02-003831 Harry Morris And Beulah Morris vs. S.M.G., Inc. And Department Of Environmental Protection
 Status: Closed
Recommended Order on Monday, April 21, 2003.


View Dockets  
Summary: SMG, as the operator of an air curtain incinerator, provided reasonable assurance that it can comply with operating permit conditions.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8LOUIS A. GERACE, et al., )

14) Case Nos. 02 - 3639 -- 02 - 3640

24Petitioners, ) 02 - 3817 -- 02 - 3819

33) 02 - 3823 -- 02 - 3827

41vs. ) 02 - 3829 -- 02 - 3836

50) 02 - 3838 -- 02 - 3839

58S.M.G., INC. and DEPARTMENT OF ) 02 - 3860 -- 02 - 3863

71ENVIRONMENTAL PROTECTION, ) 02 - 3865 -- 02 - 3875

81) 02 - 3877 -- 02 - 3880

89Respondents. )

91)

92RECOMMENDED ORDER

94Notice was given, and on February 27 - 28, 2003, a final

106hearing was held in this case. Pursuant to the aut hority set

118forth in Sections 120.569 and 120.57(1), Florida Statutes, the

127hearing was conducted by Charles A. Stampelos, Administrative

135Law Judge, in Crystal River, Florida.

141APPEARANCES

142For Petitioners: Morris Harvey, Qualified Representative

1488055 No rth Dacca Terrace

153Dunnellon, Florida 34433

156For Respondent S.M.G., Inc.:

160Susan L. Stephens, Esquire

164Holland & Knight, LLP

168315 South Calhoun Street, Suite 600

174Tallahassee, Florida 32301

177Denise VanNess, Esquire

180VanNess & VanNess, P.A.

18412 05 North Meeting Tree Boulevard

190Crystal River, Florida 34429

194For Respondent Department of Environmental Protection:

200W. Douglas Beason, Esquire

2043900 Commonwealth Boulevard

207The Douglas Building, Mail Station 35

213Tallahassee, Florida 32399 - 3000

218STATEMENT OF THE ISSUE

222The issue presented is whether Respondent, S.M.G., Inc.

230(SMG), has provided reasonable assurance that its existing air

239curtain incinerator will be operated in accordance with

247applicable statutory and rule provisions.

252PRELIMINARY S TATEMENT

255On May 23, 2001, SMG submitted an application for an air

266construction permit for the construction of an air curtain

275incinerator in Citrus County, Florida. On July 9, 2001, the

285Department of Environmental Protection (Department) gave notice

292of it s intent to issue a permit (Permit No. 0170360 - 001 - AC) to

308SMG for the construction of an air curtain incinerator. Notice

318of the proposed agency action was published in the Citrus Times

329on July 19, 2001, and no petitions challenging the issuance of

340the con struction permit were filed within 14 days of publication

351of the notice. The air construction permit became final on or

362about August 6, 2001.

366On June 19, 2002, the Department gave notice of its intent

377to issue a permit to SMG for the operation of the ai r curtain

391incinerator in Citrus County, Florida, Permit No. 0170360 - 002 -

402AO.

403On August 15, 2002, the Department issued a notice of

413permit amendment to SMG to the previously issued air operating

423permit in order to incorporate certain solid waste management

432provisions into the air operating permit. This amended permit

441is identified as Permit No. 0170360 - 002 - AO; FDEP Project No.:

454003.

455In August 2002, the Petitioners filed separate, but

463virtually identical petitions with the Department, challenging

470both the air construction and air operating permits.

478In September 2002, the Petitioners filed a second set of

488individual petitions challenging the amendment to the air

496operating permit.

498While all of the petitions were pending before the

507Department, SMG filed m otions to dismiss both the original

517petitions and the second round of petitions. In September 2002,

527the Department referred all of the petitions to the Division of

538Administrative Hearings (Division) for the assignment of an

546administrative law judge to con duct a hearing.

554After the petitions were referred to the Division, on

563October 11, 2002, an Order was issued allowing each petitioner

573to file a response to the motions to dismiss or allowing

584Petitioners to elect to file joint responses with other

593Petition ers.

595Thereafter, the Petitioners filed one response to the

603motions to dismiss. All of the Petitioners agreed to rely on

614the response filed on their behalf by Morris Harvey, a

624Petitioner in DOAH Case Nos. 02 - 3869 and 02 - 3835. (Ultimately,

637Mr. Harvey app eared as a qualified representative on behalf of

648all of the Petitioners.)

652On October 29, 2002, an Order was issued granting the

662motions to dismiss. Petitioners were allowed to file amended

671petitions.

672On November 14, 2002, Petitioners filed one Amended

680Pet ition, which superceded all previous petitions filed in the

690above - styled proceeding.

694On December 9, 2002, SMG filed a Motion for Order

704Relinquishing Jurisdiction requesting a final order dismissing

711the Amended Petition. SMG contended that there were no di sputes

722of material fact regarding whether Petitioners timely filed

730their challenges to the air construction permit issued by the

740Department.

741On December 18, 2002, an Order was issued relinquishing

750jurisdiction to the Department for further proceedings re garding

759only that portion of the Amended Petition challenging the

768issuance of the construction permit. It was specifically

776determined that there were no apparent disputes of material fact

786regarding whether the original petitions, challenging the

793issuance of the construction permit, were timely filed. Given

802the undisputed facts of record, it was determined that the

812initial petitions, challenging the issuance of the construction

820permit, were untimely filed, hence, the Order relinquishing

828jurisdiction to the Department.

832On December 19, 2002, SMG filed a motion to dismiss all

843remaining challenges pending before the Division.

849On January 2, 2003, an Order was entered granting the

859motion to dismiss as to Petitioners' challenges to the amendment

869to the operati ng permit because the Amended Petition did not

880allege any substantial interest that would be effected by the

890permit amendment. However, the Order denied the motion to

899dismiss as to the challenges to the operating permit. The Order

910provided that a recomme nded order of dismissal of the challenge

921to the permit amendment would be made in the recommended order

932following the final hearing. In accordance with the prior

941orders issued, the only issues to be decided at the final

952hearing are the challenges to the a ir operating permit and it is

965recommended that Petitioners' challenge to the amended permit be

974dismissed.

975On February 10, 2003, SMG filed a motion requesting

984relinquishment of jurisdiction to the Department. SMG contended

992that all remaining challenges t o the operating permit should be

1003dismissed. The Department and the Petitioners opposed the

1011motion. The motion was denied.

1016The final hearing on the air operation permit was held on

1027February 27 - 28, 2003, in Crystal River, Florida, having been

1038continued fro m the previously scheduled hearing dates of

1047January 16 - 17, 2003.

1052Prior to the commencement of the evidentiary portion of the

1062final hearing, approximately 13 of the Petitioners who attended

1071the hearing, advised, under oath, that they authorized Mr.

1080Harvey (and Leonard Kaplan) to appear as their qualified

1089representative in this proceeding. Mr. Harvey represented that

1097he was representing all of the Petitioners and the

1106representation was accepted and Mr. Harvey was authorized to

1115appear as a qualified represe ntative to appear on behalf of all

1127Petitioners.

1128At the final hearing, SMG presented the testimony of Sean

1138Gerrits, the President of SMG, and Byron E. Nelson, an

1148environmental engineer and President of Southern Environmental

1155Services, Inc. SMG Exhibits 1 t hrough 11, and 13 through 16,

1167and SMG's demonstrative Exhibits 2 through 7 were admitted into

1177evidence. SMG also adopted the testimony of James L. McDonald.

1187The Department presented the testimony of James L.

1195McDonald, an air permitting engineer with the S outhwest District

1205Office of the Department. The Department Exhibits 1 and 2 were

1216admitted in evidence. The Department also adopted the testimony

1225of Mr. Gerrits.

1228Petitioners presented the testimony of Annette Pierce,

1235Sister Carol A. Vinci, Marlene Holland , James LaGuidice, Julia

1244Washington, Elmore Futscher, Martha Futscher, Leonard Kaplan,

1251Dorothy Hazzard, Sharlene Rubin, Anthony Washington, and Morris

1259Harvey, all Petitioners, and the testimony of Robert E. Soich,

1269Jr., air compliance inspector for the Sout hwest District Office

1279of the Department. Petitioners' Exhibits 1 through 9, 11

1288through 16, F1, F1 - D.H., F1 - A.P., F1 - M.F., F1 - S.C.V., F1 - S.R.,

1306and F1 - A.W., were admitted into evidence.

