94-004057 Julie Hellmuth vs. Florida Solite Company And Department Of Environmental Protection Status: Closed Recommended Order on Wednesday, August 30, 1995.

Summary: Applicant is entitled to an air source permit to install a baghouse.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JULIE HELLMUTH, )

)

Petitioner, )

)

vs. ) DOAH NO. 94-4057

) OGC NO. 94-2284

CAROLINA SOLITE CORPORATION )

d/b/a FLORIDA SOLITE COMPANY )

and STATE OF FLORIDA, DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

_________________________________)

PRISCILLA N. HARRIS, )

)

Petitioner, )

)

vs. ) DOAH NO. 94-4058

) OGC NO. 94-2305

CAROLINA SOLITE CORPORATION )

d/b/a FLORIDA SOLITE COMPANY )

and STATE OF FLORIDA, DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

_________________________________)

ALLISON NORWOOD, )

)

Petitioner, )

)

vs. ) DOAH NO. 94-4059

) OGC NO. 94-2306

CAROLINA SOLITE CORPORATION )

d/b/a FLORIDA SOLITE COMPANY )

and STATE OF FLORIDA, DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

_________________________________)

STEWART HARRIS, )

)

Petitioner, )

)

vs. ) DOAH NO. 94-4060

) OGC NO. 94-2307

CAROLINA SOLITE CORPORATION )

d/b/a FLORIDA SOLITE COMPANY )

and STATE OF FLORIDA, DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

_________________________________)

RECOMMENDED ORDER

A notice was provided and on March 6 through 9, 1995, a formal hearing was

held in this case. Authority for conducting the hearing is set forth in Section

120.57(1), Florida Statutes. The hearing location was Green Cove Springs,

Florida. The Hearing Officer was Charles C. Adams.

APPEARANCES

For Petitioners: Julie Hellmuth, pro se

1205 Orange Circle North

Orange Park, Florida 32073

Stewart Harris, Esquire

Priscilla N. Harris, Esquire

Post Office Box 702

1752 County Road 315

Green Cove Springs, Florida 32043

For Florida Solite Thomas K. Maurer, Esquire

Company (Solite): Foley & Lardner

Post Office Box 2193

111 N. Orange Avenue, Suite 1800

Orlando, Florida 32801

John Kopelousos, Esquire

Post Office Box 562

Orange Park, Florida 32067-0562

John Jewett

Florida Solite Company

Post Office Box 27211

Richmond, Virginia 23261

For Department Jefferson M. Braswell, Esquire

of Environmental Douglas Beason, Esquire

Protection (DEP): Office of General Counsel

Department of Environmental Protection

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUES

Is Solite entitled to an air source permit for a stationary installation

that would allow Solite to install a baghouse, a top load pulse-jet dust

collector (or equivalent); a heat exchanger; to modify the duct systems for

existing kilns Nos. 1, 1A, and 5, thus allowing any kiln to discharge through

the proposed baghouse No. 1 or an existing baghouse No. 5; to connect kilns Nos.

1 and 1A to an existing pug mill filter receiver and clinker hopper filter

receiver; to install a pneumatic system to connect proposed baghouse No. 1 to an

existing lime and clay fines system and to install other associated equipment?

This permit would also allow the temporary operation of baghouse No. 1.

PRELIMINARY STATEMENT

On June 10, 1994, the Department issued its notice of intent to issue the

aforementioned air source permit and provided Solite with a draft permit. This

decision was opposed by the Petitioner's through petitions filed with the

Department. To resolve the dispute between Petitioner's, Solite and the

Department, the case was referred to the Division of Administrative Hearings for

conduct of a Section 120.57(1), Florida Statutes hearing. Upon receipt, the

petitions were consolidated for purposes of hearing and further disposition.

At the formal hearing Solite presented the testimony of Dr. John B. Koogler

and offered thirteen (13) exhibits which were admitted into evidence. The

Department presented the testimony of Willard Hanks and offered one (1) exhibit

which was admitted into evidence. In addition the Department adopted the

testimony of Dr. Koogler as its own. Petitioners presented the testimony of

John Kuiken, Nelson Hellmuth, Dr. Raed Assar, Terry Doonan, Joseph Tessitore,

P.E., Alberto Galliano, Clair Fancy and Dr. David Neal Boehnke. Petitioners'

exhibits one (1) through seventeen (17) were offered as evidence. Those

exhibits were admitted with the exception that exhibits eleven (11) through

sixteen (16) are not admitted following the opportunity for the hearing officer

to review those exhibits and for the parties to submit written argument in

proposed recommended orders addressing their admission.

Public testimony was also received in which the public was allowed the

opportunity to speak in favor of and in opposition to the request for permit.

Exhibits offered by the public were admitted.

The hearing transcript was filed on May 3, 1995. Proposed recommended

orders were filed by Petitioners, excepting Julie Hellmuth, Solite and the

Department. The filing date was May 31, 1995. Consequently, the requirement

that the recommended order be entered within thirty (30) days from the date on

which the transcript was filed was waived. See Rule 60Q-2.031, Florida

Administrative Code. The fact finding contained in the proposed recommended

orders is discussed in an Appendix to the recommended order.

FINDINGS OF FACT

1. Solite is a light weight aggregate mining and manufacturing facility

located in Clay County, Florida. The mining operation extracts clay from

quarries on site. That clay is then stored on site for use in the

manufacturing.

2. The Solite facility began its operations in Clay County in 1959.

3. To convert the clay into a product, it is introduced into a rotary

light weight aggregate kiln. There it is heated to a temperature of 1,900 to

2,100 degrees Fahrenheit. Once the raw feed has been subjected to the heat in

the rotary kiln, it becomes light weight aggregate, a product that is used in

the construction industry.

4. Before being introduced into the kiln the raw feed clay is stored in a

covered shed. When the kiln is operating clay is taken from the shed by front

end loader and transported to a pug mill. The clay exits the pug mill onto a

conveyor which has a weigh scale. From there, the raw feed clay is introduced

into the kiln, at what is referred to as the cold end of the kiln.

5. When a kiln is in operation the clay rolls from the cold end of the

kiln through the other end during which transport the raw clay is heated. The

clay is discharged from the kiln into a product cooler. From the product cooler

it is transferred by a front end loader to a crushing, screening and storage

area.

6. Solite has three (3) kilns at the facility. They are kilns 1, 1A and

5.

7. The kilns at the Solite facility are eight to nine feet in diameter and

130 to 160 feet long.

8. When the kilns are in operation, they rotate at a speed of one to two

revolutions per minute in producing the product.

9. The fuel sources for heating the kilns on site are constituted of coal,

number (2) fuel oil, propane or liquid burnable material (LBM). The LBM fuel

source contains a variety of combustible waste materials. Among those waste

materials are certain hazardous wastes.

10. In 1973 Solite began to burn material which is now classified as

hazardous waste.

11. The combustion process that occurs in manufacturing the light weight

aggregate creates gases that run countercurrent to the raw clay feed. The

combustion gases are discharged at the same end of the kiln in which the raw

clay had been introduced.

12. In managing the hazardous waste used at the facility, Solite has

installed two systems to treat the combustion gases before those gases are

released into the atmosphere.

13. Kiln No. 5 employs baghouse technology for air pollution control, a

treatment system consisting of two compartments with approximately 960 bags.

14. By contrast, the air pollution control devises for kilns 1 and 1A are

individual wet scrubber systems for each kiln.

15. As stated, the proposed permit would allow Solite to add an additional

baghouse. Under this arrangement two of the existing kilns could be used

simultaneously, with the existing baghouse No. 5 and the proposed baghouse No. 1

serving as air pollution control devices.

