The Issue The issues for determination in this case are 1) whether Respondent Department of Environmental Protection, Hillsborough County, as the permitting authority, should issue a final Title V Air Operation Permit to Respondent Southeast Oil Development Corporation, for its fiberglass lay-up and abrasive blasting facility in Thonotosassa, Florida; and 2) whether the conditions contained in the Draft Title V Air Operation Permit proposed for issuance to Southeast Oil are sufficient to ensure compliance with applicable provisions of Chapter 403, Florida Statutes, and Chapter 62, Florida Administrative Code.
Findings Of Fact Petitioners, JAMES REINA, ANGELO M. REINA, NANCY C. REINA, HELEN REINA, and STEVE QUICK, are residents of Thonotosassa, in Hillsborough County, Florida, and reside within one-third mile of a fiberglass lay-up and abrasive blasting facility owned and operated by Respondent SOUTHEAST OIL & DEVELOPMENT CORPORATION. Petitioners’ residences are located to the southwest of the fiberglass facility. Respondent, SOUTHEAST OIL & DEVELOPMENT CORPORATION (SOUTHEAST), owns and operates a fiberglass lay-up and abrasive basting facility located at 11801 Elyssa Road, Thonotosassa, in Hillsborough County, Florida. Respondent, DEPARTMENT OF ENVIRONMENTAL PROTECTION, HILLSBOROUGH COUNTY (EPC), is the local regulatory agency authorized to act as the permitting authority for Title V Air Operations permits. EPC is processing and acting on the subject’s air permit on behalf of the Florida Department of Environmental Protection, pursuant to operating agreements between the state and local agencies. The SOUTHEAST facility operation which is the subject of these proceedings consists of taking a steel tank shell and abrasive blasting around the filer ports openings. The tank is then covered with a layer of mesh, mylar, and styrene based fiberglass resin. The tank is rotated to aid in an even application. Prior to shipment, wood crates are cut to protect the tank in transit. The SOUTHEAST facility has been in continuous operation, manufacturing tanks at this location since 1985. During the manufacturing process, there is no open air venting while chemicals are mixed. Manufacturing is conducted in an enclosed and covered facility. Chemical containers are tightly capped when not in use. The SOUTHEAST facility currently manufactures approximately 150 tanks on an annual basis. The tanks are primarily used for gasoline storage. Styrene is the chemical that produces a fiberglass odor during the tank manufacturing process. Under the terms and conditions of its current and proposed permits, SOUTHEAST is limited in the amount of styrene allowed to be used in the manufacturing process. Approximately three years ago, SOUTHEAST changed its formula for the manufacturing process. The current formula includes a secret ingredient designated “Ingredient A” which contains significantly less styrene than SOUTHEAST’S prior formula. The use of “Ingredient A” has resulted in less styrene emission during the manufacturing process. The fiberglass odor emitted during the manufacturing process is sporadic and dependent on the wind and weather conditions. Petitioners do not detect the odor on a continual basis, and for several months at a time, there is no noticeable odor. The objectionable nature of the odor is dependent on the various sensitivities of the Petitioners. On at least two occasions within the last year, some of the Petitioners have complained to EPC of the odor; however, EPC’s investigators who responded to the complaints in a timely manner were unable to detect significant levels of fiberglass odor at Petitioners’ residences. The investigators did not consider the odors detected as objectionable. The fiberglass odor emitted during the manufacturing process is not offensive to all of the neighboring businesses and residences. The owner of the business closest in proximity to SOUTHEAST has not made a complaint regarding an objectionable odor emission and does not consider the odor objectionable. There is no evidence that the odor emitted during the manufacturing process presents a health problem to the residents of the area. The permit proposed by EPC contains conditions controlling the emission of objectionable odors and places limits on the amount of styrene which may be utilized by SOUTHEAST during the manufacturing process.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a Final Order granting Southeast Oil’s Application for Title V Air Operation Permit for the fiberglass lay-up and abrasive blasting facility, with the conditions included in the December 13, 1996, Draft Permit with conditions. DONE AND ENTERED this 6th day of August, 1997, in Tallahassee, Leon County, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1997. COPIES FURNISHED: David M. Carr, Esquire 600 East Madison Street Tampa, Florida 33602 Richard E. Fee, Esquire Ganther and Fee, P.A. 101 East Kennedy Boulevard Barnett Plaza, Suite 1030 Tampa, Florida 33602 Sara M. Fotopulos, Esquire Vernon R. Wagner, Esquire Hillsborough County Environmental Protection Commission 1900 9th Avenue Tampa, Florida 33605 Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399 James Reina, pro se 9947 Fowler Avenue Thonotosassa, Florida 33592 Angelo M. Reina, pro se Nancy C. Reina, pro se 9949 Fowler Avenue Thonotosassa, Florida 33592 Helen Reina, pro se 9951 Fowler Avenue Thonotosassa, Florida 33592 Steve Quick, pro se Betty Quick, pro se 9953 Fowler Avenue Thonotosassa, Florida 33592
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 This cause comes on for consideration based upon the petition of John C. Walker and others, residents of Fort Myers, Florida, who have challenged the Respondent, State of Florida, Department of Environmental Regulation's intention to grant a Complex Air Source Permit to the Respondent, Lee County Board of County Commissioners, for purposes of constructing a four-lane road at Daniels Road, Lee County, Florida. The Respondent, State of Florida, Department of Environmental Regulation, is an agency charged with the promotion and protection of air quality within the State of Florida. The authority for this function is found in Chapter 403, Florida Statutes, and various rules enacted to implement the provisions of this statute. Specifically, as it pertains to this dispute, the Respondent, State of Florida, Department of Environmental Regulation, is charged with the maintenance of Ambient Air Quality Standards. The standards are set forth in Chapter 17-2, Florida Administrative Code. To carry out this function, Rule 17-2.06, Florida Administrative Code, has been enacted, which establishes maximum limiting levels for Ambient Air Quality Standards. This sets the allowable limits for pollutants existing in the ambient air, the purpose for such standards being the protection of human health and public welfare. It involves the consideration of the pollutants, sulphur dioxide, particulate matter, carbon monoxide, photochemical oxidants (by measurement and correction for interference due to nitrogen oxide and sulphur dioxide), hydrocarbons (used as a guide in devising implementation plans to achieve oxidant standards, to be measured and corrected to methane), and nitrogen dioxide. The Respondent, Lee County Board of County Commissioners, is a unit of local government in the State of Florida charged with the function of carrying on the business of government for that county, to include the construction of those roads necessary to accommodate the needs of the public. To that end, on February 1, 1978, the Respondent, Lee County Board of County Commissioners, applied for a Complex Air Source Permit to be granted for the construction of a four-lane road at Daniels Road, Lee County, Florida. Subsequent to that initial application, revisions of the data provided in support of the application were made on October 12, 1978, and again on January 19, 1979. That application, as revised, may be found as the Respondent's (Lee County) Exhibit No. 1 admitted into evidence and includes aerial photographs. On May 4, 1978, through the person of Phillip R. Edwards, District Manager of the State of Florida, Department of Environmental Regulation, South Florida District, an indication was given that the department intended to issue a Complex Air Source Permit to the Lee County Board of County Commissioners. This exhibit is found as the Respondent's (Lee County) Exhibit No. 2 admitted into evidence. An engineer for the South Florida District, State of Florida, Department of Environmental Regulation, has made a review of the revisions in addition to the original application and is still of the persuasion that the Complex Air Source Permit should be granted. This letter of intent to grant the permit makes reference to the permitting chapter of the Florida Administrative Code pertaining to Complex Air Source Permits and other types of permits. Rule 17-4.07, Florida Administrative Code, sets out the general criterion which must be met prior to the issuance of the Complex Air Source Permit. That provision establishes the need for the applicant to affirmatively provide reasonable assurances based on its plans, test results and other information that the construction of the road and operation on that road will not discharge, emit or cause a violation of the Ambient Air Quality Standards set forth in Rule 17-2.06, Florida Administrative Code, previously referenced. In this case, those assurances have been given. In examining the particular pollutants set out in the Ambient Air Quality Standards table, sulphur dioxide and particulate matter are not items of significant concern, because motor vehicles do not promote the emission of those pollutants in quantities sufficient to exceed the maximum limiting levels. In measuring the amount of carbon monoxide, Lee County utilized a technique known as the representative site method, to be applied in the Cal-Air Model. The ecolyzer which measures this pollutant, was placed in various locations near the intersection of U.S. 41 and Daniels Road, with the object in mind to achieve the gravest readings as a basis for projecting the future amounts of carbon monoxide that would be present in the area of the proposed road expansion. The traffic projections and average speed at the intersection were factored in by Joseph Ebner, P.E., an expert in traffic engineering. The most recent statement of those traffic projections may be found in the January 19, 1979, revision to the application offered by the Respondent, Lee County Board of County Commissioners, which is a part of that Respondent's Exhibit No. 1. In that revision, as was the case of the revision of October 12, 1978, and the original application, the average speed at the intersection was established at fifteen miles per hour, calculated from an engineering textbook, "Highway Capacity Handbook (1975), Highway Research Board, Special Report No. 87". This represents the lowest average speed for an eight-hour period in a signalized intersection of an urban area. In arriving at the traffic count calculations, Mr. Ebner relied on the Lee County Transportation Study, Technical Report No. 6, which contains traffic projections for the year 1990. A copy of this report may be found as Petitioner's Exhibit No. 10 admitted into evidence. The statistics found in that report take into account the projected construction of a regional airport located east of Interstate-75 on Daniels Road, to be opened in the year 1982, and the Opinion that Canal Road, which will intersect with Daniels Road, will be opened in that same year. Calculations made in the January 