STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
IN RE: FLORIDA POWER AND LIGHT COMPANY; DANIA BEACH ENERGY CENTER PROJECT POWER PLANT SITING APPLICATION NO. PA89-26A2
/
Case No. 17-4388EPP
RECOMMENDED ORDER ON CERTIFICATION
The certification hearing in this matter was held pursuant to sections 403.501 through 403.518 and 120.569 and 120.57(1), Florida Statutes,1/ on May 15 through 18, 2018, in Dania Beach, Florida, before Cathy M. Sellers, an Administrative Law Judge ("ALJ") of the State of Florida, Division of Administrative Hearings ("DOAH").
APPEARANCES
For Florida Power & Light Company:
Scott A. Goorland, Esquire
Florida Power & Light Company Law J/B 700 Universe Boulevard
Juno Beach, Florida 33408
Gregory M. Munson, Esquire
Mary Elizabeth Keating, Esquire Gunster, Yoakley & Stewart, P.A.
215 South Monroe Street, Suite 601 Tallahassee, Florida 32301
Deborah K. Madden
Gunster, Yoakley and Stewart, P.A.
450 East Las Olas Bouelevard Fort Lauderdale, Florida 33301
For the Department of Environmental Protection:
Kelley F. Corbari, Esquire Michael James Weiss, Esquire
Department of Environmental Protection Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399
For Sierra Club: Julie Kaplan, Esquire
Diana A. Csank, Esquire Joshua Stebbins, Esquire Phillip Goo, Esquire
50 F Street Northwest, Eighth Floor Washington, D.C. 20001
STATEMENT OF THE ISSUES
The issue to be determined is whether the Governor and Cabinet, sitting as the Siting Board, should approve the Site Certification Application ("Application") submitted by Florida Power & Light Company ("FPL"), pursuant to the Florida Power Plant Siting Act ("PPSA"), sections 403.501 through 403.518, for the construction and operation of a new electrical power generation facility, Dania Beach Energy Center ("DBEC") at FPL's existing Lauderdale Site in Broward County, Florida; and, if so, the Conditions of Certification that should be imposed.
PRELIMINARY STATEMENT
On July 27, 2017, FPL filed the Application for site certification to construct and operate DBEC with the Florida Department of Environmental Protection ("DEP"). As required by section 403.507, the Application was distributed to the affected agencies.2/ FPL responded to one round of complete questions and
comments from the affected agencies. DEP determined the Application complete on October 27, 2017.
On October 27, 2017, FPL filed a Petition for Determination of Need for Dania Beach Clean Energy Center Unit 73/ with the Florida Public Service Commission ("PSC"), requesting the PSC to determine the need for construction of DBEC Unit 7 at FPL's Lauderdale Site. On March 19, 2018, the PSC issued the Order Granting Florida Power & Light Company's Petition for a Determination of Need for the Dania Beach Clean Energy Center ("Need Determination"), finding need for DBEC.
Pursuant to section 403.507, the affected agencies submitted their reports and proposed certification to DEP. On April 2, 2018, DEP issued a Project Analysis Report ("PAR"), recommending approval of DBEC subject to the proposed Conditions of Certification, which are attached to, and are part of, the PAR.
Pursuant to section 403.508(3)(e), Sierra Club ("Sierra") filed a Motion to Intervene on April 16, 2018. On May 4, 2018, Sierra was granted party status as an intervenor in this proceeding, subject to limitations on the issues for which evidence and argument could be presented at the final hearing, and subject to demonstrating its standing as a party whose substantial interests are affected by this site certification proceeding.4/
The certification hearing was held on May 15 through 18, 2018, in Davie, Florida. FPL, DEP, and Sierra appeared and presented evidence and argument at the hearing. Other than DEP, no other agencies filed a notice of intent to be a party to the certification hearing, and none appeared at the hearing.
Additionally, no other agency or domestic nonprofit corporation or association described in section 403.508 filed a notice of intent to be a party to the certification hearing, and none appeared at the hearing.
At the final hearing, FPL called the following witnesses: Jacqueline Kingston, senior project manager for FPL; Dr. Steven
Sim, director of Integrated Resource Planning for FPL; Kennard Kosky, P.E., of Golder Associates, consulting project director for DBEC; John Barranco, P.E., of Black and Veatch, an engineering consultant who was responsible for design of management systems for DBEC; and Dr. George Maul, professor of oceanography, Florida Institute of Technology. FPL Exhibit
Nos. 1, 4, 7 through 9, 22, 24, 27, 28, 31 through 34, 40, 41,
46, 48, 49, and 51 were admitted into evidence without objection,
and FPL Exhibit Nos. 5, 21, 26, 30, 37 through 39, 45, 47, and 50 were admitted into evidence over objection.
DEP called Cynthia Mulkey, program administrator for DEP's Siting Coordination Office ("SCO"). Pursuant to the parties' stipulation, the deposition transcript of Syed Arif, program
administrator for DEP's Division of Air Resource Management,
Office of Permitting and Compliance, was admitted in lieu of
in-person testimony at the hearing. DEP Exhibit Nos. 1, 3, 4, 6, 7, 9, and 10 were admitted into evidence without objection.
Sierra-DEP Joint Exhibit A also was admitted into evidence without objection.
Sierra presented the testimony of Christy Ann Costello; Mayor Phillip Stoddard; Robert Mahoney; Winston Mark Walters; Dr. Harold Wanless, professor and chair of the Department of Geological Sciences at the University of Miami; Dr. Frank Ackerman, principal economist at Synapse Energy Economics, Inc.; and Susannah Randolph, Sierra's representative for the Beyond Coal Campaign in Florida. Sierra Exhibit Nos. 3, 7, 12, 15, 46
through 51, 53 through 61, 64, 65, 69, 74 (resume only), 75, 76,
78 through 81, 85, 87, and 90 through 92 were admitted into evidence without objection. Sierra Exhibit Nos. 21, 35 through 38, 77, 84, 88, and 89 were admitted over objection. Sierra Exhibits 4, 68, and 82, and the deposition of Ann Seiler (unmarked) were tendered for admission but were excluded from evidence; Sierra preserved its proffer of Exhibit 82 for the record.
A public hearing at which unsworn comments were provided by members of the public was held from 6:30 p.m. to 8:30 p.m., on May 15, 2018. Thirty-one members of the public offered comments,
which, along with the sworn testimony presented during the evidentiary hearing, were preserved and transcribed as part of the record. Additionally, some participants signed a sign-in sheet that was provided at the public hearing; that sign-in sheet also is part of the record.
The last volume of the seven-volume Transcript was filed at DOAH on June 15, 2018, and, pursuant to Florida Administrative Code Rule 28-106.216, the parties were given ten days to file proposed recommended orders ("PROs"). Pursuant to motion, the page limit for the PROs was extended to 100 pages.
The parties timely filed their PROs on June 25, 2018. On June 26, 2018, DEP filed an Amended Proposed Recommended Order, which was accepted by the undersigned as DEP's PRO in this proceeding. On July 2, Sierra filed an Amended Proposed Recommended Order, which was accepted by the undersigned as Sierra's PRO in this proceeding. The undersigned has duly considered the parties' PROs in preparing this Recommended Order.
FINDINGS OF FACT
The Parties
FPL is the applicant for site certification for the DBEC electrical power plant5/ at issue in this proceeding. FPL is the largest electric utility in Florida, serving approximately
4.9 million customer accounts. Its service territory covers approximately 28,000 square miles, in all or part of 35 counties
in Florida, and in Georgia. Its 53 existing electrical power generating units are located at power plants throughout its service territory, and consist of diverse generation technologies, including nuclear units, coal-burning units, combined cycle units, oil/gas steam units, combustion turbines, gas turbines, and solar facilities. As of December 2016, FPL had a total system electrical power generation capacity of
26,267 megawatts ("MW").
DEP is the state agency charged with administering the PPSA, which is codified at chapter 403, part II. Specifically, the SCO administers the PPSA and coordinates the site certification process, including receiving comments from the affected agencies and preparing the PAR, which contains the proposed Conditions of Certification.6/
Sierra is a national non-profit environmental advocacy organization. A key component of Sierra's mission is to advocate for the use of clean energy sources. As discussed below, Sierra was granted intervenor status pursuant to section 403.508(3)(e), subject to proving that its substantial interests are affected in this proceeding.
The DBEC Electrical Power Plant
FPL's Lauderdale Site
FPL owns and operates the Lauderdale Site, an existing electrical power generating facility site located on
approximately 392 acres in the City of Dania Beach and the City of Hollywood, in Broward County, Florida. The Site is approximately one mile west of Interstate 95 and approximately 1/4 mile south of Interstate 595. It has served as an operating power plant site for more than 90 years, and has existing infrastructure consisting of a transmission switch yard, a gas yard, an existing gas transmission pipeline, an existing electrical transmission system, water lines, fuel storage tanks, and a sewer line.
Currently, the Lauderdale Site features five electrical power generation units: Units 4 and 5, which consist of four combined cycle units comprised of four 1990s-vintage combustion turbines ("CTs"), four heat recovery steam generators ("HRSGs"), and two 1950s-vintage steam turbines; Unit 6, which consists of five 200-MW single cycle CTs used as "peakers" to generate additional electrical power during periods of peak demand; and two 35 MW units.
Location of DBEC
DBEC is proposed to be constructed on the portion of the Lauderdale Site that is located within the City of Dania Beach. The City of Dania Beach recently amended its Comprehensive Plan to add the Electrical Generation Facilities use category to the Future Land Use Element and to so designate, on its Future Land
Use Map, the portion of the Lauderdale Site on which DBEC will be constructed.
DBEC is proposed to be constructed and operated on the portion of the Lauderdale Site on which Units 4 and 5 currently are located. These units will be completely dismantled and removed before construction of DBEC commences.7/
DBEC will use much of the existing infrastructure that currently serves Units 4 and 5. This infrastructure includes existing fuel and storage tanks, an existing gas transmission pipeline, existing electrical transmission lines, existing cooling water intake at the Dania Cutoff Canal, and existing cooling water discharge structures.
The major new components of DBEC will be constructed at an elevation of 11.5 feet above mean sea level. The existing infrastructure that will be used by DBEC will not be raised above its current elevation above mean sea level.
Unit 7 Technology
Unit 7, as proposed, will consist of a new two-on-one combined cycle electrical power generation unit with a nominal rating of 1,200 MW.
A combined cycle electrical generation system generates electrical power in two cycles. In the first cycle, ambient air is drawn into the multistage compressor, where it is compressed, then directed to the combustor section, where fuel——in this case,
natural gas——is introduced, ignited, and burned. The hot combustion gases are diluted with additional cool air and directed to the turbine section, where they expand, causing
the CT, which is connected to a generator, to rotate, producing electricity. The captured gases are then routed to a HRSG, which begins the second cycle. In this cycle, the heat from the captured gases is used to convert water to steam, which drives a steam turbine generator ("STG"), producing additional electricity.
Each CT/HRSG combination is termed a "train." Unit 7 will have two CT/HRSG trains, each having a gross generation capacity of 400 MW at an inlet air temperature of 75 degrees Fahrenheit. These two CT/HRSG trains will be connected to one STG having a generation capacity of 400 MW. The combination of the two CT/HRSG trains with one STG gives rise to the "two-on-one combined cycle" label for this type of power generation unit.
Combined cycle systems, such as the one that will constitute Unit 7, are significantly more efficient than single cycle units that involve only combustion turbines. This increased efficiency is due to the addition of the second cycle, which uses captured exhaust heat from the first cycle to create steam, which is then used to turn a steam turbine, thereby generating an additional 400 MW of electricity per total amount of fuel burned.
Operating efficiency for combined cycle units is measured in terms of "heat rate," which is an expression of how efficiently the fuel is converted to electrical energy. The lower the heat rate, the more efficient the electrical power generation unit. Unit 7 is a modern combined cycle plant and is expected to achieve a heat rate of approximately 6,119 British Thermal Units ("BTUs") per kilowatt hour. By contrast, Units 4 and 5——which are also combined cycle units but use older, less efficient equipment——have an average heat rate of approximately 7,800 BTUs per kilowatt hour.
As noted above, Unit 7 will use natural gas as its primary fuel. The natural gas will be delivered to the DBEC site through an existing natural gas pipeline, which originates offsite and is not part of this site certification proceeding.8/ Ultra-low sulfur distillate ("ULSD") oil will be used as the
back-up fuel.
Unit 7 Effect on FPL System-wide Natural Gas Consumption
As noted above, Unit 7 will use the most modern combined cycle technology.
Dr. Steven Sim, FPL's director of Integrated Resource Planning, prepared a projection of the effect Unit 7 will have on natural gas consumption by FPL's electrical power generation units on a system-wide basis.
Using a model that simulates the operation of all electrical generating units on FPL's system, FPL compared, for natural gas fuel consumption on a system-wide basis, two scenarios: one in which Units 4 and 5 continue to operate indefinitely and Unit 7 is not constructed and operated; and one in which Units 4 and 5 are retired in the fourth quarter of 2018, and Unit 7 is constructed and commences operation in mid-2022.
The inputs to the model included a range of information, including the electrical load that FPL will serve in the future, on an hourly, monthly, and yearly basis, for a period of 30 years; information, for each of FPL's 53 electrical power generation units regarding individual generating capacity, fuel use efficiency, scheduled maintenance outages, and forced outages; fuel costs; environmental compliance costs; and the addition of other power-generation resources to meet future forecasted demand.
The model was used to determine which of FPL's generating units operate during each hour, in order to determine how to most economically generate electrical power.
The model projected a significant reduction in natural gas consumption by FPL on a system-wide basis over a 30-year horizon if Units 4 and 5 are retired in late 2018 and Unit 7 commences operation in 2022. Conversely, if Units 4 and 5 are not retired and continue to operate9/——which will be the case if
Unit 7 is not certified——the model showed that FPL will consume substantially more natural gas on a system-wide basis over a 30- year horizon, from 2018 through 2047, than if Unit 7 is certified, constructed, and begins operating in 2022.
Assuming Units 4 and 5 are retired in 2018 and Unit 7 commences operation in 2022, the model-generated comparative natural gas consumption amounts shows a consistent system-wide decrease in natural gas consumption in amounts ranging from slightly over two million cubic feet per year to slightly over six million cubic feet per year, for a projected total decrease in system-wide natural gas consumption of nearly 134 million cubic feet over the 30-year horizon. This is because the operation of Unit 7 will displace less-efficient gas burning units that otherwise would be used if Unit 7 does not operate.
Further, because the model-generated projected natural gas consumption amounts simply compared the "with Units 4 and 5 and without Unit 7" scenario to the "without Units 4 and 5 and with Unit 7" scenario, with all other variables being held constant, the projected natural gas consumption differential between the two scenarios would not change, regardless of whether, and which, additional types of energy-generation resources were added to FPL's system.
