STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
In re: )
Application for )
Power Plant Site Certification ) CASE NO. 87-5337 of Pasco County Solid Waste ) (LAND USE HEARING) Resource Recovery Facility )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on February 16, 1988 at the Pasco-Hernando Community College in New Port Richey, Pasco County, Florida. In accordance with Section 403.508(2), Florida Statutes (1987), the sole issue for determination during this portion of the proceeding is whether the site selected for Pasco County's proposed solid waste resource recovery facility and ashfill is consistent and in compliance with existing applicable land use plans and zoning ordinances.
APPEARANCES
For Pasco County: David S. Dee
Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A.
Post office Drawer 190 Tallahassee, Florida 32302
For Department Richard T. Donelan, Jr.
of Environmental Twin Towers Office Building Regulation: 2600 Blair Stone Road
Tallahassee, Florida 32399
For Department C. Lawrence Keesey of Community Rhyne Building
Affairs: 2740 Centerview Drive Tallahassee, Florida 32399
For Southwest Edward B. Helvenston Florida Water 2379 Broad street
Management District: Brooksville, Florida 34609-6899
INTRODUCTION
On November 17, 1987, Pasco County filed an application for approval of a solid waste resource recovery facility and landfill/ashfill, pursuant to the Florida Electrical Power Plant Siting Act (Act), Sections 403.501 et seq., Florida Statutes (1987). The Act requires that a land use hearing and a site certification hearing be held to evaluate the County's application. The land use hearing addresses only the issue of whether the proposed site is consistent and in compliance with existing applicable land use plans and zoning ordinances.
In support of its application, Pasco County presented the testimony of five witnesses: Robert Hauser, Jr., a consulting engineer who was accepted as an expert concerning the siting and permitting of solid waste disposal facilities, including landfills and resource recovery facilities; Frederick J. Lowndes, the Chief Planner of the Pasco County Planning Department, who was accepted as an expert concerning zoning and land use planning; Kenneth W. Baginski, the Pasco County Zoning Administrator, who was accepted as an expert concerning Pasco County's zoning code; Samuel Steffey, II, the Planning Director for the Pasco County Planning Department, who was accepted as an expert concerning zoning and land use planning, including Pasco County's zoning ordinance and comprehensive plan; and Hamilton S. Oven, Jr., the Administrator of the Siting Coordination Section for the Department of Environmental Regulation.
Pasco County's Exhibits 1 through 23 were received into evidence without objection, but with the limitation that such exhibits, particularly Exhibit 19, be utilized only to determine compliance with the local land use regulations and zoning ordinances. The County's exhibits were not offered or received for the purpose of resolving environmental issues which will be addressed at the later site certification hearing.
The Florida Department of Environmental Regulation (DER), the Florida Department of Community Affairs (DCA), the Florida Public Service Commission (PSC), and the Southwest Florida Water Management District (SWFWMD) are parties to this proceeding, pursuant to Section 403.508, Florida Statutes. The DER, DCA and SWFWMD did not call any witnesses or proffer any exhibits at the land use hearing. The Florida Public Service Commission did not attend or otherwise participate at the land use hearing.
After the presentation of the applicant's evidence, non-party members of the general public were invited to comment on land use issues. The eight witnesses who testified were Linda Economos, Irwin Siegel, Edward A. Cooper, Robert Logan, John Bragg, Carol Mathis, I. McDonald and Marie Peters. Public Exhibit 1 was received into evidence.
Subsequent to the hearing, only Pasco County submitted proposed findings of fact and proposed conclusions of law. To the extent that the County's proposed findings of fact are not included in this Recommended Order, they are rejected for the reasons set forth in Appendix A hereto.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence presented at the hearing, the following relevant facts are found:
In 1984, the citizens of Pasco County approved a "straw ballot" proposal providing for the establishment of a resource recovery facility financed with non-ad valorem revenue bonds for the purpose of disposing of the County's solid waste in lieu of utilizing sanitary landfills as a primary disposal method. The Board of County Commissioners of Pasco County thereafter commissioned the consulting engineering firm of Camp Dresser and McKee (CDM) to perform a resource recovery feasibility study and to identify a site for the facility. CDM concluded that a resource recovery facility was an economically feasible approach to solid waste management for Pasco County. After evaluating seven sites for such a facility, CDM recommended a 751-acre site on Hays Road in western Pasco County. The County purchased the site at a cost of approximately three million dollars. In 1987, the Legislature adopted a Special Act, Chapter 87-441, Laws of Florida, establishing a solid waste disposal and resource
recovery system within Pasco County and giving the County exclusive control over the collection and disposal of solid waste generated or brought within the area affected by the Act.
The solid waste disposal and resource recovery system proposed by the County will convert solid waste into electrical power through a process of combustion, utilizing a mass-burn technology, followed by landfilling of the ash residue. Initially, the "waste-to-energy" facility will have three combustion/steam generation units, which will dispose of 900 tons of refuse each day and produce approximately 22 megawatts of electricity. A fourth combustion unit may be added in the future, thus allowing the facility to dispose of 1,200 tons of refuse each day and produce 29 megawatts of electricity. The resource recovery facility and landfill/ashfill is designed with the purpose of complying will all applicable environmental regulations. Best available control technology will be utilized to minimize the emissions of air pollutants. The facility will use a baghouse with fabric filters to control particulate emissions and a dry scrubber to control acid gas emissions. The landfill will have two synthetic liner systems and two leachate collection systems to maximize the protection of groundwater resources. Stormwater on the site will be treated in retention/detention basins, and there will be no discharges of wastewater on the site. Ferrous metals in the solid waste will be recovered and recycled.
