95-004817 Patricia D&Apos;Hondt vs. Construction Burning, Inc., And Department Of Environmental Protection
 Status: Closed
Recommended Order on Wednesday, May 22, 1996.


View Dockets  
Summary: Applicant entitled to permit to construct and operate new air curtain incinerator. Poor operating history limits term of permit to unexpired term of old.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8PATRICIA D'HONDT, )

11)

12Petitioner, )

14)

15vs. ) CASE NO. 95-4817

20)

21CONSTRUCTION BURNING, INC. )

25and DEPARTMENT OF )

29ENVIRONMENTAL PROTECTION, )

32)

33Respondents. )

35___________________________)

36RECOMMENDED ORDER

38Robert E. Meale, Hearing Officer of the Division of Administrative

48Hearings, conducted the final hearing in Ft. Myers, Florida, on March 20, 1996.

61APPEARANCES

62For Petitioner: Patricia d'Hondt, pro se

686288 Briarwood Terrace

71Ft. Myers, Florida 33912

75For Respondent Connie D. Harvey

80Construction Akerman, Senterfitt & Eidson, P.A.

86Burning, Inc.: 100 South Ashley Street, Suite 1500

94Tampa, Florida 33602-5311

97For Respondent Stephen K. Tilbrook

102Department of Assistant General Counsel

107Environmental Department of Environmental Protection

112Protection: 3900 Commonwealth Boulevard

116Tallahassee, Florida 32399-2400

119STATEMENT OF THE ISSUE

123The issue is whether Construction Burning, Inc. is entitled to a permit to

136construct and operate an air curtain incinerator.

143PRELIMINARY STATEMENT

145On August 31, 1995, Respondent Department of Environmental Protection

154issued an Intent to Issue a permit to Respondent Construction Burning, Inc. for

167the construction and operation of an air curtain incinerator.

176By letter dated September 19, 1995, Petitioner challenged the issuance of

187the permit.

189At the hearing, the Department of Environmental Protection issued a new

200draft permit, which required Construction Burning, Inc. to discontinue operating

210an existing air curtain incinerator as a condition to obtaining the permit to

223operate a new air curtain incinerator.

229Petitioner called six witnesses and offered into evidence seven exhibits.

239Respondent Construction Burning, Inc. called two witnesses and offered into

249evidence four exhibits. Respondent Department of Environmental Protection

257called one witness and offered into evidence two exhibits. All exhibits were

269admitted except Petitioner Exhibits 5 and 6. Petitioner failed to file

280Petitioner Exhibit 7, so it is deemed withdrawn. The filing of the exhibit

293would not have changed the outcome of the case.

302The transcript was filed April 17, 1996. Each party filed a proposed

314recommended order. Rulings on the proposed findings of fact are in the

326appendix.

327FINDINGS OF FACT

3301. On June 8, 1995, Respondent Construction Burning, Inc. (Applicant)

340filed an application with Respondent Department of Environmental Protection

349(DEP) for the construction of a McPherson Systems, Inc. Model M40B Air Curtain

362Incinerator with a Model M16ACD Blower (Model 40).

3702. The application states that Applicant would use the Model 40 air

382curtain incinerator (ACI) "to combust and destroy landscape debris such as

393leaves, limbs, trunks, tree clippings, brush, pallets and clean wood that

404[Applicant] accepts from outside landscaping contractors."

4103. An ACI encloses a fire with four walls. The operator adds combustible

423material to the fire from an open top. The air curtain is an air stream

438generated by blowers directed over the fire. The air curtain helps the fire

451maintain the high temperatures required for effective combustion. The air

461curtain also creates a barrier to trap materials in the incinerator until more

474completely burned. In these ways, the ACI reduces emissions from the

485incinerator

4864. Petitioner proposes in the application the construction of a refractory

497walled burning pit 40 feet long, 12 feet wide, and 15 feet deep with blowers

512above and beneath the fire. The blower beneath the fire would help maintain

525high temperatures in the fire. The Model 40 ACI that is the subject of the

540application adds three ten-foot upper chamber walls, which assist in maintaining

551the integrity of the air curtain above the fire. The Model 40 ACI also features

566a fine-meshed cage to trap particulates and ash.

