97-001110 James Reina, Angelo M. Reina, Nancy C. Reina, Helen Reina, And Steve Quick vs. Southeast Oil And Development Corporation And Department Of Environmental Protection, Hillsborough County
 Status: Closed
Recommended Order on Thursday, August 7, 1997.


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Summary: Emission of fiberglass odors did not warrant denial of air operation permit.

19STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8JAMES REINA, ANGELO REINA , )

13NANCY C. REINA, HELEN REINA , )

19and STEVE QUICK, )

23)

24Petitioners , )

26)

27vs. ) Case No. 97-1110

32)

33SOUTHEAST OIL DEVELOPMENT CORP. )

38and DEPARTMENT OF ENVIRONMENTAL )

43PROTECTION, HILLSBOROUGH COUNTY , )

47)

48Respondent. )

50___________________________________)

51RECOMMENDED ORDER

53On May 20, 1997, a formal administrative hearing was held in

64this case in Tampa, Florida, before Richard Hixson,

72Administrative Law Judge, Division of Administrative Hearings.

79APPEARANCES

80For Petitioners : David M. Carr, Esquire

87600 East Madison Street

91Tampa, Florida 33602

94For Respondent, Southeast Oil Development Corporation:

100Richard E. Fee, Esquire

104Ganther and Fee, P.A.

108101 East Kennedy Boulevard

112Barnett Plaza, Suite 1030

116Tampa, Florida 33602

119For Respondent, Department of Environmental Protection,

125Hillsborough County:

127Sara M. Fotopulos, Esquire

131Vernon R. Wagner, Esquire

135Hillsborough County Environme ntal

139Protection Commission

1411900 9th Avenue

144Tampa, Florida 33605

147STATEMENT OF THE ISSUE

151The issues for determination in this case are 1) whether

161Respondent Department of Environmental Protection, Hillsborough

167County, as the permitting authority, should issue a final Title V

178Air Operation Permit to Respondent Southeast Oil Development

186Corporation, for its fiberglass lay-up and abrasive blasting

194facility in Thonotosassa, Florida; and 2) whether the conditions

203contained in the Draft Title V Air Operation Permit proposed for

214issuance to Southeast Oil are sufficient to ensure compliance

223with applicable provisions of Chapter 403, Florida Statutes, and

232Chapter 62, Florida Administrative Code.

237PRELIMINARY STATEMENT

239On September 6, 1995, Respondent, Southeast Oil &

247Development Corporation (Southeast) pursuant to Chapter 403,

254Florida Statutes, and Section 62-213, Florida Administrative

261Code, filed an application with Respondent, Department of

269Environmental Protection, Hillsborough County (EPC), for an Air

277Operation Permit for Southeast’s operation of a fiberglass lay-up

286and blasting facility under Title V of the Clean Air Act.

297On December 12, 1996, EPC provided Notice of Intent to Issue

308Title V Air Operation Permit for the facility, along with a draft

320permit and conditions. Petitioners James Reina, Angelo M. Reina,

329Nancy C. Reina, Helen Reina, Steve Quick, and Betty Quick, filed

340a timely request for formal administrative hearing contesting the

349proposed issuance of the Title V Air Operation Pe rmit. The

360petition for formal hearing specifically contested the issuance

368of the permit based on failure of the facility to meet applicable

380odor restrictions.

382On March 10, 1997, the matter was referred to the Division

393of Administrative Hearings, and formal hearing was thereafter

401scheduled for May 20, 1997. Pursuant to the Prehearing Order, on

412May 14, 1997, the parties filed a Prehearing Stipulation. As set

423forth in the Prehearing Stipulation, the disputed issues of fact

433in this matter are limited to the emission of odors from

444Petitioner’s facility.

446At hearing, Petitioners presented the testimony of seven

454witnesses: Jack O’Neil; Martha Terrell; James Reina; Steven

462Quick; Nancy Reina; Angelo Reina ; and Helen Reina. Petitioner,

471Betty Quick, withdrew from this matter and did not appear at

482final hearing. Petitioners also presented one exhibit which was

491received in evidence.

