94-006934 Desoto Citizens Against Pollution, Inc. vs. Dwight Daughtrey Construction, Inc., And Department Of Environmental Protection Status: Closed Recommended Order on Friday, December 29, 1995.

Summary: Applicant had given necessary reasonable assurances that applicable statute and rules would be complied with.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DESOTO CITIZENS AGAINST POLLUTION )

INC., ALAN R. BEHRENS, BARBARA BUCK, )

SUE ANN EAGLETON, SUSIE HAYDEN , AND )

JOHN AND PAT MARIN, )

)

Petitioners, )

)

vs. ) CASE NO. 94-6934

)

STATE OF FLORIDA DEPARTMENT OF )

ENVIRONMENTAL PROTECTION AND )

DWIGHT DAUGHTREY CONSTRUCTION, INC., )

)

Respondents, )

________________________________________)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Hearing Officer, Division of

Administrative Hearings, held a formal hearing in this matter on September 20,

1995, in Arcadia, Florida.

APPEARANCES

For Petitioners: William Mulloy, Esquire

Sue Ann Eagleton 7025 Manasota Key Road

and Susie Hayden Englewood, Florida 34223

For Petitioners: Alan Behrens

DeSoto Citizens Qualified Representative

Against Pollution, 4070 Southwest Armadillo Trail

Inc., Barbara Buck, Arcadia, Florida 33821

Alan Behrens, and

John and Pat Marin

For Respondent: W. Douglas Beason, Esquire

Department of Department of Environmental Protection

Environmental 3900 Commonwealth Boulevard

Protection Tallahassee, Florida 32399-3000

For Respondent: Diane Daughtrey

Dwight Daughtrey Qualified Representative

Construction, Inc. 6816 South West C.R. 769

Arcadia, Florida 33821

STATEMENT OF THE ISSUE

Has Dwight Daughtrey Construction, Inc. (Daughtrey) provided the Department

of Environmental Protection (Department) with reasonable assurance that the

proposed air curtain incinerator will be constructed in accordance with

applicable provisions of Chapters 62-4, 62-200 and 62-297, Florida

Administrative Code?

PRELIMINARY STATEMENT

On November 2, 1994, the Department gave notice of its intent to issue a

permit to Daughtrey for the construction of an air curtain incinerator in DeSoto

County, Florida. On November 18, 1994, Petitioners filed a Petition for Formal

Hearing with the Department challenging the Department's intent to issue a

permit to Daughtrey for the construction of an air curtain incinerator in DeSoto

County, Florida. By letter dated December 13, 1994, the Department referred the

matter to the Division of Administrative Hearings (Division) for the assignment

of a Hearing Officer and conduct of a hearing.

At the hearing Petitioners presented the testimony of Dwight Daughtrey,

William Hines, Ron Milburn, Joe Kowalski, Robert Avant and Jim McDonald.

Petitioners' exhibits one through seven were received as evidence. At the

conclusion of the hearing, Petitioners requested, and were granted, permission

to take the depositions of Harry and Hilda Johnson and to late file those

depositions as the testimony of Harry and Hilda Johnson in lieu of their live

testimony at the hearing. Respondent Daughtrey presented the testimony of Dwight

Daughtrey and J. Mark Privette. The Department adopted the testimony of Jim

McDonald given in Petitioners' case but did not call any witness or offer any

documentary evidence.

There was no transcript of the proceeding filed with the Division. By

letter dated October 11, 1995, Petitioners advised the undersigned that they

would not pursue taking the depositions of Harry and Hilda Johnson. By Order

dated October 23, 1995, the undersigned scheduled November 13, 1995, as the date

for the parties to file their proposed findings of fact and conclusions of law.

The Petitioners and the Department timely filed their proposed findings of fact

and conclusions of law. Respondent Daughtrey elected not to file any proposed

findings of fact and conclusions of law. A ruling on each proposed finding of

fact submitted by Petitioners and the Department has been made as reflected in

an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the

hearing, the following relevant findings of fact are made:

1. At all times pertinent to this proceeding, the Department was the state

agency responsible for receiving applications for, and issuance of, permits for

the construction of air curtain incinerators in the State of Florida.

2. Respondent Daughtrey, the applicant for a permit for the construction

of an air curtain incinerator, is a corporation authorized to do business in the

State of Florida and is located at 6816 Southwest County Road (C.R.) 769,

Arcadia, DeSoto County, Florida.

3. The property upon which the proposed air curtain incinerator would be

placed is located approximately two miles north of the intersection of C.R. 761

and C.R. 769, southwest of Arcadia, DeSoto County, Florida and is owned by Harry

and Hilda Johnson.

