a copy of the VE test report and copies of at least two recent weeks of daily operating logs. On March 14, 2002, a second VE test was conducted by Mr. Ball, which also indicated that emissions were within the construction permit's opacity limits. On April 1, 2002, SMG submitted its application for the air operation permit to the Department. The application was signed by Sean Gerrits, and contained copies of the VE test reports for the November 2001 and March 2002 tests, as well as three and one-half months of daily operating logs, certificates showing that the incinerator operators were trained, and photographs of the incinerator in operation. SMG submitted the documentation required under the construction permit. On April 19, 2002, Robert E. Soich, Jr., air compliance inspector for the Department's Southwest District Office, performed an unannounced inspection and conducted a VE test in response to a complaint by Mr. Leonard Kaplan (a Petitioner), complaining of odors present. Excessive visible emissions were observed by Mr. Soich on April 19, 2002. The incinerator did not pass the VE test because of the improper alignment of the blade angle on the manifold of the blower system and because of green leaves and inadequate drying of the materials to be burned in the incinerator. Mr. Soich also observed, in part, that "materials need to be prepared better for burning." As a result of this unannounced inspection and the negative VE test, the Department requested SMG to provide an explanation of the VE test results and of the type of changes SMG planned to implement to correct the problem. On learning of the problem, SMG shut down the incinerator and called a McPherson mechanical contractor to come out and adjust the blade angle. Southern Environmental Services conducted another VE test to ensure the problem had been corrected. On April 22, 2002, a VE test was conducted by Southern Environmental Services on-site which showed compliance with the construction permit. On April 30, 2002, SMG advised the Department that adjustments were made to the baffles to correct the angles. SMG provided the Department with the April 22, 2002, VE test results. SMG also implemented better operational procedures. On May 30, 2002, with Mr. Soich present, SMG, by Byron E. Nelson, performed another VE test. The test results showed compliance with the opacity limits in the construction permit and the results were submitted to the Department.2 Mr. Nelson, an environmental engineer with Southern Environmental Sciences, testified that he has been involved in preparing approximately two dozen applications for air curtain incinerators and has conducted probably "thousands" of visible emissions tests. Mr. Nelson is certified by the State of Florida to conduct VE tests. He has seen "two or three dozen" air curtain incinerators in operation and has conducted VE tests on about 20 of them. Based on his experience, Mr. Nelson testified that SMG employed the same practices and controls to control odor, smoke, and fugitive emissions as other such incinerators he is familiar with. He testified that the amount of smoke and odors from the SMG incinerator is similar to that emitted from other air curtain incinerators, and that the fugitive emissions from the SMG incinerator were probably less than others he is familiar with. Based on his experience, Mr. Nelson opined that SMG has taken reasonable measures to minimize odor, smoke and dust/particulates from the operation of the incinerator. Mr. Nelson likewise opined that the SMG incinerator is well run, perhaps better run than other incinerators. (Mr. Nelson had been on the SMG site twice when the incinerator was operating and burning wood products.) Based on his experience, Mr. Nelson opined that SMG meets the requirements necessary to obtain an air operating permit from the Department and has demonstrated that it has complied with the conditions of its construction permit. Mr. Soich is the air compliance inspector for the Department's Southwest District Office. He testified that he has inspected the operations of other air curtain incinerators over the last 15 years. Mr. Soich testified that SMG is one of the "better operators" of air curtain incinerators he is familiar with. (Mr. Soich visited the SMG site approximately nine times from March 13, 2002, to October 15, 2002.) Mr. McDonald is the Air Permitting Engineer for the Southwest District Office of the Department. He is responsible for reviewing all applications for air curtain incinerators in the Southwest District and has reviewed applications for between 25 and 30 incinerators. Mr. McDonald reviewed the SMG permit applications. Based on the latest VE test results, copies of the records attached to the operating permit application, and his experience, Mr. McDonald, for the Department, determined that SMG had demonstrated compliance with the conditions of the construction permit and recommended issuance of the operating permit for the incinerator. He maintained the same position at hearing. SMG provided assurance that the DeRosa Fire Department would respond in the event of a fire at the incinerator. On June 19, 2002, the Department issued the proposed air operating permit. Operation of the Air Curtain Incinerator Emissions from the incinerator are controlled by a curtain of forced air at a very high static pressure over and around the burning pit. The air curtain traps smoke and small particles and recirculates them to enhance combustion and reduce smoke. The underfire air introduces air underneath the air curtain to ensure complete combustion and minimize opacity at start-up. The refractory-tiled ceramic concrete burn pit provides a safe combustion chamber, and the refractory panels keep excess heat from escaping. The upper chamber refractory panels, which surround three sides of the burn pit, allow more retention time in the burner to better control opacity and sparks. The stainless screen spark arrestor also controls sparks and debris from leaving the burner. The operating permit application proposed the use of an air curtain blower along with a manifold to provide forced air to the burning pit. According to the manufacturer specifications, the blower can force air into the pit at velocities of between 100 and 120 mph. This ensures that the flames in the burn pit receive enough oxygen to combust completely. The air circulates inside the burn pit to ensure a complete burn, which reduces smoke and odor. The combustion temperature for the burning pit ranges from approximately 1,800 to 2,500 degrees Fahrenheit. The operating permit allows a maximum charging rate of ten tons per hour on a daily average basis and 31,200 tons per any consecutive 12 month period. The incinerator has been operating below the maximum charging rate. The operating permit limits the hours of operation (charging) to 3,120 hours per year, i.e., ten hours/day, six days/week, 52 weeks/year. According to various SMG operating and maintenance logs, the incinerator has been operated below this limit. The operating permit, in accordance with Rule 62- 296.401(7), Florida Administrative Code, allows the burning of only wood waste, yard waste, and clean lumber, and prohibits the burning/incineration of materials such as sawdust, paper, trash, tires, garbage, rubber