The undeveloped 751 acre parcel of land owned by the County is located in an unincorporated area of northwest Pasco County. It is approximately two and a half miles north of Highway 52 and about four to five miles west of Route
The site is accessible by Hays Road, which forms its southern and western boundaries. Shady Hills Road runs to the east of the site and Blue Bird Lane runs along the northern perimeter. The parcel is bisected by Florida Power Corporation power lines, which run in a north/south direction. All development on the site relating to the proposed resource recovery facility will be east of the power lines.
The site primarily consists of grasslands and wooded areas. Most of the areas near the site boundaries are wooded. An access road from Hays Road would be constructed to lead to the resource recovery facility, and the site would also contain a landfill/ashfill and several stormwater retention ponds. The resource recovery facility will be located on the southeastern portion of the site, approximately 4,600 feet from the site's northern boundary. The facility will be approximately 2,400 feet from the nearest residence, which is located on Hays Road. There will be at least 250 feet of buffer area between the resource recovery facility and the property boundaries. There will be at least 700 feet of buffer area between the landfill and the northern boundary of the site. The ashfill portion of the project would be developed over a 25 to 35 year period.
The areas surrounding the site consist of agricultural and very low density residential developments. The areas to the east, southeast, and southwest are very sparsely populated. There is scattered low density residential development to the north, northeast and northwest, and some scattered residences south and southwest of the site. The subject parcel of land lies within the Pasco County Zoning Code's A-C Agricultural District.
According to the Pasco County Zoning Code, Ordinance No. 75-21, the purpose of the A-C Agricultural District is to preserve the rural and open character of various lands within Pasco County. The principal permitted uses within this District include agriculture, general farming and horticulture; single family dwellings; duplexes; home occupations; public and private parks
and playgrounds; mineral extraction activities; and residential treatment and care facilities. Accessory uses include private garages and parking areas, private swimming pools and cabanas, and signs. Special exemption uses within the A-C Agricultural District include country club and golf course, aircraft landing fields, cemeteries, animal hospitals, sanitary landfills and public buildings and public utility facilities which do not cause an undue nuisance or adversely affect existing structures, uses and residents.
Ordinance Number 82-04, Section 2, amended the Pasco County Zoning Code to exempt from its provisions "development and other activities conducted by Pasco County." (Exhibit No. 3) It was the opinion of Pasco County's Zoning Administrator that the proposed resource recovery facility and landfill/ashfill were exempt from the County's Zoning Code. The County's present Planning Director concurred with this opinion. It was further the opinion of the Zoning Administrator that even if the project were subject to the requirements of the Zoning Code, it could be built as a special exemption use in the A-C Agricultural District.
Pasco County has an ordinance, known as the New Development Fair Share Contribution for Road Improvements Ordinance, which requires developers to pay impact fees for transportation purposes. According to the County Planning Director, this ordinance expressly excludes County projects from its provisions.
It was the opinion of the County's land use planning and zoning experts that the use of the site for a resource recovery facility would be compatible with surrounding land uses. The project will be designed so as to be barely visible from surrounding areas and to give as pleasing an aesthetic appearance as possible to the site. When a detailed site plan for the facility is prepared, the project will be evaluated by the Pasco County Development Review Committee, composed of County employees from various departments, to ensure that the project is consistent with existing regulations and compatible with surrounding land uses.
The Pasco County comprehensive land use plan was adopted in 1982 and is currently being revised. It is a policy document containing various planning elements, with goals, objectives, policies and recommendations. It does not currently include a land use map that specifically identifies the permissible land uses for the site of the proposed resource recovery facility. In the process of updating its comprehensive plan, the County will adopt a future land use map. The Chief Planner for the Pasco County Planning Department testified that the land use map to be submitted for future adoption will designate the proposed site as a resource recovery site.
The County's comprehensive plan contains a solid waste and resource recovery element. The plan recognizes waste disposal as a crucial concern, and the goal of this element is to dispose of the County's domestic and industrial waste in the safest and least expensive manner. From an engineering perspective, the project will be designed to comply with applicable state and federal requirements pertaining to air and water pollution. The economic feasibility of a resource recovery facility has been studied, with positive results.
Other elements of the Pasco County comprehensive plan relevant to the proposed resource recovery facility include the traffic circulation element, the water element, the conservation/coastal zone protection element, the drainage element and the utilities element. A traffic analysis demonstrated that current levels of service on State Road 52 and on Hays Road will not be diminished as a
result of project operations. The use of reclaimed water will promote the objective of water conservation. The proposed site has not been designated for preservation or conservation and the project will have minimal impact on wetland areas. The stormwater management system will be designed so that runoff will not be channelized into any natural surface water body. The retention basins will be of sufficient size to allow adequate settling of suspended solids collected with the stormwater. By producing electrical power as a by-product of solid waste disposal, the project will further the objective of the comprehensive plan's utility element of encouraging the conservation of limited resources in the operations of utility systems.
On December 31, 1987, notice of the land use hearing was published in the Pasco Times newspaper, a daily newspaper of general circulation which has been continuously published at Port Richey in Pasco County, Florida, each day for a period in excess of one year preceding the publication of notice in this case. In addition, notice of the land use hearing was published in the Florida Administrative Weekly, Volume 13, Number 53, on December 31, 1987. The Department of Environmental Regulation issued a news release concerning the land use hearing on December 24, 1987. By letters dated December 28, 1987, notice was given by certified mail to the Executive Director of the Tampa Bay Regional Planning Council, the Pasco County Planning Department and the Pasco County Zoning Administrator. Notice of the land use hearing was also posted at the project site.