1, 1979, revision are based upon the belief of a rate of increase in traffic to be eight percent per annum in the area of the intersection of U.S. 41, Cypress Lake Drive and Daniels Road. (At this point it should be indicated that the calculations in the revision of January 1, 1979, labeled, 8-hour Co. Concentrations, U.S. 41 & Cypress Lake Drive [natural traffic mix], are improperly depicted in the columns entitled, "U.S. 41 and Cypress Lake Drive" and must be transposed in their labeling to arrive at the proper mathematical result.) When that adjustment is made, it is established that the highest concentration of carbon monoxide in an eight-hour period in the intersection of U.S. 41 and Cypress Lake Drive in the location of the northwest quadrant for the years 1980 through 1990 was in the year 1980. In that year the measurement would be 9.13 mg/m3 in an eight-hour period. The second most severe year is 1981, in which the measurement is 9.10 mg/m3 as the highest eight-hour carbon monoxide concentration levels in that intersection. The balance of those measurements for the years 1982 through 1990 may be found in the Respondent's, Lee County Board of County Commissioners, Exhibit No. 1 in the January 19, 1979, revision to the permit application. Finally, it should be indicated that the projections made by the Lee County Board of County Commissioners in its application are premised upon a vehicular mix of ninety-four percent automobiles and six percent trucks. Tom Davis, an engineer for the Department of Environmental Regulation, who has the responsibility to review permit applications for Complex Air Source Permits, was involved in advising the applicant on the requirements for compliance for the granting of the permit. Through his involvement, Mr. Davis has been satisfied with the techniques used by the applicant in its efforts at measuring the carbon monoxide and the modeling necessary to answer the ultimate question of whether or not this project will violate the Ambient Air Quality Standards. In this instance, Mr. Davis does not believe those air quality standards will be violated. His testimony established that there are no models designed specifically for the measurement of photochemical oxidants, hydrocarbons or nitrogen dioxide. The hydrocarbons and nitrogen dioxide are area wide phenomena and are not subject to such specific site measurement. However, the area wide monitoring which has been done for nitrogen dioxide throughout the State of Florida, and more particularly in Lee County, Florida, has never shown that pollutant to exceed ten percent of the maximum limiting level. Moreover, carbon monoxide, hydrocarbons and nitrogen dioxide are felt to decrease at roughly the same percentage rate throughout the years, so that the decrease in the carbon monoxide levels at the project site beyond 1980 would reflect a similar decrease at that site in the amounts of hydrocarbons and nitrogen dioxide. Therefore, if there are no problems with carbon monoxide there is no reason to believe that there would be a problem with hydrocarbons and nitrogen dioxide, nor with the photochemical oxidants which are a bi-product of hydrocarbons and nitrogen dioxide combinations. These opinions stated herein are those of Mr. Davis, and David Barker, Ph.D., an air quality expert who testified in behalf of the Respondent, Lee County Board of County Commissioners, agrees. As indicated, these opinions are well founded. Notwithstanding the belief that the Respondent, Lee County Board of County Commissioners, has complied with the requirements of law, an examination of the Petitioners position would seem to be indicated. The Petitioners' argument against the approval of the Complex Air Source Permit falls into two broad categories. The first of those categories has to do with the allegation that the Respondent, Lee County Board of County Commissioners, failed to comply with the instructions in the application form. After considering the testimony in this cause and the exhibits submitted, this contention on the part of the Petitioners is rejected. The second basis for attacking the application concerns the techniques for gathering and applying the data which was utilized by the Respondent, Lee County Board of County Commissioners, in their efforts to establish reasonable assurances that the project would not violate Ambient Air Quality Standards in terms of the maximum limiting levels set forth in Rule 17-2.06, Florida Administrative Code. To this end, the Petitioners offered a series of competing statistics through their exhibits, in terms of traffic projections. In addition, their expert on air quality, Dr. Detar, was of a different persuasion on the question of the average automobile speed through the signalized intersection U.S. 41 and Daniels Road. In Dr. Detar's mind the average speed would be eight miles per hour as the low average speed for an eight-hour period. In view of all the testimony, this projection of the low average speed is not found to be acceptable. Finally, the Petitioners were of the persuasion that the average mix of automobiles and trucks in the area of the project would be more along the lines of the national average of eighty percent cars and twenty percent trucks. The studies conducted by the Respondent, Lee County Board of County Commissioners, in prior projects demonstrated the efficacy of the ninety- four percent automobiles and six percent trucks standard. In measuring other sources of pollution than sulphur dioxide and particulate matter (which the Petitioners do not question in this case), Dr. Detar believed that hydrocarbons and nitrogen dioxide could be modeled. His explanation of the modeling technique, when contrasted with the argument of the Lee County Board of County Commissioners and the State of Florida, Department of Environmental Regulation, to the effect that those two substances may not be modeled on a specific site basis, failed to be persuasive. In summary, in contrasting the evidence offered in behalf of the Petitioners with that offered in behalf of the Respondent; the Respondent, Lee County Board of County Commissioners, has demonstrated reasonable assurances that maximum limiting levels of the applicable pollutants will not be exceeded in the area of the project. The various memoranda and proposed findings of fact and conclusions of law have been reviewed by the undersigned, and to the extent that those items are not inconsistent with the findings of fact rendered herein and conclusions of law and recommendation, they are hereby acknowledged by the entry of this Order. To the extent that those aforementioned items are inconsistent with the findings of fact, conclusions of law and recommendation by the undersigned, they are rejected.
Recommendation It is recommended that the Respondent, Lee County Board of County Commissioners, be granted a Complex Air Source Permit for the construction of the improvements at Daniels Road, Lee County, Florida. DONE AND ENTERED this 1st day of March, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building MAIL: 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: E. G. Couse, Esquire Grace & Couse, P.A. Suite 202, Courtney Building Post Office Drawer 1647 Fort Myers, Florida 33902 L. Caleen, Jr., Esquire General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Beverly E. Myers, Esquire Assistant County Attorney Lee County Post Office Box 398 Fort Myers, Florida 33902 ================================================================= AGENCY FINAL ORDER =================================================================
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background This controversy arose as the result of an application being filed by respondent/applicant, G. T. Williams (Williams or applicant), seeking a permit to construct a biological waste incinerator at 1530 North Beal Street Extension, Fort Walton Beach, Florida. The original application reflected that applicant intended to incinerate type 4 cardboard, paper and plastics furnished by area hospitals, laboratories and doctors' offices at a rate of 440 pounds per hour. Also, the proposed unit included a secondary chamber with a 3,000,000 BTU burner and controls for one second retention at 1800 degrees. However, on August 20, 1990, applicant amended its application to reflect that, instead of a one second retention chamber, it would employ a two second retention chamber to ensure total combustion in the secondary unit. After receiving the application and conducting a review and on-site inspection, respondent, Department of Environmental Regulation (DER), gave notice of its intent to grant the permit on August 23, 1990. The agency action also required applicant to publish notice of such intended action in a local newspaper of general circulation and to provide the agency with proof of publication. Because applicant had obtained a draft of the notice prior to its formal issuance by DER, it published notice of the intended action on August 1, 1990, or more than three weeks prior to the date of the formal proposed agency action. Considering such publication to be ineffective, DER gave notice on October 15, 1990, that it was reversing its earlier action and denying the permit. On October 20, 1990, applicant published notice of the agency action. After DER issued a final order denying the permit, applicant filed an appeal but later dismissed it after DER agreed to issue the permit subject to a petition for hearing filed by a third party prior to the issuance of the final order. On November 1, 1990, petitioner, Okaloosa County (County), the county in which the facility will be located, filed its petition for administrative hearing. As later amended on December 12, 1990, the petition contested the proposed issuance of a permit generally on the grounds that its employees working in nearby areas would be exposed to harmful emissions from the facility and the applicant had not given reasonable assurances that the facility would comply with all DER pollution standards. The Application Type of permit being sought In order for the facility to become operational, Williams is required to obtain both a construction and operating permit. This application concerns only a construction permit and, if approved, Williams will be allowed to construct the facility, have an initial start-up period, and perform compliance testing within the start-up period to demonstrate that the facility can meet the requirements and limitations set forth in the permit. Before obtaining an operating permit, Williams must first perform compliance testing under the auspices of a certified testing consultant employed by DER and submit those results to the agency. If the testing results do not meet all DER standards, an operating permit will not be issued until and if all deficiencies are corrected. The unit Applicant proposes to utilize an incinerator manufactured by Cleaver- Brooks, model CBU-500, with a design capacity to burn 500 pounds of Class 4 biological waste per hour. 1/ As a unit designed to burn no more than 500 pounds of waste per hour, the unit falls in the smallest of the three categories of incinerators regulated by DER. The unit was described by a DER witness as being a "relatively small" one and the size typically found "behind your medium sized hospital". It costs in excess of one hundred thousand dollars. The unit is a modular, factory built, packaged and tested system that burns combustible waste of varying heat content. The basic system consists of the main (pyrolysis) chamber, secondary chamber, which is the primary pollution control device, burners, stack