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.

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

9STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES REINA, ANGELO REINA , )

NANCY C. REINA, HELEN REINA , )

and STEVE QUICK, )

)

Petitioners , )

)

vs. ) Case No. 97-1110

)

SOUTHEAST OIL DEVELOPMENT CORP. )

and DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, HILLSBOROUGH COUNTY , )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

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

this case in Tampa, Florida, before Richard Hixson,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioners : David M. Carr, Esquire

600 East Madison Street

Tampa, Florida 33602

For Respondent, Southeast Oil Development Corporation:

Richard E. Fee, Esquire

Ganther and Fee, P.A.

101 East Kennedy Boulevard

Barnett Plaza, Suite 1030

Tampa, Florida 33602

For Respondent, Department of Environmental Protection,

Hillsborough County:

Sara M. Fotopulos, Esquire

Vernon R. Wagner, Esquire

Hillsborough County Environme ntal

Protection Commission

1900 9th Avenue

Tampa, Florida 33605

STATEMENT OF THE ISSUE

The issues for determination in this case are 1) whether

Respondent Department of Environmental Protection, Hillsborough

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

Air Operation Permit to Respondent Southeast Oil Development

Corporation, for its fiberglass lay-up and abrasive blasting

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

contained in the Draft Title V Air Operation Permit proposed for

issuance to Southeast Oil are sufficient to ensure compliance

with applicable provisions of Chapter 403, Florida Statutes, and

Chapter 62, Florida Administrative Code.

PRELIMINARY STATEMENT

On September 6, 1995, Respondent, Southeast Oil &

Development Corporation (Southeast) pursuant to Chapter 403,

Florida Statutes, and Section 62-213, Florida Administrative

Code, filed an application with Respondent, Department of

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

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

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

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

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

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

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

a timely request for formal administrative hearing contesting the

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

petition for formal hearing specifically contested the issuance

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

odor restrictions.

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

of Administrative Hearings, and formal hearing was thereafter

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

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

forth in the Prehearing Stipulation, the disputed issues of fact

in this matter are limited to the emission of odors from

Petitioner’s facility.

At hearing, Petitioners presented the testimony of seven

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

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

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

final hearing. Petitioners also presented one exhibit which was

received in evidence.

Respondent Southeast presented the testimony of five

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

and Richard Kirby. Southeast also presented seven exhibits which

were received in evidence. Respondent EPC did not present

additional witnesses or exhibits.

The parties also presented one joint exhibit which was

received in evidence.

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

1997. Petitioners filed a Proposed Recommended Order on July 16,

1997, and Respondents filed a Proposed Recommended Order on

July 15, 1997.

FINDINGS OF FACT

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

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

Thonotosassa, in Hillsborough County, Florida, and reside within

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

facility owned and operated by Respondent SOUTHEAST OIL &

DEVELOPMENT CORPORATION. Petitioners’ residences are located to

the southwest of the fiberglass facility.

2. Respondent, SOUTHEAST OIL & DEVELOPMENT CORPORATION

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

basting facility located at 11801 Elyssa Road, Thonotosassa, in

Hillsborough County, Florida.

3. Respondent, DEPARTMENT OF ENVIRONMENTAL PROTECTION,

HILLSBOROUGH COUNTY (EPC), is the local regulatory agency

authorized to act as the permitting authority for Title V Air

Operations permits. EPC is processing and acting on the

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

Environmental Protection, pursuant to operating agreements

between the state and local agencies.

4. The SOUTHEAST facility operation which is the subject of

these proceedings consists of taking a steel tank shell and

abrasive blasting around the filer ports openings. The tank is

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

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

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

the tank in transit.

5. The SOUTHEAST facility has been in continuous operation,

manufacturing tanks at this location since 1985. During the

manufacturing process, there is no open air venting while

chemicals are mixed. Manufacturing is conducted in an enclosed

and covered facility. Chemical containers are tightly capped

when not in use.

6. The SOUTHEAST facility currently manufactures

approximately 150 tanks on an annual basis. The tanks are

primarily used for gasoline storage.

7. Styrene is the chemical that produces a fiberglass odor

during the tank manufacturing process. Under the terms and

conditions of its current and proposed permits, SOUTHEAST is

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

manufacturing process.

