99-002581 Clarence Rowe vs. Oleander Power Project, L.P., And Department Of Environmental Protection Status: Closed Recommended Order on Monday, September 27, 1999.

Summary: Applicant for air construction permit made a prima facie showing that the permit should be issued, and the opposing party failed to satisfy his burden of going forward with the requisite proof.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLARENCE ROWE, )

)

Petitioner, )

)

vs. ) Case No. 99-2581

)

OLEANDER POWER PROJECT, L.P., and )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

An administrative hearing was conducted on August 30, 1999,

in Viera, Florida, by Daniel Manry, Administrative Law Judge,

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Clarence Rowe, pro se

418 Pennsylvania Avenue

Rockledge, Florida 32955

For Respondent, David S. Dee, Esquire

Oleander Power Landers & Parsons

Project, L.P.: 310 West College Ave nue

Tallahassee, Florida 32301

For Respondent, Scott A. Goorland, Esquire

Department of W. Douglas Beason, Esquire

Environmental Assistant General Counsel

Protection: Department of Environmental Protection

The Douglas Building

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

The issue in this case is whether the Department of

Environmental Protection ("DEP") should issue an air construction

permit authorizing Oleander Power Project, L.P. ("Oleander"), to

build and operate an electrical power plant in Brevard County,

Florida, that includes five combustion turbines and two fuel oil

storage tanks (the "Project").

PRELIMINARY STATEMENT

On November 24, 1998, Oleander filed an application with DEP

for a permit authorizing the construction of certain stationary

sources of airborne emissions (an "air construction permit"). On

March 26, 1999, DEP issued a "Public Notice of Intent to Issue an

Air Construction Permit" ("Public Notice"). The Public Notice

included attachments comprised of DEP’s draft "Air Construction

Permit" (Permit No. PSD-FL-258; DEP File No. 0090180-001-AC)(the

"Draft Permit"), "Technical Evaluation and Preliminary

Determination," and "Best Available Control Technology

Determination."

By letter dated April 12, 1999, Petitioner requested an

administrative hearing. On June 9, 1999, DEP referred the matter

to the Division of Administrative Hearings ("DOAH") to conduct an

administrative hearing.

On June 23, 1999, Oleander filed a motion to dismiss for

failure to comply with requirements prescribed in the Public

Notice for a petition for administrative hearing. After hearing

argument from both parties by telephone conference, the motion to

dismiss was granted with leave to file an amended petition no

later than July 19, 1999.

On July 19, 1999, Petitioner timely filed a Petition for

Administrative Hearing (the "Petition"). On July 27, 1999, an

administrative hearing was scheduled for August 25, 1999, and

subsequently rescheduled for August 30, 1999.

At the administrative hearing, Oleander presented the

testimony of four witnesses, each of whom was accepted as an

expert. Mr. Richard Zwolak was accepted as an expert in land-use

planning, land-use compatibility analyses, and socioeconomic and

environmental impact assessments. Mr. Ken Kosky was accepted as

an expert regarding air pollution control and best available

control technology. Mr. Bob McCann was accepted as an expert in

meteorology, air quality dispersion modeling, and air pollution

impact assessments. Mr. Al Linero was accepted as an expert in

air pollution control issues, DEP regulations that govern new

sources of air pollution, and air permitting. Oleander submitted

Exhibits 1-3, 5-17, 19-32, and 34-46 for admission in evidence.

DEP did not call any witnesses or submit any exhibits for

admission in evidence. Petitioner presented the testimony of one

witness who was not tendered as an expert. Petitioner submitted

Exhibits 1-12 for admission in evidence.

Petitioner's request for public comment was granted. Five

individuals entered un-sworn public comment on the record. The

individuals were not placed under oath or cross-examined because

the agency stated that it did not propose to "consider such

material" within the meaning of Section 120.57(1)(b), Florida

Statutes (1997). (All chapter and section references are to

Florida Statutes (1997) unless otherwise stated.)

