Judges: DIANE D. TREMOR
Agency: Department of Environmental Protection
Latest Update: Oct. 17, 1978
Summary: Grant certification to plant and proposed power lines with reservations set out in Recommended Order.
78-0679.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
IN RE: Application for site ) certification of McIntosh Unit 3 )
submitted by the City of Lakeland ) CASE NO. 78-679EPP and the Orlando Utilities )
Commission )
)
RECOMMENDED ORDER
Pursuant to proper notice, an administrative hearing was held before Diane
Tremor, Hearing Officer with the Division of Administrative Hearings, on July 17th and August 15, 1978, in Lakeland, Florida. The purpose of this hearing was to determine whether the proposed power plant site is consistent and in compliance with existing land use plans and zoning ordinances, pursuant to F.S. Section 403.508 and F. A. C., Rule 17-17.09. 1/
APPEARANCES
City of Lakeland: Stephen C. Watson and Hal Roberts
Post Office Box 368 Lakeland, Florida 33802
Orlando Utilities Thomas B. Tart
Commission: Gurney, Gurney and Handley
Post Office Box 1273 Orlando, Florida 32892
Department of Sheri W. Smallwood Environmental Twin Towers Office Building Regulation: 2600 Blair Stone Road
Tallahassee, Florida 32301
Division of State C. Lawrence Keesey Planning: Room 530, Carlton Building
Tallahassee, Florida 32304
Public Service Barrett G. Johnson Commission: 104 East Gaines Street
Tallahassee, Florida 32304
Southwest Florida Russell Blain Water Management Blain and Cone
District: Post Office Box 1363 Tampa, Florida 33601
Polk County: Ervin Cowie
Post Office Box 60 Bartow, Florida 33830
East Lake Parker Andrew R. Reilly Residents: Post Office Box 2039
Haines City, Florida 33844 FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
Pursuant to a joint venture agreement, the City of Lakeland and the Orlando Utilities Commission propose to construct and operate Unit 3 at the C.
D. McIntosh, Jr. Power Plant in Lakeland, Florida. This proposed Unit No. 3 is to be a 364 megawatt steam electric generating facility using pulverized coal as the principal fuel. The proposed plant facility will be located on a 275-acre site on the north shore of Lake Parker to the northeast of the Lakeland urban area. The land surrounding the area is primarily mined-out phosphate land, though there is a residential area approximately one mile southeast of the site. The plant site has previously been certified by the Governor and Cabinet, sitting as the Board for purposes set forth in the Electrical Power Plant Siting Act, as being in compliance with local zoning and land use plans. This occurred in December of 1976 upon a prior application for a 250 megawatt oil-fired steam electric generating unit. The supplemental application for the 364 megawatt, coal-fired unit was submitted in April of 1978.
There presently exists near the proposed site a 100 megawatt oil-fired generating unit, a 125 megawatt oil-fired generating unit, oil storage tanks and associated facilities. Proposed to be constructed in the immediate vicinity of those existing facilities are the 364 megawatt unit and the following associated facilities: an access road, waste treatment facilities, a railroad spur and tressel, and coal handling facilities. The applicants also propose to construct and utilize a 46 mile long, 230 kilovolt transmission line connecting the proposed Unit 3 to the Taft substation in Orlando, Florida. This line will transmit electrical energy from Lakeland to Orlando and is presently planned to largely parallel Interstate 4. (See Exhibits 16 and 17)
By a prior order entered on August 10, 1978, by the undersigned, it was held that the 46 mile long transmission line is an associated transmission line within the meaning of F. S. Section 403.503(7) defining "electrical power plant" and is thus subject to the certification process described in Chapter 403, Part II, Florida Statutes. It was further held that the Green Swamp Regulations, set forth in Chapters 22F-5 and 22F-6, Florida Administrative Code, must be considered at the land use hearing in order to determine whether or not the proposed site is consistent and in compliance with existing land use plans and zoning ordinances.
Approximately twenty (20) miles of the proposed transmission line crosses the Green Swamp area. About eight (8) miles of the transmission line corridor between the McIntosh Unit 3 and the Orlando Utilities' Taft substation will be located in wetlands within the Green Swamp. Construction of the line, including clearing, filling and the building of access roads and towers will disturb in excess of ten percent (10%) of the wetland area. The applicant, Orlando Utilities Commission, has not yet determined the exact locations of transmission line towers, access roads or the placement of fill material and culverts.