Eight persons, all of whom resided or owned property near the proposed site, testified at the land use hearing as members of the general public. All opposed the construction and operation of a resource recovery facility and landfill/ashfill at that site. Though none of the witnesses claimed to have expertise concerning the subject matter of their testimony, their concerns included the impacts of the proposed project upon the environment; the value and use of their land, homes and businesses; the recreational value of surrounding properties and the general agricultural character and nature of the surrounding land. Concerns were also expressed over the safety features and costs involved in the operation of the facility. These citizens of Pasco County did not believe it was proper for the County to exempt itself from the County's zoning laws and impact fees.
CONCLUSIONS OF LAW
The sole issue for determination in this portion of the proceeding is whether the proposed Pasco County resource recovery facility and landfill/ashfill are consistent and in compliance with the applicable portions of the County's existing land use plan and zoning ordinance. Section 403.508(2), Florida Statutes.
Environmental and other issues will be considered during the certification hearing presently scheduled to commence on April 11, 1988. See Section 403.508(3), Florida Statutes.
Pasco County has demonstrated by competent, substantial evidence that the location of its proposed resource recovery project does conform with existing land use plans and zoning ordinances. Even if County projects were not exempt from the provisions and limitations of the Zoning Code, Article V, Section 5.3(H) of that Code expressly provides for "sanitary landfills subject to all local, state and federal regulations" as a special exemption use within the A-C Agricultural District. The County intends to design, construct and operate the facility in accordance with all local, state and federal
requirements. Likewise, public utility facilities are permissible as a special exemption use as long as they do not cause an undue nuisance or adversely affect existing structures, uses and residents. See Article V, Section 5.3(C). It appears from the evidence presented that the facility will be designed so as to be aesthetically pleasing, with an extensive natural buffer surrounding the site. If the environmental controls proposed are feasible and effective (the subject of the later certification hearing), there should be no undue nuisance, and existing structures, uses and residents should not be adversely affected.
The County has also demonstrated conformance of the proposed project at the proposed site with its comprehensive land use plan. The various elements of the plan, particularly the solid waste and resource recovery element, have been studied and reviewed in order to determine the consistency of the project with the individual goals, objectives and policies of the comprehensive plan. Other than the personal preferences of eight landowners near the site, there was no evidence to suggest that the location of the project at that site would be contrary to or inconsistent with the Pasco County comprehensive plan.
Finally, there was a suggestion by a member of the general public that the newspaper notice of the land use hearing was defective because it did not appear in a newspaper "printed" in Pasco County. It is clear from the evidence that the notice of the land use hearing fully complied with the applicable statutory and regulatory requirements. See Section 403.508(1), Florida Statutes, and Rule 17-17.151(4), Florida Administrative Code. With respect to newspaper notice, the statute and rule require only that the notice be "published" in a newspaper of general circulation in the county in which the site is located. There is no requirement that the notice be "printed" in the same county. The evidence clearly demonstrates that the notice of the land use hearing timely appeared in the Pasco Times, a daily newspaper published in Pasco County. The common definition of the word "publish" is to disseminate, to make generally known or to place before the public. The common definition of the word "print" is to impress something in or on something else. It is clear that the intent of the statutory and regulatory notice requirements was to provide public awareness that a land use hearing would be held. That intent was fully satisfied by the timely and appropriate publication of notice of the hearing in the Pasco Times.
Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order finding that the use of the site chosen by Pasco County for the location of its proposed solid waste and resource recovery facility is consistent with and in compliance with the applicable land use plans and zoning ordinances.
Respectfully submitted and entered this 25th day of March, 1988, in Tallahassee, Florida.
DIANE D. TREMOR
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1988.
APPENDIX "A" TO RECOMMENDED ORDER, CASE NO. 87-5337
Pasco County's proposed findings of fact have been fully considered and are accepted and incorporated in this Recommended Order, with the following exceptions:
16, second sentence: Rejected as speculative.
See Finding of Fact Number 10.
22, last sentence: Rejected as improper factual
finding, but addressed in the Conclusions of Law.
23, last sentence: Rejected as argumentative and
improper factual finding, but addressed in Conclusions of Law.
COPIES FURNISHED:
David S. Dee
Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A.
Post Office Drawer 190 Tallahassee, Florida 32302
Richard T. Donelan, Jr. Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399
C. Lawrence Keesey Rhyne Building
2740 Centerview Drive
Tallahassee, Florida 32399
Edward B. Helvenston 2379 Broad Street
Brooksville, Florida 34609-6899
Mike Twomey
Florida Public Service Commission
101 East Gaines Street Tallahassee, Florida 32301
Honorable Bob Martinez Governor
The Capitol
Tallahassee, Florida 32399
Honorable Bob Butterworth Attorney General
The Capitol
Tallahassee, Florida 32399
Honorable Doyle Conner Commissioner of Agriculture The Capitol
Tallahassee, Florida 32399
Honorable Gerald Lewis Comptroller
The Capitol
Tallahassee, Florida 32399
Honorable Bill Gunter Insurance Commissioner The Capitol
Tallahassee, Florida 32399
Honorable Betty Castor Commissioner of Education The Capitol
Tallahassee, Florida 32399
Honorable Jim Smith Secretary of State The Capitol
Tallahassee, Florida 32399
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
IN RE: )
)
Application for )
Power Plant Site Certification )
of Pasco County Solid Waste ) CASE NO. 87-5337 Resource Recovery Facility )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on April
11 and 12, 1988, in New Port Richey, Pasco County, Florida. The issue for determination at this certification hearing, held pursuant to Section 403.508(3), Florida Statutes, is whether Pasco County's proposed resource recovery facility, landfill/ashfill and associated facilities are entitled to approval by the Governor and Cabinet, sitting as the Siting Board, in accordance with the Florida Electrical Power Plant Siting Act, Sections 403.501, et seq., Florida Statutes (1987).