Dr. Sim acknowledged that the social costs of carbon were not considered as part of the modeling of FPL's system-wide
projected natural gas consumption. However, he noted that as a practical matter, because Unit 7 will operate more efficiently, FPL will demand less natural gas on a system-wide basis to fuel its electrical power generating units. As a result of reduced demand, less natural gas will need to be produced and transported by pipeline to fuel FPL's electrical power plant generating system.
Public Service Commission Need Determination
Pursuant to section 403.519, FPL filed a petition for determination of need for DBEC with the PSC in October 2017. Sierra intervened into the need determination proceeding. The final hearing was held on January 17, 2018.
The PSC issued the Need Determination for DBEC Unit 7 on March 19, 2018. This Order, which constitutes final agency action, was not appealed.
During the need determination proceeding, Sierra contended, and presented evidence in an effort to show, that renewal energy sources and technologies, such as solar facilities, could be deployed incrementally to delay or potentially entirely forestall the need for Unit 7. Thus, as part of the need analysis, the PSC specifically considered the feasibility of using renewable generation options and sources, including solar facilities.
The PSC specifically determined that the use of such generation options and sources, including solar facilities, was less cost-effective than DBEC. The PSC found that: "[n]o additional cost-effective renewable resource has been identified in this proceeding that can mitigate the need for new generation. Similarly, no additional cost-effective [Demand Side Management] has been identified in this proceeding that can mitigate the need for new generation."
Based on the evidence and argument presented in the need determination proceeding, the PSC granted the Need Determination for DBEC Unit 7, specifically finding and concluding that "the Dania Beach Clean Energy Center Unit 7 is the most cost-effective alternative that maintains Florida Power & Light Company's system and Southeastern Florida area reliability compared to other alternatives[.]"
Section 403.519(3) states:
The commission shall be the sole forum for the determination of [need], which accordingly shall not be raised in any other forum or in the review of proceedings in such other forum. In making its determination, the commission shall take into account the need for electric system reliability and integrity, the need for adequate electricity at a reasonable cost, the need for fuel diversity and supply reliability, whether the proposed plant is the most cost-effective alternative available, and whether renewable energy sources and technologies, as well as conservation measures, are utilized to the extent reasonably available. The commission
shall also expressly consider the conservation measures taken by or reasonably available to the applicant or its members which might mitigate the need for the proposed plant and other matters within its jurisdiction which it deems relevant. The commission's determination of need for an electrical power plant shall create a presumption of public need and necessity and shall serve as the commission's report required by s. 403.507(4). An order entered pursuant to this section constitutes final agency action.
§ 403.519, Fla. Stat. (emphasis added).
Pursuant to this statute, the PSC is the only entity authorized to determine whether an electrical power plant is needed, and whether, given the need for the power plant, the applicant should be required to implement renewable energy sources and technologies, including the use of solar generation facilities.
Here, the PSC determined that DBEC is needed, and further determined that the use of renewable energy sources and technologies, such as solar technology, was not cost-effective, and, therefore, was not reasonably available.
Pursuant to the plain language of section 403.519(3), it is beyond the scope of this proceeding for the undersigned or the Siting Board to require, as a condition of site certification for DBEC, the use of alternative energy sources or technologies, such as solar or other forms of renewable energy, or to deny
DBEC's site certification on the basis that such technologies are not proposed as part of the project.
DBEC Emissions and Air Construction/Prevention of Significant Deterioration Permit
Florida's Air Quality Regulatory Program
In Florida, DEP implements the federal air regulatory programs under the Clean Air Act, subject to approval and oversight by the United States Environmental Protection Agency ("EPA"). Under this system, DEP is the permitting authority, while EPA retains commenting authority.
DEP rules implementing the Clean Air Act consist of several air quality regulatory programs. Pertinent to this proceeding are the National Ambient Air Quality Standards ("NAAQS") and Prevention of Significant Deterioration ("PSD") programs.
Under the Clean Air Act, EPA is required to promulgate NAAQS for certain air pollutants called "criteria" pollutants. The primary NAAQS establish levels of air quality that are necessary to protect the public health, with an adequate margin of safety to protect sensitive populations. Secondary NAAQS also may be established to protect the public welfare, which can include environmental impacts. 40 C.F.R. § 50.2(b). NAAQS have been developed for six air pollutants: sulfur dioxide, nitrogen
dioxide, carbon monoxide, ozone, certain sizes of particulate matter, and lead.
NAAQS have not been established for greenhouse gases ("GHGs").
For each of the six criteria air pollutants for which NAAQS have been developed, EPA has designated areas within each state that either meet or do not meet the NAAQS for that specific pollutant. Areas in which the NAAQS for a specific criteria air pollutant is met are termed "attainment" areas for that pollutant, while areas in which the NAAQS is not met for a specific criteria pollutant are termed "nonattainment" areas for that pollutant. Attainment areas are classified as Class I, which need special air quality protection; or Class II, which do not need special air quality protection.
Everglades National Park and designated national wilderness areas are the only Class I attainment areas in Florida. All other attainment areas in Florida are designated as Class II.
Broward County, including the DBEC site, is in a Class II attainment area for all NAAQS.
The PSD program applies in attainment areas to limit the air quality impacts that may result from new or modified major sources of air pollution. Its purpose is to assure that
the air quality in areas meeting the NAAQS does not significantly deteriorate below an established baseline.
Under the PSD program, all major new sources of air pollution are subject to preconstruction review to determine whether significant air quality deterioration will result from the facility.
As part of the PSD review, the new source is required to demonstrate compliance with PSD increments, which effectively constitute small amounts of air quality impacts that new or modified major sources of air pollution cannot exceed. PSD increments are more stringent than NAAQS, and, as such, they protect against air quality degradation in attainment areas.
If an area meets the NAAQS for a specific criteria pollutant, PSD increments prevent the addition of that pollutant in greater than that incremental amount over an established baseline concentration for that pollutant.
No PSD increments have been established for GHGs.
The PSD program also requires demonstration that the air pollution source will use the Best Available Control Technology ("BACT"). BACT is defined, in pertinent part, as:
an emission limitation based on the maximum degree of reduction of each pollutant subject to regulation under this chapter emitted from or which results from any major emitting facility, which the permitting authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts
and other costs, determines is achievable for such facility through application of production processes and available methods, systems, and techniques, including fuel cleaning, clean fuels, or treatment or innovative fuel combustion techniques for control of each such pollutant.
40 U.S.C. § 7479(3).
More simply stated, BACT is the maximum degree of emission reduction that is available and feasible for the source, taking into account environmental, energy, economic impacts, and other costs.
BACT requires a "top-down" analysis, which starts with the most stringent emission limits demonstrated feasible for a specific air pollution source category, as applied throughout the country. EPA has created a software tool accessible on its website, that enables a review of different source categories to determine the most stringent applicable control technology that meets the definition of BACT for that particular source type.
BACT also must be at least as stringent as new source performance standards ("NSPS"), which are EPA-developed emissions limits for specific pollutants emitted by new or modified air pollution sources within a particular source category. The NSPS applicable to combined cycle combustion turbines, such as those that will comprise Unit 7, are nitrogen oxides, sulfur dioxide, and GHGs.
DBEC Emissions
DBEC will have several sources of air emissions. These consist of the two CTs that are part of the CT/HRSG trains discussed above; an auxiliary boiler; two emergency diesel generators, two natural gas heaters; a fire water pump diesel engine; a 14-cell auxiliary cooling system; and circuit breakers containing sulfur hexafluoride located in the Unit 7 power block. Of these, the CTs constitute the most significant air emissions source.
DBEC's air emissions sources will emit nitrogen oxides, carbon monoxide, volatile organic compounds, sulfur dioxide, sulfuric acid, particulate matter ("PM") 10 and PM2.5, and GHGs.
The GHGs emitted by DBEC will consist primarily10/ of carbon dioxide, with small amounts of methane.11/
DBEC's Air Construction/PSD Permit
FPL applied to DEP for an air construction/PSD permit for DBEC in July 2017. DEP issued the air construction/PSD permit for DBEC ("Air Permit") in December 2017. The Air Permit was not challenged and became final agency action on
December 24, 2017. It is valid through December 31, 2027.
Pursuant to section 403.509(5), the Air Permit is not subject to revision or modification in this proceeding.12/
Because DBEC will emit 100 tons per year or more of regulated pollutants and is included in a source category to
which the 100-tons-per-year threshold applies, it constitutes a major stationary source of air pollution. See Fla. Admin. Code R. 62-210.200(154)(a)1. Therefore, under Florida and federal law, FPL was required to obtain an air construction/PSD permit for DBEC.
As part of the PSD review, FPL was required to perform a control technology review; to demonstrate that all applicable state and federal emission limiting standards would be met; and to determine and implement BACT to control the emissions.
Projected emissions of carbon monoxide, volatile organic compounds, sulfur dioxide, sulfuric acid, PM10 and PM2.5, and GHGs underwent PSD review.
Initial PSD modeling for projected carbon monoxide and sulfur dioxide emissions showed that these emissions would not exceed "significant impact levels," so no further review beyond the modeling was required.
Initial modeling showed that PM10 and PM2.5 emissions would exceed the "significant impact level," so the modeling results were compared to the Class I and Class II PSD increments. This comparison showed that neither PM10 emissions nor PM2.5 emissions would exceed the increments for these pollutants. Accordingly, FPL demonstrated that DBEC would comply with the incremental standards for these pollutants.
DBEC also meets BACT for volatile organic compounds emissions.
The primary BACT for GHG emissions for Unit 7, as a combined cycle unit, is the efficiency of the unit itself in producing electrical power using low-GHG emitting fuels, such as natural gas. As previously discussed, Unit 7 will be an extremely efficient combined cycle unit that will use natural gas as its primary fuel.
The Air Permit limits the emissions rates for, and amounts of, GHG emissions. These are consistent with BACT, as determined comparing DBEC's control technology to all other types of GHG control technology for CTs throughout the country. The Air Permit also imposes an extremely stringent methane monitoring requirement. Pursuant to these measures, DBEC was determined to meet the BACT requirement applicable to GHGs.13/
Additionally, DBEC will meet the NSPS applicable to CTs.14/
Specifically, DBEC emissions of nitrogen oxides will be
7.5 times lower than the NSPS limit for that pollutant, and DBEC emissions of sulfur dioxide will be ten times lower than the NSPS standard for that pollutant. Accordingly, DBEC will meet the NSPS for these pollutants.
DBEC also will meet the applicable NSPS for GHGs.15/ The NSPS for GHG emissions applicable to combined cycle CTs is
1,000 pounds per MW hour ("lbs/MWh"). DBEC is projected to produce 727 lbs/MWh of GHGs when burning natural gas——well below the 1,000 lbs/MWh NSPS limit.
The Air Permit also imposes emissions standards for carbon monoxide, PM10 and PM2.5, sulfur dioxide, sulfuric acid mist, volatile organic compounds, and GHGs.
The competent, credible evidence established that replacing Units 4 and 5 with Unit 7 will reduce the emissions of nitrogen oxides, PM10 and PM2.5, volatile organic compounds, sulfur dioxide, and carbon monoxide by approximately 6.6 million pounds for the period from 2018 to 2047.
The evidence also established that replacing Units 4 and 5 with Unit 7 is projected to result in an approximately 22-percent reduction in GHGs generated, measured in lbs/MWh, assuming Unit 7 is operated at the same frequency as Units 4
and 5. This comparative reduction in GHG emissions on a lbs/MWh basis underscores the efficiency of Unit 7 compared to Units 4 and 5.
Additionally, the credible evidence established that the operation Unit 7 will result in a system-wide reduction of GHG emissions for the period from 2018 to 2047.16/
The retirement of Units 4 and 5 in 2018 and commencement of operation of Unit 7 in 2022 may not result in reduced total amounts of GHG emissions generated at the
Lauderdale Site. This is because even though Unit 7 is
substantially more efficient than Units 4 and 5——so will burn substantially less natural gas——it may operate more often because it will be the most efficient electrical power generating unit in FPL's electrical power generation system.
However, the competent, credible evidence showed that the operation of Unit 7 will reduce GHG emissions across FPL's
electrical power generating system because it will be operated
more often than other, less efficient units, thereby displacing the use of those units across FPL's electrical power generation system. Stated another way, because Unit 7 will be a significantly more efficient electrical power generating unit—— meaning that it will produce more electricity per cubic foot of natural gas than FPL's less efficient units——it will be operated more frequently than FPL's less efficient units, resulting in reduced consumption of natural gas on a system-wide basis.
Reduced natural gas consumption on a system-wide basis will result in a reduced total amount of GHGs generated on a system-wide basis from FPL's electrical power generating plants.
The competent, credible evidence establishes that the retirement of Units 4 and 5 in 2018 and the addition of Unit 7 in 2022 will result in a total reduction of approximately
8.1 million tons17/ of GHG emissions in the form of carbon dioxide18/ across FPL's electrical power generation system for the period from 2018 to 2047.19/
Sierra contends that DBEC will "[e]mit millions of tons more [GHGs] every year than the units it replaces."
As discussed above, the evidence shows that the operation of Unit 7 in conjunction with the retirement of Units 4 and 5 in 2018 may not result in reduced GHG emissions at the Lauderdale Site because, due to its efficiency, Unit 7 may be operated more frequently and at higher capacity. However, the competent, credible, and persuasive evidence establishes that the total GHG emissions from FPL's electrical power plant generating units will be reduced on a system-wide basis by approximately 8,123,624 tons over the period between 2018 and 2047.
Further, Sierra's position that retiring Units 4 and 5 in 2018 and operating Unit 7 beginning in 2022 will result in a greater total amount of GHGs being emitted appears grounded in the assumption that if Unit 7 does not go into operation, FPL will retire Units 4 and 5 by 2033. However, this assumption is not supported by any competent substantial evidence in the record,20/ and was directly contradicted by
Dr. Sim, who testified that Units 4 and 5 realistically could operate indefinitely.
In sum, the competent, credible, and persuasive evidence shows that if DBEC does not commence operation in 2022, and Units 4 and 5 continue to operate indefinitely, FPL's GHG emissions on a system-wide basis will be approximately 8,123,624 tons more for the period between 2018 and 2047 than if Units 4 and 5 are retired in 2018 and Unit 7 commences operation in 2022.
In sum, FPL demonstrated that DBEC meets all applicable state and federal air regulatory and permitting requirements for DBEC and, specifically, for Unit 7.
