02-003871 Walter Pierce And Annette Pierce vs. S.M.G., Inc. And Department Of Environmental Protection Status: Closed Recommended Order on Monday, April 21, 2003.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOUIS A. GERACE, et al., )

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

Petitioners, ) 02 - 3817 -- 02 - 3819

) 02 - 3823 -- 02 - 3827

vs. ) 02 - 3829 -- 02 - 3836

) 02 - 3838 -- 02 - 3839

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

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

) 02 - 3877 -- 02 - 3880

Respondents. )

)

RECOMMENDED ORDER

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

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

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

hearing was conducted by Charles A. Stampelos, Administrative

Law Judge, in Crystal River, Florida.

APPEARANCES

For Petitioners: Morris Harvey, Qualified Representative

8055 No rth Dacca Terrace

Dunnellon, Florida 34433

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

Susan L. Stephens, Esquire

Holland & Knight, LLP

315 South Calhoun Street, Suite 600

Tallahassee, Florida 32301

Denise VanNess, Esquire

VanNess & VanNess, P.A.

12 05 North Meeting Tree Boulevard

Crystal River, Florida 34429

For Respondent Department of Environmental Protection:

W. Douglas Beason, Esquire

3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

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

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

curtain incinerator will be operated in accordance with

applicable statutory and rule provisions.

PRELIMINARY S TATEMENT

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

construction permit for the construction of an air curtain

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

Department of Environmental Protection (Department) gave notice

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

SMG for the construction of an air curtain incinerator. Notice

of the proposed agency action was published in the Citrus Times

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

the con struction permit were filed within 14 days of publication

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

about August 6, 2001.

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

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

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

AO.

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

permit amendment to SMG to the previously issued air operating

permit in order to incorporate certain solid waste management

provisions into the air operating permit. This amended permit

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

003.

In August 2002, the Petitioners filed separate, but

virtually identical petitions with the Department, challenging

both the air construction and air operating permits.

In September 2002, the Petitioners filed a second set of

individual petitions challenging the amendment to the air

operating permit.

While all of the petitions were pending before the

Department, SMG filed m otions to dismiss both the original

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

the Department referred all of the petitions to the Division of

Administrative Hearings (Division) for the assignment of an

administrative law judge to con duct a hearing.

After the petitions were referred to the Division, on

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

to file a response to the motions to dismiss or allowing

Petitioners to elect to file joint responses with other

Petition ers.

Thereafter, the Petitioners filed one response to the

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

the response filed on their behalf by Morris Harvey, a

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

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

all of the Petitioners.)

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

motions to dismiss. Petitioners were allowed to file amended

petitions.

On November 14, 2002, Petitioners filed one Amended

Pet ition, which superceded all previous petitions filed in the

above - styled proceeding.

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

Relinquishing Jurisdiction requesting a final order dismissing

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

of material fact regarding whether Petitioners timely filed

their challenges to the air construction permit issued by the

Department.

On December 18, 2002, an Order was issued relinquishing

jurisdiction to the Department for further proceedings re garding

only that portion of the Amended Petition challenging the

issuance of the construction permit. It was specifically

determined that there were no apparent disputes of material fact

regarding whether the original petitions, challenging the

issuance of the construction permit, were timely filed. Given

the undisputed facts of record, it was determined that the

initial petitions, challenging the issuance of the construction

permit, were untimely filed, hence, the Order relinquishing

jurisdiction to the Department.

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

remaining challenges pending before the Division.

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

motion to dismiss as to Petitioners' challenges to the amendment

to the operati ng permit because the Amended Petition did not

allege any substantial interest that would be effected by the

permit amendment. However, the Order denied the motion to

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

provided that a recomme nded order of dismissal of the challenge

to the permit amendment would be made in the recommended order

following the final hearing. In accordance with the prior

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

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

recommended that Petitioners' challenge to the amended permit be

dismissed.

On February 10, 2003, SMG filed a motion requesting

relinquishment of jurisdiction to the Department. SMG contended

that all remaining challenges t o the operating permit should be

dismissed. The Department and the Petitioners opposed the

motion. The motion was denied.

The final hearing on the air operation permit was held on

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

continued fro m the previously scheduled hearing dates of

January 16 - 17, 2003.

