97-004596 Chester Nalls And Thelma Nalls vs. Coastal Lumber Company And Department Of Environmental Protection Status: Closed Recommended Order on Wednesday, March 18, 1998.

Summary: Petitioners' allegations of excessive odor and other emissions is not supported by competent substantial evidence and permit should be issued.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHESTER NALLS and THELMA NALLS, )

)

Petitioners, )

)

vs. ) Case No. 97-4596

)

COASTAL LUMBER COMPANY and )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

_________________________________ )

RECOMMENDED ORDER

Pursuant to notice, Administrative Law Judge Don W. Davis,

duly designated by the Division of Administrative Hearings, held

a formal hearing in the above-styled case on February 9 and 10,

1998, in Tallahassee, Florida.

APPEARANCES

For Petitioners:

Chester Nalls, pro se

Thelma Nalls, pro se

Post Office Box 396

Havana, Florida 32333

For Respondent Coastal Lumber Company:

Paul H. Amundsen, Esquire

Julia E. Smith, Esquire

Amundsen and Moore

Post Office Box 1759

Tallahassee, Florida 32302

For Respondent Department of Environmental Protection:

Jeffrey Brown, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUES

Whether Respondent Coastal Lumber Company (Coastal) has

provided reasonable assurances to Respondent Department of

Environmental Protection (DEP) that it can comply with applicable

provisions of Chapter 403, Florida Statutes, and related rules in

the Florida Administrative Code regarding odor and visible

emissions, and whether DEP should issue a Title V Air Operation

Permit to Coastal Lumber.

PRELIMINARY STATEMENT

In June of 1996, Coastal timely filed with DEP an

application for a Title V Air Operation Permit. On or about

August 25, 1997, DEP issued a draft permit and a notice

documenting its intent to issue the permit.

On or about September 16, 1997, after learning of DEP’s

intention, Chester and Thelma Nalls (Petitioners) filed a

petition at DEP challenging the issuance of the permit on the

basis of smoke, noise, and acid and sulfur odors which

Petitioners attributed to Coastal. The petition was forwarded to

the Division of Administrative Hearings for conduct of formal

administrative proceedings.

On December 3, 1997, Coastal's motion to strike the

allegations of noise as irrelevant to the issuance of a Title V

air permit was granted. The matter was set for final hearing on

February 9, 1998.

At the final hearing, Petitioners presented the testimony of

eight witnesses. Coastal presented the testimony of seven

witnesses and introduced 20 exhibits. Coastal also submitted

three depositions into evidence. DEP presented two witnesses and

one exhibit.

The transcript of the final hearing was filed with the

Division of Administrative Hearings on February 27, 1998. The

parties requested and were granted more than 10 days from the

filing of the transcript within which to submit proposed

recommended orders. Those post hearing submissions have been

filed and reviewed in connection with the preparation of this

recommended order.

FINDINGS OF FACT

Parties

1. Petitioners live in Gadsden County, Florida. Their home

is approximately a half a mile from Coastal's plywood plant in

Havana, Florida.

2. DEP is the agency that reviewed Coastal's application

for a Title V Air Operation Permit and issued a draft permit and

a notice of its intent to grant Coastal’s permit request.

3. Coastal is the applicant for the proposed permit. Since

1971, Coastal has operated a wood products facility off of U.S.

Highway 27 North in Havana, Florida. Coastal has operated

various sawmill and hardwood operations during its existence.

However, the sawmill and hardwood activities ceased operation in

1991 due to a shortage of logs in the area. Coastal began

manufacturing plywood in 1980 and continues its plywood

manufacturing activities today.

4. Coastal employs approximately 250 people with shifts

covering 24 hours a day, seven days a week, year round --

including most holidays. The shifts rotate, so the same

employees cover both day shifts and night shifts.

5. The operations of the plant, including compliance with

environmental standards, are the same at night and on weekends as

they are during the daytime shifts.

6. Coastal has operated the plant at normal capacity up to

and during this proceeding with the exception of its peeler

operations, which ceased operating on February 8, 1998, because

of a lack of logs. However, all the other equipment was operated

at its normal rate throughout the hearing.

Manufacturing Plywood

7. Logs arrive at Coastal and are separated by size and

stored in log yards along the southern and southeastern portions

of the mill property which is bordered by 159-A and U.S. 27

North. Logs are later moved to a block conditioning area,

stripped of their bark, and cut into eight-foot lengths. The

eight-foot logs are then soaked in hot water for about eight

hours to soften them. After that, the logs are placed in a lathe

that spins the logs against a sharp knife and peels them into

sheets of veneer. The sheets of veneer are placed on dryers for

six to nine minutes to drive off moisture. Then, the dried

sheets of veneer are layered with glue between layers of veneer

and placed in a press for four to five minutes. The result is a

sheet of plywood. The plywood is stacked according to its

quality and some stacks are sealed by spraying the ends with

canned spray paint.

