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 issues to be resolved in this proceeding concern whether the Petitioner has standing to bring this action and, therefore, whether the Intervenor has standing; whether the applicant has provided reasonable assurances of its entitlement to a construction permit for the facility; whether the applicant is precluded from availing itself of a separate biohazardous waste storage general permit through notification to the Department; whether the Petitioner is entitled to challenge the notice requirements of the general permit; and whether the facility to be permitted should be characterized as a biological waste incineration facility or a biohazardous waste treatment facility.
Findings Of Fact The Petitioner, Hamilton County Board of County Commissioners ("County"), is the governing body of Hamilton County, a political subdivision of the State of Florida. The operation of the political subdivision of Hamilton County is conducted by and through its duly-elected Board of County Commissioners. The County conducts a variety of official functions, including but not limited to, the levy and collection of taxes, construction and maintenance of county-owned buildings, roads, bridges and other facilities, the funding and maintenance of county recreational parks and related facilities, and the funding and operation of county health and welfare programs, as well as the regulation and disposal of solid waste and sewage. TSI is a Florida corporation organized to specialize in the construction and operation of incineration facilities, including biohazardous waste incineration facilities. The project sub judice is the first incinerator facility proposed for construction by TSI. The corporation and its directors, officers or operational personnel have not participated in the construction or operation of any type of incinerator facility in the past. DER is an agency of state government charged with the responsibility of regulating the quantity and quality of emissions from facilities such as the incinerators involved in the case at bar, and with reviewing applications for permits for the construction and operation of air pollution source facilities, including incinerators, as well as biohazardous waste disposal and treatment facilities and solid waste resource recovery and management facilities. Its reviewing responsibility is performed by weighing such permit applications against the yardsticks set forth in Chapter 403, Florida Statutues, and Rule Chapters 17-2, 17-4, 17-6, 17-701 and 17-712, F.A.C., which it employs to determine, among other parameters, whether a particular air pollution source facility can be reasonably assured to comport with the standards embodied in those rule chapters. The Intervenor, City of Jasper ("Jasper"), is a municipality located within Hamilton County, Florida. The Jasper Industrial Park is the site of the proposed biohazardous waste incinceration facility. That site is within the city limits of Jasper. Description of Facility and Process Incineration is the most commonly used procedure for treating medical waste. The combustion of waste is especially appropriate for hospital "redbag" waste, also known as medical waste. The combustion of medical waste destroys pathogens infectious materials and spores. TSI proposes to burn medical waste in two Basic Model 3500 biohazardous waste incinerators. The incinerators will be enclosed within a large building at the Jasper Industrial Park in Jasper, Florida. Each has a charging capacity of 35 tons per 24-hour day. The proper incineration of medical waste requires a residence time of one second in a secondary chamber, having a temperature of at least 1,800 degrees Fahrenheit. These time and temperature requirements will be achieved by the proposed Basic incinerator. The incinerator's loading door will not open until the secondary chamber temperature reaches 1,800 degrees Fahrenheit. Unlike other systems, the patented Basic incinerator system has three combustion zones in the incinerator, the main chamber, the secondary chamber, and the tertiary chamber. By means of these three stages, the Basic incinerator minimizes emissions of hydrocarbons, CO and nitrogen oxide. It is characterized by a "ram feeder" which allows the waste material to enter the incinerator through an air lock so as not to disturb control of the air within the furnace. It also has a "mechanical pulse hearth" which moves and tosses the burning material while moving it through the incinerator, shaking it up, much like logs in a fireplace. It thus mixes the waste material in the air for more complete combustion. Finally, a backhoe-type device digs the ashes out of the ash pit for disposal after combustion. The third stage of the Basic incinerator changes vapors coming from the main chamber to superheated gas. The "thermal exciters" in the third stage increase turbulence and mixing in this upper zone. With the addition of air in this third stage of burning, the gas burns like natural gas, thereby completely destroying the products of incomplete combustion from the previous stages. The gas will have a residence time of at least one second in the last combustion chamber, at