Prior to the commencement of the evidentiary portion of the

final hearing, approximately 13 of the Petitioners who attended

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

Harvey (and Leonard Kaplan) to appear as their qualified

representative in this proceeding. Mr. Harvey represented that

he was representing all of the Petitioners and the

representation was accepted and Mr. Harvey was authorized to

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

Petitioners.

At the final hearing, SMG presented the testimony of Sean

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

environmental engineer and President of Southern Environmental

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

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

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

The Department presented the testimony of James L.

McDonald, an air permitting engineer with the S outhwest District

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

admitted in evidence. The Department also adopted the testimony

of Mr. Gerrits.

Petitioners presented the testimony of Annette Pierce,

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

Washington, Elmore Futscher, Martha Futscher, Leonard Kaplan,

Dorothy Hazzard, Sharlene Rubin, Anthony Washington, and Morris

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

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

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

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

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

On rebuttal, SMG offered the testimony of Kathy Warrington,

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

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

Moore, and Randy Morgan.

The four - volume Transcript of the final hearing was filed

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

proposed recommended orders, and each has been considered in

preparing this Recommended Order.

FINDINGS OF FACT

The Parties

1. The Department is the state agency responsible for

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

constru ction and operation of air curtain incinerators in the

State of Florida.

2. SMG is a contracting company, with residential,

trucking, agricultural, and commercial driver's license

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

curtain incine rator.

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

vicinity of the constructed and operational air curtain

incinerator. For the most part, Petitioners reside northeast,

east, or southeast of the site. The Petitioners demonstrated

their standing in this proceeding.

SMG's Construction Permit

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

construction permit to the Department's Southwest District

Office. The application sought authorization to construct an

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

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

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

wood waste.

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

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

0170360 - 001 - AC). A copy of the Notice of Intent was published

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

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

construction permit for the proposed air curtain incinerator.

The construction permit authorized the construction of a

McPherson Systems, Inc. - Model M30E air curtain destructor

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

facility.

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

November 2001 , SMG constructed an air curtain incinerator on

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

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

property owned by the Gerrits family. See Endnote 1.

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

McPherson Systems, Inc. - Model M30E air curtain incinerator

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

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

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

air fans are powered by an electric engine.

10. The manufacture designs and specifications for the

McPherson model were submitted with the application for the air

construction permit and admitted in evidence.

11. Construction of a portable air curtain incinerator with

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

contemplated by the air construction permit. Although cheaper,

SMG instead chose to install the McPherson model that would

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

was operated by electricity.

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

efficient, reliable model of air curtain incinerator.

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

by the construction permit is considered ex empt from permitting.

14. An engine operated by electricity has no emissions and

therefore does not require an air permit from the Department.

15. The Department could not require a permit for the

blower/fan system alone.

16. The operating permit supercedes the construction

permit, except as amended.

Testing after Construction of the Incinerator

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

curtain incinerator.

18. Pursuant to Special Condition 22 of the air

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

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

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

Environmental Services, Inc. The results of the initial VE

compliance test were within the opacity limits contained in the

construction permit.

19. Specific Condition 19 of the construction permit

requires SMG to maintain daily operating logs of the air curtain

incinerator's daily operations.

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

applicant is required to demonstrate compliance with the

Department's rules and with the conditions of the construction

permit. The Department requires an applicant for an operating

permit to submit copies of recent daily operating records for

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

construction permit. These operating records are submitted in

order for the Department to determine whether the applicant is

complying with the applicable emissions standards and that the

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

as required by the construction permit.

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

incinerator, Specific Condition 28 of the construction permit

required SMG to file an application for an air operating permit

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

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

of at least two recent weeks of daily operating logs.

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

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

construction permit's opacity limits.

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

air operation permit to the Department. The application was

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

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

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

showing that the incinerator operators were trained, and

photographs of the incinerator in operation. SMG submitted the

documentation req uired under the construction permit.

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

inspector for the Department's Southwest District Office,

performed an unannounced inspection and conducted a VE test in

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

complaining of odors present. Excessive visible emissions were

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

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

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

green leaves and inadequate drying of the materials to be burned

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

"materials need to be prepared better for burning."

25. As a result of this unannounced inspection and the

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

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

SMG planned to implement to correct the problem.

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

incinerator and called a McPherson mechanical contractor to come

out and adjust the blade angle. Southern Environmental Services

conducted another VE test to ensure the problem had been

corrected.

