7TATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
In Re: PALM BEACH COUNTY RESOURCE )
RECOVERY PROJECT, POWER PLANT ) CASE NO. 85-2032 SITING CERTIFICATION APPLICATION ) (Land Use Hearing)
)
PA 84-20 )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on September 12, 1985, in West Palm Beach, Florida.
APPEARANCES
For Palm Beach County Herbert C. Gibson, Esq Solid Waste Authority: Trela J. White, Esq
Gibson and Adams
303 First Street, Suite 400 Post Office Box 1629
West Palm Beach, Florida 33402
For the Department of Julia D. Cobb, Esq. Environmental Department of Environmental Regulation: Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
For the Department Dave Jordan, Esq.
of Community Department of Community Affairs: Affairs
2571 Executive Ctr., Cir., East Tallahassee, Florida 32301
For the City of Joel T. Daves III, Esq.
Riviera Beach: Burdick & Daves Post Office Box 790
West Palm Beach, Florida 33402
For Treasure Roger G. Saberson, Esq.
Coast Regional 110 East Atlantic Avenue
Planning Council: Delray Beach, Florida 33444
For Anti-Dump Coalition, Terrell K. Arline, Esq. Inc., Concerned 325 Clematis Street
Citizens Against Suite C 33401 the Dyer Dump, Inc.,
S.P.O. Homeowners Assn., West Palm Beach, Florida Inc., and The Florida
Wildlife Federation:
PRELIMINARY STATEMENT
Pursuant to the Florida Electrical Power Plant Siting Act, Sections 403.501-403.517, Florida Statutes, The Palm Beach County Solid Waste Authority (Authority) filed, on June 18, 1985, an application for power plant site certification for a resource recovery facility and landfill. The statutory scheme calls for both a land use hearing and a certification hearing. This land use portion of the proceeding raises the sole issue of whether the site selected for the Authority's proposed resource recovery facility is consistent and in compliance with existing land use plans and zoning ordinances.
At the hearing, the Authority called, as witnesses, Robert Basehart, Executive Director, Palm Beach County Planning, Zoning and Building Department, who was accepted as an expert in land use planning and zoning Donald L. Lockhart, Principal Planner, Palm Beach County Planning, Zoning and Building Department, who was accepted as an expert in land use planning and zoning; John
Lehner, Zoning Director, Palm Beach County Planning, Zoning and Building Department, who was accepted as an expert in zoning John T. Chappell, registered professional engineer , who was accepted as an expert in electrical engineering; George G. Gentile, registered landscape architect, who was accepted as an expert in landscape architecture and planning: Stanley E. Dunn, registered professional engineer, who was accepted as an expert in acoustical engineering and, James R. Zook, registered professional engineer, who was accepted as an expert in traffic engineering. The Authority offered Exhibits 1-9, and they were received into evidence.
The Anti-Dump Coalition, Inc., Concerned Citizens Against the Dyer Dump, Inc., S.P.O. Homeowners Association, Inc., and The Florida Wildlife Federation (Coalition) called, as witnesses, Joseph Kuhapcik, Ronnie Sands, David L. Vastola, Michael Martino, Helen Herold and F. Ted Brown, Jr., registered real estate broker, who was accepted as an expert in real estate appraisal. Coalition Exhibit 2 was received into evidence. The City of Riviera Beach (City) called, as witnesses, Robert Basehart, Timothy F. Hunt, Jr., Executive Director of the Palm
Beach County Solid Waste Authority, and Devander Kant, Director of Community Development and Environmental Control, City of Riviera Beach, who was accepted as an expert in planning.
The Department of Environmental Regulation (DER), Department of Community Affairs (DCA), and Treasure Coast Planning Council called no witnesses and offered no exhibits.
The transcript of hearing was filed October 10, 1985. The parties were granted ten days from the date the transcript was filed in which to submit proposed findings of fact and conclusions of law. The Authority and DER have submitted proposed findings of fact, and they have been reviewed and considered. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order. No proposed findings of fact and conclusions of law have been filed on behalf of any other party.
FINDINGS OF FACT
The Resource Recovery Facility
The Palm Beach County Solid Waste Authority (Authority) is an independent authority created by the Florida Legislature under the Palm Beach County Solid Waste Act, Chapter 75-473, as amended, Laws of Florida.
The purpose of the Authority's proposed resource recovery facility (RRF), a solid waste-fired electrical power plant, is to dispose of municipal solid waste and recover energy. This "waste to energy" facility will initially dispose of up to 2,000 tons of refuse each day, and generate up to 50 megawatts of electrical power. The ultimate capacity of the facility is 3,000 tons of refuse each day, and a generating capacity of 75 megawatts.
The proposed RRF complex will include an administration complex, weigh station, refuse receiving and handling building, refuse derived fuel (RDF) building, combustion facility, and two landfills for the disposal of ash residue and non-processible solid waste. A 138-kilovolt (KV) transmission line will link the facility to Florida Power & Light Company's (FP&L's) existing transmission network.
The site development plans for the project contemplate that solid waste will be delivered by truck to the enclosed refuse receiving and handling building, where it will be stored
and sorted. Burnable waste will be converted into "refuse- derived fuel" and combusted to create steam to power the turbines, and generate electricity.
The Site
The site for the proposed RRF is a 1,320-acre parcel of land located in the unincorporated north-central area of Palm Beach County. The site is bounded on the north by the Beeline Highway (S.R. 710), on the east by the Florida Turnpike, on the south by a line approximately 610 feet south of 45th Street, on the west by the City of West Palm Beach Water Catchment Area, and on the northwest by a tract of privately owned property. A 73-acre parcel of land located east of the southernmost portion of the site and the Florida Turnpike, paralleling the south side of 45th Street to Haverhill Road, will serve as a corridor for the proposed 138 KV transmission line from the RRF to FP&L's existing transmission line corridor.
The site is due west of an existing sanitary landfill owned by Palm Bach County, and within two miles of FP&L's transmission line corridor.
e
Consistency of the site with local land use plans and zoning ordinances
Palm Beach County has adopted a Comprehensive Plan, pursuant to Chapter 163, Florida Statutes, which establishes guidelines and policies to promote orderly and balanced economic, social, physical, environmental and fiscal development of the area. Pertinent to this proceeding is the land use plan element of the Comprehensive Plan.
The land use plan, while generally prohibiting commercial and industrial uses on the proposed site, permits the use of the site for a public utility, subject to any restrictions set forth in Palm Beach County's zoning ordinance. Specifically, the land use plan provides:
General Policies. Although there are areas delineated within Palm Beach County for permitting commercial and industrial uses, and in which special policies or regulations apply, there are certain uses and policies which are areawide in nature and are
applicable throughout the County or specific areas of the County. These general policies are as follows:
* * *
3. Public utilities may be located anywhere within Palm Beach County subject to restrictions of the Zoning Ordinance.
The proposed RRF is a public utility.
The proposed site is zoned agricultural residental. The Palm Beach County Zoning Ordinance permits, by special exception, public and private utility services on lands zoned agricultural residential. Specifically, the zoning ordinance permits, among other things:
PUBLIC AND PRIVATE UTILITY SERVICES and
accessory buildings and structures including but not limited to the following:
Electrical power and light substation Gas and water regulation station Incinerator
Refuse and trash dumps Sanitary land fill Sewage Treatment Plant
The transmission line corridor located east of the Florida Turnpike and south of 45th Street, comprising 73 acres of land, is zoned single family residential. The Palm Beach County Zoning Ordinance permits, by special exception,
PUBLIC AND PRIVATE UTILITY SERVICES
and Accessory Buildings and Structures (excluding sanitary land fill, incinerator, and refuse and trash dumps)
on lands zoned single family residential.
By resolution adopted January 8, 1985, the Palm Beach County Board of County Commissioners (Commission) approved a special exception to allow use of the proposed RRF site for the development and operation of the Authority's resource recovery facility and land fills. However, the 73 acres of land which comprise the proposed transmission line corridor east of the Florida Turnpike were not included in the Commission's resolution.
