STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
In Re: )
) APPLICATION FOR POWER PLANT ) SITE CERTIFICATION OF LEE )
COUNTY SOLID WASTE RESOURCE ) CASE NO. 90-3942EPP RECOVERY FACILITY )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on September 9-11, 1991, in Fort Myers, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.
APPEARANCES
For Lee County David S. Dee (the County): Robert V. Russo
Attorneys at Law Carlton, Fields, Ward,
Emmanuel, Smith & Cutler, P.A. Post Office Box 190
Tallahassee, Florida 32302
For Department of Richard T. Donelan, Jr. Environmental Assistant General Counsel Regulation (DER): 2600 Blair Stone Road
Twin Towers Office Building Tallahassee, Florida 32399
For S.F.C.A.R.E., William W. Deane Inc. (SFCARE): Attorney at Law
Suite 102
8855 Ninth Street North
St. Petersburg, Florida 33702 STATEMENT OF THE ISSUES
The ultimate issues for determination in this case are: (a) whether Lee County's application for certification of a proposed resource recovery facility should be approved by the Siting Board; and
whether Lee County's application for a Prevention of Significant Deterioration (PSD) permit for the proposed resource recovery facility should be granted.
PRELIMINARY STATEMENT
On June 28, 1990, Lee County filed an application with DER seeking site certification for a proposed resource recovery facility (the Facility) under the Florida Power Plant Siting Act (PPSA), Chapter 403,
Part II, Florida Statutes. As part of the application, the County applied for a PSD permit for the facility under Section 403.509(3), Florida Statutes.
The PPSA-mandated land use hearing was held on October 8, 1990. A Recommended Order was entered which concluded that the site for the facility was consistent and in compliance with the applicable land use regulations. On May 16, 1991, the Governor and Cabinet, sitting as the Siting Board, issued a Final Order which adopted the Recommended Order.
On August 8, 1991, petitions seeking intervention in this proceeding were filed by Michael Katin, Joseph K. Isley, Jr., and the Southwest Floridians for a Clean and Risk Free Environment, Inc. (SFCARE). The County filed motions in opposition to the petitions.
The County's motions in opposition were granted in an Order dated August 28, 1991. The petition to intervene of SFCARE was granted pursuant to Section 403.508(4)(e), Florida Statutes, subject to SFCARE's proof at the certification hearing that its substantial interests are affected and being determined by the proceeding.
On August 30, 1991, a Prehearing Stipulation was filed by the County, DER, the Department of Community Affairs (DCA), the Department of Natural Resources (DNR), the Florida Game and Fresh Water Fish Commission (FGFWFC), and the South Florida Water Management District (SFWMD). The signatories to the Prehearing Stipulation agreed that the County demonstrated an entitlement to certification of its proposed facility, subject to the conditions of certification. On September 9, 1991, the first day of the certification hearing, SFCARE filed a prehearing statement which identified two legal issues to be resolved in this proceeding: 1) whether Best Available Control Technology (BACT) has been achieved for mercury emissions and 2) whether BACT can be determined by DER without an examination of source separation as a means of reducing emissions.
At the certification hearing, the County presented the testimony of Daniel E. Strobridge, Donald F. Elias, Ruth A Dickinson, Michael G. Cullum, Paul C. Chrostowski, William R. Cox, Lee S. Casey, and Robert Hauser, Jr. Lee County also presented the deposition testimony of Clair Fancy. Lee County's Exhibits 1-65 were admitted in evidence.
DER presented the testimony of Tom Rogers and Hamilton S. Oven, Jr. DER's Exhibits 1 and 2 were admitted in evidence.
SFCARE presented the testimony of W. Dexter Bellamy, Craig Volland, and Richard J. Cook. SFCARE's Exhibits 1-5 were admitted in evidence.
The DCA, DNR, FGFWFC, and SFWMD did not participate in the certification hearing.
On September 10, 1991, members of the public were invited to present testimony on the proposed facility. Thirty-five public witnesses testified and eight exhibits were received.
The compendium of conditions of certification that have been recommended by the various regulatory agencies and voluntarily accepted by Lee County is attached as Appendix A.
The transcript of the proceeding was filed on October 16, 1991.
The proposed findings of fact and conclusions of law of Lee County and DER were timely filed on October 16, 1991. The proposed findings of fact and conclusions of law of SFCARE were untimely filed on October 18, 1991. Because no party has objected to consideration of SFCARE's untimely filed proposed order, it has been considered. All proposed findings of fact and conclusions of law have been considered. Specific rulings on each proposed finding of fact are made in Appendix B attached hereto and made a part of this Recommended Order.
FINDINGS OF FACT
Lee County's Proposed Resource Recovery Facility
Lee County has been investigating alternate methods of solid waste disposal since 1979. In 1989, Lee County adopted a Solid Waste Master Plan to guide the County's solid waste management and disposal activities for the next 40 years. The County Commission, consultants and staff concluded that the County's long term needs would be best served by an integrated solid waste management system, which would include an aggressive recycling and materials recovery program, plus composting, landfilling, and the use of a resource recovery (waste-to- energy) facility.
In June 1990, Lee County filed an application for site certification with the Florida Department of Environmental Regulation (DER) for the proposed resource recovery facility (Facility). The County also filed an application with DER for a Prevention of Significant Deterioration (PSD) permit for the Facility.
Lee County's Facility will produce electricity from municipal solid waste that otherwise would be discarded in a landfill. Solid waste will be brought into the Facility by truck and deposited in a large concrete pit. The refuse will be thoroughly mixed in the pit and then placed by crane in a charging hopper, which will lead into a furnace. The combustion of refuse in the furnace will create heat, which will be used to produce steam, which will be used in a steam turbine to generate electricity.
The County's Facility will include the energy recovery system, a scale house, cooling tower, a stack, a 138 kV transmission line, and a stormwater management system. The Facility will have two combustion units with a combined processing capacity of approximately 1200 tons per day (tpd). Theoretically, the Facility could be expanded in the future with a third 600 tpd combustion unit to reach an ultimate site capacity of 1800 tpd.
The Facility will generate approximately 40 megawatts (MW) of electricity at 1200 tpd and approximately 60 MW if expanded to 1800 tpd. The Facility will generate more than 4.28 billion kilowatt hours of electricity during its minimum 20 year life.
By using solid waste to produce electricity, the County will save nonrenewable resources such as oil or coal that otherwise would be needed for power production. The energy produced from garbage will offset the need for more than 7,000,000 barrels of oil. Assuming oil
is worth $20 per barrel, approximately $140 million worth of oil will be saved.
The Facility will help Lee County address its solid waste disposal crisis. The Facility will reduce the volume of waste materials up to 90%. With less waste, less landfill space will be required and less land will be used for landfills. The threat of groundwater contamination also will be reduced because the ash from the Facility will be much less toxic than municipal solid waste (MSW). The leachate from ash will be much less toxic than leachate from MSW.
The Facility will compliment Lee County's aggressive recycling and materials recovery programs. The Facility will only process those waste materials that are left after recycling is completed. Moreover, ferrous metals will be recovered at the Facility and recycled.
The Facility will provide regional benefits. It will serve the residents of both Lee County and Hendry County pursuant to an interlocal agreement between the two counties. It will serve a combined population of approximately 400,000 people initially, which is projected to grow to approximately one million people within 20 years.
The Facility will have positive economic impacts. Over 325 people will be employed during the Facility's construction. The Facility will provide jobs for 54 full-time employees during normal operations. The annual payroll of $2.5 million will contribute more than $33 million to the local economy over 20 years. The construction costs of approximately $130 million will result in a positive regional economic impact of approximately $398 million.
The site is undeveloped. It has been heavily impacted by past logging and agricultural activities, including ditching and cattle grazing. The site has been extensively invaded by exotic tree species such as melaleuca and Brazilian pepper. Vegetative diversity is low, offering few habitat niches for feeding or reproduction by wildlife.
As a result, the numbers and diversity of wildlife on the site are extremely low due to the poor habitat conditions.
There are no DER jurisdictional wetland areas on the site. There are isolated wetlands within the jurisdiction of SFWMD. No jurisdictional wetlands will be affected by the construction of the resource recovery facility structure, which will be constructed in a previously disturbed sector of the site which is vegetated with wax myrtle. No more than 2.7 acres of wetlands will be affected by the construction of the new 138 kV transmission line, which is necessary to connect the Facility to FPL's adjacent Buckingham substation. The proposed location of the new transmission line next to an existing dirt road minimizes potential wetland impacts from the transmission line.
The County will provide several forms of mitigation for wetland impacts. Under the agreed conditions of certification, the County will create new wetlands at whatever mitigation ratio SFWMD deems appropriate. In addition, the County will restore the historic hydroperiod to a stressed 9.9 acre wetland tract located on the southeast portion of the site. Finally, the County will eradicate nuisance plant specimens now found on the site and continue removal of new specimens as part of an ongoing program of habitat enhancement.