As discussed above, FPL demonstrated that DBEC will meet the applicable BACT requirement——which literally means the best available control technology——for GHG emissions, as well as
other emissions from Unit 7 and other emissions sources. Additionally, the air construction/PSD permit establishes emissions limits for DBEC, and, specifically, for Unit 7, and FPL demonstrated, to DEP's satisfaction, that its emissions control technology will meet the applicable standards, which are more stringent than applicable NSPS limits. Thus, FPL demonstrated that DBEC will meet state and federal law regarding emissions limitations for GHGs and other pollutants emitted by DBEC. Sierra's Contentions Regarding GHG Emissions from DBEC
Notwithstanding that FPL demonstrated that DBEC meet all applicable air rules and regulations, Sierra contends that the Siting Board should either deny the site certification for
DBEC or approve it with conditions (addressed below) because, it alleges, FPL and/or DEP failed to consider or address numerous environmental issues regarding projected GHG emissions for DBEC. These alleged deficiencies are: failure of FPL and/or DEP to perform modeling of the "the environmental impact" of DBEC's GHG emissions; failure of FPL and/or DEP to analyze the "social costs of carbon" emitted by DBEC; failure of FPL and/or DEP to perform a "life-cycle analysis" to analyze DBEC's GHG emissions "from start to finish, . . . from gas generation to gas burn"; failure of FPL and/or DEP to consider the cumulative impacts of DBEC's emissions combined with GHG emissions "from other existing and foreseeable permitted sources in Florida and elsewhere"; and failure of FPL and/or DEP to consider the use of solar electrical power generation.21/ Each of these challenges is addressed below.
Failure to Model Endpoint Environmental Impact
With respect to FPL's and/or DEP's alleged failure to perform modeling of "the environmental impact" of DBEC's GHG emissions, the evidence establishes that FPL and DEP complied with the applicable state rules and federal regulatory requirements in addressing GHG emissions from DBEC. To that point, Syed Arif, who performed the air construction/PSD permit application review, testified that modeling of the environmental impacts of DBEC's projected GHG emissions offsite was not performed because it is not required by the applicable state
rules and federal regulations. Indeed, EPA's PSD Guidance document22/ specifically states that "[w]hen conducting a BACT analysis for GHG's, the environmental impact analysis should continue to concentrate on impacts other than direct impacts due to emissions of the regulated pollutant in question." This document further states, in pertinent part:
When weighing any trade-offs between emissions of GHGs and emissions of other regulated NSR pollutants, EPA recommends that permitting authorities focus on the relative levels of GHG emissions rather than the endpoint impacts of GHGs. As a general matter, GHG emissions contribute to global warming and other climate changes that result in impacts on the environment and society.
However, due to the global scope of the problem, climate change modeling and evaluations of risks and impacts of GHG emissions currently is typically conducted for changes in emissions orders of magnitude larger than the emissions from individual projects that might be analyzed in PSD permit reviews. Quantifying these exact impacts attributable to the specific GHG source obtaining a permit in specific places is not currently possible with climate change modeling. Given these considerations, an assessment of the potential increase or decrease in the overall level of GHG emissions from a source would serve as the more appropriate and credible metric for assessing the relative environmental impact of a given control strategy.
EPA PSD Guidance, at pp. 41-42 (emphasis added).
In sum, state and federal PSD permitting law does not require an analysis of endpoint impacts of GHGs, and, further, expressly recognizes that due to the global scope of GHG
emissions' contribution to climate change, climate change modeling and risk/impact evaluation of GHG emissions is conducted on a scale orders of magnitude larger than the emissions from
individual projects. Additionally, the guidance expressly recognizes that determining the exact climate change impacts due to GHGs emitted on a source-specific basis is not currently possible with climate change modeling.
Sierra's contention that the site certification for DBEC should be denied or additional GHG-related conditions imposed due to project-specific environmental endpoint impacts is not persuasive, because it is not grounded in applicable law and, as discussed above, is not possible using current climate change modeling.
Failure to Consider and Address Social Costs of Carbon
Sierra also contends that the site certification for DBEC should be denied or additional GHG-related conditions imposed because FPL and/or DEP failed to analyze the social costs of carbon emitted by DBEC, particularly by Unit 7, and failed to mitigate or minimize those costs.
The social cost of carbon is defined as the present monetary value of the additional damages caused by emitting one more ton of carbon dioxide. In general terms, the social cost of carbon is the economic cost per ton of emissions. For each
incremental ton of carbon emissions, there is an incremental amount of harm.
There are different methods, or models, for determining the social cost of carbon. They vary depending on the types of data used in the model, as well as how the models address issues such as the rate of climate change; whether the models adequately and accurately address catastrophic risk; and whether the models address "tipping points" at which climate change becomes abruptly and irreversibly worse.
Sierra's expert on the social cost of carbon, Dr. Frank Ackerman,23/ presented the results of integrated assessment models used to estimate the social cost of carbon.24/ These types of models have been applied in various studies to estimate, in 2017 dollars, the cost per metric ton of carbon dioxide. These studies generated estimates of the social cost of carbon ranging from as low as $39 per metric ton in 2020 to as high as $1,821 in 2050, with each study generating a range of projected values for the first year modeled——either 2020 or 2025——through the last year modeled——either 2050 or 2055. These widely-ranging values for the modeled years over these 30-year periods are due to the substantial uncertainty and disagreement regarding the rate and extent of climate change, and whether there are tipping points that must be taken into consideration.
Ackerman estimated the social cost of carbon, as of 2012, as ranging from $33 to $1,048 per metric ton of carbon dioxide in 2020, to $75 to $1,821 per metric ton of carbon dioxide in 2050.
Ackerman prepared a report analyzing the social cost of carbon from DBEC's projected GHG emissions. He attempted to compare the costs of DBEC's emissions with the benefits of DBEC's operation.
In assessing the social cost of carbon emitted by DBEC, Ackerman considered the damage to tourism; human health; unique wildlife and ecosystems, including the Everglades; and property loss due to sea level rise and exacerbated king tides.
He acknowledged that while it can be very difficult to estimate the true monetary value of the social cost of carbon for a project due to the aforementioned uncertainties, it is possible to arrive at estimates that represent a "floor," or minimum value, of damage due to GHG emissions from a specific project.
Ackerman used the federal government's estimated social cost of carbon of $70 per ton of carbon dioxide25/——which, in Ackerman's view, underestimates the value of damages due to carbon dioxide emissions——and multiplied it by the GHG emissions, in tons, for each year of the DBEC project's projected life. Using two different annual GHGs emissions projections for DBEC——
4.13 million metric tons or 3.04 million metric tons——he
determined that the value of damages due to carbon dioxide emitted by DBEC would range from $213 million to $289 million on an annual basis.26/
Ackerman testified that, according to a research project conducted by Columbia University and the Rhodium Group, out of the 48 contiguous states, Florida will experience the greatest damage from climate change——which is projected to negatively impact the state's gross domestic product ("GDP") by between 10 and 24 percent by 2100. Using this study's projected GDP impacts and assuming that Florida experiences, to the year 2100, the same growth rate it has experienced over the past
20 years, Ackerman estimated that the monetary impact to Florida's economy from climate change may be between $500 million to $1.1 trillion annually by 2100.
Ackerman also attempted to quantify DBEC's proportion of that impact on Florida. Using the two values of projected carbon dioxide emissions from DBEC and comparing them to global carbon dioxide emissions projections, Ackerman estimated that DBEC accounts for approximately 1/115,000th to 1/120,000th of total global carbon dioxide emissions on an annual basis. Using those proportions and the valued damage of global climate change to Florida, he estimated that the present value of the damages resulting from DBEC's annual carbon dioxide emissions would range from $8.4 million and $27 million per year.
Ackerman also compared these annual projected social costs of carbon dioxide to the assumed $8.29 million annual benefits of the DBEC project to FPL's ratepayers. Based on this comparison, he concluded that the damages from DBEC's carbon emissions greatly outweigh DBEC's benefits to FPL ratepayers.
Ackerman did not perform any analysis of DBEC's economic effects on the local community.
He also did not take in account the effect that the increased efficiency of Unit 7 would have on FPL's system-wide emissions of GHGs through 2040.
He acknowledged that if greenhouse gas emissions are reduced as a result of Unit 7, then the overall harm and damage from the social costs of carbon would also be reduced. As he put it: "[t]he social cost is a per ton harm, so if fewer tons, smaller harm. . . . A reduction in emissions is a reduction in harm."
Ackerman testified that emitting any amount of GHGs has a social cost, but that "[a] smaller amount of emission is better. A smaller amount of emissions represents a smaller harm."
While the evidence shows that GHG emissions from DBEC will result in increased social costs of carbon on a per-ton basis compared to a zero emissions baseline, the competent,
substantial, and persuasive evidence establishes that the
operation of Unit 7 will reduce FPL's GHG emissions on a system-
wide basis by approximately 8.1 million tons by 2047, due to the retirement of older, less-efficient Units 4 and 5 and the reduced use of older, less-efficient generating units that produce greater quantities of GHG emissions.27/
Based on the foregoing, it is determined that retiring Units 4 and 5 in 2018 and operating Unit 7 commencing in 2022 will result in a net total reduction in the amount of GHG emissions from FPL's electrical power generating units on a system-wide basis——which, in turn, will result in lower social costs of carbon than if Unit 7 is not operated and Units 4 and 5 continue to operate indefinitely into the future.28/
Failure to Perform Life-Cycle Analysis
Additionally, Sierra contends that the site certification for DBEC should be denied or additional conditional GHG-related conditions imposed because FPL and/or DEP failed to perform a "life-cycle analysis" to analyze DBEC's GHG emissions "from start to finish, . . . from gas generation to gas burn," which would include GHGs emitted by natural gas production and transport by pipeline to the DBEC site. This contention disregards that such an analysis is beyond the scope of this proceeding.
This proceeding specifically applies only to "electrical power plants" as that term is defined in section
403.503(14). Pursuant to that definition, the scope of this proceeding is limited only to considering the impacts of, and imposing conditions on, facilities that fall within that definition. By this statute's plain terms, associated facilities that are directly or indirectly connected to the electrical power plant are to be considered only if they are owned by the applicant. As discussed above, the evidence establishes that
Florida Gas Transmission Company owns the pipeline that transports natural gas to the DBEC site. No evidence was presented showing that FPL has any ownership interest in this pipeline, or that FPL has any ownership in sources which may produce gas that is ultimately transported to DBEC for use as fuel for Unit 7.
Therefore, any GHG impacts associated with the operation of the pipeline to transport natural gas to DBEC are beyond the scope of this proceeding.29/
Failure to Consider Cumulative Impact of GHG Emissions
Sierra also contends that the site certification for DBEC should be denied or additional GHG-related conditions imposed because FPL and/or DEP did not consider the cumulative impacts of DBEC's GHG emissions combined with those from "other existing and foreseeable permitted sources in Florida and elsewhere."
As previously discussed, Florida and federal air statutes and rules do not impose cumulative impacts assessment in the PSD permitting process. Further, EPA's PSD Guidance expressly recognizes that climate change modeling and impacts evaluation of GHG emissions is conducted for changes in GHG emissions that are orders of magnitude larger than those from individual projects, and that determining the exact impacts attributable to a specific GHG source is not possible under current climate change modeling.
Failure to Consider Using Solar Power Generation Technology
Sierra also contends that the site certification for DBEC should be denied or additional conditions imposed because FPL and/or DEP "did not consider using solar generation." As discussed above, the PSC's Need Determination for Unit 7 considered and specifically rejected the use of photovoltaic (solar) facilities as a cost-effective alternative to Unit 7 as proposed.
As discussed above, the PSC is the sole forum for determining need for electrical power plants subject to the PPSA.
§ 403.519, Fla. Stat. The PSC's need determination considers, among other things, the need for electric system reliability, the need for fuel diversity, whether the proposed plant is the most cost-effective alternative, and whether renewable energy
resources may mitigate the need for the proposed electrical power plant.
Thus, section 403.519 vests sole jurisdiction in the PSC to determine, as part of the need determination process, whether solar facilities should be required to be implemented as part of an electrical power plant's need determination. Therefore, the decision whether to impose a requirement for DBEC to implement solar facilities is beyond the scope of this proceeding.
DBEC Stormwater Management System and Flooding Issues
The stormwater management system for DBEC was designed to ensure that stormwater received onsite does not flood onsite facilities and to ensure that stormwater leaving the site does not cause offsite flooding or pollution.
The stormwater management system for DBEC consists of a system of culverts, catch basins, ditches, storm sewer inlets, an underground storm sewer system, and ponds. The collection and conveyance structures collect the stormwater onsite and convey it to the ponds, which collect and store the water, then release it offsite at a controlled rate.
Compliance with Applicable Stormwater Management Requirements
The DBEC stormwater management system is designed in accordance with, and meets, all applicable stormwater management requirements of the City of Dania Beach, the City of Hollywood,
Broward County, and the South Florida Water Management District ("SFWMD"), including regulations specifically directed toward protecting land uses against flooding.
Broward County's land development code regulations require the floor elevation of the power plant facilities to be elevated to at least 5.5 feet North American Vertical Datum of 1988 ("NAVD88"), or approximately 6.5 feet above mean sea level, to withstand flooding from a 100-year, 72-hour storm event.
The City of Dania Beach requires new or substantially improved power generation structures to be elevated three feet above the Federal Emergency Management Agency's ("FEMA")
100-year Base Flood Elevation established on the FEMA Flood Insurance Rate Map ("FEMA Map"). FEMA's 100-year Base Flood Elevation is three feet NAVD88; thus, the City of Dania Beach requires DBEC's power generation structures to be elevated to six feet NAVD88, which is approximately seven feet above mean sea level.
To be conservative, FPL proposes to elevate the minimum floor elevation of DBEC's power generation structures to
10.5 feet NAVD88, or 11.5 feet above mean sea level——an additional five feet above Broward County's flood elevation requirement. This far exceeds both Broward County's and the City of Dania Beach's minimum flood elevation requirements.
Broward County also required FPL to compare the base elevation of the stormwater management ponds to future groundwater elevation established on the Broward County Future Conditions Average Wet Season Groundwater Map ("Groundwater Map"), to ensure that the ponds would be sufficiently elevated to hold enough water to prevent flooding during storm events. The Groundwater Map depicts a projected future average wet season groundwater elevation of 2.5 feet above mean sea level——i.e.,
1.5 feet NAVD88——in the year 2060. The base of the onsite stormwater storage ponds will be constructed one to two feet above this elevation. Additionally, the stormwater management system ponds have been designed to provide adequate storage to accommodate a 100-year, 72-hour storm event, so that the project does not have stormwater offsite impacts.
Projected Sea Level Rise and DBEC Design
The design elevation of DBEC's power block and stormwater management ponds adequately accounts for sea level rise.
At Broward County's request, FPL compared the base flood elevation of the DBEC power block to the 2015 Unified Sea Level Rise Projection for Southeast Florida ("USLRP") document. This document, which was prepared by a technical working group on behalf of Palm Beach, Broward, Miami-Dade and Monroe counties,
projects future sea level rise in South Florida, including Broward County.