The Green Swamp has been designated as an area of critical state concern. The land use regulations adopted for this area are administered by the
Polk County Zoning Board of Adjustment. Section 22F-6.08(4), Florida Administrative Code, prohibits site alteration in excess of ten percent (10%) of the wetlands within the Green Swamp area. All parties to this proceeding have agreed that under the provisions of Chapter 22F-6, a variance would be required before the proposed transmission line could be constructed in the wetlands area of the Green Swamp. The applicants have submitted to Polk County a development plan and request for a variance. (Exhibit 17). A hearing for the variance and development permit is scheduled for the next meeting of the Polk County Zoning Board of Adjustment on September 28, 1978, at 1:30 P. M. in Bartow.
The City of Lakeland has zoned the entire area of the physical plant as industrial zoning, which permits municipal power plants. The Comprehensive Plan for the City specifies that the land will be utilized for municipal use as a power plant. (Exhibits 1-3)
In order to furnish coal to the proposed facility, a railroad spur line is to be constructed across extra-municipal land. By an administrative decision from the Polk County Zoning Administration Supervisor, it was determined that, although the question had never before been posed, the railroad spur was not subject to regulation under Polk County's zoning ordinance. It was opined that the construction of railroad lines and spurs had been treated in the same manner as the building of roads, which were facilities never subjected to zoning ordinance requirements. (Exhibit No. 22) This determination has been appealed by the East Lake Parker Residents, and, at the time of the hearings in this cause, the matter had not been finally resolved.
In Orange County, the sites through which the transmission lines will traverse are zoned agricultural. The proposed line is consistent with the Orange County zoning ordinance. (Exhibits 4 and 5)
The area through which the transmission line will traverse in Osceola County is zoned agricultural. Power lines are permitted in this zoning district as a conditional use. The Osceola Board of County Commissioners has resolved that the line to be constructed in Osceola county is consistent and in compliance with that County's zoning ordinances. (Exhibits 6 and 7)
The entire area of the Reedy Creek Improvement District through which the proposed transmission line will traverse is zoned agricultural, and power lines are permitted within this zoning classification. The Board of Supervisors of this District has resolved that the construction and use of the line is consistent and in compliance with any and all land use plans and regulations of the Reedy Creek Improvement District. Exhibits 8 and 9)
Polk County's zoning ordinance provided that transmission lines are a permitted use in all zoning districts. Polk County has no adopted local land use plan. The Board of County Commissioners has resolved that the construction and operation of the proposed electric power transmission line is consistent and in compliance with all existing zoning ordinances of Polk County. (Exhibits 10 and 11) At the time of the hearings in this proceeding, Polk County officials had not fully considered the proposal in terms of the Green Swamp regulations discussed above.
The resolutions by the affected counties discussed above were adopted prior to the applicant's change in the proposed route of the transmission lines. There was testimony from a representative of each of the affected counties or districts that the change in route would not affect the prior decision that the
lines were consistent and in compliance with the applicable zoning ordinances or land use plans.
CONCLUSIONS OF LAW
Prior to the certification of an electrical power plant site, the applicant must clearly demonstrate that the use of the proposed site is consistent and in compliance with all applicable land use plans and zoning ordinances. The site in question herein, which includes that physical plant and the 46-mile long transmission line, affects the City of Lakeland, Polk County, Orange County, Osceola County, and the Reedy Creek Improvement District. As noted in the findings of fact, the Green Swamp regulations must also be considered in determining whether the site is consistent and in compliance with land use plans.
Here, the evidence is unrebutted that the plant facility and the transmission lines are in compliance and consistent with the applicable zoning ordinances and/or land use plans of the City of Lakeland, Osceola County, Orange County, and the Reedy Creek Improvement District. The only disputes remaining are Polk County's zoning ordinance with respect to the railroad spur and compliance with the Green Swamp regulations administered by Polk County. Until resolution of the appeal concerning the applicability of Polk County's zoning regulations to the railroad spur, it must be assumed that said spur is in conformity with said zoning ordinances.
Inasmuch as the locations of the towers, access roads, fill and culverts in the Green Swamp area have not yet been determined by the applicant, it is not possible to assess the compliance of the transmission lines with Chapter 22F-6.08(11), (12) and (14). Presumably, these matters will be presented to the Polk County officials in the applicants' request for a variance and development permit. The evidence does demonstrate that the proposed transmission line corridor will exceed the ten percent limitation prescribed in Chapter 22F-6.08(4). A variance from such regulations must therefore be obtained prior to construction in the wetlands areas of the Green Swamp.
RECOMMENDATION
Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED THAT:
The Board enter an order finding that the 275 acre site itself proposed for Unit 3 is consistent and in conformity with existing land use plans and zoning ordinances;
The Board find the railroad spur to be consistent with Polk County's zoning ordinance.