APPEARANCES
For Applicant David S. Dee, Esquire Pasco County: Carlton, Fields, Ward,
Emmanuel, Smith, Cutler, P.A. First Florida Bank Building
215 South Monroe Street, Suite 410 Tallahassee, Florida 32301
For Department Richard T. Donelan, Jr., Esquire
of Environmental Department of Environmental Regulation Regulation: 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
For Southwest Edward B. Helvenston, Esquire Florida Water Southwest Florida Water
Management Management District District: 2379 Broad Street
Brooksville, Florida 34609-6899
For Department C. Laurence Keesey, Esquire
of Community Department of Community Affairs Affairs: 2740 Centerview Drive
Rhyne Building
Tallahassee, Florida 32309
For Intervenor William W. Deane, Esquire Shady Hills Park 1700 9th Street North, Suite B
and Civic Assoc.: St. Petersburg, Florida 33704
INTRODUCTION
On November 17, 1987, Pasco County filed an application for approval of a resource recovery facility, landfill/ashfill and associated facilities pursuant to the Florida Electrical Power Plant Siting Act, Sections 403.501, et seq., Florida Statutes (1987). The undersigned presided over the land use hearing on February 16, 1988, to determine whether the site selected for the project was consistent and in compliance with existing applicable land use plans and zoning ordinances. A Recommended Order finding such consistency and compliance was entered on March 25, 1988.
On March 24, 1988, the Shady Hills Park and Civic Association, Inc. filed a motion to intervene and participate as a party at the certification hearing.
Thereafter, Pasco County moved to strike certain portions of the motion to intervene. After a telephone conference call, the undersigned granted the
motion to intervene, but struck those portions of the intervenor's petition which attempted to raise issues beyond the scope of the certification hearing; i.e.: the impact of the project upon property values; alternatives to the proposed method of solid waste disposal, except insofar as such alternatives may relate to the Best Available Control Technology; and issues regarding unadopted dioxin standards. The intervenor's post-hearing motion filed on June 7, 1988, to "supplement record, reopen hearing and hear testimony" was denied by separate order filed on June 28, 1988.
In support of its application, Pasco County presented the testimony of Robert Hauser, Jr., accepted as an expert concerning solid waste disposal, including the use of landfills and resource recovery facilities; Donald Elias, accepted as an expert concerning air pollution, including the air emissions from resource recovery facilities; Walter R. Niessen, accepted as an expert concerning resource recovery facilities, including dioxin emissions from such facilities; Clair Fancy, accepted as an expert concerning the regulation of air pollution; Hamilton S. Oven, Jr., the Department of Environmental Regulation's Administrator in charge of the Siting Coordination Section; and Suheil "Jim" Jammal, accepted as an expert in the area of geotechnical investigation, with special emphasis upon sinkholes. Pasco County's Exhibits 1 through 19, 22A-E, and 24 were received into evidence.
The Florida Department of Environmental Regulation (DER), the Florida Department of Community Affairs (DCA), the Florida Public Service Commission (PSC) and the Southwest Florida Water Management District (SWFWMD) are parties to this proceeding pursuant to Section 403.508(4)(a), Florida Statutes. The DER called one witness, Clair Fancy, and introduced DER Exhibits 1 through 4 without objection. The DCA and SWFWMD did not call any witnesses or proffer any exhibits at the site certification hearing. The PSC made no appearance at the hearing.
Testifying on behalf of the intervenor Shady Hills Park and Civic Association, Inc. were John Parker, accepted as an expert in the area of hydrogeology (as limited to his review of the subject application for certification); Dr. Ernest Dwight Adams, accepted as an expert in physics, as it relates to solid waste mangement; John James Gallagher, the Pasco County Administrator; and Edward Kooper, accepted as an expert concerning the induced draft combustion process as it relates to foundries. Also, the intervenor's Exhibit 1, the deposition testimony of Gardner Strasser, was received into evidence.
The public comment portion of the certification hearing was conducted on the evening of April 11, 1988. Testifying as members of the general public were Brad Cecil, Irving Siegel, Mike Snider, Gerden M. Monk, Linda Johnson, John Bragg, Linda Almond, Tom Strode, Ruth Kirkman, Betty Tillis, Ernest Longo, David Hausman, John Hausman, Curtis Almond, Regina Longo, Sandra Lugar, Richard Konst, Julie Sandlin, Steve Robinson, Amelia Bruno, Robin Bragg, Laura Osmundsen, Mary Parino, Michael May, Tom Collins, Terry Waddell, Robert Logan, Angie Almond, Sonya Logan, Lynda Economos, Florence Freudenstein, Mary Mazzuco, Donald Acreman, William Hubbardson, Rosalind Estrin, Carol Lezark and Leslie Diane Acreman. Testifying as members of the general public during other portions of the hearing were Mark D. Goldstein and William F. Belote. Several public comment letters were received into evidence.
