10-007281 Thomas Bussing, Michael Canney, December Mcsherry, David Mcsherry, And Karen Orr vs. Gainesville Renewable Energy Center, Llc, And Department Of Environmental Protection
 Status: Closed
Recommended Order on Tuesday, December 7, 2010.


View Dockets  
Summary: GREC provided assurance that draft Air Construction Permit complies with relevant provisions of AAQS, PSD, and NESHAP; DEP will prohibit demo/debris biomass; incorporate of fire-safety changes; ID trona as sorbant for DSI; and add EPA Method 202.

1STATE OF FLORIDA

4DEPARTMENT OF ENVIRONMENTAL PROTECTION

8THOMAS BUSSING, MICHAEL CANNEY, }

13DECEMBER MCSHERRY, DAVID }

17MCSHERRY, AND KAREN ORR, }

22}

23Petitioners, }

25}

26vs. } OGC CASE NO. 10-2253

32} DOAH CASE NO. 10-7281

37GAINESVILLE RENEWABLE ENERGY }

41CENTER, LLC, AND DEPARTMENT OF }

47ENVIRONMENTAL PROTECTION, }

50)

51Respondents, }

53}

54and }

56}

57CITY OF GAINESVILLE, d/b/a GAINESVILLE}

62REGIONAL UTILITIES, }

65}

66Intervenor. }

68FINAL ORDER

70On December 7, 2010, an Administrative Law Judge ("ALJ") with the Division of

85Administrative Hearings ("DOAH") submitted to the Department of Environmental

96Protection ("DEP" or "Department") his Recommended Order ("RO") in the above

111captioned proceeding. A copy of the RO is attached hereto as Exhibit A. The RO

126indicates that copies were sent to the Qualified Representatives for the Petitioners,

138counsel for the Respondents and counsel for the Intervenor. On December 9, 2010. the

152.

153DEP filed Exceptions to the RO. On December 17, 2010. Respondent Gainesville

165Renewable Energy Center, LLC ("GREC") and Intervenor City of Gainesville d/b/a

178Gainesville Regional Utilities ("GRU"), filed a Joint Notice of Concurrence with DEP's

192Exceptions. On December 22, 2010, the Petitioners filed Exceptions to the RO and on

206December 23, 2010, the Co-Respondents and Intervenor jointly filed responses to the

218Petitioners' Exceptions to the RO. This matter is now before me on administrative

231review for final agency action.

236BACKGROUND

237On November 30,2009, GREC filed with the DEP a Prevention of Significant

250Deterioration Air Construction Permit Application ("Application"). The Application

260requested that DEP issue an Air Construction Permit for an electrical power plant

273("Project") to be located at the Deerhaven Generating Station ("Deerhaven") of GRU.

289The Application stated that the power plant will produce net 100 megawatts ("MW") of

305electricity and will be fueled by biomass, mostly chipped and ground wood. GREC

318seeks to place the biomass plant in service on or before December 31,2013, which is

334the deadline for eligibility for a federal renewable-energy grant under the American

346Recovery and Reinvestment Act of 2009. The GREC site consists of 131 acres within

360the Deerhaven site in northwest Gainesville and north central Alachua County, eight

372miles from downtown Gainesville to the southeast and seven miles from downtown

384Alachua to the northwest. The Deerhaven site is within ai, 146-acre parcel owned by

398the City of Gainesville. Immediately west of the GREC site is a site used by the

414Alachua County Public Works Department for an office and other facilities. Also west of

428the GREC site is a radio tower and undeveloped land. The southernmost extent of the

443GREC site fronts on U.S. Route 441, which is lined by intermittent commercial and retail

458uses in this area. Across U.S. Route 441, over one-half mile from the GREC site, is the

475nearest residential subdivision, which is called Turkey Creek.

483GREC will obtain the biomass fuel from forest residue (I.e., material remaining

495after trad itional logging), mill residue (e.g., sawdust, bark, and sander dust),

507precommercial tree thinnings, used pallets, and urban wood waste (e.g., woody tree

519trimmings from landscape contractors and power"line clearance contractors).

528Supplementary fuel will be derived from herbaceous plant matter, clean agricultural

539residues (e.g., rice hulls and straw, but no animal waste), diseased trees, woody storm

553debris, whole tree chips, and pulpwood chips. However, GREC will not accept

565biomass in the form of treated or coated wood, municipal solid waste, coal, petroleum,

579coke, tires, or construction and demolition debris.

586On July 14, 2010, the DEP issued its Notice of Intent to Issue an Air Permit,

602Technical Evaluation and Preliminary Determination ("Technical Evaluation"), and draft

613Air Construction Permit. On July 30,2010, the Petitioners filed their Petition for Formal

627Administrative Hearing, which was transmitted to DOAH. The ALJ scheduled the final

639hearing for September 20"23,2010. On August 27,2010, GRU filed a Petition to

654Intervene that was granted on September 7,2010.

662At the start of the hearing, the ALJ granted GREC's motion to strike certain

676issues identified by the Petitioners in the Joint Prehearing Stipulation, including any

688refererice to and reliance on Section 403.161, Florida Statutes, as a basis for relief in

703this proceeding. The ALJ notes in the RO that the parties to this proceeding have

718stipulated to the inclusion of the record of the Site CertificationCase into the present

732record. On August 23"26,2010, the ALJ conducted a site certification hearing, In re:

747Gainesville Renewable Energy Center, LtC, DOAH Case No. 09"6641 EPP ("Site

760Certification Case"). On November 1,2010, the ALJ issued a recommended order in

774the Site Certification Case that recommended that the Governor and Cabinet, sitting as

787the Siting Board, pursuant to the Florida Electrical Power Plant Siting Act ("PPSA"),

802Sections 403.501 et seq., Florida Statutes, issue the site certificate, subject to additional

815conditions of certification ("Site Certification RO"). The AU incorporated by reference

828into the RO for this proceeding, the findings in the Site Certification RO. On December

84315,2010, the Siting Board issued its Final Order Approving Certification, subsequent to

856its vote at a duly noticed and constituted Cabinet meeting held on December 7, 2010.

871After the hearing GREC and GRU filed a joint proposed recommended order and

884the DEP filed its proposed recommended order. The AU subsequently issued his RO

897on December 7,2010.

901RECOMMENDED ORDER

903The AU recommended that the Department enter a final order granting the Air

916Construction Permit subject to four additional conditions. (RO 11 211 and page 91). The

930AU concluded that GREC provided reasonable assurance that the draft Air

941Construction Permit complies with all relevant provisions of MQS,1 PSD,2 and

954NESHAP,3 although DEP must add to the Air Construction Permit the following: 1) a

969prohibition against accepting biomass in the form of construction and demolition debris;

9812) a revised site plan incorporating the fire-safety changes to which GREC agreed with

995the Gainesville Fire Department, including lowering the height of the automatic

10061 Ambient Air Quality Standards. See Fla, Admin. Code R. 62-204.240.

10172 Prevention of Significant Deterioration. See Fla. Admin. Code R. 62-212.400.

10283 National Emission Standards for Hazardous Air Pollutants. See Fla. Admin Code R.

104162-204.800 (10) and (11).

1045stacker/reclaimer pile from 85 feet to 60 feet; 3) the identification of trona as the sorbent

1061for D81 4 ; and 4) theaddition of EPA Method 202 to measure filterable and condensible

1076PM 5 emissions. (RO 1)211). The ALJ found that DEP's Technical Evaluation

1088determined that the Application, as amended and conditioned by the Air Construction

1100Permit, met all federal and state air pollution control requirements (RO 1)83).

1112The ALJ considered the Petitioners' claim that GREC had failed to provide

1124reasonable assurance that the proposed facility protects public health and the

1135environment from emissions of dioxins, including furans and PCBs, and the draft Air

1148Construction Permit failed to impose emissions limits for dioxins (RO 1)125). The ALJ

1161found that the Petitioners' contention for a limitation on dioxins emissions in the Air

1175Construction Permit missed a couple of points. The GREC boiler will result in a net

1190reduction in dioxin emissions, and, even without regard to the netting, GREC provided

1203reasonable assurance that the GREC facility's dioxin emissions are not, themselves,

1214significant (RO 1)139). Thus, the ALJ ultimately found that GREC provided reasonable

1226assurance that the GRECfacility adequately protects the public health and environment

1237from emissions of dioxins, including furans and PCBs, and, based on the circumstances

1250of this case, the Air Construction Permit was not required to contain a dioxins emissions

1265limit (RO 1)140). The ALJ also found that GREC provided reasonable assurance that

1278the GREC facility adequately protects the public health and environment from emissions

1290of mercury (RO 1)148).