8. Approximately three years ago, SOUTHEAST changed its

formula for the manufacturing process. The current formula

includes a secret ingredient designated “Ingredient A” which

contains significantly less styrene than SOUTHEAST’S prior

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

emission during the manufacturing process.

9. The fiberglass odor emitted during the manufacturing

process is sporadic and dependent on the wind and weather

conditions. Petitioners do not detect the odor on a continual

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

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

various sensitivities of the Petitioners. On at least two

occasions within the last year, some of the Petitioners have

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

responded to the complaints in a timely manner were unable to

detect significant levels of fiberglass odor at Petitioners’

residences. The investigators did not consider the odors

detected as objectionable.

10. The fiberglass odor emitted during the manufacturing

process is not offensive to all of the neighboring businesses and

residences. The owner of the business closest in proximity to

SOUTHEAST has not made a complaint regarding an objectionable

odor emission and does not consider the odor objectionable.

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

manufacturing process presents a health problem to the residents

of the area.

12. The permit proposed by EPC contains conditions

controlling the emission of objectionable odors and places limits

on the amount of styrene which may be utilized by SOUTHEAST

during the manufacturing process.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction of the parties to and over the subject matter of

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

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

as the permitting authority for Title V Air Operations Permits,

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

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

behalf of the Florida Department of Environmental Protection,

pursuant to general and specific operating agreements between the

agencies. The permitting authority has permitting jurisdiction

under the provisions of Chapter 403, Florida Statutes, and

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

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

carries the “ultimate burden of persuasion” of its entitlement

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

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

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

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

issue to provide “reasonable assurances’ that pollution standards

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

Any additional information necessary to provide reasonable

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

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

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

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

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

factual basis for the contention that facts relied upon fall

short of carrying the “reasonable assurances” burden cast upon

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

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

substantial likelihood that the project will be successfully

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

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

not be a guarantee.

18. Once the applicant has preliminarily established

reasonable assurances through credible and credited evidence of

entitlement to the permit, only the establishment of “contrary

evidence of equivalent quality” to that presented by the permit

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

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

19. The DEP may decide any dispute arising between the

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

whether reasonable assurances have been provided and whether the

Title V Permit to SOUTHEAST should issue.

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

or continue the proposed operations at the SOUTHEAST facility.

SOUTHEAST provided the permitting authority with reasonable

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

operation of the SOUTHEAST facility will not adversely impact air

quality, and the SOUTHEAST facility will comply with all

appropriate provisions of Chapter 62, Florida Administrative

Code, including those provisions prohibiting objectionable odors,

which was the only issue raised by Petitioners.

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

62-296.320(2), Florida Administrative Code, which prohibits “the

discharge of air pollutants which cause or contribute to an

objectionable odor.”

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

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

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

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

which unreasonably interferes with the comfortable use and

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

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

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

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

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

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

shield to enforcement or permit revocation proceedings.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Department of Environmental

Protection enter a Final Order granting Southeast Oil’s

Application for Title V Air Operation Permit for the fiberglass

lay-up and abrasive blasting facility, with the conditions

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

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

Tallahassee, Leon County, Florida.

_____________________________________

RICHARD HIXSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of August, 1997.

COPIES FURNISHED:

David M. Carr, Esquire

600 East Madison Street

Tampa, Florida 33602

Richard E. Fee, Esquire

Ganther and Fee, P.A.

101 East Kennedy Boulevard

Barnett Plaza, Suite 1030

Tampa, Florida 33602

Sara M. Fotopulos, Esquire

Vernon R. Wagner, Esquire

Hillsborough County Environmental

Protection Commission

1900 9th Avenue

Tampa, Florida 33605

Perry Odom, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

James Reina, pro se

9947 Fowler Avenue

Thonotosassa, Florida 33592

Angelo M. Reina, pro se

Nancy C. Reina, pro se

9949 Fowler Avenue

Thonotosassa, Florida 33592

Helen Reina, pro se

9951 Fowler Avenue

Thonotosassa, Florida 33592

Steve Quick, pro se

Betty Quick, pro se

9953 Fowler Avenue

Thonotosassa, Florida 33592

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.