material, plastics, liquid wastes, Bunker C residual oil, roofing materials, tar, asphalt, railroad cross ties, or other creosoted lumber, chemically treated or painted wood, and other similar materials. Biological waste shall not be burned in the incinerator. During its operation, the incinerator only burned wood and yard waste, and Mr. Gerrits testified that the waste materials are inspected before being burned in order to ensure that no prohibited materials are burned. If any non-authorized materials are observed, they are removed before the waste is burned. See Finding of Fact 24. The operating permit allows visible emissions during start-up periods (not to exceed the first 30 minutes of operation) of an opacity up to 35 percent, averaged over a six- minute period, as provided for in Rule 62-296.401(7)(a)-(b), Florida Administrative Code. The McPherson model is designed to meet the requirements of the above-referenced rule, and the VE tests run during start-up periods (except one performed by Mr. Soich on April 19, 2002) demonstrated compliance with this requirement. Id. The operating permit limits visible emissions outside of start-up periods (the first 30 minutes of daily operation) to no more that five percent opacity, with visible emissions of up to ten percent opacity allowed up to three minutes in any one hour as provided for in Rule 62-296.401(7)(a), Florida Administrative Code, and 40 Code of Federal Regulations Part 60, Subpart CCCC, adopted and incorporated by reference in Rule 62- 204.800(8)(b)74, Florida Administrative Code. (Rule 62- 296.401(7)(a) permits up to 20 percent opacity. The ten percent rate is required by the new federal standard. See SMG Exhibit 13, page 3 of 9.) The opacity limits in the operating permit are more stringent than those contained in the construction permit, which allows visible emissions of up to 20 percent opacity up to three minutes in any one-hour period. (By definition, a "visible emission" is "[a]n emission greater than 5 percent opacity or 1/4 Ringelmann measured by standard methods." Rule 62-296.200(278), Florida Administrative Code.) The VE test results submitted by SMG demonstrate compliance with the opacity limits in the operating permit and with the opacity limits in the construction permit for the days tested. See Findings of Fact 18, 22, 27, and 29. The operating permit requires that the incinerator must be attended at all times while materials are being burned and that public access to the incinerator must be restricted. A certified operator is in attendance whenever the incinerator is operated, i.e., when something is burning in the incinerator. A fence has been constructed around the property. The operating permit prohibits starting the incinerator before sunrise and requires that all charging of the incinerator be completely stopped before sunset as required by Rule 62- 296.401(7)(h), Florida Administrative Code. Mr. Gerrits testified that the incinerator is never started before sunrise and is typically started after 8:00 a.m. Mr. Gerrits testified that the incinerator is never charged after sunset and that charging typically stops at 4:00 or 5:00 p.m. See Endnote 4. These practices are consistent with the Operations and Maintenance Guide for the incinerator. The operating permit limits the height of the ash in the burning pit to one-third of the depth of the pit or to a point where the ash begins to impede combustion, whichever occurs first as provided in Rule 62-296.401(7)(m), Florida Administrative Code. The one-third depth line is marked on the outside of the incinerator. Mr. Gerrits testified that ash is regularly removed from the burning pit every third day to keep the ash level low, which helps ensure better combustion and reduces smoke. The operating permit provides that material shall not be loaded into the incinerator in such a way that it will protrude above the air curtain. Testimony established that the SMG incinerator is properly loaded. The operating permit requires that all operators of the incinerator be trained in the proper operation and maintenance of the incinerator and that an operations and maintenance guide be maintained at the facility at all times. All of the operators of the SMG incinerator have taken a four-hour training course to learn how to operate the incinerator in accordance with Department regulations and good operating practices, and certificates attesting to that training were submitted with the application for the operating permit. An Operations and Maintenance Guide was submitted with the application for the construction permit. The operating permit requires the maintenance of a daily operating log. The daily operating log must be maintained at the facility for at least five years and must be available for inspection by the Department upon request. SMG currently maintains a daily operating log that meets the requirements of the construction permit. SMG submits those daily logs to the Department on a monthly basis after the Department requested that SMG do so. The log includes a date and site location, daily operating hours, total charges, total material charged in tons, average hourly charging rate, any maintenance performed, fuel usage in gallons, and the operator's signature. The logs of record contain this information and have been initialed by SMG's operator for each day when the incinerator has been operated. SMG operators responsible for preparing the logs have no incentive to indicate the incinerator is not operating on days or during hours when it is running, as a deliberate misstatement on the operating logs could result in enforcement action by the Department and being fired by SMG. The operating permit requires that all reasonable precautions be undertaken to prevent and control the generation of unconfined emissions of particulate matter in accordance with Rule 62-296.320(4)(c), Florida Administrative Code. SMG takes reasonable precautions to prevent and control the generation of unconfined emissions of particulate matter, including paving the road that leads to the incinerator to reduce dust, wetting the ashes removed from the burn pit, wetting the ash piles and ramp that addresses the incinerator, approaching the incinerator at a slow rate, and placing a charge into the incinerator slowly and carefully. SMG voluntarily added a sprinkler system on all four corners of the burning pit that was not contemplated by the construction permit. The Department witness Mr. McDonald testified that this provided an additional method to control unconfined emissions. Although the construction permit and proposed permit do not contain conditions prohibiting the burning of green wood or wet wood waste, SMG takes precautions at the request of Mr. Soich to ensure that the wood is properly dried before being burned. See Finding of Fact 24. This helps to reduce smoke and emissions from the incinerator. (Moisture is the primary factor that inhibits burning and causes smoke and potentially odor.) As part of the routine practice in handling the wood waste before it is burned, trucks bringing wood waste to the incinerator are instructed to dump it into a pile. SMG operators then use a loader to flatten out the pile and remove dirt, prohibited materials, and harvestable pieces of