The USLRP contains a graph30/ consisting of four curves31/ depicting projected sea level rise from 1992 (the baseline year) to 2100 for the southeast Florida region.32/ The table below summarizes the projected sea level rise corresponding to each curve on the USLRP graph for the year 206033/.
Name of Sea Level Rise Projection | Predicted Sea Level Rise by 2060 (inches) |
NOAA High Curve | 34 |
USACE High Curve | 26 |
IPCC AR5 Curve | 14 |
NOAA Intermediate/Low Curve | 10.5 |
The area between the IPCC AR5 Curve and the USACE High Curve is recommended in planning design elevation for most projects that fall within a short-term planning horizon, and applies to "most infrastructure projects, especially those with a design life expectancy of less than 50 years."34/
Additionally, the USLRP states that "[p]rojects in need of a greater factor of safety related to potential inundation should consider designing for the [USACE High Curve]. Examples of such projects may include evacuation routes planned for reconstruction, communications and energy infrastructure, and critical government and financial facilities."35/
DBEC has a design life of 40 years and constitutes energy infrastructure. Therefore, the USACE High Curve is
appropriate to use in designing the DBEC project to account for projected sea level rise by 2060.
By contrast, the NOAA High Curve is used to plan high- risk projects that will be constructed after 2060; projects that are not easily replaceable or removable, have a long design life—
—i.e., more than 50 years; or are critically interdependent with other infrastructure of services. Examples of infrastructure expressly identified in the USLRP document to which the NOAA High Curve is appropriately applied include nuclear power plants,36/ wastewater treatment facilities, levees or impoundments, bridges along major evacuation routes, airports, seaports, railroads, and major highways. DBEC does not fall within any of these categories; accordingly, the NOAA High Curve is not recommended for use in designing the DBEC project to account for projected sea level rise by 2060.
Nonetheless, FPL took a conservative approach in determining the appropriate design elevation for the project over its projected design-life. Specifically, FPL added one inch to the USACE High Curve projection to account for two additional years of sea level rise beyond the end of DBEC's design-life
in 2060. This resulted in a projected 27 inches of sea level rise by 2062. FPL then added this projection to the Broward County existing flood level requirement of 6.5 feet above mean sea level to determine potential flood levels in 2062. This
calculation showed that an elevation of 8.75 feet above mean sea level is necessary to protect against sea level rise by 2062, using the USACE High Curve as the design benchmark. Because the minimum concrete base on which the power block will be elevated to 11.5 feet above mean sea level, it will be sufficiently elevated to protect against projected sea level rise by 2062.
To further ensure that the design elevation of
11.5 feet above mean sea level is adequate to protect against a realistic, reasonably-projected "worst case" scenario, FPL compared the design elevation of 11.5 feet above mean sea level to the 34-inch sea level rise projected by the NOAA High Curve by 2060. Adding the 34 inches to Broward County's existing flood level requirement of 6.5 feet above mean sea level results in a design elevation of approximately 9.5 feet above mean sea level needed to address the NOAA High Curve projection by 2062. Thus, DBEC's minimum floor elevation of 11.5 feet above mean sea level exceeds the recommended design elevation, even when compared to sea level rise projected by the NOAA High Curve in 2062.
FPL also used the NOAA Sea, Lake, and Overland Surges from Hurricanes ("SLOSH") model to address potential storm surge in determining the design elevation for DBEC's power block. This model projects storm surges for different categories of hurricanes and tidal events. FPL applied the SLOSH model to sea level rise projected by the USACE High Curve to predict storm
surge height at the DBEC site by 2060, and then compared those results to the FEMA Map. The SLOSH model indicated lower elevations than the FEMA Map, which takes storm surge into account in determining the 100-year flood elevation.
Accordingly, the 11.5 foot above mean sea level design elevation on which the DBEC power block will be constructed is more conservative than, and, thus, more protective than, a design based on the SLOSH model.
As discussed above, FPL used the Groundwater Map to establish the bottom elevation of DBEC's stormwater ponds. The Groundwater Map, which relies on the USACE High Curve, projects groundwater levels at the DBEC site will be at approximately 1.5 feet NAVD88 by 2060. Because the bottom elevation of the stormwater ponds will be one to two feet above this projected level, they will adequately account for projected sea level rise by 2060.
As noted above, certain existing infrastructure is not being replaced, so will not be elevated. These structures, which were constructed in compliance with the regulatory requirements in effect at the time they were approved, are constructed at six to seven feet NAVD88 above mean sea level. The highest flood elevation on the FEMA Map is at elevation 5.5 feet NAVD88
in 2060. Thus, it is unlikely that these structures will be subject to flooding by 2060.
In designing DBEC, FPL reasonably relied on the sea level rise projections in the USLRP. That document, which was developed specifically for use in structural design and land use planning to address projected sea level rise, was created by the local governments in south Florida and provides the best scientific consensus view of future sea level rise.37/
FPL's expert, Dr. George Maul,38/ concurred that FPL reasonably relied on the USACE High Curve in designing the floor of DBEC's power block at 11.5 feet above mean sea level. In Maul's opinion, the USACE High Curve's projection for sea level rise is reasonable and appropriate for use in southeast Florida over the next 60 years.39/
Maul questioned the reliability of the NOAA High Curve, which predicts a rate of sea level rise twice as high as that experienced exiting the last Ice Age. He further noted that, in any event, the USACE High Curve and the NOAA High Curve differ by only a few inches in projected sea level rise by 2060.
Dr. Harold Wanless40/ testified on behalf of Sierra regarding the relationship between climate change and sea level rise, hurricanes, and their effects on coastal marine environments.
Specifically, Wanless testified regarding a range of factors that may cause the rate of sea level rise to accelerate. According to Wanless, research shows that sea level rise began to
accelerate in approximately 1993 due to melting of the Greenland and Antarctic ice sheets.41/ Based on this research, Wanless disputes the accuracy of government predictions that do not take this phenomenon into account.
In his testimony regarding the projected rate and extent of sea level rise over time, Wanless presented a graphic adapted from a January 2017 NOAA publication showing three global sea level curves——the "intermediate/high," "high," and "extreme" curves——projecting sea level rise through the year 2100. All of these curves on Wanless' adapted graphic assume Greenland and Antarctic ice sheet loss.
Based on the extreme curve, Wanless projected that global sea level rise "could be" three feet by 2059. Notably, no evidence was presented regarding the probability of this projected sea level rise scenario.
To depict local sea level rise in southeast Florida through 2100, Wanless added "local influences" to the 2017 NOAA curves, which consisted of higher water levels on the western side of the Gulf Stream due to its deceleration, and the gravitational redistribution of water due to decreasing ice sheet mass in Antarctica and Greenland. Specifically, Wanless added to the 2017 NOAA extreme curve sea level rise projection of three feet by 2062, 15 percent additional sea level rise to account for deceleration of the Gulf Stream, and 52 percent additional sea
level rise to account for redistribution of water due to decreased gravitational pull by Greenland and Antarctica. Applying these local influences, Wanless projected that there "could be" an approximate 5.2 feet of local sea level rise
by 2062. Again, no evidence was presented regarding the probability with which this projected local sea level rise scenario may occur.
Upon full consideration of the testimony by Maul and Wanless, the undersigned concludes, based on the competent, substantial, and persuasive evidence, that the USACE High Curve, rather than Wanless's local influence sea level projection curve, is the more reasonable benchmark to apply in determining the appropriate design elevation for the DBEC power block.
Wanless's local sea level rise projection is substantially based on the assumption that redistribution of the Earth's mass will significantly contribute to local sea level rise; however, Wanless himself noted that this phenomenon only recently has become the focus of research, and that "we're still learning."42/
Maul counseled against attempting to project long-term sea level rise using short periods of record data. To that point, he testified that trends derived from short records are less reliable as projections because they are affected by inter-
annual and decadal climate and oceanographic patterns that are superimposed on the long-term rise of global sea level.
Maul's research of historical 19-year periods43/ over which sea level rise rates have been observed by use of tidal gauges shows significant variability between 19-year periods. He testified, credibly, that in his recent review of tidal and sea level records for Key West, "I found we can pick a 19-year period where that particular 19 years is twice the long-term [sea level] range and other times where it's half the long-term range." He also testified that in looking at 19-year records a year at a time, "I find times when that short time scale is much, much higher than a long-term average and other times when it's much less than the long-term average. So you can either overestimate or underestimate what's happening when choosing short records." On that basis, Maul disputes that "since the year 2000, there has been a rapid acceleration in sea level rise." He testified, credibly, that he has not observed any statistically significant increase in sea level at Key West since 2000.
Maul also opined, based on his own research, that there is no statistically significant slowing of the Gulf Stream. Sierra did not present persuasive evidence specifically refuting Maul's conclusion regarding slowing of the Gulf Stream.44/
In any event, the DBEC power block minimum floor elevation has been set at 11.5 feet above minimum sea level——
well above the 34- to 37-inch global sea level rise projected by the 2015 NOAA High Curve and the 2017 NOAA Extreme Curve, and also well above Wanless' projected local 5.2-foot local sea level rise by 2060.
Sierra also contends that the minimum design elevation for the DBEC power block does not adequately consider storm surges associated with hurricanes. In support, Wanless presented graphics generated using LiDar, a light-detection and ranging technology, showing the elevation above mean sea level of Broward County, including the DBEC site. One graphic shows the current elevation of the DBEC site as approximately two feet above mean sea level. Other graphics assume a two-foot global mean sea level rise by 2060; a four-foot rise by 2089; a six-foot rise by 2110; an 8-foot rise by 2127; and a ten-foot rise in 2142. Each of these graphics shows the DBEC site as being inundated by sea level rise by 2060.
Wanless also presented graphics for the period from 2018 to 2060, depicting the effect of adding storm surges of four feet and nine feet to regional sea level influences, king tides, and global mean sea level. According to these graphics, adding a four-foot storm surge may result in water heights of as much as
11 feet above present global mean sea level on the DBEC site by 2060, and adding a storm surge of nine feet may result in water
heights of as much as 15 feet above present global mean sea level on the DBEC site by 2060.
Wanless's storm surge scenarios entail layering contingencies on top of contingencies——each contingency fraught with uncertainty. Stated another way, each assumed condition on which Wanless relies to project storm surge heights of 11 and
15 feet has its own inherent uncertainty. To that point, the evidence showed that while it is well-accepted that climate change is occurring and that, as a result, global sea levels are rising, there is substantial lack of consensus in the scientific community and regulatory agencies regarding the extent and rate of global sea level rise in the future. Further, as discussed above, currently there is not a consensus that the Gulf Stream is slowing or that water mass is being redistributed due to the melting of the Greenland and Antarctic ice sheets——two contingencies that substantially contributed to Wanless' projection of a 5.2-foot local sea level rise by 2060. Additionally, as with Wanless's other projections, no evidence was presented regarding the probability that his projected water height scenarios on the DBEC site, assuming four- and nine-foot storm surges, would occur.
Based on the foregoing, it is determined that the
11.5 foot above mean sea level design elevation for DBEC adequately addresses future storm surges.
As previously discussed, certain existing infrastructure will be used for DBEC. These components were built years ago, complied with code requirements for elevation at the time they were constructed, and currently comply with those code requirements.45/
In sum, the competent substantial evidence establishes that the DBEC site design, as currently proposed, complies with all applicable state and local regulatory requirements. The competent, substantial, and persuasive evidence further establishes that DBEC site design elevation, which exceeds all applicable regulatory requirements, will adequately protect against flooding and inundation due to global and local sea level rise and storm surges.
Other Impacts
Water Resource Impacts
The construction and operation of DBEC will not adversely impact water resources.
The primary water uses for DBEC consist of cooling water, process water, service water, irrigation, and potable water.
The cooling system for DBEC will use cooling water withdrawn from the Dania Cutoff Canal, which currently serves, and since 1927 has served, as the cooling water source for the electrical power generating facilities on the Lauderdale Site.
DBEC will not require an increase in the rate or amount of cooling water withdrawn from the canal. Because the withdrawal rate will not increase, the through-screen velocity through the cooling water intake structure will not increase. This helps ensure that the project will not adversely impact fish or shellfish by impingement or entrainment.
Additionally, no increase in the authorized quantity of industrial wastewater discharge will be required. The cooling system has been designed to ensure that DBEC will meet existing permitted National Pollutant Discharge Elimination System ("NPDES") thermal discharge limits.
The average amount of process water used is anticipated to decrease.
DBEC will continue to receive potable water from the City of Hollywood, and potable water use is not anticipated to increase.
Sanitary Waste Disposal and Solid and Hazardous Waste
The City of Hollywood will provide sanitary waste disposal services to DBEC.
The operation of DBEC will generate small amounts of solid waste, which will be recycled, reused, disposed onsite, disposed in licensed offsite landfills, or otherwise appropriately disposed via approved disposal methods.
The Lauderdale Site is a conditionally-exempt small quantity generator of hazardous waste and is anticipated to remain so during the construction and operation of DBEC.
Hazardous waste generation by DBEC is anticipated to be less
than 100 kilograms per month. FPL will contract with an approved and licensed hazardous waste disposal entity to handle and dispose of any hazardous waste generated by DBEC in a manner that complies with all federal, state, and local environmental regulations.
Terrestrial Impacts
The DBEC project will affect approximately 134 acres of the 392-acre Lauderdale site, which has continuously been used for industrial activities for the past 90 years. As such, the Lauderdale site is disturbed and does not constitute prime wildlife habitat for unique wildlife species. The upland and wetland habitat onsite is low-quality, and consists of a mixture of nuisance exotic and native species.
Due to the disturbed nature of the site and the lack of significant wildlife habitat, no change in floral or faunal populations, including commercially- or recreationally-important species, is anticipated due to DBEC. Additionally, the site does not contain significant areas of preferred habitat for nesting, roosting, or foraging by state and/or federal endangered, threatened, or candidate species.
Approximately 18.67 acres of low-quality wetlands,
0.12 acres of disturbed exotic and native hardwood systems, and a small area of low-quality isolated freshwater marsh will be impacted by dredging and filling. These wetland impacts will be mitigated through purchase of mitigation credits from the Everglades Mitigation Bank.
Impacts on Aquatic Species
DBEC project will continue to withdraw water from the existing Dania Cutoff Canal and to discharge cooling water into ponds and, ultimately, offsite. Proximate aquatic systems are subject to tidal influences and fresh water discharges through SFWMD canals. The waters in the vicinity of the DBEC site are designated Class III marine waters. Existing stresses on aquatic systems in the vicinity of DBEC include altered hydrology, altered salinity, elevated nutrient and organic loads, power plant intake/discharge, physical alterations, and pressures from fishing and boating.
DBEC will address impacts to these aquatic systems, as appropriate, through obtaining an NPDES permit for the cooling water discharge.