16. The existing baghouse associated with kiln 5 has a lime injection

system as part of the air pollution control system.

17. The proposed permit contemplates a lime injection system as part of

the air pollution control to be employed with the additional baghouse.

18. The wet scrubbers associated with kilns 1 and 1A are designed to

control particulate matter in emissions. The scrubbers are not designed to

respond to other pollutants. To that end the wet scrubber with kiln 1A could

meet applicable standards for particulate matter. The wet scrubber for kiln 1

could possibly meet the applicable standard for particulate matter if more spray

nozzles were added to the scrubber.

19. The present inability for kiln 1 to meet the applicable standard for

particulate matter control is not significant because Solite may only operate

kiln 1 or 1A separately.

20. The water that is employed in the wet scrubbers becomes hazardous

waste once it has been utilized in the attempt to respond to the pollutants in

the air emissions generated by the respective kiln.

21. In the past that water containing hazardous waste was introduced into

a settling pond. Solite may no longer discharge that water into the settling

pond in accordance with a regulatory decision that is not the subject for

consideration in this case. Solite has made no other arrangements for disposing

of the waste water.

22. The proposed permit in this case would allow Solite to use the

existing scrubbers to control emissions from kilns 1 and 1A in the instance

where fuels were used in the manufacturing that were other than LBM with

hazardous waste.

23. At present kilns 1 and 1A have necessary permits for their use with

the wet scrubber air pollution control devices, subject to the limitations that

have been described.

24. Under the terms set forth in the proposed permit the future use of LBM

with hazardous waste in the manufacturing in kilns 1 and 1A would be only

allowed when baghouse technology was employed as an air pollution control

device.

25. The baghouse air pollution control technology does not use water.

Therefore it does not create a circumstance in which the treatment water

contains hazardous waste.

26. In that respect, kiln 1A ceased burning LBM with hazardous waste on

December 1, 1990. That practice was concluded at kiln 1 on June 6, 1991.

27. Kiln 5 ceased burning LBM with hazardous waste on August 19, 1991, but

resumed burning LBM with hazardous waste on December 14, 1993 after the baghouse

for that kiln was installed with its lime injection system.

28. The baghouse proposed to be installed under the terms of the permit

application is almost identical to the baghouse and associated equipment that

were recently installed to operate with kiln 5. The baghouse and associated

equipment with kiln 5 has achieved full compliance with all applicable state and

federal air regulations as evidenced through compliance tests.

29. As noted, with the baghouse at kiln 5 and the proposed baghouse for

kilns 1 and 1A, the combustion gases are subject to treatment by lime. In that

process the lime is introduced into the air emissions by pneumatic transfer.

30. An alternative means for lime injection is established. That

alternative would allow the lime to be introduced at the point where the fuel is

fired at the kiln.

31. Lime injection is used to control acid gases, either sulfur dioxide or

hydrogen chloride.

32. The combustion gases are also cooled by passing them through a heat

exchanger that brings the temperature down from the exit temperature from the

kiln temperature of 900 degrees Fahrenheit to approximately 400 degrees

Fahrenheit. The cooled gases then enter the baghouse which is designed to

control the particulate matter in the emissions. From there the remaining gases

are discharged into the atmosphere.

33. It takes four to five seconds for the combustion gases to go from the

kiln through the heat exchanger proposed by this project.

34. The particulate matter is in the form of dust that is collected in the

baghouse. That dust is removed through a screw conveyor and pneumatically

transferred to a kiln storage bin. The air involved in that pneumatic transfer

is discharged through a small baghouse.

35. The clay fines in the kilns bin are reintroduced into the pug mill,

conveyed and mixed with raw clay before the clay fines are reintroduced into the

manufacturing process in the kiln. The clay fines may also be transported from

the kiln storage bin to the crusher and introduced into the finishing process

for the product.

36. On November 30, 1992, Solite made application for the permit at issue.

Solite sought permission to modify the existing facility by constructing duct

work that would connect kilns 1 and 1A to the kiln 5 baghouse, to construct and

temporarily operate the additional baghouse and to connect kilns 1 and 1A to the

existing pug mill filter receiver and clinker hopper filter (the filter receiver

associated with the crusher). The connection of kilns 1 and 1A to the existing

pug mill filter receiver and clinker hopper filter is to control the particulate

matter that is captured in the baghouses.

37. The existing pug mill filter receiver and clinker hopper filter

presently serve kiln 5.

38. If allowed the opportunity to construct a second baghouse, Solite

contemplates using the second baghouse with kiln 1 or 1A.

39. The arrangement contemplated by the proposed permit would allow kiln 1

or 1A to operate simultaneously with kiln 5.

40. The bags in the proposed baghouse would be about six inches in

diameter and twelve feet long. As the particulate matter in the air emissions

enters the top of the baghouse it passes through these bags. That particulate

or dust is collected on the surface of the bags, while the air that has gone

through the filtration process exits through the stack to the baghouse and into

the atmosphere.

41. The dust that collects on the bags forms a "filter cake."

42. Once a certain atmospheric pressure is achieved in the baghouse a

predetermined jet of air is blasted down the bags blowing the filter cakes away

from the bags. This allows the cakes to fall down into the bottom of the

baghouse where a screw-auger moves that material to one end of the baghouse

hopper. From there it is removed through an air lock and pneumatically

transferred to the clay fines bin.

43. The proposed baghouse would utilize a continuous monitor that is

installed with the baghouse to measure the particulate matter concentration in

the clean air section of the baghouse. Should a hole appear in one of the bags,

that would cause a increase in the particulate concentration. Then a signal is

generated by a broken bag detector which alerts the operator that a problem

exists and the bag needs to be replaced.

44. There are access doors into the baghouse that allow the operator to

enter the baghouse to inspect the bags and replace them as needed.

45. When the Department reviewed the permit application, it issued a

notice of intent to grant a permit and a proposed permit. Petitioner's timely

protested the intent to grant. Before hearing the Department issued two

amendments to the proposed permit. It is the second amendment which forms the

basis for proposed agency action. Solite does not oppose the terms set forth in

the second amendment. Petitioners do oppose the grant of the second amended

permit.

46. By the actions which the parties have taken in this case, it would

appear that they have conceded the standing for Petitioners to bring the

challenge to the grant of a permit.

47. The proposed project would not increase the capacity for the

manufacture of light weight aggregate products. The amount of fuel used in that

manufacturing and the hours of operation when compared to opportunities

presently permitted would not be increased.

48. The maximum rate of feed of authorized LBM that could be incinerated

in kilns 1 and 1A does not increase when comparing the application to the

existing permits for kilns 1 and 1A with wet scrubbers.

49. The removal efficiencies with the proposed baghouse exceed or are

equal to those with the wet scrubber systems when examining control of emissions

of air pollutants that must be addressed.

50. Clay County is an attainment area for all air pollutants.

51. In considering the application, the Department determined this to be a

construction request with a right to temporarily operate the equipment to check

its performance. The Department considered the permit request to be one related

to a stationary installation which will reasonably be expected to be a source of

air pollution. See Section 403.087(1), Florida Statutes. In the proposed

permit for baghouse No. 1 the Department intends to impose certain restrictions

on emissions that were specified in the permit issued for the baghouse No. 5.

52. The Department in its proposed permit employs a process similar to

that set forth in the January 23, 1993 settlement agreement related to kiln No.

5.

53. In determining the acceptability of the proposal the Department looked

to Rule 62-730.181, Florida Administrative Code which speaks to standards for

the management of specific hazardous wastes and specific types of hazardous

waste management facilities. In particular the Department utilized that rule in

its terms wherein the rule incorporates by reference 40 C.F.R. Part 266, Subpart

H, as it is designed to regulate hazardous waste burned in a boiler or

industrial furnace.