12944 Dry 80rbent Injection.

12985 Particulate Matter.

1301The ALJ addressed the Petitioners' claim that DEP improperly allowed GREG to

1313net its NOx and 80 2 emissions against enforceable reductions of NOx and 80 2 by GRU

1330at Deerhaven, so as to avoid Best Available Control Technology ("BAGT") analysis (RO

13451T 149). The ALJ found that DEP recently issued a permit to GRU imposing enforceable

1360and permanent reductions on Deerhaven Unit 2's emissions of NO x and 80 2 --418 tpy of

1377the former and 171 tpy of the latter. These reductions were achieved by GRU's

1391installation of more effective pollution control technology (RO 1T 150). The ALJ further

1404found that under N8R1P8D, GREC may net out its emissions of NO x and 80 2 by taking

1422into account these offsetting GRU reductions because GREC and GRU constitute one

1434major stationary source, under NSRlP8D permitting. Offsetting the increased

1443emissions of GREC with the decreased emissions of GRU is authorized by the proximity

1457of the two operations and their common operational control (RO 1T1T 151, 152). Thus,

1471the ALJ ultimately found that GREC provided reasonable assurance that its NO x and

148580 2 emissions properly should be netted against offsetting reductions in these

1497emissions at Deerhaven and that BACT analysis for these pollutants was thus

1509unnecessary (RO 1T 156).

1513The ALJ also considered the Petitioners' claim that DEP improperly determined

1524that the GREG facility will not be a major source of Hazardous Air Pollutants ("HAPs"),

1541such that the DEP improperly relieved GREC of the burden of demonstrating case-by­

1554case Maximum Achievable Control Technology ("MACT") (RO 1T 157). The ALJ found

1568that GREC provided reasonable assurance that its facility will not emit more than 9.72

1582tons per year ("tpy") annually of any individual HAP or 25 tpy of all HAPs (RO 1T 167).

1602Thus, DEP properly determined that case-by-case MACT analysis was unnecessary

1612(RO ,-r,-r 158 through 167).

1618The ALJ noted that the Petitioners claimed that the draft Air Construction Permit

1631inadequately accounted for stack and diesel-exhaust emissions of PM and PM 10 and

1644failed to require BACT for these pollutants (RO ,-r 168). The ALJ found that in one

1660respect the Petitioners' claim is correct because the draft Air Construction Permit failed

1673to incorporate the provision of the Technical Evaluation that DEP would require GREC

1686to measure filterable and condensible PM with EPA Method 202 (RO,-r 169). But the

1701ALJ concluded that the DEP can easily repair this defect by adding this requirement to

1716the Air Construction Permit (RO ,-r,-r 169 and 211). The ALJ found that in all other

1733respects GREC had adequately accounted for stack emissions of PM/PM10 and

1744provided BACT for these PSD pollutants (RO W 170, 171, 172).

1755The ALJ extensively addressed the Petitioners' claims that the draft Air

1766Construction Permit failed to adequately protect against spontaneous combustion and

1776the PM emissions that would result from a fire (RO ,-r,-r 173 through 181). The ALJ found

1794that the wood piles presented a risk of fire from spontaneous combustion because

1807microbial metabolic action within the pile can generate sufficient heat to cause the wood

1821pile to combust (RO ,-r 174). The primary safeguard against this risk is proper fuel

1836management to minimize the heat buildup within the pile and one way to manage the

1851fuel for fire safety is to mix the wood piles to aerate the piles and prevent hot spots (RO

,1870-r 175). The ALJ further found that another way to manage the fuel isto ensure that the

1887fuel is not allowed to remain in the pile too long. GREC's first-fuel-in, first-fuel-out policy

1902limits the age of any part of the wood pile (RO ,-r 176). The ALJ concluded that

1919implementation of this policy is further assured by the fact that the fuel loses heat value

1935over time, so GREC will gain more burn for the dollar by com busting the fuel sooner,

1952rather than later (RO ,-r 176). The ALJ found that the ratio of stored fuel to combustion

1969rates suggests that all fuel will be turned over within 20 days or less. Anecdotal

1984evidence suggests that 20 days' residence in the wood pile is well short of the age of

2001fuel that has spontaneously combusted in piles in the past (RO ,-r 176).

2014The ALJ foundthat as part of the local review that took place for the GREC

2029facility, Gainesville Fire Department representatives met three times with GREG

2039representatives to address fire safety, as the Development Review Board of the Gity of

2053Gainesville reviewed the GREG proposal (RO ,-r 178). As a result of these meetings,

2067GREG agreed to a number of changes to assure substantial compliance with the

2080National Fire Protection Association ("NFPA") standards .for the management of wood

2093storage areas (RO,-r 178). One change after consultations with the fire department was

2107to reduce the automatic stacker/reclaimer pile from 85 feet to 60 feet (RO,-r 179). The

2123ALJ found that this reduced the risk of fire by making it easier to mix the entire pile and

2142reduced the volume of fuel stored onsite and, thus, the time that the fuel may remain

2158unused in the wood pile (RO ,-r 179). Secondarily, this change also reduced the volume

2173of fuel available to burn in an unintended fire (RO,-r 179). The ALJ further founq that to

2191conform to NFPA standards, GREG agreed to place low barrier walls between the fuel

2205piles; to drive stakes around the perimeter of the piles, so inspectors could more easily

2220check that the piles are not migrating or expanding; and to insert temperature probes

2234into the piles to allow timely detection and elimination of hot spots that might otherwise

2249develop into fires (RO 1)180). A revised site plan incorporated the barrier walls and

2263perimeter stakes identified above, as well as the layout of the fire main and fire hydrants

2279that loop the fuel storage area (RO ,-r 180). The ALJ ultimately con,c1uded that after DEP

2296adds to the Air Construction Permit the changes to the site plan, GREC has provided

2311reasonable assurance that the draft Air Construction Permit adequately protects against

2322spontaneous combustion and the PM emissions that would result from a fire (RO ,-r

2336181).

2337The ALJ also considered the Petitioners' claims that the draft Air Construction

2349Permit failed to adequately assure that the biomass fuel will be free from contaminants

2363prior to its combustion in .the boiler (RO ,-r 182). The ALJ found that the draft Air

2380Construction Permit Section 3.A.6 required clean woody biomass, and the draft BMP

2392plan addressed the means to ensure that only clean woody biomas.s is burned in the

2407boiler (RO ,-r 183). Suppliers must perform most of the processing offsite; for each

2421shipment, GREC must record the date, quantity, and description of the material

2433received; GREC must inspect each shipment for nonconforming materials; GREC must

2444. reject or segregate nonconforming material, if it is discovered; and GREC must maintain

2458records of rejected shipments and their disposition. At the hearing, GREC agreed to

2471another prohibition--namely, that it may not burn construction and demolition debris (RO

,2483-r,-r 17, 57, 79, 99,183). The ALJ ultimately concluded that GREC had provided

2498reasonable assurance that only clean woody biomass will be combusted at the GREC

2511facility (RO ,-r 184).

2515STANDARDS OF REVIEW OF DOAH RECOMMENDED ORDERS

2522Section 120.57(1 )(1), Florida Statutes, prescribes that an agency reviewing a

2533recommended order may not reject or modify the findings of fact of an ALJ, "unless the

2549agency first determines from a review of the entire record, and states with particularity in

2564the order, that the finaings of fact were not based on competent substantial evidence."

2578§ 120.57(1)(1), Fla. Stat. (2010); Charlotte Countyv.IMC Phosphates Co., 18 SO.3d

25891089 (Fla. 2d DCA 2009); Wills v. Fla. Elections Comm'n, 955 SO.2d 61 (Fla. 1st DCA

26052007). The term "competent substantial evidence" does not relate to the quality,

2617character, convincing power, probative value or weight of the evidence. Rather,

"2628competent substantial evidence" refers to the existence of some evidence (quantity) as

2640to each essential elernent and as to its admissibility under legal rules of evidence. See

2655e.g., Scholastic Book Fairs, Inc. v. Unemployment Appeals Comm'n, 671 SO.2d 287,

2667289 n.3 (Fla. 5th DCA 1996).