Subsequent to the certification hearing, Pasco County, the DER and the intervenor submitted proposed findings of fact and proposed conclusions of law. The SWFWMD adopted the proposals submitted by the DER. To the extent that the
parties' proposed findings of fact are not included in this Recommended Order, they are rejected for the reasons set forth in Appendix B hereto.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence presented at the site certification hearing, the following relevant facts are found:
After investigating and evaluating alternative methods of solid waste disposal for several years, Pasco County determined that a mass burn resource recovery (refuse to energy) system was the most prudent long-term method of disposal for Pasco County. In 1984, the citizens of Pasco County approved a "straw ballot" proposal providing for the establishment of a resource recovery system financed with non-tax supported bonds in lieu of utilizing sanitary landfills as a primary disposal method. (Exhibit 2, at 3-1) In 1987, the Legislature adopted a Special Act (Chapter 87-441, Laws of Florida) which authorized a solid waste disposal and resource recovery system within Pasco County and gave the County exclusive control over the collection and disposal of solid waste generated or brought within the area affected by the special act.
The site selected for the proposed project, as well as the surrounding area, has been fully described and discussed in the Recommended Order entered on March 25, 1988, after the land use hearing. To briefly summarize, the project is to be located on an undeveloped 751 acre parcel of land owned by the County. The site is in an unincorporated area of northwest Pasco County, approximately two and a half miles north of Highway 52 and about four to five miles west of Route 41. It is accessible by Hays Road, which forms part of its southern and western boundaries. The property includes several isolated ponds located west of a Florida Power Corporation transmission line which bisects the property and runs in a north/south direction. The entire proposed project, with the exception of two wells and one retention pond, will be situated east of the power lines. The areas around the site consist primarily of vacant grass lands, small farms and low density residential areas. There is an existing recreational park near the north boundary of the site, and there are existing and proposed schools and parks located within five miles of the site. Approximately 18,000 people reside within five miles of the site. In addition, there is a Girl Scout camp located about 3 miles from the site and a new development known as the Word of Life Youth Camp and Adult Conference Center being built approximately two miles southwest of the site. The resource recovery facility will be located on the southeastern portion of the site, and will be approximately 2,400 feet from the nearest home, which is located on Hays Road. The facility will be about 4,600 feet from the site's northern boundary and there will be at least 700 feet of buffer between the landfill/ashfill and the northern boundary. Approximately 65 percent of the site will be maintained as open areas or buffer zones.
No threatened or endangered plant or animal species were discovered on the site; however, the site does provide habitat for a species of special concern - the gopher tortoise. Upon the recommendation of the Florida Game and Fresh Water Fish Commission, the County has agreed to relocate the tortoises to the southwest corner of the site and to work with the Commission in the relocation plan and long term management plan prior to the commencement of clearing activities. See Section XXI of Conditions of Certification.
No significant archaeological or historical sites have been identified as lying within the boundaries of the proposed site.
The proposed project will consist of an access road, a gatehouse/weigh station, an enclosed waste receiving and handling building, an incineration and cooling system, an air pollution control system, a landfill/ashfill, four stormwater retention ponds, a transmission line from the plant to an on-site Florida Power Corporation substation, and two wells to supply the plant with potable water and to provide an alternative source of cooling water, if needed. The resource recovery system will convert solid waste into electrical power through a combustion process that utilizes a mass burn technology. The ash from the combustion process will be landfilled after metals have been removed. The combustion gases will travel through an acid gas control dry scrubber and a baghouse and be discharged through a stack into the atmosphere. There will not be any significant preprocessing of the refuse at the facility prior to combustion. Waste will be brought to the facility by approximately 90 to 100 trucks per day. All areas where refuse will be handled will be fully enclosed to prevent noise and the escape of dust and odors.
The County is seeking approval of an ultimate site generating capacity of 29 megawatts and an ultimate disposal capacity of 1200 tons per day. Initial plant operation is expected to employ three mass burn furnace units of 350 tons per day capacity each, for a combined capacity of 1,050 tons per day. All of the County's environmental analysis evaluated the impacts of the facility at its ultimate site capacity of 1,200 tons per day.
During normal operation, all of the facility's cooling water will be treated effluent drawn from the County's Hudson subregional wastewater treatment plant. For emergency use, an on-site well will be reserved as an alternative source of cooling water. All wastewater created will be routed back by pipeline to the Hudson plant for treatment and disposal. No process water from the resource recovery facility will be discharged directly to surface or groundwaters.
A stormwater management system with four retention ponds will be constructed on the site to ensure that the first inch of stormwater is retained for infiltration in 72 hours. The system is designed to ensure that the post- development peak runoff rate from the 25 year, 24 hour storm event will not exceed the predevelopment runoff rate from a similar storm. No wetland areas will be destroyed or otherwise affected by the proposed project.
The proposed resource recovery facility will emit a variety of pollutants into the ambient air. During the application process, the County's consultants worked with the DER and the United States Environmental Protection Agency (EPA) to establish an appropriate plan of study and protocol for assessing the project's air emissions. The data utilized by Pasco County was appropriate and provided a conservative representation of air quality at the site.
Since the facility will emit more than 100 tons per year of carbon monoxide, it is subject to Prevention of Significant Deterioration (PSD) review, which includes a Best Available Control Technology (BACT) review. The facility is expected to emit nine PSD-regulated pollutants in PSD significant amounts. These include the criteria pollutants of particulate matter (PM), sulfur dioxide (SO2), nitrogen dioxide (NO2), carbon monoxide (CO), volatile organic compounds (VOC), and lead (Pb), and the non-criteria substances of flourides, sulfuric acid mist and mercury.