The Board find that the proposed 46 mile associated transmission line is consistent and in conformity with existing land use and zoning ordinances with the exception of that portion of the line which traverses the Green Swamp area; and
The Board hold the transmission line within the Green Swamp area not to be in conformance or compliance with the Green Swamp regulations, and that the applicant must apply for a variance from such regulations to Polk County officials before any further consideration of this certification by the Board.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 12th day of September, 1978.
DIANE D. TREMOR
Hearing Officer
Division of Administrative Hearings
530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
ENDNOTE
1/ The Board should be made aware of the fact that the certification portion of the hearing was conducted immediately after the land use hearing on August 15 and 16, 1978. It was agreed by all parties that the undersigned would not prepare her recommended order on the certification hearing until after the Board had rendered its final order in the land use hearing.
COPIES FURNISHED:
Honorable Reubin O'D. Askew Governor State of Florida The Capitol
Tallahassee, Florida
Honorable Robert L. Shevin Attorney General
The Capitol Tallahassee, Florida
Honorable Doyle Conner Commissioner of Agriculture The Capitol
Tallahassee, Florida
Honorable Ralph Turlington Commissioner of Education The Capitol
Tallahassee, Florida
Honorable Gerald A. Lewis Comptroller
The Capitol Tallahassee, Florida
Honorable William Gunter State Treasurer
The Capitol Tallahassee, Florida
Honorable Jessee McCrary Secretary of State
The Capitol Tallahassee, Florida
Stephen C. Watson and Hal Roberts
Post Office Box 368 Lakeland, Florida 33802
Thomas B. Tart
Gurney, Gurney and Handley Post Office Box 1273 Orlando, Florida 32802
Sheri W. Smallwood
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida
Lawrence Keesey
Room 530 Carlton Building Tallahassee, Florida 32304
Barrett G. Johnson
104 E. Gaines Street Tallahassee, Florida 32304
Russell Blain Blain and Cone
Post Office Box 1363 Tampa, Florida 33601
Ervin Cowie
Post Office Box 60 Bartow, Florida 33830
Andrew R. Reiley Post Office Box 2039
Haines City, Florida 33844
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
RE: Application for site ) certification of McIntosh )
Unit 3 submitted by the City ) CASE NO. 78-679EPP of Lakeland and the Orlando )
Utilities Commission )
)
RECOMMENDED ORDER
Pursuant to proper notice, an administrative hearing was held before Diane
Tremor, Hearing Officer with the Division of Administrative Hearings, on August 15 and 16, 1978, in Lakeland, Florida. The purpose of this certification hearing held pursuant to F.S. s. 403.508(3) was to determine whether the location and operation of the proposed power plant and associated 46-mile transmission line will produce minimal adverse effects on human health, the environment, the ecology of the land and its wildlife and the ecology of state waters and their aquatic life. A land use hearing as required by F.S. s. 403.508(1) and (2) as previously been conducted by the undersigned. By Final Order dated October 12, 1978, the Governor and Cabinet, sitting as the Board for purposes of the Electrical Power Plant Siting Act, determined that the applicant had demonstrated that the proposed facilities could comply with all existing land use plan and zoning ordinances.
APPEARANCES
City of Lakeland: Stephen C. Watson and Hal Roberts
Post Office Box 368 Lakeland, Florida 32802
Orlando Utilities Thomas B. Tart Commission: Gurney, Gurney and Handley
Post Office Box 1273 Orlando, Florida 32802
Department of Sheri W. Smallwood Environmental Twin Towers Office Building Regulation: 2600 Blair Stone Road
Tallahassee, Florida
Division of State C. Lawrence Keesey Planning: Room 530 Carlton Building
Tallahassee, Florida
Public Service Barrett G. Johnson Commission: 104 East Gaines Street
Tallahassee, Florida
Southwest Russell Blain
Florida Blain and Cone Water Management Post Office Box 1363 District: Tampa, Florida
Polk County: Ervin Cowie
Post Office Box 60 Bartow, Florida
East Lake Parker Andrew R. Reilly Residents: Post Office Box 2039
Haines City, Florida FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
Pursuant to a joint venture agreement, the City of Lakeland and the Orlando Utilities Commission propose to construct and operate Unit No. 3 at the
C.D. McIntosh, Jr. Power Plant in Lakeland, Florida. The site is located on 275 acres of land on the north shore of Lake Parker to the northeast of the Lakeland urban area. Access to the site is by State Road 600A. The land surrounding the site is primarily mined-out phosphate land, some of which is being reclaimed. There is a residential area approximately one mile southeast of the site. The plant site has previously been certified by the Governor and Cabinet, sitting as the Board for purposes set forth in the Electric Power Plant Siting Act. This occurred in December of 1976 upon a prior application for a 250 megawatt steam electric generating unit fueled by coal, processed solid waste or oil. The present supplemental application for the 364 megawatt, coal-fired unit was submitted in April of 1978 to increase the size of the unit and to provide for a joint venture between the City of Lakeland and the Orlando Utilities Commission.