2673A reviewing agency may not reweigh the evidence presented at a DOAH final

2686hearing, attempt to resolve conflicts therein, or judge the credibility of witnesses. See

2699e.g., Rogers v. Dep't of Health, 920 SO.2d 27, 30 (Fla. 1st DCA 2005); Belleau v. Dep't

2716of Envtl. Prot., 695 SO.2d 1305, 1307 (Fla. 1 st DCA 1997); Dunham v. Highlands

2731County Sch. Bd., 652 SO.2d 894 (Fla. 2d. DCA 1995). These evidentiary-related

2743matters are within the province of the AU, as the "fact-finder" in these administrative

2757proceedings. See e.g., Tedder v. Fla. Parole Comm'n, 842 SO.2d 1022, 1025 (Fla. 1st

2771DCA 2003); Heifetz v. Dep't of Bus. Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA

27861985). Also, the AU's decision to accept the testimony of one expert witness over that

2801of another expert is an evidentiary ruling that cannot be altered by a reviewing agency,

2816absent a complete lack of any competent substantial evidence of record supporting this

2829decision. See e.g., Peace River/Manasota Regional Water Supply Authorityv. IMC

2839Phosphates Co., 18 So. 3d 1079, 1088 (Fla. 2d DCA 2009); Collier Med. Ctr. v. State,

2855Dep't of HRS, 462 So.2d 83, 85 (Fla. 1 st DCA 1985); Fla. Chapter of Sierra Club v.

2873Orlando Uti/so Comm'n, 436 SO.2d 383, 389 (Fla. 5th DCA 1983).

2884A reviewing agency thus has no authority to evaluate the quantity and quality of

2898the evidence presented at a DOAH formal hearing, beyond making a determination that

2911the evidence is competent and substantial. See, e.g., Brogan v. Carter, 671 SO.2d 822,

2925823 (Fla. 1 st DCA 1996). Therefore, if the DOAH record discloses any competent

2939substantial evidence supporting a challenged factual finding of the ALJ, I am bound by

2953such factual finding in preparing this Final Order. See, e.g., Walker V. Bd. of Prof.

2968Eng'rs, 946 SO.2d 604 (Fla. 1 st DCA 2006); Fla. Dep't of Carr. V. Bradley, 510 So.2d

29851122, 1123 (Fla. 1st DCA 1987). In addition, an agency has no authority to make

3000independent or supplemental findings of fact. See, e.g., North Port, Fla. v. Consol.

3013Minerals, 645 So. 2d 485, 487 (Fla. 2d DCA 1994).

3023Section 120.57(1 )(1), Florida Statutes, authorizes an agency to reject or modify

3035an ALJ's conclusions of law and interpretations of administrative rules "over which it has

3049substantive jurisdiction." See Barfield v. Dep't of Health, 805 SO.2d 1008 (Fla. 1 st DCA

30642001); L.B. Bryan & CO. V. Sch. Bd. of Broward County, 746 SO.2d 1194 (Fla. 1 st DCA

30821999); Deep Lagoon Boat Club, Ltd. V. Sheridan, 784 So.2d 1140 (Fla. 2d DCA 2001).

3097If an ALJ improperly labels a conclusion of law as a finding of fact, the label should be

3115disregarded and the item treated as though it were actually a conclusion of law. See,

3130e.g., Battaglia Properties V. Fla. Land and Water Adjudicatory Comm'n, 629 SO.2d 161,

3143168 (Fla. 5th DCA 1994). However, neither should the agency label what is essentially

3157an ultimate factual determination as a "conclusion of law" in order to modify or overturn

3172what it may view as an unfavorable finding of fact. See, e.g., Stokes v. State, Bd. of

3189Prof'! Eng'rs, 952 SO.2d 1224 (Fla. 1st DCA 2007).

3198An agency's review of legal conclusions in a recommended order is restricted to

3211those that concern matters within the agency's field of expertise. See, e.g., Charlotte

3224County v. IMC Phosphates Co., 18 SO.3d 1089 (Fla. 2d DCA 2009); GEL. Corp. v.

3239Dep't of Envtl. Prot., 875 SO.2d 1257, 1264 (Fla. 5th DCA 2004). An agency has the

3255primary responsibility of interpreting statutes and rules within its regulatory jurisdiction

3266and expertise. See, e.g., Pub. Employees Relations Comm'n v. Dade County Police

3278Benevolent Ass'n, 467 So.2d 987, 989 (Fla. 1985); Fla. Public Employee Council, 79. v.

3292Daniels, 646 SO.2d 813, 816 (Fla. 1st DCA 1994). Considerable deference should be

3305accorded to these agency interpretations of statutes and rules within their regulatory

3317jurisdiction, and such agency interpretations should not be overturned unless "clearly

3328erroneous." See, e.g., Falk v. Beard, 614 SO.2d 1086, 1089 (Fla. 1993); Dep't of Envtl.

3343Regulation v. Goldring, 477 SO.2d 532, 534 (Fla. 1985). Furthermore, agency

3354interpretations of statutes and rules within their regulatory jurisdiction do not have to be

3368the only reasonable interpretations. It is enough if such agency interpretations are

"3380permissible" ones. See, e.g., Suddath Van Lines, Inc. v. Dep't of Envtl. Prot., 668 So.2d

3395209,212 (Fla. 1st DCA 1996).

3401However, agencies do not have jurisdiction to modify or reject rulings on the

3414admissibility of evidence. EVidentiary rulings of the ALJ that deal with "factual issues

3427susceptible to ordinary methods of proof that are not infused with [agency] policy

3440considerations," are not matters over which the agency has "substantive jurisdiction."

3451See Martuccio v. Dep't of Prof'1 Regulation, 622 So.2d 607, 609 (Fla. 1st DCA 1993);

3466Heifetzv. Dep'tofBus. Regulation, 475 SO.2d 1277, 1281 (Fla. 1st DCA 1985); Fla.

3478Power & Light Co. v. Fla. Siting Bd., 693 SO.2d 1025, 1028 (Fla. 1 st DCA 1997).

3495Evidentiary rulings are matters within the AU's sound "prerogative ... as the finder of

3509fact" and may not be reversed on agency review. See Martuccio, 622 SO.2d at 609.

3524Agencies do not have the authority to modify or reject conclusions of law that apply

3539general legal concepts typically resolved by judicial or quasi-judicial officers. See, e.g.,

3551Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 SO.2d 1140, 1142 (Fla. 2d DCA 2001).

3566RULINGS ON EXCEPTIONS

3569The case law of Florida holds that parties to formal administrative proceedings

3581must alert reviewing agencies to any perceived defects in DOAH hearing procedures or

3594in the findings of fact of ALJs by fiiing exceptions to DOAH recommended orders. See,

3609e.g., Comm'n on Ethics v. Barker, 677 SO.2d 254, 256 (Fla. 1996); Henderson v.Dep't

3623of Health, Bd. of Nursing, 954 SO.2d 77 (Fla. 5th DCA 2007); Fla. Dep't of Corrs. v.

3640Bradley, 510 SO.2d 1122,1124 (Fla. 1st DCA 1987). Having filed no exceptions to

3654certain findings of fact the party "has thereby expressed its agreement with, or at least

3669waived any objection to, those findings of fact." Envtl. Coalition of Fla., Inc. v. Broward

3684County, 586 SO.2d 1212, 1213 (Fla. 1 st DCA 1991); see also Colonnade Medical Clr.,

3699Inc. v. Stale of Fla., Agency for Health Care Admin., 847 SO.2d 540, 542 (Fla. 4th DCA

37162003). However, even when exceptions are not filed, an agency head reviewing a

3729recommended order is free to modify or reject any erroneous conclusions of law over

3743which the agency has substantive jurisdiction. See § 120.57(1 )(1), Fla. Stat. (2010);

3756Barfield v. Dep't of Health, 805 SO.2d 1008 (Fla. 1 st DCA 2001); Fla. Public Employee

3772Council, 79 v. Daniels, 646 SO.2d 813, 816 (Fla. 1st DCA 1994).

3784Finally, in reviewing a recommended order and any written exceptions, the

3795agency's final order "shall include an explicit ruling on each exception."

3806See § 120.57(1)(k), Fla. Stat. (2010). However, the agency need not rule on an

3820exception that "does not clearly identify the disputed portion of the recommended order

3833by page number or paragraph, that does not identify the legal basis for the exception, or

3849that does not include appropriate and specific citations to the record." Id.

3861PETITIONERS' EXCEPTIONS

3863Exception No.1

3865The Petitioners exception to fifteen paragraphs (Findings of Fact 125

3875through 140) in the RO where the ALJ extensively addressed the potential for dioxin

3889emissions from the Project. In Finding of Facts 139 and 140 the ALJ ultimately

3903concluded that:

3905139.. Petitioners' contention for a limitation on dioxins

3913emissions in the Air Construction Permit misses a couple of

3923points. The GREC boiler will result in a net reduction in

3934dioxin emissions, and, even without regard to the netting,

3943GREC has provided reasonable assurance that the GREC

3951facility's dioxin emissions are not, themselves, significant.