At the time of the land use hearing the Authority had not finalized its decision regarding the manner in which the RRF's transmission lines would be connected to FP&L's existing network. The Authority had under consideration three alternatives: (1) run a transmission line from the RRF, through the Authority's corridor and FP&L's corridor, to FP&L's Riviera Beach Plant, (2) run a transmission line from the RRF, through the Authority's corridor, and connect to FP&L's existing transmission lines by constructing a switching station within the Authority's corridor near Haverhill Road, and (3) run a
transmission line from FP&L's existing transmission line back to the RRF, and construct a switching station at the facility.
The evidence is uncontroverted that the alternatives numbered 1 and 3 are consistent with existing land use plans and zoning ordinances. However, alternative number 2 is inconsistent with existing land use plans and zoning ordinances since the authority has not secured a special exception, which would permit the construction of a switching station on the 73- acre parcel zoned single family residential.
Notice of the land use hearing was published in The Palm Beach Post, a daily newspaper, on July 18, 1985; The Miami Herald, a daily newspaper, on July 25, 1985, and the Florida Administrative Weekly on July 26 1985.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
The sole issue for determination in this land use hearing is whether the Authority's proposed resource recovery site is consistent and in compliance with existing land use plans and zoning ordinances. Section 403.508(2), Florida Statutes.
The evidence is clear that the construction of a switching station within the Authority's transmission line corridor east of the Florida Turnpike is not consistent and in compliance with Palm Beach County's land use plans and zoning ordinances. In all other respects the Authority's proposed resource recovery site and corridor is consistent and in compliance with existing land use plans and zoning ordinances.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order finding that the Palm Beach County Solid Waste Authority's proposal to construct a switching station within its transmission line corridor east of the Florida Turnpike does not conform with existing land use plans and zoning ordinances, but that in all other respects the proposed resource recovery site and corridor is consistent and
in compliance with existing land use plans and zoning ordinances.
DONE AND ENTERED this 7th day of November, 1985, at Tallahassee, Florida.
WILLIAM J. KENDRICK
Hearing Officer
Division of Administrative Hearings Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301 904/488-9675
FILED with the Clerk of the Division of Administrative Hearings this 7th day of November, 1985.
APPENDIX
The Authority's and DER's proposed findings of fact numbered 1, 3, 4, 6-11, 15, and 16 have been adopted. Findings
of fact numbered 2, 5, the second sentence of 12, 13, and 14 have been rejected as not relevant or not necessary to the result reached. The first sentence of finding of fact 12 has been rejected as not being wholly supported by the record.
COPIES FURNISHED:
Glenn W. Robertson, Jr.
Secretary to Florida Land
and Water Adjudicatory Commission Office of the Governor
The Capitol
Tallahassee, Florida 32301
C. Lawrence Keesey, Esq. Department of Community Affairs 2571 Executive Center Circle Tallahassee, Florida 32301
Julia D. Cobb, Esq. Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
Thomas J. Schwartz; Esq.
South Florida Water Management.
District.
Post Office Drawer V
West Palm Beach, Florida 33402-4238
Joel T. Daves III, Esq. Burdick & Daves
Attorneys for City of Riviera Beach Post Office Box 790
West Palm Beach, Florida 33402
Herbert C. Gibson, Esq. Gibson and Adams
Attorneys for Palm Beach County Solid Waste Authority
303 First Street, Suite 400 Post Office Box 1629
West Palm Beach, Florida 33402-1629
Terrell K. Arline, Esq.
Attorney for Anti-Dump Coalition, Inc., Concerned Citizens Against the Dyer Dump, Inc., S.P.O. Homeowners Association, Inc., and The Florida Wildlife Federation
325 Clematis Street, Suite C West Palm Beach, Florida 33401
Roger Saberson, Esq. Attorney for Treasure Coast Regional Planning Council
Delray Executive Mall, 2nd Floor
110 East Atlantic Avenue Delray Beach, Florida 33444
Steven Tribble, Clerk Public Service Commission
101 East Gaines Street
Tallahassee, Florida | 32301 |
Honorable Bob Graham Governor The Capitol Tallahassee, Florida | 32301 |
Honorable Jim Smith Attorney General The Capitol Tallahassee, Florida | 32301 |
Honorable Doyle Conner Commissioner of Agriculture & Consumer Services
The Capitol
Tallahassee, Florida 32301
Honorable Ralph D. Turlington Commissioner of Education
The Capitol
Tallahassee, Florida 32301
Honorable Bill Gunter
Insurance Commissioner & Treasurer The Capitol
Tallahassee, Florida 32301
Honorable George Firestone Secretary of State
The Capitol
Tallahassee, Florida 32301
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
In Re: PALM BEACH COUNTY RESOURCE ) RECOVERY PROJECT, POWER PLANT )
SITING CERTIFICATION APPLICATION ) CASE NO. 85-2032
) (Land Use Hearing)
PA 84-20 )
)
ORDER
By order dated February 13, 1986, the Governor and Cabinet, sitting as the Siting Board, remanded the Recommended Order entered in the above-styled case on November 7, 1995, so that consideration could be given to proposed findings of fact submitted on behalf of the City of Riviera Beach and the Florida Wildlife Federation, Anti-Dump Coalition, Inc., Concerned Citizens Against the Dyer Dump, Inc., and S.P.O. Homeowners Association, Inc. (the Coalition). Consideration has been given to the parties' proposed findings of fact, and an Amended Recommended Order issued this date.
The premises considered, it is ORDERED THAT:
The Siting Board's remand is accepted.
The Recommended Order entered November 7, 1985, is withdrawn.
DONE and ORDERED this 25th day of April, 1986 in Tallahassee, Florida.
WILLIAM J. KENDRICK
Hearlng Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division.of Administrative Hearings this 25th day of April, 1986.
COPIES FURNISHED:
Herbert C. Gibson, Esq. Honorable Bob Graham
Trela J. White, Esq. Governor, State of Florida GIBSON & ADAMS The Capitol
Post Office Box 1629 Tallahassee, FL 32301 West Palm Beach, FL 33402
Honorable Jim Smith
Julia D. Cobb, Esq. Attorney General Department of Environmental State of Florida
Regulation The Capitol
Tallahassee, FL 32301
2600 Blair Stone Road Tallahassee, FL 32301
Honorable Doyle Conner
Dave Jordan, Esq. Commissioner of Agriculture
Department of Community State of Florida Affairs The Capitol
2571 Executive Center, Cir., E. Tallahassee, FL 32301 Tallahassee, FL 32301
Honorable Ralph D. Turlington Commissioner of Education
Joel T. Daves, III, Esq. State of Florida
BURDICK and DAVES The Capitol
Post Office Box 790 Tallahassee, FL 32301 West Palm Beach, FL 33402
Honorable George Firestone
Roger G. Saberson, Esq. Secretary of State
110 East Atlantic Avenue State of Florida
Delray Beach, FL 33444 The Capitol Tallahassee, FL 32301
Terrell K. Arline, Esq.
325 Clematis Street Honorable William Gunter
Suite C Treasurer and Insurance
West Palm Beach, FL 33401 Commissioner State of Florida
Honorable Gerald A. Lewis The Capitol
Comptroller Tallahassee, FL 32301 State of Florida
The Capitol Tallahassee, FL 32301
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PALM BEACH COUNTY RESOURCE ) RECOVERY PROJECT, POWER PLANT )
SITING CERTIFICATION APPLICATION ) Case No. 35-2032
PA 84-20 ) (Certification Hearing)
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above styled case on March 17-21, 1986, in West Palm Beach, Florida.
APPEARANCES
For Palm Beach Herbert C. Gibson, Esq.
County Solid Thela J. White, Esq. Waste Authority: Kathy Loggins, Esq.