and controls. The incinerator employs a two-stage waste combustion process. In more technical terms, the first stage is a pyrolysis process whereby combustible gases are generated under controlled air and temperature conditions. The main chamber receives waste through a manual batch door or from an optional hydraulically powered feeder, and with the aid of a temperature controlled burner and sub-stoichiometric underfire air supply, combustible gases with minimum particle entrainment are produced. Complete destruction of the fixed carbon and less volatile material takes place continually in the firebed. The second stage is an excess air combustion process whereby the combustible gases generated in the main chamber are ignited in the secondary chamber producing a high temperature carbon dioxide and water vapor flue gas. The secondary chamber supplies all the air for this combustion through temperature controlled forced air jets and employs temperature controlled burners to ensure complete ignition of the gases. The flue gas is then ducted to the stack and exhausted to the atmosphere. Although the applicant originally proposed to use a thirty foot stack on the unit, he has agreed to install a stack having a height that will be a minimum of two and one-half times the height of any building within one hundred fifty feet. Location The proposed site for the incinerator is on a flat, three-acre lot within an industrial park located approximately 1,150 feet east of North Beal Street Extension, a paved collector road that serves an industrial area north of the City of Fort Walton Beach. This location was selected by Williams because it was "run down", was basically "heavy industrial", and was "already polluted" with junk cars and plastic. Indeed, adjacent to or in the general vicinity of the site are undeveloped Eglin Air Force Base property, a plastic recycling plant, a landfill operated by the County, a City of Fort Walton Beach sewer plant and an auto salvage yard. According to the County engineer, the surrounding area "looks pretty bad" but is "probably an average industrial site." There is also an older residential area known as Pine Subdivision which, at its closest point, lies approximately 200 feet southeast of the edge of applicant's property. Applicant owns a 3,000 square foot metal frame building of an undisclosed height on the southeast end of his property and intends to lift up one of the garage bay doors in the front, slide the lower unit in place, peel back three or four sections of metal roof, set the horizontal unit on top, and replace the roof. A stack will then be added to the unit. The property is fenced and access may be had only by a dirt road leading into the area. Treatment process Applicant intends to provide service to various hospitals, physicians, and laboratories in the area. At the present time, approximately one-half of the medical waste in the Panhandle portion of the state is being transported to incinerators in central and south Florida for disposal because there are inadequate facilities in the Panhandle area. Williams will use a panel truck registered with the Department of Transportation to transport all materials to the site. He will also give all customers special sealed containers in which to place their waste materials. These containers, which are known as sharps containers, are designed to hold syringes, scalpels, and other objects capable of penetrating the skin, as well as cotton swabs saturated to the point of dripping. After arriving at the site the truck will be unloaded and the material and containers placed in the incinerator and burned. Because Williams contemplates burning waste as often as needed, waste materials will not be stored on premises except for very short periods of time. In addition, the unit will be operated by a state certified gas operator who has received special training from the manufacturer. The unit into which the waste is fed is approximately eight feet in diameter, nine feet high and cylindrically shaped. Through the use of natural gas, the burn chamber reaches a temperature of sixteen hundred degrees, a temperature at which no organisms can survive. The gases from the first burn chamber then circulate into the secondary burn chamber for two seconds, which is greater than the one second retention time required by DER rules. The only visible emission seen from the stack will be heat waves. All emissions will be well within the air quality standards utilized by DER. Any glass slag or ashes remaining in the unit can be handled as regular waste and disposed of in a class 2 landfill. Finally, the prevailing winds throughout most of the year are from the south and southeast and thus all emissions will blow primarily to the northwest across the sewage treatment plant area. d. DER's review of the application In connection with the processing of the application, DER reviewed it for completeness and accuracy and was satisfied that the application was complete and accurate in all respects, including the submission by applicant of a topographic map. In addition, DER staff conducted an on-site inspection of applicant's property. Also, during the course of the review, DER technical staff had a number of discussions with Williams to clarify the information submitted with the application. Finally, based upon its review of the data originally filed together with information provided by Williams during the review process, DER staff reached the preliminary conclusion that Williams had satisfied all applicable rules and statutes. Petitioner's Concerns In its amended petition, the County raised two principal concerns regarding the construction of the facility. First, it contended that its employees who worked in areas adjacent to the facility would be subject to harmful emissions from the unit. Second, it argued that the applicant had failed to give reasonable assurance that the unit would comply with all DER standards. During the course of the hearing, the County focused principally on the issues of (a) "hot spots", which are high concentrations of pollutants which may occur at a distance of ten feet up to as far as five hundred feet downwind from the point of emission if the stack height on the unit is not at an adequate height, (b) applicant's lack of a storage facility for waste to prevent the potential leaching into the ground of medical waste waiting to be incinerated, and (c) the agency's failure to require Williams to post proof of financial responsibility through a bond. These concerns will be addressed below. The agency does not have a have a specific stack height rule applicable to the incineration process but rather requires that the unit be constructed in accordance with good engineering practices and that it meet all emission requirements. At hearing petitioner's expert agreed that any potential "hot spots" problem would be resolved by applicant agreeing to utilize a stack having a height of at least two and one-half times the height of any building within one hundred fifty feet of the unit. Moreover, DER has required that Williams place a monitoring device on the stack so that all emissions can be measured 24 hours per day. Since the applicant has agreed to both of these conditions, this issue has been resolved. County employees occasionally work on several roads within Pine Subdivision, one of which is only 250 feet from the proposed facility. They also are engaged in the periodic maintenance of ditches which run along the sides of North Beal Street Extension, and eight to ten employees regularly work at the County landfill approximately 1,350 feet away. To this extent, then, it may be reasonably inferred that any potential injury suffered by County employees would differ in degree and kind from that suffered by members of the general public. Even so, with the resolution of the "hot spots" problem, the County's expert agreed that the proposed incinerator would meet all applicable requirements contained in Chapter 403, Florida Statutes, and that all pertinent agency rules would be satisfied. Thus, the employees would not be exposed to emissions that contravene DER's air pollution requirements. There is no evidence of record to support a finding that applicant should file a bond as a prerequisite to being issued a permit. Indeed, the only evidence on this issue suggests that DER requires a bond from an applicant when it believes the applicant has not proceeded in good faith or has a history of violating DER regulations. Neither situation is applicable here. As to the storage issue, the evidence shows that applicant will incinerate materials as often as needed, and waste materials will be kept on the premises only for brief periods of time when the unit is already filled and then only until those materials are burned and the unit is ready to receive new waste. Thus, as a practical matter, the facility will not be used to "store" waste materials within the meaning of that term. In addition, the area where waste materials will be kept until being fed into the unit will be an integral part of the treatment facility, and DER represents it has no authority to require Williams to submit information regarding storage areas associated with the incinerator. Put another way, in the construction permit review process, DER is concerned only with the air pollution source and the adequacy of the proposed control equipment. This was not contradicted. Finally, there was no evidence to suggest that the materials will leak into the ground. Indeed, petitioner's expert suggested only that the facility should be "secure" and that the material should be covered in the event of rain. The Required Reasonable Assurance Effective on an undisclosed date in 1991, new and more stringent DER rules became applicable to all new medical waste incinerators, including that proposed by Williams. Thus, his application was reviewed to determine its consistency with those new standards. An agency rule [rule 17-2.600(1)] provides that facilities with a capacity equal to or less than 500 pounds per hour, such as the Cleaver-Brooks 500 model, shall not have particulate matter emissions exceeding 0.100 grains per dry standard cubic foot of flue gas, corrected to 7% 0 or hydrochloric acid (HCL) emissions that exceed 4 pounds per hour. When operated as proposed by Williams, and as guaranteed by the manufacturer, emissions of small amounts of particulate matter and hydrocloric acid will not exceed those amounts allowed by rule. In addition, any emissions of water vapors and carbon dioxide will be in very small amounts and will not result in unlawful emissions. This finding is based upon the testimony of witnesses Middleswart and Dzurik which has been accepted as being persuasive on this issue. Thus, Williams has given reasonable assurance that the proposed facility will not cause air pollution in contravention of DER standards. The applicant has given reasonable assurance that the proposed facility will comply will all other applicable DER standards and rules. This was not controverted. Therefore, Williams has demonstrated his entitlement to the permit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that G. T. Williams' application for a permit to construct a biological waste incinerator adjacent to North Beal Street Extension, Fort Walton Beach, Florida, should be GRANTED subject to the following condition: That the applicant utilize a stack height of two and one-half times the height of any building within 150 feet of his unit. DONE AND ENTERED this 13th day of January, 1992, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1992.