3958140. GREC has provided reasonable assurance that the

3966GREC facility adequately protects the public health and

3974environment from emissions of dioxins, including furans and

3982PCBs, and, based on the circumstances of this case, the Air

3993Construction Permit is not required to contain a dioxins

4002emissions limit.

4004In this exception the Petitioners essentially reargue their concerns about the potential

4016impacts of dioxin. See Petitioners' Exceptions at pages 2-4. These concerns were

4028expressly considered by the ALJ (RO 1[1[139,140).

4036The Petitioners assert that "[t]he GREC air permit application, GREC at the

4048hearing, and DEP in the permit or at the hearing, failed to provide reasonable and

4063adequate assurance" that dioxins "will not be emitted from the GREC facility and then

4077deposit on and in Florida land and water bodies ... " See Petitioners' Exceptions at page

40923. The Petitioners' assertion "does not include appropriate and specific citations to the

4105record." See § 120.57(1 )(k), Fla. Stat. (2010). Nor do the Petitioners contend that the

4120ALJ's factual findings are not supported by competent substantial record evidence. In

4132this type of evidentiary proceeding the ALJ's decision to accept the testimony of one

4146expert witness over that of another expert is an evidentiary ruling that cannot be altered

4161by a reviewing agency, absent a complete lack of any competent substantial evidence

4174of record supporting his decision. See e.g., Peace River/Manasota Regional Water

4185Supply Authority v. IMC Phosphates Co., 18 SO.3d 1079, 1088 (Fla. 2d DCA 2009);

4199Collier Med. Ctr, v. State, Dep't of HRS, 462 SO.2d 83, 85 (Fla. 1st DCA 1985).

4215At the final hearings 6 , the testimony of GREC's expert witnesses, Tom Davis and

4229Dr. Christopher Teaf established that the Project will control and minimize its dioxin

4242emissions very effectively (T.· pp. 506-07; RO 133 ); the dioxin emissions from the

4256Project will be exceedingly small (T. p. 505; RO 133,134,137,138); the Project's

4271impacts on dioxin levels in the environment will not be measurable (T. p. 742;T.2. p.

4287397; RO 133,134,137,138); the Project's dioxin impacts will be insignificant (T. p.

4302742; T.2. p. 412; RO W 133,134, 137, 138); the Project's maximum impacts on soil,

4318sediments, water quality, and air quality will be far less than the levels that are deemed

4334safe (T.2. pp. 257-59, 382-85, 387-88,390-92; T. p. 733, 735-38, 739-43, 744-45; Ex.

43486 Citations to the transcript of the Certification Hearing are in the form "T. p.x" where "x"

4365references the page of the transcript. Citations to the transcript of the PSD Hearing are

4380in the same form, but use 'T.2." to identify the transcript oflhe PSD Hearing.

439475 ; RO 1f1f 137,138); and the Project will cause anet reduction in regional emissions

4409of dioxin because the Project will reduce the amount of open buming of woody biomass

4424that occurs (T. pp. 518-19, 725-26; T.2. pp. 256-57, 260-62; RO 1f1f 136, 139).

4438The Petitioners also misstate the legal standard applicable to these types of

4450permit applications. The correct legal standard is "reasonable assurance," which means

"4461a substantial likelihood that the project will be successfully implemented." Metro. Dade

4473Cty. v. Coscan Fla., Inc., 609 So.2d 644, 648 (Fla. 3d DCA 1992). Competent

4487substantial evidence based on detailed site plans and engineering studies, coupled with

4499credible expert engineering testimony, is a sufficient basis for a finding of reasonable

4512assurance. See Hamilton Cty. Bd. of Cty. Comm., 587 So.2d 1378, 1388 (Fla. 1 st DCA

45281991). The AU's ultimate determination in Finding of Fact 140 is supported by

4541competent substantial record evidence. (T. pp. 492, 503-510,511-514, 518-519, 722­

4552727,728"729, 733"740, 741-746, 901-903, 909-911,957; T.2. pp. 256-57,260-62, 394­

456695, 412; Ex. 75).

4570In this exception, the Petitioners also misconstrue the AU's findings concerning

4581the impacts of the Project's dioxin emissions. In paragraph 134 of the RO the AU

4596calculated that the Project's emissions of dioxins could hypothetically translate to

4607exposure levels of 24 picograms per kilogram per day. However, the AU then

4620explained in detail in paragraphs 135-39 of the RO why 24 picograms per kilogram per

4635day "represents only a starting point in the calculations necessary to grasp the limited

4649extent of the dioxin exposure posed by the GREC boiler." (RO 1f 135). The AU

4664ultimately concluded that "GREC has provided reasonable assurance that the GREC

4675facility's dioxin emissions are not, themselves, significant," (RO 1f 139); and that "the

4688GREC facility adequately protects the public health and environment from emissions of

4700dioxins" (RO 11 140). These findings are fully supported by Mr. Davis's and Dr. Teafs

4715testimony. (T. pp. 505-07,742; T.2. pp. 394-95,412.)

4724The Petitioners also assert that dioxin emissions from the Project will violate

4736Section 403.161, Florida Statutes? Section 403.161 provides that:

4744403.161 Prohibitions, violation, penalty, intent.-

4749(1) It shall be a violation of this chapter, and it shall be

4762prohibited for any person:

4766(a) To cause pollution, except as otherwise provided in this

4776chapter, so as to harm or injure human health or welfare,

4787animal, plant, or aquatic life or property.

4794(b) To fail to obtain any permit required by this chapter or by

4807rule or regulation, or to violate or fail to comply with any rule,

4820regulation, order, permit, or certification adopted or issued by

4829the department pursuant to its lawful authority.

4836(Emphasis added).

4838In Conclusion of Law paragraphs 189 and 190 the ALJ addresses the Petitioners'

4851argunlent. My ruling in Exception NO.6 below regarding Section 403.161, Florida

4862Statutes, is incorporated herein.

4866Therefore, based on the foregoing reasons, the Petitioners' Exception NO.1 is

4877denied.

4878Exception No.2

4880The Petitioners take exception to paragraph 136 of the RO where the ALJ found

4894that a "large net reduction in dioxin emissions" will occur when the GREC Project is in

4910operation because "[t]he record supports an estimate that about half of the biomass to

49247 Exception NO.1 actually cites Section "430.161, F.S.," a non-existent statute. For

4936purposes of this ruling, it is assumed that the Petitionersintended to refer to Section

4950403.161, F.S.

4952be combusted by GREC would have been open burned." (RO 11 136). The Petitioners

4966contend that there is no basis in the record for these findings. Contrary to the

4981Petitioners' contention the AU's findings are supported by the competent substantial

4992record evidence in the form of the expert testimony of several witnesses. See

5005Schroeder-To pp. 404, 420-21; Davis-T. pp. 451-52,519, T.2. pp. 256-57,260-62, Ex.

501863a; DeFur-T.2. pp. 640-41; see also T. pp. 435-36; GREC Ex. 34 at 3.

5032Because the AU findings are supported by competent substantial record

5042evidence, the Petitioners' Exception NO.2 is denied. See § 120.57(1)(1), Fla. Stat.

5054(2010).

5055Exception No.3

5057The Petitioners again take exception to the AU's findings and ultimate

5068conclusions in paragraphs 125 through 140 of the RO. See Petitioners' Exceptions at

5081pages 4-5. The Petitioners specifically take exception to the AU's ultimate finding in

5094paragraph 140 that "based on the circumstances of this case, the Air Construction

5107Permit is not required to contain a dioxins emissions limit." (RO 11 140). The ALJ

5122explicitly rejected the Petitioners' arguments on this issue in Findings of Fact 139 and

5136140 of the RO. As noted in my ruling on Exception NO.1 above, there is competent

5152substantial evidence of record to support the AU's findings of fact. See § 120.57(1 )(1),

5167Fla. Stat. (2010). The Petitioners argue th<;it it="" is="" "arbitrary,="" capricious="" and="" not="">

5174accordance with law for FDEP" to not impose limits on GREC's dioxins emissions; and

5188that it violated Section 403.161, Florida Statutes. See Petitioners' Exceptions at page 5.