1314On rebuttal, SMG offered the testimony of Kathy Warrington,

1323Alexander I lnyckyuj, Alan Jefferson, Reverend Chris Brown, John

1332Hamilton, Andrea J. Jacomet, David Stevens, Charles Head, Steve

1341Moore, and Randy Morgan.

1345The four - volume Transcript of the final hearing was filed

1356with the Division on March 19, 2003. The parties time ly filed

1368proposed recommended orders, and each has been considered in

1377preparing this Recommended Order.

1381FINDINGS OF FACT

1384The Parties

13861. The Department is the state agency responsible for

1395receiving applications for, and the issuance of, permits for the

1405constru ction and operation of air curtain incinerators in the

1415State of Florida.

14182. SMG is a contracting company, with residential,

1426trucking, agricultural, and commercial driver's license

1432divisions. SMG is the applicant for a permit to operate an air

1444curtain incine rator.

14473. Petitioners reside in Citrus County, Florida, in the

1456vicinity of the constructed and operational air curtain

1464incinerator. For the most part, Petitioners reside northeast,

1472east, or southeast of the site. The Petitioners demonstrated

1481their standing in this proceeding.

1486SMG's Construction Permit

14894. On May 23, 2001, SMG submitted an application for an air

1501construction permit to the Department's Southwest District

1508Office. The application sought authorization to construct an

1516air curtain incinerator "[o]n t he east or west side of 6844 N.

1529Citrus Avenue, Crystal River," Citrus County, Florida. 1

15375. The general purpose of pursuing this permit was to burn

1548wood waste.

15506. On July 9, 2001, the Department issued SMG a Notice of

1562Intent to Issue the Proposed Air Construct ion Permit (Permit No.

15730170360 - 001 - AC). A copy of the Notice of Intent was published

1587in the Citrus Times in Citrus County on July 19, 2001.

15987. On August 6, 2001, the Department issued SMG an air

1609construction permit for the proposed air curtain incinerator.

1617The construction permit authorized the construction of a

1625McPherson Systems, Inc. - Model M30E air curtain destructor

1634(incinerator) with under fire air at a natural non - Title V

1646facility.

16478. Pursuant to the terms of the construction permit, in

1657November 2001 , SMG constructed an air curtain incinerator on

1666approximately 500 acres of land on the east side of State Route

1678495 north of Crystal River in Citrus County, Florida, on

1688property owned by the Gerrits family. See Endnote 1.

16979. Pursuant to the construction perm it, SMG installed a

1707McPherson Systems, Inc. - Model M30E air curtain incinerator

1716with under fire air, a refractory lined burning pit, three upper

1727chamber refractory lined walls (ten feet high), and a stainless

1737steel spark arrester screen. The manifold blo wer and under fire

1748air fans are powered by an electric engine.

175610. The manufacture designs and specifications for the

1764McPherson model were submitted with the application for the air

1774construction permit and admitted in evidence.

178011. Construction of a portable air curtain incinerator with

1789a blower/fan system powered by a diesel - fired engine was

1800contemplated by the air construction permit. Although cheaper,

1808SMG instead chose to install the McPherson model that would

1818produce the cleanest burn, i.e. , one with few er emissions, that

1829was operated by electricity.

183312. The McPherson model used by SMG is recognized as an

1844efficient, reliable model of air curtain incinerator.

185113. The diesel - fired blower/fan/engine system contemplated

1859by the construction permit is considered ex empt from permitting.

186914. An engine operated by electricity has no emissions and

1879therefore does not require an air permit from the Department.

188915. The Department could not require a permit for the

1899blower/fan system alone.

190216. The operating permit supercedes the construction

1909permit, except as amended.

1913Testing after Construction of the Incinerator

191917. On November 23, 2001, SMG began operating the air

1929curtain incinerator.

193118. Pursuant to Special Condition 22 of the air

1940construction permit, an initial visible emission s (VE) (opacity

1949test) compliance test was performed on November 23, 2001, by

1959Bernard A. Ball, Jr., an environmental engineer with Southern

1968Environmental Services, Inc. The results of the initial VE

1977compliance test were within the opacity limits contained in the

1987construction permit.

198919. Specific Condition 19 of the construction permit

1997requires SMG to maintain daily operating logs of the air curtain

2008incinerator's daily operations.

201120. In order to obtain an air operating permit, a permit

2022applicant is required to demonstrate compliance with the

2030Department's rules and with the conditions of the construction

2039permit. The Department requires an applicant for an operating

2048permit to submit copies of recent daily operating records for

2058the facility and copies of the emiss ions test required by the

2070construction permit. These operating records are submitted in

2078order for the Department to determine whether the applicant is

2088complying with the applicable emissions standards and that the

2097applicant is, in fact, maintaining the re quired operating logs

2107as required by the construction permit.

211321. In order for SMG to obtain the operating permit for the

2125incinerator, Specific Condition 28 of the construction permit

2133required SMG to file an application for an air operating permit

2144with the De partment within 45 days of testing and required the

2156application to include a copy of the VE test report and copies

2168of at least two recent weeks of daily operating logs.

217822. On March 14, 2002, a second VE test was conducted by

2190Mr. Ball, which also indicated th at emissions were within the

2201construction permit's opacity limits.

220523. On April 1, 2002, SMG submitted its application for the

2216air operation permit to the Department. The application was

2225signed by Sean Gerrits, and contained copies of the VE test

2236reports f or the November 2001 and March 2002 tests, as well as

2249three and one - half months of daily operating logs, certificates

2260showing that the incinerator operators were trained, and

2268photographs of the incinerator in operation. SMG submitted the

2277documentation req uired under the construction permit.

228424. On April 19, 2002, Robert E. Soich, Jr., air compliance

2295inspector for the Department's Southwest District Office,

2302performed an unannounced inspection and conducted a VE test in

2312response to a complaint by Mr. Leonard Ka plan (a Petitioner),

2323complaining of odors present. Excessive visible emissions were

2331observed by Mr. Soich on April 19, 2002. The incinerator did

2342not pass the VE test because of the improper alignment of the

2354blade angle on the manifold of the blower syste m and because of

2367green leaves and inadequate drying of the materials to be burned

2378in the incinerator. Mr. Soich also observed, in part, that

"2388materials need to be prepared better for burning."

239625. As a result of this unannounced inspection and the

2406negative V E test, the Department requested SMG to provide an

2417explanation of the VE test results and of the type of changes

2429SMG planned to implement to correct the problem.

243726. On learning of the problem, SMG shut down the

2447incinerator and called a McPherson mechanical contractor to come

2456out and adjust the blade angle. Southern Environmental Services

2465conducted another VE test to ensure the problem had been

2475corrected.

247627. On April 22, 2002, a VE test was conducted by Southern

2488Environmental Services on - site which showed com pliance with the

2499construction permit.

250128. On April 30, 2002, SMG advised the Department that

2511adjustments were made to the baffles to correct the angles. SMG

2522provided the Department with the April 22, 2002, VE test

2532results. SMG also implemented better operat ional procedures.

254029. On May 30, 2002, with Mr. Soich present, SMG, by

2551Byron E. Nelson, performed another VE test. The test results

2561showed compliance with the opacity limits in the construction

2570permit and the results were submitted to the Department. 2

258030. Mr. Nelson, an environmental engineer with Southern

2588Environmental Sciences, testified that he has been involved in

2597preparing approximately two dozen applications for air curtain

2605incinerators and has conducted probably "thousands" of visible

2613emissions tests . Mr. Nelson is certified by the State of

2624Florida to conduct VE tests. He has seen "two or three dozen"

2636air curtain incinerators in operation and has conducted VE tests

2646on about 20 of them.

265131. Based on his experience, Mr. Nelson testified that SMG

2661employ ed the same practices and controls to control odor, smoke,

2672and fugitive emissions as other such incinerators he is familiar

2682with. He testified that the amount of smoke and odors from the

2694SMG incinerator is similar to that emitted from other air

2704curtain in cinerators, and that the fugitive emissions from the

2714SMG incinerator were probably less than others he is familiar

2724with.