5745. The application states that the Model 40 ACI would reach temperatures

586from 2000 to 2500 degrees Fahrenheit and would have a maximum incineration rate

599of 25 tons per hour of clean landclearing or landscaping debris, producing 1000

612pounds per hour of sanitary ash. The application requests a permit to operate

625the Model 40 ACI 9.5 hours daily, five days a week.

6366. The application assures that, in terms of visible emissions, the Model

64840 ACI would generate only 5 percent opacity, except for 35 percent opacity in

662the 30-minute startup period.

6667. On August 31, 1995, DEP issued its Intent to Issue. The permit notes

680that this is the second ACI at the site. Specific Condition 4 prohibits the

694facility from storing more combustible material than can be burned in 30 days

707during normal operating hours. If either unit becomes inoperative, Specific

717Condition 4 requires that the facility stop accepting material after it reaches

7296000 tons onsite, until the onsite material is reduced to less than 5600 tons.

7438. Specific Condition 9 requires that Applicant discontinue use of the

754Model 40 ACI anytime that it is performing inadequately due to overloading,

766neglect, or other reasons. Specific Condition 12 sets the maximum burning rate

778at 50,000 tons per hour.

7849. Specific Conditions 13 and 14 address visible emissions. Specific

794Condition 13 prohibits no more than five percent opacity outside of startup,

806except that opacity up to 20 percent is allowed for not more than three minutes

821in any one hour. Specific Condition 14 allows opacity of up to 35 percent

835averaged over a six-minute period during startup, which is the first 30 minutes

848of operation.

85010. Specific Condition 15 limits the materials to be burned in the Model

86340 ACI to "wood wastes consisting of trees, logs, large brush, stumps relatively

876free of soil, unbagged leaves and yard trash, tree surgeon debris, and clean dry

890lumber such as pallets."

89411. At the hearing, DEP produced an undated draft permit for the Model 40

908ACI. The only change from the August 31, 1995, permit is that the draft permit

923requires Applicant to remove the existing ACI from the facility.

93312. Applicant has been operating a McPherson Model 30 ACI at the same

946location as that proposed for the Model 40 ACI. Formerly zoned heavy industrial,

959the location, which is 16351 Old Highway 41 in Ft. Myers, is presently zoned for

974the operation of an ACI, and the facility is surrounded by industrial uses.

98713. Applicant has been operating the Model 30 ACI at the present location

1000since December 1992 under a permit dated February 15, 1993. The permit for the

1014Model 30 ACI, which expires February 15, 1998, contains similar Specific

1025Conditions as those under contained in the new permit, except that the old

1038permit does not limit the amount of material that can be stored onsite.

105114. The Model 30 ACI is different from the Model 40 ACI. The Model 30 ACI

1067is an older, smaller model with a capacity of 20 tons per hour. Lacking the

1082three-walled upper chamber, the Model 30 ACI cannot maintain the integrity of

1094the air curtain as well as can the Model 40 ACI. The Model 30 ACI has a larger-

1112meshed screen than the Model 40 ACI, so larger particulates and ash can escape

1126the incinerator.

112815. Compared to the Model 40 ACI, the Model 30 ACI is manufactured with

1142less durable components, which are more vulnerable to damage from the hot steam

1155produced from the combustion of exceptionally moist vegetation, such as

1165Brazilian Pepper and melaleuca. Also, Applicant's Model 30 ACI either lacks a

1177below-fire blower or its below-fire blower is broken, so as to impede effective

1190combustion. Applicant's Model 30 ACI is in dilapidated condition, leaving it

1201both unsafe and ineffective.

120516. The operating history of Applicant's Model 30 ACI has been uneven.

1217Applicant's Model 30 ACI has never failed a Class III inspection, which is a 90-

1232minute inspection conducted annually. Applicant's Model 30 ACI has failed one

1243of five Class II inspections, which are 30-minute visible-emissions inspections.

