Hamilton County Bd. of County Com'rs v. State Dept. of Environmental Regulation
| Decision Date | 10 October 1991 |
| Docket Number | 90-2767,Nos. 90-1718,s. 90-1718 |
| Citation | 587 So.2d 1378 |
| Parties | 16 Fla. L. Weekly D2657 HAMILTON COUNTY BOARD OF COUNTY COMMISSIONERS, Appellant, v. STATE of Florida DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellee. HAMILTON COUNTY BOARD OF COUNTY COMMISSIONERS, Appellant/Cross-appellee, v. TSI SOUTHEAST, INC., and State of Florida Department of Environmental Regulation, Appellees/Cross-appellant. |
| Court | Florida District Court of Appeals |
David D. Eastman and Patrick J. Phelan, Jr., of Parker, Skelding, Labasky & Corry, Tallahassee, for appellant/cross-appellee.
William H. Congdon, Asst. Gen. Counsel, Tallahassee, for appellee State of Fla. Dept. of Environmental Regulation.
Ross McVoy and Vivian F. Garfein of Fine, Jacobson, Schwartz, Nash, Block & England, Tallahassee, for appellee/cross-appellant TSI Southeast, Inc.
By these consolidated appeals and cross-appeal, we review final orders of the Department of Environmental Regulation (the Department or DER) relating to the applications of TSI Southeast, Inc. (TSI) for permits to construct a biohazardous medical waste incinerator facility in Jasper, Florida. In case number 90-1718, the Hamilton County Board of County Commissioners (Hamilton County) appeals a May 10, 1990, final order dismissing its petition for formal administrative hearing pursuant to section 120.57(1), Florida Statutes (1989). In case number 90-2767, Hamilton County appeals and TSI cross-appeals a September 7, 1990, final order approving the issuance of permits numbered AC24-171377 and AC24-171378 to TSI to construct the incinerator facility to burn biohazardous waste and to operate a biohazardous waste storage area, subject to certain conditions. The issues raised in case number 90-1718 are also raised in case number 90-2767; therefore, both cases will be discussed together.
Hamilton County raises four points on appeal: (1) the Department erred in requiring TSI's facility to obtain only air permits for the incinerator and not requiring TSI to obtain a separate "solid waste permit" for the storage areas; (2) no reasonable assurances were provided that the incinerator facility will comply with Florida standards for air emissions; (3) the Department erred by denying Hamilton County's petition for a formal administrative hearing in case number 90-1718; and (4) the Department erred by striking Hamilton County's exceptions to the recommended order. On cross-appeal, TSI argues that the Department erred in finding that Hamilton County had the requisite standing to maintain this action.
In adjudicating these issues, we are necessarily mindful that the laws regulating air and water pollution set forth in chapter 403 of Florida Statutes are not intended to provide a means for the outright prevention of the construction and operation of legitimate business facilities and functions. Chapter 403 and DER's delegated powers thereunder are designed only to regulate the construction and operation of such business enterprises in a manner to prevent air and water pollution by the business facility in excess of the specified limits. Judging DER's orders in this case against these underlying principles and the specific provisions by statute and rule hereinafter discussed, we affirm on all issues presented on appeal and cross-appeal.
On October 16, 1989, TSI, through its president Kenneth Krantz, filed an application with the DER requesting a special permit to construct two biohazardous waste incinerators to burn medical waste. The proposed facility would be located in Jasper Industrial Park within the city limits of Jasper, Florida, in Hamilton County. Among other things, the application states:
This project is for the construction of a biohazardous waste incinerator, manufactured by Basic Environmental Engineering, Inc., Model 3500, with a secondary chamber and burner having a minimum of a 1 second retention time at 1800? F minimum. Lime injection and a baghouse will be utilized to control particulate and HCL emissions. This project should result in full compliance with all existing and proposed regulations.