The Issue The issue for determination is whether Arthur Signore committed the offenses set forth in the administrative complaints and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Arthur Signore (Respondent) was licensed by the Department of Business and Professional Regulation, Construction Industry Licensing Board (Petitioner) as a certified general contractor. He received his license in 1969, qualifying Deluccia Construction. Respondent was issued license number CG CA01004. Subsequently, in 1976, Respondent qualified Construction By Scott (CBS). He was issued license number CG CB01004. At all times material hereto, Respondent has been the qualifier of CBS, and the sole owner and president of CBS. At all times material hereto, Respondent's belief was that Petitioner permitted a general contractor to use his/her license to obtain building permits for construction projects for which the general contractor had no contracts through the business that he/she qualified. Respondent practiced his belief frequently by applying for and obtaining building permits for construction projects for which companies or individuals other than CBS had contracts. Collins Job (Case No. 97-1436) Sometime after Hurricane Andrew in 1992, Respondent made an oral agreement with Harold Bader to go into partnership with Bader and form a construction company, with Respondent qualifying the company. Respondent provided his name, his company's name (CBS), and his license number to Bader in order for the qualifying documents to be completed and submitted to the Petitioner. However, the company was not formed and the qualifying documents were never submitted. At no time material hereto was Bader licensed by the Petitioner to engage in the practice of contracting. Respondent knew or should have known that Bader was not licensed by the Petitioner. In March 1994, Thomas Sherry of American Building Industries, Inc. (ABI), began negotiating with Maria and Wayne Collins, husband and wife, for the remodeling of their home, located at 7417 SW 140th Court, Miami, Florida. On March 24, 1994, the Collins entered into a contract with ABI for the remodeling of their home at a cost of $12,500. Bader was the owner of ABI. Sherry was a salesperson for Bader. Sherry provided the Collins with a business card which showed, among other things, ABI's name, address and telephone number, and license number. The license number on the business card was Respondent's license number. All business cards were provided to Sherry by Bader. At no time material hereto, did Sherry talk with or meet Respondent. The records of the Metropolitan Dade County, Building and Zoning Department reflect, among other things, Respondent's name, his company's name (CBS) and license number on the building permit application for the construction to the Collins' home. However, the address listed for Respondent and his company was the address for ABI. Further, the said records reflect, among other things, that aforementioned information provided, as to Respondent, was used to obtain the building permit. Respondent did not complete the permit application for the building permit to remodel the Collins' home. The Collins paid $6,875 to ABI. Any and all checks were made payable to ABI. No money for the construction on the Collins' home was paid to or received by Respondent. In May 1994, problems developed on the job site between the Collins and ABI. The work performed by ABI failed numerous inspections. Mr. Collins wanted to talk with Respondent who was listed as the contractor on the permit and requested Bader to contact Respondent. Bader refused, indicating to Mr. Collins that all communication should be with him (Bader). Finally, in August 1994 the Collins fired ABI after more problems had developed. At that time ABI had completed some of the work. On August 29, 1994, Mr. Collins met with Respondent at Respondent's place of business. Prior to the meeting, Mr. Collins had called Respondent numerous times regarding his problems with ABI and Bader and requesting assistance from Respondent. Each time Respondent denied having any knowledge of the work being performed. When Mr. Collins met with Respondent, Mr. Collins discussed the problems that he had experienced with ABI and Bader. Respondent continued to deny knowing anything about the construction project but agreed to send his employees to examine the job and determine what could be done, if anything. The following day two of Respondent's workers came to the Collins' home and examined the work completed and the work remaining. Subsequently, Respondent contacted Mr. Collins. Respondent indicated to Mr. Collins that he could complete the job for $5,000. Mr. Collins refused to pay the additional monies since it would extend the remodeling cost beyond the contracted cost and since he was now directly paying the subcontractors. At no time did Respondent or his business (CBS) have a contract with the Collins. Until being contacted by the Collins, Respondent had no knowledge that Bader used his name, business name and license number to contract with the Collins and to obtain the building permit for the remodeling of their home. However, prior to being contacted by the Collins, Respondent had been contacted by other persons who had contracts with ABI, who had been informed by Bader that Respondent was the contractor for their jobs, who had problems with ABI, and who wanted assistance from Respondent. Furthermore, the building permits for the construction jobs of those persons reflected Respondent and Respondent's company as the contractor. At no time material hereto was Bader or ABI licensed by the Petitioner to engage in the practice of contracting. Respondent knew or should have known that neither Bader nor ABI was licensed by the Petitioner to engage in the practice of contracting. Respondent was placed on notice of their unlicensed activity after the contacts by the homeowners prior to the contact by the Collins. Even with the knowledge of the homeowners' complaints prior to the Collins' complaints, at no time did Respondent notify Bader to stop using his (Respondent's) name, company's name and license number. Further, at no time did Respondent notify the Metropolitan Dade County, Building and Zoning Department of Bader's misuse of his (Respondent's) name, company's name, and license number or to no longer issue permits to ABI under his (Respondent's) name, company and license. Walsh Job (Case No. 97-1435) In the Fall of 1995, Patrick and Susan Walsh entered into an oral agreement with John Petracelli for an addition to and the remodeling of their home, located at 761 Glen Ridge Road, Key Biscayne, Florida. On October 16, 1995, the Walshes entered into a verbal agreement with Petracelli for an engineer to produce a set of plans at a cost of $2,250 for the construction to their home. The Walshes paid Petracelli the $2,250 on October 16, 1995. On December 7, 1995, the Walshes entered into a written agreement with Petracelli for the construction work on their home at a cost of $84,000. Pursuant to this written agreement, the Walshes paid Petracelli $16,800 on December 7, 1995. Petracelli contacted Respondent and requested Respondent to be the contractor for the construction work on the Walshes' home. Respondent and Petracelli had met one another previously when Petracelli was a salesperson for Bader. Petracelli informed Respondent that he (Petracelli) had already told the Walshes that Respondent was the contractor. To the contrary, Petracelli had not informed the Walshes that Respondent was involved in the construction to their home. Respondent agreed to be the contractor but informed Petracelli that, until a set of plans was approved by the Village of Key Biscayne Building Division (Building Division), he could not provide Petracelli with a cost figure for the construction work. Petracelli informed Respondent that the plans were being prepared, but did not inform Respondent that the Walshes had paid for the preparation of the plans. Respondent agreed further to submit the completed plans to the Building Division for a "dry run" only. After the dry run, Respondent would provide a cost figure for the construction work. A dry run is a process in which a contractor, who has a complicated job which requires an engineer, submits a set of plans, together with an application for a building permit, to the Building Division for approval. The plans may be subject to several modifications requested by the Building Division before they are approved. As a result, the contractor does not know the estimated cost of a job until the plans have gone through the requested modifications, if any, and approved by the Building Division. After the plans are approved by the Building Division, the contractor is notified to come to the Building Division and sign for and obtain the building permit. Pursuant to the agreement between Respondent and Petracelli, on or about December 11, 1995, Respondent completed an application for a building permit for the addition to and the remodeling of the Walshes' home and gave it to Petracelli. The application reflected, among other things, CBS (Respondent's company) as the contractor, and Respondent as the qualifier. Respondent provided the application to Petracelli for the dry run process only. Further, Respondent reiterated to Petracelli that, once the plans were approved by the Building Division, he (Respondent) would meet with the Walshes and agree on a cost for the construction work on their home and that, after agreeing on the cost he (Respondent) would sign for and obtain the building permit for the construction to begin. Respondent was not aware that Petracelli and the Walshes had a signed agreement for the construction work. Petracelli submitted the plans, along with the permit application, to the Building Division for approval. The plans were modified several times to meet the approval of the Building Division, but were never approved. The Building Division considered the plans submitted to be substandard. Since no plans were approved, no building permit was issued. On or about January 3, 1996, the Walshes met at the Building Division with some of the Building Division's officials, Petracelli, and the engineer who prepared the plans. As a result of the meeting, among other things, the Walshes were able to review the permit application and discovered that Respondent, not Petracelli, was licensed and the contractor for