272532. Based on his experience, Mr. Nelson opined that SMG has

2736taken reasonable measures to minimize odor, smoke and

2744dust/particulates from the operation of the incinerator. Mr.

2752Nelson likewise opined that the SMG incinerator is well run,

2762perhaps better run than other incinerators. (Mr. Nelson had

2771been on the SMG site twice when the incinerator was operating

2782and burning wood products.)

278633. Base d on his experience, Mr. Nelson opined that SMG

2797meets the requirements necessary to obtain an air operating

2806permit from the Department and has demonstrated that it has

2816complied with the conditions of its construction permit.

282434. Mr. Soich is the air complia nce inspector for the

2835Department's Southwest District Office. He testified that he

2843has inspected the operations of other air curtain incinerators

2852over the last 15 years.

285735. Mr. Soich testified that SMG is one of the "better

2868operators" of air curtain incin erators he is familiar with.

2878(Mr. Soich visited the SMG site approximately nine times from

2888March 13, 2002, to October 15, 2002.)

289536. Mr. McDonald is the Air Permitting Engineer for the

2905Southwest District Office of the Department. He is responsible

2914for rev iewing all applications for air curtain incinerators in

2924the Southwest District and has reviewed applications for between

293325 and 30 incinerators. Mr. McDonald reviewed the SMG permit

2943applications.

294437. Based on the latest VE test results, copies of the

2955records attached to the operating permit application, and his

2964experience, Mr. McDonald, for the Department, determined that

2972SMG had demonstrated compliance with the conditions of the

2981construction permit and recommended issuance of the operating

2989permit for the inc inerator. He maintained the same position at

3000hearing.

300138. SMG provided assurance that the DeRosa Fire Department

3010would respond in the event of a fire at the incinerator.

302139. On June 19, 2002, the Department issued the proposed

3031air operating permit.

3034Operatio n of the Air Curtain Incinerator

304140. Emissions from the incinerator are controlled by a

3050curtain of forced air at a very high static pressure over and

3062around the burning pit. The air curtain traps smoke and small

3073particles and recirculates them to enhance com bustion and reduce

3083smoke. The underfire air introduces air underneath the air

3092curtain to ensure complete combustion and minimize opacity at

3101start - up. The refractory - tiled ceramic concrete burn pit

3112provides a safe combustion chamber, and the refractory pa nels

3122keep excess heat from escaping. The upper chamber refractory

3131panels, which surround three sides of the burn pit, allow more

3142retention time in the burner to better control opacity and

3152sparks. The stainless screen spark arrestor also controls

3160sparks a nd debris from leaving the burner.

316841. The operating permit application proposed the use of an

3178air curtain blower along with a manifold to provide forced air

3189to the burning pit. According to the manufacturer

3197specifications, the blower can force air into t he pit at

3208velocities of between 100 and 120 mph. This ensures that the

3219flames in the burn pit receive enough oxygen to combust

3229completely. The air circulates inside the burn pit to ensure a

3240complete burn, which reduces smoke and odor.

324742. The combustion t emperature for the burning pit ranges

3257from approximately 1,800 to 2,500 degrees Fahrenheit.

326643. The operating permit allows a maximum charging rate of

3276ten tons per hour on a daily average basis and 31,200 tons per

3290any consecutive 12 month period. The incine rator has been

3300operating below the maximum charging rate.

330644. The operating permit limits the hours of operation

3315(charging) to 3,120 hours per year, i.e. , ten hours/day, six

3326days/week, 52 weeks/year. According to various SMG operating

3334and maintenance logs, the incinerator has been operated below

3343this limit.

334545. The operating permit, in accordance with Rule 62 -

3355296.401(7), Florida Administrative Code, allows the burning of

3363only wood waste, yard waste, and clean lumber, and prohibits the

3374burning/incineration of materials such as sawdust, paper, trash,

3382tires, garbage, rubber material, plastics, liquid wastes, Bunker

3390C residual oil, roofing materials, tar, asphalt, railroad cross

3399ties, or other creosoted lumber, chemically treated or painted

3408wood, and other simila r materials. Biological waste shall not

3418be burned in the incinerator.

342346. During its operation, the incinerator only burned wood

3432and yard waste, and Mr. Gerrits testified that the waste

3442materials are inspected before being burned in order to ensure

3452that no prohibited materials are burned. If any non - authorized

3463materials are observed, they are removed before the waste is

3473burned. See Finding of Fact 24.

347947. The operating permit allows visible emissions during

3487start - up periods (not to exceed the first 30 minute s of

3500operation) of an opacity up to 35 percent, averaged over a six -

3513minute period, as provided for in Rule 62 - 296.401(7)(a) - (b),

3525Florida Administrative Code. The McPherson model is designed to

3534meet the requirements of the above - referenced rule, and the VE

3546tests run during start - up periods (except one performed by Mr.

3558Soich on April 19, 2002) demonstrated compliance with this

3567requirement. Id.

356948. The operating permit limits visible emissions outside

3577of start - up periods (the first 30 minutes of daily operatio n) to

3591no more that five percent opacity, with visible emissions of up

3602to ten percent opacity allowed up to three minutes in any one

3614hour as provided for in Rule 62 - 296.401(7)(a), Florida

3624Administrative Code, and 40 Code of Federal Regulations Part 60,

3634Subp art CCCC, adopted and incorporated by reference in Rule 62 -

3646204.800(8)(b)74, Florida Administrative Code. (Rule 62 -

3653296.401(7)(a) permits up to 20 percent opacity. The ten percent

3663rate is required by the new federal standard. See SMG Exhibit

367413, page 3 of 9.) The opacity limits in the operating permit

3686are more stringent than those contained in the construction

3695permit, which allows visible emissions of up to 20 percent

3705opacity up to three minutes in any one - hour period. (By

3717definition, a "visible emission " is "[a]n emission greater than

37265 percent opacity or 1/4 Ringelmann measured by standard

3735methods." Rule 62 - 296.200(278), Florida Administrative Code.)

374349. The VE test results submitted by SMG demonstrate

3752compliance with the opacity limits in the operating p ermit and

3763with the opacity limits in the construction permit for the days

3774tested. See Findings of Fact 18, 22, 27, and 29.

378450. The operating permit requires that the incinerator must

3793be attended at all times while materials are being burned and

3804that public a ccess to the incinerator must be restricted. A

3815certified operator is in attendance whenever the incinerator is

3824operated, i.e. , when something is burning in the incinerator. A

3834fence has been constructed around the property.

384151. The operating permit prohibit s starting the incinerator

3850before sunrise and requires that all charging of the incinerator

3860be completely stopped before sunset as required by Rule 62 -

3871296.401(7)(h), Florida Administrative Code. Mr. Gerrits

3877testified that the incinerator is never started before sunrise

3886and is typically started after 8:00 a.m. Mr. Gerrits testified

3896that the incinerator is never charged after sunset and that

3906charging typically stops at 4:00 or 5:00 p.m. See Endnote 4.

3917These practices are consistent with the Operations and

3925Maintenance Guide for the incinerator.

393052. The operating permit limits the height of the ash in

3941the burning pit to one - third of the depth of the pit or to a

3957point where the ash begins to impede combustion, whichever

3966occurs first as provided in Rule 62 - 296.4 01(7)(m), Florida

3977Administrative Code. The one - third depth line is marked on the

3989outside of the incinerator. Mr. Gerrits testified that ash is

3999regularly removed from the burning pit every third day to keep

4010the ash level low, which helps ensure better com bustion and

4021reduces smoke.

402353. The operating permit provides that material shall not

4032be loaded into the incinerator in such a way that it will

4044protrude above the air curtain. Testimony established that the

4053SMG incinerator is properly loaded.

405854. The operatin g permit requires that all operators of the

4069incinerator be trained in the proper operation and maintenance

4078of the incinerator and that an operations and maintenance guide

4088be maintained at the facility at all times. All of the

4099operators of the SMG incinera tor have taken a four - hour training

4112course to learn how to operate the incinerator in accordance

4122with Department regulations and good operating practices, and

4130certificates attesting to that training were submitted with the

4139application for the operating per mit. An Operations and

4148Maintenance Guide was submitted with the application for the

4157construction permit.