494Respondent Southeast presented the testimony of five

501witnesses: David Palazzo; David Dye; Patrick Shell; Rick Delgado ;

510and Richard Kirby. Southeast also presented seven exhibits which

519were received in evidence. Respondent EPC did not present

528additional witnesses or exhibits.

532The parties also presented one joint exhibit which was

541received in evidence.

544A transcript of the final hearing was filed on June 30,

5551997. Petitioners filed a Proposed Recommended Order on July 16,

5651997, and Respondents filed a Proposed Recommended Order on

574July 15, 1997.

577FINDINGS OF FACT

5801. Petitioners, JAMES REINA, ANGELO M. REINA, NANCY C.

589REINA, HELEN REINA, and STEVE QUICK, are residents of

598Thonotosassa, in Hillsborough County, Florida, and reside within

606one-third mile of a fiberglass lay-up and abrasive blasting

615facility owned and operated by Respondent SOUTHEAST OIL &

624DEVELOPMENT CORPORATION. Petitioners’ residences are located to

631the southwest of the fiberglass facility.

6372. Respondent, SOUTHEAST OIL & DEVELOPMENT CORPORATION

644(SOUTHEAST), owns and operates a fiberglass lay-up and abrasive

653basting facility located at 11801 Elyssa Road, Thonotosassa, in

662Hillsborough County, Florida.

6653. Respondent, DEPARTMENT OF ENVIRONMENTAL PROTECTION,

671HILLSBOROUGH COUNTY (EPC), is the local regulatory agency

679authorized to act as the permitting authority for Title V Air

690Operations permits. EPC is processing and acting on the

699subject’s air permit on behalf of the Florida Department of

709Environmental Protection, pursuant to operating agreements

715between the state and local agencies.

7214. The SOUTHEAST facility operation which is the subject of

731these proceedings consists of taking a steel tank shell and

741abrasive blasting around the filer ports openings. The tank is

751then covered with a layer of mesh, mylar, and styrene based

762fiberglass resin. The tank is rotated to aid in an even

773application. Prior to shipment, wood crates are cut to protect

783the tank in transit.

7875. The SOUTHEAST facility has been in continuous operation,

796manufacturing tanks at this location since 1985. During the

805manufacturing process, there is no open air venting while

814chemicals are mixed. Manufacturing is conducted in an enclosed

823and covered facility. Chemical containers are tightly capped

831when not in use.

8356. The SOUTHEAST facility currently manufactures

841approximately 150 tanks on an annual basis. The tanks are

851primarily used for gasoline storage.

8567. Styrene is the chemical that produces a fiberglass odor

866during the tank manufacturing process. Under the terms and

875conditions of its current and proposed permits, SOUTHEAST is

884limited in the amount of styrene allowed to be used in the

896manufacturing process.

8988. Approximately three years ago, SOUTHEAST changed its

906formula for the manufacturing process. The current formula

914includes a secret ingredient designated “Ingredient A” which

922contains significantly less styrene than SOUTHEAST’S prior

929formula. The use of “Ingredient A” has resulted in less styrene

940emission during the manufacturing process.

9459. The fiberglass odor emitted during the manufacturing

953process is sporadic and dependent on the wind and weather

963conditions. Petitioners do not detect the odor on a continual

973basis, and for several months at a time, there is no noticeable

985odor. The objectionable nature of the odor is dependent on the

996various sensitivities of the Petitioners. On at least two

1005occasions within the last year, some of the Petitioners have

1015complained to EPC of the odor; however, EPC’s investigators who

1025responded to the complaints in a timely manner were unable to

1036detect significant levels of fiberglass odor at Petitioners’

1044residences. The investigators did not consider the odors

1052detected as objectionable.

105510. The fiberglass odor emitted during the manufacturing

1063process is not offensive to all of the neighboring businesses and

1074residences. The owner of the business closest in proximity to

1084SOUTHEAST has not made a complaint regarding an objectionable

1093odor emission and does not consider the odor objectionable.

110211. There is no evidence that the odor emitted during the

1113manufacturing process presents a health problem to the residents

1122of the area.