5201However, the competent substantial record evidence established that, currently there

5211are no DEP or EPA rules applicable to the Project that establish emission limits for

5226dioxin. (T. pp. 901-03). For these reasons, DEP normally does not establish dioxin

5239limits for industrial boilers or electrical power plants. (T. pp. 509-10, 909-10). The dioxin

5253emissions from these types of facilities are very low (T. pp. 509-10) and, in the instant

5269case, DEP expects the GREC Project's dioxin emissions to be "very, very small." (T. p.

5284901).

5285Based on the foregoing reasons and my rulings in Exception Nos. 1 and 6, which

5300are incorporated herein, the Petitioners' Exception NO.3 is denied.

5309Exception No.4

5311In this exception the Petitioners assert that "[t]he ALJ failed to make key findings

5325on the issue of harm to infants and others from dioxin exposure," and "ignored the

5340testimony of Dr. DeFur." See Petitioners' Exceptions at page 5. As noted above, the

5354ALJ made extensive findings related todioxin in paragraphs 125 through 140 of the RO,

5368including the ultimate finding in paragraph 140 that"GREC has provided reasonable

5380assurance that the GREC facility adequately protects the public health and environment

5392from emissions of dioxins .... " (Emphasis added). These findings are supported by

5404competent substantial record evidence, as noted in my ruling in Exception No.1, above.

5417In this exception the Petitioners improperly request that I reweigh the evidence

5429presented at the final hearings. A reviewing agency may not reweigh the evidence

5442presented at a DOAH final hearing, attempt to resolve conflicts therein, or judge the

5456credibility of witnesses. See e.g., Rogers v. Dep't of Health, 920 SO.2d 27, 30 (Fla. 1 st

5473DCA 2005); Belleau v. Dep't of Envtl. Prot., 695 So.2d 1305, 1307 (Fla. 1 st DCA 1997);

5490Dunham v. Highlands CountySch. Bd., 652 SO.2d 894 (Fla. 2d. DCA 1995). These

5503evidentiary-related matters are within the province of the ALJ, as the "fact-finder" in.

5516these administrative proceedings. See e.g., Tedder v. Fla. Parole Comm'n, 842 SO.2d

55281022, 1025 (Fla, 1 st DCA 2003); Heifetz v. Dep't of Bus. Regulation, 475 So.2d 1277,

55441281 (Fla. 1 st DCA 1985). Also, the AU's decision to accept the testimony of one

5560expert witness over that of another expert is an evidentiary ruling that cannot be altered

5575by a reviewing agency, absent a complete lack of any competent substantial evidence

5588of record supporting his decision. See e.g., Collier Med. Ctr. v. State, Dep't of HRS,

5603462 SO.2d 83, 85 (Fla. 1 st DCA 1985); Fla. Chapter of Sierra Club v. Orlando Uti/so

5620Comm'n, 436 SO.2d 383,389 (Fla. 5th DCA 1983).

5629Based on the foregoing reasons and my ruling in Exception No.1, which is

5642incorporated herein, the Petitioners' Exception NO.4 is denied.

5650Exception No.5

5652The Petitioners take exception to paragraphs 149 through 156 of the RO where

5665the AU ultimately found that GREC provided reasonable assurance that its NOx and

5678S02 emissions should be netted against offsetting reductions in these emissions at

5690Deerhaven, and that BACT analysis for these pollutants was unnecessary. The

5701Petitioners contend that "the record does not support the conclusion that the Deerhaven

5714facility and GREC are under common control and thus may not legally be treated under

5729EPA and DEP's interpretation of the CM as the same facility." See Petitioners'

5742Exceptions at page 6. The Petitioners contentions do not include "appropriate and

5754specific citations to the record," and do not "identify the legal basis for the exception."

5769See § 120.57(1 )(k), Fla. Stat. (2010).

5776In the RO the AU expressly considered and rejected the Petitioners' arguments.

5788(RO 149 and 153)("Contrary to Petitioners' contention, this aggregate treatment of

5800GRU and GREC is not a legal fiction designed to circumvent BACT under the NSRlPSO

5815program."). In paragraph 153, the ALJ concluded that "without doubt, GRU controls

5828GREC." (RO 1)153). In paragraph 156, the ALJ ultimately concluded that "GREC has

5841provided reasonable assurance that its NOx and S02 emissions properly should be

5853netted against offsetting reductions in these emissions at Oeerhaven and that BACT

5865analysis for these pollutants is thus unnecessary." (RO 1)156). The ALJ's findings of

5878fact in paragraphs 149 through 156 are supported by competent substantial record

5890evidence. (T. pp. 460-61,476-77,479-80,484,865-72,874,876,906-08,915, 937; T.2.

5904pp. 125-131,356-57,526-27,529-33,561-62,574; Ex. 17C and 170 at 6,7 of 41; Ex.

592118; Ex. 65; Ex. 82).

5926The competent substantial record evidence shows that on July 12, 2010, at

5938GRU's request, the Department granted GRU a permit establishing lower permit limits

5950for emissions of S02 and NO x from Deerhaven Unit 2. The new permit established

5965enforceable reductions of 171 and 418 tons per year ("tpy"), respectively, in the

5980allowable emissions from Deerhaven Unit 2. (T. p. 476-77; Ex. 170 at 6; RO 1m 69,

5996150). The reductions in allowable emissions from Deerhaven Unit 2 will completely

6008offset the corresponding emissions from the GREC Project. Thus, there will not be a

6022net increase in allowable emissions of S02 and NO x from the GREC Project. (T. p. 476;

6039Ex. 170 at 6; ROll1l56, 69,150,155).

6047Under Rule 62-210.200(189)(d), Florida Administrative Code ("FAC."), a "major

6058stationary source" includes all of the emission units that are located on the same or

6073contiguous property, have the same standard industrial classification code ("SIC"), and

6086are under common control. (T.2. pp. 526-27, 574; RO 11204). The competent

6098substantial record evidence shows that the GREG Site is leased from GRU, contiguous

6111to the Deerhaven plant, and contained within the confines of the GRU Deerhaven

6124Property. (T. pp. 95,97; Ex. 6at 1; Ex. 1 at 1-6,1-9; RO,-r,-r6, 8,12). The Deerhaven

6144plant and the GREG project have the same SIG code. (T. p. 461).

6157The competent substantial record evidence also supports the ALJ's conclusion

6167that GRU and GREG are under common control (RO ,-r,-r 151, 152, 153). The Power

6183Purchase Agreement between GREG and GRU gives GRU the contractual authority to

"6195dispatch" the GREG Project. (T. pp. 461,880-81,907; Ex. 65, § 10). Under its

6210dispatch authority, GRU will essentially have operational control ofthe GREG Project

6221with regard to the start-up and shut-down of the facility and will decide the megawatt

6236load at which the Project will operate. (T.2. pp. 124-25; T. p. 168). GRU will decide, and

6253thus control, the voltage of the electricity provided by the Project. (T.2. p. 126;T. pp.

6269168,461,881; Ex. 65, § 10). The record also shows that GRU will control the

6285distribution of the electricity produced by the GREG Project. All of the electricity

6298produced by the Project will go to a GRU switchyard, which will connect to a GRU

6314electrical transmission line. (T.2. pp. 128-29). GRU will also supply the natural gas that

6328GREG needs for start-up operations and the electricity GREG needs for start-up and

6341standby operations. (T.2. pp. 129-30). Finally, to help GREG obtain the Suwannee

6353River Water Management District approval for GREG's withdrawals of groundwater,

6363GRU agreed to reduce GRU's permitted allocation of groundwater for Deerhaven by 1.4

6376million gallons per day (Le., the total quantity needed for the GREG Project). (T.2. pp.

6391130-31).

6392The AU's findings are supported by competent substantial evidence and I have

6404no authority to reweigh the evidence presented at a DOAH final hearing, attempt to

6418resolve conflicts therein, or judge the credibility of witnesses. See e.g., Rogers v. Dep't

6432of Health, 920 So.2d 27, 30 (Fla, 1 st DCA 2005); see also Fla. Power and Light Co. v.

6451State, Siting Bd., 693 SO.2d 1025 (Fla. 1st DCA 1997). A reviewing agency cannot

6465evaluate the quantity and quality of the evidence presented at a DOAH formal hearing,

6479beyond making a determination that the evidence is competent and substantial. See,

6491e.g., Brogan v, Carter, 671 SO.2d 822, 823 (Fla. 1st DCA 1996).

6503Therefore, based on the foregoing reasons, the Petitioners' Exception No.5 is

6514denied.