wood. Harvestable pieces of wood and dirt are removed to separate staging areas. The remaining wood waste is separated into long windrows, with the oldest row closest to the incinerator. The windrows are flipped or rolled over in the direction of the incinerator, allowing the waste to dry. The waste in the row closest to the incinerator is burned, and subsequent windrows are rolled over in its place. Ash is generally removed from the burn pit every third day; it is wetted on removal to reduce dust, and the ash piles adjacent to the incinerator are also kept wetted by the sprinkler system. The ash is eventually mixed with the dirt in a composter for use as Class-A unrestricted compost. The SMG operator in charge on a particular day decides whether the incinerator will operate that day, in accordance with standard operational practices. The operator checks the weather forecast. If it is raining or if there are high winds (over 20 miles per hour), the incinerator will not be operated that day, and SMG typically waits four days after a rain to begin operating the incinerator again. These procedures are not contained in any permit conditions. The purpose of not operating during or immediately after a rain and taking steps to ensure the wood is dry is to reduce smoke; wet wood smokes more. Rainy weather can also affect odor. The purpose of not operating during windy conditions is to reduce the possibility of fire on SMG's property, but wind can also affect odor and visible emissions. On days when the incinerator is not operating, SMG conducts yard maintenance, maintains the waste windrows, and runs the composter. The composter is a source of noise and is located adjacent to the incinerator and is run when the incinerator is shut down. To ensure that the visible emission limitations are not exceeded and objectionable odors3 not generated, the operating permit requires that the incinerator's fan shall continue to operate after the last charge of the day until all combustion (presence of any flame or smoke) has ceased. Generally, the incinerator keeps burning an hour to an hour and one-half. Mr. Gerrits testified that the fan is kept running until the flames and smoke die out and that a certified operator is present until the fan is switched off. The operating permit requires that the testing of visible emissions must be conducted within 90-100 percent of the maximum allowable charging rate of 10 tons/hour and shall be conducted when the highest emissions can reasonable be expected to occur.4 Testing of the SMG incinerator was conducted at within 90-100 percent of the maximum allowable charging rate of 10 tons per hour, and the May 30, 2002, test results indicated that the incinerator was operating within the opacity limits of its permit even when operating at close to maximum capacity. Evidence established that the May 30, 2002, VE test complied with the specific conditions of both the construction and operating permit. See Finding of Fact 29. The test method for visible emissions required by both the construction permit and the operating permit is EPA Method 9, adopted and incorporated by reference at Rule 62- 204.800(8)(b)74, Florida Administrative Code. (Method 22 is not required pursuant to Department rules for compliance testing of an air curtain incinerator.) Testimony established that Method 9 was the method used for the VE tests conducted on the SMG incinerator. As required by both the construction and operating permits, the incinerator is located in excess of 300 feet from any pre-existing occupied building located off site as required by Rule 62-296.401(7)(j), Florida Administrative Code. The closest residences, that of Mr. Gerrits' father and his tenant, are approximately 1,500 feet away. Petitioners' Challenge For the most part, Petitioners reside northeast, east, or southeast of the incinerator. One Petitioner resides approximately three-tenths of a mile southeast of the incinerator; others reside at greater distances, up to approximately a mile and one-half away from the incinerator. Each of the Petitioners who testified have resided in this area for many years, pre-dating the operation of the incinerator. The Petitioners who testified were credible and well- intentioned. Each of these Petitioners maintained daily logs covering several months when the incinerator was authorized to operate. Some kept logs for several months, while others kept logs for several days. They noted their observations and perceptions in the logs. Admittedly, Petitioners are not experts in the detection of odors or noise levels. Nevertheless, they recorded their own experiences as to what they saw, heard, and/or smelled, believing that the odors and noise came from the incinerator. Some recorded that they smelled the strong odor of smoke, an "acrid smell," a "pungent smell," for example; "it makes your eyes burn and throat burn" said another during the hearing. One witness described the experience as being a prisoner in his house. Another does not go outside when the smell is bad. Generally, the level of odor varied with the weather conditions, i.e., a stronger odor was noticed on foggy and wet days or nights and when the wind blows from the west, which Petitioners contend is the prevailing wind. Some witnesses only smelled the odor during the night and not during the day, and not all of the time. Some complained about the odor and noise, or one and not the other. Some believed the noise coming from the incinerator was a major problem. At least two witnesses who live approximately three-tenths of a mile and 3,500 feet, respectively, from the incinerator site, described the noise as being like a jet airplane. One witness shuts her windows to keep out the noise. (SMG also operates a "wood chipper" or "composter" on site which is loud. Mr. Gerrits stated that he did not think the sound was the same as made by the incinerator fan. He also stated that "[i]t doesn't exceed the noise decibels. It doesn't exceed background noise levels at [their] property line.") Petitioners documented their concerns which are described, in part, above, and also documented their complaints to the Department and local government. It appears that each of the logs prepared by the Petitioners (who kept logs) were given to Petitioner Martha Futscher, who summarized and compiled a hand-written master list of the complaints. Then, Mr. Harvey inputted this data on the master list (spread sheet) of complaints, which appears as Petitioners' Exhibit F1. The master list contains recorded observations from May 2002 through January 2003. The master list contains a representation of when the incinerator started and stopped for various days and when it was operational or not, and this information was derived, according to Mr. Harvey, from the logs maintained by SMG. The master list also provides tons per hour of waste burned on particular days, the observer's initials, and the approximate distance each observer lived from the incinerator, and the comments, with time of observation or perception noted. There are discrepancies between the master list and the actual logs maintained by SMG as to when the incinerator was operational. There also appears to be several differences in observations between the Petitioners' master list and other evidence which