8. In a separate area, the cores of the logs are treate d

and shaped to be used as landscaping material.

Air Pollution Sources at the Plant

9. Coastal has been operating under seven separate DEP

operating permits. The Title V permit, mandated by the Clean Air

Act Amendments of 1990 and the subject of this proceeding, will

combine those seven operating permits into a single operating

permit.

10. The seven permits cover five boiler systems and seven

dust control systems. Two boilers (numbers 1 and 2) have

restrictions on particulate matter, nitrogen oxides, and visible

emissions. Boiler number 3, with a “wet scrubber,” also has

restrictions on particular matter, on nitrogen oxides, and on

visible emissions. Boilers numbered 4 and 5 have visible

emission limits. Three veneer dryers and two plywood presses are

not permitted, but are proposed to be permitted to Coastal under

the permit which is the subject of this proceeding.

Boilers 3, 4, and 5, are operating and are used to generate steam

for the plant.

11. The boilers are all fueled with wood wa ste such as bark

chips and saw dust generated at the plant. The boilers are

incapable of operating with a different type of fuel such as fuel

oil. Also, it would be inefficient for Coastal to use any other

type of fuel in the boilers because Coastal Lumber has an

abundance of wood waste.

12. The dust control systems include two filters for sander

dust and four cyclones. A cyclone is a device which swirls dust

and air together eventually releasing the air out of the top and

letting the dust settle downward. The cyclones at the Coastal

facility do not have filters inside. Three of the cyclones are

not currently in use because they were used for the sawmill

operations or to load rail cars and, at present, Coastal uses

solely trucks. Coastal has included them in the application in

the event that rail loading again becomes feasible. The fourth

cyclone handles chips and sawdust collected throughout the plant.

13. The veneer dryers and plywood presses emit steam mixed

with small quantities of pine oil naturally present in the wood

and are operating under a construction permit until covered under

the Title V permit.

14. Coastal's Title V permit application does not

contemplate an increase in operations or capacity. Specifically,

Coastal could not change its permitted capacity without adding

new sources to its plant which would require additional permits.

15. Coastal can operate its Havana plant in compliance with

the conditions in its draft Title V Permit.

Issues Raised by Petitioners

16. Petitio ners raised two issues in challenging the

issuance of Coastal's Title V Air Operation Permit: sulfur or

acid odors, and "smoke" or excess visible emissions that they

attribute to the Coastal facility.

17. According to Petitioners and some of their witnesses,

the odors are worse when it is humid or following a rain, at

night, and on weekends. Thick smoke experienced in the past by

Petitioner Chester Nalls as a result of open burning at Coastal’s

facility has ceased. Burning operations at present are only

those instances of permitted burning for reforestation purposes.

18. Two of Petitioners' witnesses, however, Cathy Moore and

Sondra Rowan do not have any complaints about sulfur or acid

odors from the Coastal facility. Moore testified that she

occasionally smells a "treated wood smell" that she associates

with Coastal Lumber. Rowan described what she perceived to be

smoke from the facility, but has never had a problem with smoke

or odor on her property.

19. Donald Daniels, a neighbor of Petitioner s, has

experienced a burning wood smell and a smell that he describes as

“chemical.” Sometimes, the smoke is like a fog and not

distinguishable from condensed steam. Ash has been deposited on

his truck.

20. Nancy Lowe lives near the Coastal facility and claims

that her car is often coated with ash. But she was unable at

hearing to testify concerning the source of the ash. She has

experienced a smell that she cannot identify, which she believes

is created by Coastal since she associates that smell with smoke

that settles like a fog on her neighborhood.

21. Norma Page described what she believed to be smoke, but

her testimony was unclear regarding where she observed the smoke.

Additionally, she was not sure that she could distinguish between

fog and smoke.

22. Linda Pickles lives an equal distance from Coastal’s

facility and the Peavy and Son asphalt plant in Havana. She has

experienced “smokey” smells and sulfur smells, as well as the

deposit of an ash-like substance at her home. She did not

testify concerning the source of the substance.

23. Although several types of odors --mainly wood odors--

are generated by Coastal's plywood manufacturing process, Coastal

does not generate any odors that could be described as acid or

sulfur odors.