6515Exception No.6

6517The Petitioners take exception to paragraphs 189 and 190 where the ALJ

6529concluded that:

6531189. Two rulings at the start of the hearing require

6541explanation due to their impact on the case. First, the

6551Administrative Law Judge declined to allow Petitioners to

6559rely on Section 403.161, Florida Statutes, as a ground for

6569denying the Air Construction Permit in this case. Second, the

6579Administrative Law Judge struck from Petitioners' statement

6586of the issues all references to PM 2 . 5 as a subject pollutant,

6600such as PM, PM1Q, NOx, or S02.

6607190, Section 403.161 (1 lea), Florida Statutes, prohibits any

6616person from causing pollution, except as otherwise provided

6624by chapter 403, so as to harm or injure human health or

6636welfare. As DEP and GREC contend, this broad prohibition

6645is inapplicable to the present case because Sections

6653403.061 and 403.[087]. Florida Statutes, govern this case

6661andare part of Chapter 403. These provisions specifically

6669control whether and to what extent the GREC facility may

6679emit air pollutants; Section 403.161 (1 lea) obviously does not

6689override these complex provisions With a blanket prohibition

6697against any pollution, or else Sections 403,061 and

6706403,[087], and the rules adopted pursuant to these statutes,

6716would be unnecessary.

6719The Petitioners assert that "the provisions of law cited by the AU do not provide for

6735harmful pollution from dioxin and the AU admits in paragraph 194 that no Florida rule

6750exists in chapter 403 that regulates dioxin." See Petitioners' Exceptions at page 6.

6763Thus, the Petitioners contend (as they did in Exception No.1) that dioxin

6775emissions from the GREC Project will violate Section 403.161, Florida Statutes.

6786However, Section 403.161, Florida Statutes, is not applicable in this case. Section

6798403.161 does not give the Department the authority to prohibit dioxin emissions from

6811the Project under the general rubric of prohibiting pollution where, as in this case, the

6826emission source has or will have obtained all required environmental permits and

6838authorizations pursuant to chapter 403; and the competent substantial record evidence

6849demonstrates that the proposed emissions will not harm or injure human health,

6861welfare, or the environment. (RO,-r,-r 125-140). The competent substantial record

6873evidence established that the Department does not interpret or apply Section 403.161,

6885Florida Statutes, in the manner asserted by the Petitioners. (T. pp. 673-75, 896-98,

6898912-13). The pepartment's interpretation of Section 403.161, F.S., is a reasonable and

6910permissible one, which is entitled to deference unless clearly erroneous. See, e.g., Falk

6923v. Beard, 614 SO.2d 1086, 1089 (Fla. 1993); Dep'tofEnvtl. Regulation v. Goldring, 477

6936So.2d 532, 534 (Fla. 1985); Suddath Van Lines, Inc. v. Dep't of Envtl. Prot., 668 SO.2d

6952209,212 (Fla. 1st DCA 1996)(Agency interpretations of statutes and rules within their

6965regulatory jurisdiction do not have to be the only reasonable interpretations. It is

6978enough if such agency interpretations are "permissible" ones). The AU's decision to

6990accept the Department's interpretation of Section 403.161, Florida Statutes, is adopted

7001in this Final Order. See § 120.57(1)(1), Fla. Stat. (2010).

7011Therefore, based on the foregoing reasons, the Petitioners' Exception NO.6 is

7022denied.

7023Exception No.7

7025The Petitioners take exception to the ALJ's findings of fact in paragraphs 157

7038through 167 and conclusions of law in paragraphs 210 and 211 of the RO. In

7053paragraphs 157 through 166, the ALJ made detailed findings about HAPs emissions

7065from the Project. In Paragraph 167 the ALJ ultimately found that:

7076167. GREC has provided reasonable assurance that its

7084facility will not emit more than 9.72 tpy annually of any

7095individual HAP or 25 tpy of all HAPs. Thus, DEP properly

7106determined that case-by-case MACT analysis was

7112unnecessary.

7113The Petitioners contend that GREC and DEP failed to submit any "scientific data" in the

7128record to prove the emission changes described by the ALJ in paragraphs 157 through

7142166 that resulted in his finding that "case-by-case MACT analysis was unnecessary."

7154See Petitioners' Exceptions at page 7.

7160Contrary to the Petitioners' assertion the ALJ's findings concerning the Project's

7171HAPs emissions are supported by competent substantial record evidence. (T. pp. 119-

7183120,482-92,542,550,946-88; T.2. pp. 134-35,138-39, 188-89,277-79,280,527,592,

7197702-705,723-25,750-51,753; Ex. 17D at 8 and 17E; Ex. 34 at 6-8). Specifically, the

7213ALJ's findings concerning the Project's HAPs emissions are supported by four separate

7225assessments conducted by: (a) the Metso Corporation ("Metso"), GREC's boiler

7237manufacturer; (b) Alvero Linero, a professional engineer and the Department's Program

7248Administrator for Special Projects; (c) Thomas Davis, P.E., an expert concerning air

7260pollution control and permitting; and (d) Leonard Fagan, GREC's Project Director. They

7272testified that, based on their own evaluation of the relevant facts, they believe the HAPs

7287emissions from the Project will be controlled to the levels specified in the draft Air

7302Construction Permit, which are less than the 1 ° tpy and 25 tpy thresholds for a major

7319source of HAPs. (T.2. pp. 138-39,280,592,702-03,753; RO,-r 210).

7332Because the AU's findings and conclusions are supported by competent

7342substantial record evidence, the Petitioners' Exception NO.7 is denied.

7351Exception No.8

7353The Petitioners take exception to paragraph 181 of the RO where the ALJ found

7367that:

7368181. After DEP adds to the Air Construction Permit the

7378changes to the above-described changes to the site plan,

7387which do not relocate emissions units so as to require

7397remodeling emissions, GREC has provided reasonable

7403assurance that the draft Air Construction Permit adequately

7411protects against spontaneous combustion and the PM

7418emissions that would result from a fire.

7425In paragraphs 173 through 180 (unchallenged findings)8 of the RO the AU discussed

7438the measures that have been taken by GREC to ensure that fires will not occur at the

7455Project. The AU's findings of fact concerning fire prevention issues are supported by

7468competent substantial record evidence. (T. 131-132, 142-147,158-160,161-163, 324,

7478389,394-395,408,410,618-619,811; Ex. 1 at 4-34; Ex. 50). For example, GREC's

7493witnesses testified that given the operational plans and safeguards proposed by GREC

7505a fire is not likely to develop in the fuel yard at the Project (T. 162, 389, 410); fire from

7525spontaneous combustion at the Project is a "very low probability" (T. 410); GREC's plan

7539to use a fuel handling system virtually eliminates ... the possibility of fire" (T. 408); the

75558 Having filed no exceptions to certain findings of fact the party "has thereby expressed

7570its agreement with, or at least waived any objection to, those findings of fact." Envtl.

7585Coalition of Fla., Inc. v. Broward County, 586 SO.2d 1212, 1213 (Fla. 1 st DCA 1991);

7601see also Colonnade Medical Ctr., Inc. v. State of Fla., Agency for Health Care Admin.,

7616847 SO.2d 540, 542 (Fla. 4th DCA 2003).

7624Gity of Gainesville's Fire Department reviewed GREG's site plan for the Project and

7637suggested revisions, all of which GREG adopted (T. 143-46, 158-59); andfirefighting

7648measures have been incorporated into the design of the fuel storage area (T. 145-47,

7662162-63).

7663In this exception the Petitioners assert that "harm to human health and animal,

7676plant or aquatic life or property from wood fire emissions is predictable based on

7690undisputed facts in the record." See Petitioners' Exceptions at page 8. However, the

7703Petitioners do not cite to any record evidence supporting their assertion. Thus, this

7716exception "does not include appropriate and specific citations to the record." See §

7729120.57(1)(k), Fla. Stat. (2010).

7733The Petitioners contend that the AU did not address the presence of fires at

7747other facilities. However, in paragraph 176, the AU explicitly considered anecdotal

7758evidence of past fires at other fuel piles. The Petitioners also argue that there was no

"7774root cause analysis" concerning such fires, but the evidence presented at the Site

7787Certification Hearing and incorporated into the record of the instant proceeding explicitly

7799addressed the cause of such fires and the methods that GREC will use to avoid fires at

7816the Project. (RO 173-181; T pp. 131, 142-47,158-60, 162-63,324,389,394-95,

7829408,410; Ex. 1 at 4-34; Ex. 50).

7837Finally, in this exception the Petitioners again mistakenly rely on Section

7848403.161, Florida Statutes, as a basis for their arguments. For the reasons set forth in

7863my ruling on Exception NO.6 above, incorporated herein, Section 403.161, Florida

7874Statutes, is inapplicable to this case.