The County performed a BACT analysis on a pollutant-by-pollutant basis, and attempted to balance energy, environmental and economic
considerations. The air pollution controls proposed represent the BACT for this facility. These include a dry scrubber for the control of acid gases and a baghouse (fabric filter) for the control of particulate matter. Such controls are in accordance with the EPA's current operational guidance policies for a proposed municipal waste combustion source. The County's air quality modeling demonstrates that the operation of a 1,200 ton per day facility will not violate any state or federal guidelines or standards regulating airborne emissions. The anticipated emissions will be substantially less than the Florida Ambient Air Quality Standards.
The incineration of plastics produces hydrochloric acid and yard waste produces nitrous oxide. The intervenor has contended that plastics, metals, glass and yard clippings should be removed from the waste stream before they are incinerated in the resource recovery facility. The County considered source separation and recycling when considering the BACT for this facility. Due to the difficulty of obtaining public cooperation, economic feasibility, reliability on a day-to-day basis, as well as the effectiveness of the dry scrubber and baghouse in removing acid gases and particulate matter, the County concluded that source separation would not be a feasible technique for controlling emissions in a municipal facility of this size. While some emissions of pollutants could perhaps be reduced even further by the removal of plastics, yard trash and metals from the waste stream prior to incineration, further reductions in the emissions expected from operations of the County's proposed system would not produce any meaningful benefits and would add considerable costs. The County will, however, continue to investigate recycling and source separation as part of an overall management program.
Pasco County will control dioxin emissions from the facility by maintaining a good, well-mixed combustion system that will maintain a temperature of 1800 degrees fahrenheit for a minimum of one second and through the use of the dry scrubber and baghouse system. The dioxin emissions will be extremely low and of no unacceptable risk to the health of the public.
Hazardous wastes, hospital wastes and infectious wastes will not be permitted at the landfill or the resource recovery facility. If such wastes are discovered, they will be segregated and promptly removed from the site. While small quantities of pesticides or volatile organic compounds may enter the waste stream, the system is designed to handle such small quantities.
The landfill will receive the non-processible waste and the ashfill will receive the ash residue resulting from the combustion of residential and commercial waste. The landfill/ashfill will be operated as a monofill -- i.e., unprocessed refuse will be placed in cells where it can be kept apart from the incinerator ash. It will be built over a period of 30 years, and will occupy approximately 195 acres of the most favorable portions of the site. The design of the landfill/ashfill includes two separate synthetic liners, two leachate collection systems and sixteen separate cells. The two liner systems will provide two layers of protection for groundwater resources beneath the site. There will be two feet of sand between the ash and the top liner and another twelve inches of sand between the top and bottom liners. Two leachate collection systems will collect and remove any fluids that drain through the refuse. The liner systems are designed to last indefinitely; however, the manufacturers of the liner material provide only a two or three year warranty for materials, workmanship and installation. When a cell is closed, it will receive an impervious cap so that rainfall cannot enter the cell. The weight of a fully loaded cell 100 feet high is expected to cause approximately 15 inches of settlement at the center.
The County's consultants conducted an extensive geotechnical investigation of the subsurface conditions at the site to determine its acceptability for the total facility and to evaluate the site's ability to provide an adequate foundation for the facility. Topographic maps showed some circular depressions within the property boundaries of the landfill/ashfill. Ground penetrating radar revealed some 18 anomalies, and these were all investigated to determine if there were any potentials for sinkholes or subsiding structures on the site. Some 88 borings were installed at the site. The borings demonstrated that the anomalies were not historic sinkholes and would not adversely affect the landfill/ashfill operation.
The portion of the site deemed most appropriate for the landfill/ashfill is of relatively uniform stratigraphy characterized by a uniform layer of surficial sand, a reasonably continuous clay confining layer from 5 to 15 feet thick, under which lies the limestone groundwater-bearing formation, the Floridian aquifer. The 267 acres deemed acceptable for the construction of the landfill/ashfill is believed by experts to have a low potential for sinkholes. Should a sinkhole occur, it would not be a large or catastrophic sinkhole, but instead would be expected to be no more than 10 to 15 feet in diameter and 4 to 6 feet in depth. The landfill liner is designed to elongate and stretch to accommodate a potential sinkhole of such size. Also, installation of the impervious liners will eliminate surface water recharge to the Floridian aquifer within the landfill boundaries. Since the movement of water through the subsurface contributes to the formation of sinkholes, the liner installation will substantially reduce the likelihood of new sinkholes in that area. As an additional precaution, the County intends to proof roll the area with heavy mechanical equipment prior to the installation of the liner systems. This will trigger subsidence of any collapse-prone sediments in the area. Neither the project's two wells nor other agricultural or private potable wells in the area are expected to affect the development of sinkholes at the site.
The combustion of municipal solid waste will reduce the volume of waste to be landfilled by approximately 70 percent, and will reduce the County's need for landfill capacity by some 13.5 million cubic yards over a 24-year period. At the same time, the facility will generate at least 182 million kilowatt hours of electricity per year, or 3.7 billion kilowatt hours over the minimum 20 year life of the facility. Electricity will be produced by utilizing materials that otherwise would be buried in a landfill and the use of crude oil will be decreased by some 352,000 barrels per year, saving some $6.3 million per year. The local economy of the area will benefit from the operation and construction of the facility.
By Order Number 17752, the Florida Public Service Commission granted the petition of Pasco County for a determination of need for its proposed 29 megawatt facility. The Commission found that, although the plant is small, it would contribute to the reliability and integrity of the electric system in peninsula Florida.