Gibson and Adams
303 First Street, Suite 400 Post Office Box 1629
West Palm Beach, Florida 33402
For the Department Julia D.Cobb, Esq. of Environmental Karen A. Brodeen,Esq.
Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
For the Department C. Lawrence Keesey, Esq.
of Community Affairs: Department of Community Affairs
2571 Executive Center Circle, East Tallahassee, Florida 32301
For the South Florida Elizabeth D. Ross, Esq. Water Management Irene K. Quincey, Esq. District: South Florida Water
Management District
301 Gun Club Road
West Palm Beach, Florida 33402
For the City of Joel T. Daves, III, Esq. Riviera Beach: Burdick & Daves
Post Office Box 790
West Palm Beach, Florida 33402
For Treasure Coast Roger G. Saberson, Esq. Regional Planning 110 East Atlantic Avenue Council: Delray Beach, Florida 33444
For Anti-Dump Terrell K. Arline, Esq. Coalition, Inc., 325 Clematis Street Concerned Citizens Suite C
Against the Dyer West Palm Beach, Florida 33401 Dump, Inc., S.P.O.
Homeowners Association, Inc., and the
Florida Wildlife Federation:
PRELIMINARY STATEMENT
On June 18, 1985, Palm Beach County Solid Waste Authority (Authority) filed its application with the Department of Environmental Regulation (DER) for power plant site certification for a resource recovery facility and landfill to be located in Palm Beach County, Florida. Pursuant to Section 403.508(1) and (2), Florida Statutes, a land use hearing was held before the undersigned Hearing Officer on September 12, 1985, and a Recommended Order was submitted to the Governor and Cabinet, sitting as the Siting Board, on November 7, 1985. By order of February 13, 1986, the Siting Board remanded the case to the Hearing Officer, and on April 25, 1986, the Hearing Officer accepted remand, withdrew his Recommended Order, and submitted an Amended Recommended Order to the Siting Board.
By Order Number 15280, issued October 21,1-98, the Florida Public Service Commission (PSC) concluded that a need existed for the electrical generating capacity to be supplied by the proposed resource recovery facility. This Order constituted the final report of the PSC required by Section 403.507(1)(b), Florida Statutes, and creates a presumption of public need and necessity, pursuant to Section 403.519, Florida Statutes.
At hearing the Authority presented the testimony of 12 witnesses and its Exhibits lA-O, 2, 3, 3A, 4-8, 9, 9A, 10, 11,
llA, llB, 12, 13, 13A, 14-22, 23, 23A, 24-26, 27, 27A-G, 28,
28A-G, 281-0, 29, 29A-C, and 30-44, were received into evidence. Testifying on behalf of the Authority were Roger G. Burns, accepted as an expert in the design of resource recovery facilities, with special emphasis on combustion; Edward J. Kaplin, accepted as an expert in meteorology and air dispersion modeling, Allan H. Smith, accepted as an expert in epidemiology
and health risk assessments Edward T. Wei, accepted as an expert in toxicology: Stanley G. Timmerman, accepted as an expert in mechanical engineering: David E. Deans, accepted as an expert in environmental engineering, with special emphasis on landfill design: Joseph E. Fluet, Jr., accepted as an expert in geosynthetic design of landfills Vincent P. Amy, accepted as an expert hydrogeologist, with special emphasis on injection wells, water resource development, ground-water management, ground- water contamination, and aquifer exploration Olin Braids, accepted as an expert in chemistry, with emphasis on water and soil chemistry Marc C. Bruner, accepted as an expert in Biology, with emphasis on ecology: Jack Lauber, accepted as an expert in environmental air pollution control and air control technology: and Clair Fancy, licensed professional engineer.
Intervenors, Anti-Dump Coalition, Inc., Concerned Citizens Against the Dyer Dump, Inc., S.P.O. Homeowners Association, Inc., and the Florida Wildlife Federation (Coalition) and the City of Riviera Beach (Riviera Beach), presented the testimony of 10 witnesses. Testifying on behalf of the Intervenors were Aaron J. Teller, accepted as an expert in chemical engineering, with emphasis-on diffusion, and environmental control systems: John S. Street: John A. Trefry, Jr.: Ralph Dougherty, accepted as an expert on the toxic effects of chlorinated organic compounds on the reproductive systems of animals and humans, and their analysis and control: William T. Cooper, III, accepted as an expert in big-chemistry and geo-chemistry: Jack Walden: Thomas Curtis, Jr., accepted as an expert in surface and ground water hydrology, and modeling: Nathanael Reed: Dwight Goforth, accepted as an expert in Biology: and Barry Commoner, accepted as an expert in Biology and Biochemistry, with emphasis on dioxins and risk assessment associated with municipal waste incinerators. Intervenors' Exhibits 1-9, 11, 13, and 15 were received into evidence.
DER called Hamilton S. Oven as a witness. DER Exhibits 1-3 were received into evidence. The Department of Community Affairs (DCA), South Florida Water Management District (SFWMD), and Treasure Coast Planning Council (Treasure Coast) called no witnesses and offered no exhibits. Seven members of the public testified on their own behalf, and Hearing Officer Exhibits 1,2,5,8 and 9 were received into evidence.
The Authority, DER, the Coalition, and Riviera Beach have submitted proposed findings of fact, and they have been reviewed and considered. A ruling has been mace on each proposed finding in Appendix III to this Recommended Order.
FINDINGS OF FACT
1 The Palm Beach County Solid Waste Authority (Authority)1 proposes to construct a resource recovery facility and two landfills to meet the solid waste disposal needs of Palm Beach County. Presently, the Authority operates two landfills, the Lantana landfill and the Dyer Boulevard landfill, which accommodate 88% of the county's municipal solid waste (MSW). The Lantana landfill will reach its capacity by the middle of
1986, and the Dyer Boulevard landfill will reach its capacity by late 1987. The Authority's proposed facility will meet the county's current and expanding need for MSW disposal for more than 20 years.
The Facility
The facility proposed by the Authority will initially consist of three refuse derived fuel (RFD) manufacturing lines, one oversize bulky waste and ferrous processing line, two spreader-stoker boilers, one 50 megawatt turbogenerator, a cooling system, and a Class I and Class III landfill for the disposal of ash, non-processables and noncombustibles. To support the facility's operations, a maintenance building, administration building, wastewater treatment plant, potable water storage tank, hazardous waste storage and transfer building2 , electrical substation, as well as five borrow lakes, will be constructed on site. When completed, the facility will initially dispose of up to 2,000 tons of MSW each day, and generate up to 50 megawatts of electrical power. The ultimate capacity of the facility will be 3,000 tons of MSW each day, and a generating capacity of 75 megawatts.
The Site
The site for the proposed RRF and landfills is a 1,320- acre parcel of land located in the unincorporated. north-central area of Palm Beach County. The site is bounded on the north by the Beeline Highway (SR 710), on the east by the Florida Turnpike, on the south by a line approximately 610 feet south of 45th Street, on the west by the City of West Palm Beach Water Catchment Area, and on the northwest by a tract of privately owned property. A 73-acre parcel of land located east of the southernmost portion of the site and the Florida Turnpike, paralleling the south side of 45th Street to Haverhill Road,
1
2
will serve as a corridor for a proposed 138-kilovolt (KV) transmission line from the RRF to Florida Power and Light Company's (FP&L's) existing transmission line corridor. As sited, the facility is accessible to major roadways, proximate to the solid waste centroid of Palm Beach County, and buffered from residential neighborhoods by major thoroughfares.
A majority of the proposed site consists of historical wetlands: however, past and present property use have changed the hydrologic regime and topography of the site in many areas. In the northeast portion of the site, there exists an 82 acre borrow lake which supports an active dredge operation. Dredged material is used for construction fill and cover material at the Dyer Boulevard Landfill located east of the Florida Turnpike. Areas to the north of this borrow lake have been scraped below natural elevations, as have areas in the east central portion of the site. Three abandoned shell pit operations, encompassing approximately 171 acres, occupy the southwest corner of the site. Ditches and culverts, installed to drain the wetlands at the interior of the site, have further altered the site's historical characteristics.