These mitigation activities will improve wetlands and wildlife habitat on the site compared to current conditions. These activities will increase habitat diversity, which should result in an increase in wildlife numbers and diversity on the site.
The county plans to construct the Facility approximately 1500 feet from Buckingham Road, maintaining an existing wooded area as a visual buffer between the road and the Facility. Approximately 88% (137 acres) of the site will remain as undeveloped buffer zones. All of the primary activities at the Facility will occur inside a fully enclosed building, which will be maintained under negative air pressure for control of noise, dust, and odors. Based upon experience at similar fully-enclosed resource recovery facilities, it is not likely that noise, dust, or odor levels at the site will be elevated by operation of the Facility.
The planned surface water management system for the site includes a wet detention area for stormwater which is eight times larger than that required under the application rules of SFWMD. This wet detention area is supplemented by a dry pretreatment system approximately 4.5 times larger than required. After treatment, stormwater will be discharged into a currently stressed wetland area for additional treatment; the discharge will assist in restoring the original hydroperiod of the area.
The primary source of water to be used in the Facility will be the City of Fort Myers' domestic wastewater treatment plant, which currently discharges advanced-treated wastewater to the Caloosahatchee River. The Facility's cooling tower will use approximately 1.1 million gallons per day (mgd) of treated wastewater. DER and SFWMD strongly encourage reuse of wastewater in this fashion, and the use will reduce the levels of nutrients which would otherwise be discharged into the Caloosahatchee by the City of Fort Myers treatment plant.
The Facility will use approximately 15,000 gallons per day (gpd) of potable water for boiler makeup and household-type uses. This water will be drawn from two wells located on site, which can also supply backup water for use during emergencies. Use of potable water as backup for cooling is limited to ten days per year.
The Facility will not discharge any wastewater into groundwater or surface waters. Wastewater generated at the Facility will be recycled to the extent practicable and then routed by pipeline to the City of Fort Myers' wastewater treatment plant. The Facility is not expected to cause or contribute to groundwater contamination. A groundwater monitoring system will ensure that the Facility does not impact groundwater. Likewise, a surface water monitoring program will ensure that surface water quality is not affected.
The Facility will not be authorized to burn hazardous waste, biohazardous waste, medical waste, or sewage sludge. County franchise agreements with waste haulers, the only persons authorized to bring waste to the Facility, prohibit the disposal of such wastes at the Facility. Spotters stationed at the scale house, tipping floor, and charging hopper will inspect the waste stream to ensure that proscribed wastes are not burned. Proscribed wastes will be segregated upon discovery and removed by a licensed hazardous waste hauler.
The municipal waste stream contains a number of substances, such as nail polish, paints, pesticides and solvents, which are denominated as "household hazardous waste." It is anticipated that such products will be found in the MSW entering the Facility. The County intends to minimize the volume of such wastes by operating a household hazardous waste collection center open to all of the County's residents.
Ash is produced as the by-product of MSW incineration. Ash produced by the Facility will be wetted in a water-filled tank, then taken by conveyor within the building to an enclosed ash-handling area to be hauled away by enclosed truck to a licensed landfill for disposal. The Facility will not be allowed to commence operation until the County identifies a licensed landfill able and willing to accept ash from the Facility. Ash from the Facility is not considered a hazardous waste for regulatory purposes.
Status of the Project
Lee County will own the Facility. Ogden-Martin (Ogden) will build and operate the Facility for 20 years pursuant to a contract Ogden executed with the County in 1990. Ogden was selected because it submitted the lowest and best bid for these services in a competitive bidding process.
Ogden is one of the largest and best vendors of resource recovery facilities in the United States. Ogden currently operates three resource recovery facilities in Florida and twelve in the United States. Ogden uses the Martin technology which has been used successfully at more than 140 facilities around the world.
Lee County already has secured $197 million in escrow financing for the construction of the Facility, which will take approximately 27 months to complete. The County hopes to have the Facility in operation in the spring of 1994.
EPA's 1991 New Source Performance Standards
In February 1991, the United States Environmental Protection Agency (EPA) promulgated New Source Performance Standards which established stringent minimum requirements for the construction and operation of new resource recovery facilities, including Lee County's Facility. Among other things, EPA's 1991 New Source Performance Standards (NSPS): (a) establish specific emission limits for a wide array of pollutants, including dioxin; (b) require facility operators to be trained and certified; and (c) require resource recovery facilities to install, calibrate and maintain continuous emission monitors that monitor the facility's operations around the clock. The 1991 NSPS are applicable to the Facility.
Best Available Control Technology
In accordance with DER and EPA procedures, Lee County conducted a detailed evaluation of the Best Available Control Technology (BACT) for the control of the Facility's airborne emissions. The BACT analysis included an evaluation of all feasible and available
air pollution control technologies at existing and proposed resource recovery facilities in the United States and overseas. The energy, economic, and environmental impacts of each technology were quantified and compared on a pollutant-by-pollutant basis. The analysis resulted in a determination of the BACT and appropriate emission limit for each pollutant.
The County's analysis demonstrated that the Best Available Control Technology for the Facility is: (a) a spray dryer scrubber; (b) a fabric filter; (c) a selective non-catalytic reduction (SNCR) system; and (d) good combustion practices. This BACT determination is consistent with EPA's 1991 NSPS, which were established on the basis that spray dryer scrubbers, fabric filters, and SNCR were the best demonstrated technology for resource recovery facilities.
The dry scrubber system is used to control sulfur dioxide (SO2) emissions as well as those of other acid gases such as hydrogen chloride and hydrogen fluoride. The system involves the injection of slaked lime to neutralize acid gases in the exhaust gas stream. Because the lime injection process effectively cools the gas stream, the scrubber system also effectively removes heavy metals except mercury; these metals adsorb to particulate matter which is removed by the fabric filter baghouse. Nitrogen oxides (NOx) are controlled by SNCR, which involves the injection of ammonia or urea into the post- combustion zone of the boiler to dissociate NOx, which is formed at high combustion temperatures, into nitrogen and water vapor. Good combustion practices minimize emissions of substances produced by incomplete combustion of solid waste, including carbon monoxide (CO), unburned hydrocarbons, soot, and toxic organic compounds such as
dioxins, furans, and polycyclic organic matter (POM). The adherence to good combustion practices will assure that emissions of total dioxins and furans will not exceed the NSPS standard.
Lee County considered the possibility of using a wet scrubber system, but the wet scrubber was rejected because it suffers from a variety of problems. Wet scrubbers have never been selected as BACT for any resource recovery facility in the United States. Wet scrubbers are not BACT in this case.
Control Technology for Mercury
The mercury emissions from the Facility will be minimized by at least four factors. First, many sources of mercury in municipal solid waste have been or soon will be eliminated. EPA has banned the use of mercury in paints and pesticides. In addition, there has been a significant national effort to reformulate consumer products and thereby eliminate mercury in the waste stream. For example, battery manufacturers nationwide have substantially reduced the mercury content of household batteries and it is expected that household batteries will be virtually mercury-free by 1995 (i.e., one year after the Facility becomes operational). This development is particularly important because as much as 90% of the mercury in municipal solid waste is contained in household batteries.
Second, Lee County has implemented a battery collection program to reduce the number of household batteries in the waste stream and thereby further reduce the amount of mercury that might enter the
Facility. The County has 46 drop-off stations at retail stores for the collection of button cell batteries. The County has worked with the School Board to educate students about the need to collect household batteries. The County currently is working on a curbside program for the collection of household batteries. As a result of these efforts, Lee County collected more than 40,000 batteries in just three months in 1991.
Third, if there is mercury in the refuse entering the Facility, it will be controlled in part by the Facility's spray dryer scrubber and fabric filter, which may reduce mercury emissions by as much as 70%. Indeed, in a November 1990 case EPA stated that a spray dryer scrubber and fabric filter represented the most stringent control mechanisms for mercury.
Fourth, Lee County will utilize an additional pollution control device to control mercury emissions. Specifically, Lee County will use a reagent injection system which will inject activated carbon, sodium sulfide, or other reagent into the flue gases. The mercury will adhere to the reagent and then be removed from the flue gases by the fabric filter. The reagent injection system should be very effective at capturing mercury and it also should reduce some other emissions (e.g., dioxins).
The reagent injection system has been used in Europe, but it has never been used on a full-time basis on any resource recovery facility in the United States. This technology is not required under any state or federal regulatory program.
The Facility's reagent injection system for mercury will provide the highest degree of mercury control that is technologically possible at this time. As a result of the County's extraordinary efforts to control mercury, the mercury emissions from the facility will be among the lowest in the world.
Emission Limits For Mercury
In August 1991, EPA completed a series of experiments with a reagent injection system at a resource recovery facility in Stanislaus, California. EPA will use its new test data from Stanislaus and its existing mercury data base to establish numerical limits for mercury emissions from new resource recovery facilities. EPA's new emission limits for mercury must be promulgated by November 15, 1991, pursuant to the 1990 amendments to the Clean Air Act. The new emission limits will be based on Maximum Achievable Control Technology (MACT), which will be even more stringent than BACT.