no less than 1,800 degrees Fahrenheit, as required by Rule 17- 2.600(1)(d)4.A., F.A.C. The Basic incinerator is designed with an air lock door which prevents it from opening until the chamber temperature reaches the required 1,800 degrees Fahrenheit. This insures more complete combustion of waste and insures that the ignition of waste does not commence until the last combustion chamber temperature requirement of Rule 17-2.600(1)(d)4.D., F.A.C., is attained. After the tertiary stage, the gases resulting from combustion go to a heat recovery boiler system incorporating a heat exchanger involving water- filled tubes. The superheated gas flows past these heat exchanger tubes which reduce the gas temperature to approximately 250 degrees Fahrenheit. This serves to start condensing the HCL acid gas so that it will be amenable to reduction and conversion by the injection of finely-powdered lime on the way to the "baghouse" scrubber device. Additionally, at this stage, a portion of the superheated gases are recirculated to the combustion chamber for further exposure to combustion temperatures in order to achieve optimum burnout of all combustible materials. When the superheated gases reach the boiler-heat recovery, steam- generating device, they are at approximately 1,800 degrees Fahrenheit. In part, they consist of metallurgical fumes containing salts, oxides, heavy metals, leads and zincs. In order to prevent these salts from clogging the boiler, the cooling device reduces their temperature so that the oxides and metals form powders. Then if any of the resultant powder adheres to the boiler tubes, conventional coal-blowing equipment blows the resulting powders on through the boiler to the emission control device or "baghouse". This, in turn, maintains the temperature reduction efficiency of the boiler heat exchanger. Because of the various combustion stages or chambers incorporated in the incinerator, as well as the heat exchanger and gas recirculation feature, the Basic incinerator prevents burning particulate particles from entering the baghouse and burning holes in the Gortex filter bags. This, of course, insures optimum emission control efficiency. After the combustion gases exit the heat exchanger-boiler device, their temperature has been reduced to approximately 250 degrees Fahrenheit. Lime is injected at this point, which reacts with the HCL acid gas and neutralizes it in part; the reaction occurring as the gas flows toward the baghouse, with the reaction being completed on the surface of the Gortex bags of the baghouse, as the lime collects thereon. The County does not contest that the Basic Model 3500 incinerator, as proposed, will perform in a manner that will satisfy most of the criteria set forth in Rule 17-2.600(1)(d), F.A.C. It will achieve approximately 95% burnout in the combustion chambers. Mr. Cross, the County's expert witness, was concerned that DER had no criteria for a standard of "burnout" of the bottom ash. In fact, DER interprets the term "complete combustion" (in the above Rule), as requiring ash burnout of approximately 95%. The Basic incinerator will achieve 95% burnout. The high rate of burnout is achieved both by the multiple combustion chambers and the use of the moving pulse hearth which constantly shakes or stirs the burning material, ending with chains suspended at the end of the pulse hearth to impede bulky waste materials from exiting the combustion chamber before they are completely combusted. Odor is controlled, in accordance with Rule 17- 2.600(1)(a)2., F.A.C., by using air for combustion purposes which is drawn by blowers from the storage area of the untreated waste. The combustion blowers pull air from the waste storage area into the incineration system. The best means of odor control is by burning, which this incinerator will achieve. The County agrees that CO emissions from the incinerators will not exceed 100 parts per million by volume, dry basis, corrected to 7% 02, on an hourly average basis. Thus, CO will be within acceptable regulatory limits and is not at issue in this proceeding. Pursuant to stipulation, the only emissions at issue with regard to the proposed facility and permit are visible emissions, particulate matter and hydrochloric acid (HCL). Particulate matter consists of finely divided solids or liquid, and the hydrochloric acid is formed when chlorinated plastics are burned. Emissions are reduced in two ways. First, emissions from the stack of the incinerator will be diluted by ambient air which dilution increases as the stack height above ground increases. Airborne emissions are also reduced by directing combustion gases through pollution control equipment before they exit the stack. The pollution control equipment proposed for the incinerators at issue is an acid gas, dry lime scrubber baghouse, with dry lime injection. The incinerator facility cannot meet particulate and hydrochloric acid standards without the addition of a pollution control device, such as a dry lime scrubber baghouse. The baghouse is the best available technology for controlling particulates and hydrochloric acid, as well as controlling metals emissions. The baghouse works much like a vacuum cleaner with a