The proposed site includes within its boundaries one of the largest nesting assemblages of wading birds catalogued within the Treasure Coast, and a roosting area for the endangered Everglades Kite. The areas most heavily utilized by the wading birds on site are the large marshes at the site's western boundary. The Everglades Kite rookery is concentrated in a series of spoil piles encompassing approximately 10 acres of the abandoned shell pit operation at the southwest corner of the site.
The Authority proposes to locate the RRF complex in the south-central area of the site, and the landfills along the site's eastern boundary, abutting the Florida Turnpike.3 The RRF complex will occupy approximately 40 acres of land. The landfills associated with the facility will consist of a 121- acre Class I landfill of double-liner technology with a leachate collection system and a 192-acre Class III landfill of single- liner technology with a collection system. Borror lakes consisting of approximately 236 acres, dug to a depth of up to 50', will be -developed over the life of the landfill to provide fill for construction and cover material for the landfill. The balance of the site's acreage will be utilized for an access road (36 acres), a conservation area (460 acres), and buffer,
3
service roads, and ditches (223 acres). The Authority's Exhibit 12, attached hereto as Appendix I, graphically illustrates the boundaries and proposed development of the site.
Underlying the site of :he proposed RRF and landfills is the Turnpike Aquifer, the principal source of drinking water in Palm Beach County. This shallow aquifer is recharged by rainfall, and occurs in a band of sandstone several miles wide in the east-west direction, and extends nearly the entire length of the County in the north-south direction. Ground water flow through the aquifer is east to west at a average velocity of
0.33 feet per day in its shallow zone and 0.47 feet per day in its deeper zone. Accordingly, the water catchment area, located west of the site, lies upgradient of the proposed facility.4
Abutting the western boundary of the proposed site is the City of West Palm Beach Water Catchment Area. This catchment area, a Class I source of drinking water, consists of 11,000 acres of wetlands comprised of wet prairies and marsh interspersed with upland hammock. There is abundant wildlife in the area, including alligator, white tailed deer, bobcat, panther, and fox.
The catchment area drains into a canal (the M canal) which runs eastward into Lake Mangonia and Clear Lake. These lakes provide the principal source of drinking water for the City of West Palm Beach. Lake Mangonia has been designated by the Florida Fish and Game Commission as a fish management area.
Impact on Wetlands and Wildlife
As proposed, the site development plan will eliminate approximately 200 acres of wetland. To mitigate the impact of the removal of these wetlands, the Authority proposes to restore
178 acres of previously stressed wetlands and create a minimum of 190 acres of new wetlands on site. Additionally, the Authority has agreed to perform a detailed hydrological study, install water control structures, and refurbish levees to restore the natural hydroperiods to the Florida Game and Fresh Water Fish Commission's J.W. Corbett Wildlife Management Area. This management area consists of 3,400 acres of sawgrass marsh adjacent to the L-8 Canal which, over the years, has been excessively overdrained. When completed, the Authority's mitigation plan will significantly increase wetlands habitat, wildlife populations, and aquatic productivity.
4
To minimize or eliminate any adverse impact to the wading birds which inhabit the western portion of the site, the authority will actively manage the large marsh area on the western portion of the site as a conservation area. To minimize or eliminate any adverse impact to the Everglades Kite, the Authority has agreed to retain the abandoned shell pit area as a rookery, and to screen the rookery from the proposed facility by planting cypress and other native species. The Authority's proposal provides reasonable assurances that the Everglades Kite and the wading birds will not be adversely impacted by the proposed facility.
Impact on water resources
The water management system proposed by the Authority provides reasonable assurances that surface and ground waters will not be adversely impacted by the proposed facility.
A double liner leachate collection system will underlie the landfill area designed for Class I materials (garbage, putrescible waste, bottom ash, fly ash). The double liner system will consist of two layers of geosynthetic textile materials, including a geotextile filter, a geonet, and a high density polyethlene (HDPE) liner, separated by 12 inches of clean sand.5 This system will be constructed on a base of 6 inches of recompacted select fill to prevent any puncture of the liner. Underlying the landfill area designated for Class III materials (yard trash, nonputrescible wastes) will be a single liner leachate collection system. Leachate from the collection system and stormwater from active areas within the landfill area will be collected and processed through an equalization basin and deep well injected. Upon completion, the landfills will be capped with an impermeable layer to prevent further generation of leachate by prohibiting rainfall from entering the landfill. This "cap" will be covered in vegetation to stabilize the landfill and prevent erosion.
The liners proposed by the Authority are nearly impermeable6 , and nothing anticipated to be present in the waste deposited on the landfill is reasonably expected to degrade the collection system The system, as proposed, exceeds DER requirements, and meets, as to the Class I landfill. EPA requirements for hazardous waste landfills.
5
6
As added protection that the ground waters underlying the site will not be adversely impacted, the Authority will install interceptor wells and monitor wells. The interceptor well system will consist of four wells along the eastern boundary of the proposed site and two wells along the eastern boundary of the Dyer landfill. As sited, the wells will be located down gradient of the proposed and existing landfills.
The primary purpose of the interceptor well system is to furnish the process water for the facility7; however, since the rate of withdrawal greatly exceeds the rate at which water flows beneath the landfills, the system will also serve to capture any leachate that might escape the collection system.8 An additional benefit of the interceptor well system is that it provides an economically efficient and environmentally sound method of disposing of the pollutants emanating from the Dyer landfill.9 The wells will not only contain this problem, and prevent its eastward expansion, but will also provide water to serve the non-potable needs of the facility where it can be disposed of in an environmentally sound manner through the facility's deep well injection system.10
The surface water management plan proposed by the Authority is designed so that the 236 acres comprised of borrow lakes will be self-contained and will not contribute runoff to the conservation area or to off-site discharge. The 41-acre area comprising 45th Street, and the borrow lakes and buffer zones south of 45th Street, will likewise be self-contained. Runoff from the remaining 1,043 acres, containing landfills, the resource recovery facility, roadways, buffer areas and the conservation area, will be directed by swales and drain pipes into an on-site wetlands area. This discharge will be controlled to approximate normal hydroperiods and will provide natural treatment of the runoff prior to its ultimate discharge into the conservation area, or the EPB-10 Canal. Baffles, skimmers, or other appropriate mechanisms will be employed to preclude the discharge of petroleum products into the adjacent wetlands from parking areas or other locations in which such pollutants could be present, and a control structure will be installed at the point of discharge into the EPB-10 Canal to limit and manage the previously uncontrolled surface water discharge into the canal. The authority has agreed to monitor the quality of stormwater runoff.
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Built as proposed, and subject to the conditions of certification contained in Appendix II, the proposed facility will not adversely impact water resources, and provides reasonable assurances that the requirements of Chapter 40E-4, F.A.C., relating to water quality, quantityll and environmental impact, will be met.
Air quality impact analysis
Where, as here, a proposed facility will emit a regulated pollutant at a rate equal to or greater than 100 tons per year (TPY), the facility is subject to New Source Review (NSR) - Prevention of Significant Deterioration (PSD) for all pollutants it will emit in PSD - significant amounts.12 NSR requires an ambient air quality analysis for any pollutant for which national or state ambient air quality standards have been established (the criteria pollutants) to assure that the emission levels will not cause or contribute to a violation of ambient air quality standards (AAQS) or any applicable maximum allowable increase (a PSD - increment analysis). For non- criteria pollutants subject to NSR review, NSR requires air quality monitoring to assess ambient air quality for those pollutants in the area to be affected. Finally, NSR requires that the proposed facility apply the Best Available Control Technology (BACT) for each pollutant subject to NSR requirements.