54. The regulations in 40 C.F.R. 266, Subpart H, are referred to as the

Boiler and Industrial Furnaces regulations (BIF).

55. The Solite kilns are industrial furnaces within the meaning as defined

in 40 C.F.R. 266, Subpart H.

56. The Department in its proposed permit would impose the terms set forth

in 40 C.F.R. 266, Subpart H, related to the maximum concentrations of certain

constituents in the LBM with hazardous wastes and the air emissions produced by

their destruction.

57. By imposing those requirements the Department is operating

independently. It is not through this permit review administering the BIF

regulations as set forth in 40 C.F.R. 266, Subpart H under authority from the

United Stated Environmental Protection Agency and for the benefit of that

federal regulatory agency.

58. The Department has required that Solite address the combined emissions

from metals and other air pollutants for all sources at the facility. By this

requirement the Department intends to assure that those emissions do not result

in ambient air concentrations that would harm or injure human health or welfare,

animal, plant, or aquatic life or property.

59. To demonstrate those assurances Solite was expected to conduct

modeling of the emissions of metals and chlorine which could be emitted from the

facility. That modeling was properly done. The requirement for modeling was in

accordance with Section 403.161, Florida Statutes. In association with this

requirement the Department referred to the BIF regulations at 40 C.F.R. 261.

60. The proposed permit is considered in accordance with Rule 62-296.320,

Florida Administrative Code, related to the control of air pollutants which

cause or contribute to an objectionable odor.

61. The requirements within the proposed permit include the necessity for

Solite to establish reasonable precautions to minimize unconfined emissions of

particulate matter as described in Rule 62-196.310(3), Florida Administrative

Code.

62. As stated in the proposed permit, if kiln 1 or 1A were in operation

using the wet scrubbers they must conform to existing permits associated with

kilns 1 and 1A, but those opportunities would only pertain to the instance in

which the fuel sources are other than LBM with hazardous waste.

63. For Solite to use wet scrubbers as pollution control devices for kilns

1 and 1A in an instance in which LBM with hazardous waste was used for fuel, the

treatment efficiency for kiln 1 would have to be improved in the manner

described and the treatment water that contained hazardous waste must be

disposed of other than by placement in the settling pond.

64. The existing wet scrubber systems for kilns 1 and 1A are not closed

systems which continue to re-circulate the scrub water (a closed scrub water

containment system).

65. There is no proposal to install a scrubber water re-circulation

system. If such a system were installed an arrangement would be necessary for

periodically taking the scrubber water and disposing of that water off-site.

Without a system for containing and re-circulating the scrubber water which

contained hazardous waste, and periodic disposal of that scrubber water, Solite

may not use kilns 1 and 1A with a scrubber when burning LBM with hazardous

waste. This is true even though the Solite air emissions control device for

kiln 1A using the wet scrubber does meet applicable air emissions standards and

the scrubber system permitted with kiln 1 has the possibility to meet air

emissions standards. Therefore, if kilns 1 or 1A were used with a baghouse this

would create a net increase in air emissions when using LBM with hazardous waste

as a fuel source. Such an arrangement would not exceed the theoretical air

emissions associated with the wet scrubbers for kilns 1 or 1A when using LBM

with hazardous waste that are presently set forth in the existing permits for

those kilns. But the proposed permit recognizes the problem with the scrubber

systems by limiting the use of the scrubber systems to those occasions in which

LBM with hazardous waste is not used as a fuel.

66. The proposed permit specifically prohibits the use of kiln 1 and 1A

simultaneously.

67. A baghouse or scrubber may only control the emissions from one kiln at

a time in accordance with the proposed permit.

68. The Oldover Corporation or another facility permitted to manage

hazardous wastes under various provisions at 40 C.F.R. shall be the supplier of

LBM with hazardous wastes.

69. Under the terms of the proposed permit Solite is responsible for the

LBM with hazardous wastes meeting all the requirements in any applicable state,

federal and local regulations.

70. The proposed permit limits the constituents in the LBM with hazardous

waste. It does not allow any hazardous waste that is listed for dioxin or

derived from the dioxin-listed waste. As set forth in the proposed permit,

organic cyanides, sulfide, mercaptans, insecticides, pesticides, herbicides,

electroplating waste or radioactive material regulated by the State of Florida,

Department of Health and Rehabilitative Services are not allowed to be part of

the LBM.

71. Other limitations are placed on the LBM with hazardous fuel concerning

its constituents. They are set forth in proposed condition number 22 to the

proposed permit.

72. In accordance with the proposed permit, prior to submitting an

application for an operating permit, which would allow LBM with hazardous waste

to be burned, Solite is required to conduct testing at the facility for

chlorinated dibenzo-p-dioxin and dibenzofuran, pursuant to a test plan approved

by the Department.

73. The proposed permit addresses test requirements and reports under

various provisions set forth in Rule 62-297, Florida Administrative Code.

74. The proposed permit reminds Solite that:

Nothing in this permit shall exempt the permit

to you from the requirements of 40 C.F.R. 761,

polychlorinated bolychlorinated biophenyls,

40 C.F.R. 266, Subpart H, hazardous waste burned

in boilers and industrial furnaces, and Chapter

62-730, Florida Administrative Code, hazardous

waste, or any other requirements outside the

purview of the Department's air regulation

(Chapters 62-296 and 297, Florida Administrative

Code). The permittee shall obtain such state

and federal permits, when applicable, pursuant

to any hazardous waste regulation (Rule 62-4.160,

Florida Administrative Code).

75. The proposed permit allows for an extension of the construction permit

upon request of the Bureau of Air Regulation within the Department.

76. The proposed permit makes it incumbent upon Solite to submit an

application for an operation permit to the northeast district of the Department

at least ninety (90) days prior to the expiration date of the construction

permit.

77. The proposed permit would allow kilns Nos. 1 and 1A to operate 24

hours a day, 7 days a week, 52 weeks a year, but no more than 760 hours during

any calendar year, but not simultaneously.

78. Concerning hazardous wastes in the LBM, procedures for testing those

fuels to be used at the Solite facility are set forth in the waste analysis plan

in the hazardous waste facility permit for the Oldover Corporation and the waste

analysis plan for Solite. Oldover supplies those fuels to Solite.

79. Under the waste analysis plan the generator of the waste material must

complete a waste profile indicating the type of waste and its constituents which

the generator proposes to supply to the facility.

80. Initially Solite evaluates the waste profile to determine if the waste

material meets all the necessary requirements for acceptance as a hazardous

waste fuel for Solite. If the profile is acceptable, a representative sample is

obtained from the waste generator. This sample is analyzed for a comprehensive

set of parameters including physical characteristics, metals and organic

compounds. If the representative sample indicates that the waste stream is

acceptable it is approved and shipments are made to the Oldover facility

adjacent to Solite.

81. Once the waste stream has been approved by Solite and shipments are

made, Oldover reviews the manifest associated with each shipment to determine

the existence of any prohibitive constituents in the fuel before the fuel is

accepted. Oldover tests the wastes for a limited number of parameters to

determine whether or not the shipment conforms with the pre-established waste

profile. If discrepancies are discovered between the waste profile and testing

results the shipment may be rejected if the problems with the shipment cannot be

reconciled with the anticipated waste profile.

82. Comprehensive waste analysis are performed on an annual basis as well

as at the initial point at which Solite begins to do business with a waste

generator or upon the occasion when there is a significant change to the

generator's waste stream.

83. As it appears, the LBM with hazardous waste obtained from outside

generators is generated off-site.