vacuum cleaner bag to trap particulate matter. Baghouses have been in use since 1970, and the technology has been scientifically demonstrated and accepted. The proposed baghouse would consist of a multiple number of bags in excess of ten feet long. They are made of fiberglass, coated with Gortex, a permeable membrane material. They have an air to cloth ratio of 3 to 1. The Gortex bags are capable of trapping 99.5% of particles in the range of 1/10th of a micron in diameter. They are, thus, capable of trapping cigarette smoke, for instance, and are resistant to acids, certain alkalines, and temperatures up to 500 degrees Fahrenheit. The bags are wrapped around a wire cage and attached to a steel plate, anchoring them to the flues, which conduct the gases to them. All of the flue gases enter the baghouse and go through the bags and then exhaust to the atmosphere through the stack. The bags, thus, trap most particulate matter and metals. Additionally, lime will be injected into the flue gas stream for acid control before the flue gases reach the bags. The lime dust, a base, reacts with HCL, an acid, to produce calcium salts, which are PH neutral. The dry lime will be conducted from a silo or other means of storage in the form of fine dust or talc which enters a metering hopper so that the amount of lime injected into the system can be controlled. The lime is injected immediately after the gases are condensed and cooled to a 250 degree Fahrenheit level. This causes optimum reaction of the acid gases with the lime which then travel together to the bags. The Gortex bags are coated by the lime dust which further enhances the HCL removal reaction. Because of the recirculation of the superheated gases and the cooling of them through the heat exchanger device, it is very unlikely that any sparks or embers from the incinerator chambers will land on the bags to burn holes in them and, thus, reduce their efficiency. This is an inherent advantage of the design of the Basic incinerator when used with the Gortex' baghouse scrubber. There is a biohazardous waste incineration facility in operation at Stroud, Oklahoma. It uses a Basic incinerator also employing an acid gas, dry lime scrubber baghouse, in essence like the one proposed here. That incinerator has been tested for visible emissions, particulate matter emissions, and HCL emissions. The tests occurred while the incinerator was actually combusting twice the amount of medical waste proposed for the proposed incineratcrs. The visible emissions test at that facility resulted in an opacity of less than 5% (visible emissions). The PM test resulted in 0.014 grains per dry standard cubic foot. HCL emissions from the incinerator were tested at 43.6ppm (parts per million). The Stroud system thus achieved a 97.2% removal of HCL. A medical waste incineration facility is located at Fairfax, Virginia, which uses a baghouse and lime injection system. The Fairfax facility test results also establish that a baghouse lime injection system reduced particulate matter and HCL emissions to below the Florida standards. Experts testifying on behalf of both the applicant and the County agree that the design characteristics and pollution control capabilities of various lime injection systems and baghouses differ markedly. Certain baghouse designs would not be appropriate for the pollution control application at issue. The County's expert noted that the method of lime injection is a critical component of overall HCL control. Certain baghouses incorporate intermittent lime injection systems which are effective for protecting the individual baghouse components, but inappropriate for HCL removal purposes. The applicant's expert, Mr. Basic, also recognized the importance of the type of lime injection system involved. Various baghouse manufacturers inject lime at differing points within the system; and certain injection applications are, in his opinion, inappropriate for effective HCL control. Temperature is a critical factor in the effectiveness of the lime injection procedure in neutralizing the acid gases (HCL). The method proposed by the applicant of cooling the gases to approximately the range of 250 degrees Fahrenheit before injection of the lime has been shown to be effective in neutralizing the HCL gases at issue, when coupled with the Gortex-laminated, fiberglass bags upon which further neutralization will occur as the dry lime powder is deposited thereon and the gas passed through it. The baghouse cleaning system is also a component of major importance. Baghouse cleaning involves the removal of calcium chloride particulate buildup from the surface of the filter bags. They eventually become clogged with the precipitate, reducing the systems effectiveness unless they are periodically cleaned. Baghouses can be cleaned while the incineration system is shut down which is known as "off-line cleaning". They can also be cleaned during operation by "on-line cleaning". "Pulse-jet" cleaning involves taking a portion of the bags off line with a damper system bypassing the flue gases to other bags which remain in operation. The bags taken off line are then injected with a rapid pulse or pulses of compressed air, thereby removing