Additionally, FPL will use best management practices during construction to control erosion, sedimentation, and runoff to prevent water quality degradation. Significant impacts to aquatic resources and biological communities are not anticipated.
During DBEC construction, FPL will continue to discharge warm water consistent with the Manatee Protection Plan established under the NPDES permit for the existing electrical power plant facility. The Lauderdale Site will continue to provide a warm water refuge for manatees during and after DBEC is constructed.
Transportation Impacts
A traffic analysis for construction and operation of DBEC was performed and provided in the site certification application. During peak construction, approximately
500 vehicles per day are anticipated to enter and exit the DBEC site. A traffic impact analysis showed that additional construction-related traffic will not degrade roadway system operating conditions.
FPL will develop a traffic management plan to minimize level of service deficiencies due to construction traffic. FPL has agreed, pursuant to the Conditions of Certification, to work with the City of Hollywood to improve roadway operations at site access locations.
No adverse impacts to traffic flow are anticipated from DBEC operation.
Archaeological and Historical Site Impacts
A cultural resource assessment of the DBEC site determined that no archaeological or historical structures that
are listed, eligible, or potentially eligible for listing in the National Register of Historic Places, are present.
Noise
A computer program predicted environmental noise impacts from DBEC. Most of the noise sources, which consist of the steam turbine, the gas turbines, the electric generators, and the compressors, are located in enclosed structures, which helps mitigate impacts.
The DBEC sound profile will not be significantly different than that for Units 4 and 5. The Lauderdale Site is in a highly-developed area having other proximate industrial and urban uses, including a waste-to-energy center, a shipping center, a recycling center, the Fort Lauderdale-Hollywood International Airport, and several major highways.
DBEC is projected to comply with the Broward County and City of Hollywood noise ordinances.
DBEC's normal operation is not anticipated to exceed the City of Dania Beach's maximum permissible noise levels. However, as part of the site certification application, FPL has requested a variance from the City of Dania Beach noise ordinance, chapter 17, article IV, sections 17-79 through 17-90, for noise levels that may occur on an infrequent and short-term basis during startup, shutdown, and upset conditions. The City of Dania Beach does not object to FPL's request for the variance.
The undersigned recommends approval of FPL's request for a variance from the City of Dania Beach noise ordinance, chapter 17, article IV, sections 17-79 through 17-90.
Climate Change
"Climate change" is a term used to describe changes in global temperature, global sea level rise, and other conditions associated with those effects, including changes in precipitation, winds, waves, and climates.
Climate change is occurring globally and locally, including in southeast Florida.
Climate change is caused, in substantial part, by the emission of GHGs. Water vapor, carbon dioxide, and methane are the most significant GHG contributors to climate change.
Atmospheric concentrations of gaseous carbon dioxide and methane are increasing. Since the Industrial Revolution, the global atmospheric concentration of carbon dioxide has dramatically increased, from 280 parts per million ("ppm") to
410 ppm at present——almost 100 times faster than historical increases in atmospheric carbon dioxide concentration during previous interglacial periods.
Most of the increase in atmospheric carbon dioxide concentration has occurred since World War II and is primarily due to human population increase, global industrialization, and increased burning of fossil fuels on a global basis.
GHGs cause climate change by trapping solar radiation in the Earth's atmosphere, thereby warming the atmosphere. Once carbon dioxide is emitted, it persists in the atmosphere for approximately 4,000 years.
Climate change is responsible for causing sea level to rise on a global and local basis.
The main drivers of sea level rise are atmospheric and ocean warming, which increase the ocean's mass through melting land and sea ice and increase the ocean's volume through thermal expansion.
Increasing the concentration of carbon dioxide in the atmosphere increases the rate of climate change, which, in turn, accelerates sea level rise.
The last time atmospheric concentrations of carbon dioxide were at or above 400 ppm, sea level was approximately
20 meters, or 70 feet, higher than current level. At that level, a substantial portion of the land mass that constitutes the state of Florida was inundated.
The evidence shows that global sea level does not rise in a gradual linear manner, but instead rises in rapid pulses followed by pauses.
Although it is well-established that sea level is rising on a global and local basis, there currently is little consensus regarding the rate of sea level rise.
Due to its low elevation, southeast Florida is particularly vulnerable to sea level rise.
Many urban areas in southeast Florida experience substantial flooding during rainfall events. The evidence shows that sea level rise is likely a contributing cause.
Sea level rise causes substantial coastal hazards, including inundation of land, higher storm surges, higher king tides, increased flood height and frequency, coastal erosion and destruction of coastal mangroves and other ecosystems, erosion and destruction of coastal barrier islands, and saltwater intrusion into freshwater aquifers and ecosystems. These impacts will worsen or accelerate with sea level rise.
The cumulative addition of carbon dioxide to the atmosphere is warming the atmosphere, which, in turn, is causing ocean temperatures to rise on a global basis. In particular, the upper ocean has warmed substantially on a global basis since 1997, due to increasing human population and the corresponding increased burning of fossil fuels.
Increased carbon dioxide in the atmosphere is being transferred to the oceans, causing them to acidify.
Some scientific studies indicate that climate change will cause more severe storm and weather events.
Some scientific studies indicate that climate change will result in threats to human health, native wildlife and ecosystems, agriculture, and the tourism industry.
In sum, the competent, persuasive evidence establishes that climate change is occurring, that it is primarily caused by GHGs emissions, and that every ton of GHGs emitted into the atmosphere contributes to climate change.
The competent, persuasive evidence also establishes that as a result of climate change, sea level is rising globally, and, to a certain extent, locally,46/ and that sea level rise already is causing environmental adverse impacts.47/
SCO and Affected Agencies' Review of Application
The PPSA establishes a centralized, coordinated process for licensing electrical power plants that generate 75 MW or more of electrical power. §§ 403.502, 403.503(14), Fla. Stat. Site certification for an electrical power plant constitutes a license that addresses and encompasses the regulatory requirements of the agencies that are involved in the site certification application review process.
The SCO is an office within DEP's Division of Air Resource Management. It is responsible for coordinating and overseeing the electrical power plant site certification application review process. The SCO also serves as administrative staff for the Siting Board.
The SCO's responsibilities include receiving site certification applications, preparing a schedule of deadlines and milestones applicable to the site certification application review process, determining completeness48/ of the application based on the recommendations of affected agencies,49/ receiving each affected agency's preliminary statement of issues, receiving each affected agency's report, and preparing the PAR.50/
§§ 403.5064, 403.5066, and 403.507, Fla. Stat.
The PAR addresses the proposed electrical power plant's compliance with all applicable non-procedural requirements of the affected agencies51/ and contains copies of the affected agencies' reports; comments from other agencies or persons; any variances and waivers from applicable regulatory requirements that have been requested and the SCO's recommendation regarding the request; the SCO's recommendation regarding whether site certification should be approved, denied, or approved with conditions; and proposed conditions of certification. § 403.507(5)(a), Fla. Stat.
The affected agencies' reports provide the agencies' specialized knowledge on matters within their jurisdiction and expertise, so are a crucial component of the PAR. Each affected agency conducts a substantive review of the site certification application to determine whether the electrical power plant complies with that particular agency's applicable substantive
rules, regulations, ordinances, standards, and criteria. The affected agency's report must specifically address these topics and must state whether, based on its substantive review, the agency recommends that the electrical power plant be approved, denied, or approved with conditions. The report also must include any conditions of certification that the agency recommends be imposed regarding matters within that agency's jurisdiction. § 403.507(3), Fla. Stat.
Conditions of certification are regulatory requirements imposed to minimize and mitigate the potential adverse effects of the construction and operation of the electrical power plant with respect to the environment and public health. Because the conditions of certification are regulatory requirements, each affected agency that recommends a specific condition of certification must possess the legal authority to impose that condition. § 403.507(3)(c), Fla. Stat. To that end, the affected agency is required to cite the specific statute, rule, or ordinance that authorizes the imposition of that specific condition.
Because each affected agency possesses legislatively or constitutionally delegated regulatory authority over specific matters, the SCO does not conduct an independent review as to whether the proposed electrical power plant meets those affected agencies' nonprocedural requirements, and instead relies on each
affected agency's specific regulatory knowledge and expertise regarding matters that are within its substantive regulatory jurisdiction.
FPL submitted the Application for DBEC to the SCO on July 27, 2017. The Application was referred to DOAH and was distributed to the affected agencies for review and comment regarding completeness of the Application. The affected agencies needed additional information, so the Application was determined incomplete. After FPL provided the requested information, the Application was deemed complete on October 27, 2017.
Pursuant to section 403.507(3), the SFWMD; Florida Fish and Wildlife Conservation Commission ("FFWC"); Florida Department of Transportation ("DOT"); Florida Department of Economic Opportunity ("DEO"); Florida Department of State, Division of Historical Resources ("DHR"); DEP; Broward County; the City of Dania Beach; and the City of Hollywood reviewed the Application and submitted agency reports to the SCO.
Each of these affected agencies submitted recommended conditions of certification to be included in the site certification as conditions specifically designed to address matters within that particular agency's regulatory jurisdiction.
Each agency concluded that if DBEC complies with the conditions of certification recommended by that agency, it will meet all applicable non-procedural requirements, rules, and
ordinances within that agency's jurisdiction. Each affected agency recommended that DBEC be approved, subject to the conditions of certification recommended by that agency. Each agency report is briefly discussed below.
PSC Need Determination
As previously noted, the PSC issued the Need Determination for DBEC on March 19, 2018. Pursuant to section 403.507(4)(a), the Need Determination constitutes the PSC's agency report for DBEC.
In determining the need for DBEC, the PSC considered critical components of need, including forecasted load, necessary reserve margin, projected load generation and imbalance, and area reliability margin.
The PSC determined that FPL demonstrated the need for DBEC Unit 7 in the 2024-to-2026 timeframe, in order to maintain its electrical system reliability and integrity. The PSC found that:
No cost-effective [Demand Side Management] or renewable resources have been identified that could mitigate the need for DBEC Unit 7.
DBEC Unit 7 is expected to provide adequate electricity at a reasonable cost to FPL's customers. DBEC Unit 7 is projected to reduce overall natural gas consumption and reduce emissions compared to maintaining the existing Lauderdale units. DBEC Unit 7 is the most cost-effective alternative that maintains FPL's system and Southeastern Florida area reliability compared to other alternatives.
South Florida Water Management District
SFWMD determined that there will be no increase in water use for DBEC, and that the cooling water, potable water, and process water sources will remain the same as for the units currently existing at the Lauderdale Site.
SFWMD determined that if DBEC complies with SFWMD's recommended conditions of certification, it can be constructed and operated in compliance with the applicable statutes and rules within SFWMD's jurisdiction.
Florida Fish and Wildlife Conservation Commission
FFWCC's report noted that several listed wildlife species were observed onsite or have a moderate to high likelihood of occurrence onsite. Additionally, the West Indian Manatee will be affected by ceasing operation of Units 4 and 5 before the construction of DBEC.
FFWCC recommended conditions of certification requiring biological surveys, monitoring for impacts to listed species, and also recommended a condition of certification to require temporary heaters to be used during DBEC construction to maintain a warm water refuge for manatees.
Department of Transportation
DOT determined that, with the exception of construction-related traffic, DBEC is not anticipated to
adversely affect the State Highway System in the vicinity of the plant.
DOT recommended certification of DBEC, contingent on DBEC's compliance with its recommended conditions of certification.
Department of Economic Opportunity
DEO anticipates that DBEC will provide economic and fiscal benefits to the City of Dania Beach, Broward County, and the surrounding area. DEO recommended approval without any recommended conditions of certification.
Division of Historical Resources
DHR did not object to DBEC, noting that all current matters pertaining to historical resources were addressed. Department of Environmental Protection
DEP reviewed solid waste and hazardous waste, environmental resource permitting, industrial wastewater, and stormwater management issues within its jurisdiction and determined that DBEC will meet all applicable regulatory requirements, provided it complies with the proposed conditions of certification.
DEP recommended conditions of certification to address solid waste and hazardous waste, environmental resource permitting, industrial wastewater, and stormwater management issues within its jurisdiction.
Local Governments
Broward County, the City of Dania Beach, and the City of Hollywood each recommended approval of DBEC, subject to recommended conditions of certification regarding matters within its regulatory jurisdiction.
The City of Dania Beach did not object to the variance sought by FPL related to noise limits in the City of Dania Beach's Code of Ordinances for transient and infrequent noises associated with unit startup, shutdown, and upset conditions.
Preliminary Analysis Report and Recommended Approval with Conditions of Certification
On April 2, 2018, the SCO issued the PAR for DBEC. The PAR describes the project and summarizes the affected agencies' substantive review of DBEC. Based on the agencies' reports, recommended conditions of certification, and unanimous
approval recommendation, the SCO determined that FPL has provided reasonable assurance that, considering and balancing the factors in section 403.509(3)(a) through (g), DBEC can be certified.
The PAR recommends approval of the site certification for DBEC, subject to the proposed Conditions of Certification ("COC") attached thereto, which were compiled from the affected agencies' recommended conditions of certification submitted as part of their agency reports.
Sierra contends that because the SCO did not conduct an independent review of whether DBEC meets the nonprocedural requirements of the affected agencies, it was not able to determine whether FPL provided reasonable assurance that the site certification complies with the agencies' applicable statutes, rules, regulations, and other requirements.
This contention is rejected. The purpose of the affected agency's review and report submittal requirement in section 403.507 is to ensure that the agency legally and factually vested with the substantive jurisdiction and expertise
over a specific regulated area is an integral part of the site application review process. To that end, each agency is charged with submitting recommended conditions of certification that are specifically keyed to addressing issues within that agency's substantive jurisdiction and expertise. The purpose of affected agency involvement in the site certification process would be defeated if the SCO——which is not an expert over the matters within the various affected agencies' substantive jurisdiction—— was authorized to second-guess these agencies' determinations and to modify or reject their recommended conditions of certification.
Further, and fundamentally, the SCO is not statutorily authorized to conduct such an independent review. Notably,
Sierra has not cited any statutory, rule, or case law authority to support its position.52/
Notice, Public Outreach, and Public Hearing
All public notices required by the PPSA were provided.
FPL timely published the notice of filing of the Application, as required by section 430.5115(1)(a), and notice of the certification hearing, as required by section 403.5115(1)(e).
DEP published notice of the filing of the Application and the certification hearing in the Florida Administrative Register, as required by section 403.5115(4).
Additionally, FPL provided direct written notice that the Application had been filed to property owners and residents within three miles of the project area, as required by
section 403.5115(6)(a).
FPL also engaged in public outreach for the project, including providing a toll-free phone number at which information regarding the project could be obtained, a website containing information about the project, and electronic mail contact information. Additionally, FPL sent 310 letters to residents of the neighborhood closest to the project and sent 1,600 mailers to residents and property owners in the vicinity of the site, inviting them to an open house that was held on May 24, 2017. FPL hosted another open house in June 2017 for residents of the neighborhood immediately south of the project site.