the construction work; concluded that the engineer's work was considered so substandard by the Building Division that any modification produced by the engineer would not be approved by the Building Division; and determined that they no longer wanted Petracelli to perform the construction work on their home. Within 24 hours of the meeting, the Walshes telephoned Petracelli and terminated his services. Also, the Walshes requested the return of all of the monies paid to Petracelli by them; however, Petracelli did not return any of their money. At no time material hereto was Petracelli licensed by the Petitioner to engage in the practice of contracting. Respondent knew or should have known that Petracelli was not licensed by the Petitioner. At no time material hereto did Respondent or his company (CBS) have a contract with the Walshes. At no time material hereto did Respondent have any communication or contact with the Walshes. Biscayne Kennel Club Job (Case No. 97-2998) The Biscayne Kennel Club (BKC), located at 320 NW 115th Street, Miami Shores, Florida, was a track for greyhound racing. On October 30, 1995, the last race was run at BKC. In February 1996, the BKC sold its Pari-Mutuel license. On or about December 11, 1996, the BKC, by and through its representative, Carl Spitzer, entered into a written contract with Cuyahoga Wrecking Corporation (CWC), by and through its representative, Thomas Schwab, for, among other things, the removal of asbestos and the demolition and removal of BKC's grandstand structure and viewing area. The contract was prepared by Schwab, who had 25 years of experience in the demolition business, with 20 years of that experience in the State of Florida. All contract negotiations were between Schwab and Spitzer. At no time was the President and CEO of BKC, Kay Spitzer, involved in the contract negotiations. As to cost, the contract provided at Article 4 that the cost was $37,500 and that the $37,500 was "dedicated to the removal of the described ACM." Further, Article 4 provided that the "balance of the work to be paid for by the sale of the ferrous and non-ferrous metals by the contractor." In addition, the contract provided in Article 7 that, among other things, all permits were included in the contract price and that BKC and the "contractor" would share "equally all the proceeds of the non-ferrous metals minus whatever costs are incurred bringing it to market." The contract did not restrict or prohibit CWC from engaging the services of any individual or subcontractor to perform the work required in the contract. The grandstand structure and viewing area were one structure. Attached to the roof of the structure was a small building which was used by BKC personnel for viewing the races. The roof was the highest part of the structure, except for the small building. The distance from ground level to the top of the roof was 69 feet and 10 inches; and the top of the small building was approximately 15 feet higher than the top of the roof. CWC contracted with Sal's Abatement to perform the asbestos removal. Schwab was licensed by Dade County, Florida, as a specialty contractor. He was notified that the work for the BKC job was outside the scope of his license and that a contractor, licensed by the Petitioner, was required for the BKC job. Schwab contacted Respondent to be the general contractor. Schwab had worked with Respondent before on other, but smaller, jobs. Respondent agreed to be the general contractor in return for a percentage of the contract. Per the agreement, Respondent would obtain the necessary permits, provide the equipment necessary for the demolition, and supervise the workers on the job. On March 6, 1997, Respondent completed an application for a building permit with Miami Shores Village, Florida, for the demolition of the BKC grandstand. The application reflected Respondent's company (CBS) as the contracting company and Respondent as the qualifier. Carl Spitzer signed the permit application on behalf of BKC. On March 17, 1997, a building permit (permit number 41084) was issued by the Village of Miami Shores for the demolition of BKC's grandstand. On April 29, 1997, the cost of the permit, $566.50, was paid. At no time material hereto was Schwab or CWC licensed by Petitioner to engage in the practice of contracting. Respondent knew or should have known that neither Schwab nor CWC were licensed by Petitioner. At no time did a contract exist between Respondent or his company with BKC for the demolition job. Respondent supervised CWC's preparation of the grandstand for demolition. In preparing the grandstand for demolition, Respondent and Schwab met at the site at least 3 times to discuss the demolition and its progress. On May 16, 1997, the grandstand was scheduled to be demolished. On the morning of May 16th, as Schwab was leaving BKC, Respondent arrived. Shortly thereafter, the grandstand accidentally collapsed--the beams supporting the roof of the grandstand failed, and the roof collapsed. Two of CWC's workers were killed and three were seriously injured. After the collapse, BKC contracted with another company, Omega Contracting, to complete the demolition job. The Petitioner submitted documents reflecting that its costs of investigation and prosecution of the complaints against Respondent, excluding costs associated with attorney's time, to be $1,017.25. On May 22, 1997, pursuant to an Emergency Suspension Order, on May 22, 1997, the Petitioner suspended Respondent's license. Respondent has no prior disciplinary action taken against him by the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a final order: Dismissing all counts in Case Nos. 97-1435 and 97-1436. Finding that Arthur Signore violated Subsections 489.129(1)(c), (e), and (j), 489.1265(3), and 455.227(1)(a), Florida Statutes (1995). Revoking Arthur Signore's certified general contractor's license. Requiring Arthur Signore to pay all reasonable costs of investigation and prosecution associated with the Department of Business and Professional Regulation's investigation and prosecution of the charges set forth in the Administrative Complaint of Case No. 97-2998.3 DONE AND ENTERED this 13th day of January, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1998.
The Issue The issue in this case is whether Respondent, Action Instant Concrete, LLC (AIC), should be allowed to use the Concrete Batching Plant Air General Permit promulgated by Respondent, Department of Environmental Protection (DEP), in Florida Administrative Code Rule 62-210.300(4)(c)2.1
Findings Of Fact Petitioners, Paul and Barbara Corbiey, live at 7380 Southwest 86th Lane, Ocala, Florida, in an area called Green Turf Acres. Petitioners' property shares a boundary with property owned by AIC at State Road 200. In 2003 AIC began construction of a relatively small cement silo and area for storage of rock aggregate and sand to mix with the cement, similar to facilities at a related operation some distance away. The other operation is within the jurisdiction of DEP's Central District, which did not require a permit for the operation. AIC's operation in Ocala is in DEP's Southwest District, which is headquartered in Tampa. Periodically (and irregularly but apparently usually early in the morning) AIC receives deliveries of cement to the silo at its facility next to the Corbieys. The silo is essentially a rectangular bin with a baghouse, essentially another rectangular structure attached to the silo and containing a combination of filters. Deliveries are made using an enclosed truck with a blower and flexible hose that can be positioned and attached to the fill spot on the silo. The transfer of cement from truck to silo is accomplished pneumatically, with the air exhausted through the baghouse, which is designed to capture and retain cement particles within the silo as the air passes through to the outside of the silo. If there are particulate emissions during the process, they typically would come from the baghouse. AIC also has aggregate and sand delivered to storage areas on either side of the silo. Each of the storage areas has walls made of 4-5 courses of cement block on three sides. The walls are there mainly to contain the aggregate and sand but also serve as a partial windbreak. During AIC's operations, trucks come to pick up cement, aggregate, and sand. To load cement onto the trucks, cement is gravity-fed from a hopper on the silo, through a flexible tube, and into the truck; aggregate and sand also are loaded into trucks using a front-end loader. Unconfined emissions can and, at least sometimes, do occur during the loading processes. After loading, the trucks are driven offsite, typically to a construction site, where the cement, aggregate, and sand are batched to form concrete. When AIC began operations, its yard was covered with grass and weeds, which helped suppress fugitive dust when trucks drove in and out. Later, the grass and weeds died, and AIC installed three sprinkler heads to keep the area watered to help suppress fugitive dust. When AIC began construction and operation, Petitioners complained to numerous authorities that AIC's construction and operation were illegal, inappropriate, and should not be allowed for various reasons, including alleged particulate emissions and fugitive dust that was harmful to the health and property of Petitioners and their neighbors.13 One complaint was lodged with DEP's Central District, which referred it to DEP's Southwest District. DEP's Southwest District investigated, determined that AIC should have obtained a permit, initiated compliance action, and required AIC to make use of the Concrete Batching Plant Air General Permit promulgated by DEP in Rule 62- 210.300(4)(c)2. DEP also fined AIC in the amount of $4,150, plus $100 to reimburse DEP for its costs, for constructing and operating without a permit.14 These amounts were paid. It does not appear from the evidence in the record that DEP ordered AIC to cease operations until DEP allowed AIC to use the Concrete Batching Plant Air General Permit. It does not appear that AIC ceased operations. As DEP instructed, AIC had a VE test performed in accordance with EPA Method 9 for submission with a Concrete Batching Plant Air General Permit Notification Form, fee, and proof of public notice. AIC retained Koogler & Associates for this purpose, and the test was performed on April 26, 2005. On April 29, 2005, AIC published notice in the Ocala