the calcium chloride cake from the bags. The County's expert opined that pulse-jet cleaning is less effective than off-line cleaning and that it also requires a dedicated air compressor, as air from within the plant may contain moisture, oil or other contaminants, which are inappropriate for injection into the baghouse since they may permanently clog or otherwise harm the bag material. The applicant's expert, Mr. Basic, expressed like concerns regarding the baghouse cleaning system. He testified at length about the characteristics and appropriateness of on-line versus off-line cleaning. He established that off-line cleaning, also knowh as "reverse air" or "reverse jet" cleaning, is the most effective under the situation prevailing in this project and, in essence, agreed with the County's expert on this subject. Reverse air cleaning involves both the incinerator and the air pollution control system being shut down, with air from the blower being blown in reverse through the bags to remove the calcium carbonate residue. Mr. Basic's testimony establishes that a reverse air, off- line cleaning process can maintain the effectiveness of the Gortex- fiberglass filter bags and, thus, assure that emission and ambient air standards are continuously met by the facility. Stack Emissions Modeling of the stack emission results predicted at the facility with the originally-proposed 40-foot stack height was performed by Mr. David Buff, the applicant's expert witness in this regard. The model he employed demonstrated compliance with all ambient air quality standards set forth in Chapter 17-2, F.A.C. There is no ambient air quality standard in the rules at the present time for HCL, however. DER does have a policy, established without dispute in this record, that an acceptable ambient level of HCL would be 150 micrograms per cubic meter for a three-minute value and 7 micrograms per cubic meter on an annual average. Shortly prior to hearing, a "re-modeling" of the stack and resultant emissions was done, postulating a stack at 98 feet high. Five years of meteorological data from the Valdosta, Georgia, weather station were used to include such factors as prevailing winds, etc., which modeling ultimately demonstrated a three-minute maximum HCL concentration of 16.4 micrograms per cubic meter. This resulted in a maximum HCL concentration at ground level of a factor of 10 below the 150 micrograms per cubic meter level, which is acceptable under DER policy. The average annual impact of HCL concentrations would be 0.2 micrograms per cubic meter, well below the acceptable level of 7 micrograms per cubic meter annual average. Mr. Buff's model also predicted a maximum annual average impact at any location in the vicinity of the proposed incinerator of HCL at .16 micrograms per cubic meter. This maximum value is a factor of more than 40 below the administrative level of 7 micrograms per cubic meter on an annualized basis. A spatial distribution of the annual average hydrochloride concentrations in the vicinity of the incinerator demonstrates an annual average concentration declining to 0.09 micrograms per cubic meter in the direction of the City of Jasper. The 98-foot stack proposed by TSI thus meets all ambient air requirements. Although the stack height was changed from the 40 feet shown in the application to 98 feet, all other design elements of it, such as stack diameter, stack temperature, and gas flow rate, remain unchanged. The modeling of the 98-foot stack included all of the design criteria found in the application. There is, in essence, no dispute regarding the efficacy of the modeling performed by Mr. Buff. All modeling and modeling results were not controverted. In addition to the main stack, there is an emergency relief stack, also known as a "dump stack". The dump stack does not have pollution control equipment. It is opened when the system is first started up in order to purge the system. No waste is burned at that time. The stack is also opened after a shutdown during a cooldown period after all waste has been removed from the furnace. The likelihood that the relief stack will operate outside of a startup and cooldown period is very slight. The facility will have an electrical generator backup emergency power source in case of power failure. The primary reason for the stack's opening, power loss, is thus eliminated by the system as proposed. There is a relief valve in the steam line so that if steam pressure in the boiler exceeds operating pressure, the system can be relieved through the relief valve with the only loss being steam which would have to be replenished with soft water. Such a malfunction would not result in the emergency stack opening, however. The only other circumstance under which the emergency stack would open, and vent gases to the atmosphere without emission control, would be a malfunction of the blower or induced draft fan system which pulls the gases out of the main stack. This could be caused by failure of the drive belts or a burnout of a motor. With proper maintenance, the belts will not fail and the motors will function for years without replacement. In an emergency situation, however, if a shutdown does occur, the frequency