7880Therefore, based on the foregoing reasons, the Petitioners' Exception NO.8 is

7891denied.

7892Exception No.9

7894. The Petitioners take exception to the factual findings in paragraphs 16,17,183

7908(the first of two paragraphs 183), and 184 (the first of two paragraphs 184) of the RO.

7925The ALJ found that GREG provided reasonable assurance that only clean woody

7937biomass will be combusted at the GREG facility. The Petitioners argue that "there is

7951nothing in the record that shows an effective means for ... offsite suppliers to screen

7966and guarantee that the biomass is not contaminated with treated wood and/or heavy

7979metals." See Petitioners' Exceptions at page 9. The Petitioners concerns about the

7991quality assurance plan for clean woody biomass were considered and rejected by the

8004AU. The ALJ's findings of fact in paragraphs 16, 17, 183 and 184 of the ROare

8020supported by competent substantial recard evidence. (T.2. pp. 118,121, 175, 194,196,

8033208,211; Ex. 17E at BMP,1, BMP,3). In addition, pursuant to a stipulation made by

8050GREG at the Hearing (T.2. pp. 194,96), the ALJ recommended that DEP add an

8065additional condition to the Air Construction Permit prohibiting GREC from "accepting

8076biomass in the form of construction and demolition debris." (RO 211).

8087The AU's findings are supported by competent substantial evidence ami I have

8099no authority to reweigh the evidence presented at a DOAH final hearing, attempt to

8113resolve conflicts therein, or judge the credibility of witnesses. See e.g., Rogers v. Dep't

8127of Health, 920 SO.2d 27, 30 (Fla. 1 st DCA 2005); see also Fla. Power and Light Go. v.

8146State, Siting Bd., 693 SO.2d 1025 (Fla. 1 st DCA 1997). Areviewing agency cannot

8160evaluate the quantity and quality of the evidence presented at a DOAH formal hearing,

8174beyond making a determination that the evidence is competent and substantial. See,

8186e.g., Brogan v. Garter, 671 SO.2d 822, 823 (Fla. 1st DCA 1996).

8198Therefore, based on the foregoing reasons, the Petitioners' Exception NO.9 is

8209denied.

8210OEP'S EXCEPTIONS

8212In the following three exceptions the DEP asks for corrections to certain legal

8225citations that appear from the context to constitute mainly typographical errors. These

8237exceptions are granted. See § 120.57(1 )(1), Fla. Stat. (2010),

8247Exception NO.1 - In paragraph 190 the ALJ's references to "403.078" should be

"8260403.087." In chapter 403, there is no section 403.078. (see also T.2. pp. 47-49).

8274Exception NO.2 - In paragraph 191 the ALJ's reference to the Clean Air Act "§

82891 01 (b )(a)" should be "§ 1 01 (b )(1 )."

8301Exception No.3 - In paragraph 210 the ALJ's reference to "HESHAP" should be

"8314NESHAP." Paragraph 210 also contains references to provisions of NESHAP found in

832640 CFR Part 63 that are adopted by reference at Rule 62-204.800(11 )(d), FAC. (see.

8341also RO at page 3).

8346CONCLUSION

8347In this Final Order I adopt the AU's ultimate conclusion that GREG provided

8360reasonable assurance that the draft Air Construction Permit complies with all relevant

8372provisions of AAQS, PSD, and NESHAP and that the Department shouldcondition the

8384Air Construction Permit with the following additional four conditions: 1) a prohibition

8396against accepting biomass in the form of construction and demolition debris; 2) a

8409revised site plan incorporating the fire-safety changes to which GREC agreed with the

8422Gainesville Fire Department, including lowering the height of the automatic

8432stacker/reclaimer pile from 85 feet to 60 feet; 3) the identification of trona as the sorbent

8448for OSI; and 4) the addition of EPA Method 202 to measure filterableand condensible

8462PM emissions. See generally Hopwood v. Dep't of Envtl. Regulation, 402So.2d 1296

8474(Fla. 1st DCA 1981); Charlotte Cty. v.IMC Phosphates Co., 18So.3d 1089 (Fla. 2d

8487DCA 2009).

8489Having reviewed the matters of record and being otherwise duly advised, the

8501Department adopts the ALJ's recommendation.

8506It is therefore ORDERED that:

8511A. The Recommended Order (Exhibit A) is adopted in its entirety, except as

8524modified by the rulings in this Final Order, and is incorporated by reference herein.

8538B. GREC's Prevention of Significant Deterioration/Air Construction Permit

8546Application in DEP File No. 001 0131-001-AC (PSD-FL-411) is hereby GRANTED,

8557subject to the four additional conditions identified in paragraph 211 of the RO.

8570JUDICIAL REVIEW

8572Any party to this proceeding has the right to seek judicial review of the Final

8587Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal

8602pursuant to Rules 9.110 and 9.190, Florida Rules of Appellate Procedure, with the clerk

8616of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard,

8628M.S. 35, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal

8643accompanied by the applicable filing fees with the appropriate District Court of Appeal.

8656The Notice of Appeal must be filed within 30 days from the date this Final Order is filed

8674with the clerk of the Department.

8680DONE AND ORDERED this J:J!!aay of December, 2010, in Tallahassee,

8690Florida.

8691STATE OF FLORIDA DEPARTMENT

8695OF ENVIRONMENTAL PROTECTION

8698y.

8699c1. -i« IMI . DREW L fr . I fr

8709ecretary

8710Marjory Stoneman Douglas Building

87143900 Commonwealth Boulevard

8717Tallahassee, Florida 32399-3000

8720F[LED ON TH[S DATE PURSUANT TO § 120.52,

8728FLOR[DA STATUTES, W[TH THE DES[GNATED

8733DEPARTMENT CLERK, RECE[PT OF WHICH [S

8739HEREBY ACKNOWLEDGED.

8741lERK

8742CERTIFICATE OF SERVICE

8745I CERTIFY that a copy of the foregoing Final Order has been sent by FedEx

8760Ground to:

8762David S. Dee, Esquire Raymond O. Manasco, Jr., Esquire

8771Young VanAssenderp, P.A. Gainesville Regional Utilities

8777225 South Adams Street, Suite 200 301 Southwest 4th Avenue

8787Tallahassee, FL 32301-1700 Gainesville, FL 32614

8793Mick G. Harrison, Esquire Richard E .Condit, Esquire

8801205 North College Avenue, Suite 311 1612 K Street, Northwest, Suite 1100

8813Bloomington, IN 47404 Washington, DC 20006

8819Douglas S. Roberts, Esquire

8823Hopping Green & Sams

8827119 South Monroe Street, Suite 300

8833Tallahassee, FL 32301

8836by electronic filing to: and by hand delivery to:

8845Division of Administrative Hearings Jack Chisolm, Esquire

8852The DeSoto Building Department of Environmental Protection

88591230 Apalachee Parkway 3900 Commonwealth Blvd., M.S. 35

8867Tallahassee, FL 32399-1550 Tallahassee, FL 32399-3000

8873v

8874thisrf day of December, 2010.