indicates when Mr. Soich inspected the incinerator and determined that the incinerator was operating satisfactorily. Compare Petitioners' Exhibit 2 with Petitioners' Exhibit F1. For example, the master list records an observation from May 30, 2002, when the incinerator was operating, when there was noise and smoke noted at 8:00 a.m., and flames at the incinerator and odor at 5:30 p.m. Conversely, Mr. Soich was on-site on May 30, 2002, and observed the scheduled VE test. No problems were noted with the operation on this date by Mr. Soich. Mr. Soich also noted that "wood waste was properly dry and free of debris." The VE test on May 30, 2002, was performed from 10:29 a.m. to 11:59 a.m. and showed compliance with opacity limits. The master list indicates that black smoke was observed (no time given) on May 7, 2002, when the incinerator was operational, yet Mr. Soich inspected the incinerator on that day and there is a notation in the record that the incinerator was operating between 0-5 percent visible emissions. (Mr. Soich opined that it should be very rare to smell objectionable odors if the visible emissions run at a 5 percent level.) For October 15, 2002, there is a notation in the master list that a Petitioner commented that the incinerator was running during the day ("AM/PM Running") and that there was a strong smell at approximately 7:05 p.m. A strong smell at the person's house was also noted at approximately 9:30 p.m. on that day. However, Mr. Soich performed an annual inspection of the incinerator on October 15, 2002, and there is a notation on the master list, Petitioners' Exhibit 2, that the incinerator was not operating due to recent rain. As one Petitioner testified, her point was that the inspectors are not there when she hears the noise, sees smoke, and smells the odor. Mr. Soich confirmed that he does not inspect the facility in the evening. Petitioners also provided, as evidence in support of their position, six videotapes of the incinerator for September 19, October 3, October 23, November 25 (2 tapes), 2002, and January 10, 2003. (Mr. Harvey took the videotapes from the same location, across the street and west of the incinerator.) Each tape, except for September 19, 2002, showed smoke emanating from the operational incinerator. On September 19, 2002, the incinerator was not running according to the SMG log. There was a malfunction which was reported to the Department. The SMG log indicates that the pit was cleaned out, site cleared and rows moved. There is also a notation in the SMG log for this date that there was a power failure/malfunction at the incinerator at 9:00 a.m., and that the power was out. According to Mr. Gerrits, the malfunction caused smoke. (One Petitioner observed smoke from ashes on September 19, 2002.) While the Petitioners proved that there was smoke emanating from the operation of the incinerator on the days which were videotaped, with the exception of September 19, 2002, this did not necessarily prove that the emissions exceeded the requirements of the Department rules or that there was an objectionable odor emanating therefrom. Mr. Stoich observed the videotapes played during the hearing. In particular, with respect to the January 10, 2003, videotape, Petitioners' Exhibit 12, Mr. Stoich stated that a level of opacity cannot be determined from photographs and videotapes. He also noted that there was "a lot of white smoke," an atypical situation according to him, emanating from the incinerator and that he, as a compliance inspector, would have investigated further and performed an inspection, including a VE test, to determine if there was a violation, had he seen this smoke. However, he stated that without actually seeing the operation, he could not determine whether a violation had occurred. There was persuasive evidence that compliance with the opacity limits of a permit can only be determined through VE tests conducted using the Department-approved EPA Method 9. The VE test takes into account wind, the angle of the plume, the position of the sun, and other factors, and must use appropriate averaging to ensure that the test is valid. A smoke plume can look quite dense at the wrong angle or if the light is reflecting off the plume in a certain way, when in fact it is in compliance with Department rules. The VE tests for the incinerator have, with one exception, see Finding of Fact 24, demonstrated compliance with the opacity limits in the construction permit. As noted herein, upon receipt of notice that one VE test failed, SMG implemented corrective actions, and two VE tests conducted after the time showed the incinerator was operating in compliance with the opacity limits of the permit. See Findings of Fact 27 and 29. The Department relies on its compliance inspectors, such as Mr. Soich, to make a determination of whether an air emission source is causing an objectionable odor. There does not appear to be an approved Department method for measuring odors from incinerators. (Mr. Nelson stated that odors are difficult to test and that "odor is done collecting samples." No samples were taken or analyzed.) On the other hand, Mr. Soich testified that, based on his years of experience, he has developed certain methods for determining whether a facility is emitting an objectionable odor under the rules. If he receives an odor complaint, which he has in this case, he goes to the site and checks the prevailing winds. He also travels around the facility to determine the source of the odor. An odor can be deemed objectionable if it is very strong and overpowering, such that he cannot stay on- site and breathe in the odors. An odor can also be deemed objectionable if, after being on-site for some extended period of time, he begins to develop symptoms such as runny eyes, a scratchy throat, or a headache as a result of the smell. Finally, he may bring along another Department employee to determine whether the other individual finds the odor objectionable. Enforcement actions can be taken if objectionable odors are detected. Mr. Soich testified that he has inspected the incinerator at least nine times in the past year and never detected an objectionable odor. On some of the visits, the incinerator was not operational. On rebuttal, several residents of the area testified that they had not experienced objectionable odors from the incinerator. David Stevens, the Chief of the DeRosa County Fire Department, testified that an open land-clearing burn emits black smoke, more so than he observed from the incinerator. This fire department only had to respond to false alarms at the incinerator. Mr. Stevens personally inspected the operation of the incinerator and thought it was a very safe operation. Randy Morgan, a wildlife firefighter and certified burner with the Division of Forestry with over 16 years of experience in fire control, testified that approximately 50,000 acres of the state land burns occurred in Citrus County last year. These land burns can be a significant source of smoke and odor. In addition, approximately 50 open burn authorizations are issued each day. He also testified that controlled burns of approximately 15 fires of approximately 50 to 2,000 acres a day occurred in 2002 in proximity of the SMG incinerator which is a source of smoke and