of the pulse hearth can be increased to push the waste stream into the quench pit in approximately 20 minutes, thus, eliminating emission of pollutants through the stack. The County's expert, Mr. Cross, also agreed that most of the causes of the opening of the emergency dump stack have been eliminated by the proposed Basic design. In any event, even in an emergency situation where the dump stack must open, the inherent design capabilities of the incinerator, related to operating temperature, residence time and the multiple combustion chambers, result in only one part per million CO, as well as very low nitrogen oxide and hydrocarbon levels being emitted from the facility even with no other pollution emission control provisions. In the event the emergency stack opens, the highest HCL emissions occur immediately, but then quickly drop to acceptable levels. This is so because combustion of materials immediately in the furnace would be finished, but no other charging of the furnace would occur until the malfunction is alleviated. Rule 17-2.250, F.A.C., allows, in any case, with an emergency opening of dump stack, the excession of permit limits for up to two hours. The results of modeling the operation of the dump stack at a 40-foot height and at 30 pounds per hour of HCL emissions shows that the 7,500 threshold limit value ("TLV"), which the Occupational Safety and Health Administration ("OSHA") sets to protect worker safety, will not be exceeded anywhere off the plant property, which boundaries lie 50 meters or more from the stack location. The HCL administrative level set by DER (by policy) of 150 micrograms per cubic meter will be exceeded in an area out to approximately 400 meters from the stack. Beyond 400 meters, the level is less than that and drops off rapidly thereafter so that at 800 meters, under the model prediction, the level of HCL concentration would be only 57 micrograms per cubic meter and at 2,000 meters, 37 micrograms per cubic meter. The county prison site, the Hamilton County landfill, recreation park, middle school, county road camp, senior citizens center, other schools and a nursing home, of which concern was expressed about proximity to incinerator emissions, are all 900 meters or more from the site of the incinerator and the location of the stack. It has thus been established that ambient HCL concentrations will not reach the prohibited level of 150 micrograms per cubic meter for the three-minute average at any of these locations. The permit applied for is a "minor source construction permit". Such a permit allows the applicant to construct the source, having an initial startup and performance compliance testing period to demonstrate that the facility can meet emission standards provided for in the permit and related rules. After demonstrating compliance, the applicant can then seek an operating permit. The test methods required as conditions by DER's proposed grant of the permit and the "draft permit" are standard ones sanctioned by the U.S. EPA. They are reliable and acceptable and have undergone independent testing and development and are used by all states. Thus, the combustion chamber exit temperature must be monitored for the purpose of determining if the unit complies with the 1,800 degree Fahrenheit rule, the criteria for complete combustion. Oxygen must also be monitored for the purpose of determining if the incinerator is operating properly and achieving good combustion which is essential to control of hydrocarbons, nitrogen oxides, CO and other pollutants. When oxygen falls below certain levels, the computerized micro- processor monitoring system shuts down the loader to prevent charging of the furnace until combustion standards are again reached to prevent insufficient combustion due to low oxygen and excession of pollutant limits. In order to insure that the CO limit of 100 parts per million is not exceeded, a continuous CO monitoring capability will be installed within the incinerator. The lower the CO, the better the combustion efficiency. Although the rules require a 100 parts per million limit, CO test results at the Stroud facility, which is essentially identical to the one proposed, averaged 1.1 parts per million. Test results at the Stroud facility also demonstrated that the dry lime scrubbers installed there accomplish high HCL and particulate removal. The Stroud facility meets all Florida rule standards. Mr. Cross acknowledged that the test results on that facility demonstrate that dry lime scrubbers on medical waste incinerators "will do the job". Design details of the 98-foot stack and the lime injection baghouse scrubber facility were not included in their entirety in the application and the evidence adduced. Design details of the 98-foot stack, however, were provided in the application on page 6 as to the 40-foot stack. The changing of the stack height to 98 feet does not change the remaining design details, and they are still valid and have been proven so. Although no design or plans for the lime injection baghouse proposed have been adduced, the testimony of Mr. Basic establishes that such a facility will meet all pertinent emission standards prevailing in the Florida rules and