112512. The permit proposed by EPC contains conditions

1133controlling the emission of objectionable odors and places limits

1142on the amount of styrene which may be utilized by SOUTHEAST

1153during the manufacturing process.

1157CONCLUSIONS OF LAW

116013. The Division of Administrative Hearings has

1167jurisdiction of the parties to and over the subject matter of

1178this proceeding. Section 120.57(1), Florida Statutes.

118414. The EPC is a local regulatory agency authorized to act

1195as the permitting authority for Title V Air Operations Permits,

1205such as that permit which is the subject of these proceedings.

1216The EPC is processing and is acting on the subject air permit on

1229behalf of the Florida Department of Environmental Protection,

1237pursuant to general and specific operating agreements between the

1246agencies. The permitting authority has permitting jurisdiction

1253under the provisions of Chapter 403, Florida Statutes, and

1262Chapters 62-4, 62-210, and 62-213, Florida Administrative Code.

127015. As the applicant for a Title V Permit, SOUTHEAST

1280carries the “ultimate burden of persuasion” of its entitlement

1289through all proceedings, of whatever nature, until such time as

1299final agency action has been taken. Florida Dept. of Transp. vs.

1310J.W.C. Co. , 396 So. 2d 778, 787 (Fla. 1st DCA 1981). Thus, the

1323burden of proof is on the party asserting the affirmative of the

1335issue to provide “reasonable assurances’ that pollution standards

1343will not be violated” before an administrative tribunal. Id .

1353Any additional information necessary to provide reasonable

1360assurances may be provided at the hearing. Hamilton County Bd.

1370Of County Commissioners vs. Florida Dept. of Environ. Protection ,

1379587 So. 2d 1378 (Fla. 1st DCA 1991).

138716. It is the burden of those who oppose the application,

1398however, to “identify the areas of controversy and allege a

1408factual basis for the contention that facts relied upon fall

1418short of carrying the “reasonable assurances” burden cast upon

1427the applicant.” J. W. C. , 396 So. 2d 789.

143617. A “reasonable assurance” is one which envisions “a

1445substantial likelihood that the project will be successfully

1453implemented.” Metropolitan Dade County vs. Coscan Florida, Inc. ,

1461609 So. 2d 644 (Fla. 3rd DCA 1992). A reasonable assurance need

1473not be a guarantee.

147718. Once the applicant has preliminarily established

1484reasonable assurances through credible and credited evidence of

1492entitlement to the permit, only the establishment of “contrary

1501evidence of equivalent quality” to that presented by the permit

1511applicant, offered by the opponent of the permit, will support

1521denial of the permit. J. W. C. , 396 So. 2d 789.

153219. The DEP may decide any dispute arising between the

1542parties on the basis of the facts found and record made regarding

1554whether reasonable assurances have been provided and whether the

1563Title V Permit to SOUTHEAST should issue.

157020. A Title V Air Operation Permit is required to commence

1581or continue the proposed operations at the SOUTHEAST facility.

1590SOUTHEAST provided the permitting authority with reasonable

1597assurances that, under the terms of the Draft Permit, the

1607operation of the SOUTHEAST facility will not adversely impact air

1617quality, and the SOUTHEAST facility will comply with all

1626appropriate provisions of Chapter 62, Florida Administrative

1633Code, including those provisions prohibiting objectionable odors,

1640which was the only issue raised by Petitioners.

164821. The facility is subject to and must comply with Section

165962-296.320(2), Florida Administrative Code, which prohibits “the

1666discharge of air pollutants which cause or contribute to an

1676objectionable odor.”

167822. Section 62-210(200), Florida Administrative Code,

1684defines objectionable odor as “[a ] ny odor present in the outdoor

1696atmosphere which, by itself or in combination with other odors,

1706is or may be harmful or injurious to human health or welfare,

1718which unreasonably interferes with the comfortable use and

1726enjoyment of the life or property, or which creates a nuisance.”

173723. Pursuant to the Draft Permit No. 0571005-004-AV,

1745Section II, facility-wide condition 3, the “ permittee shall not

1755cause, suffer, allow, or permit the discharge of air pollutants

1765which cause or contribute to an objectionable odor.” Thus, if

1775odor problems occur after the issuance of the permit, there is no

1787shield to enforcement or permit revocation proceedings.