1253Applicant's Model 30 ACI has passed most of about 17 Class I inspections, but

1267its failures have resulted in two consent orders, including one in which DEP

1280fined Applicant $2000.

128317. On April 4, 1994, a defective wall in Applicant's Model 30 ACI allowed

1297hot embers to escape and ignite a large fire on the grounds of the facility.

1312The fire required many hours of firefighting before it could be extinguished.

132418. However, Applicant has since adopted a firefighting plan and installed

1335sprinklers on the grounds. The proposed limitation of onsite vegetative debris

1346would further reduce the risk of fires escaping from the Model 40 ACI.

135919. DEP produced some, but not all, field investigation reports for

1370Applicant's facility. On June 9, 1994, DEP inspectors visited the site after

1382receiving complaints of heavy smoke in the area. After an investigation, they

1394prohibited Applicant from accepting new material for three weeks, presumably so

1405Applicant would be under less pressure to burn vegetative material that had not

1418dried sufficiently to burn efficiently and without visible emissions.

142720. On July 5, 1994, a DEP inspector visited the site after receiving a

1441complaint and found brown and white smoke of 15-30 percent opacity emanating

1453from the Model 30 ACI, largely due to excessive moisture in the vegetative

1466material being added to the incinerator. A week later, at mid-day, a DEP

1479inspector visited the site and saw white smoke of 30-50 percent opacity for one

1493minute, followed eventually by five percent opacity.

150021. On August 24, 1994, a DEP inspector noticed brown smoke emanating from

1513the Model 30 ACI at about 4:00 pm. The opacity was 10-25 percent. Applicant

1527had allowed a log to protrude through the air curtain, which allowed smoke to

1541escape from the incinerator.

154522. On November 17, 1994, two DEP inspectors visited the site and noted

1558brown smoke emanating from the Model 30 ACI with 10-25 percent opacity.

1570Applicant's representative explained that the walls of the Model 30 ACI were

1582damaged and allowed the smoke to escape from the incinerator. The

1593representative assured the DEP inspectors that a replacement wall was onsite and

1605maintenance was soon to be undertaken.

161123. DEP conducted T-screen modeling to determine whether particulate

1620emissions from the Model 40 ACI would be below the ambient air quality standards

1634within one-half mile of the facility. DEP determined that, under the worst-case

1646situation, proper operation of the Model 40 ACI would not have an adverse impact

1660within one-half mile of the facility.

166624. Applicant has not, at all times, operated the Model 30 ACI in a safe

1681and effective manner, especially with respect to the moisture content of loads

1693added to the ACI. Hot steam emerging from excessively moist loads has damaged

1706the walls of the Model 30 ACI and shortened its useful life. The damage to the

1722walls has in turn impaired the ability of the Model 30 ACI to burn safely and

1738efficiently the vegetative material added to the unit, leading to one serious

1750fire and many violations of DEP's standards for visible emissions.

176025. Petitioner presented evidence of visible smoke and smoky odors

1770entering her home and the homes of other residents living in the vicinity of

1784Applicant's facility. Some of these incidents are attributable to Applicant,

1794and some are not.

179826. The Model 40 ACI would improve the conditions of which Petitioner

1810complains. The new ACI would be a marked improvement over the old ACI, as long

1825as Applicant properly operates the Model 40 ACI and DEP routinely monitors

1837Applicant's operations and enforces the permit conditions and other provisions

1847of law.

184927. Under the circumstances, including Applicant's recent operating

1857history, Applicant has provided the necessary reasonable assurance for the

1867issuance of a new permit authorizing the construction and operation of the Model

188040 ACI described in the August 31, 1995, proposed permit, as modified by the

1894undated draft permit, together with the proposed general and special conditions.