policies, as such a facility did in the Stroud tests. Mr. Basic's testimony was unrefuted and establishes that the dry lime injection baghouse scrubber facility, such as he proposes and about which he is knowledgeable, based upon his manufacture, installation and operation of other incineration facilities, will reasonably assure that all pertinent disputed emission standards will be met (for particulate matter, opacity and HCL). Mr. Basic, as equipment vendor for the project, has responsibility for the entire incineration facility. He will oversee construction, installation and testing of the incinerators and emission control equipment (baghouse and stacks). He has guaranteed that all Florida emission standards will be met as the manufacturer and vendor for the project. A grant of the permit at issue should be conditioned upon Mr. Basic performing, as testified at the hearing and as agreed to by the applicant, as overseer for the construction, installation and testing of the proposed facility. Specific Condition No. 14 in DER's notice of intent to grant the permit requires the applicant to test the resultant ash to see if it is hazardous. Ash from the proposed facility must be tested in accordance with 40CFR 262.11, which requires testing and characterization of the waste. Ash from the proposed facility will be tested; and if it tests as hazardous, it will be handled as hazardous waste by sending it to an approved hazardous waste landfill or treatment facility. In any event, it has been stipulated by the applicant that the ash will not be deposited in a Hamilton County landfill; and the permit should be so conditioned. Most ash coming from infectious waste incineration is non-toxic. Controlled air incineration produces a sterile ash, which is a non-combustible residue, and may be disposed of in an ordinary landfill. Ash tested at the Stroud facility, after burning medical waste of the type to be incinerated in the instant facility, tested as non-hazardous. The ash will be removed from the facility in closed containers. Storage of Biohazardous and Biomedical Wastes DER regulates biohazardous waste incineration under the air permitting program, requiring an air permit, as sought in the instant case. DER does not require a separate solid waste treatment and sewage permit. Biomedical waste is regarded as a special waste which requires an element of care beyond solid waste, but does not require the extraordinary care required of hazardous waste. Sections 17-712.420 and 17-712.800, F.A.C., deal with the permitting of biohazardous waste storage. There are two ways in which an applicant can notify DER of its intent to use a general permit for the storage of biohazardous waste: It can apply for a general permit by notifying DER on a specific form of its intent to use a general permit for the storage of the waste; or It can include the information as part of an air permit application. With either option, there is no difference in the way DER processes the two types of notification. DER reviews the information submitted to make sure that it indicates that the facility will meet the requirements of Rule 17-712.420, F.A.C. The DER district waste program administrator, Mr. Mike Fitzsimmons, established in his testimony that the applicant has met the qualifications for the general permit for biohazardous waste storage. Five areas have been designated for storage of the biomedical waste to be incinerated at the TSI facility. It is anticipated that most of these areas will normally be empty. The storage areas are available, however, in case one of the incinerators is inoperative for any reason. There are contingency plans for re-routing the waste in the event one or both incinerators are inoperative for a significant period of time. Area A is the primary area of the facility where boxes are loaded onto a conveyor system and continuously fed into the furnaces. Area B is considered a secondary storage area where palletized boxes can be stored pending their placement onto the conveyor system for charging into the incinerators. The secondary area here can also be used for backup storage. Areas C and D are truck unloading docks,. The trucks, themselves, also can be used for storage capacity. Area E on Exhibit 7, the permit drawings, shows an outdoor storage area which will hold a number of trucks which transport the biohazardous waste. All of the trucks bringing waste into the facility will remain locked until brought to the unloading dock for unloading and incineration of their contents. The loading docks for the trucks located at the back of the facility are designed with drainage to prevent storm water runoff. Both the indoor and outdoor storage areas will be concrete. The concrete joints will be grouted and sealed, and the concrete will have an impermeable sealant placed on it. To maintain a sanitary condition, the area will be swept daily; and any spill area will be disinfected. The indoor areas will be disinfected weekly regardless of spills. Access to the proposed facility will be restricted to prevent entry of unauthorized persons. The outer perimeter will be enclosed with an 8-foot cyclone fence. It will be monitored with closed-circuit television. The