The Florida Department of Community Affairs evaluated the compatibility of the proposed project with the applicable goals and policies contained in the State Comprehensive Plan. With certain conditions of certification relating to groundwater monitoring, a contingency plan for the mitigation of any detected leachate leakage and a buffer zone to minimize noise and aesthetic aspects, the Department found the project to be compatible with the State Comprehensive Plan's policies and goals concerning water resources,
natural systems and recreational lands, air quality, energy, hazardous and nonhazardous wastes, land use, public facilities and cultural and historical resources.
The Southwest Florida Water Management District (SWFWMD) evaluated the County's proposal in accordance with its responsibilities regarding the consumptive use of water (the two on-site wells), surface water management and the project's impact on water resources. With certain recommendations regarding the construction and operation of the facility, the SWFWMD recommended approval of the project. Such recommendations have been incorporated into the conditions of certifications.
The County's application for site certification was also reviewed by Florida's Department of Commerce, Department of State, Department of Natural Resources, Department of Agriculture and Consumer Services and Game and Fresh Water Fish Commission. (Exhibits 11-15). Each agency commented favorably on the project with regard to those areas within their jurisdiction and concern. To the extent that recommendations were made and concerns expressed, they have been incorporated into the conditions of certification.
The County's application was thoroughly evaluated by the DER's staff from the Tampa District Office and the Bureaus of Permitting, Groundwater Protection, Air Quality Management, Waste Management, and Laboratories and Special Programs. The DER concluded that the proposed design of the facility offered reasonable assurances that DER Standards would be met and recommended certification of the project subject to the conditions of certification.
Pasco County has stipulated that it will accept and comply with all proposed conditions of site certification, and the evidence demonstrates that the County will be able to do so. The County has not requested any variances from any applicable standards or regulations of any agency for the construction or operation of the proposed facility.
On March 10, 1988, the DER issued a News Release announcing its intent to recommend approval of the County's proposed project and advising of the certification hearing scheduled to commence on April 11, 1988. Notice of the site certification hearing was also published on March 11, 1988, in both the Florida Administrative Weekly and the Pasco Times, a daily newspaper published at Port Richey in Pasco County. In addition, notice of the DER determination of Best Available Control Technology (BACT) to minimize air pollutant emissions from the proposed facility was published in the Florida Administrative Weekly on March 4, 1988. Copies of the County's application and notice of the DER's proposed agency action were also provided to the United States EPA, the Federal Land Manager, the Tampa Bay Regional Planning Council and other persons and agencies entitled to notice pursuant to the DER's rules.
Forty-one non-party members of the general public testified at the site certification hearing in opposition to the County's proposed resource recovery facility project. Although an evening session was set aside for this purpose, most of these citizens attended all or most of the formal presentation of evidence by the parties to this proceeding. The public comment and concern covered a wide range of issues, most of which were addressed at the hearing, in this Recommended Order and in the prior Recommended Order entered after the land use hearing. The concerns of the public included water quality and concerns for the Floridian aquifer, zoning; recreational activity in the vicinity of the project; dust from increased traffic; alternative methods of waste management, including source separation, recycling, and composting; toxic emissions and
other forms of air pollution; flooding and stormwater management; the integrity and reliability of the proposed landfill/ashfill liners; the impact upon property values in the area; the safe operation of the facility; health hazards; fire protection; sinkholes; lack of opportunity for public input into the County's decision-making process; endangered wildlife; aesthetics; and the costs of resource recovery and waste disposal to the citizens of Pasco County.
CONCLUSIONS OF LAW
This Proceeding is governed by the Florida Electrical Power Plant Siting Act, Sections 403.501, et seq., Florida Statutes (1987), as well as the rules and regulations contained in Chapter 17-17 and 17-2 of the Florida Administrative Code. The Act sets forth a uniform review procedure whereby state and local concerns are coordinated and decisions can be reviewed on the basis of the Standards and recommendations of the various deciding agencies. It is intended that the need for a particular facility will be balanced against the effects of its location and operation upon "human health, the environment, the ecology of the land and its wildlife, and the ecology of state waters and their aquatic life." Section 403.502, Florida Statutes.
Here, the PSC has determined that there is a need for the proposed solid waste resource recovery facility. In order to balance that need against the environmental impacts resulting from the construction and operation of such a facility, the County retained the services of highly qualified consultants to investigate and devise a system that would produce no adverse effects upon human health or the environment. Pasco County has presented competent substantial evidence that its proposed state-of-the-art design and methods of operation for the resource recovery facility, the landfill/ashfill and associated facilities at the proposed location will satisfy the criteria and balancing test required by the Legislature. All of the reports, studies and comments from the various state and regional agencies confirm such conformance and compliance with applicable standards and regulations, provided that the conditions of certification are met. Pasco County has confirmed its willingness and its ability to comply with such conditions.
The application process was conducted in accordance with the procedural requirements of Chapter 403, Part II, Florida Statutes, and all notice requirements were met. The DER properly and timely performed its functions with regard to coordination, analysis and evaluation.
The record in this proceeding amply demonstrates that if the proposed facility is constructed and operated in accordance with the terms of the application and the conditions of certification, the project will not adversely affect the quality or quantity of surface or groundwaters at or near the site and will comply with all state and federal air quality standards and guidelines. Adequate consideration for noise, odors and aesthetic appearance is encompassed within the facility's design and the conditions of certification.