1905However, the finding of reasonable assurance is predicated on a new provision in

1918the proposed permit limiting the term of the new permit to the termination date

1932of the original permit for the Model 30 ACI, which is February 15, 1998. Given

1947Applicant's recent operating history, Applicant has not provided the necessary

1957reasonable assurance for an operating permit with a longer term than the term

1970remaining under the old permit. If Applicant demonstrates that it can safely

1982and effectively operate the Model 40 ACI between now and February 15, 1998, it

1996can obtain a five-year permit at that time.

2004CONCLUSIONS OF LAW

200728. The Division of Administrative Hearings has jurisdiction over the

2017subject matter. Section 120.57(1), Florida Statutes. (All references to

2026Sections are to Florida Statutes. All references to Rules are to the Florida

2039Administrative Code.

204129. Applicant has the burden of proving entitlement to the permit.

2052Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st

2067DCA 1981).

206930. Section 403.087 authorizes DEP to issue a permit for the operation of

2082an ACI.

208431. Rule 62-4.070(1) provides that DEP shall issue a permit on specified

2096conditions only if Applicant provides "reasonable assurance" that the

2105construction will not discharge, emit, or cause pollution in violation of DEP

2117rules.

211832. Rule 62-4.070(4) generally limits permits to a duration of not more

2130than five years.

213333. Rule 62-4.070(5) requires DEP to "take into consideration a permit

2144applicant's violation of any Department rules at any installation when

2154determining whether the applicant has provided reasonable assurances that

2163Department standards will be met."

216834. Rule 62-296.401(6) sets forth the requirements imposed on ACIs. DEP

2179has incorporated these requirements into the proposed permit.

218735. Applicant has provided reasonable assurance for the issuance of a new

2199permit for the Model 40 ACI only for the duration remaining of the original

2213permit for the Model 30 ACI. The short duration is necessitated by Applicant's

2226serious problems in the recent past in terms of a fire and visible emissions, as

2241well as evidence of operator misuse of the Model 30 ACI. However, the Model 40

2256ACI, if properly operated, would be a great improvement over the dilapidated

2268Model 30 ACI, which would no longer be operated under the new permit.

2281RECOMMENDATION

2282It is

2284RECOMMENDED that the Department of Environmental Protection enter a final

2294order issuing a permit to Construction Burning, Inc. to replace the existing

2306McPherson Model 30 ACI with a Model 40 ACI, pursuant to the Intent to Issue

2321dated August 31, 1995, as modified by the undated draft permit requiring the

2334elimination of the Model 30 ACI, and operate the Model 40 ACI through February

234815, 1998, in accordance with all permit conditions and other provisions of law.

2361ENTERED on May 22, 1996, in Tallahassee, Florida.

2369___________________________________

2370ROBERT E. MEALE

2373Hearing Officer

2375Division of Administrative Hearings

2379The DeSoto Building

23821230 Apalachee Parkway

2385Tallahassee, Florida 32399-1550

2388(904) 488-9675

2390Filed with the Clerk of the

2396Division of Administrative Hearings

2400on May 22, 1996.

2404APPENDIX

2405Rulings on Petitioner's Proposed Findings

24101: rejected as not finding of fact.

24172: rejected as unsupported by the appropriate weight of the evidence.

24283-5: rejected as recitation of evidence.

24346: rejected as recitation of evidence. However, the failure of the DEP

2446witness to bring with him the file of Applicant is inexplicable.

24577: adopted or adopted in substance.

24638 (first two sentences): rejected as irrelevant.

24708 (remainder): adopted or adopted in substance, to the extent of a limit

2483on the term of the new permit.

24909: rejected as not finding of fact.

249710: rejected as recitation of evidence.

250311: rejected as unsupported by the appropriate weight of the evidence and

2515relevance.

2516Rulings on Applicant's Proposed Findings

25211-3: adopted or adopted in substance.

25274: rejected as not finding of fact.

25345: adopted or adopted in substance except as to the date on which

2547operation started. Applicant's president testified that Applicant began

2555operations in 1992.

25586-7: adopted or adopted in substance.