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

Environmental Services on - site which showed com pliance with the

construction permit.

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

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

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

results. SMG also implemented better operat ional procedures.

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

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

showed compliance with the opacity limits in the construction

permit and the results were submitted to the Department. 2

30. Mr. Nelson, an environmental engineer with Southern

Environmental Sciences, testified that he has been involved in

preparing approximately two dozen applications for air curtain

incinerators and has conducted probably "thousands" of visible

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

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

air curtain incinerators in operation and has conducted VE tests

on about 20 of them.

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

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

and fugitive emissions as other such incinerators he is familiar

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

SMG incinerator is similar to that emitted from other air

curtain in cinerators, and that the fugitive emissions from the

SMG incinerator were probably less than others he is familiar

with.

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

taken reasonable measures to minimize odor, smoke and

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

Nelson likewise opined that the SMG incinerator is well run,

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

been on the SMG site twice when the incinerator was operating

and burning wood products.)

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

meets the requirements necessary to obtain an air operating

permit from the Department and has demonstrated that it has

complied with the conditions of its construction permit.

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

Department's Southwest District Office. He testified that he

has inspected the operations of other air curtain incinerators

over the last 15 years.

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

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

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

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

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

Southwest District Office of the Department. He is responsible

for rev iewing all applications for air curtain incinerators in

the Southwest District and has reviewed applications for between

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

applications.

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

records attached to the operating permit application, and his

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

SMG had demonstrated compliance with the conditions of the

construction permit and recommended issuance of the operating

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

hearing.

38. SMG provided assurance that the DeRosa Fire Department

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

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

air operating permit.

Operatio n of the Air Curtain Incinerator

40. Emissions from the incinerator are controlled by a

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

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

particles and recirculates them to enhance com bustion and reduce

smoke. The underfire air introduces air underneath the air

curtain to ensure complete combustion and minimize opacity at

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

provides a safe combustion chamber, and the refractory pa nels

keep excess heat from escaping. The upper chamber refractory

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

retention time in the burner to better control opacity and

sparks. The stainless screen spark arrestor also controls

sparks a nd debris from leaving the burner.

41. The operating permit application proposed the use of an

air curtain blower along with a manifold to provide forced air

to the burning pit. According to the manufacturer

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

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

flames in the burn pit receive enough oxygen to combust

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

complete burn, which reduces smoke and odor.

42. The combustion t emperature for the burning pit ranges

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

43. The operating permit allows a maximum charging rate of

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

any consecutive 12 month period. The incine rator has been

operating below the maximum charging rate.

44. The operating permit limits the hours of operation

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

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

and maintenance logs, the incinerator has been operated below

this limit.

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

296.401(7), Florida Administrative Code, allows the burning of

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

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

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

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

ties, or other creosoted lumber, chemically treated or painted

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

be burned in the incinerator.

46. During its operation, the incinerator only burned wood

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

materials are inspected before being burned in order to ensure

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

materials are observed, they are removed before the waste is

burned. See Finding of Fact 24.

47. The operating permit allows visible emissions during

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

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

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

Florida Administrative Code. The McPherson model is designed to

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

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

Soich on April 19, 2002) demonstrated compliance with this

requirement. Id.

48. The operating permit limits visible emissions outside

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

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

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

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

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

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

204.800(8)(b)74, Florida Administrative Code. (Rule 62 -

296.401(7)(a) permits up to 20 percent opacity. The ten percent

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

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

are more stringent than those contained in the construction

permit, which allows visible emissions of up to 20 percent

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

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

5 percent opacity or 1/4 Ringelmann measured by standard

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

49. The VE test results submitted by SMG demonstrate

compliance with the opacity limits in the operating p ermit and

with the opacity limits in the construction permit for the days

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

50. The operating permit requires that the incinerator must

be attended at all times while materials are being burned and

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

certified operator is in attendance whenever the incinerator is

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

fence has been constructed around the property.

51. The operating permit prohibit s starting the incinerator

before sunrise and requires that all charging of the incinerator

be completely stopped before sunset as required by Rule 62 -

296.401(7)(h), Florida Administrative Code. Mr. Gerrits

testified that the incinerator is never started before sunrise

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

that the incinerator is never charged after sunset and that

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

These practices are consistent with the Operations and

Maintenance Guide for the incinerator.