EPA's mercury emission limits for "new facilities" are not applicable to Lee County's Facility, but Lee County has stipulated that it will comply with the new EPA emission limits for mercury when they are promulgated.
DER's proposed conditions of certification provide that the Facility's maximum mercury emission rate "shall not exceed" 6.0 x 10-4 lbs/MMBtu or the new EPA limit, whichever is more stringent. The conditions of certification also expressly provide that DER can reduce
the County's emission limit for mercury if a reduction is shown to be necessary in the future.
The mercury emission limit in the conditions of certification is equivalent to approximately 560 micrograms per dry standard cubic meter (ug/dscm). To ensure consistent compliance with DER's "not to exceed" emission limit, Lee County's contract with Ogden-Martin requires Ogden to meet an emission limit of 150 ug/dscm. The County wanted Ogden to guarantee a lower emission limit to ensure that the Facility would never violate the conditions of certification. The County also wanted to ensure that Ogden would use its best efforts to reduce mercury emissions to the maximum extent possible.
EPA's new test data from Stanislaus will provide a scientific basis for a new mercury emission limit that can be reasonably achieved with MACT. Until EPA's data are published, however, it would be imprudent and inappropriate to establish a mercury emission limit for the Facility that is lower than the level proposed by DER in the conditions of certification. The proposed mercury emission limit for the Facility represents a reasonable upper limit, given the available test data, and it rests on sound engineering judgment.
Mercury emission rates of 130 ug/dscm or 80% removal recently were proposed in two pending cases in New York, but there are no reliable data available at this time to confirm that such levels can be consistently achieved.
SFCARE contends that the BACT analysis should have set the Facility's mercury emission limit at 50 ug/dscm or 90% removal, however this limit is not supported by the evidence of record.
SFCARE's proposed emission limits have never been established as BACT for any resource recovery facility in the United States. SFCARE's witness (Craig Volland) admitted that vendors for air pollution control equipment tend to exaggerate about the capabilities of their products, but no vendor in the world would guarantee that its equipment would meet his proposed emission limit of 50 ug/dscm. No vendor in the United States would guarantee the 90% removal limit. Another SFCARE witness (Richard Cook) conceded that he was unaware of any resource recovery facility that could achieve SFCARE's proposed emission limits for mercury.
Nonetheless, SFCARE believes the County's mercury control system can reduce mercury emissions by 90% and limit them to 50 ug/dscm. To the extent that SFCARE is correct, the State of Florida can be reasonably assured that the mercury emissions from the Facility will be far below the levels established in the conditions of certification.
Lee County's Air Quality Analyses
The County's analyses of the Facility's impacts on air quality were performed in accordance with all of the applicable air quality regulations. Further, the County's analyses demonstrate that the Facility will operate in compliance with those regulations.
Lee County's analyses were based on a series of "worst case" assumptions that intentionally maximized and over-predicted the Facility's potential impacts on air quality. For example, Lee County analyzed the air quality impacts associated with an 1800 tpd facility, even though the County only plans to build a 1200 tpd facility. The County also assumed that the Facility would operate 100% of the time, even though resource recovery facilities normally operate only 85 to 95% of the time. The County assumed that the Facility would emit every pollutant at the maximum permitted emission rate, continuously throughout the year, even though it would be impossible for this to occur. The County used a screening analysis to identify the operating conditions (e.g., loading rates, refuse Btu values) that would cause the maximum ground level impacts and then the County used those "worst case" operating conditions in all subsequent air quality analyses.
Lee County also utilized a conservative approach (i.e, one designed to over-predict actual impacts) when determining the ambient air quality at the Site. The County used ambient air quality data from areas of heavy urban or industrial growth, which reflect levels of air pollution that are much greater than the levels expected at the County's Site.
The County used EPA and DER approved computer models to evaluate the Facility's air quality impacts. These computer models have been tested extensively in the field to confirm that the models will over-predict a facility's maximum impacts.
In accordance with DER's recommendation, the computer models used five years of consecutive hourly meteorological data from Fort Myers to calculate the Facility's impacts on air quality. As a result, the models will over-predict the Facility's maximum potential impacts at any time under any meteorological conditions.
Ambient Air Quality Standards
Primary ambient air quality standards are established by EPA to protect public health "with an adequate margin of safety." Primary standards are designed to protect the health of the most susceptible groups of the population, including children, the elderly, asthmatics and those with respiratory problems. Secondary ambient air quality standards are designed to protect the public welfare against "any known or anticipated adverse effects" from air pollution. Florida has adopted the national ambient air quality standards, except in some instances where Florida has adopted standards that are more protective.
The Facility's maximum impacts are extremely small when compared to the national ambient air quality standards (NAAQS) and Florida ambient air quality standards (FAAQS). The Facility's maximum impacts are less than one percent of any NAAQS or FAAQS. For example, the maximum impact from an 1800 tpd Facility would be only 0.8% of the health-based standard for lead.
The County analyzed the Facility's maximum predicted impacts together with the maximum background levels for the ambient air, which take into account the impacts of all existing sources of air pollution. In the worst case, the combined impact of the Facility and all existing sources is only 60% of the standard for particulate matter, and only
0.05% of the impact results from the Facility's emissions. In all other instances, the combined impact of the Facility and all existing sources ranges from 7% to 46% of the NAAQS and FAAQS.
Non-Criteria Pollutants
Non-criteria pollutants are those substances for which EPA has not adopted ambient air quality standards. Non-criteria pollutants include mercury and dioxin.
DER has identified certain levels (i.e., "no threat" thresholds) below which no adverse impacts are anticipated from non- criteria pollutants. In this case, the Facility's maximum impacts for non-criteria pollutants are 10 to 100 times less than DER's no-threat thresholds.
The Facility's maximum impacts were compared to health-based standards and guidelines adopted by New York, North Carolina, Kentucky, and the American Conference of Governmental and Industrial Hygienists. The Facility's maximum impacts for non-criteria pollutants were far below all of the applicable criteria.
The dioxin emissions from the Facility will be well below all of the health-based standards and guidelines that have been established by DER, EPA, the World Health Organization, and the European Community. The Facility's maximum impacts will be about 1,000 times less than the ambient air quality standard for dioxin that was established by Connecticut, the first state to adopt an ambient air quality standard for dioxin.
Prevention of Significant Deterioration
EPA and DER enforce the Prevention of Significant Deterioration (PSD) program, which is designed to protect existing air quality. The PSD program limits airborne emissions by establishing maximum allowable increments that can be consumed in Class I, II, and III areas by potential sources of air pollution.
Lee County and all adjacent areas are designated as PSD Class II areas, except for the Everglades National Park, which is a Class I area. The Facility will consume no more than 2.8% of any of the applicable PSD Class II increments. It will consume between 0.02 and 3.2% of the PSD Class I increments at the nearest location in the Everglades National Park, which is approximately 88 kilometers (55 miles) south-southeast of the Site.
At the request of the National Park Service, Lee County evaluated the Facility's impacts on the closest border of the Big Cypress National Preserve, which is 61 kilometers (38 miles) southeast of the Site. The Facility's maximum impacts in the Big Cypress area will range from 0.02 to 4.4% of the Class I increments.
Health Risk Analyses
The environmental and human health effects of resource recovery facilities have been studied extensively. In 1987, EPA evaluated the data from resource recovery facilities around the world
and then submitted a nine volume report to Congress, including a one volume health risk assessment. EPA conducted another comprehensive evaluation of resource recovery facilities when preparing the 1991 New Source Performance Standards. Based on these studies, EPA has concluded that well-designed, well-constructed and well-operated resource recovery facilities pose no unacceptable levels of risk to human health or the environment. The World Health Organization has reached the same conclusion.
Similarly, the Florida Department of Environmental Regulation and the California Air Resources Board funded an extensive "worst case" health risk assessment of Pinellas County's 3000 tpd resource recovery facility. They concluded that the impacts from the Pinellas County facility were "minimal."
In light of this extensive data base, EPA and DER do not require applicants to conduct health risk assessments for proposed resource recovery facilities. Nonetheless, Lee County analyzed the potential health impacts of the Facility's emissions. The County's analyses demonstrated that the maximum predicted impacts from the Facility will be far below any level that might cause any human health problems.
Lee County evaluated the Facility's effects on human health and the environment by using standard health risk assessment techniques that were developed by EPA and other agencies. The evaluation was performed by Dr. Paul Chrostowski, a nationally recognized expert who teaches courses concerning health risk assessments for EPA and state regulatory agencies.