84. Through this processes Solite has provided reasonable assurance that

the use of LBM's with hazardous waste envisioned by the proposed permit will not

allow the burning of hazardous waste that is listed for dioxin or derived from

the dioxin-listed wastes: FO20, FO21, FO23, FO26 or FO27 as specified in 40

C.F.R. 261, Subpart H, or organic cyanides sulfites, mercaptans, insecticides,

pesticides, herbicides, electroplating waste or radioactive material regulated

by the State of Florida, Department of Health and Rehabilitative Services.

85. Solite has provided reasonable assurance that the LBM with hazardous

waste will be properly analyzed to quantify the concentration of any constituent

that may reasonably be expected to be in the waste. Those constituents will be

identified and quantified, if present. This process of identification and

quantification will be at levels detectable by analytical procedures prescribed

in EPA method SW-846. That method is the prescribed method for analyzing

hazardous LBM under the BIF rules.

86. As a means to promote reasonable assurances that the proposed project

will comply with applicable state and federal emissions standards, emissions

from kiln 5 using its baghouse have been tested and the emissions at kiln 5

using the baghouse meet all applicable state and federal emission standards.

Given that the proposed baghouse for kilns 1 and 1A will be very similar to the

baghouse associated with kiln 5, it is to be expected that the emissions from

kilns 1 and 1A using the proposed baghouse would be comparable to the experience

with kiln 5 and its baghouse.

87. Using a baghouse results in significant reductions in the emissions of

particulate matter when compared to the experience with wet scrubbers.

88. The emissions from the proposed project will not exceed emission

standards for particulate matter.

89. The use of the lime injection system with the proposed baghouse will

decrease emissions of sulfur dioxide.

90. The emissions from the proposed project will not exceed standards for

sulfur dioxide.

91. Neither the existing wet scrubber system nor the baghouse system are

expected to have any significant impact on nitrogen oxide emissions.

Consequently, there will be no significant change in nitrogen oxide emissions

associated with the installation of the proposed baghouse.

92. The emissions from the proposed project will not exceed emission

standards for nitrogen oxides.

93. The proposed baghouse will result in a reduction in the emissions of

metals due to the increased efficiency in the removal of particulate matter.

94. The emissions from the proposed project will not exceed emission

standards for metals.

95. The proposed baghouse will result in a reduction in mercury emissions

due to increased efficiencies in the removal of mercury in particulate form.

96. The proposed baghouse will not cause a change in the emissions of

hydrogen chloride when compared to the experience with the wet scrubbers. The

levels of hydrogen chloride when using the baghouse as a control device will not

exceed any standards. Nor will there be emissions in excess of standards for

chlorine gas.

97. The proposed baghouse when contrasted with the experience in the use

of wet scrubbers will not change the amount of emissions of organic materials.

98. The proposed baghouse when contrasted with the wet scrubber system

will result in a reduction of the emissions of dioxins and furans.

99. The proposed project will comply with standards applicable to dioxins

and furans by exclusion from the LBM and limiting the inlet temperature to the

baghouse. The proposed permit prohibits the facility from accepting any dioxins

bearing waste. The fuel is screened to insure that it does not contain dioxin.

PCB's in excess of five parts per million are not allowed. This is a means to

limit the formation of dioxins and furans from the PCB's. The maximum

temperature of gases entering the baghouse is established at 450 degrees

Fahrenheit and an automatic shut-off device is required if this temperature is

exceeded in order to control the secondary generation of dioxins and furans.

The inlet temperature to the baghouse is set at 425 degrees.

100. The modeling that was done to examine emissions of metals and

chlorine provided reasonable assurances that the ambient concentrations caused

by the impact of these pollutants from this facility will be less than the

Department's annual air reference concentrations, as a means to ensure that harm

or injury to human health or welfare, animal, plant or aquatic life or property

does not occur.

101. Solite is required by the terms of the proposed permit to have

continuous emission monitors for carbon monoxide and hydrocarbons. When the

emission standard for carbon monoxide or alternatively hydrocarbons nears the

exceedance level, then the automatic waste feed shut-off is activated to assure

that the carbon monoxide or, alternatively, hydrocarbon emission standards are

not exceeded.

102. Kiln 5 with its associated baghouse has demonstrated a destruction

and removal efficiency for regulated organic pollutants in excess of 99.99

percent. Having similar technology, the proposed permit for a baghouse can be

expected to meet the 99.99 percent destruction and removal efficiency for

organic pollutants.

103. The addition of the proposed baghouse with its associated features

provides reasonable assurance that the particulate matter standard of 0.08

grains per dry standard cubic foot corrected to seven percent O2 will be met.

104. As a protection against exceeding emission standards for various

pollutants the proposed permit requires that Solite continuously monitor for

carbon monoxide, oxygen, baghouse inlet temperature and sulfur dioxide at levels

established in the proposed permit.

105. Furthermore, the proposed permit requires that an automatic shut-off

device be installed to maintain established emissions limits for temperature,

oxygen or hydrocarbons. Such devices have been installed on the existing kiln 5

with its baghouse.

106. Efficient combustion can be expected in kilns 1 and 1A based upon

residence time for burning, turbulence, temperature and oxygen availability.

The residence time for the fuels is approximately four seconds. The rotation of

the kilns and movement of the clay material ensures adequate turbulence. The

temperature of the kiln must be maintained at or above 1,800 degrees Fahrenheit

and the fuel feed of LBM with hazardous waste is automatically shut-off if the

temperature falls below 1,850 degrees. Oxygen levels are to be continuously

monitored. The gas flow rates for fuel introduced into the kiln may not vary

significantly. These arrangements are contained in the proposed permit.

107. The re-introduction of clay fines or dust into the kiln to be

incorporated into the product has been taken into account in establishing

estimates of emissions for kilns 1 and 1A. That phenomenon has been measured in

emissions for kiln 5. In using the dust Solite will not create conditions which

violate standards for emissions.

108. To support these findings all experts who testified at the hearing

agreed that the proposed project will meet all applicable rules and emission

standards. Solite has established reasonable assurances concerning those

standards.

109. The Solite application was sealed by a professional engineer, Dr.

John Koogler, who was among those experts mentioned.

110. The Solite facility uses an industrial furnace which is similar in

design to furnaces regulated by the Environmental Protection Agency in its

hazardous waste regulatory program. Nothing about the facility is

extraordinary, thus requiring a more rigorous regulatory response to this

facility which uses LBM with hazardous waste in kiln No. 5 and proposes to do so

through the project under consideration.

111. It was not shown that the Department must impose its "Air toxics"

permitting strategy for controlling toxic emissions from stationary sources at

levels which will not endanger public health in order to adequately consider the

proposed project. The "Air toxics" permitting strategy is a non-rule policy.

112. Although not specifically required by rule or standard Solite

performed additional modeling concerning the emissions of organics from the

facility with the advent of the use of the proposed baghouse. The modeling

indicated that there would not be an exceedance of the no threat levels

established in the state air toxics strategy. Similarly, although not required,

Solite conducted additional modeling of dioxins emissions which indicated that

there would be no significant risk posed as a result of the proposed project.

113. Solite has qualified for interim status under the United States

Environmental Protection Agency (EPA) regulations to burn hazardous waste at its

facility. Solite has filed EPA required precompliance certification for all

three kilns and certification of compliance for kiln 5. Solite has obtained an

extension from EPA for filing their certification of compliance for kilns 1 and

1A. In addition Solite has submitted an application for hazardous facility

permit to EPA and this application is currently under review by EPA.

114. In reviewing the permit application past violations of statutes and

rules were considered by the Department. This was done to determine whether

Solite had provided reasonable assurances that the Department standards in

application to the proposed project would be met. The Department correctly

decided that Solite's past violations did not justify denial of the permit.