415955. The operating permit requires the maintenance of a

4168daily operating log. The daily operating log must be maintained

4178at the facility for at least fi ve years and must be available

4191for inspection by the Department upon request. SMG currently

4200maintains a daily operating log that meets the requirements of

4210the construction permit. SMG submits those daily logs to the

4220Department on a monthly basis after th e Department requested

4230that SMG do so. The log includes a date and site location,

4242daily operating hours, total charges, total material charged in

4251tons, average hourly charging rate, any maintenance performed,

4259fuel usage in gallons, and the operator's sign ature. The logs

4270of record contain this information and have been initialed by

4280SMG's operator for each day when the incinerator has been

4290operated.

429156. SMG operators responsible for preparing the logs have

4300no incentive to indicate the incinerator is not oper ating on

4311days or during hours when it is running, as a deliberate

4322misstatement on the operating logs could result in enforcement

4331action by the Department and being fired by SMG.

434057. The operating permit requires that all reasonable

4348precautions be undertaken to prevent and control the generation

4357of unconfined emissions of particulate matter in accordance with

4366Rule 62 - 296.320(4)(c), Florida Administrative Code. SMG takes

4375reasonable precautions to prevent and control the generation of

4384unconfined emissions of pa rticulate matter, including paving the

4393road that leads to the incinerator to reduce dust, wetting the

4404ashes removed from the burn pit, wetting the ash piles and ramp

4416that addresses the incinerator, approaching the incinerator at a

4425slow rate, and placing a charge into the incinerator slowly and

4436carefully. SMG voluntarily added a sprinkler system on all four

4446corners of the burning pit that was not contemplated by the

4457construction permit. The Department witness Mr. McDonald

4464testified that this provided an ad ditional method to control

4474unconfined emissions.

447658. Although the construction permit and proposed permit do

4485not contain conditions prohibiting the burning of green wood or

4495wet wood waste, SMG takes precautions at the request of Mr.

4506Soich to ensure that the w ood is properly dried before being

4518burned. See Finding of Fact 24. This helps to reduce smoke and

4530emissions from the incinerator. (Moisture is the primary factor

4539that inhibits burning and causes smoke and potentially odor.)

454859. As part of the routine pra ctice in handling the wood

4560waste before it is burned, trucks bringing wood waste to the

4571incinerator are instructed to dump it into a pile. SMG

4581operators then use a loader to flatten out the pile and remove

4593dirt, prohibited materials, and harvestable piece s of wood.

4602Harvestable pieces of wood and dirt are removed to separate

4612staging areas. The remaining wood waste is separated into long

4622windrows, with the oldest row closest to the incinerator. The

4632windrows are flipped or rolled over in the direction of the

4643incinerator, allowing the waste to dry. The waste in the row

4654closest to the incinerator is burned, and subsequent windrows

4663are rolled over in its place.

466960. Ash is generally removed from the burn pit every third

4680day; it is wetted on removal to reduce dus t, and the ash piles

4694adjacent to the incinerator are also kept wetted by the

4704sprinkler system. The ash is eventually mixed with the dirt in

4715a composter for use as Class - A unrestricted compost.

472561. The SMG operator in charge on a particular day decides

4736wheth er the incinerator will operate that day, in accordance

4746with standard operational practices. The operator checks the

4754weather forecast. If it is raining or if there are high winds

4766(over 20 miles per hour), the incinerator will not be operated

4777that day, an d SMG typically waits four days after a rain to

4790begin operating the incinerator again. These procedures are not

4799contained in any permit conditions.

480462. The purpose of not operating during or immediately

4813after a rain and taking steps to ensure the wood is dry is to

4827reduce smoke; wet wood smokes more. Rainy weather can also

4837affect odor.

483963. The purpose of not operating during windy conditions is

4849to reduce the possibility of fire on SMG's property, but wind

4860can also affect odor and visible emissions.

486764. On days whe n the incinerator is not operating, SMG

4878conducts yard maintenance, maintains the waste windrows, and

4886runs the composter. The composter is a source of noise and is

4898located adjacent to the incinerator and is run when the

4908incinerator is shut down.

491265. To ensu re that the visible emission limitations are not

4923exceeded and objectionable odors 3 not generated, the operating

4932permit requires that the incinerator's fan shall continue to

4941operate after the last charge of the day until all combustion

4952(presence of any flam e or smoke) has ceased. Generally, the

4963incinerator keeps burning an hour to an hour and one - half. Mr.

4976Gerrits testified that the fan is kept running until the flames

4987and smoke die out and that a certified operator is present until

4999the fan is switched off .

500566. The operating permit requires that the testing of

5014visible emissions must be conducted within 90 - 100 percent of the

5026maximum allowable charging rate of 10 tons/hour and shall be

5036conducted when the highest emissions can reasonable be expected

5045to occur. 4 Testing of the SMG incinerator was conducted at

5056within 90 - 100 percent of the maximum allowable charging rate of

506810 tons per hour, and the May 30, 2002, test results indicated

5080that the incinerator was operating within the opacity limits of

5090its permit even when operating at close to maximum capacity.

5100Evidence established that the May 30, 2002, VE test complied

5110with the specific conditions of both the construction and

5119operating permit. See Finding of Fact 29.

512667. The test method for visible emissions required by both

5136the construction permit and the operating permit is EPA Method

51469, adopted and incorporated by reference at Rule 62 -

5156204.800(8)(b)74, Florida Administrative Code. (Method 22 is not

5164required pursuant to Department rules for compliance testing of

5173an a ir curtain incinerator.) Testimony established that Method

51829 was the method used for the VE tests conducted on the SMG

5195incinerator.

519668. As required by both the construction and operating

5205permits, the incinerator is located in excess of 300 feet from

5216any pr e - existing occupied building located off site as required

5228by Rule 62 - 296.401(7)(j), Florida Administrative Code. The

5237closest residences, that of Mr. Gerrits' father and his tenant,

5247are approximately 1,500 feet away.

5253Petitioners' Challenge

525569. For the most pa rt, Petitioners reside northeast, east,

5265or southeast of the incinerator. One Petitioner resides

5273approximately three - tenths of a mile southeast of the

5283incinerator; others reside at greater distances, up to

5291approximately a mile and one - half away from the in cinerator.

530370. Each of the Petitioners who testified have resided in

5313this area for many years, pre - dating the operation of the

5325incinerator.

532671. The Petitioners who testified were credible and well -

5336intentioned. Each of these Petitioners maintained daily logs

5344cov ering several months when the incinerator was authorized to

5354operate. Some kept logs for several months, while others kept

5364logs for several days. They noted their observations and

5373perceptions in the logs.

537772. Admittedly, Petitioners are not experts in the

5385de tection of odors or noise levels. Nevertheless, they recorded

5395their own experiences as to what they saw, heard, and/or

5405smelled, believing that the odors and noise came from the

5415incinerator. Some recorded that they smelled the strong odor of

5425smoke, an "ac rid smell," a "pungent smell," for example; "it

5436makes your eyes burn and throat burn" said another during the

5447hearing. One witness described the experience as being a

5456prisoner in his house. Another does not go outside when the

5467smell is bad. Generally, t he level of odor varied with the

5479weather conditions, i.e. , a stronger odor was noticed on foggy

5489and wet days or nights and when the wind blows from the west,

5502which Petitioners contend is the prevailing wind. Some

5510witnesses only smelled the odor during the night and not during

5521the day, and not all of the time. Some complained about the

5533odor and noise, or one and not the other.

554273. Some believed the noise coming from the incinerator was

5552a major problem. At least two witnesses who live approximately

5562three - tent hs of a mile and 3,500 feet, respectively, from the

5576incinerator site, described the noise as being like a jet

5586airplane. One witness shuts her windows to keep out the noise.

5597(SMG also operates a "wood chipper" or "composter" on site which

5608is loud. Mr. Ge rrits stated that he did not think the sound was

5622the same as made by the incinerator fan. He also stated that

"5634[i]t doesn't exceed the noise decibels. It doesn't exceed

5643background noise levels at [their] property line.")

565174. Petitioners documented their con cerns which are

5659described, in part, above, and also documented their complaints

5668to the Department and local government.