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

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

point where the ash begins to impede combustion, whichever

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

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

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

regularly removed from the burning pit every third day to keep

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

reduces smoke.

53. The operating permit provides that material shall not

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

protrude above the air curtain. Testimony established that the

SMG incinerator is properly loaded.

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

incinerator be trained in the proper operation and maintenance

of the incinerator and that an operations and maintenance guide

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

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

course to learn how to operate the incinerator in accordance

with Department regulations and good operating practices, and

certificates attesting to that training were submitted with the

application for the operating per mit. An Operations and

Maintenance Guide was submitted with the application for the

construction permit.

55. The operating permit requires the maintenance of a

daily operating log. The daily operating log must be maintained

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

for inspection by the Department upon request. SMG currently

maintains a daily operating log that meets the requirements of

the construction permit. SMG submits those daily logs to the

Department on a monthly basis after th e Department requested

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

daily operating hours, total charges, total material charged in

tons, average hourly charging rate, any maintenance performed,

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

of record contain this information and have been initialed by

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

operated.

56. SMG operators responsible for preparing the logs have

no incentive to indicate the incinerator is not oper ating on

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

misstatement on the operating logs could result in enforcement

action by the Department and being fired by SMG.

57. The operating permit requires that all reasonable

precautions be undertaken to prevent and control the generation

of unconfined emissions of particulate matter in accordance with

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

reasonable precautions to prevent and control the generation of

unconfined emissions of pa rticulate matter, including paving the

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

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

that addresses the incinerator, approaching the incinerator at a

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

carefully. SMG voluntarily added a sprinkler system on all four

corners of the burning pit that was not contemplated by the

construction permit. The Department witness Mr. McDonald

testified that this provided an ad ditional method to control

unconfined emissions.

58. Although the construction permit and proposed permit do

not contain conditions prohibiting the burning of green wood or

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

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

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

emissions from the incinerator. (Moisture is the primary factor

that inhibits burning and causes smoke and potentially odor.)

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

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

incinerator are instructed to dump it into a pile. SMG

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

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

Harvestable pieces of wood and dirt are removed to separate

staging areas. The remaining wood waste is separated into long

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

windrows are flipped or rolled over in the direction of the

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

closest to the incinerator is burned, and subsequent windrows

are rolled over in its place.

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

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

adjacent to the incinerator are also kept wetted by the

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

a composter for use as Class - A unrestricted compost.

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

wheth er the incinerator will operate that day, in accordance

with standard operational practices. The operator checks the

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

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

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

begin operating the incinerator again. These procedures are not

contained in any permit conditions.

62. The purpose of not operating during or immediately

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

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

affect odor.

63. The purpose of not operating during windy conditions is

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

can also affect odor and visible emissions.

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

conducts yard maintenance, maintains the waste windrows, and

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

located adjacent to the incinerator and is run when the

incinerator is shut down.

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

exceeded and objectionable odors 3 not generated, the operating

permit requires that the incinerator's fan shall continue to

operate after the last charge of the day until all combustion

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

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

Gerrits testified that the fan is kept running until the flames

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

the fan is switched off .

66. The operating permit requires that the testing of

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

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

conducted when the highest emissions can reasonable be expected

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

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

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

that the incinerator was operating within the opacity limits of

its permit even when operating at close to maximum capacity.

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

with the specific conditions of both the construction and

operating permit. See Finding of Fact 29.

67. The test method for visible emissions required by both

the construction permit and the operating permit is EPA Method

9, adopted and incorporated by reference at Rule 62 -

204.800(8)(b)74, Florida Administrative Code. (Method 22 is not

required pursuant to Department rules for compliance testing of

an a ir curtain incinerator.) Testimony established that Method

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

incinerator.

68. As required by both the construction and operating

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

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

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

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

are approximately 1,500 feet away.

Petitioners' Challenge

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

or southeast of the incinerator. One Petitioner resides

approximately three - tenths of a mile southeast of the

incinerator; others reside at greater distances, up to

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

70. Each of the Petitioners who testified have resided in

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

incinerator.

71. The Petitioners who testified were credible and well -

intentioned. Each of these Petitioners maintained daily logs

cov ering several months when the incinerator was authorized to

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

logs for several days. They noted their observations and

perceptions in the logs.