odor. The state also conducts open burns of some kind approximately ten months out of the year. Other witnesses testified that, given the rural nature of the community, open burning of trash, wood, and leaves occurs on a regular basis. Ultimate Findings of Fact Credible evidence established that SMG meets or exceeds the requirements in the construction permit to reduce smoke, dust, and odor, and these requirements are carried over to the operating permit. Credible evidence established that SMG employs the same, if not better, practices and permit conditions to control smoke, dust, and odor as other air curtain incinerators in the state. Credible evidence established that the SMG incinerator is operated in accordance with its construction permit. Credible evidence established that the SMG incinerator can be expected to be operated in accordance with its operating permit. Credible evidence established that the SMG incinerator is operated in accordance with Department rules. In light of the foregoing, SMG has demonstrated reasonable assurance that its air curtain incinerator has been operated in compliance with the construction permit and that the incinerator can continue to be operated in accordance with the conditions of the operating permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting SMG's application and issuing Permit No. 0170360-002-AO, as amended, and subject to all conditions, including but not limited to the Specific Conditions set forth in the Department's Notice of Intent to Issue, for the operation of an air curtain incinerator in Citrus County, Florida. It is further recommended that Petitioners' challenge to the amendment to the operating permit be dismissed. See Preliminary Statement. DONE AND ENTERED this 21st day of April, 2003, in Tallahassee, Leon County, Florida.5 CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 2003.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to this proceeding, the Department was the state agency responsible for receiving applications for, and issuance of, permits for the construction of air curtain incinerators in the State of Florida. Respondent Daughtrey, the applicant for a permit for the construction of an air curtain incinerator, is a corporation authorized to do business in the State of Florida and is located at 6816 Southwest County Road (C.R.) 769, Arcadia, DeSoto County, Florida. The property upon which the proposed air curtain incinerator would be placed is located approximately two miles north of the intersection of C.R. 761 and C.R. 769, southwest of Arcadia, DeSoto County, Florida and is owned by Harry and Hilda Johnson. On January 24, 1994, Daughtrey submitted a permit application to the Department's Southwest District Office for a permit to construct an air curtain incinerator (incinerator) in DeSoto County, Florida. On February 22, 1994, August 9, 1994, and September 8, 1994, the Department requested additional information from Daughtrey concerning the application. On July 13, 1994, August 16, 1994, and September 30, 1994, Daughtrey furnished the Department the requested information. The application was considered complete on September 30, 1994. On November 2, 1994, after Daughtrey had complied with the several requests for additional information, the Department issued an Intent To Issue Permit No. AC14-244330 to Daughtrey for the construction of an incinerator in DeSoto County, Florida. On November 18, 1994, Petitioners filed a Petition For Formal Administrative Hearing with the Department challenging the Department's Intent To Issue Permit No. AC14-244330 to Daughtrey for the construction of an incinerator in DeSoto County, Florida. On July 6, 1995, the Department issued an amended Intent To Issue Permit No. AC14-244330 to Daughtrey for the construction of an incinerator in DeSoto County, Florida. The amendment was necessary to change the name of the manufacturer of the incinerator. The proposed permit would authorize the construction of an incinerator with a clay strata burning pit having dimensions 10 feet wide x 11 feet deep x 35 feet long. The dimensions of the clay strata burning pit are in accordance with Rule 62-296.401(6)(d), Florida Administrative Code. Emissions from the incinerator are controlled by a curtain of forced air at a very high static pressure over and around the burning pit. The permit application proposed the use of an air curtain blower along with a manifold to provide forced air to the burning pit. The combustion temperature range for the burning pit ranges from approximately 2,000 to 2,800 degrees Fahrenheit. As requested by Daughtrey, the proposed permit would allow a maximum charging rate of 4.5 tons per hour on a daily average which, based on the proposed 8 hours of operation per day, would equal a burning rate of 36 tons per day and would not exceed the tons per day burning rate authorized under Rule 62- 296.401(6)(i), Florida Administrative Code. As requested by Daughtrey, the proposed permit limits the hours of operation to 1,088 hours per year. The proposed permit, in accordance with Rule 62-296.401(6)(e), Florida Administrative Code, would allow the burning of only wood products consisting of trees, logs, large brush, stumps relatively free of soil, unbagged leaves and yard trash, tree surgeon debris, and clean dry lumber such as pallets. Daughtrey proposes the burning of only wood products as set out in the above-referenced rule and proposed permit. The proposed permit, in accordance with Rule 62-296.401(6)(f), Florida Administrative Code, expressly prohibits the incineration of materials such as sawdust, paper, trash, tires, garbage, plastics, liquid wastes, chemically treated or painted wood, and other similar materials. Daughtrey does not propose the burning of any of the materials set out in the above-referenced rule or the proposed permit. The proposed permit allows the use of virgin oil, natural gas or liquefied petroleum gas to start the fire as provided for in Rule 62- 296.401(6)(g), Florida Administrative Code. Daughtrey proposes the use of diesel fuel (considered by the Department to be a virgin oil) to start the fire. The proposed permit allows visible emissions during start-up periods (not to exceed the first thirty minutes of operation) of an opacity up to 35 percent averaged over a six minute period as provided for in Rule 62- 296.401(6)(b), Florida Administrative Code. The proposed incinerator is designed to meet the requirements of the above-referenced rule and Daughtrey proposes to meet the emission requirements of the above-referenced rule during start-up periods. The proposed permit limits visible emissions outside of start-up periods to no more that five percent opacity, with visible emissions of up to 20 percent opacity allowed up to three minutes in any one hour as provided for in Rule 62-296.401(6)(a), Florida Administrative Code. The proposed incinerator is designed to meet the requirements of the above-referenced rule and Daughtrey proposes to meet the visible emissions requirements outside of start-up periods as provided in the above-referenced rule. The proposed permit prohibits starting the incinerator before sunr ise and requires that all charging of the incinerator be completely stopped before sunset as required by Rule 62-296-401(6)(h), Florida