Lee County's evaluation was based on a series of very conservative assumptions about the project that were intentionally designed to greatly over-predict the potential risks associated with the Facility's emissions. For example, the County's evaluation was based on the assumption that the Facility will operate at 1800 tpd, 100% of the time, for 70 years, even though Lee County only intends to build a 1200 tpd facility, which will operate approximately 85-95% of the time, over a useful life of approximately 30 years. The Facility's maximum impacts will occur relatively close to the Site in an undeveloped agricultural area, but the County assumed that hypothetical people would be located at the point of maximum impact for 24 hours a day, 365 days a year, for 70 years. The County assumed that these hypothetical individuals would never leave the area of maximum impact or even go indoors, where air conditioning would reduce the Facility's impacts. The County also used EPA's potency factor for dioxin when evaluating the Facility's potential impacts, even though EPA's value is too high and is approximately 200 times greater than the potency factor used by the Florida Department of Health and Rehabilitative Services.
Health risk assessments result in a statistical probability that a hypothetical person might get some form of cancer (not a fatal cancer). For regulatory purposes, EPA considers acceptable risks to range from 1 in 10,000 up to 1 in 1,000,000.
Even after using all of its conservative assumptions, the County found that the probability of a person getting any type of cancer from dioxin inhalation was only 3 in 100,000,000. The health
risk would be reduced by a factor of up to 100 if the County used more reasonable exposure assumptions. The calculated risk would be reduced by an additional factor of 200 if the County used the potency factor for dioxin that is used by the Florida Department of Health and Rehabilitative Services. In any event, a risk of 3 in 100,000,000 indicates that the Facility will not cause any cases of cancer from dioxin inhalation.
In general, there is a 10:1 ratio between all potential exposure pathways and the inhalation pathway for dioxin. Accordingly, the risk from all exposure pathways for dioxin would be 3 in 10,000,000. This risk is well below any level of concern for regulatory purposes.
To put these risks in perspective, it should be recognized that a 1 in 1,000,000 risk would be experienced if a person smoked two cigarettes at any time during his or her life. A risk of 1 in 1,000,000 also would be encountered if a person drank one liter of wine during his or her entire lifetime. Hence, the risk from drinking one liter of wine or smoking two cigarettes during a person's lifetime is approximately 10 times greater than the risk that would be experienced if a person located at the point of maximum impact received 70 years of uninterrupted exposure to the maximum predicted dioxin emissions from an 1800 tpd facility. When the risks are considered in this context, it is clear that the Facility's dioxin emissions will pose no meaningful risk to human health.
Similarly, the Facility's mercury emissions pose no threat to human health. The Center for Disease Control (CDC) has developed "minimal risk levels" for short term and long term exposure to mercury. If a person's exposure is below the minimal risk level, the CDC does not anticipate any adverse health effects. In this case, the maximum short-term impact from the Facility's mercury emissions at 1800 tpd will be about 1,000 times less than the CDC's minimal risk level for short term exposure. The Facility's maximum annual impact will be many thousands of times lower than the CDC's minimal risk level for long- term exposure.
Environmental Impacts of Mercury Emissions
The County also conducted a very conservative "worst case" analysis of the Facility's maximum impacts on Florida's ecosystems. Using standard EPA approved techniques, the County identified two environmentally sensitive areas where the Facility's impacts might have the greatest effects: (a) Lake Tarpon in the Ding Darling Refuge on Sanibel Island; and (b) the northern reaches of the Caloosahatchee River in Lee County. Since the Everglades National Park (Everglades) and Big Cypress Refuge (Big Cypress) are much further away from the Site, the potential impacts on the Everglades and Big Cypress will be much smaller than the impacts on the areas selected for study. The Facility's potential impacts on the Everglades and Big Cypress also will be minimized because the prevailing winds normally will blow the Facility's emissions away from those areas.
The County identified the wildlife species of greatest concern to be the Florida panther, the bald eagle, the wood stork, and the snail kite. The County selected the snail kite and wood stork for
the closest scrutiny because they are the species that are the most likely to be affected by the Facility's emissions.
Here, too, Lee County's analyses were based on very conservative assumptions. Among other things, the County assumed that:
the Facility will operate continuously at 1800 tpd for 70 years;
Lake Tarpon and the Caloosahatchee River will receive the Facility's maximum impacts; (c) virtually all of the Facility's emissions will be deposited on the soil and then washed into the water bodies under investigation; (d) the snail kite and wood stork will only feed in the two areas that are under investigation; (e) the birds' food (i.e., snails for the snail kite; fish for the wood stork) will stay in one location where it will receive maximum exposure; and (f) the fish and snails will live 70 years and accumulate mercury over that period. The County also used the lowest sensitivity levels that could be found for any bird species and then applied a toxicological safety factor of 20.
The County's analyses demonstrated that after 70 years of Facility operations at 1800 tpd, the mercury concentration in snails would be three times less than any levels that might cause an impact on the snail kite. Wood storks would be exposed to even less risk than snail kites because the bioaccumulation of mercury in fish would be less than the bioaccumulation of mercury in snails. Since eagles also eat fish, this same conclusion is true for eagles.
Bald eagles and panthers would be at even less risk than snail kites or wood storks because they feed over a larger range than snail kites or wood storks. Panthers and eagles would not get all of their food from the area of maximum impact near the Site. Panthers and eagles are very mobile and they would not remain for a long period of time in the areas where the Facility's maximum impacts would occur.
Panthers can range over hundreds of square miles of land. Indeed, one young panther once moved through the general area near the Site, but since then it has spent most of its time roaming through Hendry County and Collier County. The panther's activities have taken it approximately 20 miles northeast and 50 miles southeast of the Site. Since the Facility's impacts will be lowest to the southeast and east, the Facility's impacts will be much smaller in those areas where the panther is located than in the areas that were studied by Lee County.
Parenthetically, dioxin concentrations resulting from the Facility's emissions would be up to one billion times less than the levels of concern for dioxin in snails, fish, or their predator species.
The County's analyses demonstrate that the Facility, when considered individually or when combined with other existing sources of mercury, will not have any adverse impacts on threatened or endangered species in southwest Florida. There is a very wide margin of safety for these species because the Facility's emissions will be extremely small.
Soil Deposition
Lee County evaluated the possibility that the Facility's emissions would be deposited on the soil and accumulate over time. To evaluate this issue, the County assumed that there would be 70 years of soil deposition resulting from the Facility's maximum emissions at 1800 tpd.
The Facility's maximum impact on lead concentrations in the soil after 70 years would be 2 x 10-4 parts per million (ppm). In the southeastern United States, lead occurs naturally in the soils at levels up to 40 ppm. Children do not experience any effects from lead until soil concentrations reach at least 200 ppm. EPA sets a safe level of 500 ppm.
Similarly, after 70 years of worst case impacts, the Facility's contribution to arsenic concentrations in the soil would be
3 x 10-6 ppm. Naturally occurring levels of arsenic in Florida's soil range up to 15 ppm.
The Facility's maximum contribution to beryllium concentrations in the soil would be about 1,000,000 times less than the levels that naturally occur in Florida soils.
The Facility's maximum contribution to mercury levels in the soil would be 2 x 10-4 ppm. By comparison, sugar cane contains approximately 1.2 ppm of mercury.
In all of these worst case analyses, the 1800 tpd Facility's maximum contribution to soil concentrations would be at least 100 times below any level that the EPA or CDC has associated with health impacts. Indeed, the Facility's contributions to these soil concentrations could not be measured with any known analytical technique.
Air Quality Monitoring
Lee County will utilize sophisticated operational safeguards to ensure that the Facility is operated properly. The Facility will have continuous emission monitors (CEM) to continuously measure the levels of carbon monoxide, nitrogen oxide, sulfur dioxide, and oxygen in the Facility's emissions. Opacity and other parameters also will be monitored with CEMs. These monitors will be connected to visible and audible alarms in the Facility's main control room, which will alert the Facility operators to potential problems. The data collected by the CEMs will be reported regularly to DER.
Shortly after the Facility completes construction, Lee County will conduct an initial stack test to demonstrate compliance with the various emission limits established in the conditions of certification. Lee County will conduct annual stack tests thereafter, even though annual stack tests are not required at most resource recovery facilities.
The Southwest Florida Regional Planning Council suggested that Lee County should monitor mercury emissions on a monthly "or other appropriate basis." There are several reasons why annual, not monthly, stack tests for mercury will be most appropriate for the Facility. First, monthly stack tests at the Facility would cost a minimum of
$300,000 each year. Second, there are no resource recovery facilities
in the United States that are required to conduct monthly or even quarterly stack tests for mercury. Third, there will be a substantially larger data base for mercury compiled prior to the commencement of operations at the Facility in 1994. Fourth, DER has recommended annual stack tests. Fifth, DER could require more frequent testing in the future if DER concluded that additional tests were necessary.
SFCARE contends that ambient air quality monitoring should be conducted on or around the Site. This proposal is rejected because ambient air monitoring would be of no scientific value. The Facility's maximum impacts at 1800 tpd will be so small that they could not be measured with an EPA approved ambient air monitoring system located at the point of maximum impact or anywhere else in Lee County. For this reason, state and federal regulations will not require ambient air quality monitoring at or near the Site. Facility operations can be better evaluated by using CEMs and stack tests to measure the Facility's emissions, rather than ambient air monitors.