Star-Banner that it intended to use the Concrete Batching Plant Air General Permit. On May 5, 2005, Koogler & Associates prepared a VE Observations Report for AIC. On May 16, 2005, Petitioners filed a Petition opposing AIC's use of the Concrete Batching Plant Air General Permit and seeking its revocation. On May 19, 2005, AIC submitted a Concrete Batching Plant Air General Permit Notification Form, fee, proof of public notice, and VE observation report to DEP. At the hearing, John B. Koogler, Ph.D., P.E., an expert in environmental science and air quality, and the principal of Koogler & Associates, testified as to the cement and concrete industry in general, EPA Method 9, required certifications for conducting a VE test under EPA Method 9, VE testing under EPA Method 9, and the VE Observations Report prepared for AIC by Koogler & Associates. In the case of AIC's operation, VE testing measures stack emissions during standard loading of cement under pressure. Typically, if there are emissions during the process, they will be seen at the baghouse on the silo--i.e., the dust collector at the exhaust point. This is where VE is measured during testing. AIC's stack emissions were tested at a loading rate of approximately 50 tons per hour; at that rate, 25 tons of cement were loaded into the silo in half an hour. According to AIC's VE Observations Report, there were no stack emissions during testing. Dr. Koogler did not perform the test himself and did not sign the Observations Report, but the test was performed and the report was prepared under his general supervision, and experts in his field routinely rely on VE testing performed by certified technicians under general supervision and on observations reports prepared by others under general supervision. According to Dr. Koogler, the test for AIC appeared to have been performed properly and met the requirements of EPA Method 9 and DEP's statutes and rules for use of the Concrete Batching Plant Air General Permit. Petitioners questioned the veracity of the VE Observations Report, primarily by speculating that the certified technician who performed the test may have fabricated the observations, either with or without his employer's knowledge. This speculation is rejected as unfounded. Petitioners also repeatedly questioned the consistent and reasonable testimony of all the experts that valid, authorized VE observations could not be performed using Petitioners' videotapes. Besides, the videotape in evidence did not show loading of the silo. As a result, Petitioners presented no evidence that VE in excess of five percent opacity occurred during cement loading of the silo. Petitioners also alleged that violations occurred during the loading of trucks at AIC's operation. Witnesses testified to seeing various amounts of dust from various distances occurring at various times, but their testimony was not specific. Parts of the videotape in evidence show some unconfined emissions occurring during the loading of at least some of the trucks. However, as indicated above, VE testing is not done for unconfined emissions; in addition, standardized opacity measurements could not have been made from a videotape. Finally, the videotape showed that AIC uses a chute, or partial enclosure, to mitigate emissions at the drop point to the truck, and the evidence was that AIC maintains its parking areas and yards and applies water when necessary to control emissions. Cf. Conclusions 22-23, infra. Dr. Koogler also opined that AIC and its operation may use the Concrete Batching Plant Air General Permit under a proper interpretation of the statutes and rules, in particular Rule 62-296.414, which states that it not only applies to "emissions units producing concrete and concrete products by batching or mixing cement and other materials" but also applies to "facilities processing cement and other materials for the purposes of producing concrete." This opinion was consistent with DEP's interpretation of the statutes and rules. Petitioners also contended that AIC was ineligible for the Concrete Batching Plant Air General Permit because its facility already was in existence and was operating without a permit. However, expert witnesses for DEP and for AIC testified consistently and reasonably that DEP can require a facility operating without a permit to use the Concrete Batching Plant Air General Permit in order to come into compliance. It is not necessary for the facility to dismantle its facility and rebuild after obtaining authorization to use the Concrete Batching Plant Air General Permit under Rule 62-210.300(4)(a)2. Under these circumstances, it is reasonable for the facility to submit VE test results along with the facility's initial Concrete Batching Plant Air General Permit Notification Form, fee, and proof of public notice. In the exercise of its discretion to enforce compliance, DEP allowed AIC to continue to operate before and during the pendency of this proceeding. Petitioners questioned the wisdom and propriety of this choice, but DEP's exercise of discretion in enforcing compliance is not at issue in this proceeding. See Conclusion 24, infra.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order approving AIC's use of the Concrete Batching Plant Air General Permit under Rule 62-210.300(4)(a)2. Jurisdiction is retained to consider a motion for costs and attorney fees under Section 57.105, Florida Statutes, if filed within 30 days after issuance of the final order. DONE AND ENTERED this 31st day of March, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2006.
Findings Of Fact The Cutler plant of Respondent, Florida Power & Light Company (FPL), is located in Dade County, Florida, at 14925 Southwest 67th Avenue, approximately 15 miles south of Central Miami on an 80-acre site adjacent to Biscayne Bay. The plant has provided electrical service since 1949. At one time there were six generating units at the plant, but units 1, 2, 3 and 4 have been retired and are no longer in service. Cutler Units 5 and 6 were placed in service in 1954 and 1955, respectively. Both units were placed on extended cold standby in 1976, and were returned to service in 1982. These units are normally used only when other FPL generating units are out of operation or if extremely hot or cold weather creates an unusual electrical demand by FPL's customers. Cutler Unit 5 is a 75 megawatt steam generating unit. Cutler Unit 6 is a 161.5 megawatt steam generating unit. Each unit operates with a combustion engineering design boiler which is capable of burning No. 6 residual fuel, No. 2 distillate fuel, and natural gas. These fuels may be burned independently or in combination with each other. Combustion products from the boilers are exhausted through two separate stacks, each 150 feet in height. When in operation these units emit the following regulated air pollutants: particulate matter, sulfur dioxide, nitrogen oxides, and carbon monoxide. Cutler Units 5 and 6 are "existing fossil fuel steam generators" subject to the emission limiting standards specified in Rule 17-2.600(5)(b), Florida Administrative Code (F.A.C.), the ambient air quality standards specified in Rule 17-2.300(3), F.A.C., and the ambient air quality standards soecified in Section 24-17(1) and (2)(b), Dade County Code. Rule 17-2.600(5)(b), F.A.C., limits: (1) visible emissions to 20 percent opacity, (2) emission of particulate matter to 0.1 pounds per million Btu heat input, maximum 2-hour average, and (3) sulfur dioxide emissions to 1.1 pounds per million Btu heat input. Rule 17-2.300(3), F.A.C., establishes the maximum permitted levels of sulfur dioxide, particulate matter, carbon monoxide and nitrogen dioxide, as follows: sulfur Dioxide. Maximum three hour concentration not to be exceeded more than once per year-- 1300 micrograms per cubic meter (0.5 ppm). Maximum 24-hour concentration not to be exceeded more than once per year--260 micrograms per cubic meter (0.1 ppm) Annual arithmetic mean--60 micro- grams per cubic meter (0.02 ppm). Particulate Matter. Maximum 24-hour concentration not to he exceeded more than once per year-- 150 micrograms per cubic meter. Annual geometric mean--60 micrograms per cubic meter. Carbon Monoxide. Maximum one hour concentration not to be exceeded more than once per year--40 milligrams her cubic meter (35 ppm). Maximum eight hour concentration not to be exceeded more than once per year--10 milligrams per cubic meter (9 ppm). * * * Nitrogen Dioxide. Annual arithmetic mean--100 micrograms per cubic meter (0.05 ppm). Section 24-17(1) and (2)(b), Dade County Code, establishes the following ambient air quality standards and emission standards for maximum sulfur dioxide concentrations: Ambient air quality standards. . . . Annual arithmetic mean-8.6 micro- grams per cubic meter (0.003 parts per million); Twenty-four-hour concentration-- 28.6 micrograms per cubic meter (0.010 parts per million); Four-hour concentration-57.2 micro- grams per cubic meter (0.020 parts per million); One-hour concentration-286 micrograms per cubic meter (0.100 parts per million). Emission standards... Existing sources on the effective date of this section [Ordinance Nos. 76-52]: 1.1 pounds per million Btu heat input, maximum two-hour average, when liquid fuel is burned; On June 23, 1983, FPL submitted its application for renewal of the operating permits for Cutler Units 5 and 6 to DER. FPL's initial application contemplated burning No. 6 fuel oil containing up to one percent sulfur content to provide up to 25 percent of the heat input to each unit, with natural gas constituting the remaining 75 percent. During 1982 and 1984 several tests were performed at Units 5 and 6 to determine the level of particulate matter and visible emissions. Particulate and visual emissions testing was conducted at Unit 5 on June 30, 1982, and at Unit 6 on July 9, 1982, with the units burning a mixture of 75 percent natural gas and 25 percent fuel oil containing one percent sulfur. The results of these tests indicate the average particulate emission rate from each unit to be 0.04 pounds per million Btu head input, as compared to the applicable emission limit of 0.1 pound per million Btu input established by Rule 17-2.600(5)(b), F.A.C. Visual emissions were established as 6 percent for Unit 5 and one percent for Unit 6, as compared to the capacity limit of 20 percent established by Rule 17- 2.600(5)(b), F.A.C. Additional visual emission tests were conducted at