Administrative Code. Since Daughtrey proposes an eight-hour day operation, Daughtery proposes charging the incinerator after sunrise and to completely stop charging the incinerator before sunset. The proposed permit limits the height of the ash in burning pit to one-third of the depth of the pit or to a point where the ash begins to impede combustion, whichever occurs first as provided in Rule 62-296.401(6)(m), Florida Administrative Code. Daughtrey proposes to remove the ash when it reaches one- third the height of the burning pit or when it reaches a point where the ash begins to impede combustion in accordance with the above-referenced rule. Furthermore, Daughtrey proposes, in accordance with Rule 62-296.401(6)(l), Florida Administrative Code, not to allow the material loaded into the incinerator to protrude above the air curtain. The proposed permit requires the maintenance of a operating log which must contain the following information: total charges total materials charged (tons) daily operating hours (start and stop times) a calendar year cumulative total for hours of operation (recorded on monthly basis) daily average hourly charging rate type of maintenance performed comments and operator's signature The daily operating log shall be maintained at the facility for at least two years and must be available for inspection by the Department at all times. Daughtrey proposes maintaining an operating log in accordance with the above- referenced rule and proposed permit. The proposed permit requires that all reasonable precautions be undertaken to prevent and control the generation of unconfined emissions of particulate matter in accordance with Rule 62-296.310(3), Florida Administrative Code. These precautions include requirements that: (a) ash must be wetted with water prior to removal; (b) a front-end loader must be utilized to remove ash from the bottom of the pit; and (c) water be applied as necessary to the plant grounds. Daughtrey proposes to take all reasonable precautions to prevent and control the generation of unconfined emissions of particulate matter as set out above. To ensure that the visible emission limitations are not exceeded and objectionable odors not generated, the proposed permit requires that the incinerator's fan shall continue to operate after the last charge of the day until all combustion (presence of any flame or smoke) has ceased. Daughtrey proposes to continue the operation of the incinerator's fan in accordance with the above-referenced rule and proposed permit. The proposed permit, in accordance with Rules 62-297.340(1)(a) and 62- 297.570(2), Florida Administrative Code, requires that the incinerator shall be tested for visible emissions within 30 days after the date the incinerator is placed into operation and that the test report shall be submitted within 45 days of testing to the Department's Southwest District Office in conjunction with an operating permit application. The proposed permit requires that the testing of visible emissions must be conducted within 90-100 percent of the maximum allowable charging rate of 4.5 tons/hour and such testing of emissions must be accomplished when the incinerator is charged with a mixture of materials as listed in Specific Condition 8 of the proposed permit. The proposed permit provides that the visible emission test report shall include the charging rate, a description of the materials burned, starter fuel used and a copy of the daily operating log for the test day. The application included an emission factor of 13 pounds per ton for uncontrolled emissions of particulate matter for a total of 58.5 pounds per hour of particulate matter per hour using the permitted charging rate of 4.5 tons per hour and 2 pounds per ton for controlled emissions of particulate matter for a total of 9.0 pounds per hour of particulate matter using the permitted charging rate of 4.5 tons per hour. The Department estimated the emissions at approximately 9 pounds per hour of particulate matter. The estimated emissions of 9.0 pounds per hour of particulate comes within the emissions limits set forth in Rule 62-296.310(1)(b), Florida Administrative Code. The incinerator is located in excess of 300 feet from any preexisting occupied building located off site as required by Rule 62-296.401(6)(j), Florida Administrative Code. The incinerator will not have a control gate or check-in station but, in accordance with Rule 62-296.401(6)(k), Florida Administrative Code, will not be operated within 1000 feet of any active portion of a landfill. The proposed permit provides that, in accordance with Rule 62- 296.401(1)(b), Florida Administrative Code, no objectionable odor will be allowed. Daughtrey's proposed operation of the incinerator is designed to prevent objectionable odors. Upon being removed from the burning pit, the ash generated by the project will be placed in a holding area close to the burning pit, covered with soil. Subsequently, the ash and soil will be mixed and spread over the Johnsons' property. There is no well on the property. Water to be used in the operation (wetting ashes and fire prevention) will be supplied using a 3,000 gallon water tank furnished by Daughtrey. Daughtrey has furnished a Fire Prevention Plan. There was no evidence to show that the project would result in any type of water pollution. The permit application included the manufacturer's plans and specifications for the manifold and burner fan. The permit application included design drawings and specifications for the burning pit as prepared by the Daughtrey's registered professional engineer. There is sufficient evidence to show that Daughtrey has provided the Department with reasonable assurance that the proposed project will comply with the appropriate provisions of Chapters 62-4 and 62-200 through 62-297, Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a final order granting Daughtrey's application and issue Permit No. AC14-244330, subject to all conditions, including but not limited to the specific conditions, set forth in the Intent To Issue, for the construction of an air curtain incinerator to be located approximately two miles north of the intersection of C.R. 761 and C.R. 769, southwest of Arcadia, DeSoto County, Florida RECOMMENDED this day 29th of December, 1995, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1995. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 94-6934 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Department and Petitioners in this case. Proposed Findings of Fact of Petitioners Sue Ann Eagleton's and Susie Hayden. Proposed findings of fact 1, 2, 6, 10, 28-32, 34-37, and 42-48 are neither relevant nor material to this proceeding. Proposed findings of fact 3-5, 7-9, 11-18, 49 and 50 are not supported by evidence in the record. Proposed findings of fact 19-27 are adopted in substance as modified in Finding of Fact 14, otherwise these proposed findings are not supported by evidence in the record. Proposed findings of fact 33 and 38-41 are adopted in substance as modified in Findings of Fact 8, and 31, respectively. Proposed Findings of Fact of Petitioners DeSoto Citizens Against Pollution, Inc., Barbara Buck, Alan Behrens, John Marin and Pat Marin. Proposed findings of fact 1, is adopted in substance as modified in Finding of Fact 31. Proposed findings of fact 2-4, 8-10, 12-13, 15-20 and 22-28 are neither relevant nor material to this proceeding. Proposed findings of fact 5-7, and 11 are not supported by evidence in the record and additionally, are neither relevant nor material to this proceeding. Proposed findings of fact 14 and 21 are not supported by evidence in the record. Proposed Findings of Fact of Respondent Department. 