The Petition included allegations of "environmental

injustice" and harm to Petitioner's extended family and their

progeny. Those allegations had been previously stricken from the

Petition in response to Oleander's motion. At the administrative

hearing, Oleander attempted to introduce evidence concerning

"environmental justice" issues. DEP objected to the introduction

of such evidence on the ground that DEP does not have

jurisdiction to consider issues of environmental justice. DEP’s

objection was sustained, but Oleander was allowed to proffer its

evidence concerning environmental justice.

The identity of the witnesses and exhibits, and any

attendant rulings, are set forth in the Transcript of the hearing

filed on September 7, 1999. Petitioner did not file a proposed

recommended order ("PRO"). Respondent timely filed its PRO on

September 17, 1999.

FINDINGS OF FACT

1. Oleander seeks an air construction permit to build and

operate an electrical power plant in Brevard County, Florida.

Oleander provided reasonable assurances that the Project will

comply with all of the conditions and emissions limitations

prescribed by DEP in the Draft Permit.

2. The Project received adequate review from the state

agency responsible for regulating the Project. DEP reviewed

Oleander’s application, requested and received additional

information concerning the Project, and independently verified

the impacts assessments contained in the application.

3. The Project received adequate review from Brevard

County. Oleander executed a Stipulated Settlement Agreement with

Brevard County (the " Brevard County Agreement") in which Oleander

agreed to comply with restrictions concerning the Project’s hours

of operation, minimum buffers, noise, odor, vibrations, traffic,

and other issues. The Brevard County Agreement provides

additional assurances that the Project will not adversely impact

the public.

4. Members of the public received adequate notice of the

Project and had sufficient opportunity to make public comments.

On March 3, 1999, DEP held a public meeting in Brevard County to

receive public comments regarding Oleander’s application. On

March 26, 1999, DEP issued its Public Notice of DEP’s intent to

grant the Draft Permit to Oleander. On April 8, 1999, DEP’s

Public Notice was published in Florida Today . On May 13, 1999,

DEP held a second public meeting in Brevard County to receive

public comments concerning Oleander’s application. Members of

the public had an opportunity during the administrative hearing

to enter their comments on the record.

5. The Project includes the construction and operation of

five 190 megawatt ("MW") combustion turbines that will be used to

generate electricity. The Project also includes the construction

and use of two fuel oil storage tanks, two water storage tanks,

an administrative building, a stormwater management system, and

other associated and ancillary facilities.

6. The Project is a "peaking" power plant. It will operate

only during times of peak demand caused by hot or cold weather or

storm events.

7. The Draft Permit authorizes Oleander to operate the

Project’s combustion turbines for a maximum of 3,390 hours per

year, or approximately 39 percent of the available hours in a

year. During the remainder of the year, the combustion turbines

will not operate and will not have any airborne emissions. Based

on the historical experience of other peaking power plants in

Florida, the combustion turbines are expected to operate less

than 800 hours per year.

8. Oleander’s combustio n turbines will be the most

advanced turbines used in Florida for peaking service.

Oleander’s turbines will be more efficient, in terms of emissions

and producing power, than the turbines currently used at other

peaking plants in Florida.

9. The Projec t will use General Electric ("GE") Frame 7FA

combustion turbines. These turbines are capable of complying

with the emission limits and requirements in the Draft Permit.

Oleander will hire staff or train their own staff to operate the

Project in compliance with the Draft Permit. Oleander’s parent

company already has a training program for its plant operators.

Oleander has operated similar projects successfully.

10. The primary fuel for the power plant will be natural

gas. Natural gas is the cleanest burning of all fossil fuels.

11. In the event that natural gas becomes unavailable, the

Draft Permit authorizes use of low sulfur distillate fuel oil

("fuel oil") for the equivalent of 1,000 hours of full-load

operations per year. Fuel oil contains a maximum of 0.05 percent

sulfur, is 35 to 50 percent more expensive than natural gas, and

imposes economic incentives for Oleander to minimize the use of

fuel oil.