A public hearing was held on May 15, 2018, from 6:00 p.m. until 8:03 p.m. Many members of the public provided
comments on the DBEC project,53/ and were able to ask questions of representatives from FPL and DEP. The public hearing comments were recorded and transcribed as part of the Transcript of the certification hearing.54/
Federal Permits
As discussed above, an air construction/PSD permit has been issued for DBEC.
FPL has applied for an NPDES permit and a permit from the United States Army Corps of Engineers under section 404 of the Clean Water Act.
These permits and approvals are not part of, or subject to revision, modification, or revocation in, this proceeding.
Variance
As discussed above, FPL has requested a variance from the City of Dania Beach noise ordinance in Chapter 17-86 of the City's Code of Ordinances, which establishes the permissible sound levels for receiving land use categories. Specifically, FPL requested a variance from the City's maximum permissible sound levels for:
Noise due to emergency or upset conditions for all time periods and all receiving land use categories;
Noise due to transient conditions associated with unit startup and shutdown shall be limited to 70 dB(A) for all time periods and all receiving land use categories, except for Industrial land use which shall retain a limit of 75 dB(A).
Currently, the area in which the Lauderdale Site is located experiences significant noise from the combined effect of a range of industrial and urban activities, including the operation of Units 4 and 5 at the Lauderdale Site.
DBEC's projected noise profile is not materially different than that of the existing power plant operation at the Lauderdale Site.
Transient and infrequent conditions at the Lauderdale Site, including unit startup, shutdown, and upset conditions occasionally occur for short periods of time. These conditions also are expected to occasionally occur at DBEC.
The variance is limited in nature, and the noise levels necessitating a variance are expected to be infrequent and short-lived during unit startup, shutdown, or upset conditions.
The City of Dania Beach does not oppose the variance.
Given the limited nature of the variance, lack of opposition, and that similar noise levels currently occur at the Lauderdale Site, it is determined that the requested variance is reasonable, and, therefore, should be granted.
The Siting Board's Role and Authority
Section 403.509(3) sets forth the Siting Board's authority and duty under the PPSA.
In considering whether to approve, approve with conditions, or deny a power plant site certification license, the Siting Board must consider all factors in section 403.509(3)(a) through (g).
The Siting Board possesses broad authority under the PPSA in considering whether to certify an electrical power plant. With the exception of the need determination and federal permits, the Siting Board is not bound by the conditions of certification proposed by the SCO or the affected agencies, and may modify, remove, or add conditions of certification, as authorized, to protect the broad interests of the public and minimize adverse impacts of the electrical power plant on the environment and human health. See § 403.502(2), Fla. Stat.
Comparative Impacts and Benefits of DBEC
As discussed above, DBEC will emit GHGs into the atmosphere. Therefore, DBEC's emissions will increase the amount of carbon dioxide in the atmosphere when compared to a zero emissions scenario——i.e., no GHG emissions at all. However, the
alternatives in this proceeding do not entail a zero GHG emissions alternative to DBEC.
As discussed above, the PSC found and concluded, in the Need Determination, that with the retirement of Units 4
and 5, DBEC is needed to meet a projected future electrical power demand. As part of the Need Determination, the PSC concluded that no additional cost-effective renewal resource——such as solar or wind generation technology——could mitigate the need for DBEC. The PSC also concluded that no new demand side management——i.e., conservation——could mitigate the need for DBEC. In so determining, the PSC established, as a baseline condition to this proceeding, that DBEC, a natural gas-fueled facility, is the most
cost-effective means of meeting projected future electrical power demands if Units 4 and 5 are retired.
Thus, given the Need Determination, the only alternative available to constructing DBEC is to continue operating Units 4 and 5 indefinitely.55/
As previously discussed, Units 4 and 5 are less efficient units that burn substantially more natural gas than will Unit 7. Therefore, if Units 4 and 5 continue to operate indefinitely——as will be the case if DBEC is not certified——they will burn more natural gas, resulting in the emission of greater amounts of GHGs over their operation life than would the construction and operation of Unit 7, combined with FPL's reduction of the use of less-efficient units in its system.
The competent, substantial, and persuasive evidence establishes that the retirement of Units 4 and 5 in 2018, along with the construction and operation of DBEC in 2022 and FPL's concomitant reduction in the use of other less-efficient, more- polluting units in its system, will result in the emission of approximately 8.1 million tons less GHGs into the atmosphere over a 30-year period than if DBEC is not approved and Units 4 and 5 continue to operate indefinitely.
Because DBEC will, through system-wide reduced GHG emissions, result in a net environmental benefit as compared to
the alternative of continuing to operate Units 4 and 5 indefinitely into the future, DBEC should be weighed as a net
positive in considering and balancing the site certification criteria in section 403.509(3).
Other measures, discussed above, that DBEC will include and implement to minimize offsite impacts include using the existing transmission line system, existing natural gas pipeline, existing site access, and using a previously-developed power generation site. DBEC will not require new water sources, will not result in a new or expanded surface water discharge, and will reduce the use of processed water by approximately 22 percent. Additionally, upon its operation, DBEC will provide a warm water refuge for manatees.56/
In sum, the undersigned finds that DBEC's benefits, discussed at length above, outweigh its adverse impacts. This determination is more fully addressed in the Conclusions of Law, below.
Sierra's Standing
Sierra has intervened in this proceeding pursuant to section 403.508(3)(e), which confers party status on persons or entities who demonstrate that their substantial interests will be affected by this proceeding.
Sierra is a national non-profit organization. Sierra and its members are committed to protecting the environment. Sierra focuses extensive effort and resources toward combating climate change through advocating the displacement of fossil-fuel energy sources, which emit GHGs, in favor of renewable energy sources and energy sources, such as solar power, wind power, and energy storage and batteries.
Consistent with that mission, Sierra's members are concerned about climate change resulting from GHG emissions and the adverse impacts of climate change on human health, property, wildlife, and sensitive ecological systems, and many are actively involved in efforts aimed at reducing GHG emissions on a global and local basis.
Several Sierra members testified at the certification hearing regarding the environmental and personal harms they
allege they will suffer due to climate change——to which, Sierra alleges, DBEC will contribute. These alleged harms include rising sea level, saltwater intrusion, contamination of drinking water aquifers, property damage due to flooding and increased storm intensity, adverse impacts on recreational activities due to degradation of coral reef and mangrove ecosystems, algal blooms, and human health impacts.
Sierra has nearly 38,000 members who live in Florida.
Approximately 18,000 Sierra members live in FPL's service territory.57/
The relief Sierra requests in this proceeding is set forth below. Generally, Sierra requests either that the site certification for DBEC be approved, subject to additional conditions that Sierra proposes, or be denied.
Relief Requested by Sierra
On May 2, 2018, Sierra filed Sierra's Statement on Relief ("Statement on Relief"), identifying the relief it seeks in this proceeding. That relief was set forth in nine sequentially-numbered paragraphs. On May 8, 2018, FPL filed Florida Power & Light Company's Motion to Strike paragraphs 1 through 7 of the Statement on Relief. On May 11, 2018, Sierra filed Sierra Club's Opposition to Florida Power & Light Company's Motion to Strike.
At the commencement of the certification hearing, the undersigned struck paragraphs 6 and 7 of the Statement on Relief and reserved ruling on the other forms of relief requested in paragraphs 1 through 5, 8 and 9, pending development of the evidentiary record in this proceeding. The undersigned has ruled on these paragraphs in the Conclusions of Law, below.
Sierra requests the following relief in paragraphs 1 through 5, 8, and 9 of its Statement on Relief, which remain at issue in this proceeding:
Paragraph 1 of Sierra's Statement of Relief requests the Siting Board to require FPL to limit the annual emission of GHGs from DBEC to the existing annual GHG emission levels from Units 4 and 5, and require FPL to terminate GHG emissions from DBEC at the same date that FPL planned to retire Units 4 and 5, in 2033, subject to any required operation to meet electric reliability needs.
Paragraph 2 of Sierra's Statement of Relief requests the Siting Board to require FPL to comply with FPL's stated system- wide GHG commitment to DEP and the PSC, and upon which FPL relies in seeking approval for DBEC——specifically, that DBEC's operation reduces FPL's system-wide annual emissions of GHGs from its current baseline by at least the amount committed to by FPL. As part of this requirement, approval of DBEC should be conditioned on FPL's system-wide annual emissions of GHGs being lower than
its current baseline by at least the amount committed to by FPL, and never exceeding that reduced level of GHGs during each year of the lifespan of DBEC.
Paragraph 3 of Sierra's Statement of Relief requests the Siting Board to require FPL to develop a locally-sited public stakeholder process that provides municipalities and other governmental entities that have adopted, or that in the future adopt, carbon reduction or clean energy commitments, a means to work with FPL to develop a binding plan to meet the commitments of the municipalities and other governmental entities, subject to any governmental approvals required by law, and that such processes allow interested persons, including non-governmental organizations, a meaningful opportunity to participate.
Paragraph 4 of Sierra's Statement of Relief requests the Siting Board to require FPL to evaluate, every five years, in a detailed, transparent process with opportunity for meaningful public participation, the Climate Change Damages resulting from
40 years of GHG pollution from building and operating DBEC as proposed, and approve DBEC subject to the opportunity for the Siting Board to reevaluate the approval of DBEC, including whether there are additional reasonable and available methods that should be adopted to minimize the Climate Change Damages caused by DBEC, and to impose further conditions, including future emissions reductions of DBEC. The impacts of DBEC must be
evaluated individually, as well as in the context of cumulative impacts from other GHG emissions. In this evaluation, FPL must examine reasonable and alternative methods to minimize the adverse effects of DBEC's emissions, including sequestration of GHGs and the ability to avoid the emissions.
Paragraph 5 of Sierra's Statement of Relief requests the Siting Board to require FPL and DEP to reevaluate, on a five-year basis, and in a detailed, transparent process with opportunity for meaningful public participation, the Climate Change Damages which pose a risk to the DBEC facility specifically, and approve DBEC subject to the opportunity for the Siting Board to reevaluate the approval of DBEC, including whether there are additional reasonable and available methods that should be adopted to minimize the Climate Change Damages to the DBEC facility, and to impose further conditions, including future emissions reductions of DBEC.
Paragraph 8 of Sierra's Statement of Relief requests the Siting Board to deny DBEC's site certification.
Paragraph 9 of Sierra's Statement of Relief requests that the ALJ and the Siting Board provide such relief as is just and reasonable.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties to and subject matter of this proceeding, pursuant to sections 403.501 through
403.518 and sections 120.569 and 120.57(1), Florida Statutes.
Sierra's Standing
As an entity seeking to intervene and participate as a party to this proceeding, Sierra has the burden to demonstrate, by a preponderance of the evidence, that it has standing to initiate and maintain this proceeding challenging the proposed agency action to approve DBEC subject to conditions. Palm Beach
Cnty. Envtl. Coal. v. Dep't of Envtl. Prot., 14 So. 3d 1076, 1078 (Fla. 4th DCA 2009); Agrico Chem. Co. v. Dep't of Envtl. Reg.,
406 So. 2d 478, 482 (Fla. 1st DCA 1981).
Sierra asserts associational standing to represent the substantial interests of its members in this proceeding. Therefore, it must meet the "three-prong" associational standing test established in Florida Home Builders Association v.
Department of Labor and Employment Security, 412 So. 2d 351 (Fla. 1982).58/ That is, Sierra must establish that a substantial number of its members' substantial interests are affected in this proceeding; that the interests Sierra seeks to protect in this proceeding are within the general scope of its organizational interest and activity; and that the relief Sierra requests is
appropriate for it to receive in this proceeding on behalf of its members.
To satisfy the first prong of the associational standing test, Sierra must show that its members' substantial interests will be affected. In Agrico, the court established a
two-prong test for establishing "substantial interests" in administrative proceedings. The court stated:
We believe that before one can be considered to have a substantial interest in the outcome of the proceeding he must show 1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect. The first aspect of the test deals with the degree of injury. The second deals with the nature of the injury.
Id. at 482.
Agrico was not intended as a barrier to participation in proceedings under chapter 120 by persons who are affected by the potential and foreseeable results of agency action. Rather, "[t]he intent of Agrico was to preclude parties from intervening in a proceeding where those parties' substantial interests are totally unrelated to the issues that are to be resolved in the administrative proceeding." Mid-Chattahoochee River Users v.
Dep't of Envtl. Prot., 948 So. 2d 794, 797 (Fla. 1st DCA 2006), (citing Gregory v. Indian River Cnty., 610 So. 2d 547, 554 (Fla.
1st DCA 1992)).
Recently, courts have refined the standard established in Agrico to clarify that standing to initiate an administrative proceeding is not dependent on proving that the proposed agency action would violate the law applicable to the proceeding. In other words, it is not necessary that the person prevail on the merits in an administrative proceeding under section 120.57(1) to have standing as a party to initiate and maintain that proceeding. As one court explained:
Standing is a "forward-looking concept" and "cannot disappear" based on the ultimate outcome of the proceeding When
standing is challenged during an administrative hearing, the petitioner must offer proof of the elements of standing, and it is sufficient that the petitioner demonstrate by such proof that his substantial interests "could reasonably be affected by . . . [the] proposed activities."
Palm Beach Cnty. Envtl. Coal., 14 So. 3d at 1078 (citing Peace River/Manasota Reg'l Water Supply Auth. v. IMC Phosphates Co.,
18 So. 3d 1079, 1084 (Fla. 2d DCA 2009)). See St. Johns
Riverkeeper, Inc. v. St. Johns River Water Mmgt. Dist., 54 So. 3d
1051 (Fla. 5th DCA 2011); see also Reily Enters., LLC v. Dep't of Envtl. Prot., 990 So. 2d 1248 (Fla. 4th DCA 2008). Thus, it is
sufficient for a party challenging proposed agency action to present evidence to show that, if its allegations were correct, that it reasonably could be injured by the proposed activity.
Peace River/Manasota Reg'l Water Supply Auth., 18 So. 3d at 1084;
see Angelo's Aggregate Materials, Ltd. v. Dep't of Envtl. Prot.,
Case Nos. 09-1543, 09-1544, 09-1545, 09-1546 (Fla. DOAH June 28,
2013; Fla. DEP Sept. 16, 2013).
Here, Sierra has presented evidence sufficient to establish that, if it were correct in its allegations regarding the effects of DBEC on climate change, its members reasonably could be injured.
Sierra also alleges injuries that fall within the zone of interest of this proceeding, which is designed to balance the need for the electric power plant, as determined by the PSC, with a range of considerations concerning the effect of the power plant on impacts to air and water quality, fish and wildlife, water resources, human health, the ecology of the land and its wildlife, and the ecology of state waters and their aquatic life. Some of the interests Sierra asserts on behalf of its members regarding the alleged impacts of DBEC fall squarely within the factors the Siting Board considers and balances in determining whether to certify a power plant and the conditions to be imposed on that certification.