building itself will only be accessible by authorized persons. The fence and all of the entrances will be marked with the international biohazardous symbol with the words "biohazardous wastes or infectious wastes". The facility will be operated so as to prevent vermin, insects or objectionable odors offsite. All materials will be packaged according to Rule 17-712.400(3), F.A.C. Refrigeration is not contemplated because EPA guidelines on management of infectious waste do not recommend refrigeration. Instead, storage times will be kept as short as possible prior to incineration. There will be minimal handling of boxes at the facility. Semi-trailers will be unloaded by means of an extendo conveyor system which will convey the boxes directly to the incinerators. If a box is dropped, breaks or a spill occurs, the area will be disinfected immediately. All floor drains, which will be installed both indoors and outdoors, will have a slight slope in the direction of the drain so that the floors can be scrubbed and hosed down and disinfected with all liquid material being flushed down those drains. Liquid waste created by the disinfection process can be safely disposed of thereafter in the city sanitary sewer system. The storm water management system on the site and the drainage sewage system are entirely separate, however. Employees will be required to wear either rubber or plastic gloves and white disposable clothing. All biohazardous waste generators (hospitals, etc.) and transport companies will be required to put the waste in "red bags", strong plastic bags. The medical waste will be required to be sealed in strong plastic bags, which are then placed by the generator of the waste in sealed cardboard boxes having a 275-pound bursting strength. All boxes must be marked with the name and address of the generator of the waste (hospital, etc.). The transporter of the waste, typically a trucking company, will be required to keep the trailers transporting the waste locked and the boxes intact and unopened. The applicant, as a condition of the permit, will not accept delivery of any waste shipments not so packaged and maintained. In fact, in addition to the rules governing the packaging and transport of biomedical waste contained at 17- 712.400, 17-712.410, F.A.C., TSI will require, by written contract, generators and transporters of the biomedical waste to insure delivery of waste properly packaged in accordance with Florida law regardless of which State the waste is generated and transported from. Additionally, the applicant will maintain records of waste origins and shipments in accordance with Rule 17-712.420(7), F.A.C., in its computerized record system. A detailed contingency plan will be prepared for the proposed facility by Lloyd H. Stebbins, P.E., an expert in environmental incident planning. The contingency plan will include more detail than is required by the biohazardous waste rules. The plan will address how medical waste is handled in order to insure public safety and the safety of employees as it is transported to and enters the plant and how ash will be safely handled when it exits the plant. Mr. Stebbins will also prepare an operation plan which will include personnel training in disinfection procedures and a description of those procedures for submittal to DER as a condition of a grant of this permit. That operation plan will contain procedures for all three types of disinfection methods authorized by Rule 17-712, F.A.C. This will enable the applicant to have the flexibility to use all three procedures, hot water, sodium hypochlorite, iodine or an EPA approved germicide. Mr. Stebbins will direct and provide training to insure that personnel comply with the regulations concerning disinfection and proper application of disinfectants. As an additional safety factor, the facility is designed to operate efficiently at approximately 85% of its actual capacity in order to allow for "down time" and maintenance. Standing TSI has challenged the County's standing to participate in this proceeding, asserting that Hamilton County, through its duly-elected Board of County Commissioners, does not possess a substantial interest in the outcome of this proceeding different from that of the public generally. It contends that the concerns various members of the general public might have concerning location and installation of the incinerator facility are the only concerns that the County has in participating in this proceeding; and, therefore, that the County has no substantial interest of its own justifying its standing to be a party to this proceeding. The record, however, reveals a strong citizen opposition in the County and City of Jasper to the applicant's proposed project. During the public comment portion of these proceedings, it became obvious that the citizens of Hamilton County have a variety of health and safety concerns which have engendered wide spread opposition to the applicant's project. Principal concerns are the matters of transportation and potential spillage of infectious hospital- generated medical wastes which the incinerator will be treating. Additionally, a strong concern has been expressed by various citizens of Hamilton