25648 (first sentence): rejected as unsupported by the appropriate weight of

2575the evidence.

25778 (remainder): adopted or adopted in substance, except for finding as to

2589when Applicant learned of damage to the Model 30 ACI.

25999: rejected as subordinate.

260310-14: adopted or adopted in substance.

260915-16: rejected as recitation of evidence.

261517: rejected as unsupported by the appropriate weight of the evidence.

262618: rejected as subordinate.

263019: rejected as recitation of evidence.

263620: rejected as unsupported by the appropriate weight of the evidence.

2647However, this remedy is available by law to DEP, regardless of the provisions of

2661the permit.

266321-22: adopted or adopted in substance.

266923: rejected as recitation of evidence.

267524-25 (first sentence): adopted or adopted in substance.

268325 (remainder): rejected as recitation of evidence.

269026: adopted or adopted in substance.

269627-30: rejected as recitation of evidence.

270231: rejected as legal argument.

2707Rulings on DEP's Proposed Findings

27121-24: adopted or adopted in substance.

271825: rejected as recitation of evidence.

272426-27: adopted or adopted in substance.

273028: rejected as unsupported by the appropriate weight of the evidence,

2741unless the term of the new permit is limited to the remaining term of the old

2757permit.

275829: rejected as legal argument.

276330-59: rejected as subordinate, except to the extent incorporated in the

2774recommended order.

2776COPIES FURNISHED:

2778Virginia B. Wetherell, Secretary

2782Department of Environmental Protection

2786Douglas Building

27883900 Commonwealth Boulevard

2791Tallahassee, Florida 32399-3000

2794Kenneth Plante, General Counsel

2798Department of Environmental Protection

2802Douglas Building

28043900 Commonwealth Boulevard

2807Tallahassee, Florida 32399-3000

2810Patricia d'Hondt

28126288 Briarwood Terrace

2815Ft. Myers, Florida 33912

2819Connie D. Harvey

2822Akerman, Senterfitt & Eidson, P.A.

2827100 South Ashley Street, Suite 1500

2833Tampa, Florida 33602-5311

2836Stephen K. Tilbrook

2839Assistant General Counsel

2842Department of Environmental Protection

28463900 Commonwealth Boulevard

2849Tallahassee, Florida 32399-2400

2852NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2858All parties have the right to submit written exceptions to this Recommended

2870Order. All agencies allow each party at least 10 days in which to submit

2884written exceptions. Some agencies allow a longer period within which to submit

2896written exceptions. You should contact the agency that will issue the final

2908order concerning agency rules on the deadline for filing exceptions to this

2920Recommended Order. Any exceptions to this Recommended Order should be filed

2931with the agency that will issue the final order.