567475. It appears that each of the logs prepared by the

5685Petitioners (who kept logs) were given to Petitioner Martha

5694Futscher, who summarize d and compiled a hand - written master list

5706of the complaints. Then, Mr. Harvey inputted this data on the

5717master list (spread sheet) of complaints, which appears as

5726Petitioners' Exhibit F1. The master list contains recorded

5734observations from May 2002 throu gh January 2003. The master

5744list contains a representation of when the incinerator started

5753and stopped for various days and when it was operational or not,

5765and this information was derived, according to Mr. Harvey, from

5775the logs maintained by SMG. The ma ster list also provides tons

5787per hour of waste burned on particular days, the observer's

5797initials, and the approximate distance each observer lived from

5806the incinerator, and the comments, with time of observation or

5816perception noted.

581876. There are discrepanci es between the master list and the

5829actual logs maintained by SMG as to when the incinerator was

5840operational.

584177. There also appears to be several differences in

5850observations between the Petitioners' master list and other

5858evidence which indicates when Mr. So ich inspected the

5867incinerator and determined that the incinerator was operating

5875satisfactorily. Compare Petitioners' Exhibit 2 with

5881Petitioners' Exhibit F1. For example, the master list records

5890an observation from May 30, 2002, when the incinerator was

5900o perating, when there was noise and smoke noted at 8:00 a.m.,

5912and flames at the incinerator and odor at 5:30 p.m. Conversely,

5923Mr. Soich was on - site on May 30, 2002, and observed the

5936scheduled VE test. No problems were noted with the operation on

5947this date by Mr. Soich. Mr. Soich also noted that "wood waste

5959was properly dry and free of debris." The VE test on May 30,

59722002, was performed from 10:29 a.m. to 11:59 a.m. and showed

5983compliance with opacity limits.

598778. The master list indicates that black smoke wa s observed

5998(no time given) on May 7, 2002, when the incinerator was

6009operational, yet Mr. Soich inspected the incinerator on that day

6019and there is a notation in the record that the incinerator was

6031operating between 0 - 5 percent visible emissions. (Mr. Soich

6041opined that it should be very rare to smell objectionable odors

6052if the visible emissions run at a 5 percent level.)

606279. For October 15, 2002, there is a notation in the master

6074list that a Petitioner commented that the incinerator was

6083running during the day ( "AM/PM Running") and that there was a

6096strong smell at approximately 7:05 p.m. A strong smell at the

6107person's house was also noted at approximately 9:30 p.m. on that

6118day. However, Mr. Soich performed an annual inspection of the

6128incinerator on October 15, 2002, and there is a notation on the

6140master list, Petitioners' Exhibit 2, that the incinerator was

6149not operating due to recent rain.

615580. As one Petitioner testified, her point was that the

6165inspectors are not there when she hears the noise, sees smoke,

6176and sme lls the odor. Mr. Soich confirmed that he does not

6188inspect the facility in the evening.

619481. Petitioners also provided, as evidence in support of

6203their position, six videotapes of the incinerator for

6211September 19, October 3, October 23, November 25 (2 tapes ),

62222002, and January 10, 2003. (Mr. Harvey took the videotapes

6232from the same location, across the street and west of the

6243incinerator.)

624482. Each tape, except for September 19, 2002, showed smoke

6254emanating from the operational incinerator. On September 19,

62622002, the incinerator was not running according to the SMG log.

6273There was a malfunction which was reported to the Department.

6283The SMG log indicates that the pit was cleaned out, site cleared

6295and rows moved. There is also a notation in the SMG log for

6308th is date that there was a power failure/malfunction at the

6319incinerator at 9:00 a.m., and that the power was out. According

6330to Mr. Gerrits, the malfunction caused smoke. (One Petitioner

6339observed smoke from ashes on September 19, 2002.)

634783. While the Petitione rs proved that there was smoke

6357emanating from the operation of the incinerator on the days

6367which were videotaped, with the exception of September 19, 2002,

6377this did not necessarily prove that the emissions exceeded the

6387requirements of the Department rules or that there was an

6397objectionable odor emanating therefrom.

640184. Mr. Stoich observed the videotapes played during the

6410hearing. In particular, with respect to the January 10, 2003,

6420videotape, Petitioners' Exhibit 12, Mr. Stoich stated that a

6429level of opacit y cannot be determined from photographs and

6439videotapes. He also noted that there was "a lot of white

6450smoke," an atypical situation according to him, emanating from

6459the incinerator and that he, as a compliance inspector, would

6469have investigated further and performed an inspection, including

6477a VE test, to determine if there was a violation, had he seen

6490this smoke. However, he stated that without actually seeing the

6500operation, he could not determine whether a violation had

6509occurred.

651085. There was persuasive evi dence that compliance with the

6520opacity limits of a permit can only be determined through VE

6531tests conducted using the Department - approved EPA Method 9. The

6542VE test takes into account wind, the angle of the plume, the

6554position of the sun, and other factors , and must use appropriate

6565averaging to ensure that the test is valid.

657386. A smoke plume can look quite dense at the wrong angle

6585or if the light is reflecting off the plume in a certain way,

6598when in fact it is in compliance with Department rules.

660887. The VE tests for the incinerator have, with one

6618exception, see Finding of Fact 24, demonstrated compliance with

6627the opacity limits in the construction permit. As noted herein,

6637upon receipt of notice that one VE test failed, SMG implemented

6648corrective actions, an d two VE tests conducted after the time

6659showed the incinerator was operating in compliance with the

6668opacity limits of the permit. See Findings of Fact 27 and 29.

668088. The Department relies on its compliance inspectors,

6688such as Mr. Soich, to make a determinati on of whether an air

6701emission source is causing an objectionable odor.

670889. There does not appear to be an approved Department

6718method for measuring odors from incinerators. (Mr. Nelson

6726stated that odors are difficult to test and that "odor is done

6738collectin g samples." No samples were taken or analyzed.)

674790. On the other hand, Mr. Soich testified that, based on

6758his years of experience, he has developed certain methods for

6768determining whether a facility is emitting an objectionable odor

6777under the rules. If he r eceives an odor complaint, which he has

6790in this case, he goes to the site and checks the prevailing

6802winds. He also travels around the facility to determine the

6812source of the odor. An odor can be deemed objectionable if it

6824is very strong and overpowering, such that he cannot stay on -

6836site and breathe in the odors. An odor can also be deemed

6848objectionable if, after being on - site for some extended period

6859of time, he begins to develop symptoms such as runny eyes, a

6871scratchy throat, or a headache as a result o f the smell.

6883Finally, he may bring along another Department employee to

6892determine whether the other individual finds the odor

6900objectionable.

690191. Enforcement actions can be taken if objectionable odors

6910are detected.

691292. Mr. Soich testified that he has inspecte d the

6922incinerator at least nine times in the past year and never

6933detected an objectionable odor. On some of the visits, the

6943incinerator was not operational.

694793. On rebuttal, several residents of the area testified

6956that they had not experienced objectionabl e odors from the

6966incinerator.

696794. David Stevens, the Chief of the DeRosa County Fire

6977Department, testified that an open land - clearing burn emits

6987black smoke, more so than he observed from the incinerator.

6997This fire department only had to respond to false a larms at the

7010incinerator. Mr. Stevens personally inspected the operation of

7018the incinerator and thought it was a very safe operation.

702895. Randy Morgan, a wildlife firefighter and certified

7036burner with the Division of Forestry with over 16 years of

7047experience in fire control, testified that approximately 50,000

7056acres of the state land burns occurred in Citrus County last

7067year. These land burns can be a significant source of smoke and

7079odor. In addition, approximately 50 open burn authorizations

7087are issued eac h day. He also testified that controlled burns of

7099approximately 15 fires of approximately 50 to 2,000 acres a day

7111occurred in 2002 in proximity of the SMG incinerator which is a

7123source of smoke and odor. The state also conducts open burns of

7135some kind ap proximately ten months out of the year.

714596. Other witnesses testified that, given the rural nature

7154of the community, open burning of trash, wood, and leaves occurs

7165on a regular basis.

7169Ultimate Findings of Fact

717397. Credible evidence established that SMG meets or exceeds

7182the requirements in the construction permit to reduce smoke,

7191dust, and odor, and these requirements are carried over to the

7202operating permit.

720498. Credible evidence established that SMG employs the

7212same, if not better, practices and permit conditions to control

7222smoke, dust, and odor as other air curtain incinerators in the

7233state.