12. Water needed for the Project will be provided by

the City of Cocoa. Oleander will not install any on-site wells

to supply water to the Project. All of the wastewater from the

Project will be sent by pipeline to the City of Cocoa’s

wastewater treatment plant. The Project will not discharge any

industrial wastewater on-site.

13. The Projec t will be built on a site that is

located northeast of the intersection of Interstate 95 ("I-95")

and State Road ("SR") 520 in unincorporated Brevard County (the

"Site"). The Site contains approximately 38 acres of land.

14. The Site is appropriate for use as an electrical power

plant. The Site already is zoned for industrial purposes. The

surrounding areas are primarily zoned for industrial uses. An

existing electrical substation is located on the north side of

the Site. An existing electrical transmission line corridor is

located on the west side of the Site. Townsend Road is located

on the south side of the Site. An existing natural gas pipeline

is located nearby, on the west side of I-95, and can provide gas

for the Project.

15. Residential, commercial, and industrial development

within a three kilometer radius of the Site is minimal. The

Project will be compatible with those industrial and commercial

land uses that are located in the area near the Site.

16. The closest residential areas are more than 1,400 feet

from the Site. The Site is compatible with the closest

residential neighborhoods. The Site and adjacent off-Site areas

provide a significant buffer to the closest residential areas.

The Site can be developed without causing adverse impacts on

residential areas.

17. Combustion turbines currently operate at many

locations in diverse population centers in Florida. For example,

combustion turbines are operated within 800 feet of the Shands

Hospital at the University of Florida, within 1,200 feet of

Cinderella’s Castle at Disney World’s Magic Kingdom, and near the

Lake Worth High School. Combustion turbines also are located

near several residential neighborhoods in the state.

18. DEP and Oleander evaluated the Project in accordance

with requirements prescribed in DEP’s Prevention of Significant

Deterioration (" PSD") program. As part of the PSD review, a

determination was made of the Best Available Control Technology

(" BACT").

19. A BACT determination involves a case-by-case analysis

of those air pollution control technologies that are feasible and

can achieve the maximum emission reductions. A BACT

determination also requires an analysis of the costs,

environmental impacts, and energy impacts associated with the use

of each one of the proposed control technologies.

20. A BACT determination results in the establishment of an

emission limit for each pollutant of concern. In this case, DEP

determined the appropriate BACT limits for the Project’s

emissions of carbon monoxide ("CO"), oxides of nitrogen (" NOx"),

sulfur dioxide (" SO 2 "), sulfuric acid mist ("SAM"), volatile

organic compounds (" VOCs"), particulate matter ("PM"), and

particulate matter less than ten microns in diameter (" PM 10 ").

(PM and PM 10 are referred to herein as "PM/ PM 10 . ") BACT emission

limits applicable to the Project are set forth in the Draft

Permit, and are incorporated by reference in this Recommended

Order.

21. DEP determined that when the Project operates on

natural gas, BACT for NOx is an emission limit of 9 parts per

million (" ppm"), corrected to 15 percent oxygen. This emission

limit is based on the use of dry low NOx (" DLN") combustion

technology utilized in the combustion turbines included in the

Project. The proposed NOx emission limit of 9 ppm is the lowest

emission limit in Florida for simple cycle peaking power plants

and sets the standard for similar facilities throughout the

United States.

22. DEP determined that when the Project operates on fuel

oil, BACT for NOx is an emission limit of 42 ppm, corrected to 15

percent oxygen. This emission limit is based on the use of DLN

and wet injection technology. Wet injection technology involves

the injection of either water or steam directly into the

combustor to lower the flame temperature and thereby reduce the

formation of NOx.