Select the PDF icon to view the document.
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Date
Proceedings
Date: 07/08/1996
Proceedings: Final Order filed.
PDF:
Date: 06/27/1996
Proceedings: Agency Final Order
PDF:
Date: 05/22/1996
Proceedings: Recommended Order
PDF:
Date: 05/22/1996
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 03/20/96.
Date: 05/07/1996
Proceedings: Letter to Hearing Officer from S. Tilbrook Re: Typographical error in Proposed Recommended Order filed.
Date: 04/30/1996
Proceedings: Construction Burning, Inc.`s Motion to Strike filed.
Date: 04/29/1996
Proceedings: Department of Environmental Protection`s Proposed Recommended Order filed.
Date: 04/29/1996
Proceedings: Petitioner, Patricia D`Hondt, Findings of Fact to Recommended Order; Letter to Hearing Officer from S. Workinger Re: Transcript of proceeding filed.
Date: 04/26/1996
Proceedings: (3) Letters to Parties of Record from K. Combs (re: no new evidence will be accepted in case) filed.
Date: 04/26/1996
Proceedings: (Respondent) Proposed Recommended Order filed.
Date: 04/26/1996
Proceedings: Letter to Hearing Officer from P. D`Hondt Re: Additional evidence filed.
Date: 04/17/1996
Proceedings: Transcript of Proceeding w/cover letter filed.
Date: 04/09/1996
Proceedings: Order Publishing Ex Parte Communicatons (dated 3/29/96); Letter to Ms. Combs from P. D'Hondt Re: Mailing letter; Letter to Ms. Combs from Unsigned Re: Request from HO; Letter to D. Keiser from P & C. Lefton Re: Requesting help from FPOA filed.
Date: 03/29/1996
Proceedings: Order Publishing of Ex Parte Communications sent out.
Date: 03/29/1996
Proceedings: Letter to Hearing Officer from C. Harvey Re: Exhibits; Exhibits (Attached) filed.
Date: 03/27/1996
Proceedings: Letter to Hearing Officer from C. Harvey Re: Petitioner`s Exhibit 2 and Respondent`s Exhibit D; Exhibits filed.
Date: 03/25/1996
Proceedings: Letter to Hearing Officer from P. D`Hondt Re: Participation in hearing; Letter to Ms. Combs from P. D`Hondt (Unsigned) Re: Request from Hearing Officer; Letter to D. Keiser from C. & P. Lefton Re: Requesting held from FPOA filed.
Date: 03/20/1996
Proceedings: Joint Prehearing Stipulation (filed W/Hearing Officer at hearing) filed.
Date: 03/20/1996
Proceedings: CASE STATUS: Hearing Held.
Date: 03/19/1996
Proceedings: Order Denying Continuance sent out.
Date: 03/18/1996
Proceedings: Joint Prehearing Stipulation; Cover Letter to REM from C. Harvey (re:contesting any Motions for continuance of hearing) filed.
Date: 03/18/1996
Proceedings: Petitioner Request Motion for Continuance, letter form filed.
Date: 03/14/1996
Proceedings: (Respondent) Witness and Exhibit List filed.
Date: 03/13/1996
Proceedings: (From S. Tilbrook) Notice of Appearance of Counsel for Department of Environmental Protection filed.
Date: 03/13/1996
Proceedings: (From S. Tilbrook) Witness and Exhibit List filed.
Date: 03/13/1996
Proceedings: Respondent Construction Burning Inc.`s Witness and Exhibit List w/cover filed.
Date: 03/06/1996
Proceedings: Amended Notice of Hearing sent out. (hearing set for 3/20/96; 12:00pm; Fort Myers)
Date: 01/30/1996
Proceedings: (Connie D. Harvey) Notice of Rescheduling Deposition w/cover letter filed.
Date: 01/22/1996
Proceedings: (Connie D. Harvey) Notice of Appearance w/cover letter filed.
Date: 01/17/1996
Proceedings: Order Continuing and Rescheduling Formal Hearing sent out. (hearing rescheduled for 3/19/96; 9:00am; Ft. Myers)
Date: 01/02/1996
Proceedings: Letter to REM from W. Douglas Beason (RE: neither party objects to continuance) filed.
Date: 12/28/1995
Proceedings: Department of Environmental Protection`s Motion for Continuance filed.
Date: 10/30/1995
Proceedings: Prehearing Order sent out.
Date: 10/30/1995
Proceedings: Notice of Hearing sent out. (hearing set for 01/24/96; 9:00 a.m.; Ft. Myers)
Date: 10/25/1995
Proceedings: Ltr. to Hearing Officer from Patti D`Hondt re: Reply to Initial Order; Notice of intent to Issue filed.
Date: 10/10/1995
Proceedings: Initial Order issued.
Date: 10/02/1995
Proceedings: Statement Of Facts; Agency Action Letter; Request for Assignment of Hearing Officer and Notice of Preservation of Record; Agency Intent to Issue filed.

Case Information

Judge:
ROBERT E. MEALE
Date Filed:
10/02/1995
Date Assignment:
10/10/1995
Last Docket Entry:
07/08/1996
Location:
Fort Myers, Florida
District:
Middle
Agency:
ADOPTED IN PART OR MODIFIED
 

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