723499. Credible evidence established that the SMG incinerator

7242is operated in accordance with its construction permit.

7250100. Credible evidence established that the SMG

7257incinerator can b e expected to be operated in accordance with

7268its operating permit.

7271101. Credible evidence established that the SMG

7278incinerator is operated in accordance with Department rules.

7286102. In light of the foregoing, SMG has demonstrated

7295reasonable assurance that its a ir curtain incinerator has been

7305operated in compliance with the construction permit and that the

7315incinerator can continue to be operated in accordance with the

7325conditions of the operating permit.

7330CONCLUSIONS OF LAW

7333103. The Division of Administrative Hearings has

7340jurisdiction over the parties to, and the subject matter of,

7350this proceeding. Sections 120.569 and 120.57(1), Florida

7357Statutes.

7358104. Petitioners have standing in this proceeding.

7365105. The purpose of this proceeding, conducted pursuant to

7374Section 120.57(1), Florida Statutes, is to "formulate final

7382agency action, not to review action taken earlier and

7391preliminarily." McDonald v. Florida Department of Banking and

7399Finance , 346 So. 2d 81 (Fla. 1st DCA 1977).

7408106. The burden of proof in the proceeding is on the party

7420asserting the affirmative in the proceeding, here SMG. Florida

7429Department of Transportation v. J.W.C., Co. , 396 So. 2d 778, 787

7440(Fla. 1st DCA 1981). If a regulatory agency gives notice of

7451intent to grant a permit application, the applicant has the

7461initi al burden of going forward with the presentation of a prima

7473facie case of the applicant's entitlement to a permit. In the

7484context of this proceeding, SMG had the initial burden of

7494showing that it provided reasonable assurance that the operation

7503of the air curtain incinerator is consistent with the applicable

7513statutes and rules of the Department.

7519107. Once the applicant has made a prima facie case that

7530the proposed permit should be issued, the Petitioners, here

7539Louis A. Gerace, et al ., must rebut that prima f acie case and

7553support the allegations of its petition, here the Amended

7562Petition, challenging the proposed permit. Id. at 789. Unless

7571Petitioners presented "contrary evidence of equivalent equality"

7578to the evidence presented by the applicant, here SMG, a nd the

7590agency, here the Department, the permit must be approved. Id.

7600at 789 - 790.

7604108. Petitioners cannot carry the burden of presenting

7612contrary evidence by mere speculation concerning what "might"

7620occur. Chipola Basin Protective Group, Inc. v. Department of

7629Environmental Regulation , Case No. 88 - 3355, 1988 WL 1859974

7639(Dept. Env. Reg. Dec. 29, 1988).

7645109. The standard for an applicant's burden of proof is

7655one of reasonable assurances, not absolute guarantees, that the

7664applicable conditions for the issuance of a permit have been

7674satisfied. ManaSota - 88, Inc. v. Agrico Chemicals, Co. and

7684Florida Department of Environmental Regulation , 12 F.A.L.R.

76911319, 1325 (DER Feb. 19, 1990).

7697110. "Reasonable assurance" contemplates "a substantial

7703likelihood that the project will be successfully implemented."

7711Metropolitan Dade County v. Coscan Florida, Inc. , 609 So. 2d

7721644, 648 (Fla. 3d DCA 1992). See also , Hamilton County Board of

7733County Commissioners v. Florida Department of Environmental

7740Regulation , 587 So. 2d 1378 (Fla. 1st DCA 1991).

7749111. The issuance of a permit must be based solely on

7760compliance with applicable permit criteria. Council of Lower

7768Keys v. Toppino , 429 So. 2d 67 (Fla. 3d DCA 1983).

7779112. In order to demonstrate entitlement to an air

7788operating permit for an air curtain i ncinerator, the holder of

7799an air construction permit, here SMG, must demonstrate

7807compliance with the conditions of the construction permit. Rule

781662 - 210.300(2), Florida Administrative Code. To do that, the

7826construction permit requires the permit holder to include with

7835the application for operating permit copies of at least two

7845weeks of recent daily operating logs and a copy of a visible

7857emissions test showing compliance with the opacity limits in the

7867construction permit.

7869113. An air curtain incinerator must me et the specific

7879emissions standards contained in Rule 62 - 296.401(1) and (7),

7889Florida Administrative Code, and the general emissions standards

7897contained in Rule 62 - 296.320(2) and (3), Florida Administrative

7907Code.

7908114. The specific conditions of the operating pe rmit are

7918consistent with the applicable requirements of Chapter 62 - 296,

7928Florida Administrative Code, and in particular, Rules 62 -

7937296.320, and 62 - 296.401, Florida Administrative Code. The

7946general conditions of the operating permit are consistent with

7955the r equirements of Rule 62 - 4.160, Florida Administrative Code.

7966115. On a preliminary basis, the Department determined

7974that SMG had provided reasonable assurance to indicate that the

7984operation of the air curtain incinerator would comply with the

7994appropriate provisi ons of Chapters 62 - 4 and 62 - 204 through 62 -

8009297, Florida Administrative Code. As a measure of assurance

8018that SMG would comply with the applicable provisions of these

8028chapters, the Department, under the authority of Rule 62 -

80384.070(3), Florida Administrative Code, placed 38 specific

8045conditions on the proposed permit which included, among other

8054things, the requirements of Rule 62 - 296.401(1) and (7), Florida

8065Administrative Code, dealing specifically with air curtain

8072incinerators. Additionally, applicable genera l conditions from

8079Rule 62 - 4.160, Florida Administrative Code, are incorporated

8088into the permit. The amendment to the permit has another

8098specific condition governing the management and storage of the

8107waste on - site.

8111116. Rules 62 - 296.320(2) and 62 - 296.401(1)( b), Florida

8122Administrative Code, provide that an incinerator shall not cause

8131or contribute to an objectionable odor. An objectionable odor

8140is defined in Rule 62 - 210.200(181), Florida Administrative Code,

8150as any odor that "is or may be harmful or injurious to human

8163health or welfare, which unreasonably interferes with the

8171comfortable use and enjoyment of life or property, or which

8181creates a nuisance."

8184117. In order for an odor to be deemed "objectionable"

8194under this definition, the odor must be "so strong, in tense or

8206noxious that [it is] legally classified as 'objectionable

8214odors.'" City of Jacksonville v. Department of Environmental

8222Protection and Kimmins Recycling Corporation , Case No. 01 - 0783,

82322001 WL 1917259 at *5 and *26 (DEP Oct. 18, 2001). (In Kimmins ,

8245the Department agreed with the conclusion reached by the ALJ

"8255that the City failed to demonstrate at the final hearing that

8266the operation of the Facility would likely create odors so

8276noxious as to be injurious to human health or to unreasonable

8287interfere with the use and enjoyment of property by other

8297persons others [sic] in the vicinity of the proposed Facility

8307site." Id. )

8310118. A nuisance is defined as an unreasonable interference

8319with another's use or enjoyment of property. The test for an

8330actionable nu isance is the rule of reasonableness of the use

8341complained of under the circumstances. Lee v. Florida Public

8350Utilities Commission , 145 So. 2d 299, 301 - 302 (Fla. 1st DCA

83621962). The test to be applied is of the effect of the offending

8375conditions on "an ord inary, reasonable man with a reasonable

8385disposition and ordinary health and possessing the average and

8394normal sensibilities." Nitram Chemicals, Inc. v. Parker , 200

8402So. 2d 220, 231 (Fla. 2d DCA 1967).

8410119. A party pleading nuisance must also establish that

8419the use complained of is the actual, proximate cause of the

8430injury. "[T]estimony consisting of guesses, conjectures or

8437speculation" is not sufficient. Durrance v. Sanders , 329 So. 2d

844726, 29 - 30 (Fla. 1st DCA 1976), cert . denied , 339 So. 2d 1171

8462(Fla. 197 6).

8465120. The persuasive evidence indicates that SMG

8472affirmatively provided, during this de novo hearing, reasonable

8480assurance that the operation of the air curtain incinerator will

8490not discharge, emit, or cause pollution in contravention of

8499Department standard s or rules. The specific conditions recited

8508in the operation permit are sufficient to assure compliance.