4. On January 24, 1994, Daughtrey submitted a permit application to the

Department's Southwest District Office for a permit to construct an air curtain

incinerator (incinerator) in DeSoto County, Florida. On February 22, 1994,

August 9, 1994, and September 8, 1994, the Department requested additional

information from Daughtrey concerning the application. On July 13, 1994, August

16, 1994, and September 30, 1994, Daughtrey furnished the Department the

requested information. The application was considered complete on September 30,

1994.

5. On November 2, 1994, after Daughtrey had complied with the several

requests for additional information, the Department issued an Intent To Issue

Permit No. AC14-244330 to Daughtrey for the construction of an incinerator in

DeSoto County, Florida.

6. On November 18, 1994, Petitioners filed a Petition For Formal

Administrative Hearing with the Department challenging the Department's Intent

To Issue Permit No. AC14-244330 to Daughtrey for the construction of an

incinerator in DeSoto County, Florida.

7. On July 6, 1995, the Department issued an amended Intent To Issue

Permit No. AC14-244330 to Daughtrey for the construction of an incinerator in

DeSoto County, Florida. The amendment was necessary to change the name of the

manufacturer of the incinerator.

8. The proposed permit would authorize the construction of an incinerator

with a clay strata burning pit having dimensions 10 feet wide x 11 feet deep x

35 feet long. The dimensions of the clay strata burning pit are in accordance

with Rule 62-296.401(6)(d), Florida Administrative Code.

9. Emissions from the incinerator are controlled by a curtain of forced

air at a very high static pressure over and around the burning pit.

10. The permit application proposed the use of an air curtain blower along

with a manifold to provide forced air to the burning pit.

11. The combustion temperature range for the burning pit ranges from

approximately 2,000 to 2,800 degrees Fahrenheit.

12. As requested by Daughtrey, the proposed permit would allow a maximum

charging rate of 4.5 tons per hour on a daily average which, based on the

proposed 8 hours of operation per day, would equal a burning rate of 36 tons per

day and would not exceed the tons per day burning rate authorized under Rule 62-

296.401(6)(i), Florida Administrative Code.

13. As requested by Daughtrey, the proposed permit limits the hours of

operation to 1,088 hours per year.

14. The proposed permit, in accordance with Rule 62-296.401(6)(e), Florida

Administrative Code, would allow the burning of only wood products consisting of

trees, logs, large brush, stumps relatively free of soil, unbagged leaves and

yard trash, tree surgeon debris, and clean dry lumber such as pallets. Daughtrey

proposes the burning of only wood products as set out in the above-referenced

rule and proposed permit.

15. The proposed permit, in accordance with Rule 62-296.401(6)(f), Florida

Administrative Code, expressly prohibits the incineration of materials such as

sawdust, paper, trash, tires, garbage, plastics, liquid wastes, chemically

treated or painted wood, and other similar materials. Daughtrey does not propose

the burning of any of the materials set out in the above-referenced rule or the

proposed permit.

16. The proposed permit allows the use of virgin oil, natural gas or

liquefied petroleum gas to start the fire as provided for in Rule 62-

296.401(6)(g), Florida Administrative Code. Daughtrey proposes the use of diesel

fuel (considered by the Department to be a virgin oil) to start the fire.

17. The proposed permit allows visible emissions during start-up periods

(not to exceed the first thirty minutes of operation) of an opacity up to 35

percent averaged over a six minute period as provided for in Rule 62-

296.401(6)(b), Florida Administrative Code. The proposed incinerator is designed

to meet the requirements of the above-referenced rule and Daughtrey proposes to

meet the emission requirements of the above-referenced rule during start-up

periods.

18. The proposed permit limits visible emissions outside of start-up

periods to no more that five percent opacity, with visible emissions of up to 20

percent opacity allowed up to three minutes in any one hour as provided for in

Rule 62-296.401(6)(a), Florida Administrative Code. The proposed incinerator is

designed to meet the requirements of the above-referenced rule and Daughtrey

proposes to meet the visible emissions requirements outside of start-up periods

as provided in the above-referenced rule.

19. The proposed permit prohibits starting the incinerator before sunr

ise and requires that all charging of the incinerator be completely stopped

before sunset as required by Rule 62-296-401(6)(h), Florida Administrative Code.

Since Daughtrey proposes an eight-hour day operation, Daughtery proposes

charging the incinerator after sunrise and to completely stop charging the

incinerator before sunset.

20. The proposed permit limits the height of the ash in burning pit to

one-third of the depth of the pit or to a point where the ash begins to impede

combustion, whichever occurs first as provided in Rule 62-296.401(6)(m), Florida

Administrative Code. Daughtrey proposes to remove the ash when it reaches one-

third the height of the burning pit or when it reaches a point where the ash

begins to impede combustion in accordance with the above-referenced rule.

Furthermore, Daughtrey proposes, in accordance with Rule 62-296.401(6)(l),

Florida Administrative Code, not to allow the material loaded into the

incinerator to protrude above the air curtain.