Those violations were not severe and Solite corrected the problems.

Furthermore, the proposed project would improve air pollution control to the

extent that it reduces or eliminates problems that led to the previous

violations.

CONCLUSIONS OF LAW

115. The Division of Administrative Hearings has jurisdiction over the

subject matter and the parties in this action in accordance with Section

120.57(1), Florida Statutes.

116. Petitioner's have standing to bring this petition in opposition to

the grant of an air source permit to Solite. See Agrico Chemical Company v.

Dept. of Environmental Regulation, 46 So. 2d 478 (Fla. 2d DCA 1981).

117. Petitioner's timely challenged the Department's intent to grant the

air source permit.

118. The permit would allow Solite to construct a baghouse and duct work

and other ancillary features that have been previously discussed. The permit

would also allow Solite to temporarily operate the new baghouse.

119. The case proceeded on the basis that Solite offered proof which

formed a prima facie basis for granting the permit. The Department followed

that presentation with proof to support the grant subject to conditions set

forth in the proposed seconded amended permit. Petitioner's then proceeded to

challenge the prima facie showing that reasonable assurances have been provided

that applicable statutes and rules are complied with entitling Solite to the

construction permit. By their proof the Petitioner's made specific challenges

to the grant of the permit attempting to show that reasonable assurances had not

been provided. Solite offered rebuttal to that proof. See McDonald v. Dept. of

Banking and Finance, 346 So. 2d 569 (Fla. 1st DCA 1977) and Dept. of

Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

120. The Department considered the application in accordance with

statutory provisions and Department rules which it had concluded properly

addressed the air emissions associated with the construction activity. In this

case the permit authority was associated with Chapter 403, Florida Statutes;

Chapter 62-4, Florida Administrative Code; Chapter 62-103, Florida

Administrative Code; Chapter 62-210, Florida Administrative Code; Chapter 62-

212, Florida Administrative Code; Chapter 62-275, Florida Administrative Code;

Chapter 62-296, Florida Administrative Code; Chapter 62-297, Florida

Administrative Code; Chapter 62-730, Florida Administrative Code and 40 C.F.R.

266.

121. This permit application is considered in accordance with Section

403.087, Florida Statutes in that the Solite facility is a stationary

installation which releases air pollution.

122. In addition to specific rules designed to address air pollution

created by the proposed project, the Department used hazardous waste management

regulations in 40 C.F.R. 266 pertaining to expected constituents in the stack

emissions from the proposed baghouse. The Department's purpose in that choice

was not to pass upon Solite's entitlement to a hazardous waste permit (as under

the regulatory program addressed in Section 403.722, Florida Statutes, and

Sections 62-730.220 and 62-730.231, Florida Administrative Code).

123. The authority for the Department to use 40 C.F.R. 266 is set forth in

62-730.181, Florida Administrative Code, which incorporates the federal

provision by reference. The federal regulations at 40 C.F.R. 266 are known as

the boiler and industrial furnace regulations or BIF regulations.

124. Rule 62-730.020, Florida Administrative Code, incorporates by

reference 40 C.F.R. 260.10. The federal definitional provision describes

activities associated with aggregate kilns. The Solite facility operates

aggregate kilns. Thus, it is an industrial furnace according to the BIF

regulations set forth in 40 C.F.R. 266.

125. The air emissions in the BIF rules which the Department used in

considering the permit application were standards: for the control of organic

emissions (40 C.F.R. 266.104), dioxins and furans (40 C.F.R. 266.014(e)), carbon

monoxide (40 C.F.R. 266.103) and for hydrocarbon furnaces with organic matter in

the raw material (40 CFR 266.103). In addition the BIF regulations associated

with the control of metal emissions (40 C.F.R. 266.106), standards to control

hydrochloride and chlorine gas emissions (40 C.F.R. 266.107), standards to

control particulate matter, (40 C.F.R. 266.105), and specific requirements for

facilities that recycle collected particulate matter (40 C.F.R.

266.103(c)(3)(ii)) were used in the permit review.

126. The permit review standards employed by the Department were

reasonable factors to be considered when addressing this construction project.

This decision does not implicate the future choices that the Department would

make in examining other permit requests associated with the hazardous waste

regulatory program previously described. See Section 403.722, Florida Statutes.

127. The legal standards used in considering the permit request basically

addresses Petitioner's concerns about the project. Whether the legal standards

found in the statutes and rules are adequate from Petitioner's perspectives is

not the proper subject for this proceeding. This proceeding is a formal hearing

pursuant to Section 120.57(1), Florida Statutes. For Petitioner's to pursue a

challenge to the adequacy of the legal provisions that are embodied in the rules

that were used to review the permit request, Petitioner's must have pursued that

challenge through a Chapter 120.56, Florida Statutes proceeding. That

collateral action was not taken.

128. In deciding whether reasonable assurances have been provided by

Solite to allow the permit to be granted, Solite need not be the absolute

guarantor that compliance will be achieved for applicable standards. Solite

need only show that there is a substantial likelihood of compliance. See Booker

Creek Preservation Inc., v. Mobile Chemical Co., 481 So. 2d 10, 13 (Fla. 1st DCA

1986) and Metropolitan Dade County v. Coscan Florida, Inc., 609 So. 2d 644, 648

(Fla. 3d DCA 1992).

129. Solite has provided reasonable assurances that its proposed air

pollution control system will meet the applicable air emission standards. That

proof was provided through expert testimony, data, modeling and test results

from the baghouse associated with kiln 5 which is similar to the proposed

baghouse system for kilns 1 and 1A. Petitioners experts' testimony and other

proof did not successfully refute the Solite showing that reasonable assurances

had been provided.

130. Solite also presented sufficient detail concerning the engineering

features in the pollution control equipment to allow a determination that the

equipment would provide adequate treatment to meet the imposed air emissions

standards.

131. The proposed project is located in an area designated as an

attainment area for all criteria pollutants. See Rule 62-275.400, Florida

Administrative Code. Consequently, the project is not subject to the prevention

of significant deterioration (PSD) or pre-construction review for non attainment

areas envisioned by Chapter 62-212, Florida Administrative Code.

132. The Department has developed what is described as an "Air Toxics

Strategy." This is a tool to assist the Department in evaluating certain

aspects of air pollution permit applications. This policy has not been adopted

as a rule. The Department did not find it necessary to employ the Air Toxics

Strategy in deciding the issues raised by this permit application. That

decision was reasonable and should not be overturned.

133. Rule 62-4.070(5), Florida Administrative Code, provides that the

Department shall take into consideration an applicant's violation of Department

rules when determining whether the applicant has provided reasonable assurances

that the Department standards will be met. Solite's previous violations were

considered by the Department and the responses to the violations does not

preclude a determination that reasonable assurances have been given that

applicable standards will be met in this project.

134. Section 403.7895, Florida Statutes, sets forth requirements for the

permitting and certification of commercial hazardous waste incinerators. In

pertinent part it states:

(1)LEGISLATIVE INTENT - The Legislature finds

that Florida should develop an integrated

hazardous waste management program, with

sufficient capacity to treat the hazardous

waste generated within the state, or adequately

deal with such waste through regional and

national solutions. However, it is not in the

state's best interest to develop excess capacity,

which would be built at great expense and may

have significant impacts on public health and

safety and the environmental quality of the state.

The state is experiencing a significant mercury

contamination problem, which is posing a serious

threat to public health and the environment.