8517121. Petitioners documented their concerns. Noise levels

8524and odors, which Petitioners found objectionable, were

8531documented. Four days of videotapes of the incinerator in

8540operation, as well as daily logs maintained by Petitioners,

8549demonstrated some of Petitioners' concerns.

8554122. The videotapes indicate that there was smoke

8562emanating from the incinerator on those operational days.

8570However, Petitioners did not provide any scientific evidence,

8578such as a visible emissions test, to demonstrate that the smoke,

8589on those or other occasions, exceeded the opacity levels

8598established by the Department's rules. The persuasive evidence

8606indicates that a visible emission s test cannot be performed by

8617viewing photographs or a videotape.

8622123. On the other hand, the visible emissions tests of

8632record, except one, indicate that SMG operated the incinerator,

8641on the days tested, in compliance with the Department opacity

8651rules.

8652124. F urthermore, while Petitioners have documented their

8660perception of objectionable noise emanating from the

8667incinerator, the Department does not regulate noise levels with

8676respect to air curtain incinerators. Therefore, this is not a

8686basis to deny the permit .

8692125. The persuasive evidence indicates there is no

8700scientific method of evaluating whether objectionable odors are

8708emanating from the air curtain incinerator. But see Department

8717of Environmental Protection v. Holmes Dirt Service, Inc. and

8726William J. Holme s , Case No. 02 - 2278 (DOAH Dec. 24, 2002)(samples

8739gathered for testing for hydrogen sulfide emanating from a

8748construction and demolition debris disposal facility).

8754126. Petitioners, who live in proximity to the

8762incinerator, live with the operation of the inci nerator on a

8773daily basis and have documented their perceptions that odors

8782emanate from the incinerator, which they find objectionable.

8790The evidence, however, is mixed as to the relationship between

8800Petitioners' odor complaints and the operation of the

8808inc inerator.

8810127. Nevertheless, Petitioners did not adequately rebut

8817the evidence presented by SMG and the Department that SMG has

8828given reasonable assurance that its air curtain incinerator will

8837operate and not cause or emit objectionable odors.

8845128. The same can be said for the release of unconfined or

8857fugitive emissions. Petitioners did not sufficiently prove that

8865SMG could not operate the air curtain incinerator in accordance

8875with its operating permit, which requires SMG to take reasonable

8885precautions to control unconfined or fugitive emissions.

8892129. SMG demonstrated that the air curtain incinerator has

8901operated in compliance with the terms and conditions of its

8911construction permit and has provided reasonable assurance that

8919the incinerator will be operated in complian ce with the terms

8930and conditions of the operating permit.

8936RECOMMENDATION

8937Based upon the foregoing Findings of Fact and Conclusions

8946of Law, it is

8950RECOMMENDED that the Department of Environmental Protection

8957enter a final order granting SMG's application an d issuing

8967Permit No. 0170360 - 002 - AO, as amended, and subject to all

8980conditions, including but not limited to the Specific Conditions

8989set forth in the Department's Notice of Intent to Issue, for the

9001operation of an air curtain incinerator in Citrus County,

9010Florida. It is further recommended that Petitioners' challenge

9018to the amendment to the operating permit be dismissed. See

9028Preliminary Statement.

9030DONE AND ENTERED this 21st day of April, 2003, in

9040Tallahassee, Leon County, Florida. 5

9045______________________ _____________

9047CHARLES A. STAMPELOS

9050Administrative Law Judge

9053Division of Administrative Hearings

9057The DeSoto Building

90601230 Apalachee Parkway

9063Tallahassee, Florida 32399 - 3060

9068(850) 488 - 9675 SUNCOM 278 - 9675

9076Fax Filing (850) 921 - 6847

9082www.doah.state.fl.us

9083Fil ed with the Clerk of the

9090Division of Administrative Hearings

9094this 21st day of April, 2003.

9100ENDNOTES

91011 / The construction permit authorized the construction of the

9111incinerator "[o]n the east or west side of 6844 N. Citrus

9122A venue, Crystal River," Citrus County, Florida. The operation

9131permit authorizes the incinerator to be located on the east or

9142west side of 6400 North Citrus Avenue. While mentioned in

9152Petitioners' Proposed Recommended Order, page 4, and mentioned

9160during ex amination during the hearing, Petitioners did not

9169challenge the change in location in the Amended Petition.

91782 / The test method for visible emissions required by both the

9190construction permit and the operating permit is EPA Method 9,

9200adopted and incorporat ed by reference at Rule 62 -

9210204.800(8)(b)74, Florida Administrative Code. EPA Method 9 is

9218the method used for the visible emissions tests conducted on the

9229SMG incinerator.

92313 / The operation of the SMG incinerator shall not "cause,

9242suffer, allow or permit the discharge of air pollutants which

9252cause or contribute to an objectionable odor." Rule 62 -

9262296.320(2), Florida Administrative Code. See also Rule 62 -

9271401(1)(b), Florida Administrative Code; Conclusion of Law 116.

92794 / The permit defines " [c]harging rate as 1) the amount of

9291material placed in the incinerator during the period starting

9300with the initial loading and ending 60 minutes after initial

9310combustion, for the first 60 minute period after initial

9319combustion and 2) the amount of material placed in the

9329incinerator for any 60 minute period thereafter."

93365 / A copy of this Recommended Order has been furnished to the

9349Petitioners by and through Mr. Morris Harvey, Petitioners'

9357qualified representative. See Rule 28 - 106.105(2), Florida

9365Administrative Code.

9367CO PIES FURNISHED :

9371Morris Harvey, Qualified Representative

93758055 North Dacca Terrace

9379Dunnellon, Florida 34433

9382W. Douglas Beason, Esquire

9386Department of Environmental Protection

93903900 Commonwealth Boulevard

9393The Douglas Building, Mail Station 35

9399Tallahassee, Fl orida 32399 - 3000

9405Susan L. Stephens, Esquire

9409Holland & Knight, LLP

9413315 South Calhoun Street, Suite 600

9419Tallahassee, Florida 32301

9422Denise VanNess, Esquire

9425VanNess & VanNess, P.A.