Units 5 and 6 on August 10, 1983. The results of these tests indicted visible emissions to be less than 5 percent. While FPL's permit application was pending, residents of the neighborhood in the vicinity of the plant expressed concern to DER regarding "plume down wash." "Down wash" is a term used to describe an aerodynamic effect that, at higher wind speeds, causes reduction in pressure on the leeward side of the building or structure resulting in turbulent air flow around and within the cavity. If the exhaust plume from the stack of an air pollution source is near enough to the low pressure cavity, it is drawn into the turbulence and follows the air flow down to the leeward side of the building, thereby increasing the impact of emissions at ground level in the surrounding area. Air quality dispersion modeling is a method of predicting the impact of emissions from an air pollution source upon ground level air quality in the surrounding area. Inputs to the model include local meteorological data (wind speed, direction and mixing depth, and atmospheric stability and pressure) and source-specific information regarding stack height and diameter, exhaust gas temperature and velocity, and pollutant emission rate. The model provides a prediction of the ground level concentration of an air pollutant that will result from an emission source at any geographic point. The maximum point of impact from a particular source, under the "worst case" meteorological conditions, can therefore be identified and the resulting pollutant concentration predicted. Air quality di spersion modeling is a well-accepted technique in the field of air quality control, and specific models have been developed and approved by the United States Environmental Protection Agency. A screening analysis performed by DER meteorologist, Thomas Rogers, indicated that the configuration of the Cutler Units 5 and 6 and their exhaust stacks could create plume down wash. In order to address the potential effects of down wash from Units 5 and 6, FPL retained Environmental Science and Engineering, Inc. (ESE) to perform an air quality dispersion study. The initial ESE study, submitted to DER on February 14, 1984, evaluated the effects of emissions of sulfur dioxide from Units 5 and 6 on ground level air quality in the surrounding area, under both down wash and non- down wash conditions. As was contemplated in FPL's permit applications, this modeling study assumed that up to 25 percent of the heat input to each unit would be provided by No. 6 residental fuel oil containing one percent sulfur, with 100 percent fuel oil being burned during start-up until the unit achieved 25 percent load. The ESE study concluded that, under the worst-case emission and down wash conditions, the sulfur dioxide concentration at the point of maximum impact in the area surrounding the Cutler site would be a: (1) maximum three-hour concentration of 410 micrograms per cubic meter, (2) maximum 24-hour concentration of 114 micrograms per cubic meter, and (3) annual arithmetic mean of 9 micrograms per cubic meter. ESE performed an additional study to evaluate the maximum inpact of emissions of three other pollutants (nitrogen dioxide, carbon monoxide, and total suspended particulate) from Units 5 and 6, based on the same fuel assumptions. The predicted ambient air concentrations of these pollutants at the point of maximum impact, and under worst-case down wash and emission conditions, were: Nitrogen dioxide - annual arithmetic mean of 8.7 micrograms per cubic meter. Carbon monoxide - Maximum one-hour concentration of annual 23.3 micrograms per cubic meter. Maximum eight-hour concentration of annual 13.9 micrograms per cubic meter. Total suspended particulate - Maximum 24-hour concentration of annual 10.9 micrograms per cubic meter. Annual geometric mean - 0.8 micrograms per cubic meter. ESE subsequently performed a third analysis to determine the sulfur dioxide emission rate from Cutler Units 5 and 6 that would demonstrate compliance with the ambient air quality standards for sulfur dioxide established in the Metropolitan Dade County Pollution Control Ordinance. ESE's analysis concluded that under worst-case building down wash conditions, the maximum 1- and 4-hour sulfur dioxide concentrations from Units 5 and 6 were predicted to be 662 and 248 micrograms per cubic meter. These maximum concentrations were higher than the 1- and 4-hour standards established by the Dade County Code. Based on these results, ESE concluded that compliance with the Dade County ambient air quality standards would require that the maximum sulfur content of fuel oil burned during start-up would have to be limited to 0.23 percent. Additional particulate and visible emissions tests were conducted at Unit 5 on March 1, 1984, and at Unit 6 on February 29, 1984, with the units burning 100 percent natural gas. Unit 5 demonstrated an average particulate emission of 0.02 pounds per million Btu and Unit 6, of 0.01 pounds per million Btu, with neither unit exhibiting any visual emissions. During all compliance testings at Units 5 and 6, the units were operating at a capacity of at least 90 percent maximum load, in accordance with the testing requirements and policy of DER. Based on the results of ESE's third modeling study, FPL amended its permit applications to include a restriction requiring Units 5 and 6 to burn 100 percent natural gas except during start-up, and to limit the sulfur content of the oil burned during start-up to a maximum 0.2 percent. The air quality dispersion modeling performed by ESE utilized the only model currently approved by the United States Environmental Protection Agency and DER that is capable of taking aerodynamic down wash into consideration. DER's expert in air dispersion modeling found no fault with the conclusions reached in the ESE modeling studies. Possible differences between the actual Cutler plant building dimensions and configurations and those assumed in the modeling studies would not significantly change any of the conclusions reached. The draft permits for Units 5 and 6 would require the burning of 100 percent natural gas, except during periods of unit start-up when fuel oil may contribute up to 170 million Btu per hour of heat input to Unit 5 and 290 million Btu per hour heat input to Unit 6 (approximately 22 percent of each unit's maximum heat input). In addition, the draft permits limit total sulfur dioxide emissions from Units 5 and 6 to 41.3 pounds per hour and 70.1 pounds per hour, respectively. These sulfur dioxide emission limitations will insure compliance with the Dade County ambient air quality standards for sulfur dioxide, based upon the results of the ESE modeling studies. In order to meet the sulfur dioxide emission limits in the draft permits, the maximum sulfur content of fuel oil burned for Units 5 and 6 would be restricted to 0.23 percent. Operation of Cutler Units 5 and 6 in compliance with the conditions of the draft permits will provide reasonable assurance that the units will not cause any violation of the Dade County ambient air quality standards for sulfur dioxide, or the Florida ambient air quality standards. Use of 100 percent natural gas, except during start-up when residual fuel oil with maximum sulfur content of 0.23 percent is burned, will insure compliance with the emission limiting standards for particulate matter, opacity and sulfur dioxide established for existing fossil fuel steam generators by Rule 17-2.600(5)(b), F.A.C. The use of high quality, "clean", fuel as required by the draft permits, constitutes the most effective air pollution control strategy for Units 5 and 6. The primary concerns expressed by the Petitioners regarding Cutler Units 5 and 6 relate to noise, odors, down wash, and fumes they attribute to operation of the Cutler plant. Although the testimony and evidence on these points related to past experience of Petitioners, they were unable to specify what operating conditions and fuels resulted in the incidences of concern. On at least three of the occasions Jean Guthrie recorded objectionable odors or other effects felt to be attributable to the Cutler plant, neither Unit 5 nor Unit 6 was in operation. The record of complaints registered with the Dade County Consumer Advocate, from the time Cutler Units 5 and 6 were reactivated until two weeks before the final hearing, shows that there have been no complaints regarding the plant since June 3, 1983. No evidence was presented demonstrating that any past problems that may have been caused by operation of the Cutler plant will continue under the stringent restrictions on emissions, fuel type, and fuel quality imposed by the draft permit conditions. No violations of ambient air quality standards or emission limitations have been discovered and documented by DER with respect to Cutler Units 5 and 6. Neither Petitioners nor the members of the public that testified produced any evidence that Cutler Units 5 and 6 will be unable to comply with the conditions of the draft permits issued by DER. Nor was any evidence produced demonstrating that operation of Cutler Units 5 and 6 in compliance with the draft permits will result in emissions in excess of the emission limits prescribed under DER's rules, or will cause or contribute to any violations of the Florida or Dade County ambient air quality or emissions standards. Petitioner, Walter Guthrie, presently resides in Phoenix, Arizona, where he is employed in a permanent position with American West Airlines, a carrier servicing the southwestern and midwestern United States. He has been employed by American West Airlines, and has resided in Phoenix, for approximately 15 months, is registered to vote in the State of Arizona, and has an Arizona driver's license. Walter Guthrie holds no ownership interest in the home located at 6960 Southwest 144 Street, Miami, Florida, which home is owned by his parents, William L. and Jean Guthrie. Walter Guthrie has only visited his parents' home approximately three weeks in the year immediately preceding the final hearing in this case, and while some of his personal property is kept at that location, there is no certainty that Walter Guthrie will at any time in the future take up residence at his parents' home.
The Issue Whether construction permit No. AC41-6819 issued to Manatee Energy Company, dated June 8, 1978, should be amended, as proposed in construction permit No. AC41-6819A, dated November 7, 1978.