The long-term, cumulative impacts on public health

and the environment have not been sufficiently

evaluated for hazardous waste incinerator sites

in this state. Technological developments and

pollution prevention efforts are reducing the

need for hazardous waste treatment capacity, and

there is reported to be excess national commercial

hazardous waste incinerator capacity, particularly

in the southeastern United States. There may be

sufficient capacity in existing state and national

boilers and industrial furnaces which burn

hazardous waste. Federal hazardous waste policies

and regulations have recently changed, and are

expected to continue to change, in ways which

significantly impact the amounts of waste to be

treated in the future. Therefore, it is the intent

of the Legislature to establish additional permitting

criteria for hazardous waste incinerators, to

establish a need evaluation process for such

incinerators, and to thoroughly study current

and projected capacity needed to adequately

treat hazardous waste generated in the state.

(2) APPLICABILITY -- Notwithstanding the provisions

of ss. 120.60(2), 403.722(10), and 403.78-403.7893,

the requirements of this section shall apply to all

applications for a commercial hazardous waste

incinerator received by the department for which

a permit or certification was not issued prior to

May 12, 1993. For the purposes of this section,

"commercial hazardous waste incinerator" means a

hazardous waste incinerator which accepts waste

generated offsite. . . .

135. This provision establishes permitting criteria for hazardous waste

incinerators based upon need. While a determination concerning the

applicability of this statute should be made in considering subsequent hazardous

waste permit applications by Solite, that determination need not be made when

considering the present construction application for proposed pollution control

equipment to combat air pollution in accordance with Section 403.087(1), Florida

Statutes, and related rules and regulations.

RECOMMENDATION

Based upon a consideration of the facts found and the conclusions of law

reached, it is,

RECOMMENDED:

That a final order be entered which grants the construction permit for the

air pollution source subject to the provisions set forth in the second amended

proposed permit.

DONE and ENTERED this 30th day of August, 1995, at Tallahassee, Florida.

___________________________________

CHARLES C. ADAMS, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of August, 1995.

APPENDIX TO RECOMMENDED ORDER

The following discussion is given concerning the proposed findings of facts

by the parties:

Petitioner's facts

Paragraphs 1 through 6 are subordinate to facts found.

Paragraphs 7 through 12 are not requirements that must be considered in

deciding to grant or deny the permit.

Paragraphs 13 through 16 are contrary to facts found.

Paragraph 17 is not necessary to the resolution of the dispute.

Paragraph 18 is rejected in its suggestion that Solite has not given the

necessary reasonable assurances.

Paragraph 19 is subordinate to facts found.

Paragraph 20 is not necessary to the resolution of the dispute.

Paragraphs 21 and 22 are rejected in the suggestion that the activities at

Solite caused these problems.

Paragraphs 23 through 28 are rejected in the suggestion that the emissions

tests associated with the permit request are inadequate or that Solite has

routinely exceeded air emissions requirements or used unacceptable LBM with

hazardous waste in the past.

Paragraph 29 is rejected in the suggestion that the Department has

inappropriately considered the permit request.

Paragraph 30 is rejected in the suggestion that the Department would allow

unacceptable fuels to be burned in the kilns.

Paragraphs 31 and 32 are subordinate to facts found.

Paragraph 33 is rejected as not establishing a requirement for granting or

denying this permit.

Paragraph 34 is rejected to the extent that it suggests that the Department

has failed to take into account appropriate circumstances when determining to

grant or deny the permit.

Paragraph 35 is rejected in the suggestion that the Solite facility has

caused problems for local gardeners.

Paragraphs 36 and 37 are not necessary to the resolution of the dispute.

Paragraph 38 is rejected in the suggestion that Solite has not complied

with applicable standards for lead.

Paragraphs 39 through 43 are not necessary to the resolution of the

dispute.

Paragraph 44 is not relevant.

Paragraphs 45 through 47 are rejected in the suggestion that the

Department has not adequately considered those circumstances necessary to

determine whether to grant or deny the permit.

Paragraphs 48 through 49 are subordinate to facts found.

Paragraphs 50 and 51 are rejected in the suggestion that these matters

must be considered by the Department in deciding whether to grant or deny the

permit.

Paragraph 52 is subordinate to facts found.

Paragraph 53 is not necessary to the resolution of the dispute.

Paragraphs 54 through 57 are subordinate to facts found.

Paragraph 58 is not relevant.

Paragraph 59 is a conclusion of law.

Paragraph 60 is rejected in the suggestion that inappropriate modeling was

conducted by Solite in support of its application.

Paragraph 61 is a conclusion of law.

Paragraph 62 is not necessary to the resolution of the dispute.

Paragraph 63 is rejected in the suggestion that the air toxics strategy

should have been employed in this case.

Paragraph 64 is subordinate to facts found.

Paragraphs 65 through 67 are not necessary to the resolution of the

dispute.

Paragraph 68 is not relevant.

Paragraphs 69 through 73 are rejected in the suggestion that reasonable

assurances have not been given concerning compliance with applicable standards

for emissions levels.

Paragraph 74 is subordinate to facts found.

The first sentence to Paragraph 75 is contrary to facts found. The second

sentence is not a requirement for resolving the proposed permit request.

Paragraphs 76 through 80 are not relevant.

Paragraph 81 is subordinate to facts found.

Paragraph 82 is contrary to facts found.

Solite's facts:

Paragraphs 1 through 5 are subordinate to facts found.

The first sentence to Paragraph 6 is not necessary to the resolution of

dispute. The second sentence is subordinate to facts found.

Paragraphs 7 through 16 are subordinate to facts found.

Paragraph 17 is not necessary to the resolution of the dispute.

Paragraphs 18 through 42 are subordinate to facts found.

Paragraph 43 is contrary to facts found in its suggestion that LBM with

hazardous waste may be used with the existing wet scrubbers and the lack of

increase in the capacity to burn LBM with hazardous waste if the proposed permit

is granted.

Paragraphs 44 and 45 are subordinate to facts found.

Department's Facts:

Paragraphs 1 through 9 are subordinate to facts found.

Paragraph 10 is rejected in the suggestion that kilns 1 and 1A may use LBM

with hazardous waste when operating with the wet scrubber notwithstanding what

the permits may say.

Paragraphs 11 through 28 are subordinate to facts found.

COPIES FURNISHED:

Thomas K. Maurer, Esquire

Foley & Lardner

Post Office Box 2193

Orlando, FL 32801

Julie Hellmuth

1205 Orange Circle North

Orange Park, FL 32073

Priscilla Norwood Harris

Post Office Box 702

Green Cove Springs, FL 32043

Jefferson M. Braswell, Esquire

Department of Environmental Protection

2600 Blair Stone Road

Tallahassee, FL 32399-2400

Virginia B. Wetherell, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

Kenneth Plante, Esquire

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

JULIE HELLMUTH,

Petitioner,

vs. OGC CASE NO. 94-2284

DOAH CASE NO. 94-4057

CAROLINA SOLITE CORPORATION d/b/a

FLORIDA SOLITE COMPANY, and

STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION,

Respondents.

__________________________________/

PRISCILLA N. HARRIS,

Petitioner,

vs. OGC CASE NO. 94-2305

DOAH CASE NO. 94-4058

CAROLINA SOLITE CORPORATION d/b/a

FLORIDA SOLITE COMPANY, and

STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION,

Respondents.

__________________________________/

ALLISON NORWOOD,

Petitioner,

vs. OGC CASE NO. 94-2306

DOAH CASE NO. 94-4059

CAROLINA SOLITE CORPORATION d/b/a

FLORIDA SOLITE COMPANY, and

STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION,

Respondents.