1. Proposed findings of fact 1 through 35 are adopted in substance as modified in Findings of Fact 1 through 37 of the Recommended Order. Respondent Daughtrey elected not to file any Proposed Findings of Fact. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Blvd. Tallahassee, Florida 32399-3000 Kenneth Plante, Esquire Department of Environmental Protection Douglas Building 3900 Commonwealth Blvd. Tallahassee, Florida 32399-3000 W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Blvd. Sarasota, Florida 32399-3000 Diane Daughtrey Qualified Representative c/o Dwight Daughtrey Construction, Inc. 6816 SW C.R. 769 Arcadia, Florida 33821 William Mulloy, Esquire 7025 Manasota Key Road Englewood, Florida 34223 Alan Behrens Qualified Representative 4070 Armadillo Trail Arcadia, Florida 33821
Findings Of Fact On June 8, 1995, Respondent Construction Burning, Inc. (Applicant) filed an application with Respondent Department of Environmental Protection (DEP) for the construction of a McPherson Systems, Inc. Model M40B Air Curtain Incinerator with a Model M16ACD Blower (Model 40). The application states that Applicant would use the Model 40 air curtain incinerator (ACI) "to combust and destroy landscape debris such as leaves, limbs, trunks, tree clippings, brush, pallets and clean wood that [Applicant] accepts from outside landscaping contractors." An ACI encloses a fire with four walls. The operator adds combustible material to the fire from an open top. The air curtain is an air stream generated by blowers directed over the fire. The air curtain helps the fire maintain the high temperatures required for effective combustion. The air curtain also creates a barrier to trap materials in the incinerator until more completely burned. In these ways, the ACI reduces emissions from the incinerator Petitioner proposes in the application the construction of a refractory walled burning pit 40 feet long, 12 feet wide, and 15 feet deep with blowers above and beneath the fire. The blower beneath the fire would help maintain high temperatures in the fire. The Model 40 ACI that is the subject of the application adds three ten-foot upper chamber walls, which assist in maintaining the integrity of the air curtain above the fire. The Model 40 ACI also features a fine-meshed cage to trap particulates and ash. The application states that the Model 40 ACI would reach temperatures from 2000 to 2500 degrees Fahrenheit and would have a maximum incineration rate of 25 tons per hour of clean landclearing or landscaping debris, producing 1000 pounds per hour of sanitary ash. The application requests a permit to operate the Model 40 ACI 9.5 hours daily, five days a week. The application assures that, in terms of visible emissions, the Model 40 ACI would generate only 5 percent opacity, except for 35 percent opacity in the 30-minute startup period. On August 31, 1995, DEP issued its Intent to Issue. The permit notes that this is the second ACI at the site. Specific Condition 4 prohibits the facility from storing more combustible material than can be burned in 30 days during normal operating hours. If either unit becomes inoperative, Specific Condition 4 requires that the facility stop accepting material after it reaches 6000 tons onsite, until the onsite material is reduced to less than 5600 tons. Specific Condition 9 requires that Applicant discontinue use of the Model 40 ACI anytime that it is performing inadequately due to overloading, neglect, or other reasons. Specific Condition 12 sets the maximum burning rate at 50,000 tons per hour. Specific Conditions 13 and 14 address visible emissions. Specific Condition 13 prohibits no more than five percent opacity outside of startup, except that opacity up to 20 percent is allowed for not more than three minutes in any one hour. Specific Condition 14 allows opacity of up to 35 percent averaged over a six-minute period during startup, which is the first 30 minutes of operation. Specific Condition 15 limits the materials to be burned in the Model 40 ACI to "wood wastes consisting of trees, logs, large brush, stumps relatively free of soil, unbagged leaves and yard trash, tree surgeon debris, and clean dry lumber such as pallets." At the hearing, DEP produced an undated draft permit for the Model 40 ACI. The only change from the August 31, 1995, permit is that the draft permit requires Applicant to remove the existing ACI from the facility. Applicant has been operating a McPherson Model 30 ACI at the same location as that proposed for the Model 40 ACI. Formerly zoned heavy industrial, the location, which is 16351 Old Highway 41 in Ft. Myers, is presently zoned for the operation of an ACI, and the facility is surrounded by industrial uses. Applicant has been operating the Model 30 ACI at the present location since December 1992 under a permit dated February 15, 1993. The permit for the Model 30 ACI, which expires February 15, 1998, contains similar Specific Conditions as those under contained in the new permit, except that the old permit does not limit the amount of material that can be stored onsite. The Model 30 ACI is different from the Model 40 ACI. The Model 30 ACI is an older, smaller model with a capacity of 20 tons per hour. Lacking the three-walled upper chamber, the Model 30 ACI cannot maintain the integrity of the air curtain as well as can the Model 40 ACI. The Model 30 ACI has a larger- meshed screen than the Model 40 ACI, so larger particulates and ash can escape the incinerator. Compared to the Model 40 ACI, the Model 30 ACI is manufactured with less durable components, which are more vulnerable to damage from the hot steam produced from the combustion of exceptionally moist vegetation, such as Brazilian Pepper and melaleuca. Also, Applicant's Model 30 ACI either lacks a below-fire blower or its below-fire blower is broken, so as to impede effective combustion. Applicant's Model 30 ACI is in dilapidated condition, leaving it both unsafe and ineffective. The operating history of Applicant's Model 30 ACI has been uneven. Applicant's Model 30 ACI has never failed a Class III inspection, which is a 90- minute inspection conducted annually. Applicant's Model 30 ACI has failed one of five Class II inspections, which are 30-minute visible-emissions inspections. Applicant's Model 30 ACI has passed most of about 17 Class I inspections, but its failures have resulted in two consent orders, including one in which DEP fined Applicant $2000. On April 4, 1994, a defective wall in Applicant's Model 30 ACI allowed hot embers to escape and ignite a large fire on the grounds of the facility. The fire required many hours of firefighting before it could be extinguished. However, Applicant has since adopted a firefighting plan and installed sprinklers on the grounds. The proposed limitation of onsite vegetative debris would further reduce the risk of fires escaping