1794RECOMMENDATION

1795Based on the foregoing Findings of Fact and Conclusions of

1805Law, it is

1808RECOMMENDED that the Florida Department of Environmental

1815Protection enter a Final Order granting Southeast Oil’s

1823Application for Title V Air Operation Permit for the fiberglass

1833lay-up and abrasive blasting facility, with the conditions

1841included in the December 13, 1996, Draft Permit with conditions.

1851DONE AND ENTERED this 6th day of August, 1997, in

1861Tallahassee, Leon County, Florida.

1865_____________________________________

1866RICHARD HIXSON

1868Administrative Law Judge

1871Division of Administrative Hearings

1875The DeSoto Building

18781230 Apalachee Parkway

1881Tallahassee, Florida 32399-3060

1884(904) 488- 9675 SUNCOM 278-9675

1889Fax Filing (904) 921-6847

1893Filed with the Clerk of the

1899Division of Administrative Hearings

1903this 6th day of August, 1997.

1909COPIES FURNISHED:

1911David M. Carr, Esquire

1915600 East Madison Street

1919Tampa, Florida 33602

1922Richard E. Fee, Esquire

1926Ganther and Fee, P.A.

1930101 East Kennedy Boulevard

1934Barnett Plaza, Suite 1030

1938Tampa, Florida 33602

1941Sara M. Fotopulos, Esquire

1945Vernon R. Wagner, Esquire

1949Hillsborough County Environmental

1952Protection Commission

19541900 9th Avenue

1957Tampa, Florida 33605

1960Perry Odom, General Counsel

1964Department of Environmental Protection

19683900 Commonwealth Boulevard

1971Tallahassee, Florida 32399

1974James Reina, pro se

19789947 Fowler Avenue

1981Thonotosassa, Florida 33592

1984Angelo M. Reina, pro se

1989Nancy C. Reina, pro se

19949949 Fowler Avenue

1997Thonotosassa, Florida 33592

2000Helen Reina, pro se

20049951 Fowler Avenue

2007Thonotosassa, Florida 33592

2010Steve Quick, pro se

2014Betty Quick, pro se

20189953 Fowler Avenue

2021Thonotosassa, Florida 33592

2024NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2030All parties have the right to submit written exceptions within 15

2041days from the date of this Recommended Order. Any exceptions to

2052this Recommended Order should be filed with the agency that will

2063issue the Final Order in this case.

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PDF
Date
Proceedings
Date: 09/23/1997
Proceedings: Final Order filed.
PDF:
Date: 09/22/1997
Proceedings: Agency Final Order
PDF:
Date: 09/22/1997
Proceedings: Recommended Order
PDF:
Date: 08/07/1997
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 05/20/97.
Date: 07/16/1997
Proceedings: Petitioners` Proposed Recommended Order filed.
Date: 07/15/1997
Proceedings: Southeast Oil & Development Corp.`s Proposed Recommended Order; Environmental Protection Commission`s Proposed Recommended Order filed.
Date: 06/30/1997
Proceedings: Transcript filed.
Date: 05/20/1997
Proceedings: CASE STATUS: Hearing Held.
Date: 03/31/1997
Proceedings: Prehearing Order sent out.
Date: 03/31/1997
Proceedings: Notice of Hearing sent out. (hearing set for May 20, 1997; 9:00am; Tampa)
Date: 03/27/1997
Proceedings: Southeast Oil & Development Corp.`s Response to Initial Order filed.
Date: 03/25/1997
Proceedings: (EPC) Response to Initial Order (filed via facsimile).
Date: 03/14/1997
Proceedings: Initial Order issued.
Date: 03/10/1997
Proceedings: Agency Referral Letter; Request for Mediation, letter form; Intent to Issue Title V Air Operation Permit; Public Notice of Intent to Issue Title V Air Operation Permit filed.

Case Information

Judge:
RICHARD A. HIXSON
Date Filed:
03/10/1997
Date Assignment:
03/14/1997
Last Docket Entry:
09/23/1997
Location:
Thonotosassa, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
 

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