Findings Of Fact The parties stipulated to the following facts: The Manatee Chapter of the Isaak Walton League of America ("Isaak Walton League") is a non-profit corporation, organized and existing under Florida law. The Isaak Walton League's address is 5314 Bay State Road, Palmetto, Florida 33561. Manatee Energy Company ("Manatee Energy") is a Florida corporation, whose address is 108 Appleyard Drive, Post Office Box 867, Tallahassee, Florida 32302, and was formerly a subsidiary of Belcher Oil Company. The State of Florida Department of Environmental Regulation ("DER") is an agency of the State of Florida charged with the regulation and control of air and water pollution under Chapter 403, Florida Statutes, whose address is Twin Towers Office Building, 2600 Blair Stone Road, Tallahassee, Florida 32301. The specific agency action at issue in this proceeding is DER's issuance of a revised permit to Manatee Energy to modify a crude oil splitting facility and modified or additional rundown tankage at Port Manatee, Florida. The facility at issue will be located in North Manatee County near the Hillsborough/Manatee County line in Port Manatee. On November 7, 1978, DER issued Manatee Energy Permit No. AC41- 6819A. The validity of the permit is disputed by the Petitioner. Manatee Energy has undertaken construction of the crude oil splitter and associated tankage under either Permit No. AC41-6819 and Permit No. AC41-6819A. (Exhibit 1) On June 8, 1978, after administrative proceedings conducted under Chapter 120, Florida Statutes, DER issued construction permit AC41-6819 to Manatee Energy for the construction of a 15,000 BPSD crude oil splitter at Port Manatee, Florida. The permit stated that the oil splitter is to separate crude oil by distillation into three fractions; i.e., LPG, jet fuel and bunker "C." It further provided that combustion devices were to be fired with LPG or fuel oil with a sulfur content of 0.7 percent or less. Various conditions were attached to the issuance of the permit, including analysis of samples of fuels to be burned in the furnace and boiler, performance testing of stacks after startup of the facility, emission limits for the furnace and boiler, and periodic monitoring and reporting of heat content and sulfur content of fuel oil combusted in the boiler and furnace. In addition, condition 5 required that all fugitive dust generated at the site be adequately controlled, and conditions 12- 13 required that steps be taken in conjunction with the Manatee Port Authority to correct any ambient particulate violations, such as paving of roads, parking lots and the like, prior to issuance of an operating permit. The Chapter 120 administrative proceedings resulted in a determination that the proposed facility would not release air pollutants exceeding ambient air quality standards, or significantly degrade applicable base line air quality. (Exhibits 1-2) On October 27, 1978, Manatee Energy applied to DER for revision of the existing permit. The proposed revision was prompted primarily by the fact that Manatee Energy had been sold by its parent company, Belcher Oil Company, and had become an independent operator subsequent to the issuance of the original permit. This change in ownership created a need for accurate recording and accounting of product volume and quality before its transfer to Belcher's storage tanks which are adjacent to the crude oil splitter facility. To accomplish this purpose, Manatee Energy proposed the addition of two 10,000 barrel JP-4 "rundown" tanks for jet fuel, and one 10,000 barrel diesel "rundown" tank in lieu of previously permitted tank No. 410. Also, a 33,000 barrel slop oil tank to temporarily receive and hold off-specification product, and a 40,000 barrel waste water tank replacing a 35,000 barrel tank previously permitted (tank No. 409), were proposed to be added. In view of the above proposed changes, the nine storage tanks owned by Belcher (tanks Nos. 401-409), four of which are leased by Manatee Energy (tanks Nos. 406-409), will store different products except for tanks Nos. 405 and 407 which will remain unchanged. Under the original permit, two 80,000 gallon tanks were to be used to store JP-4, (tanks Nos. 403-404), but under the new proposed arrangement, only one will be used for that purpose (tank No. 406). Tank No. 403 will be used exclusively by Belcher for asphalt storage. Tank No. 409 will he converted from a waste water tank to a No. 6 fuel oil tank. Based on revised determinations of hydrocarbon emission factors by the Environmental Protection Agency after Manatee's application for the original permit, secondary seals on internal floating roof tanks will be deleted, but existing floating roof tank No. 407 is proposed to be modified by adding secondary seals to reduce such emissions. Revised calculations by the applicant as to hydrocarbon emissions show that the proposed changes in tank service and design will offset expected emissions from the proposed new tanks. Such emissions from the revised facility are expected to be 16.8 tons less than the currently permitted tankage emission rate of 75.4 tons per year. (Testimony of Hutchinson, Borie, Exhibits 4, 6-9) Additional modifications to the existing permit proposed by Manatee Energy are to relocate the emergency flare stack, move the process heater, boiler and control room approximately 150 feet each from their previously contemplated locations, and to raise the crude tower approximately 16 feet. The tower produces no emissions and the change is designed to improve the distillation process. Movement of the flare stack and the other process equipment and control room are proposed for safety reasons and do not alter the process configuration or increase emissions. Finally, a Merox treating unit was added for the purpose of extracting impurities from jet fuel. This process does not involve any emissions. (Testimony of Hutchinson, Borie, Larsen, Exhibits 4, 6, 14-15) The revised permit application consisted of engineering drawings by the firm of Marsco Engineering Corporation, Tyler, Texas which was employed subsequent to issuance of the original permit, and a report concerning the proposed changes prepared by Walk, Haydel and Associates, Inc., an engineering consultant and design firm of New Orleans, Louisiana. A complete DER application form was not submitted or required by DER. Only a revised page 4 of the standard application form was submitted. There was no certification of the project by a professional engineer registered in Florida, although such a certification is required by DER rules. The application was reviewed and recommended for approval to DER by the Manatee County Pollution Control Director. Personnel of DER's Southwest District Office reviewed the application and determined that the applicant's calculations showing that proposed hydrocarbon emissions would be less than those projected under the original permit were correct. They further found that concentrations of sulfur dioxide and particulate emissions would be unchanged by the modifications to the facility. The latter determination was supported by the results of an air quality computer model programed under standard EPA criteria to estimate the impact of such emissions from pollutant sources on ambient air quality standards at ground level. The model determined the maximum impact of sulfur dioxide pollutants which would emanate from the relocated stacks at receptor points approximately .7 to .8 kilometers south of the facility. It was found that the maximum pollutant impact during the worst twenty-four hour period would not change significantly from the former configuration of the stacks and would be well within state ambient air standards of 260 micrograms per cubic meter. A separate computer model relative to particulates was not required because such emissions when extrapolated from the sulphur dioxide model would result in basically unchanged emissions compared to the originally permitted configuration. Manatee County Pollution Control has operated an air quality monitor at Port Manatee for a number of years. This device, which is used for monitoring emission of particulates, has reflected excessive emissions on a number of occasions during 1978 and 1979. However, it is a "source" monitor which is not located in an appropriate place under EPA standards to monitor ambient air quality and, accordingly, DER does not consider the site to be "ambient oriented" or the data to be usable for determinations involving air quality standards. There have been no violations of ambient air quality revealed by monitoring at other stations in Manatee County during the past year. In fact, Manatee County's annual geometric mean for 1978 for suspended particulates were the lowest ever recorded at 33.8 micrograms per cubic meter which was significantly lower than the air quality standard of 60 micrograms per cubic meter. (Testimony of George, McDonald, Williams, Koogler, Subramani, Exhibits 4, 11-13, 16-21) In 1978, subsequent to the issuance of the original permit but prior to the filing of the revision application, certain rules of the DER contained in Chapter 17-2, Florida Administrative Code, were changed. Rule 17-2.03 required the DER to make a determination of the Best Available Control Technology (BACT) after receipt of an application for a permit to construct an air pollution facility in certain instances under specific criteria stated in the rule, after public notice had been given of an application which required such a determination. DER did not make a BACT determination as to the permit revision application concerning hydrocarbon emissions since it determined that there was an existing emission limiting standard for volatile organic compounds in Rule 17-2.05(5), which required known vapor emission control devices or systems in the processing and use of such substances. DER also determined that Rule 17- 2.04(6) concerning Prevention of Significant Deterioration (PSD) did not require a BACT determination as to hydrocarbon emissions because the Rule does not apply to hydrocarbon emissions. Also, DER determined that neither the BACT nor the PSD rules were applicable to the modified facility as to sulfur dioxide and particulates because the ambient concentration of those emissions would be unchanged by the proposed modifications. (Testimony of Williams, Exhibit 13) On November 13, 1978, DER issued construction permit No. AC41-6819A to Manatee Energy for the proposed modifications. Conditions attached to the permit were the same as those of the original permit, plus conditions setting forth the modifications of the facility. Notification of the issuance of the permit revision was not made to Petitioner who had been a party to the Chapter 120 proceedings involving the original permit. Neither were the public notice provisions of Rule 17-2.04(9) complied with by DER prior to the issuance of the revised permit. The parties stipulated that opportunity for public participation and comment at the hearing held herein would cure any procedural defect in this regard. (Exhibit 5) Condition 12 of the proposed permit provides that before any startup of the facility, steps must be taken in conjunction with the Manatee Port Authority to correct any fugitive particulate problems and condition 13 states that an operating permit will not be issued until such time as the Port Authority has eliminated the "present violation of the ambient air quality standard with regard to particulates." Identical conditions were set forth in the prior permit based on findings that ambient particulate violations existed from fugitive dust created by road traffic at Port Manatee. As heretofore found above, the particulate violations at Port Manatee are not deemed to constitute violation of ambient air quality standards. Nevertheless, since the original permit was issued, various steps have been taken to reduce such emissions in the Port area by the use of a sweeper, paving of roadway, parking and driveway areas, planting of vegetation, grass, and shrubbery in critical areas, and the like. Although these efforts have shown little success, reasonable efforts are continuing to reduce the problem. (Testimony of McDonald, Subramani, Exhibit 18) Eight public witnesses testified at the hearing. Their concerns primarily focused on such subjects as lack of technology to prevent emission of hydrocarbons, oil spills, inefficiency of small facilities, opposition to "dirty industry" in the county, lack of adequate state rules for storage of hazardous waste, and the accumulation of emissions generally in the Tampa Bay area. One witness pointed out the presence of eagle and pelican habitats in the Bay area near the site in question. A statement on behalf of Sarasota County expressed the view that the modified facility should be subject to the review process of Chapter 380, Florida Statutes, concerning developments of regional impact prior to the issuance of a modified construction permit. (Testimony of Burger, Chiefari, Fernald, H. Greer, Blankenship, Morris, M. Greer, Lincer, Exhibit 22, Hearing Officer Exhibit 1)
Recommendation That a permit for the construction of modifications to the facility which is the subject of this proceeding be granted to the Manatee Energy Company, subject to the conditions heretofore proposed by the Department of Environmental Regulation, dated November 7, 1978, and with a precondition that the applicant fully complies with the provisions of Rule 17-4.05, Florida Administrative Code, prior to such issuance. DONE and ENTERED this 22nd day of May, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mary F. Clark, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Ronald C. LaFace, Esquire Post Office Box 1752 Tallahassee, Florida 32302 Paul Amundsen, Esquire One Biscayne Tower Suite 3636 Two South Biscayne Boulevard Miami, Florida 33131
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