Pertinent to this proceeding, the pollutants subject to NSR requirements are the criteria pollutants particulate matter (PM), sulfur dioxide (50 ), nitrogen oxides (NOx), carbon monoxide (CO), volatile organic compounds (VOC), and lead (Pb), and the non-criteria pollutants flouride (F), sulfuric acid mist, beryllium (Be), and mercury (Hg).
To predict the impact of the proposed facility on air quality, the Authority used DER and Environmental Protection Agency (EPA) approved air quality dispersion models.13 These models are used to predict maximum and average ground level concentrations for gaseous and fine particulate emissions that travel as gases, and maximum and average deposition concentrations for heavy particulates which settle out. The concentration values, as modeled, represent conservative worst case scenarios, 14 and establish the point of maximum impact for heavy particulate to be located on the western boundary of the site.
The Authority's atmospheric dispersion modeling established that the emission rate of the criteria pollutants pertinent to this proceeding(PM, SO2, NOx, CO, and Pb)l5, will not cause or contribute to a violation o' primary or secondary AAQS.16 The modeling further established that the emissions from the facility will not cause a violation of the PSD - increment standards established for SO2 and PM.17
In addition to meeting AAOS and PSD - increment standards, NSR e' so requires a further air quality analysis for the non-criteria pollutants which are expected to be emitted in excess of significant emission rates unless their concentrations are predicted to fall below the "de minimus ambient impact" level established by Table 500-1, Rule 17-2.500, F.A.C. In this case, the predicted emission rates for "he non-criteria pollutants are below the de minimus levels requiring further analysis. Best Available Control Technology (BACT)
Although the Authority has me: the monitoring and air quality analysis requirements of NSR, NSR also requires that the Authority apply the Best Available Control Technology (BACT) for each pollutant the facility will' emit in excess o the significant emission rates established by Table 500-2, Rule 17- 2.500, F.A.C. BACT is defined by Rule 17-2.100(22), F.A.C. as:
An emission limitation, including a visible emissions standard, based on the maximum degree of reduction of each pollutant emitted which the Department, on a case by case basis, taking into account energy, environmental and economic impacts, and other costs, determines is achievable through application of production processes and available methods, systems and techniques (including fuel cleaning or treatment or innovative fuel combustion techniques) for control of each such pollutant.
DER and the Authority initially differed on what emission limitations constituted 9AC- for the proposed facility. The Authority initially advocated, as BACT, an emission limitation achievable through design efficiencies and an electrostatic precipitator (ESP). As proposed, the facility would have met AAOS and PSD - increment standards and, with the exception of SO2, the emission levels of regulated pollutants would have been below de minimus impact levels which require
preconstruction air quality modeling; however, the facility's emissions would still substantially exceed the significant emission rates set forth in Table 500-2, Rule 17-2.500, F.A.C. DER advocated, as BACT, an emission limitation achievable through application of a baghouse to control PM and Pb, and flue gas control equipment (dry scrubbers) to control SO2, F, sulfuric acid mist, and hydrogen chloride (HCL).18 Adoption of DER's limitation standards would result in a reduction of PM to .015 GR/DSCF19 corrected to 12% CO2: F, HCL and sulfuric acid mist (acid gases) by at least 90% of the maximum inlet concentrations: and, significantly reduce SO2 emission rates. At hearing, the Authority agreed to comply with the limitation standards proposed by DER as BACT, and those standards are hereby found to constitute BACT for the proposed facility.
Although the Authority agreed to comply with the emission limitations found to be BACT, Intervenors assert that the Authority should be compelled to utilize a baghouse/dry scrubber system instead of its proposed ESP/dry scrubber system. Intervenors' assertion is without merit. The purpose of a BACT determination is to establish emission limits, not to stipulate the type of pollution control equipment that must be used.
Impact on human health and the environment
Intervenors assert that the emission of acid mist, heavy metals, VOC, and dioxins from the proposed facility could adversely impact human health, the environment and state waters. While Intervenors' concerns merit consideration, competent substantial evidence establishes that at the facility's proposed emission rate there will be no adverse effects on human health, the environment, the ecology of the land and state waters and their wildlife and aquatic life.
Under the conditions of certification, the facility must achieve at least 90% removal of the maximum projected inlet concentrations of sulfuric acid mist, F, and HCL (acid gases). Acid gases emitted from the facility's stack will rise with the hot plume, disperse as do the other gaseous emissions, and will not form an acid rain or fog. At its maximum point of concentration, any acid gases will have no adverse impact on the surrounding area20 or its population.
While the proposed facility will emit some metals, the level of their emission and ultimate deposition will not result in any significant adverse impacts. The Authority has selected RDF technology to dispose of the County's MSW. This technology
lends itself to good pollution control since the waste stream is progressively "cleaned" to remove most non-combustibles before the MSW is incinerated. Under the proposed system, 90-95 percent of the ferrous metals, along with a good portion of the tin, lead, glass, aluminum, chromium and cadmium normally found in MSW will be removed. Removal of these products, prior to combustion, significantly reduces pollutant loading of the atmosphere, provides the Authority with recyclable products for resale, and produces a homogeneous medium grade fuel which allows for optimal control and more complete combustion.
While extremely high levels of dioxin may cause skin eruptions, there is currently no direct evidence that dioxin is carcinogenic or toxic to humans. Dioxin emissions from resource recovery facilities can, however, be minimized and controlled by maintaining combustion temperatures at 180O degrees F, with a residence time of at least one second, and through the use of an ESP. The proposed facility will incorporate these techniques to reduce and control dioxin emissions. Under a worst case scenario for the facility, a hypothetical person who never left the area of maximum residential concentration would be subjected to a dioxin dose rate of 0023 pK/Kq/day. This translates to a cancer risk of 0-0.36 cases/million/70 years, or a dosage 40,000 times lower than that which might cause 1% of laboratory animals to display effects, and 100,000 times lower than exposure rates of chemical sprayers who displayed no effects. As proposed, the surrounding area and its population will suffer no adverse impacts from dioxin emissions of this facility.21
Intervenors sought to establish, by statistical evidence, a correlation between a decrease in sperm count and the increased production of synthetic organic chemicals (VOC's).22 The relevance,if any, of these observations to the proposed facility is speculative at best. First, the design of this facility permits even and controlled combustion to minimize the emission of VOC's. Second, even i£ all of the VOC's emitted were dibromochloropropane, the most potent VOC, the exposure level resulting from this facility would be 100,000 times lower than the level which produced any evidence of infertility in animals. The totality of the evidence establishes that there will be no adverse impacts associated with VOC emissions from this facility.
Agency Comments
The DER has filed its report as required by Section 403.507(2), Florida Statutes, and has recommended certification,
subject to the conditions of certification attached hereto as Appendix II. The Authority has accepted and agreed to be bound by these conditions of certification.
The SFWMD and Treasure Coast do not object to certification, subject to the conditions of certification. The DCA has concluded that the proposed project is compatible with the State Comprehensive plan.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, these proceedings.
While recognizing the need and demand for increased power generation facilities, it is the policy of this State to ensure that the location and operation of electrical power plants will produce minimal adverse effects on human health, the environment, the ecology of the land and state waters and their wildlife and aquatic life. Thus the need and demand for electrical power is to be balanced with the broad interests of the public. This balancing requires a consideration of the provision of abundant, low-cost electrical energy, technically sufficient operational safeguards an_ the need versus environmental impacts resulting from construction and operation of the facility. Section 403.502, Florida Statutes.
36. The evidence adduced at the certification hearing established that the construction and operational safeguards for the proposed facility are technically sufficient for the welfare and protection of the citizens of Florida. If performed in accordance with the recommended conditions of certification attached hereto as Appendix II, the construction, operation and location of the proposed facility may be reasonably expected to 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. Certification is consistent with the premise of abundant, low-cost electrical energy and is a reasonable balance between those minimal environmental impacts which will occur and the recognized need for the proposed facility.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order granting certification for the location, construction and operation of the proposed facility, subject to the conditions of certification attached to this Recommended Order as Appendix T.