94291205 North Meeting Tree Boulevard

9434Crystal River, Florida 34429

9438David B. S truhs, Secretary

9443Department of Environmental Protection

9447Douglas Building

94493900 Commonwealth Boulevard

9452Tallahassee, Florida 32399 - 3000

9457Kathy C. Carter, Agency Clerk

9462Department of Environmental Protection

94663900 Commonwealth Boulevard

9469Mail Station 35

9472Tallaha ssee, Florida 32399 - 3000

9478Teri L. Donaldson, General Counsel

9483Department of Environmental Protection

94873900 Commonwealth Boulevard

9490Mail Station 35

9493Tallahassee, Florida 32399 - 3000

9498NOTICE OF RIGHT TO FILE EXCEPTIONS

9504All parties have the right to submit writ ten exceptions within

951515 days from the date of this Recommended Order. Any exceptions

9526to this Recommended Order should be filed with the agency that

9537will issue the final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 06/04/2003
Proceedings: Agency Final Order
PDF:
Date: 06/03/2003
Proceedings: Final Order filed.
PDF:
Date: 04/21/2003
Proceedings: Recommended Order
PDF:
Date: 04/21/2003
Proceedings: Recommended Order issued (hearing held February 27-28, 2003) CASE CLOSED.
PDF:
Date: 04/21/2003
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 03/31/2003
Proceedings: Respondent SMG`s Proposed Recommended Order filed.
PDF:
Date: 03/31/2003
Proceedings: Department of Enviromental Protection`s Proposed Recommended Order (filed via facsimile).
PDF:
Date: 03/28/2003
Proceedings: Petitioner`s Proposed Recommended Order filed.
Date: 03/19/2003
Proceedings: Transcript (Volumes I - IV) filed.
PDF:
Date: 03/18/2003
Proceedings: Letter to Judge Stampelos from S. Stephens regarding ordering of transcript (filed via facsimile).
PDF:
Date: 03/14/2003
Proceedings: Letter to Judge Stampelos from M. Harvey regarding submittal of proposed recommended order (filed via facsimile).
PDF:
Date: 03/04/2003
Proceedings: Letter to Judge Stampelos from S. Stephens regarding transcripts and proposed recommended order (filed via facsimile).
Date: 02/27/2003
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 02/26/2003
Proceedings: Order issued. (Petitioners request to videotape the final hearing is granted)
PDF:
Date: 02/25/2003
Proceedings: Respondent SMG, Inc.`s Response to Petitioner Harvey`s Request for Exclusion of Witnesses (filed via facsimile).
PDF:
Date: 02/24/2003
Proceedings: Petitioners` Request Review of Latest SMG Request to Add to Witness List, Dated Feb. 20, 2003 (filed by M. Harvey via facsimile).
PDF:
Date: 02/24/2003
Proceedings: Letter to Judge Stampelos from S. Stephens requesting earlier pleading of Respondent SMG, Inc.`s corrected additions to witness list be disregarded (filed via facsimile).
PDF:
Date: 02/24/2003
Proceedings: Respondent SMG, Inc.`s Corrected Additions to Witness List (filed via facsimile).
PDF:
Date: 02/24/2003
Proceedings: Notice of Appearance (filed by D. Vanness via facsimile).
PDF:
Date: 02/20/2003
Proceedings: Respondent SMG, Inc.`s Additions to Witness List (filed via facsimile).
PDF:
Date: 02/19/2003
Proceedings: Order Denying SMG`s Motion for Order to Relinquish Jurisdiction issued.
PDF:
Date: 02/18/2003
Proceedings: DEP`s Response in Opposition to SMG, Inc.`s Motion for Order Relinquishing Jurisdiction (filed via facsimile).
PDF:
Date: 02/18/2003
Proceedings: Letter to Judge Stampelos from M. Harvey enclosing signature from S. Pierce denoting their adoption and reliance ont the pleading submitte by Petitioner M. Harvey (filed via facsimile).
PDF:
Date: 02/18/2003
Proceedings: Letter to Judge Stampelos from M. Harvey enclosing Petitioners` signatures denoting their adoption and reliance on the pleading submitted by Petitioner Morris Harvey (filed via facsimile).
PDF:
Date: 02/18/2003
Proceedings: Petitioner`s Response to Respondent SMG, Inc`s Motion for Order to Relinquish Jurisdiction filed by M. Harvey.
PDF:
Date: 02/10/2003
Proceedings: Respondent SMG, Inc.`s Motion for Order Relinquishing Jurisdiction and Memorandum of Law in Support filed.
PDF:
Date: 02/07/2003
Proceedings: Department of Enviromental Protection`s Witness List (filed via facsimile).
PDF:
Date: 01/10/2003
Proceedings: Order issued. (motion to continue the final hearing is granted)
PDF:
Date: 01/10/2003
Proceedings: Additional Information for Petitioners Response to Respondent SMG, Inc.`s Motion for Continuance of final Hearing (filed via facsimile).
PDF:
Date: 01/10/2003
Proceedings: Petitioners Response to Respondent SMG, Inc`s Motion for Continuance of Final Hearing (filed via facsimile).
PDF:
Date: 01/09/2003
Proceedings: Order Granting Continuance and Re-scheduling Hearing issued (hearing set for February 27 and 28, 2003; 10:30 a.m.; Crystal River, FL).
PDF:
Date: 01/08/2003
Proceedings: Respondent SMG, INC.`s Motion for Continuance of Final Hearing (filed via facsimile).
PDF:
Date: 01/06/2003
Proceedings: Request to Judge Stampelos for Assistance: Discovery Request to FDEP and Request for Subpoena Forms (filed via facsimile).
PDF:
Date: 01/02/2003
Proceedings: Order Granting in Part and Denying in Part SMG`s Motion to Dismiss issued.
PDF:
Date: 12/30/2002
Proceedings: Petitioners Response to Respondent SMG, Inc`s Motion to Dismiss Petitioner Sun Pierce Dated Dec. 9, 2002: Par.II.A.17 (filed by M. Harvey via facsimile).
PDF:
Date: 12/26/2002
Proceedings: Respondent SMG, Inc.`s Response to Order of Pre-Hearing Instructions (filed via facsimile).
PDF:
Date: 12/23/2002
Proceedings: Petitioner`s Response to "Order of Pre-Hearing Instructions" Dated October 25, 2002 filed.
PDF:
Date: 12/23/2002
Proceedings: Respondent, Department of Environmental Protection`s Witness List filed.
PDF:
Date: 12/19/2002
Proceedings: Respondent SMG, Inc.`s Motion for Order of Dismissal of All Remaining Challenges With Prejudice (filed via facsimile).
PDF:
Date: 12/18/2002
Proceedings: Order issued. (ordered that jurisdiction is relinquishe to the Department for further proceedings regarding only that portion of the amended petition challenging the ussuance of the construction permit)
PDF:
Date: 12/16/2002
Proceedings: Petitioner`s Response to Respondent SMG, Inc`s Motion for Order to Dismiss Petitions and to Relinquish Jurisdiction (filed via facsimile).
PDF:
Date: 12/11/2002
Proceedings: Request for Department of Environmental Protection Correspondence and Documentation filed by M. Harvey.
PDF:
Date: 12/09/2002
Proceedings: Respondent SMG, Inc.`s Motion for Order Relinquishing Jurisdiction filed.
PDF:
Date: 11/14/2002
Proceedings: Amended Petition (filed by M. Harvey via facsimile).
PDF:
Date: 11/14/2002
Proceedings: Qualified Representative vs Adopting Pleadings of Other Petitioner`s (filed by M. Harvey via facsimile).
PDF:
Date: 10/29/2002
Proceedings: Order issued. (if Petitioners wish to proceed in this fashion, Petitioners` authorization(s) shall be filed within 14 days of this order and Mr. Harvey`s affidavit shall be filed within 14 days of this order)
PDF:
Date: 10/25/2002
Proceedings: Notice of Hearing issued (hearing set for January 16 and 17, 2003; 9:00 a.m.; Crystal River, FL).
PDF:
Date: 10/25/2002
Proceedings: Order of Pre-hearing Instructions issued.
PDF:
Date: 10/24/2002
Proceedings: Department of Environmental Protection`s Response to Order to Show Cause (filed via facsimile).
PDF:
Date: 10/24/2002
Proceedings: Petitioner`s Response to Order to Show Cause filed.
PDF:
Date: 10/22/2002
Proceedings: Joint Response to Initial Order (filed by W. Beason via facsimile).
PDF:
Date: 10/15/2002
Proceedings: Letter to Judge Stampelos from R. Desroches withdrawing request for hearing for case nos. 02-3837, 02-3876 (filed via facsimile).
PDF:
Date: 10/11/2002
Proceedings: Order to Show Cause issued. (on or before October 25, 2002, each Petitioner may file a response, with the Division of Administrative Hearings, to both of the motions to dismiss)
PDF:
Date: 10/10/2002
Proceedings: Order Consolidating Cases issued. (consolidated cases are: 02-003639, 02-003640, 02-003817, 02-003818, 02-003819, 02-003823, 02-003824, 02-003825, 02-003826, 02-003827, 02-003829, 02-003830, 02-003831, 02-003832, 02-003833, 02-003834, 02-003835, 02-003836, 02-003837, 02-003838, 02-003839, 02-003860, 02-003861, 02-003862, 02-003863, 02-003865, 02-003866, 02-003867, 02-003868, 02-003869, 02-003870, 02-003871, 02-003872, 02-003873, 02-003874, 02-003875, 02-003876, 02-003877, 02-003878, 02-003879, 02-003880)
PDF:
Date: 10/04/2002
Proceedings: Initial Order issued.
PDF:
Date: 09/23/2002
Proceedings: SMG, Inc`s Motion to Dismiss Petition for Administrative Proceeding filed.
PDF:
Date: 09/19/2002
Proceedings: Department of Environmental Protection`s Notice of Related Cases & Motion to Consolidate filed.
PDF:
Date: 09/19/2002
Proceedings: Notice of Permit Amendment filed.
PDF:
Date: 09/19/2002
Proceedings: Petition for Administrative Proceeding filed.
PDF:
Date: 09/19/2002
Proceedings: Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.

Case Information

Judge:
CHARLES A. STAMPELOS
Date Filed:
09/19/2002
Date Assignment:
10/08/2002
Last Docket Entry:
06/03/2003
Location:
Crystal River, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

Counsels

Related Florida Statute(s) (2):