Lee County's Recycling Programs
Lee County has a very aggressive and innovative recycling program. Lee County expects to achieve the state recycling goal of 30% by 1994. Moreover, the County Commission established a county recycling goal of 40% and the County is doing everything practicable to achieve its 40% goal.
Lee County's residential curbside recycling program will serve 100% of the County by the end of 1991. The County expects to have 50% of the County's commercial businesses in its recycling program by 1992 and 100% of the businesses by 1994. The County already collects used oil, automobile batteries, and telephone books. The County is implementing a mulching program for horticultural wastes.
The County's recycling rates are among the best in the State of Florida. The County's overall recycling program is among the best in the nation.
The County received an award from EPA for its innovative approach to recycling. Among other things, the County has a contract with Goodwill Industries that allows Goodwill to process and market all of the recyclable materials collected in the County's curbside program. The County recently awarded $1,200,000 to Goodwill for an automated materials separation facility for recyclables. The County also awarded
$600,000 to Goodwill for an intrusion molding plant that will utilize PET and HDPE plastics to create plastic lumber.
The County recently used a $100,000 DER grant to construct a facility for the collection and disposal of household hazardous wastes. The County recently received a DER recycling grant for $619,000 and a DER tire recycling grant for $209,000.
Although the County has an innovative recycling and materials recovery program, the County only wants to use demonstrated technologies. The County does not want to gamble its public funds on experimental technologies that might not work. The County does not
want to invest in a program like the Agripost composting facility in Miami, which was a "dismal failure" and cost more than $25 million.
Some citizens suggested that Lee County should recycle 60% or more of the waste stream, but such proposals are not feasible. Some materials cannot be recycled. Other materials are not marketable and cannot be reused.
Facility Sizing
When the County filed its PSD and PPSA applications in June 1990, the County wanted authorization to construct an 1800 tpd facility that could be expanded to 2400 tpd. On May 1, 1991, the County Commission decided to reduce the size of the Facility to 1200 tpd, with expansion capabilities to 1800 tpd.
The County Commission reduced the size of the Facility because the County wanted to maximize its recycling programs and minimize its reliance on the Facility. As a result of the County's decision, it will be very expensive to expand the Facility. The County has created a strong financial disincentive against expansion of the Facility.
Resource recovery facilities normally are designed with excess capacity to provide for future growth. In this case, however, the Facility will be full when it begins commercial operations, unless the County achieves a 30% recycling rate. Even if the County achieves a 30% recycling rate, the Facility will be full within two years after it commences operation.
Source Separation As BACT
SFCARE contends that the BACT determination in this case should require additional recycling or source separation (i.e., the removal of certain materials from the waste stream prior to their disposal at the resource recovery facility). SFCARE's proposal is rejected.
Recycling and source separation programs do not significantly affect the emissions from resource recovery facilities, with two exceptions. Removing household batteries from the waste can reduce mercury emissions. Removing lead-acid batteries, as required by Florida law, can reduce lead emissions. In this case, Lee County already has taken steps to remove these two types of batteries from the waste stream.
In general, however, recycling and source separation programs have not been demonstrated to reduce emissions from resource recovery facilities and, therefore, such programs do not constitute Best Available Control Technology. In a 1989 case involving a resource recovery facility in Spokane, Washington, EPA concluded that source separation had not been demonstrated to be BACT. In the 1991 NSPS for resource recovery facilities, EPA stated that there are no reliable data to demonstrate that recycling or source separation requirements should be imposed as part of the NSPS. Consequently, recycling, source separation, and similar requirements have never been imposed as part of a BACT determination by EPA or any state agency in the United States.
The available data indicate that additional source separation programs (i.e., over and above what the County already proposes) would not be cost effective and would not produce any meaningful reductions in the Facility's emissions. For example, several studies have shown that the removal of plastics from the waste will not reduce dioxin or other emissions.
BACT determinations require a quantitative analysis of the energy, economic and environmental impacts associated with any proposed BACT technology. In this case, SFCARE did not perform any analyses of the energy, economic, or environmental impacts of its proposals concerning recycling or source separation. Indeed, SFCARE has not specifically explained what additional recycling or source separation should be done in this case, what these activities would cost, or what environmental benefits (if any) would result. Thus, SFCARE's proposal is fatally defective.
SFCARE
SFCARE has approximately 600 people on its mailing list, but the actual number of SFCARE members is unknown. The members of SFCARE fish, jog, and otherwise enjoy the natural resources of Lee County; however, SFCARE's President readily admitted that SFCARE's members are just like all of the other citizens in Lee County in this regard.
The Facility will be approximately five miles from the nearest home of any SFCARE member. The evidence demonstrated that the Facility's impacts on the public will be negligible. The Facility's impacts on the members of SFCARE will be no different than its impacts on other members of the community. Several members of SFCARE complained of personal illnesses or physical infirmities, but here, too, the members of SFCARE are like any other typical cross-section of the community. The evidence did not demonstrate that any member of SFCARE would be affected in any manner that would be different than the public at large.
Notice of Certification Hearing
On July 27, 1990, Lee County published a large notice in the Fort Myers News-Press to announce that Lee County had filed its application for site certification. On July 23, 1991, Lee County published a full page notice in the Fort Myers News-Press concerning the Facility and the certification hearing. Notice of the certification hearing was published by DER in the Florida Administrative Weekly on August 2, 1991--37 days before the hearing started. DER issued a news release concerning the certification hearing on August 9, 1991. Substantial public notice of the certification hearing also was provided by the press and media coverage in the area.
Notice of the certification hearing and copies of the DER report about the Facility were provided to EPA, the Federal Lands Manager, and other appropriate officials in compliance with DER rules. Notice of the certification hearing and the copies of the DER report were available for public inspection at several locations in Lee County
30 days prior to the public comment portion of the certification hearing.
Ultimate Findings of Fact
Lee County has utilized all reasonable and available methods to ensure that the location, construction, and operation of its proposed Facility will produce minimal impacts on human health, the environment, the ecology of the land and its wildlife, and the ecology of state waters and their aquatic life.
The evidence establishes that the proposed Facility will comply with all of the applicable and substantive environmental regulations of all of the local, regional, and state agencies involved in the PPSA process. The operational safeguards proposed by Lee County, together with the conditions of certification proposed by the regulatory agencies, are more than sufficient to protect Florida's citizens and its environment.
The Facility will create electrical power while providing a regional solution to the solid waste needs of Lee County and Hendry County. The beneficial impacts of the Facility are substantial, while the environmental impacts resulting from the Facility's construction and operation are negligible. Indeed, the Facility will not have any meaningful impacts on Florida's air, water, soil, or wildlife.
The conditions of certification attached hereto as Appendix A are reasonable and appropriate to ensure that the construction and operation of the Facility will have minimal impacts on the environment and natural resources of the state and on the welfare of the citizens of Florida. Additionally, the County has agreed to comply with these conditions of certification.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 408.508(3), Florida Statutes (Supp. 1990).
SFCARE was allowed to fully participate as a party at the certification hearing, but SFCARE failed to establish its standing in this case. SFCARE was permitted to intervene pursuant to Section 403.508(4)(e), Florida Statutes (Supp. 1990), which allows intervention if the intervenor's substantial interests are affected and being determined by the proceeding. While SFCARE was conditionally permitted to intervene in this proceeding, such intervention was conditioned on its proof at hearing that its substantial interests are affected and being determined. SFCARE failed to demonstrate that "a substantial number" of its members are "substantially affected" by this proceeding. Florida Home Builders Association v. Department of Labor, 412 So.2d 351, 353 (Fla. 1982); International Jai-Alai Players Association v. Florida Pari-Mutual Commission, 561 So.2d 1224 (Fla. 3rd DCA 1990); and In the Matter of Surface Water Management Permit No. 50-01420-S, 515 So.2d 1288 (Fla. 4th DCA 1987). Additionally, SFCARE has failed to show that it or its members will be affected differently than the general public. Florida Society of Ophthalmology v. State Board of Optometry, 532 So.2d 1279 (Fla. 1st DCA 1988), rev. denied, 542 So.2d
1333 (Fla. 1989); Board of Optometry v. Florida Society of Ophthalmology, 538 So.2d 878 (Fla. 1st DCA 1988); and Grove Isle, Ltd.
v. Bayshore Homeowners' Association, Inc., 418 So.2d 1046, 1047. (Fla. 1st DCA 1982). Therefore, SFCARE's Motion to Intervene, which was conditionally granted, should now be denied and SFCARE should be dismissed as a party. However, since SFCARE fully participated in the proceeding and filed a proposed order, its position has been fully considered in the entry of this Recommended Order.
SFCARE and the public expressed many concerns about the Facility, but in every instance Lee County provided credible and credited evidence to prove that these concerns are not well-founded.