from the Model 40 ACI. DEP produced some, but not all, field investigation reports for Applicant's facility. On June 9, 1994, DEP inspectors visited the site after receiving complaints of heavy smoke in the area. After an investigation, they prohibited Applicant from accepting new material for three weeks, presumably so Applicant would be under less pressure to burn vegetative material that had not dried sufficiently to burn efficiently and without visible emissions. On July 5, 1994, a DEP inspector visited the site after receiving a complaint and found brown and white smoke of 15-30 percent opacity emanating from the Model 30 ACI, largely due to excessive moisture in the vegetative material being added to the incinerator. A week later, at mid-day, a DEP inspector visited the site and saw white smoke of 30-50 percent opacity for one minute, followed eventually by five percent opacity. On August 24, 1994, a DEP inspector noticed brown smoke emanating from the Model 30 ACI at about 4:00 pm. The opacity was 10-25 percent. Applicant had allowed a log to protrude through the air curtain, which allowed smoke to escape from the incinerator. On November 17, 1994, two DEP inspectors visited the site and noted brown smoke emanating from the Model 30 ACI with 10-25 percent opacity. Applicant's representative explained that the walls of the Model 30 ACI were damaged and allowed the smoke to escape from the incinerator. The representative assured the DEP inspectors that a replacement wall was onsite and maintenance was soon to be undertaken. DEP conducted T-screen modeling to determine whether particulate emissions from the Model 40 ACI would be below the ambient air quality standards within one-half mile of the facility. DEP determined that, under the worst-case situation, proper operation of the Model 40 ACI would not have an adverse impact within one-half mile of the facility. Applicant has not, at all times, operated the Model 30 ACI in a safe and effective manner, especially with respect to the moisture content of loads added to the ACI. Hot steam emerging from excessively moist loads has damaged the walls of the Model 30 ACI and shortened its useful life. The damage to the walls has in turn impaired the ability of the Model 30 ACI to burn safely and efficiently the vegetative material added to the unit, leading to one serious fire and many violations of DEP's standards for visible emissions. Petitioner presented evidence of visible smoke and smoky odors entering her home and the homes of other residents living in the vicinity of Applicant's facility. Some of these incidents are attributable to Applicant, and some are not. The Model 40 ACI would improve the conditions of which Petitioner complains. The new ACI would be a marked improvement over the old ACI, as long as Applicant properly operates the Model 40 ACI and DEP routinely monitors Applicant's operations and enforces the permit conditions and other provisions of law. Under the circumstances, including Applicant's recent operating history, Applicant has provided the necessary reasonable assurance for the issuance of a new permit authorizing the construction and operation of the Model 40 ACI described in the August 31, 1995, proposed permit, as modified by the undated draft permit, together with the proposed general and special conditions. However, the finding of reasonable assurance is predicated on a new provision in the proposed permit limiting the term of the new permit to the termination date of the original permit for the Model 30 ACI, which is February 15, 1998. Given Applicant's recent operating history, Applicant has not provided the necessary reasonable assurance for an operating permit with a longer term than the term remaining under the old permit. If Applicant demonstrates that it can safely and effectively operate the Model 40 ACI between now and February 15, 1998, it can obtain a five-year permit at that time.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order issuing a permit to Construction Burning, Inc. to replace the existing McPherson Model 30 ACI with a Model 40 ACI, pursuant to the Intent to Issue dated August 31, 1995, as modified by the undated draft permit requiring the elimination of the Model 30 ACI, and operate the Model 40 ACI through February 15, 1998, in accordance with all permit conditions and other provisions of law. ENTERED on May 22, 1996, in Tallahassee, Florida. ROBERT E. MEALE 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 on May 22, 1996. APPENDIX Rulings on Petitioner's Proposed Findings 1: rejected as not finding of fact. 2: rejected as unsupported by the appropriate weight of the evidence. 3-5: rejected as recitation of evidence. 6: rejected as recitation of evidence. However, the failure of the DEP witness to bring with him the file of Applicant is inexplicable. 7: adopted or adopted in substance. 8 (first two sentences): rejected as irrelevant. 8 (remainder): adopted or adopted in substance, to the extent of a limit on the term of the new permit. 9: rejected as not finding of fact. 10: rejected as recitation of evidence. 11: rejected as unsupported by the appropriate weight of the evidence and relevance. Rulings on Applicant's Proposed Findings 1-3: adopted or adopted in substance. 4: rejected as not finding of fact. 5: adopted or adopted in substance except as to the date on which operation started. Applicant's president testified that Applicant began operations in 1992. 6-7: adopted or adopted in substance. 8 (first sentence): rejected as unsupported by the appropriate weight of the evidence. 8 (remainder): adopted or adopted in substance, except for finding as to when Applicant learned of damage to the Model 30 ACI. 9: rejected as subordinate. 10-14: adopted or adopted in substance. 15-16: rejected as recitation of evidence. 17: rejected as unsupported by the appropriate weight of the evidence. 18: rejected as subordinate. 19: rejected as recitation of evidence. 20: rejected as unsupported by the appropriate weight of the evidence. However, this remedy is available by law to DEP, regardless of the provisions of the permit. 21-22: adopted or adopted in substance. 23: rejected as recitation of evidence. 24-25 (first sentence): adopted or adopted in substance. 25 (remainder): rejected as recitation of evidence. 26: adopted or adopted in substance. 27-30: rejected as recitation of evidence. 31: rejected as legal argument. Rulings on DEP's Proposed Findings 1-24: adopted or adopted in substance. 25: rejected as recitation of evidence. 26-27: adopted or adopted in substance. 28: rejected as unsupported by the appropriate weight of the evidence, unless the term of the new permit is limited to the remaining term of the old permit. 29: rejected as legal argument. 30-59: rejected as subordinate, except to the extent incorporated in the recommended order. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth Plante, General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Patricia d'Hondt 6288 Briarwood Terrace Ft. Myers, Florida 33912 Connie D. Harvey Akerman, Senterfitt & Eidson, P.A. 100 South Ashley Street, Suite 1500 Tampa, Florida 33602-5311 Stephen K. Tilbrook Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-2400
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