23. The U.S. Fish and Wildlife Service (" USFWS") provided

comments to DEP concerning the Project. In their comments, the

USFWS suggested that the NOx emission limit should be 25 ppm when

the Project is operating with fuel oil. However, the USFWS’

suggestion was based on the USFWS’ misreading of the provisions

of other PSD permits. When read correctly, those permits

establish the same NOx emission limit when firing fuel oil that

DEP established in this case, i.e., 42 ppm.

24. In its BACT determination, DEP considered whether a

selective catalytic reduction (" SCR") system should be used to

reduce the Project’s NOx emissions. SCR is an add-on NOx control

system in which ammonia is injected into the exhaust gases of a

combustion turbine. The exhaust gases are then exposed to a

catalyst where the ammonia and the NOx react to form nitrogen and

water.

25. SCR does not represent BACT in this case and should not

be required for the Project. The use of SCR would impose

excessive costs on the Project, adversely impact the Project’s

energy efficiency, and cause increased emissions of particulate

matter and ammonia.

26. BACT for CO and VOCs is based on the Project’s use of

an advanced combustor design, i.e., DLN technology, and good

combustion practices. The use of an oxidation catalyst for CO

removal is not required because an oxidation catalyst is not cost

effective for the Project. BACT for PM/ PM 10 , SO 2 , and SAM is

based on good combustion practices and the use of clean low

sulfur fuels.

27. The PSD program establishes separate ambient air

quality standards for Class I and Class II areas defined in

Florida Administrative Code Rule 62-204.360(4). (Unless

otherwise stated, all references to rules are to rules

promulgated in the Florida Administrative Code in effect on the

date of this Recommended Order.) The Project is located in a

Class II area. The Project’s impacts on ambient air

concentrations will be below all applicable PSD standards

("increments") prescribed in Rule 62-204.260(2) for Class II

areas.

28. The nearest PSD Class I area is the Chassahowitzka

Wildlife Refuge (the "Refuge"). The Refuge is approximately 180

kilometers from the Site. An analysis of the Project’s impacts

on the Refuge is not required because the Refuge is more than 150

kilometers from the Site. The impacts from the Project on the

closest Class I area are expected to be insignificant within the

meaning of Rule 62-204.200(29).

29. DEP does not require Oleander to evaluate the

cumulative impacts caused by the Project and other major sources

of air pollution in the relevant Class II area. However,

Oleander evaluated the Project’s impacts together with the

impacts of the Florida Power & Light Cape Canaveral Plant, the

Orlando Utilities Commission’s Indian River Plant, and the

Orlando Utilities Commission’s Stanton Energy Center. The

Project itself will not have any measurable effect on the ambient

conditions resulting from the operation of all of these sources.

30. DEP has adopted prima ry and secondary Ambient Air

Quality Standards (" AAQS") in accordance with requirements

adopted by the U.S. Environmental Protection Agency ("EPA").

Primary standards are designed to create an adequate margin of

safety for the protection of the public health, including the

health of the young, the old, and those with respiratory diseases

such as asthma. Secondary standards are designed to protect the

public welfare from any known or anticipated adverse effects of

air pollution. AAQS are reviewed every five years by scientists

and physicians in light of the most recent scientific studies and

data.

31. In Brevard County, existing air quality is better than

levels allowed under AAQS. Brevard County is classified as an

attainment area.

32. Oleander anal yzed the Project’s potential impacts on

ambient air quality in Brevard County in compliance with the

applicable DEP requirements for such an analysis. Oleander’s

analysis was based on conservative assumptions intended to over-

estimate impacts from the Project. For example, the analysis

assumed that the Project would operate continuously throughout

the entire year, even though the Project’s annual operations will

be limited to a maximum of 3,390 hours. In addition, Oleander

assumed that the Project would use fuel oil for the entire year,

even though the Project will be limited to firing fuel oil for a

maximum of 1,000 hours per year.

33. The Project’s maximum impacts on ambient air quality

will be 0.6 percent or less of the applicable AAQS for each

criteria pollutant. Oleander's analysis demonstrates a wide

margin of safety for public health and welfare.