The County's plan to use a resource recovery facility is consistent with state and federal law. Section 377.709(1), Florida Statutes, contains the Florida Legislature's declaration that:
[T]he combustion of refuse by solid waste facilities to supplement the electricity supply not only represents an effective conservation effort but also represents an environmentally preferred alternative to conventional solid waste disposal in this State. Therefore, the Legislature directs the Florida Public Service Commission to establish a funding program to encourage the development by local governments of solid waste facilities that use solid waste as a primary source of fuel for the production of electricity.
Hence, it is clear that the State of Florida has strongly supported the use of resource recovery facilities like the one proposed by Lee County.
Florida's State Comprehensive Plan expressly encourages the use of resource recovery facilities. Policy 13.9 in the State Comprehensive Plan provides that Florida should:
Encourage the research, development, and implementation of recycling, resource recovery, energy recovery, and other methods of using garbage, trash, sewage, slime, sludge, hazardous wastes, and other wastes.
The use of resource recovery facilities is consistent with the policies of the United States Environmental Protection Agency and the Florida Department of Environmental Regulation. EPA generally considers landfilling and incineration to be equal disposal options. Similarly, it has been DER's policy to use recycling, resource recovery and landfilling for the disposal of equal (1/3) shares of the waste stream.
The test established by the PPSA for certification of a new electrical power plant such as the Facility requires the Siting Board to effect "a reasonable balance between the need for the facility and the environmental impact resulting from construction and operation of
the facility, including air and water quality, fish and wildlife, and the water resources and other natural resources of the state." Section 403.502(2) Florida Statutes (Supp. 1990). Under the PPSA's statutory scheme, whether a facility is needed for purposes of this test is a matter committed to the determination of the Florida Public Service Commission by Section 403.519, Florida Statutes. In this case, by order rendered on January 7, 1991, the PSC determined that the proposed facility "meets the relevant criteria for a determination of need." Because this determination creates a presumption of public need and necessity under Section 403.519, it is necessary to balance the expected environmental consequences of the construction and operation of the facility against this presumptive need in order to reach a conclusion as to whether the facility should receive certification.
In its site certification order for the AES Cedar Bay plant in Jacksonville, the Siting Board made plain its intention to "make independent determination of whether, as a matter of law, an application for certification has demonstrated that its project not only meets minimum agency criteria for all aspects of power plant construction and operation, but also that the project, considered as a whole, can be said to have 'minimal adverse effects' compared to the need for the electric generating capacity at issue." AES Cedar Bay, Inc. v. Department of Environmental Regulation, DOAH Case No. 88-5740, Final Order rendered Feb. 18, 1991, slip op. at 6. Thus, the balancing test encompasses close scrutiny of whether an applicant for certification has taken pains to ameliorate potential adverse consequences which might be expected to result from its facility, even when facial compliance with agency standards might be achieved without reference to certain expected impacts.
In this case, the record is clear that the County has designed the Facility in a way which easily meets the balancing test as explicated by the Siting Board in the AES Cedar Bay case. There is no suggestion by any agency that the design of the Facility fails to meet the non-procedural standards applicable to it; no regulatory agency objects to certification of the Facility as requested by the County. Significantly, however, the evidence here shows that the County has not merely aimed its design of the Facility at satisfying minimum agency standards. Rather, in several important areas, the design of the Facility seeks to achieve the smallest environmental impacts possible, especially given the state of pollution control technology at the present time. The most noteworthy example of this effort is shown by the pollution controls which are proposed for the incinerator: SNCR for NOx control and reagent injection for control of mercury and other volatile substances. Both of these technologies are the most stringent available to control the air emissions in question, without regard to cost.
The focus of opposition to the Facility by SFCARE has been air emissions. This is primarily because, with regard to other potential environmental impacts, such as to water and wildlife resources, the record demonstrates that the Facility will have minimal, if any, adverse impacts. Indeed, as to water resources, the Facility can be expected to have a beneficial impact by diverting treated wastewater which would otherwise be discharged to the Caloosahatchee River for use as cooling water for the boiler. Likewise, given the poor habitat value of the disturbed site on which the Facility is to be
constructed, the establishment of the Facility is expected to improve wildlife diversity by the reestablishment of natural hydroperiods in stressed wetlands found on site and by the creation of new wetland areas as mitigation. Furthermore, the County has committed to the eradication of exotic species such as melaleuca on the site, which is expected to enhance the natural system.
Ash will be generated by the Facility. This must be disposed of in a licensed landfill. It is undeniable, however, that the solid waste volume to be disposed of after incineration will be a fraction of what would have to be landfilled by the County (and by Hendry County) in the absence of the resource recovery facility. It is not correct to consider the ash disposal question as anything other than as a subset of the impact of the solid waste question as a whole. That there is an impact to landfills as a result of the need for solid waste disposal is not a new environmental impact attributable to the Facility.
Turning to the question of whether the expected consequences of air emissions from the Facility would mandate a denial of certification for the Facility, as SFCARE contends, the record evidence does not support a conclusion that the environmental impacts of the air emissions are so great as to outweigh the need for the Facility. The pollution control technologies which the county will be required to install under the terms of the PSD permit and conditions of certification represent the best available control technologies, regardless of cost. There is no doubt that the DER's BACT determination is correct, in the literal sense of the term as well as in the regulatory context of Rule 17-2.500, Florida Administrative Code. SFCARE's suggestion that the BACT determination is erroneous lacks merit because there is no evidence in the record that actual emissions from the Facility would be reduced by source separation as advocated by SFCARE. Moreover, there is no evidence that the level of controls required under the current BACT determination could lawfully be reduced, given the NSPS standards applicable to the facility. It must be kept in mind that the County already practices source separation via its recycling program.
As to mercury emissions, the record shows that the modeled impact of the mercury emissions of the Facility are not likely to harm the citizens or the ecosystem of South Florida; this modeling did not take into consideration the expected reductions in mercury emissions resulting from the implementation of the reagent injection control technology. Testimony adduced by DER demonstrates that substantial efforts are being undertaken to discover the sources of high concentrations of mercury in the Everglades. The existence of these concentrations does not provide a lawful basis for denial of certification to the Facility, especially when no accepted explanation exists for the situation prevailing in the Everglades.
No evidence of record supports a conclusion that the emissions of metals expected from the Facility will be of such a magnitude as to cause adverse consequences to human health. Nor does record evidence support a conclusion that threatened or endangered species will suffer harm as a result of the operation of the Facility. Although the County was not required to perform a health risk assessment as to expected emissions, it did so; this is another example
of the County's sincere effort to demonstrate that its Facility will have minimal adverse effects. The risk assessment shows that the elevations of cancer risk which are statistically associated with the emissions from the Facility are essentially insignificant in comparison to risks normally associated with daily life.
In summary, the County has established by competent substantial evidence that it should receive certification under the PPSA for its facility. The County has demonstrated that its proposed project not only complies with the minimum non-procedural standards of the agencies having jurisdiction over the site, but also that the project has been planned to have minimal adverse environmental effects if constructed and operated in accordance with the stipulated conditions of certification attached as Appendix A.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Siting Board enter a Final Order and therein:
Grant site certification for the Lee County Solid Waste Resource Recovery Facility, subject to the conditions of certification attached hereto as Appendix A;
Order that the Department of Environmental Regulation issue PSD construction permit authorizing construction of the Lee County Solid Waste Resource Recovery Facility in accordance with the DER BACT determination and subject to the conditions of certification attached hereto as Appendix A; and
Deny and dismiss the Motion to Intervene filed by SFCARE. RECOMMENDED this 9th day of December, 1991, at Tallahassee,
Florida.
DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1991.
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended
Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
COPIES FURNISHED:
Richard Donelan
Assistant General Counsel
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Steve Pfeiffer, General Counsel
L. Kathryn Funchess, Assistant General Counsel Department of Community Affairs
2740 Centerview Drive
Tallahassee, Florida 32399-2100
John Fumero Attorney at Law
South Florida Water Management District Post Office Box 24680
West Palm Beach, Florida 33416
Ken Plante, General Counsel Department of Natural Resources 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Jim Antista, General Counsel
Florida Game and Fresh Water Fish Commission 620 South Meridian Road
Tallahassee, Florida 32399-1600
Susan Clark, General Counsel
Mike Palecki, Chief, Bureau of Electric and Gas Florida Public Service Commission
101 East Gaines Street Tallahassee, Florida 32399-0850
Wayne Daltry, Executive Director
Southwest Florida Regional Planning Council Post Office Box 3455
North Fort Myers, Florida 33918-3455
Hamilton S. Oven, Administrator Power Plant Siting Section
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
David S. Dee Attorney at Law
Carlton, Fields, Ward, Emmanuel, Smith & Cutler
Post Office Drawer 190 Tallahassee, Florida 32302
Jim Yaeger
Lee County Attorney Post Office Box 398
Fort Myers, Florida 33902
William W. Deane Attorney at Law
Post Office Box 7473
St. Petersburg, Florida 33734
Honorable Lawton Chiles Governor
State of Florida The Capitol
Tallahassee, Florida 32399
Honorable Robert A. Butterworth Attorney General
State of Florida The Capitol
Tallahassee, Florida 32399-1050
Honorable Bob Crawford Commissioner of Agriculture State of Florida
The Capitol
Tallahassee, Florida 32399-0810
Honorable Betty Castor Commissioner of Education State of Florida
The Capitol
Tallahassee, Florida 32399
Honorable Jim Smith Secretary of State State of Florida The Capitol, PL-02
Tallahassee, Florida 32399-0250
Honorable Tom Gallagher
Treasurer and Insurance Commissioner State of Florida
The Capitol
Tallahassee, Florida 32399-0300
Honorable Gerald A. Lewis Comptroller
State of Florida
The Capitol, Plaza Level Tallahassee, Florida 32399-0350
APPENDIX A
[NOTE: Appendix A, Conditions of Certification and table of contents thereto, is not available in this format. That attachment to the Recommended Order was a xerox copy of the Conditions as they were submitted to the Hearing Officer by the parties. Dea W. 12-9-91] APPENDIX A IS AVAILABLE FOR REVIEW IN THE DIVISION'S CLERK'S OFFICE.