There presently exists near the proposed site two operating units. Unit No. 1 is a 100 megawatt oil-fired generating facility which utilizes Lake Parker water for a once-through cooling system. Unit No. 2 is a 115 megawatt facility with a cooling tower which utilizes makeup water from Lake Parker. Other facilities associated with the existing units include deep wells, water and oil storage tanks, electrical switchyards, parking areas and roadways.
Proposed to be constructed in the immediate vicinity of the existing units are the 364 megawatt unit and the following associated facilities: a railroad spur and tressel, coal store area and handling equipment, solid waste treatment and handling facilities, a flue gas desulfurization sludge stabilization system, a 250 foot high stack, and access roads. In addition, the applicants propose to construct and utilize a 46 mile 230 kilovolt transmission line connecting the proposed Unit 3 in Lakeland to the Taft substation in Orlando, Florida. The transmission line route largely parallels Interstate 4.
The construction of Unit 3 will involve extensive grading and removal of vegetation, and it will reduce the area available for animal habitation. However, the impact of Unit 3 upon vegetation and wildlife is minimal primarily because the site is already in use as a generating facility and has been subjected to man-related activities.
It was stipulated by all parties that there exists a need for expanded electrical generating capacity in the area to be served by the proposed new unit. The larger unit is economically beneficial to the two cities and the joint enterprise approach is unique and highly recommended by the state agencies involved. The Florida Public Service Commission and the Division of State Planning have filed reports with the Department of Environmental Regulation concluding that additional electrical generating capacity will be required in the Lakeland and Orlando service areas in 1981 when the proposed unit is to become operational.
The proposed 364 megawatt facility will have the capacity to use three types of fuel. Its primary fuel will be medium to high sulfur bituminous coal. It may also burn low sulfur oil and prepared residential and commercial refuse. If refuse is used as a supplemental fuel, there will be no stockpiling of such refuse in a raw state at the plant site. Each load will be processed immediately upon arrival.
The proposed unit will employ a high efficiency electrostatic precipitator to remove fly ash from the burning of coal and refuse, followed by
a flue gas scrubber to further reduce particulate matter and to remove sulfur oxide from the exhaust gases. Remaining gases and particulates will be discharged from a 250 foot stack which will disperse pollutants in small concentrations over a wide area. It is anticipated that, as a result of these control measures, Unit No. 3 will comply with state and federal emission limitations add ambient air quality standards.
It is proposed that Unit No. 3 will utilize waste water treatment plant effluent pumped from the present facilities of the Lakeland Sanitary Sewage System for cooling tower makeup. Three deep wells in the Florida aquifer will be used as backup in case of a failure of the primary cooling water supply.
Most of the cooling water tower blowdown will be used as makeup for the flue gas desulfurization process, and excess blowdown will be returned to the Lakeland Sanitary Sewage System. Waste water from the proposed unit will be chemically treated in a retention basin and then pumped to a spray pond for evaporation.
This system of handling waste water and blowdown will effectively eliminate any discharges from the unit to Lake Parker.
The 46 mile 230 KV transmission line will traverse the Green Swamp area for approximately 20 miles. The majority of the proposed route parallels Interstate 4 and thus utilizes an existing corridor which is already in a disturbed state. Some diverts and fill will be necessary. The impact of constructing access and maintenance roads for the lines could have serious adverse effects upon the creeks, swamps and marshes traversed, as well as upon plant and animal life. The applicants are endeavoring to minimize the environmental impact to the greatest extent possible consistent with good engineering design practices. The application and the testimony adduced at the hearing does not provide sufficient information to fully access the amount of fill, spacing of culverts or environmental impact associated with the transmission corridor as it crosses the Green Swamp area. As site plans are specifically developed by the applicants, they should be reviewed and approved by the appropriate Polk County agencies responsible for the Green Swamp area, the Division of State Planning and the Department of Environmental Regulation.
The Florida Department of Environmental Regulation, the Public Service Commission and the Division of State Planning have all recommended that Unit No.
3 be certified subject to certain general and special conditions, which are attached to this Recommended Order. 1/ The applicants have stipulated and agreed that these conditions of certification should be imposed if certification is granted.