Pursuant to the foregoing case law authority, it is concluded that Sierra presented evidence sufficient to meet the "substantial interests affected" requirement for standing.
Sierra also has demonstrated that a substantial number of its members' substantial interests could reasonably be
affected by this proceeding. "Substantial number" does not necessarily mean a majority. Fla. Home Builders, 412 So. 2d
at 353. Rather, it has been described as "a relatively sizeable percentage of the membership[,]. . . . enough injured members to have a good reason to prosecute their collective claim properly and fully." Fla. Ass'n of Med. Equip. Servs. v. Ag. for Health Care Admin., Case No. 02-1400 (Fla. DOAH Oct. 18, 2002), at ¶¶
44, 46, Case No. AHCA-02 (Fla. AHCA Dec. 30, 2002)(rejected in
part on other grounds). Here, Sierra presented evidence that approximately 38,000 of its members reside in Florida, and approximately 18,000 of its members reside in FPL's service territory. Given that the evidence shows that climate change is occurring both globally and locally, it is reasonable to infer that to the extent the DBEC operation could result in injury, it presumably could affect the Sierra members who reside in Florida, including those who live in FPL's service territory. This constitutes enough members who allegedly may be injured for Sierra to "have good reason to prosecute their collective claim properly and fully," and, thus, constitutes a "substantial number" for associational standing purposes.59/ See id.
This proceeding also is within Sierra's general scope of interest and activity. As found above, Sierra is an environmental protection organization that is actively engaged in efforts directed at combating climate change through advocating
the displacement of fossil-fuel energy sources. That purpose is directly implicated in this proceeding, which addresses whether a fossil-fuel burning electrical power plant should be certified, and the conditions to be imposed on certification. Thus, this proceeding is within Sierra's scope of interest and activity.
The relief Sierra seeks in this proceeding is of the nature or type appropriate for it to receive on behalf of its members. Here, Sierra seeks either for the site certification for DBEC to be denied, or to be granted with additional proposed conditions. This relief is appropriate for Sierra to request and receive on behalf of its members in this proceeding.
Therefore, it is concluded that Sierra has established its associational standing to represent the interests of its members in this proceeding.
Burden and Standard of Proof and Reasonable Assurance Burden and Standard of Proof
Section 120.569(2)(p) states, in pertinent part:
For any proceeding arising under chapter 373, chapter 378, or chapter 403, if a nonapplicant petitions as a third party to challenge an agency's issuance of a license, permit, or conceptual approval, the order of presentation in the proceeding is for the permit applicant to present a prima facie case demonstrating entitlement to the license, permit, or conceptual approval, followed by the agency. This demonstration may be made by entering into evidence the application and relevant material submitted to the agency in support of the application,
and the agency's staff report or notice of intent to approve the permit, license, or conceptual approval. Subsequent to the presentation of the applicant's prima facie case and any direct evidence submitted by the agency, the petitioner initiating the action challenging the issuance of the license, permit, or conceptual approval has the burden of ultimate persuasion and has the burden of going forward to prove the case in opposition to the license, permit, or conceptual approval through the presentation of competent and substantial evidence. The permit applicant and agency may on rebuttal present any evidence relevant to demonstrating that the application meets the conditions for issuance.
This site certification proceeding arises under chapter 403. The site certification at issue constitutes a "license," as defined in section 403.503(17).
Therefore, pursuant to section 120.569(2)(p), Sierra bears the ultimate burden of persuasion in this proceeding to prove its case in opposition to the proposed issuance of the site certification, with proposed conditions of certification. See In
re: Florida Power & Light Co. Turkey Point Power Plant Units 3
through 5 Modification to Conditions of Certification, Case No. 15-1559 (Fla. DOAH Jan. 25, 2016), modified in part, Case
No. 14-0510 (Fla. Siting Bd. Apr. 1, 2016), at ¶ 65.
The preponderance of the evidence is the applicable standard of proof. § 120.57(1)(j), Fla. Stat.
The SCO determined that the Application and supporting materials established reasonable assurance that DBEC can be
certified, subject to the proposed Conditions of Certification, considering the factors set forth in section 403.509(3).
FPL established its prima facie case of entitlement to the site certification for DBEC in this proceeding by entering into evidence the Application, the PAR, and supporting information. Additionally, FPL presented testimony and other evidence at the certification hearing that exceeded the prima facie standard in section 120.569(2)(p).
Once FPL established prima facie entitlement to site certification with the proposed Conditions of Certification, the burden shifted to Sierra to present competent substantial evidence to prove its case in opposition to the site certification for DBEC, as proposed. Pursuant to 120.569(2)(p), the ultimate burden of persuasion rests with Sierra to prove its case in opposition by a preponderance of the competent substantial evidence. Speculation by Sierra about what "might" occur is not sufficient to carry its burden to show that FPL has not provided reasonable assurance that the site certification for DBEC should be approved. See Jacobs v. Far Niete II, LLC, Case
No. 12-1056 (Fla. DOAH Apr. 26, 2013; SFWMD May 22, 2013);
FINR II, Inc. v. CF Indus.,Inc., Case No. 11-6495 (Fla. DOAH Apr.
30, 2012; DEP June 8, 2012); see also Menorah Manor, Inc. v. Ag. for Health Care Admin., 908 So. 2d 1100, 1104 (Fla. 1st DCA
2005). If Sierra fails to meet this burden, FPL prevails by
virtue of having established its prima facie case. See Last
Stand, Inc. v. Fury Mgmt., Case No. 12-2574 (Fla. DOAH Dec. 21, 2012; Fla. DEP Feb. 7, 2013); Washington Cnty. v. Bay Cnty., Case
Nos. 10-2983, 10-1984, 10-10100 (Fla. DOAH July 26, 2012; NWFWMD
Sept. 27, 2012).
Reasonable Assurance
The "reasonable assurance" standard means that the applicant has demonstrated a substantial likelihood that the project, as proposed, will be successfully implemented. Metropolitan Dade Cnty. v. Coscan Fla., Inc., 609 So. 2d 644, 648
(Fla. 3d DCA 1992); In re: Gainesville Renewable Energy Ctr., LLC, Case No. 09-6641 (Fla. DOAH Nov. 1, 2010; Fla. Siting Bd.
Dec. 15, 2010).
An applicant's burden is one of reasonable assurance, not absolute guarantees, that the applicable requirements for issuance of the permit have been satisfied. Coscan Fla., 609 So.
2d at 648; Hamilton Cnty. Bd. of Cty. Comm'r v. State Dep't of
Envtl. Reg., 587 So. 2d 1378, 1388 (Fla. 1st DCA 1991); Save Anna Maria, Inc. v. Dep't of Transp., 700 So. 2d 113, 117 (Fla. 2d DCA
1997); McCormick v. City of Jacksonville, Case No. 88-2283 (Fla. DOAH Oct. 16, 1989; Fla. DER Jan. 22, 1990).
An applicant is not required to eliminate all contrary possibilities, however remote, or to address impacts that are theoretical, negligible, imperceptible, or cannot be measured in
real life. See Crystal Springs Recreational Pres., Inc. v.
Southwest Fla. Water Mgmt. Dist., Case No. 99-1415 (Fla. DOAH Jan. 27, 2000; SWFWMD Feb. 29, 2000); Alafia River Basins
Stewardship Council, Inc. v. Southwest Fla. Water Mgmt. Dist., Case Nos. 98-4925, 98-4926, 98-4930, 98-4931 (Fla. DOAH July 2,
1999; SWFWMD Aug. 2, 1999); Caloosa Prop. Owners' Assoc., Inc. v. Dep't of Envtl. Reg., 462 So. 2d 523, 526 (Fla. 1st DCA 1985);
Putnam Cnty Envtl. Council, Inc. v. Dep't of Envtl. Prot., Case
No. 01-2442 (Fla. DOAH July 3, 2002; Fla. DEP. Aug. 6, 2002). An
applicant also is not required to "disprove all 'worst case scenarios' . . . raised by objectors." Ginnie Springs, Inc. v. Craig Watson, Case Nos. 98-0945, 98-1070, 98-1071 (Fla DOAH
Feb. 23, 1999), Case Nos. 98-0258, 98-0265, 98-0266 (Fla. DEP
April 8, 1999)(modified on other grounds).
Reasonable assurance can be demonstrated by presenting competent substantial evidence consisting of detailed site plans and engineering studies, coupled with credible expert engineering testimony. In re: Gainesville Renewable Energy Ctr., LLC, Case No. 09-6641 (Fla. DOAH Nov. 1, 2010), modified in part, Case No.
09-4002 (Fla. Siting Bd. Dec. 15, 2010) at 15 (citing Hamilton Cnty. Bd. of Cnty. Comm'r., 587 So. 2d at 1388-89 (Fla. 1st DCA
1991)).
Pursuant to section 120.569(2)(p), the Application and supporting materials for DBEC retained their status as sufficient
to show reasonable assurance when they were admitted into evidence at the final hearing, and do not lose that status absent Sierra proving, by a preponderance of the competent substantial evidence presented at the final hearing, that specific aspects of DBEC, as specifically challenged by Sierra in this proceeding, do not provide reasonable assurance that DBEC should be certified subject to the proposed Conditions of Certification. See Last
Stand, Inc. v. Fury Mgmt., Case No. 12-2574 (Fla. DOAH Dec. 21,
2012; Fla. DEP Feb. 7, 2013).
Intent and Effect of Site Certification
Recognizing that the location, construction, and operation of an electrical power plant "will have a signification impact upon the welfare of the population, the location and growth of industry, and the use of natural resources of the state," the Florida Legislature enacted the PPSA, which establishes a process through which a permit application for an electrical power plant is centrally coordinated and all permit decisions can be reviewed on the basis of standards and recommendations of the deciding agencies. In establishing this process, the Legislature articulated the policy that
while recognizing the need for increased power generation facilities, the state shall ensure[,] through available and reasonable methods[,] that the location and operation of electrical power plants will produce minimal adverse effects of human health, the environment, the ecology of the land and its
wildlife, and the ecology of state waters and their aquatic life and will not unduly conflict with the goals established by the applicable local comprehensive plans.
§ 403.502, Fla. Stat.
Pursuant to section 403.511(1), PPSA certification constitutes the sole license of the state and any agency regarding the approval of the location of the site and associated facilities, the construction, and the operation of the electrical power plant,60/ other than licenses required under any federally delegated or approved permit program, such as air construction and operation permits, and NPDES permits. Therefore, the PPSA preempts the regulation and certification of electrical power plant sites and electrical power plants in Florida, and supersedes other laws, rules, regulations, and ordinances of other governing bodies in the state so as "to give effect to the legislative intent that this act is to provide an efficient, simplified, centrally coordinated, one-stop licensing process."
§ 403.510, Fla. Stat.
The issuance of a certification license for a power plant must be based on compliance with the applicable statutes and rules in effect at the time of issuance. See § 403.5185,
Fla. Stat.
Under the PPSA, an electrical power plant receives one license that remains valid and in effect for the life of the
facility unless modified, revoked, or cancelled. § 403.504(11), Fla. Stat. The license includes conditions of certification, which establish the terms, conditions, and requirements that would otherwise be included in individual permits issued by the affected state and local agencies.
Notice and Procedural Requirements
Based on foregoing Findings of act, it is concluded that FPL has met all pertinent procedural requirements imposed under the PPSA and Florida Administrative Code chapter 62-17.
Based on foregoing Findings of Fact, it is concluded that FPL has met all applicable notice requirements imposed by the PPSA, chapter 62-17, and chapter 120.
Based on foregoing Findings of Fact, it is concluded that DEP has met all pertinent notice and procedural requirements under the PPSA, chapter 62-17, and chapter 120.
Need Determination
Section 403.507(4)(b) requires issuance of a need determination by the PSC before the PAR is prepared and a certification hearing is held.
As previously discussed, in March 2018, the PSC issued a Need Determination for DBEC, finding and concluding that there is a need for DBEC.
Pursuant to section 403.519(1), the PSC is the sole forum for determining the need for an electrical power plant
subject to the PPSA. As discussed above, in making its need determination, the PSC considers and makes findings and conclusions regarding the need for electric system reliability and integrity; the need for adequate electricity at a reasonable cost; the need for fuel diversity and supply reliability; whether the proposed plant is the most cost-effective alternative available; and whether renewable energy sources and technologies, as well as conservation measures, are utilized to the extent reasonably available. Upon considering these matters, the PSC issued an affirmative determination of need, pursuant to
section 403.519, for DBEC. Reconsideration of the Need Determination and any aspect thereof in this proceeding is not authorized under the PPSA. Fla. Chapter of Sierra Club v.
Orlando Util. Comm'n, 436 So. 2d 383, 388 (Fla. 5th DCA
1983)(determination of need is solely within the jurisdiction of the PSC and any reevaluation thereof at the certification hearing is both wasteful and unauthorized).
Site Certification Criteria
Section 403.509(3) codifies the site certification standard applicable to this proceeding. This statute states:
In determining whether an application should be approved in whole, approved with modifications or conditions, or denied, the board, or secretary when applicable, shall consider whether, and the extent to which, the location, construction, and operation of the electrical power plant will:
Provide reasonable assurance that operational safeguards are technically sufficient for the public welfare and protection.
Comply with applicable nonprocedural requirements of agencies.
Be consistent with applicable local government comprehensive plans and land development regulations.
Meet the electrical energy needs of the state in an orderly, reliable, and timely fashion.
Effect a reasonable balance between the need for the facility as established pursuant to s. 403.519 and the impacts upon air and water quality, fish and wildlife, water resources, and other natural resources of the state resulting from the construction and operation of the facility.
Minimize, through the use of reasonable and available methods, the adverse effects on human health, the environment, and the ecology of the land and its wildlife and the ecology of state waters and their aquatic life.
Serve and protect the broad interests of the public.
This statutory scheme is one of balancing and reasonableness. Gainesville Renewable Energy Ctr., at ¶ 167. In
considering the siting factors in section 403.509(3), the Siting Board is charged with effecting a reasonable balance between the need for the facility and environmental and other impacts resulting from the construction and operation of the facility.
§ 403.502(2), Fla. Stat.; Gainesville Renewable Energy Ctr.,
at ¶ 141.
As discussed above, because DBEC will, through system- wide reduced GHG emissions, result in a net environmental benefit as compared to the alternative of continuing to operate Units 4 and 5 indefinitely into the future, DBEC should be weighed as a net positive in considering and balancing the certification factors in section 403.509(3). These factors are addressed below.
Section 403.509(3)(a) - Operational Safeguards
Section 403.509(3)(a) requires the Siting Board to consider whether, and the extent to which the location, construction, and operation of the electrical power plant will "[p]rovide reasonable assurance that operational safeguards are technically sufficient for the public welfare and protection."