8879STATE OF FLORIDA DEPARTMENT

8883OF ENVIRONMENTAL PROTECTION

8886FRANCINE M. F LKES

8890Administrative Law Counsel

88933900 Commonwealth Blvd., M.S. 35

8898Tallahassee, FL 32399-3000

8901Telephone 850/245-2242

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Date
Proceedings
PDF:
Date: 03/02/2011
Proceedings: Notice of Dismissal filed.
PDF:
Date: 01/07/2011
Proceedings: Petitioners Dr. Thomas Bussing Et Al's Exceptions to the Administrative Law Judge's Recommended Order filed.
PDF:
Date: 12/28/2010
Proceedings: Joint Response to Petitioner's Exceptions filed.
PDF:
Date: 12/28/2010
Proceedings: Petitioners Dr. Thomas Bussing et al's Exception to the Administrative Law Judges's Recommended Order filed.
PDF:
Date: 12/28/2010
Proceedings: Joint Notice of Concurrence with FDEP's Exceptions filed.
PDF:
Date: 12/28/2010
Proceedings: DEP's Exceptions to the Recommended Order filed.
PDF:
Date: 12/28/2010
Proceedings: Agency Final Order filed.
PDF:
Date: 12/27/2010
Proceedings: Agency Final Order
PDF:
Date: 12/07/2010
Proceedings: Recommended Order
PDF:
Date: 12/07/2010
Proceedings: Recommended Order (hearing held September 20-23, 2010). CASE CLOSED.
PDF:
Date: 12/07/2010
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 10/13/2010
Proceedings: Court Reporter's Certificate on Corrections to Final Administrative Hearing in Re: Grec, LLC, Air Construction Permit Taken on September 20, 2010 - Volume I filed.
PDF:
Date: 10/13/2010
Proceedings: Court Reporter's Certificate on Corrections to the Final Administrative Hearing Transcript in Re: Grec, LLC, Air Construction Permit Taken on September 22, 2010 filed.
PDF:
Date: 10/13/2010
Proceedings: Court Reporter's Certificate on Corrections to Air Construction Permit Hearing Taken on September 21, 2010 - Volume III filed.
PDF:
Date: 10/07/2010
Proceedings: Florida Department of Environmental Protection's Proposed Recommended Order filed.
PDF:
Date: 10/07/2010
Proceedings: GREC LLC and GRU's Joint Proposed Recommended Order for PSD Proceeding filed.
PDF:
Date: 10/07/2010
Proceedings: GREC LLC, and GRU's Notice of Filing their Joint Proposed Recommended Order for PSD Proceeding filed.
PDF:
Date: 10/07/2010
Proceedings: Florida Department of Environmental Protection's Notice of Filing Proposed Recommended Order filed.
Date: 09/27/2010
Proceedings: Transcript (Volumes I- VII) filed.
PDF:
Date: 09/23/2010
Proceedings: Joint Pre-hearing Stipulation filed.
PDF:
Date: 09/22/2010
Proceedings: Notice of Appearance of Richard E. Condit, Esq., as Qualified Represenative for Petitioners Dr. Thomas Bussing, et al., filed.
PDF:
Date: 09/22/2010
Proceedings: Declaration of Richard E. Condit, Esq., filed.
PDF:
Date: 09/22/2010
Proceedings: Petitioners-Appellants Motion to Deisgnate Ricahrd E. Condit, Esq., as Qualified Representative filed.
PDF:
Date: 09/21/2010
Proceedings: Notice of Serving DEP?s Answers to Petitioners? Interrogatories and Response to Petitioners? Request for Production filed.
PDF:
Date: 09/20/2010
Proceedings: Joint Pre-hearing Stipulation filed.
Date: 09/20/2010
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 09/20/2010
Proceedings: Gainesville Renewable Energy Center, LLC's Notice of Service of Responses to Petitioner Dr. Thomas Bussing's Interrogatories and Requests for Production of Documents to GREC, LLC filed.
PDF:
Date: 09/20/2010
Proceedings: GRU's Responses to Petitioner Bussing's First Set of Interrogatories and First Request for Production of Documents filed.
PDF:
Date: 09/20/2010
Proceedings: GRU's Notice of Filing Responses to Petitioner Bussing's First Set of Interrogatories and First Request for Production of Documents filed.
PDF:
Date: 09/17/2010
Proceedings: Notice of Filing Answers to Interrogatories filed.
PDF:
Date: 09/16/2010
Proceedings: Gainesville Renewable Energy Center, LLC's Notice of Taking Deposition Duces Tecum of Dr. Gretchen Bielmyer filed.
PDF:
Date: 09/16/2010
Proceedings: Gainesville Renewable Energy Center, LLC's Notice of Taking Deposition Duces Tecum of Dr. Mary Stuart Booth filed.
PDF:
Date: 09/16/2010
Proceedings: Gainesville Renewable Energy Center, LLC's Notice of Taking Deposition Duces Tecum of Dr. Ken Caldeira filed.
PDF:
Date: 09/16/2010
Proceedings: Gainesville Renewable Energy Center, LLc's Notice of Taking Depositoin Duces Tecum of Dr. Peter Defur filed.
PDF:
Date: 09/13/2010
Proceedings: Notice of Appearance of Mick G. Harrison, Esq. as Qualified Representative for Petitioners Dr. Thomas Bussings Et Al. filed.
PDF:
Date: 09/13/2010
Proceedings: Motion of Petitioners Thomas Bussing Et Al., for Approval of Mick G. Harrison, Esq. as Their Qualified Representative filed.
PDF:
Date: 09/07/2010
Proceedings: Order Granting Petition to Intervene.
PDF:
Date: 09/03/2010
Proceedings: Joint Motion to Strike and Motion in Limine filed.
PDF:
Date: 08/27/2010
Proceedings: City of Gainesville, Gainesville Regional Utilities' Petition to Intervene filed.
PDF:
Date: 08/27/2010
Proceedings: Intervenor City of Gainesville, Gainesville Regional Utilities Notice of Appearance (filed by D. Roberts, and R. Manason Jr.).
PDF:
Date: 08/26/2010
Proceedings: Notice of Service of Dept. of Environmental Protection's First Set of Interrogatories to Thomas Bussing filed.
PDF:
Date: 08/26/2010
Proceedings: Amended Notice of Hearing (hearing set for September 20 through 24, 2010; 9:00 a.m.; Gainesville, FL; amended as to Additional Day of Hearing).
PDF:
Date: 08/19/2010
Proceedings: Undeliverable envelope returned from the Post Office.
PDF:
Date: 08/19/2010
Proceedings: Notice of Hearing (hearing set for September 20 through 23, 2010; 9:00 a.m.; Gainesville, FL).
PDF:
Date: 08/16/2010
Proceedings: Order Granting Motion to Establish a Discovery and Hearing Schedule with Modifications.
PDF:
Date: 08/13/2010
Proceedings: Response to Initial Order filed.
PDF:
Date: 08/13/2010
Proceedings: Response to Initial Order filed.
PDF:
Date: 08/10/2010
Proceedings: Notice of Appearance (filed by D. Dee).
PDF:
Date: 08/10/2010
Proceedings: Gainesville Renewable Energy Center, LLC's Motion to Establish a Discovery and Hearing Schedule filed.
PDF:
Date: 08/10/2010
Proceedings: Gainesville Renewable Energy Center, LLC's Notice of Service of First Set of Interrogatories to Intervenor Thomas Bussing filed.
PDF:
Date: 08/10/2010
Proceedings: Gainesville Renewable Energy Center, LLC's Request for Production of Documents Nos. 1-44 to Thomas Bussing filed.
PDF:
Date: 08/10/2010
Proceedings: Gainesville Renewable Energy Center, LLC's Notice of Service of First set of Interrogatories to Intervenor Michael Canney filed.
PDF:
Date: 08/10/2010
Proceedings: Gainesville Renewable Energy Center, LLC's Request for Production of Documents Nos. 1-44 to Michael Canney filed.
PDF:
Date: 08/10/2010
Proceedings: Gainesville Renewable Energy Center, LLC's Notice of Service of First Set of Interrogatories to Intervenor December Mcsherry filed.
PDF:
Date: 08/10/2010
Proceedings: Gainesville Renewable Energy Center, LLC's Request for Production of Documents Nos. 1-44 to December Mcsherry filed.
PDF:
Date: 08/10/2010
Proceedings: Gainesville Renewable Energy Center, LLC's Notice of Service of First Set of Interrogatories to Intervenor Karen Orr filed.
PDF:
Date: 08/10/2010
Proceedings: Gainesville Renewable Energy Center, LLC's Request for Production of Documents Nos. 1-44 to Karen Orr filed.
PDF:
Date: 08/10/2010
Proceedings: Gainesville Renewable Energy Center, LLC's Notice of Service of First Set of Interrogatories to Intervenor David Mcsherry filed.
PDF:
Date: 08/10/2010
Proceedings: Gainesville Renewable Energy Center, LLC's Request for Production Nos. 1-44 to David Mcsherry filed.
PDF:
Date: 08/09/2010
Proceedings: Initial Order.
PDF:
Date: 08/09/2010
Proceedings: Notice of Related Case filed.
PDF:
Date: 08/09/2010
Proceedings: Written Notice of Intent to Issue Air Permit filed.
PDF:
Date: 08/09/2010
Proceedings: Petition for Formal Administrative Hearing and Proceeding Pursuant to Sections 120.569 and 120.57, Florida Statutes filed.
PDF:
Date: 08/09/2010
Proceedings: Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.

Case Information

Judge:
ROBERT E. MEALE
Date Filed:
08/09/2010
Date Assignment:
08/16/2010
Last Docket Entry:
03/02/2011
Location:
Gainesville, Florida
District:
Northern
Agency:
Other
 

Counsels

Related DOAH Cases(s) (2):

Related Florida Statute(s) (6):

Related Florida Rule(s) (3):