DONE AND ENTERED this 21st day of May, 1986, at Tallahassee, Florida.
WILLIAM J. KENDRICK
Hearing Officer
Division of Administrative Hearings Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, l986.
ENDNOTES
1/ The Authority is an independent authority created by the Florida Legislature under the Palm Beach County Solid Waste Act, Chapter 75-473, as amended, Laws of Florida. In creating the Authority, the legislative intent was to form a county-wide authority for the coordinated management of solid waste processing and disposal.
2/ Florida law prohibits the land disposal of hazardous wastes. Any hazardous wastes discovered in the waste stream will be collected and shipped off-site for disposal in accordance with federal and Florida regulations.
3/ As sited, the proposed landfills are more than 3,000 feet from the water catchment area.
4/ A geologic investigation of the site established that the Pamlico Sand is present from land surface to a depth of about 12 feet. The Pamlico Sand consists predominantly of fine gray and brown sand. The Anastasia Formation underlies the Pamlico and includes the entire shallow aquifer. The Anastasia Formation
is composed of gray and tan quartz sand and shells: between about 50 to 100 feet in depth, these deposits generally are cemented to form coquina or sandstone. The bottom of the shallow aquifer in the vicinity of the site lies at a depth of
125 feet. Below 125 feet, the Anastasia Formation contains fine-grained materials in a sandy limestone or sandstone, with reduced permeability. The Anastasia Formation extends to a depth of 250 feet. Beneath the Anastasia Formation are the Tamiami and Hawthorne Formations which have a low permeability and serve to confine the underlying Floridan aquifer. The top of the Floridan aquifer lies at a depth of about 1,000 feet.
5/ From top to bottom the liner and leachate collection system will consist of: 24 inches of clean sand (which will filter and trap leachate as well as cushion the liner below): a geotextile filter, a geonet, and a geomembrane (liner) fabricated of HDPE: another 12 inches of clean sane: and another geotextile filter, geonet, and HDPE geomembrane.
6/ The proposed liners have a permeability factor of lOE-12 CM/S (Centimeters per second). To permeate a substance with that permeability factor would require thousands of years.
7/ An average of 2 million gallons per day (mad), primarily for cooling, and 0.6 mgd for irrigation of the landfills, will be needed for plant operations. A peak draw of 3.2 mdg will be needed for short periods during the dry season.
8/ Approximately 1 mgd is flowing through the aquifer beneath the landfills. Since the interceptor wells will be located downgradient of the proposed landfills, pumping in excess cc 2 mgd provides reasonable assurances that the interceptor well system will capture any leachate that might escape the collection
9/ The Dyer landfill is partially unlined. There is evidence that mineralized water is leaching from the unlined portion of the landfill into the Turnpike aquifer.
10/ Two injection wells will be constructed at the facility and will be used to dispose of waste water, including cooling tower blow-down, boiler blow-down, domestic wastewater, landfill leachate, and septage. The wastewater will be injected into the "boulder zone" a' an approximate depth of 3,000 fee. To monitor the deep well injection system, two annulus monitor tubes will be installed in each well. These tubes will tap both a permeable zone containing salty water located above the
confining sequence that caps the boulder zone, and a shallower zone in the Floridian aquifer. Water samples from the monitor tubes will be periodically collected and analyze.
11/ The drawdown occasion by the withdrawal of the water necessary to operate the proposed facility will reduce the water level in the Water Catchment Area approximately .02 feet a year, an insignificant amount. The water level interference in the City of Riviera Beach well fields located to the east will be approximately 0.4 feet, an insignificant amount. The nominal water demands of this facility, therefore, will not cause or contribute to any detectable salt water intrusion to water resources.
12/ Table 500-2, Rule 17-2.500, F.A.C., establishes a "significant emission rate" in TPY or pounds per year (PPY) for regulated pollutants. If the anticipated emission rate of a pollutant equals or exceeds the established significant emission rate, the pollutant is subject to the NSR requirements.
13/ This modeling incorporates elements for emissions, stack height and downwash, block averaging time, dispersion coefficients for plume spread, stability of the atmosphere, thermally buoyant-.z plume dispersion, and climatology.
14/ The model assumes constant production of he emission rates and makes no allowance for downtime or variable hours of operation. Further, the model does not consider rainfall or humidity. If rain were considered it would reduce the maximum ground level concentrations because of its diluting and scrubbing effect on pollutants. Similarly, the inclusion of humidity would serve to decrease the concentration of a pollutant at the point of maximum impact.
15/ DER and EPA designate geographic areas which meet AAQS for a pollutant as "attainment," and those areas which do not meet AAQS as "nonattainment." Palm Beach County is designated as an attainment area for all criteria pollutants except ozone. Under such circumstances he Authority would normally be required to undergo "non-attainment - new source review" for the pollutant ozone. However, where, as here, less than 100 TPY of VOC (the regulated pollutant for ozone) will be emitted, nonattainment review is unnecessary.
16/ Federal and state laws establish primary AAQS to protect the public health and secondary AAQS to protect the public
interest in animal and plant life, property, visibility, and atmospheric clarity.
17/ The PSD - increments represent the amount that new sources in an area may increase ambient ground-level concentrations of SO.2 and PM over the concentrations that existed on December 27,1977 (the "baseline date").
18/ HCL is not a specified "regulated pollutant:" however, DER may properly regulate the discharge of any pollutant which may result in "air pollution," as defined by Rule 17-2.100(7),
F.A.C. DER established that HCL is intensely corrosive and that, due to the higher percentage of plastics in uture waste streams, the emission rate of HCL will increase in the future. Accordingly, in rendering its BACT determination, DER's consideration of the reduction in HCL emissions achievable through application of dry scrubbers was founded on a rational basis.
19/ Per standard cubic foot of dry gas.
20/ Intervenors raised concern about the deposition of HCL in the water catchment area. Computer modeling establishes that in a worst case a scenario, assuming all the HCL emitted from the facility acts as a particulate matter as opposed to a acts, the water catchment area would receive a maximum annual deposition of 3.49 lbs/acre. The water in the catchment area has a neutralization capacity of 42-i47 times the maximum projected deposition of HCL. Accordingly, the acid emissions from this facility will produce no significant change in water quality.
21/ Currently there are no concrete standards for dioxin emissions, only guidelines. The New York Department of Health accepts a dose of 2 pg/Kg/day, and the U.S. Center for Disease Control a dose of 1.8 pg/Ks/day. The proposed facility will produce a maximum dose of .004 pg/Kg/day.
22/ The regulated pollutant for ozone is hydrocarbons, measured as VOC. VOC's are an amorphous category of chemicals generally consisting of any chemical compound containing carbon, or carbon and hydrogen in combination with any other element, which have vapor pressure greater than 0.10 mm Hg under standard conditions. Rule 17-2.100 (206), F.A.C.
COPIES FURNISHED:
Honorable Bob Graham Governor
The Capitol
Tallahassee, Florida 32301
Honorable George Firestone Secretary of State
The Capitol
Tallahassee, Florida 32301
Honorable Jim Smith Attorney General The Capitol
Tallahassee, Florida 32301
Honorable Gerald A. Lewis Comptro11er
The Capitol
Tallahassee, Florida 32301
Honorable Ralph Turlington Commissioner of Education The Capitol
Tallahassee, Florida 32301
Honorable Doyle Connor Commissioner of Agriculture The Capitol
Tallahassee, Florida 32301
Honorable Bill Gunter Insurance Commissioner and
Treasurer The Capitol
Tallahassee, Florida 32301
Steve Tribble, Clerk
Florida Public Service Commission
101 East Gaines Street Tallahassee, Florida 32301
Victoria Tschinkel, Secretary Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
Glenn W. Robertson Jr.
Secretary to Florida Land
and Water Adjudicatory Commission Office of the Governor
The Capitol
Tallahassee, Florida 32301
C. Lawrence Keesey, Esq. Department of Community Affairs 2571 Executive Center Circle, East Tallahassee, Florida 32301
Julia D. Cobb, Esq.