34. The Project’s maximum potential impacts are less than

the EPA "significant impact" levels. Consequently, the Project’s

impacts are deemed insignificant from a regulatory perspective,

and more detailed analyses of the Project’s impacts on ambient

air quality are not required under applicable PSD requirements.

35. The Project is not expected to cause any meaningful

impacts on air quality in any neighborhood in Brevard County. In

all neighborhoods, the Project’s impacts on air quality will be

insignificant. Similarly, the Project’s impacts on soils,

vegetation, wildlife, and visibility will be insignificant. The

Project also will not cause any significant growth-related air

quality impacts.

36. The cumulative impacts from the Project and other

sources of air pollution in the area will be insignificant. When

all of these sources are considered together, the maximum impact

from their combined emissions will be 50 percent or less of the

applicable AAQS.

37. The PSD program does not require Oleander to perform

any ambient air quality monitoring for any pollutant prior to the

time that construction of the Project commences because the

Project’s air quality impacts will be less than the applicable

DEP de minimis levels. Pre-construction monitoring for ozone is

not required unless a facility will have VOC emissions equal to

or greater than 100 tons per year. The Project’s maximum

potential VOC emissions will be 64 tons per year. Therefore, the

Draft Permit does not require Oleander to install any ozone

monitors.

38. DEP maintains two ambient air quality monitors in

Brevard County to measure ozone concentrations. DEP also has

ambient air quality monitors for ozone in Volusia, Seminole,

Orange, Osceola, and St. Lucie Counties.

39. The ambient air quality data from DEP monitors

demonstrate that the ozone concentrations in Brevard County are

below the applicable AAQS. Further, the data demonstrate that

ozone is a regional issue because the ozone levels in the region

tend to rise and fall at the same time and to the same degree.

40. A requirement for Oleander to install an additional

monitor in Brevard County would be unnecessary and unjustified.

The impacts from the Project on ozone and other ambient air

quality parameters are so small that the impacts could not be

measured with an additional monitor. An additional monitor in

Brevard County would provide no meaningful benefits when

assessing whether Brevard County is meeting the AAQS for ozone

and would cost between $75,000 and $100,000 a year to install and

operate.

41. Emissions from the Project will not cause any

significant impact on the water quality of water bodies in

Brevard County. There will be minimal, if any, "fallout" of

particles into nearby waters, including the St. Johns and Indian

Rivers.

42. The maximum amount of nitrogen that could be deposited

annually as a result of airborne NOx emissions from the Project

is 0.0007 grams per square meter ("g/m 2" ). By comparison, the

current nitrogen deposition rate from other sources in the area

is 0.4 g/m 2 . Thus, the Project’s impact on nitrogen deposition

in the area will be only a fraction of the deposition that is

occurring already.

43. Airborne emissions from the Project will not cause or

significantly contribute to a violation of any ambient air

quality standard or PSD increment. The Project complies with all

applicable DEP air quality requirements, including the applicable

policies, rules, and statutes.

CONCLUSIONS OF LAW

44. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties. The

parties were duly noticed for the hearing.

45. Oleander has the ultimate burden of proof in t his

proceeding. Florida Department of Transportation v. J.W.C. Co.,

Inc. , 396 So. 2d 778, 787 (Fla. 1st DCA 1981). Oleander also has

the initial burden of presenting prima facie evidence that

Oleander has complied with all of the applicable DEP standards

and rules. J.W.C. 396 So. 2d at 788.

46. If Oleander presents the requisite prima facie

evidence, Petitioner must present "contrary evidence of

equivalent quality" proving the truth of the allegations in the

Petition. J.W.C. 396 So. 2d at 789. Petitioner cannot satisfy

his evidentiary burden with speculative concerns about potential

or possible adverse environmental effects. See Chipola Basin

Protective Group, Inc. v. Florida Chapter Sierra Club , 11

F.A.L.R. 467, 481 (DER Final Order, May 29, 1988); J.T. McCormick

v. City of Jacksonville , 12 F.A.L.R. 960, 971 (DER Final Order,

January 22, 1990); Altman v. Kavanaugh , 15 F.A.L.R. 1588, 1576

(DOAH Recommended Order, adopted in pertinent part by DER Final

Order, November 1, 1991).