21. The proposed permit requires the maintenance of a operating log which

must contain the following information:

- total charges

- total materials charged (tons)

- daily operating hours (start and stop times)

- a calendar year cumulative total for hours of

operation (recorded on monthly basis)

- daily average hourly charging rate

- type of maintenance performed

- comments and operator's signature

The daily operating log shall be maintained at the facility for at least two

years and must be available for inspection by the Department at all times.

Daughtrey proposes maintaining an operating log in accordance with the above-

referenced rule and proposed permit.

22. The proposed permit requires that all reasonable precautions be

undertaken to prevent and control the generation of unconfined emissions of

particulate matter in accordance with Rule 62-296.310(3), Florida Administrative

Code. These precautions include requirements that: (a) ash must be wetted with

water prior to removal; (b) a front-end loader must be utilized to remove ash

from the bottom of the pit; and (c) water be applied as necessary to the plant

grounds. Daughtrey proposes to take all reasonable precautions to prevent and

control the generation of unconfined emissions of particulate matter as set out

above.

23. To ensure that the visible emission limitations are not exceeded and

objectionable odors not generated, the proposed permit requires that the

incinerator's fan shall continue to operate after the last charge of the day

until all combustion (presence of any flame or smoke) has ceased. Daughtrey

proposes to continue the operation of the incinerator's fan in accordance with

the above-referenced rule and proposed permit.

24. The proposed permit, in accordance with Rules 62-297.340(1)(a) and 62-

297.570(2), Florida Administrative Code, requires that the incinerator shall be

tested for visible emissions within 30 days after the date the incinerator is

placed into operation and that the test report shall be submitted within 45 days

of testing to the Department's Southwest District Office in conjunction with an

operating permit application.

25. The proposed permit requires that the testing of visible emissions

must be conducted within 90-100 percent of the maximum allowable charging rate

of 4.5 tons/hour and such testing of emissions must be accomplished when the

incinerator is charged with a mixture of materials as listed in Specific

Condition 8 of the proposed permit.

26. The proposed permit provides that the visible emission test report

shall include the charging rate, a description of the materials burned, starter

fuel used and a copy of the daily operating log for the test day.

27. The application included an emission factor of 13 pounds per ton for

uncontrolled emissions of particulate matter for a total of 58.5 pounds per hour

of particulate matter per hour using the permitted charging rate of 4.5 tons per

hour and 2 pounds per ton for controlled emissions of particulate matter for a

total of 9.0 pounds per hour of particulate matter using the permitted charging

rate of 4.5 tons per hour. The Department estimated the emissions at

approximately 9 pounds per hour of particulate matter. The estimated emissions

of 9.0 pounds per hour of particulate comes within the emissions limits set

forth in Rule 62-296.310(1)(b), Florida Administrative Code.

28. The incinerator is located in excess of 300 feet from any preexisting

occupied building located off site as required by Rule 62-296.401(6)(j), Florida

Administrative Code.

29. The incinerator will not have a control gate or check-in station but,

in accordance with Rule 62-296.401(6)(k), Florida Administrative Code, will not

be operated within 1000 feet of any active portion of a landfill.

30. The proposed permit provides that, in accordance with Rule 62-

296.401(1)(b), Florida Administrative Code, no objectionable odor will be

allowed. Daughtrey's proposed operation of the incinerator is designed to

prevent objectionable odors.

31. Upon being removed from the burning pit, the ash generated by the

project will be placed in a holding area close to the burning pit, covered with

soil. Subsequently, the ash and soil will be mixed and spread over the

Johnsons' property.

32. There is no well on the property. Water to be used in the operation

(wetting ashes and fire prevention) will be supplied using a 3,000 gallon water

tank furnished by Daughtrey.

33. Daughtrey has furnished a Fire Prevention Plan.

34. There was no evidence to show that the project would result in any

type of water pollution.

35. The permit application included the manufacturer's plans and

specifications for the manifold and burner fan.

36. The permit application included design drawings and specifications for

the burning pit as prepared by the Daughtrey's registered professional engineer.

37. There is sufficient evidence to show that Daughtrey has provided the

Department with reasonable assurance that the proposed project will comply with

the appropriate provisions of Chapters 62-4 and 62-200 through 62-297, Florida

Administrative Code.

CONCLUSIONS OF LAW

38. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, these proceedings pursuant to Section

120.57(1), Florida Statutes.

39. Rule 62-4.070(1) and (2), Florida Administrative Code, provides in

pertinent part:

(1) A permit shall be issued to the applicant

upon such conditions as the Department may

direct, only if the applicant affirmatively

provides the Department with reasonable

assurance based on plans, test results,

installation of pollution control equipment,

or other information, that the construction,

expansion, modification, operation, or

activity of the installation will not dis-

charge, emit, or cause pollution in contraven-

tion of Department standards or rules.