72. Admittedly, Petitioners are not experts in the

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

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

smelled, believing that the odors and noise came from the

incinerator. Some recorded that they smelled the strong odor of

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

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

hearing. One witness described the experience as being a

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

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

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

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

which Petitioners contend is the prevailing wind. Some

witnesses only smelled the odor during the night and not during

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

odor and noise, or one and not the other.

73. Some believed the noise coming from the incinerator was

a major problem. At least two witnesses who live approximately

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

incinerator site, described the noise as being like a jet

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

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

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

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

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

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

74. Petitioners documented their con cerns which are

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

to the Department and local government.

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

Petitioners (who kept logs) were given to Petitioner Martha

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

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

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

Petitioners' Exhibit F1. The master list contains recorded

observations from May 2002 throu gh January 2003. The master

list contains a representation of when the incinerator started

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

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

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

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

initials, and the approximate distance each observer lived from

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

perception noted.

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

actual logs maintained by SMG as to when the incinerator was

operational.

77. There also appears to be several differences in

observations between the Petitioners' master list and other

evidence which indicates when Mr. So ich inspected the

incinerator and determined that the incinerator was operating

satisfactorily. Compare Petitioners' Exhibit 2 with

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

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

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

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

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

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

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

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

2002, was performed from 10:29 a.m. to 11:59 a.m. and showed

compliance with opacity limits.

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

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

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

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

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

opined that it should be very rare to smell objectionable odors

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

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

list that a Petitioner commented that the incinerator was

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

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

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

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

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

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

not operating due to recent rain.

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

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

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

inspect the facility in the evening.

81. Petitioners also provided, as evidence in support of

their position, six videotapes of the incinerator for

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

2002, and January 10, 2003. (Mr. Harvey took the videotapes

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

incinerator.)

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

emanating from the operational incinerator. On September 19,

2002, the incinerator was not running according to the SMG log.

There was a malfunction which was reported to the Department.

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

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

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

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

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

observed smoke from ashes on September 19, 2002.)

83. While the Petitione rs proved that there was smoke

emanating from the operation of the incinerator on the days

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

this did not necessarily prove that the emissions exceeded the

requirements of the Department rules or that there was an

objectionable odor emanating therefrom.

84. Mr. Stoich observed the videotapes played during the

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

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

level of opacit y cannot be determined from photographs and

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

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

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

have investigated further and performed an inspection, including

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

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

operation, he could not determine whether a violation had

occurred.

85. There was persuasive evi dence that compliance with the

opacity limits of a permit can only be determined through VE

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

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

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

averaging to ensure that the test is valid.

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

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

when in fact it is in compliance with Department rules.

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

exception, see Finding of Fact 24, demonstrated compliance with

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

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

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

showed the incinerator was operating in compliance with the

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

88. The Department relies on its compliance inspectors,

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

emission source is causing an objectionable odor.

89. There does not appear to be an approved Department

method for measuring odors from incinerators. (Mr. Nelson

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

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

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

his years of experience, he has developed certain methods for

determining whether a facility is emitting an objectionable odor

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

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

winds. He also travels around the facility to determine the

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

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

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

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

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

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

Finally, he may bring along another Department employee to

determine whether the other individual finds the odor

objectionable.

91. Enforcement actions can be taken if objectionable odors

are detected.

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

incinerator at least nine times in the past year and never

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

incinerator was not operational.

93. On rebuttal, several residents of the area testified

that they had not experienced objectionabl e odors from the

incinerator.

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

Department, testified that an open land - clearing burn emits

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

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

incinerator. Mr. Stevens personally inspected the operation of

the incinerator and thought it was a very safe operation.

95. Randy Morgan, a wildlife firefighter and certified

burner with the Division of Forestry with over 16 years of

experience in fire control, testified that approximately 50,000

acres of the state land burns occurred in Citrus County last

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

odor. In addition, approximately 50 open burn authorizations

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

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

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

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

some kind ap proximately ten months out of the year.

96. Other witnesses testified that, given the rural nature

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

on a regular basis.

Ultimate Findings of Fact

97. Credible evidence established that SMG meets or exceeds

the requirements in the construction permit to reduce smoke,

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

operating permit.

98. Credible evidence established that SMG employs the

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

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

state.