47. Oleander presented c ompetent substantial evidence that:

(a) DEP properly determined BACT for the Project; (b) airborne

emissions from the Project will not cause or significantly

contribute to a violation of any ambient air quality standard or

PSD increment; (c) airborne emissions from the Project will have

no significant adverse impacts on water quality in any surface

waters; (d) airborne emissions from the Project will not cause

any significant adverse impacts on human health or the public

welfare; (e) the Project satisfies applicable DEP rules and

criteria; and (f) DEP should issue the air construction permit

for the Project.

48. Petitioner failed to present "contrary evidence of

equivalent quality" proving the truth of the allegations in the

Petition. Petitioner speculated about potential impacts from the

Project but presented no competent substantial evidence to

support the allegations in the Petition.

49. During the administrative hearing, members of the

public were allowed to enter comments on the record in accordance

with Section 120.57(1)(b). In relevant part, Section

120.57(1)(b) provides:

When appropriate, the general public may be

given an opportunity to present oral or

written communications. If the agency

proposes to consider such material, then all

parties shall be given an opportunity to

cross-examine or challenge or rebut the

material. (emphasis supplied)

50. DOAH is not the "agency" for purposes of Section

120.57(1)(b). DOAH is defined separately in Section 120.52(5) as

the "Division." DEP is the "agency" for purposes of Section

120.57(1)(b). Compare , Section 120.52(1)(defining an "agency")

with Section 120.52(5)(defining the "Division").

51. At the administrative hearing, five individuals were

allowed to comment on the Project so that DEP would have the

opportunity to hear additional comments from the public before

DEP presented its recommendation at the final hearing regarding

the Project. The five members of the public were not sworn or

placed under oath because DEP stated that it did not propose to

consider such material.

52. Unsworn testimony is not competent substantial evidence

and cannot be used as the basis for a finding of fact. See

Department of Environmental Regulation v. Chemairspray, Inc. , 520

So. 2d 96, 97 (Fla. 4th DCA 1988); Leon Shaffer Golnick

Advertising, Inc. v. Cedar , 423 So. 2d 1015, 1017 (Fla. 4th DCA

1982)("[t] rial judges cannot rely upon . . . unsworn statements

as the basis for making factual determinations; and [an

appellate] court cannot so consider them on review of the

record"). Accordingly, the un-sworn comments made by the public

at the administrative hearing cannot form the basis for a finding

of fact in this case.

53. Even if the public comments at the hearing had been

sworn testimony, the comments were not probative of the issues in

this case. The five individuals who made public comments were

not competent to express the opinions included in the public

comments. Most of the individuals readily acknowledged that they

are not experts regarding the subjects for which they offered

opinions. See Warriner v. Doug Tower, Inc. , 180 So. 2d 384 (Fla.

3rd DCA 1965)(testimony of expert on one subject was properly

stricken where expert acknowledged he was not qualified to

express an opinion regarding the issue in dispute). None of the

individuals who offered comments at the administrative hearing

established the required special knowledge, skill, experience, or

training to be competent to offer opinion testimony on the

technical issues involved in the evaluation of the Project. See

also Sections 90.701 and 90.702. That portion of the public

comments not comprised of opinion consisted of speculative

concerns about either possible adverse environmental impacts or

possible economic consequences for private property.

54. The Petition alleges that DEP should consider

"environmental justice" issues when DEP evaluates the Project.

Petitioner alleges that the proposed agency action is

inconsistent with the provisions of President Clinton’s Executive

Order 12898, entitled "Federal Actions to Address Environmental

Justice in Minority Populations and Low-Income Populations."