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
Elizabeth D. Ross, Esq.
South Florida Water Management District 3301 Gun Club Road
West Palm Beach, Florida 33402
Joel T. Daves III, Esq. Burdick and Daves
Attorneys for City of Riviera Beach Post Office Box 790
West Palm Beach, Florida 33402
Herbert C. Gibson, Esq.
303 First Street, Suite 400 Post Office Box 1629
West Palm Beach, Florida 33402
Roger G. Saberson, Esq.
110 East Atlantic Avenue Delray Beach, Florida 33444
Terrell K. Arline, Esq.
325 Clematis Street Suite C
West Palm Beach, Florida 33401
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
In Re: PALM BEACH COUNTY RESOURCE ) RECOVERY PROJECT, POWER PLANT )
SITING CERTIFICATION APPLICATION ) CASE NO. 85-2032
) (Land Use Hearing)
PA 84-20 )
)
AMENDED RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on September 12, 1985, in West Palm Beach, Florida.
APPEARANCES
For Palm Beach Herbert C. Gibson, Esq.
County Solid Trela J. White, Esq. Waste Authority: Gibson and Adams
303 First Street, Suite 400 Post Office Box 1629
West Palm Beach, Florida 33402
For the
Department Julia D. Cobb, Esq.
of Environmental Department of Environmental Regulation: Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
For the Dave Jordan, Esq.
Department Department of Community Affairs of Community 2571 Executive Ctr., Cir., E. Affairs: Tallahassee, Florida 32301
For the City of Joel T. Daves, III, Esq.
Riviera Beach: Burdick & Daves Post Office Box 790
West Palm Beach, Florida 33402
For Treasure Roger G. Saberson, Esq. Coast Regional 110 East Atlantic Avenue Planning Council: Delray Beach, Florida 33444
For Anti-Dump Terrell K. Arline, Esq.
Coalition, Inc., 325 Clematis Street Concerned Citizens Suite C
Against the Dyer West Palm Beach, Florida 33401 Dump, Inc., S.P.O.
Homeowners Assn., Inc., and The Florida Wildlife Federation:
PRELIMINARY STATEMENT
Pursuant to the Florida Electrical Power Plant Siting Act, Sections 403.501-403.517, Florida Statutes, The Palm Beach County Solid Waste Authority (Authority) filed, on June 18, 1985, an application for power plant site certification for a resource recovery facility and landfill. The statutory scheme calls for both a land use hearing and a certification hearing. This land use portion of the proceeding raises the sole issue of whether the site selected for the Authority's proposed resource recovery facility is consistent and in compliance with existing land use plans and zoning ordinances.
At the hearing, the Authority called, as witnesses, Robert Basehart, Executive Director, Palm Beach County Planning, Zoning and Building Department, who was accepted as an expert inland use planning and zoning; Donald L. Lockhart, Principal Planner, Palm Beach County Planning, Zoning and Building Department, who was accepted as an expert in land use planning and zoning; John
Lehner, Zoning Director, Palm Beach County Planning, Zoning and Building Department, who was accepted as an expert in zoning; John T. Chappell, registered professional engineer, who was accepted as an expert in electrical engineering; George G.
Gentile, registered landscape architect, who was accepted as an expert in landscape architecture and planning; Stanley E. Dunn, registered professional engineer, who was accepted as an expert in acoustical engineering; and, James R. Zook, registered professional engineer, who was accepted as an expert in traffic engineering. The Authority offered Exhibits 1-9, and they were received into evidence.
The Anti-Dump Coalition, Inc., Concerned Citizens Against the Dyer Dump, Inc., S.P.O. Homeowners Association, Inc., and The Florida Wildlife Federation (Coalition) called, as witnesses, Joseph Kuhapcik, Ronnie Sands, David L. Vastola, Michael Martino, Helen Herold and F. Ted Brown, Jr., registered real estate broker, who was accepted as an expert in real estate appraisal. Coalition Exhibit 2 was received into evidence. The City of Riviera Beach (City) called, as witnesses, Robert Basehart, Timothy F. Hunt, Jr., Executive Director of the Palm Beach County Solid Waste Authority, and Devander Kant, Director of Community Development and Environmental Control, City of Riviera Beach, who was accepted as an expert in planning.
The Department of Environmental Regulation (DER), Department of Community Affairs (DCA), and Treasure Coast Planning Council called no witnesses and offered no exhibits.
The transcript of hearing was filed October 10, 1985. The parties were granted ten days from the date the transcript was filed in which to submit proposed findings of fact and conclusions of law. The Authority, DER, the City of Riviera Beach and the Coalition have submitted proposed findings of fact, and they have been reviewed and considered. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.
FINDINGS OF FACT
The Palm Beach County Solid Waste Authority (Authority) is an independent authority created by the Florida Legislature under the Palm Beach County Solid Waste Act, Chapter 75-473, as amended, Laws of Florida.
The purpose of the Authority's proposed resource recovery facility (RRF), a solid waste-fired electrical power plant, is to dispose of municipal solid waste and recover energy. This "waste to energy" facility will initially dispose of up to 2,000 tons of refuse each day, and generate up to 50 megawatts of electrical power. The ultimate capacity of the
facility is 3,000 tons of refuse each day, and a generating capacity of 75 megawatts.
The Site
The site for the proposed RRF is a 1,320-acre parcel of land located in the unincorporated north-central area of Palm Beach County. The site is bounded on the north Beeline Highway (SR 710), on the east by the Florida Turnpike, on the south by a line approximately 610 feet south of 45th Street, on the west by the City of West Palm Beach Water Catchment Area, and on the northwest by a tract of privately owned property. A 73-acre parcel of land located east of the southernmost portion of the site and the Florida Turnpike, paralleling the south side of 45th Street to Haverhill Road, will serve as a corridor for a proposed 138-kilovolt (KV) transmission line from the RRF to Florida Power and Light Company's (FP&L's) existing transmission line corridor.
The uses surrounding the site are mixed. Located east of the site, across the Florida Turnpike, is an industrial zoned area currently used by Broward County for a sanitary landfill. This landfill is scheduled for closure in 1987, and will be developed as a recreational facility to be managed as a Palm Beach County park. To the east of that landfill is a residential area and the City of Riviera Beach. The area south of the proposed site is undeveloped. To the west of the site is the City of West Palm Beach Water Catchment Area. North of the Beeline Highway are residential and agricultural uses, and the City of Palm Beach Gardens.
The Resource Recovery Facility
The proposed RRF complex includes administrative and maintenance buildings, a refuse derived fuel (RDF) production plant, and combustion and electrical power production facilities. The RRF complex will occupy approximately 40 acres of the.proposed site. Two landfills for the disposal of ash residue and non-processible solid waste will occupy 385 acres of the site, and borrow lakes consisting of 243 acres will be developed over the life of the landfills to provide fill and cover material for the landfill operation. The balance of the site's acreage will be utilized for an access road (30 acres), a conservation area (427 acres), and buffer service roads and ditches (195 acres).
The site development plans for the project contemplate that solid waste will be delivered by truck to an enclosed refuse receiving and handling building, where it will be stored and sorted. Burnable waste will be converted into "refuse- derived fuel" and combusted to create steam to power the turbines, and generate electricity. The facility will operate 24-hours a day, 365 days a year.
Consistency of the site with local land use plans and zoning ordinances
Palm Beach County has adopted a Comprehensive Plan, pursuant to Chapter 163, Florida Statutes, which establishes guidelines and policies to promote orderly and balanced economic, social, physical, environmental and fiscal development of the area. Pertinent to this proceeding is the land use plan element of the Comprehensive Plan.
The land use plan delineates the lands lying in Palm Beach County into one of ten use categories, ranging from "agricultural preservation" to "commercial." Under the plan, the western portion of the site is designated a "conservation area", and the remainder of the site as "very low to low density residential." When designated "conservation", the plan mandates that the area be zoned agricultural preservation.