___________________________________/

STEWART HARRIS,

Petitioner,

vs. OGC CASE NO. 94-2307

DOAH CASE NO. 94-4060

CAROLINA SOLITE CORPORATION d/b/a

FLORIDA SOLITE COMPANY, and

STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION,

Respondents.

___________________________________/

FINAL ORDER

On August30, 1995, a Hearing Officer with the Division of Administrative

Hearings (hereafter "DOAH"), submitted his Recommended Order to the Respondent,

Department of Environmental Protection (hereafter "Department"). Copies of the

Recommended Order were simultaneously served on the Petitioners, Julie Hellmuth

and Priscilla Norwood Harris (hereafter "Petitioners"), and on the Co-

Respondent, Carolina Solite Corporation d/b/a Florida Solite Company (hereafter

"Solite"). A copy of the Recommended Order is attached hereto as Exhibit A.

On September 14, 1995, Petitioner Priscilla Norwood Harris (hereafter

"Petitioner") filed with the Department her Exceptions to the Recommended Order.

The Department filed a Response to Petitioner's Exceptions on September 25,

1995. The matter is now before the Secretary of the Department for final agency

action.

Background

Solite filed an application with the Department for an air source permit to

modify its facility in Russell, Clay County, Florida, by installing a baghouse,

a top load pulse-jet dust collector (or equivalent), and a heat exchanger;

modifying the duct systems for existing kilns Nos. 1, 1A, and 5, thus allowing

any kiln to discharge through the proposed baghouse No. 1 or an existing

baghouse No. 5; connecting kilns Nos. 1 and 1A to an existing pug mill filter

receiver and clinker hopper filter receiver; installing a pneumatic system to

connect proposed baghouse No. 1 to an existing lime and clay fines system; and

installing other associated equipment.

The Department issued a Notice of Intent to Issue the requested permit on

June 10, 1994, and provided Solite with a draft permit. Petitioners timely

filed challenges to the intended agency action. The petitions were consolidated

for purposes of hearing. Subsequently the Department issued two amendments to

the proposed permit. It is the second amended proposed permit which forms the

basis for proposed agency action, and is the subject of this dispute. A formal

administrative hearing was held in these consolidated cases before DOAH Hearing

Officer Charles C. Adams on March 6-9, 1995, in Green Cove Springs, Clay County,

Florida. Proposed recommended orders were timely filed by the parties after the

completion of the formal hearing.

The Hearing Officer rejected all of Petitioner's claims and found that

Solite's application complied with the applicable standards for an air source

permit. The Hearing Officer recommended that the Department enter a Final Order

granting the construction permit subject to the provisions set forth in the

second amended proposed permit.

Rulings on Petitioner's Exceptions

Preface

Petitioner filed several exceptions taking issue with certain findings of

fact and conclusions of law in the Recommended Order. As a preface to the

rulings on the Petitioner's exceptions, it is appropriate to comment on the

standard of review imposed by law on an agency in reviewing recommended orders

submitted by DOAH hearing officers.

Under Section 120.57(1)(b)10, Florida Statutes, a reviewing agency may

reject or modify the conclusions of law and interpretations of administrative

rules contained in the recommended order of an administrative hearing officer.

However, these statutory provisions mandate that an agency may not reject or

modify findings of fact made by a hearing officer, unless a review of the

complete record demonstrates that such findings were not based on competent

substantial evidence or that the proceedings on which the findings were based do

not comply with the essential requirements of law. See Freeze v. Dept. of

Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); Florida Department of

Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987)

The agency reviewing a recommended order may not reweigh the evidence,

resolve conflicts therein or judge the credibility of witnesses, as those are

evidentiary matters within the province of the hearing officer as the trier of

the facts. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277 (Fla. 1st

DCA 1985). Consequently, if the record of the DOAH proceedings discloses any

competent, substantial evidence to support a finding of fact made by the hearing

officer, the reviewing agency is bound by such finding. Bradley, supra, 1123.

Since Petitioner's exceptions were not numbered, I have labeled the sole

exception to a finding of fact as Exception 1; the exceptions to conclusions of

law as Exceptions 2 and 3; and the request that the Department consider

additional information at Exception 4.

Exception 1

Petitioner takes issue with the Hearing Officer's Finding of Fact No. 102,

in which he found that "the proposed permit for a baghouse can be expected to

meet the 99.99 percent destruction and removal efficiency for organic

pollutants." Petitioner argues that baghouses trap only particulate matter, and

do not destroy organic pollutants

Rule 62-103.200(1), F.A.C., requires a person filing exceptions to a

finding of fact to state "with particularity the basis for the exception.

Petitioner's exception includes no references to the record to support her

allegation. Additionally, there is competent substantial evidence in the record

to support the Hearing Officer's finding. (T. 104, 181; Exhibit 1) For this

reason, Exception No. 1 is denied.

Exception 2

Petitioner takes exception to the Hearing Officer's Conclusion of Law No.

131, in which he concluded that because the proposed project "is located in an

area designated as an attainment area for all criteria pollutants ... the

project is not subject to the prevention of significant deterioration (PSD)"

requirements of Chapter 62-212, F.A.C."

The Petitioner is partially correct. The Hearing Officer's conclusion that

PSD requirements do not apply because the facility is located in an attainment

area is incorrect. Rule 62-212.400, F.A.C., provides that PSD requirements

"generally apply to the construction or modification of air pollutant emitting

facilities in those parts of the state in which the state ambient air quality

standards are being met." Petitioner's arguments that the proposed permit would

be considered a modification which could trigger PSD review also reach a correct

result; it is essentially undisputed that the addition of a baghouse and other

improvements constitute a modification to the facility.

Nonetheless, the Hearing Officer's ultimate conclusion that PSD

requirements do not apply in this case is correct. Rule 62-

212.400(2)(d)4.a.(ii), F.A.C., provides that a modification is subject to PSD

review if it would result in a "significant net emissions increase" of any

pollutant regulated by the Clean Air Act. Rule 62-212.400(2)(e)1., F.A.C.,

states that a "net emissions increase" occurs when "the sum of all of the

contemporaneous creditable increases and decreases in the actual emissions of

the facility ... is greater than zero." Rule 62-212.400(2)(e)3., F.A.C., states

that an emission is considered contemporaneous if an increase or decrease in the

actual emissions from a facility "occurs within the period beginning five years

prior to the date on which the owner or operator of the facility submits a

complete application for a permit to modify the facility." Finally, Rule 62-

212.400(2)(e)2., F.A.C., defines a "significant net emissions increase" as one

"equal to or greater than the applicable significant emissions rate listed in

Table 212.400-2."

The Hearing Officer found that kilns 1 and 1A have not been burning

hazardous waste since June 6, 1991 and December 1, 1990, respectively, and that

the emissions from these kilns from burning hazardous waste is currently zero.

However, for purposes of determining the applicability of the PSD requirements,

Department rules provide that the emissions resulting from the modification are

compared not with current emissions, but with any emissions over the past five

years. It is undisputed that kilns 1 and 1A have burned hazardous waste within

the last five years, and the Hearing Officer found that the emissions from these

kilns after the baghouse is installed will be no greater, and in most cases

less, than the emissions from these kilns while they were using the wet

scrubber. There is also no credible evidence that emissions from kilns 1 and 1A

after the baghouse is installed will exceed the standards found in Table

212.400-2. It is for these reasons that the Hearing Officer was correct in

concluding that PSD requirements do not apply in this case, and to that extent

the exception is rejected.

Exception 3

Petitioner takes exception to the Hearing Officer's Conclusions of Law No.

134 and 135, in which he concluded that Section 403.7895, F.S., is not

applicable in this case. As Petitioner correctly points out, the Hearing

Officer gave no specific reasons for this conclusion.