Executive Order 12898 is designed to focus the attention of

federal agencies on "environmental justice."

55. Executive Order 12898 requires federal agencies to

identify and address those situations where federal programs,

policies, and activities have disproportionate adverse impacts on

minority or low-income populations in the United States.

Environmental justice complaints are also evaluated by EPA’s

Office of Civil Rights for compliance with Title VI of the Civil

Rights Act of 1964, when such complaints are based on allegations

of discrimination against minorities resulting from the issuance

of certain pollution control permits.

56. The provisions of Executi ve Order 12898 are beyond the

scope of this proceeding and beyond the jurisdiction of DEP and

DOAH. Courts have consistently held that neither DEP nor DOAH

has jurisdiction to consider the provisions of Executive Order

12898. See , e.g. , Council of the Lower Keys v. Charley Toppino

& Sons, Inc. , 429 So. 2d 67, 68 (Fla. 3rd DCA 1983)(issuance of

an air pollution permit by the Florida Department of

Environmental Regulation "must be based solely on compliance with

applicable pollution control standards and rules"; DER "is not

required or authorized" to deny such permit because of alleged

non-compliance with local zoning ordinances or land use

restrictions); Taylor v. Cedar Key Special Water and Sewerage

District , 590 So. 2d 481, 482 (Fla. 1st DCA 1991)(court adopted

holding in Council of the Lower Keys , above, with regard to a

water pollution permit, and then noted that "[r] emedies apart

from the permitting scheme are available" to address the

petitioner’s claims); see also Miller v. Department of

Environmental Regulation , 504 So. 2d 1325, 1327 (Fla. 1st DCA

1987)(when considering whether a project would adversely affect

the "property of others," pursuant to DER’s statutory authority

in dredge and fill cases under Section 403.918(2), DER did not

err by concluding that DER should not extend its review to

include consideration of non-environmental impacts).

57. The issue in this proceeding is whether the Project

complies with state requirements for the issuance of an air

construction permit. Applicable requirements are set forth in

Chapter 403 and Rules 62-4, 62-204, 62-210, 62-212, 62-214, 62-

296, and 62-297. Nothing in the relevant statutes or rules

allows either DEP or DOAH to enforce the requirements of

Executive Order 12898.

58. The undersigned sustained DEP's objection to the

submission of evidence by Oleander relevant to environmental

justice issues. Consideration of such evidence would have lacked

jurisdiction and would have been contrary to the law of the case

established in previous rulings in this proceeding. Oleander

proffered evidence that addressed environmental justice issues

generally, as well as the Project’s direct compliance with

Executive Order 12898.

59. Apart from any issue of environmental justice, Oleander

introduced competent substantial evidence to demonstrate that the

airborne emissions from the Project will not have any meaningful

adverse impacts on any neighborhood in Brevard County. In all

neighborhoods, the impacts from the Project’s emissions will be

insignificant. The evidence also shows that the Project will be

compatible with, and will not adversely affect, any residential

neighborhood. Residential neighborhoods are distant and well-

buffered from the Site.

RECOMMENDATION

Based upon the findings of fact and conclusions of l aw, it

is

RECOMMENDED that:

DEP enter a final order granting Oleander’s application for

an air construction permit for the Project, subject to the

conditions and limitations contained in the Draft Permit.

DONE AND ENTERED this 27th day of September , 1999, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27t h day of September, 1999.

COPIES FURNISHED:

F. Perry Odom, General Counsel

Department of Environmental Protection

The Douglas Building

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

Kathy Carter, Agency Clerk

Office of General Counsel

Department of Environmental Protection

The Douglas Building

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

Clarence Rowe

418 Pennsylvania Avenue

Rockledge, Florida 32955

David S. Dee, Esquire

Landers & Parsons

310 West College Avenue

Tallahassee, Florida 32301

W. Douglas Beason, Assistant General Counsel

Scott A. Goorland, Assistant General Counsel

Department of Environmental Protection

The Douglas Building

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.