The land use categories established by the plan generally prohibit commercial and industrial uses on the proposed site; however, the plan does permit use of the site for a public utility, subject to any restrictions set forth in Palm Beach County's zoning ordinance. Specifically, the land use plan provides:
General Policies. Although there are areas delineated within Palm Beach County for permitting commercial and industrial uses, and in which special policies or regulations apply, there are certain uses and policies which are areawide in nature and are applicable throughout the County or specific areas of the County. These general policies are as follows:
* * *
3. Public utilities may be located anywhere within Palm Beach County subject to
restrictions of the Zoning Ordinance. The proposed RRF is a public utility.1
Under the Palm Beach County Zoning Ordinance, the subject site, including the conservation area, is zoned agricultural residential.2 The County's failure to rezone the conservation area is not, however, dispositive of the issue raised by this proceeding.
The zoning ordinance permits, by special exception, public utilities on lands zoned agricultural residential or agricultural preservation. Specifically, with respect to the agricultural residential district the ordinance permits:
PUBLIC AND PRIVATE UTILITY SERVICES and
accessory buildings and structures including but not limited to the following:
Electrical power and light substation Gas and water regulation station Incinerator
Refuse and trash dumps Sanitary landfill Sewage Treatment Plant
With respect to the agricultural preservation district, the ordinance permits:
PUBLIC AND PRIVATE UTILITY SERVICES and
accessory buildings and structures including but not limited to the following:
Electric power and light substation Gas and water regulation station Sewer Treatment Plant
Water tower, storage tank, reservoir, treatment plant
Transfer station
The transmission line corridor located east of the Florida Turnpike and south of 45th Street, comprising 73 acres of land, is zoned single family residential. The Palm Beach County Zoning Ordinance permits, by special exception,
PUBLIC AND PRIVATE UTILITY SERVICES and
accessory buildings and structures (excluding sanitary land fill, incinerator,
and refuse and trash dumps) on lands zoned single family residential.
By resolution adopted January 8, 1985, the Palm Beach County Board of County Commissioners (Commission) approved a special exception to allow use of the proposed site for the development and operation of the Authority's resource recovery facility. However, the 73 acres of land which comprise the proposed transmission line corridor east of the Florida Turnpike were not included in the Commission's resolution.
The Applicant proposes to erect a transmission line and various support structures within the corridor; however, at the time of the land use hearing the Authority had not finalized its decision regarding the manner in which the RRF's transmission lines would connect to FP&L's existing network.
The Authority had under consideration three alternatives: (l) run a transmission line from the RRF, through the Authority's corridor and FP&L's corridor, to FP&L's Riviera Beach Plant, (2) run a transmission line from the RRF, through the Authority's corridor, and connect to FP&L's existing transmission lines by constructing a switching station within the Authority's corridor near Haverhill Road, and (3) run a transmission line from FP&L's existing transmission line back to the RRF, and construct a switching station at the facility.
Notice of the land use hearing was published in The Palm Beach Post, a daily newspaper, on July 18, 1985; The Miami Herald, a daily newspaper, on July 25, 1985, and, the Florida Administrative Weekly on July 26, 1985.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
The sole issue for determination in this land use hearing is whether the Authority's proposed resource recovery site is consistent and in compliance with existing land use plans and zoning ordinances. Section 403.508(2), Florida Statutes.
The evidence establishes that the Applicant's proposal to utilize lands zoned single family residential for transmission lines and associated structures, without having secured a special exception from the Commission, is not consistent and in compliance with Palm Beach County's land use plans and zoning ordinances. In all other respects, the Authority's proposed resource recovery site is consistent and in compliance with existing land use plans and zoning ordinances.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order finding that the Palm beach County Solid Waste Authority's proposal to construct transmission lines and associated structures within its
transmission line corridor east of the Florida Turnpike does not conform with existing land use plans and zoning ordinances, but that in all other respects the proposed resource recovery site is consistent and in compliance with existing land use plans and zoning ordinances.
DONE and ENTERED this 25 day of April, 1986, in Tallahassee, Florida.
WILLIAM J. KENDRICK
Hearing Officer
Division of Administrative Hearings 2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings
this 25th day of April, 1986.
ENDNOTES
1/ The City of Riviera Beach and the Coalition assert that the terms "industrial" and "public utility" are mutually exclusive, and that the proposed RRF is a non-permitted industrial use. The foregoing provision of the land use plan demonstrates that the parties' assertion of exclusivity is ill founded. The nature of the industry determines whether or not it is a public utility. Where, as here, the nature of the business.is to provide a public service, such as power or solid waste disposal, and the business is subject to special governmental regulation, it is a public utility.
2/ Land use within the agricultural preservation zoning district is more restrictive than that permitted by the agricultural residential district. Under agricultural preservation zoning, uses are restricted to agriculture and related functions such as barns, packing sheds, bona fide farm residences including migrant quarters, processing plants and similar uses of land.
APPENDIX IN CASE NO. 85-2032
The Authority's and DER's proposed findings of fact are addressed as follows:
Addressed in paragraph 2.
Addressed in paragraph 5.
Addressed in paragraphs 5 and 6.
Addressed in paragraph 3.
Addressed in paragraph 4.
Addressed in paragraph 7.
Addressed in paragraph 9.
Addressed in paragraph 9.
Addressed in paragraph 10.
Addressed in paragraph 11.
Addressed in paragraph 13.
First sentence addressed in paragraph 3, Conclusions of Law. Second sentence not relevant.
Not relevant.
Addressed in paragraph 9.
Addressed in paragraphs 9, 10 and 11.
Addressed in paragraph 15.
The City of Riviera Beach's and the Coalition's proposed findings of fact are addressed as follows:
Addressed in paragraphs 2, 3, and 5.
Not relevant.
Addressed in paragraph 3..
Addressed in paragraph 7.
Addressed in paragraphs 8 and 13.
Addressed in paragraphs 8, 10 and 11. 7.-8. Addressed in paragraphs 8 and 10.B 9.-11. Addressed in paragraph 9.
COPIES FURNISHED:
Herbert C. Gibson, Esq. Honorable Bob Graham
Trela J. White, Esq. Governor, State of Florida
GIBSON & ADAMS The Capitol
Post Office Box 1629 Tallahassee, FL 32301 West Palm Beach, FL 33402
Julia D. Cobb, Esq. Honorable Jim Smith Department of Environmental Attorney General
Regulation State of Florida 2600 Blair Stone Road The Capitol
Tallahassee, FL 32301 Tallahassee, FL32301
Dave Jordan, Esq. Honorable Doyle Conner Department of Community Commissioner of Agriculture
Affairs State of Florida
2571 Executive Center, Cir., E The Capitol Tallahassee, FL 32301 Tallahassee, FL 32301
Joel T. Daves, III, Esq. Honorable Ralph D. Turlington BURDICK and DAVES Commissioner of Education
Post Office Box 790 State of Florida West Palm Beach, FL 33402 The Capitol
Tallahassee, FL 32301
Roger G. Saberson, Esq. Honorable George Firestone
110 East Atlantic Avenue Secretary of State Delray Beach, FL 33444 State of Florida
The Capitol Tallahassee, FL 32301
Terrell K. Arline, Esq. Honorable William Gunter
325 Clematis Street Suite Treasurer and Insurance West Palm Beach, FL 33401 Commissioner
State of Florida Honorable Gerald A. Lewis The Capitol Comptroller Tallahassee, FL 32301 State of Florida
The Capitol Tallahassee, FL 32301
| Issue Date | Proceedings |
|---|---|
| Nov. 07, 1985 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 07, 1985 | Recommended Order | Recommend certification of location, construction and operation of resource recovery facility subject to certain conditions. Proposed resource recovery site is consistent with existing land use plans and zoning ordinances |