24. The log yard where Coastal stores harvested pine logs

has odors of cut pine logs. The block conditioning area where

logs are cut into eight-foot lengths and soaked in hot water has

additional odors of cut wood and wet wood.

25. A small amount of caust ic or base is added to the water

occasionally to keep the pH of the water neutral because wood is

naturally acidic. Caustic generally tends to smell like soap or

bleach; however, no such odors were associated with the caustic

at Coastal Lumber.

26. The area where the logs are peeled into thin veneer

sheets generates pine odors. The dryers used on the sheets of

veneer generate a smell described alternatively as a pine oil or

a cookie-baking scent. Where the gluing occurs there is a faint

odor similar to Elmer's glue.

27. Additionally, an area near the boilers where sawdust

and bark are stored for fuel generates smells, but none that

would be objectionable. The area where the cores of the logs are

treated and sliced into landscaping timbers has a slight,

treated-wood odor. Also, where the plywood is color-coded by

painting the edges, there is a localized paint smell.

29. Neither the boilers nor a re-circulating pond at the

Coastal facility are associated with any odors.

30. From 1989 until the publication of the Notice of Intent

to issue the Title V permit, Coastal did not receive any

complaints about its Plywood Manufacturing facility in Havana,

Florida.

31. None of the processes at the Coastal facility generate

sulfur or acid types of odors. Acid odors are usually associated

with chemicals that contain sulfur. Wood fuel, as is used in the

boilers, does not generally generate sulfur emissions.

32. A facility such as the asphalt plant near Coastal’s

location burns fuel oil and could generate sulfur odors. The

asphalt plant is subject to the same emissions limitations as

Coastal.

33. Frequent open burning of trash, including tires, by

other persons occurs near the Coastal facility and could produce

sulfur smells.

34. None of the odors at the Coastal facility are likely to

mix with odors produced at other facilities in the area to create

objectionable odors. Nor would any of the odors or processes

within the plant combine to create chemical reactions leading to

objectionable odors.

35. Coastal employees who offered testimony regarding odors

have a normal sense of smell. None of the Coastal employees who

have responded to the Petitioners’ complaints have been able to

detect the odor conditions described by Petitioners.

36. No employees have complained of objectionable odors at

the plant. No employees have been made sick by or quit because

of odors at the plant within the last five years. Nor have any

workers' compensation claims been filed because of odors

generated by the plant.

37. Contractors from Air Consulting and Engineering, Inc.,

hired by Coastal to conduct emissions testing at its facility,

and a consultant from Environmental Resources Management Group,

hired to study odors generated by the facility, have never

noticed objectionable odors at the Coastal facility.

38. DEP inspectors have visited Coastal on rainy, humid

days when the odors would be expected to be at the worst and did

not detect objectionable odors. Also, DEP inspectors who

responded to Petitioners' complaints were unable to detect

significant levels of odors at Petitioners' residence.

39. Coastal's operations are not offensive to neighboring

businesses and residences. A restaurant, located closer to

Coastal Lumber than Petitioners' residence, has not made any

complaints regarding odor.

40. No credible evidence established that the odors

complained of by the Petitioners were produced by Coastal Lumber.

To the contrary, the evidence demonstrates that the odors may be

caused by one or more other sources in the vicinity.

41. No evidence was presented to indicate that odors

emitted at the plant pose any danger to human health or welfare.

42. Coastal Lumber's operations do not produce

objectionable odor.

43. The main sources of visible emissions which would be

covered by the Title V permit are the three boilers used to

generate steam for the plant.

44. "Excess emissions" occur when a boiler becomes "upset"

due to a malfunction of equipment or the startup or shutdown of

equipment. Such conditions account for occasional dark puffs

emitted by the boilers, but do not occur for long periods of

time. Under DEP rules and the draft permit conditions, excess

emissions may not exceed two hours in a twenty-four (24) hour

period. Coastal has complied with excess emissions limits in the

past and can comply with the draft permit conditions regarding

excess emissions.

45. The boilers at Coastal Lumber are equipped with oxygen

sensors that regulate the rate of fuel coming into the boiler

before an upset condition occurs, thus, minimizing excess

emissions. Coastal Lumber has excess steam capacity so if a

boiler is not operating properly it will be shut down. A

computer also records the occurrence of upset conditions.

Because the sensors are sent to an outside facility to be

maintained and calibrated, Coastal employees can not change

sensor settings or information recorded by the computers.

46. Under its current operating permits, Coastal is

required to conduct annual testing for visible emissions and has

been found in compliance every year. During that testing, the

plant operates under its normal procedures and at its normal

capacity.