99. Credible evidence established that the SMG incinerator

is operated in accordance with its construction permit.

100. Credible evidence established that the SMG

incinerator can b e expected to be operated in accordance with

its operating permit.

101. Credible evidence established that the SMG

incinerator is operated in accordance with Department rules.

102. In light of the foregoing, SMG has demonstrated

reasonable assurance that its a ir curtain incinerator has been

operated in compliance with the construction permit and that the

incinerator can continue to be operated in accordance with the

conditions of the operating permit.

CONCLUSIONS OF LAW

103. The Division of Administrative Hearings has

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

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

Statutes.

104. Petitioners have standing in this proceeding.

105. The purpose of this proceeding, conducted pursuant to

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

agency action, not to review action taken earlier and

preliminarily." McDonald v. Florida Department of Banking and

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

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

asserting the affirmative in the proceeding, here SMG. Florida

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

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

intent to grant a permit application, the applicant has the

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

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

context of this proceeding, SMG had the initial burden of

showing that it provided reasonable assurance that the operation

of the air curtain incinerator is consistent with the applicable

statutes and rules of the Department.

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

the proposed permit should be issued, the Petitioners, here

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

support the allegations of its petition, here the Amended

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

Petitioners presented "contrary evidence of equivalent equality"

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

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

at 789 - 790.

108. Petitioners cannot carry the burden of presenting

contrary evidence by mere speculation concerning what "might"

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

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

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

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

one of reasonable assurances, not absolute guarantees, that the

applicable conditions for the issuance of a permit have been

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

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

1319, 1325 (DER Feb. 19, 1990).

110. "Reasonable assurance" contemplates "a substantial

likelihood that the project will be successfully implemented."

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

644, 648 (Fla. 3d DCA 1992). See also , Hamilton County Board of

County Commissioners v. Florida Department of Environmental

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

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

compliance with applicable permit criteria. Council of Lower

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

112. In order to demonstrate entitlement to an air

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

an air construction permit, here SMG, must demonstrate

compliance with the conditions of the construction permit. Rule

62 - 210.300(2), Florida Administrative Code. To do that, the

construction permit requires the permit holder to include with

the application for operating permit copies of at least two

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

emissions test showing compliance with the opacity limits in the

construction permit.

113. An air curtain incinerator must me et the specific

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

Florida Administrative Code, and the general emissions standards

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

Code.

114. The specific conditions of the operating pe rmit are

consistent with the applicable requirements of Chapter 62 - 296,

Florida Administrative Code, and in particular, Rules 62 -

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

general conditions of the operating permit are consistent with

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

115. On a preliminary basis, the Department determined

that SMG had provided reasonable assurance to indicate that the

operation of the air curtain incinerator would comply with the

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

297, Florida Administrative Code. As a measure of assurance

that SMG would comply with the applicable provisions of these

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

4.070(3), Florida Administrative Code, placed 38 specific

conditions on the proposed permit which included, among other

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

Administrative Code, dealing specifically with air curtain

incinerators. Additionally, applicable genera l conditions from

Rule 62 - 4.160, Florida Administrative Code, are incorporated

into the permit. The amendment to the permit has another

specific condition governing the management and storage of the

waste on - site.

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

Administrative Code, provide that an incinerator shall not cause

or contribute to an objectionable odor. An objectionable odor

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

as any odor that "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."

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

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

noxious that [it is] legally classified as 'objectionable

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

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

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

the Department agreed with the conclusion reached by the ALJ

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

the operation of the Facility would likely create odors so

noxious as to be injurious to human health or to unreasonable

interfere with the use and enjoyment of property by other

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

site." Id. )

118. A nuisance is defined as an unreasonable interference

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

actionable nu isance is the rule of reasonableness of the use

complained of under the circumstances. Lee v. Florida Public

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

1962). The test to be applied is of the effect of the offending

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

disposition and ordinary health and possessing the average and

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

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

119. A party pleading nuisance must also establish that

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

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

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

26, 29 - 30 (Fla. 1st DCA 1976), cert . denied , 339 So. 2d 1171

(Fla. 197 6).

120. The persuasive evidence indicates that SMG

affirmatively provided, during this de novo hearing, reasonable

assurance that the operation of the air curtain incinerator will

not discharge, emit, or cause pollution in contravention of

Department standard s or rules. The specific conditions recited

in the operation permit are sufficient to assure compliance.