County and the City of Jasper, concerning potential HCL emissions and their potential negative health effects on residents of the city and county, particularly those who utilize the many publicly-owned facilities located in proximity to the project site. These facilities include a middle school, a senior citizen center, a county road camp or prison, the county landfill, county equipment, a bridge and other buildings, as well as the fact that the material to be incinerated will be transported on trucks through a residential area. Additionally, the Hamilton County Correctional Institution is immediately adjacent to the proposed project site and employs several dozen county residents. Concerns were also expressed about increased traffic flow resulting from trucks bringing waste through the county and city to the proposed incinerator site, as well as the health and safety of the citizens who will be employed at the proposed facility itself, and the lack of sufficient emergency equipment and facilities within Hamilton County. Many citizens expressed their opposition to the proposed facility at the public comment portion of the hearings, through petitions submitted to their city council and the board of county commissioners and at public meetings conducted by those two governmental bodies. Thus, it can be inferred that there is a concensus of opposition by citizens of the city and the county which has been expressed to their respective governing commissions, who are the Petitioner and Intervenor in this proceeding. There is no question that the proposed project has the potential to cause some pollution or degradation of air and water in Hamilton County and the City of Jasper. Section 125.01(1), Florida Statutes, delegates broad powers and duties to county governments. Those powers and duties are enumerated in the Conclusions of Law below and include such authority as to establish and administer programs of air pollution control; to provide for and regulate waste and sewage disposal; to operate solid waste disposal facilities pursuant to Section 403.706(1), Florida Statutes; to establish, coordinate and enforce zoning and such business regulations as are necessary for public protection; to perform other acts not inconsistent with the law which are in the common interest of the people of the county, and to exercise all powers and privileges not specifically prohibited by law.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and aguments of the parties, it is therefore, RECOMMENDED that DER enter a final order approving TSI's applications for permits for the subject two biological waste incineration facilities in accordance with the conditions specified in the notice of intent to grant the permit and enumerated in this Recommended Order. DONE AND ENTERED this 24th day of July, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-6824 Petitioner's Proposed Findings of Fact: 1. Accepted. 2-11. Accepted, although not necessarily dispositive of material issues presented, standing alone. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not, in itself materially dispositive of material disputed issues. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject[matter and as not directly relevant in the de novo context of this proceeding. 15-22. Accepted. 23. Accepted, but not itself materially dispositive. 24-31. Accepted, but in themselves materially dispositive of disputed issues and subordinate to the Hearing Officer's findings of fact on this subject matter. 32-43. Accepted. 44-48. Accepted, but subordinate to the Hearing Officer's findings of fact on these subject matters and not, standing alone, dispositive of material disputed issues. 49. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and contrary to the preponderant weight of the evidence. 50-55. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 58-64. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and to some extent, contrary to the preponderant weight of the evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 68-73. Accepted. Respondent, TSI Southeast, Inc.`s Proposed Findings of Fact: 1-15. Accepted. 16. Rejected, as a discussion of testimony and not a finding of fact. 17-52. Accepted. 53-70. Accepted. 71-73. Rejected, as not materially dispositive of disputed issues in the de novo context of this proceeding. 74-75. Accepted. 76. Rejected, as unnecessary and immaterial. 77-123. Accepted. 124-129. Accepted, but not themselves dispositive of the material disputed issue of standing. Respondent, DER's Proposed Findings of Fact: 1-41. Accepted. COPIES FURNISHED: Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 David D. Eastman, Esq. Patrick J. Phelan, Esq. Parker, Skelding, Labasky & Corry 318 North Monroe Street Tallahassee, FL 32301 John H. McCormick, Esq. McCormick & Drury 2nd Street at 2nd Avenue Northeast Jasper, FL 32052 Ross A. McVoy, Esq. Vivian F. Garfein, Esq. Fine, Jacobson, Schwartz, Nash, Block & England Suite 348 315 South Calhoun Street Tallahassee, FL 32301 William H. Congdon, Esq. Department of Environmental Regulation Twin Tower Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 =================================================================