At the conclusion of the presentation by the parties to this proceeding, opportunity was given to the general public to comment upon the application for site certification. The main issue raised was that of noise produced by the present facilities. However there was expert testimony presented by the applicant to the effect that the new proposed addition would not materially raise the ambient noise level in the area. There was also some public testimony on the question of aesthetics. The applicants, however, testified that they would make every effort to minimize any adverse aesthetic effects by the planting of additional trees and foliage.
CONCLUSIONS OF LAW
This proceeding was held pursuant to the Florida Electrical Power Plant Siting Act, Chapter 403, Part II, Florida Statutes, and Chapter 17-17, Florida Administrative Code, to consider the subject application for site certification.
Notice, in accordance with Chapter 403 and Chapter 120, Florida Statutes, and Chapter 17-17, Florida Administrative Code, has been given to all persons and parties entitled thereto as well as to the general public.
The purpose of the site certification hearing was to receive testimony and evidence concerning whether the location and operation of proposed facilities will produce minimal adverse effects on human health, the environment, the ecology of the land and its wildlife, and the ecology of State waters and their aquatic life, and to fully balance the increased demand for electrical power plant location and operation with the broad interests of the public as provided in Chapter 403, Florida Statutes.
The record of this hearing consists of all pleadings and papers filed herein, the transcripts of all hearings, all orders entered by the Hearing Officer, and all evidence and exhibits properly admitted to the record.
The studies, reports and recommendations required by F.S. s. 403.507 have been made by the Division of State Planning, the Public Service Commission and the Department of Environmental Regulation. Each agency, with the exception of State Planning concerning the transmission lines, has recommended that the proposed Unit 3 be certified, subject to the special and general conditions attached hereto.
The location and operation of Unit 3 and its associated facilities will produce minimal adverse effects on human health the environment, the ecology of the land and its wildlife and the ecology of state waters and their aquatic life, provided that the applicants comply with the conditions attached hereto and seek review and approval from Polk County, State Planning and DER of the construction plans for its transmission corridor as it crosses the Green Swamp area.
The operational safeguards for proposed Unit 3 are technically sufficient for the welfare and protection of the citizens of Florida.
The certification of proposed Unit 3 is consonant with the premise of abundant, low-cost electric energy.
Proposed Unit 3, if certified pursuant to the conditions attached, will comply with the pertinent State and Federal Regulations concerning the prevention of significant deterioration of air quality, Section 17-2.04, Florida Administrative Code, and the application of the best available control technology, Section 17-2.03, Florida Administrative Code.
RECOMMENDED ORDER
Having reviewed the record of this proceeding, and based upon the Findings of Fact and Conclusions of Law set forth herein, it is herein RECOMMENDED that certification, pursuant to Chapter 403, Part II, Florida Statutes, be granted to the City of Lakeland and the Orlando Utilities Commission for the construction and operation of McIntosh Unit No. 3. It is further recommended that this certification be made subject to the conditions of certification attached. It is also recommended that certification of the proposed transmission line be granted pursuant to review and approval of the construction plans for the corridor as it crosses the Green Swamp by Polk County, the Division of States Planning, and the Department of Environmental Regulation.
Done and entered this 14th day of November, 1978, in Tallahassee, Florida.
DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
ENDNOTE
1/ The Division of State Planning did not specifically recommend certification of the transmission line.
COPIES FURNISHED:
Stephen C. Watson Honorable Reubin O'D Askew and Hall Roberts Governor, State of Florida
Post Office Box 369 The Capitol
Lakeland, Florida 33802 Tallahassee, Florida
Thomas B. Tart Honorable Robert L. Shevin Gurney, Gurney and Hendley Attorney General
Post Office Box 1273 The Capitol
Orlando, Florida 32802 Tallahassee, Florida
Sheri W. Smallwood Honorable Doyle Conner
Twin Towers Office Bldg. Commissioner of Agriculture 2600 Blair Stone Road The Capitol
Tallahassee, Florida 32301 Tallahassee, Florida
C. Lawrence Keesey Honorable Ralph Turlington Room 530 Carlton Building Commissioner of Education Tallahassee, Florida 32304 The Capitol
Tallahassee, Florida
Barrett G. Johnson
104 East Gaines Street Honorable Gerald A. Lewis Tallahassee, Florida 33601 Comptroller
The Capitol
Ervin Cowie Tallahassee, Florida Post Office Box 60
Bartow, Florida 33830 Honorable William Gunter State Treasurer
Docket for Case No: 78-000679
Orders for Case No: 78-000679
| Issue Date |
Document |
Summary |
|
Oct. 12, 1978 |
Agency Final Order
|
|
|
Sep. 12, 1978 |
Recommended Order
|
Grant certification to plant and proposed power lines with reservations set out in Recommended Order.
|