The application contains no mention of TSI's intent to obtain any permit for the storage of biohazardous medical waste on the incinerator facility site. On November 30, 1989, the Department issued a notice of intent to issue general permits numbered AC24-171377 and AC24-171378 for the proposed project, stating in part that (1) it will issue the permit unless a petition for formal administrative hearing is filed and the hearing held, and that (2) TSI was required to give public notice by publication of the notice of intent. The Department also prepared draft permits for the facility, listing among the specific conditions, conditions 13 and 14 which "apply to storage of biohazardous waste and disposal of the ash from incineration of biohazardous waste." Condition 13 states that:
At least 30 days prior to the operation of the facility, the Permittee shall submit to the Department written operation and contingency plans pursuant to Rule 17-712.450, and notification, using Departmental Form 17-712.900(2), of its intent to utilize the General Permit contained in Rule 17-712.800. The provisions of Rule 17-712, F.A.C., are hereby incorporated by reference in this permit ...
The notice of intent was published in The Jasper News on November 23, 1989. On or about December 5 or 6, 1989, Hamilton County filed a petition and later an amended petition for a formal administrative hearing, alleging that its substantial interests are affected by the action proposed in the notice of intent. The City of Jasper filed a petition to intervene, stating that it will be substantially and adversely affected by the issuance of the permit, and the hearing officer granted its petition to intervene.
On or about February 26, 1990, TSI submitted a biohazardous waste storage general permit notification to DER. Among other things, the notification indicated that biohazardous waste would be trucked directly from the facilities where the waste would be generated, and that the waste would be stored in several identified storage areas. The notification also described how the stored waste would be handled prior to incineration. The Department did not require TSI to publish notice of the waste storage general permit notification, and TSI did not do so. The hearing officer issued an order stating that a public hearing on the application for special permit for the incinerator facility was scheduled to begin on March 1, 1990. On the first day of the hearing, out of concern that condition 13 suggested that a general permit was already granted for the storage areas, the Department introduced an amended draft permit with several changes to condition 13 requiring that the facility apply for a general storage permit and meet the waste storage requirements of rule 17-712.420, Florida Administrative Code. Other amendments related to the disposal of the ash generated from the incinerator facility and to an increase in the stack height of the facility's disposal stack. Hamilton County objected to testimony and other evidence regarding the changes, arguing that it had received the information regarding the changes the evening prior to the hearing, and that the information was not disclosed during discovery. After on- and off-the-record discussions, the parties eventually agreed to proceed with the hearing based on the changes DER made to the draft permit. The remainder of the proceedings took place between March 3, 1990, and April 2, 1990.
On March 28, 1990, Hamilton County filed a petition for a formal administrative hearing pursuant to sections 120.57(1) and 403.412, Florida Statutes (1989), alleging that it is substantially affected by the Department's proposed issuance of a biohazardous waste storage general permit to TSI. The petition lists as one reason for the requested hearing the Department's attempt to bifurcate the existing administrative proceedings concerning the incinerator facility and to deprive the County of a point of entry to litigate the waste storage issues. On May 9, 1990, the Department issued an order dismissing the petition, stating that:
The Department has no legal authority to grant Petitioner an administrative hearing in that the Department has taken no agency action regarding TSI Southeast's entitlement to use the Bio-hazardous Waste Storage General Permit. Without such agency action, there is no right available to an objecting party to use Chapter 120, Florida Statutes, to initiate administrative proceedings to challenge someone's use of the general permit, at least absent the Department's publishing or requiring by rule the applicant to publish notice of application for a general permit pursuant to provisions of Section 403.814(2), Florida Statutes, which was not done in this case. See Faller v. Florida Department of Environmental Regulation, 10 F.A.L.R. 1351 (Final Order dated February 8, 1988); City of Valparaiso v. State of Florida Department of Environmental Regulation and David Weaver, 7 F.A.L.R. 4834 (Final Order dated July 3, 1985). TSI Southeast is entitled to the use of the above described General Permit in accordance with Section 403.814, Florida Statutes and Rule 17-712.800, F.A.C.
This order is the subject of the appeal in case number 90-1718.
On July 25, 1990, the hearing officer issued an order recommending that "DER enter a final order approving TSI's applications for permits for the subject two biological waste incineration facilities in accordance with the conditions specified in the notice of intent to grant the permit and enumerated in this Recommended Order." The hearing officer's specific findings are reproduced at 12 F.A.L.R. 3783 (Fla.Dept. of Environ.Reg.1990). On August 10, 1990, Hamilton County filed exceptions to the recommended order with the Department's Office of General Counsel, and TSI filed a motion to strike the exceptions as untimely. Hamilton...
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