121. Petitioners documented their concerns. Noise levels

and odors, which Petitioners found objectionable, were

documented. Four days of videotapes of the incinerator in

operation, as well as daily logs maintained by Petitioners,

demonstrated some of Petitioners' concerns.

122. The videotapes indicate that there was smoke

emanating from the incinerator on those operational days.

However, Petitioners did not provide any scientific evidence,

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

on those or other occasions, exceeded the opacity levels

established by the Department's rules. The persuasive evidence

indicates that a visible emission s test cannot be performed by

viewing photographs or a videotape.

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

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

on the days tested, in compliance with the Department opacity

rules.

124. F urthermore, while Petitioners have documented their

perception of objectionable noise emanating from the

incinerator, the Department does not regulate noise levels with

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

basis to deny the permit .

125. The persuasive evidence indicates there is no

scientific method of evaluating whether objectionable odors are

emanating from the air curtain incinerator. But see Department

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

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

gathered for testing for hydrogen sulfide emanating from a

construction and demolition debris disposal facility).

126. Petitioners, who live in proximity to the

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

daily basis and have documented their perceptions that odors

emanate from the incinerator, which they find objectionable.

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

Petitioners' odor complaints and the operation of the

inc inerator.

127. Nevertheless, Petitioners did not adequately rebut

the evidence presented by SMG and the Department that SMG has

given reasonable assurance that its air curtain incinerator will

operate and not cause or emit objectionable odors.

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

fugitive emissions. Petitioners did not sufficiently prove that

SMG could not operate the air curtain incinerator in accordance

with its operating permit, which requires SMG to take reasonable

precautions to control unconfined or fugitive emissions.

129. SMG demonstrated that the air curtain incinerator has

operated in compliance with the terms and conditions of its

construction permit and has provided reasonable assurance that

the incinerator will be operated in complian ce with the terms

and conditions of the operating permit.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department of Environmental Protection

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

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

conditions, including but not limited to the Specific Conditions

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

operation of an air curtain incinerator in Citrus County,

Florida. It is further recommended that Petitioners' challenge

to the amendment to the operating permit be dismissed. See

Preliminary Statement.

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

Tallahassee, Leon County, Florida. 5

______________________ _____________

CHARLES A. STAMPELOS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Fil ed with the Clerk of the

Division of Administrative Hearings

this 21st day of April, 2003.

ENDNOTES

1 / The construction permit authorized the construction of the

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

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

permit authorizes the incinerator to be located on the east or

west side of 6400 North Citrus Avenue. While mentioned in

Petitioners' Proposed Recommended Order, page 4, and mentioned

during ex amination during the hearing, Petitioners did not

challenge the change in location in the Amended Petition.

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

construction permit and the operating permit is EPA Method 9,

adopted and incorporat ed by reference at Rule 62 -

204.800(8)(b)74, Florida Administrative Code. EPA Method 9 is

the method used for the visible emissions tests conducted on the

SMG incinerator.

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

suffer, allow or permit the discharge of air pollutants which

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

296.320(2), Florida Administrative Code. See also Rule 62 -

401(1)(b), Florida Administrative Code; Conclusion of Law 116.

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

material placed in the incinerator during the period starting

with the initial loading and ending 60 minutes after initial

combustion, for the first 60 minute period after initial

combustion and 2) the amount of material placed in the

incinerator for any 60 minute period thereafter."

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

Petitioners by and through Mr. Morris Harvey, Petitioners'

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

Administrative Code.

CO PIES FURNISHED :

Morris Harvey, Qualified Representative

8055 North Dacca Terrace

Dunnellon, Florida 34433

W. Douglas Beason, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35

Tallahassee, Fl orida 32399 - 3000

Susan L. Stephens, Esquire

Holland & Knight, LLP

315 South Calhoun Street, Suite 600

Tallahassee, Florida 32301

Denise VanNess, Esquire

VanNess & VanNess, P.A.

1205 North Meeting Tree Boulevard

Crystal River, Florida 34429

David B. S truhs, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Kathy C. Carter, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallaha ssee, Florida 32399 - 3000

Teri L. Donaldson, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO FILE EXCEPTIONS

All parties have the right to submit writ ten 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.