It is undisputed that Solite did not comply with the requirements of

Section 403.7895, F.S. At issue, then, is whether this statute, which requires

a certificate of need for certain hazardous waste incinerators, applies in this

case. It states, in relevant part:

l) APPLICABILITY. - Notwithstanding the

provisions of ss. 120.60(2), 403.722(10), and

403.78-.7893, the requirements of this section

shall apply to all applications for a

commercial hazardous waste incinerator

received by the department for which a permit

or certification was not issued prior to May

12, 1993. For the purpose of this section,

"commercial hazardous waste incinerator" means

a hazardous waste incinerator which accepts

waste generated offsite.

The questions raised in this case are whether the Solite facility is a

commercial hazardous waste incinerator, and whether the statute applies to the

particular permit at hand. If either of these questions are answered in the

negative, this statute does not apply.

Admittedly, Section 403.7895., F.S., is not a model of clarity. The

Department does not issue permits "for" incinerators; rather, it issues a

variety of permits for each facility depending upon its size, location, and

previous status. Petitioner essentially argues that this statute applies to any

application submitted by a facility which was not finally acted on by the

Department prior to May 12, 1993. Presumably this would include not only air

source permits, but also dredge and fill permits, stormwater permits, and

perhaps even local building permits. While there is some grammatical appeal to

Petitioner's interpretation, a closer analysis reveals its logical shortcomings.

The Legislature is presumed not to pass laws which make no sense. Section

403.7895, F.S., creates permitting criteria for facilities, which clearly would

not apply to permits which were already issued by the Department. Petitioner's

interpretation would render the phrase "for which a permit or certification was

not issued prior to May 12, 1993" meaningless and unnecessary. In addition, it

would clearly not serve the intent of the statute, which is to address the

health and environmental effects of hazardous waste incineration, to apply it to

every permit associated with a facility, even those not related to incineration.

Read in context, the only reasonable interpretation of the statute is that

it applies to any application which would constitute a new authorization for a

facility to burn hazardous waste. Read thusly, the intent of the statute is

fulfilled. Before a facility is issued a permit which would allow it to burn

hazardous waste that it was not permitted to accept prior to May 12, 1993, the

state would undertake a detailed review of the health and environmental impacts

of this new incineration capacity, and determine whether this additional

capacity was needed. To require such a review prior to issuing any permit to a

facility, even permits which have no direct relation to incineration capacity or

which would result in decreased pollution, would create an onerous and pointless

burden on existing facilities which the Legislature never intended.

In this case, the permit application is for a modification to an existing

facility which would allow it to upgrade its air pollution control equipment.

Solite already has authorization from the State to burn hazardous waste as a

fuel, although it is not currently doing so in kilns 1 and 1A, and that

authorization is not at issue in this case. Solite's current permits already

address the types and amounts of hazardous waste that may be burned, as well as

the allowable emissions of pollutants, and the permit modification it now seeks

will either reduce or leave unchanged these conditions. In this case, the

application would not constitute a new authorization for the facility to burn

hazardous waste or increase its permitted capacity; the issues to be determined

were simply whether the proposed pollution control equipment could meet

Department rules. Section 403.7895, F.S., does not apply to this particular

application, because it is not an "application for a commercial hazardous waste

incinerator" as contemplated by that statute. It is thus unnecessary to address

the question of whether the Solite facility is, in fact, a "commercial hazardous

waste incinerator." For this reason, this exception is rejected.

Exception 4

Petitioner here does not take exception to any specific finding of fact or

conclusion of law, but instead argues that the permit should not be issued

because of new information that Solite intends to close its existing facility.

Petitioner has submitted additional evidence not adduced at hearing which,

if true, indicates that Solite intends to close the facility and cease

operations in the near future. This raises two fundamental questions: should

the Department review this new evidence and consider it in this Final Order, or

should the Department remand this case to the Hearing Officer for the taking of

additional evidence?

The Department has no authority to make findings of fact based upon new

evidence in this case which would conflict with findings of fact made by the

Hearing Officer, especially when this new evidence may be subject to differing

interpretations or estimations of its validity. Even if it were taken as true

that Solite intends to close the facility, for example, it is not clear from

this additional evidence when this closure would be completed, or whether Solite

intends to complete the installation of the baghouse and other improvements

which are the subject of the air source permit.

The Department does have the authority to remand this case to the Hearing

Officer for the taking of additional evidence if it has reason to believe that

an exceptional change in circumstances has occurred which calls into question

the findings of fact which resulted from the hearing. In this case, however, no

such exceptional circumstances have been shown to have occurred. It is true

that the prior history of operations at the Solite facility were relevant to

many of the Hearing Officers findings. However, nothing in Department rules

requires that a permit applicant must actually use a permit issued to it, and

provisions exist for the transfer of permits if a facility is sold. Rule 62-

4.120, F.A.C., requires the Department to approve the transfer of a permit

unless it determines that the proposed new permittee cannot provide reasonable

assurance that conditions of the permit will be met. If Solite wished to close

the facility or sell the facility after the permit was issued, and assuming that

this closure or transfer of permits were accomplished in accordance with

Department rules, it could do so. It is thus not determinative or relevant

whether Solite has announced that it intends to close the facility before this

particular permit is issued. Even if this case were remanded for additional

findings, and even if the Hearing Officer were to find that Solite did indeed

intend to close the facility and not install the baghouse, it would not form the

basis for a denial of the permit.

CONCLUSION

It is therefore ORDERED:

A. The Recommended Order of the Hearing Officer is adopted and incorporated

by reference herein, except where specifically noted.

B. Permit number AC 10-222486 proposed for issuance by the Department to

Carolina Solite Corporation d/b/a Florida Solite Company is hereby ISSUED,

subject to the conditions set forth in the second amended proposed permit.

Any party to this Order has the right to seek judicial review of the Order

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

Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the

clerk of the Department in the Office of General Counsel, 3900 Commonwealth

Boulevard, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice

of Appeal accompanied by the applicable filing fees with the appropriate

District Court of Appeal. The Notice of Appeal must be filed within 30 days

from the date this Order is filed with the clerk of the Department.

DONE AND ORDERED this 13th day of October, 1995, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

_________________________________

VIRGINIA B. WETHERELL

Secretary

Marjory Stoneman Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

FILING AND ACKNOWLEDGMENT: FILED, on this date, pursuant to Section 120.52,

Florida Statutes, with the designated Department Clerk, receipt of which is

hereby acknowledged.

_________________________

KATHY C. CARTER

Clerk

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order

has been furnished to:

Julie Hellmuth Priscilla N. Harris

1205 Orange Circle N. Post Office Box 702

Orange Park, Florida 32073 Green Cove Springs, Florida 32043

Allison Norwood Stewart Harris

1794 S. Lumpkin Street, 3 Post Office Box 702

Athens, GA 30606 Green Cove Springs, Florida 32043

J. J. Jewett, III John Kopelousos, Esquire

FL SOLITE CO Post Office Box 562

Post Office Box 27211 Orange Park, Florida 32067-0562

Richmond, VA 23261

Thomas K. Maurer, Esquire

Tony Saunders FOLEY & LARDNER

FL SOLTTE CO 111 N. Orange Avenue, Ste 1800

Post Office Pox 297 Orlando, Florida 32801

Green Cove Springs, Florida 32042

and hand delivery to:

Ann Cole, Clerk

and

Charles C. Adams, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

this 16th day of October, 1995.

STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

_________________________________

CHRIS MCGUIRE

Assistant General Counsel

Marjory Stoneman Douglas Building

3900 Commonwealth Blvd., MS 35

Tallahassee, Florida 32399-3000

Telephone: [phone]