* * *

(3) The Department may issue any permit with

specific conditions necessary to provide

reasonable assurance that the Department rules

can be met. (Emphasis Supplied)

40. The Department issued its Intent To Issue Permit No. AC14-344330 based

on its belief that reasonable assurances had been provided by Daughtrey to

indicate that the proposed project would comply with the appropriate provisions

of Chapters 62-4 and 62-200 through 62-297, Florida Administrative Code. As a

measure of assurance that Daughtrey would comply with the applicable provisions

of Chapter 62-4, and Chapters 62-200 through 62-297, Florida Administrative

Code, the Department, under the authority of Rule 62-4.070(3), Florida

Administrative Code, placed 27 specific conditions on the proposed permit which

included, among others, the requirements of Rule 62-296.401(1) and (6), Florida

Administrative Code, dealing specifically with incinerators. Additionally,

Specific Condition No. 1 makes the 15 General Conditions set out in Rule 62-

4.160, Florida Administrative Code, a part of the permit.

41. As the applicant for the permit, Daughtrey has the burden to establish

facts to demonstrate its entitlement to the permit by a preponderance of the

evidence. Florida Department of Transportation v. J. W. C. Company, Inc., 396

So.2d 778, 787 (1st DCA Fla. 1989). Daughtrey having made a preliminary showing

of entitlement to the permit, the burden was upon Petitioners to go forward with

the evidence to show that the facts relied upon by Daughtrey fall short of

carrying the "reasonable assurances" burden cast upon Daughtrey. J. W. C.

Company, at 789. The Petitioners have failed to carry their burden in this

regard. Petitioners' concerns, such as compliance with local zoning procedures

(requirement by county that area be zoned for landfill), are directed at matters

which are not properly at issue in this proceeding.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

recommended that the Department of Environmental Protection enter a final order

granting Daughtrey's application and issue Permit No. AC14-244330, subject to

all conditions, including but not limited to the specific conditions, set forth

in the Intent To Issue, for the construction of an air curtain incinerator to be

located approximately two miles north of the intersection of C.R. 761 and C.R.

769, southwest of Arcadia, DeSoto County, Florida

RECOMMENDED this day 29th of December, 1995, at Tallahassee, Florida.

___________________________________

WILLIAM R. CAVE, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of December, 1995.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 94-6934

The following constitutes my specific rulings, pursuant to Section

120.59(2), Florida Statutes, on all of the proposed findings of fact submitted

by the Department and Petitioners in this case.

Proposed Findings of Fact of Petitioners Sue Ann Eagleton's and Susie Hayden.

1. Proposed findings of fact 1, 2, 6, 10, 28-32, 34-37, and 42-48 are

neither relevant nor material to this proceeding.

2. Proposed findings of fact 3-5, 7-9, 11-18, 49 and 50 are not supported

by evidence in the record.

3. Proposed findings of fact 19-27 are adopted in substance as modified in

Finding of Fact 14, otherwise these proposed findings are not supported by

evidence in the record.

4. Proposed findings of fact 33 and 38-41 are adopted in substance as

modified in Findings of Fact 8, and 31, respectively.

Proposed Findings of Fact of Petitioners DeSoto Citizens Against Pollution,

Inc., Barbara Buck, Alan Behrens, John Marin and Pat Marin.

1. Proposed findings of fact 1, is adopted in substance as modified in

Finding of Fact 31.

2. Proposed findings of fact 2-4, 8-10, 12-13, 15-20 and 22-28 are neither

relevant nor material to this proceeding.

3. Proposed findings of fact 5-7, and 11 are not supported by evidence in

the record and additionally, are neither relevant nor material to this

proceeding.

4. Proposed findings of fact 14 and 21 are not supported by evidence in

the record.

Proposed Findings of Fact of Respondent Department.

1. Proposed findings of fact 1 through 35 are adopted in substance as

modified in Findings of Fact 1 through 37 of the Recommended Order.

Respondent Daughtrey elected not to file any Proposed Findings of Fact.

COPIES FURNISHED:

Virginia B. Wetherell, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Blvd.

Tallahassee, Florida 32399-3000

Kenneth Plante, Esquire

Department of Environmental Protection

Douglas Building

3900 Commonwealth Blvd.

Tallahassee, Florida 32399-3000

W. Douglas Beason, Esquire

Department of Environmental Protection

3900 Commonwealth Blvd.

Sarasota, Florida 32399-3000

Diane Daughtrey

Qualified Representative

c/o Dwight Daughtrey Construction, Inc.

6816 SW C.R. 769

Arcadia, Florida 33821

William Mulloy, Esquire

7025 Manasota Key Road

Englewood, Florida 34223

Alan Behrens

Qualified Representative

4070 Armadillo Trail

Arcadia, Florida 33821

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.