While the intervenor and members of the general public raised many legitimate issues of concern, there was no competent substantial evidence presented to support their apprehensions. Indeed, the evidence presented demonstrates that the proposed project will comply with and even exceed all applicable statutes, rules, regulations and criteria of the State. In addition, there is public benefit to be derived from the proposed environmentally sound method of dealing with the increasing volume of municipal solid waste generated in Pasco County. The need for landfill space in the future will be reduced, as
will the needed amount of crude oil to generate electricity. The construction of the facility will add jobs and economic benefits to the community.
The intervenor attempted to establish that another type of solid waste disposal system, such as source separation and recycling, might be preferable, less costly and safer from an environmental and safety point of view. Not only was competent substantial evidence lacking that such a system would be practical, economically feasible or in compliance with environmental standards, there was no evidence that the attempt to withhold plastics, metals, glass and yard clippings from mass burn incineration would actually reduce expected emissions from the plant's air pollution control system. In addition, neither the intervenor, DER nor the Siting Board can rewrite the application submittal for review. The choice of alternative methods of solid waste disposal lies with the applicant. If the alternative chosen complies with applicable statutes, rules and regulations, the application is entitled to certification.
The intervenor likewise failed to demonstrate that source separation, or the elimination of sources of potential emissions, should be part of the BACT determination for this facility. The air pollution controls proposed -- the dry scrubber, the baghouse and proper operation of and mixing within the combustion units -- will comply with all environmental and safety standards and will constitute an appropriate balance of environmental, economic and energy factors. No evidence was offered to quantify the environmental benefits of the intervenor's source separation proposal, nor was it demonstrated that source separation, recycling or composting would be economically viable, socially acceptable or otherwise reliable on a day-to-day basis.
The concern of the intervenor and several members of the public about the potential for sinkholes at the site was shared and thoroughly investigated by the County's expert consultants.
Their studies, analyses and results were reviewed and concurred with by staff members from DER and SWFWMD. The uncontradicted evidence demonstrates that the site selected is stable, relatively uniform and suitable for the landfill/ashfill and resource recovery facility. Proof rolling and the double liners will further reduce the potential for a large or catastrophic sinkhole at the site. Both the design of the landfill/ashfill and the conditions of certification are intended to provide early warning of any geotechnical emergency or other threat to groundwater.
In conclusion, the applicant Pasco County has amply demonstrated its entitlement to site certification in accordance with the terms of its application and the twenty-two conditions of certification proposed by the DER. The conditions of certification were received into evidence as the applicant's Exhibit 10 and are incorporated and included as a part of this Recommended Order.
RECOMMENDATION
Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, approve the application of Pasco County for site certification of the proposed resource recovery facility at its ultimate site capacity of 29 megawatts, subject to the conditions of certification included within Exhibit 10.
Respectfully submitted and entered this 20th day of July, 1988, in Tallahassee, Florida.
DIANE D. TREMOR
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5337
The parties' proposed findings of fact have been fully considered and are accepted and/or incorporated in this Recommended Order, with the following exceptions:
Pasco County
55 - 57. Rejected as improper factual findings, but discussed in conclusions of law.
DER
34. Insufficient evidence to support the term "indefinitely."
Intervenor
12. Rejected as contrary to the evidence.
14 - 15. Rejected as unsupported by competent, substantial evidence.
Second sentence rejected as contrary to the evidence.
Accepted as factually correct, but irrelevant to the subject proposal.
24. Rejected as unsupported by competent, substantial evidence.
COPIES FURNISHED:
Honorable Bob Martinez Governor
The Capitol
Tallahassee, Florida 32301
Honorable Doyle Conner Commissioner of Agriculture The Capitol
Tallahassee, Florida 32301
Honorable Bill Gunter Insurance Commissioner The Capitol
Tallahassee, Florida 32301
Honorable Betty Castor Commissioner of Education The Capitol
Tallahassee, Florida 32301
Honorable Robert Butterworth Attorney General
The Capitol
Tallahassee, Florida 32301
Honorable Jim Smith Secretary of State The Capitol
Tallahassee, Florida 32301
Honorable Gerald Lewis Comptroller
The Capitol
Tallahassee, Florida 32301
Dale Twachtmann, Secretary Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Hamilton Oven, Administrator Site Coordination Section Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
David S. Dee, Esquire Carlton, Fields, Ward,
Emmanuel, Smith, Cutler, P.A. First Florida Bank Building
215 South Monroe Street Suite 410
Tallahassee, Florida 32301
Richard T. Donelan, Jr., Esquire Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Edward B. Helvenston, Esquire Southwest Florida Water Management District
2379 Broad Street
Brooksville, Florida 34609-6899
C. Laurence Keesey, Esquire Department of Community
Affairs
2740 Centerview Drive Rhyne Building Tallahassee, Florida 32309
William W. Deane, Esquire
1700 9th Street North, Suite B St. Petersburg, Florida 33704
| Issue Date | Proceedings |
|---|---|
| Jul. 20, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 23, 1988 | Agency Final Order | |
| Jul. 20, 1988 | Recommended Order | Resource recovery facility conformed to land use plans. Notice not required to be ""printed"" in county, only ""published"" or circulated in county. |
MIAMI-DADE WATER AND SEWER AUTHORITY vs. BOARD OF TRUSTEES, 87-005337 (1987)
BERMUDA TERRACE AND PINETREE DRIVE CONCERNED CITIZENS vs DEPARTMENT OF HEALTH, 87-005337 (1987)
IN RE: DADE COUNTY APPLICATION FOR CERTIFICATE vs. *, 87-005337 (1987)
POSEIDON MINES, INC. vs. SOUTHWEST FLORIDA REGIONAL PLANNING COUNCIL, 87-005337 (1987)