APPENDIX B
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.
Specific Rulings on Proposed Findings of Fact Submitted by Lee County
1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-10(1-10) and 11-98(22-109).
Specific Rulings on Proposed Findings of Fact Submitted by the Department of Environmental Regulation
Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2-6(11-15); 7(3); 8(4); 10-15(16-21); 16(25); 17(26&27); and 18-20(28).
Proposed findings of fact 1, 2, 9, and 21-26 are subordinate to the facts actually found in this Recommended Order.
Specific Rulings on Proposed Findings of Fact Submitted by SFCARE, Inc.
Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 7(16-18).
Proposed findings of fact 1-6, 8, 10, 11, and 15 are subordinate to the facts actually found in this Recommended Order.
Proposed findings of fact 9, 12, 13, 14, and 16, in whole or in part, are unsupported by the credible, competent, and substantial evidence.
| Issue Date | Proceedings |
|---|---|
| Jul. 01, 1992 | Letter to David S. Dee from Richard T. Donelan, Jr. (re: final order)w/attachment filed. |
| Jun. 19, 1992 | Final Order Approving Certification filed. |
| May 29, 1992 | Article by Dr. Paul Connett w/cover ltr filed. (From Emily Harries) |
| May 21, 1992 | Recommended Order on Remand sent out. CASE CLOSED. Hearing held 4/13/92. |
| May 01, 1992 | Department of Enviromental Regulation's Post-Hearing Submission filed. |
| May 01, 1992 | Intervenor's Proposed Recommended Order filed. (from M. Farmer) |
| May 01, 1992 | Lee County's Proposed Recommended Order on Remand (2); Computer Disc with PRO on it filed. |
| May 01, 1992 | (Lee County) Notice of Filing Transcript; Transcript of Proceedings (volumes I & II) filed. |
| Apr. 23, 1992 | CC Letter to David M. Maloney from Stephen Smith (re: statement) filed. |
| Apr. 10, 1992 | Department of Environmental Regulation's Response to Intervenor's Second Request for Production of Documents; Intervenor's Second Interrogatories to State of Florida, Department of Environmental Regulation filed. |
| Apr. 09, 1992 | Department of Environmental Regualtion's Response to Intervenors's Motion for Clarification filed. |
| Apr. 08, 1992 | (joint) Prehearing Stipulation on Remand w/Lee County's Witness List For Remand Hearing; Lee County's Exhibit List For Remand Hearing filed. |
| Apr. 08, 1992 | Department of Environmental Regulation's Response to Intervenors's Motion for Clarification filed. |
| Apr. 07, 1992 | Lee County's Response to SFCARES Motion for Clarification filed. |
| Apr. 06, 1992 | CC Letter to David S. Dee from Matthew P. Farmer (re: clarifying telephone conversation of April 2, 1991) filed. |
| Apr. 01, 1992 | Lee County's Third Supplemental Response to SFCARE's Request for Production of Documents filed. |
| Apr. 01, 1992 | Subpoena Duces Tecum for Trial (10 for HO Signature) & Cover Letter from M. Farmer filed. |
| Mar. 31, 1992 | Lee County's Notice of Taking Deposition filed. |
| Mar. 30, 1992 | (intervenor) Motion for Clarification filed. |
| Mar. 25, 1992 | South Florida Water Management District Witness List filed. |
| Mar. 23, 1992 | Order sent out. (motion to Limine is granted; motion for continuanceand protective order denied) |
| Mar. 23, 1992 | Lee County's Second Supplemental Response to SFCARE's Request for Production of Documents filed. |
| Mar. 23, 1992 | Lee County's Witness List filed. |
| Mar. 23, 1992 | Intervenor's Motion for Continuance and for Protective Order; Intervenor's Response to Applicant's Motion in Limine filed. |
| Mar. 20, 1992 | Lee County's Notice of Hearing; Lee County's Motion in Limine filed. |
| Mar. 19, 1992 | CC Letter to Matthew Farmer from David S. Dee (re: information provided during telephone converstation on March 13, 1992) filed. |
| Mar. 17, 1992 | Department of Environmental Regulation's Notice of Response to SFCARE'S First Interrogatories; Department of Environmental Regulation's Response to Intervenor's First Request for Production of Documents filed. |
| Mar. 17, 1992 | Lee County's Supplemental Response to SFCARE'S Request for Productionof Documents filed. |
| Mar. 13, 1992 | Lee county's Response to SFCARE's Request for Production of Documents; Lee County's No0tice of Response to SFCARE's First Interrogatories filed. |
| Mar. 10, 1992 | CC Letter to DKK from David S. Dee (re: finding location for hearing)filed. |
| Mar. 10, 1992 | LEe County's Request for Production of Documents From SFCARE; Lee County's Notice of Service of Interrogatories to SFCARE filed. |
| Mar. 09, 1992 | Florida Gamed And Fresh Water Fish Commission's Preliminary Witness List filed. |
| Mar. 09, 1992 | Notice of Hearing sent out. (hearing set for April 13-14, 1992; 9:00a; Ft. Myers) |
| Mar. 06, 1992 | Department of Natural Resources's Witness List filed. |
| Mar. 06, 1992 | Letter to DKK from David S. Dee (re: available location for hearing) filed. |
| Mar. 06, 1992 | Intervenor's First Interrogatories to State of Florida, Department ofEnvironmental Regulation; Intervenor's First Interrogatories to Applicant Lee County, Florida filed. |
| Mar. 06, 1992 | Intervenor's Preliminary Witness List; Notice of Calendar Conflicts; intervenor's First Request for Production of Documents From Applicant Lee County, Florida; Intervenor's First Request for Production of Documents From State of Florida Department of Enmv |
| Mar. 02, 1992 | Deprtment of Environmetal Regulation's Preliminary Witness List filed. |
| Mar. 02, 1992 | Intervenor's First Request for Production of Documents From ApplicantLee County, Florida filed. |
| Mar. 02, 1992 | Intervenor's First Interrogatories to Applicant Lee County, Florida; Notice of Appearance; Intervenor's First Interrogatories to State of Florida Department of Environmental Regulaiton; Intervenor's First Request for Production of Documents From State of |
| Feb. 28, 1992 | Lee County's Preliminary Witness List filed. |
| Feb. 26, 1992 | Order Setting Prehearing and Hearing Schedule sent out. |
| Feb. 21, 1992 | (Intervenor) Notice of Hearing Conference; Motion to Withdraw as Counsel w/(unsigned) Order Authorizing Withdrawal of Counsel filed. |
| Feb. 20, 1992 | Lee County's Amended Notice of Prehearing Conference filed. |
| Feb. 20, 1992 | Memorandum to Bill Deane & Richard Donelan from David Dee (re: Prehearing conference) filed. |
| Feb. 20, 1992 | Notice of Appearance of Counsel filed. (From M.B. Adelson, IV) |
| Feb. 19, 1992 | Order Accepting Remand and Reopening File; Notice of Ex Parte Communication; Procedural Order sent out. |
| Feb. 19, 1992 | Order of Remand filed. |
| Feb. 18, 1992 | Lee County's Notice of Prehearing Conference filed. |
| Feb. 11, 1992 | Letter from David S. Dee (RE:Remand to be issued) filed. |
| Dec. 23, 1991 | (Intervenor) Request for Oral Argument; Exceptions to Recommended Order filed. |
| Dec. 12, 1991 | Notice of Ex Parte Communication sent out. |
| Dec. 09, 1991 | Recommended Order sent out. CASE CLOSED. Hearing held 9/9-11/91. |
| Dec. 06, 1991 | Letter to DKK from Donald D. Slisher (re: Litigation & dispute of zoning site) filed. |
| Oct. 18, 1991 | (Intervenor) Proposed Recommended Order filed. (From William W. Deane) |
| Oct. 16, 1991 | DER'S Proposed Recommended Order filed. |
| Oct. 16, 1991 | Transcript (4 Vols); (one TAGGED) Computer Disk; Notice of Filing Transcript; Lee County's Proposed Recommended Order filed. |