47. Under its current operating permits, Coastal has been

subject to inspections by DEP investigators, including weekend

inspections. Some of the visits are scheduled so that Coastal

knows the inspectors are coming, and others are not scheduled or

announced in advance.

48. Contractors from Air Consulting and Engineering, Inc.,

hired by Coastal to conduct visible emissions test have always

found Coastal in compliance with visible emissions limits placed

on it. Air Consulting and Engineering, Inc.'s reports and test

results have always been accepted by DEP.

49. DEP personnel have inspected the Coastal facility at

least ten (10) times between December of 1996 and the hearing on

February 9, 1998 -- eight of those inspections were made after

January 24, 1998. Those inspections included an unannounced

weekend inspection of the plant.

50. Based on th e Title V Application and Coastal Lumber's

history of compliance with emissions limits, Coastal can comply

with DEP emissions regulations.

51. No employees have been made sick by or quit because of

smoke at the plant. Nor have any workers' compensation claims

been filed because of smoke generated by the plant.

52. Petitioners also complained of black smoke from

Coastal's log loaders. These diesel-fueled motor vehicles are

not subject to the Title V air permit.

53. Coastal has responded promptly to complaints of

Petitioners and has made diligent efforts to locate excess

emissions from its plant, but Petitioners' complaints can not be

substantiated.

54. In the absence of credible evidence that Coastal

exceeds DEP emissions limits or that emissions from Coastal are

harmful to human health or property, it is established that

Coastal can operate in compliance with DEP standards for visible

emissions.

CONCLUSIONS OF LAW

55. The Division of Administrative Hearings has

jurisdiction of the parties and of the subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

56. DEP is the regulatory agency authorized by the State to

act as the permitting authority for Title V Air Operation

Permits, such as the permit at issue in this proceeding, pursuant

to Chapter 403, Florida Statutes, and Chapters 62-4, 62-210, and

62-213, Florida Administrative Code.

57. Coastal, as the applicant for a Title V Air Operation

Permit, carries the ultimate burden of persuasion of its

entitlement to the permit throughout the proceeding until final

agency action is taken. Florida Department of Transportation v.

J.W.C. , 396 So. 2d 778, 787-88 (Fla. 1st DCA 1981). Hence,

Coastal carries the burden of proving that "reasonable

assurances" have been provided that pollution standards can and

will be met.

58. A "reasonable assurance" envisions "a substantial

likelihood" that a facility will comply with pollution limits.

See Metropolitan Dade County v. Coscan Florida, Inc. , 609 So. 2d

644, 648 (Fla. 3d DCA 1992). A reasonable assurance need not be

a guarantee. See Reina v. Southeast Oil Dev. Corp. , 97 ER FALR

173 (Dept. of Envtl. Protection 1997).

59. Once an applicant preliminarily establishes 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,

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

60. A Title V Air Operation Permit is required to conti nue

the operations at the Coastal facility. Coastal has provided

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

the operation of the Coastal Lumber facility will comply with all

appropriate provisions of Chapter 62, Florida Administrative

Code, including both provisions prohibiting objectionable odors

and provisions pertaining to visible emissions — the only issues

raised by Petitioners.

61. The Coastal Lumber 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."

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

defines objectionable odor as "any 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

life or property, or which creates a nuisance."

63. Pursuant to the cond itions in Draft Permit

No. 0390009-002-AV, Section II, Coastal must comply with the FDEP

odor rule and visible emissions standards under

Section 62-296.320(4)(b), Florida Administrative Code, which

limit visible emissions to twenty (20) percent capacity.

64. Based on the evidence presented at the hearing, Coastal

has provided reasonable assurances that the DEP odor rule and DEP

visible emissions standards will be met; therefore, Coastal

Lumber is entitled to a Title V Air Operation Permit.

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 Coastal's

Application for a Title V Air Operation Permit subject to the

conditions set forth in the Draft Permit.

DONE AND ENTERED this 18th day of March, 1998, in

Tallahassee, Leon County, Florida.

___________________________________

DON W. DAVIS

Administrative Law Judge

Division of Administ rative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of March, 1998.

COPIES FURNISHED:

Paul H. Amundsen, Esquire

Julia E. Smith, Esquire

Amundsen and Moore

Post Office Box 1759

Tallahassee, Florida 32302

Jeffrey Brown, Esquire

Department of Environmental

Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Chester Nalls

Thelma Nalls

Post Office Box 396

Havana, Florida 32333

Kathy Carter, Agency Clerk

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

F. Perry Odom, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Virginia B. Wetherell, Secretary

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

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.