| Sep. 09, 1991 | Prehearing Statement of Intervenor filed. |
| Sep. 09, 1991 | Final Hearing Held Sept. 9-11, 1991; for applicable time frames, refer to CASE STATUS form stapled on right side of Clerk's Office case file. |
| Sep. 09, 1991 | Prehearing Statement of Intervenor filed. (From William W. Deane) |
| Sep. 06, 1991 | Letter to DKK from John J. Fumero (re: District not making formal appearance at hearing scheduled for 9/9/91) filed. |
| Sep. 05, 1991 | Notice of Filing w/ Transcript filed. (From David S. Dee) |
| Aug. 30, 1991 | Prehearing Stipulation; Lee County Exhibit List and Witness List Att.filed. |
| Aug. 29, 1991 | Lee Countys Notice of Taking Deposition filed. |
| Aug. 29, 1991 | Lee Countys Notice of Taking Deposition filed. |
| Aug. 28, 1991 | Order sent out. (RE: Rulings on Motions). |
| Aug. 27, 1991 | Letter to DKK from David Dee (Re: cc: of Documents for which Lee County has sought official recognition) filed. |
| Aug. 26, 1991 | Lee County's Motion to Dismiss & attachments filed. (From David Dee) |
| Aug. 23, 1991 | Lee County's Motion to Strike & attachments; Lee County's Motion For Official Recognition filed. (From David S. Dee) |
| Aug. 19, 1991 | Lee County's Notice of Prehearing Conference; Lee County's Notice of Taking Deposition filed. (From David S. Dee) |
| Aug. 19, 1991 | CC Letter to Richard Donelan et al from David S. Dee (re: Prehearing Conference for Lee County) filed. |
| Aug. 15, 1991 | Letter to Hamilton S. Oven, Jr. from David S. Dee (re: Lee County's Application for site certification and a PSD permit) filed. |
| Aug. 12, 1991 | (Petitioner) Application for Power Plant Certification w/cover ltr & list of all Parties filed. |
| Aug. 09, 1991 | (1 book binder) Electric Power Plant Site Certification Review For Lee County filed. (From Hamilton S. Oven, Jr.) |
| Aug. 08, 1991 | (Southwest Floridians, Joseph K. Isley, Jr. & Michael Katin) (3) Motion to Intervene & attachment filed. (From William W. Deane) |
| Jul. 03, 1991 | Letter of Transmittal; Errata Sheets & Revisions filed. |
| May 20, 1991 | (Land Use) Final Order filed. |
| May 20, 1991 | Ltr. to H. Oven from W. Daltry w/cc: DKK enclosing SW FL Regional Planning Counsel Report and Recommendation concerning Lee County's Application filed. |
| May 10, 1991 | CC Recommendation w/cover ltr filed. (From Glenn E. Health) |
| May 07, 1991 | Notice of Hearing sent out. (hearing set for Sept. 9-13, 1991; 10:00am; Ft Myers). |
| May 07, 1991 | Order of Prehearing Instructions sent out. |
| May 03, 1991 | Letter to DKK from David S. Dee (re: location of hearing) filed. |
| May 03, 1991 | Letter to Hamilton Oven from David S. Dee (re: site certification) w/Lee County's Resolution) filed. |
| Apr. 17, 1991 | District's Final Agency Report & cover ltr filed. (From Susan M. Coughanour) |
| Apr. 15, 1991 | District Agency Report & cover ltr filed. (From Susan M. Coughanour) |
| Apr. 04, 1991 | Letter to DKK from S. Coughanour (Re: Districts Draft Agency Report);Impact Assessment Report filed. |
| Jan. 28, 1991 | Letter to DKK from Bobby Jack White (re: Representation of Agency) filed. |
| Dec. 07, 1990 | Letter to DKK from D. S. Dee (re: Lee County conducting a work shop for the purpose of further evaluting the County's plans concerning its proposed resource recovery facility) filed. |
| Nov. 19, 1990 | CC Letter to George E. Reilly from Susan M. Coughanour (re: Clarification) filed. |
| Nov. 09, 1990 | Letter to DKK from D. Dee (re: status) filed. |
| Nov. 05, 1990 | Recommended Order(In the Land use Phase of the Referenced Case) sent out. |
| Oct. 30, 1990 | Letter to Hamilton Oven, Jr. from Wayn E. Daltry w/attached Preliminary SWFRPC Staff Assessment For the Lee County Solid Waste Energy Recovery Facility filed. |
| Oct. 26, 1990 | Errata Sheet & cover ltr filed. (From George E. Reilly) |
| Oct. 18, 1990 | Order (Duda's Motion for Clarification DENIED) sent out. |
| Oct. 17, 1990 | Department of Environmental Regulation's Response to Duda's Motion For Clarification filed. (from Richard T. Donelan, Jr.) |
| Oct. 12, 1990 | Transcript of Proceedings w/Lee County's Exhibits for Land Use & Exhibit 20 (3 Vols) TAGGED; Lee County's Response to Duda's Motion For Clarification; Notice of Filing Transcript and Lee County's Proposed Recommended Order; Lee County's Proposed Recommend |
| Oct. 09, 1990 | Order (Water Management District is GRANTED full party status) sent out. |
| Oct. 08, 1990 | CASE STATUS: Hearing Held. |
| Oct. 05, 1990 | Prehearing Stipulation For Land Use Hearing filed. (From David S. Dee) |
| Oct. 05, 1990 | Prehearing Stipulation For Land Use Hearing filed. (from David S. Dee) |
| Oct. 05, 1990 | Duda's Motion for Clarification filed. |
| Sep. 27, 1990 | (SFWMD) Notice of Intent to be a Party filed. (from John J. Fumero) |
| Sep. 26, 1990 | Order (Petition to Intervene for Duda has been DENIED) sent out. |
| Sep. 20, 1990 | Duda's Memorandum in Opposition to Lee County's Motion to Dismiss Duda's Petition For Leave to Intervene filed. (From Lawrence E. Sellers, Jr.) |
| Sep. 19, 1990 | Notice of Hearing (set for 9-25-90, 2:00p, Talla) filed. |
| Sep. 18, 1990 | Memorandum from David Dee re: intervention filed. (hrg set for 9-25-90, 2:00 in Talla) |
| Sep. 14, 1990 | Order( sent out. |
| Sep. 12, 1990 | Memorandum in Support of Lee County's Motion to Dismiss Duda's Petition For Leve to Intervene & Lee County's Motion to Dismiss Duda's Petition For Leave to Intervene filed. (From David S. Dee) |
| Sep. 06, 1990 | Letter to DKK from Hamilton S. Oven, Jr. (re: Application insufficient) & attached Comments filed. |
| Sep. 04, 1990 | Notice of Intent ot be a Party filed. (From James V. Antista) |
| Aug. 31, 1990 | Letter to DKK from John J. Fumero (re: District not participating in land use component of this certificate process) filed. |
| Aug. 27, 1990 | Letter to Hamilton S. Oven, Jr. from Susan M. Coughanour (re:Lee County Resource Recovery Project Electrical Generating Station Power Siting Application) filed. |
| Aug. 24, 1990 | (DOT) Motion Party Status filed. (From Harry R. Bishop) |
| Aug. 23, 1990 | Duba's Petition For Leave to Intervene filed. (From Lawrence E. Sellers, Jr.) |
| Aug. 23, 1990 | JOint Stipoulation & cover ltr filed. (From David S. Dee) |
| Aug. 14, 1990 | Ltr. to DKK from D. Dee filed. |
| Aug. 09, 1990 | Notice of Land Use Hearing sent out. (hearing set for 10/08/90;9:00AM;Fort Myers) |
| Aug. 08, 1990 | Joint Stipulation w/exhibit-1 & cover ltr filed. (From Richard Donelan & L. Kathryn Funchess) |
| Aug. 06, 1990 | Memorandum w/Timetable filed. (From Hamilton S. Oven, Jr.) |
| Jul. 17, 1990 | Letter to DKK from Hamilton S. Oven, Jr. (re: Application being Complete) filed. |
| Jul. 10, 1990 | Notice of Appearance filed. (from David S. Dee) |
| Jun. 29, 1990 | PPF's sent out. |
| Jun. 29, 1990 | 3 Volumes TAGGED (Application; Appendices; Air Quality); & Referral letter to SLS from H. Oven filed. |
| Issue Date | Document | Summary |
|---|---|---|
| May 16, 1991 | Agency Final Order | |
| Nov. 05, 1990 | Recommended Order | Power Plant Siting Act certification recommended after balancing need with impacts. Mercury, air emission limits and control techology, Best Available Control Technology, Prevention of Significant Deterioration, and resource recovery. |