Based on the competent, substantial, and persuasive evidence in the record, it is concluded that DBEC has provided reasonable assurance that its operational safeguards are technically sufficient for the public welfare and protection.
Specifically, as discussed above, Unit 7 will be an efficient new natural gas burning unit that, in conjunction with reduced emissions from FPL's older, less-efficient, and more- polluting sources, will result in a net reduction of GHG emissions over a projected 30-year horizon. Additionally, Unit 7
will comply with BACT and all other applicable air emissions requirements. Also discussed above, DBEC has been designed at a sufficient elevation to adequately protect the facility against reasonably-projected sea level rise and storm surges.
Additionally, as discussed above, DBEC will comply with all applicable rules and requirements of the affected agencies if constructed and operated accordance with the proposed Conditions of Certification, which are imposed to protect the public health, safety, and welfare.
Section 403.509(3)(b) - Nonprocedural Requirements
Section 403.509(3)(b) requires the Siting Board to consider whether, and the extent to which the location, construction, and operation of the electrical power plant
"will . . . [c]omply with applicable nonprocedural requirements of agencies."
The PPSA specifically provides that all permit decisions by the affected state agencies and local governments are to be reviewed on the basis of standards and recommendations of those affected agencies. As discussed above, each affected agency reviewed the Application within the scope of its own regulatory authority and submitted an agency report to the SCO. Each agency report addressed the impacts of the proposed plant on matters within that particular agency's jurisdiction and
recommended conditions of certification to ensure that DBEC would comply with that agency's applicable regulatory requirements.
The competent, substantial, and persuasive evidence, discussed in detail above, establishes that, with the exception of a variance from a City of Dania Beach noise ordinance, DBEC will comply with all applicable non-procedural requirements of the affected agencies when constructed and operated in accordance with the proposed Conditions of Certification.
DBEC has requested a variance from a noise ordinance codified in section 17-86 of the Dania Beach Code of Ordinances. Except for certain variances not at issue here, a site certification may include variances from non-procedural requirements. § 403.511(1)(b)1., Fla. Stat. As discussed above, the requested variance is limited in nature, the noise requiring the variance is expected to be transient and infrequent, is associated only with unit startup, shutdown, or upset conditions, and is expected to have a noise profile that is not materially different than the current plant operating at the site. There was no opposition to the variance, and it is recommended for approval.
Section 403.509(3)(c) — Consistency with Local Comprehensive Plans and Land Development Regulations
Section 403.509(3)(c) requires the Siting Board to consider whether, and the extent to which the location, construction, and operation of the electrical power plant
"will . . . [b]e consistent with applicable local comprehensive plans and land development regulations."
Because DBEC will be constructed and operated within the boundaries of the existing site, it is not subject to a PPSA consistency review for local land use plans and zoning ordinances. § 403.50665, Fla. Stat.
Competent substantial evidence consisting of the Application establishes that the project will be consistent with the applicable local government comprehensive plans and land development regulations.
Section 403.509(3)(d) — Meet Electrical Energy Needs
Section 403.509(3)(d) requires the Siting Board to consider whether, and the extent to which the location, construction, and operation of the electrical power plant
"will . . . [m]eet the electrical energy needs of the state in an orderly, reliable, and timely fashion."
The PSC, in its Need Determination, found and concluded that FPL demonstrated the need for DBEC to maintain FPL's system reliability and integrity in the 2024-to-2026
timeframe. The Need Determination specifically finds and concludes that DBEC will meet the electrical energy needs of the state in an orderly, reliable, and timely fashion. As previously noted, the Need Determination constitutes the PSC's agency report pursuant to section 403.507(4)(a).
Thus, the competent substantial evidence establishes that DBEC will meet the electrical energy needs of the state in an orderly, reliable, and timely fashion.
Section 403.509(3)(e) – Reasonable Balance Between Need and Environmental Impacts
Section 403.509(3)(e) requires the Siting Board to consider whether, and the extent to which the location, construction, and operation of the electrical power plant "will . . . [e]ffect a reasonable balance between the need for
the facility as established pursuant to [section] 403.519 and the impacts upon air and water quality, fish and wildlife, water resources, and other natural resources of the state resulting from the construction and operation of the facility."
Need
As previously discussed, the PSC determined that there is a need for DBEC in the 2024-to-2026 timeframe to maintain FPL's electric system reliability and integrity. In making the need determination, PSC considers several factors, enumerated above.
While it is necessary for the Siting Board to consider a need determination for purposes of considering whether, and the extent to which, the construction and operation will effect a reasonable balance between the need for the facility, as determined by the PSC, and the plant's impacts on air and water quality, fish and wildlife, water resources, and other natural resources of the state, the Siting Board cannot reevaluate the need for the plant. Reconsidering the need for the plant would intrude on the PSC's exclusive authority, established in
section 403.519, to determine need, and is not within the scope of a site certification proceeding. Fla. Sierra Club, 436 So. 2d at 388; Gainesville Renewable Energy Ctr., at ¶ 141
(characterizing the PSC's need determination as an "irrebuttable fact" in a site certification proceeding).
Environmental Impacts
Sierra Club contends that DBEC's GHG emissions will contribute to global and local sea level rise and other environmental damages, and that these impacts override the need for the power plant.
FPL presented credible, persuasive evidence that DBEC will comply with all applicable environmental regulatory requirements, which are specifically designed to prevent and minimize adverse impacts to public health, welfare, and the environment. Sierra did not present any evidence showing that
FPL will not comply with the applicable environmental regulatory requirements.
The competent substantial evidence further shows that DBEC, in conjunction with reduced emissions from less efficient, more-polluting units in FPL's system, will result in an overall reduction, on a system-wide basis, in GHG emissions per MWh compared to Units 4 and 5. This means that DBEC will result in a net reduction in GHG emissions on a system-wide basis over a
30-year horizon.
Further, evaluating the impact of sea level rise on the power plant facility itself is not part of the analysis under section 403.509(3)(e), which analyzes the "air and water quality, fish and wildlife, water resources, and other natural resources of the state resulting from the construction and operation of the facility."61/ However, even if such impacts were germane to the analysis under section 403.509(3)(e), the competent substantial evidence establishes that DBEC's power block will be sufficiently elevated to protect against reasonably-projected local sea level and storm surges.
Sierra contends that, notwithstanding the Need Determination, the Siting Board can balance need and environmental considerations under section 403.509(3)(g) to determine that DBEC must include solar or other renewable energy or energy storage components, and that FPL should be required to
further reduce DBEC GHG emissions through carbon capture and sequestration technology. These contentions amount to efforts to circumvent the Air Permit through imposing, in the site certification proceeding, conditions that are inconsistent with the DEP's BACT determinations regarding the feasibility and cost- effectiveness of such technologies.62/
As discussed above, it is well-settled under Florida law that the PSC, not the Siting Board, is authorized to determine the feasibility and cost-effectiveness of alternative energy technologies and conservation measures as part of the need determination process. Fla. Chapter of the Sierra Club, 436 So. 2d at 388 (Fla. 5th DCA 1983)(affirming certification order finding that evidence regarding use of conservation measures was not germane to site certification process because conservation issues are part of PSC's need determination); Gainesville Renewable Energy Ctr., (adopting recommended order approving
renewable energy center and finding that ALJ properly excluded evidence on matters within the PSC's exclusive jurisdiction). See also Fla. Power Corp. v. State, Siting Bd., 513 So. 2d 1341,
1344 (Fla. 1st DCA 1987).
Sierra cites In re: Florida Power & Light Company West
County Energy Center Unit 3, Case No. 07-2198 (Fla. DEP Nov. 15, 2008), to support its position that the Siting Board is authorized to require FPL to implement a renewable energy
component as a condition of certification. West Energy Center
does not support Sierra's position because in that case, FPL voluntarily agreed to implement a renewable energy component as a condition of settling the challenge to site certification, and DEP——not the Siting Board——entered the final order. See Joint
Stipulation and Motion of the Parties to Cancel Certification Hearing and to Relinquish Jurisdiction to the Department of
Environmental Protection for Entry of Final Certification Order,
Oct. 8, 2008, DOAH Case No. 07-5574EPP. FPL's voluntary agreement to include a renewable energy component as a condition of settlement does not confer jurisdiction on the Siting Board to require such a component——particularly given that the PSC already
has determined that a renewable energy component is neither feasible nor cost-effective.
In sum, the competent substantial evidence establishes that DBEC, as proposed and subject to the proposed Conditions of Certification, effects a reasonable balance between the need for the facility and the environmental impacts considered under section 403.509(3)(e).
Section 403.509(3)(f) — Minimize Adverse Effects
Section 403.509(3)(f) requires the Siting Board to consider whether, and the extent to which the location, construction, and operation of the electrical power plant will "minimize, through reasonable and available methods, the adverse
effects to human health, the environment, and the ecology of the land and its wildlife and the ecology of state waters and their aquatic life."
As discussed above, DBEC's air emissions will be controlled by technology that constitutes BACT for natural gas- fired electrical power plants. BACT is determined based on the maximum degree of reduction of each air pollutant which, considering energy, environmental, and economic impacts, and other costs, is achievable through available methods, systems, and technologies. The use of natural gas as the primary fuel, ultra-light sulfur distillate as a backup fuel, an efficient design using the most efficient combined cycle technology, and post-combustion emission control technology will help minimize the adverse effects associated with DBEC's air emissions.
The competent substantial evidence establishes that DBEC will emit less GHGs per MWh than Units 4 and 5. Nitrogen oxide and sulfur dioxide emissions from DBEC will, respectively, be 7.5 and ten times lower than the required NSPS, and total emissions of all specific criteria pollutants will be reduced
by 6.6 million pounds. Additionally, DBEC will result in reduced air pollution, including GHG emissions, across FPL's electrical generating system. Thus, DBEC constitutes a net environmental benefit, compared to the continued operation of Units 4 and 5 on an indefinite basis.
DBEC will not withdraw more water for use as cooling water than did Units 4 and 5, and it will implement technology to avoid impingement and entrainment of aquatic life at the cooling water intake structures.
Additionally, by occupying the same footprint and using much of the existing infrastructure that currently is used by Units 4 and 5, DBEC will minimize new impacts to the environment.
As previously noted, the environmental regulatory requirements applicable to DBEC are designed to prevent and minimize harmful impacts to public health, welfare, and the environment. DBEC's compliance with these requirements will minimize its effects on human health, the environment, and the ecology of the land and its wildlife and the ecology of state waters and their aquatic life.
In sum, the competent substantial evidence demonstrates that DBEC will minimize, through the use of reasonable and available methods, adverse effects on human health, the environment, and the ecology of the land and its wildlife and the ecology of state waters and their aquatic life. Section 403.509(3)(g) — Broad Interests of the Public
Section 403.509(3)(g) requires the Siting Board to consider whether, and the extent to which the location,
construction, and operation of the electrical power plant will "serve and protect the broad interests of the public."
As discussed above, the competent substantial evidence establishes that DBEC will satisfy the site certification factors in sections 403.509(3)(a) through (f).
Accordingly, the competent substantial evidence establishes that DBEC will serve and protect the broad interests of the public. In Re: Florida Power and Light Company Okeechobee
Clean Energy Center Power Plant Siting Application No. PA15-58, Case No. 15-0607 (Fla. DEP Final Order June 29, 2016) (concluding that because power plant meets all other factors in section 403.509(3), it will serve and protect broad interests of the public).
Based on the foregoing, it is concluded that DBEC effects a reasonable balance between the need for the power plant and the environmental and other impacts, as required under section 403.509(3)(a) though (g), for site certification.
Rulings on Sierra's Requested Relief
As discussed in paragraph 258, above, Sierra filed a Statement on Relief, requesting various forms of relief in this proceeding. Each of these is addressed below.
Paragraph 1 of Sierra's Statement on Relief
This paragraph requests that the Siting Board impose two additional conditions: first, require FPL to limit the
annual emission of GHGs from DBEC to the existing annual GHG emission levels of Units 4 and 5; and second, require FPL to terminate greenhouse gas emissions from DBEC at the same date that Sierra contends FPL would retire Units 4 and 5——i.e., 2033—— subject to any required operation to meet electric reliability needs.
This relief is denied. As previously discussed, DBEC will displace other electrical generating units in FPL's system that are less efficient, use more fuel, and emit more GHGs. Although DBEC will result in a reduction of GHG emissions across FPL's system and will emit less GHG on a per MWh basis than Units 4 and 5, DBEC may emit more total GHGs than Units 4 and 5 in isolation, because it will be operated more frequently and at
a higher capacity. Limiting DBEC's GHG emissions to an amount no greater than current GHG emissions from Units 4 and 5 would require DBEC to be operated less often and at lower capacity, resulting in older, less efficient units continuing to be operated to meet electrical power demand. This would result in increased GHG emissions, and, thus, would have greater adverse impact on the environment than operating DBEC for its projected life to 2062.
The second part of Sierra's requested relief would require "FPL to terminate greenhouse gas emissions from DBEC at the same date that FPL planned to retire Lauderdale 4 and 5,
in 2033, subject to any required operation to meet electric reliability needs." This condition would have the effect of requiring DBEC to cease operation in 2033.63/ However, the PSC affirmatively determined that there is a need for DBEC in the 2024-to-2026 timeframe to meet FPL's system-wide 20 percent reserve margin requirement. Thus, this condition would encroach on the PSC's exclusive jurisdiction to determine need.
Additionally, there is no competent substantial evidence in the record to support DBEC shutdown in 2033.64/
Accordingly, this relief is denied.
Paragraph 2 of Sierra's Statement on Relief
Paragraph 2 of Sierra's Statement on Relief would condition DBEC approval on "requir[ing] FPL to comply with FPL's stated system-wide greenhouse gas reduction commitment to DEP and to the Florida Public Service Commission, and upon which FPL relies in seeking approval for DBEC: specifically[,] that DBEC's operation reduces FPL's system-wide annual emissions of greenhouse gases from its current baseline by at least the amount committed to by FPL." This relief would further require FPL's system-wide annual emissions of greenhouse gases to be reduced below "its current baseline by at least the amount committed to by FPL, and never exceeding that reduced level of greenhouse gas emissions during each year of the lifespan of DBEC."
This relief also is denied. This condition would effectively reopen the site certification licenses of every electrical power plant in FPL's system, contrary to
section 403.511(2), which makes certified power plants subject only to the conditions of certification for that specific power plant. Further to that point, section 403.509(7) states that "the issuance or denial of the certification by the board or secretary of the department shall be the final administrative
action required as to that application." (emphasis added). Thus, the site certification for one electrical power plant cannot impose new conditions on previously certified electrical power plants. Additionally, this condition may limit or impede FPL's and the PSC's ability to address increased demand for electrical energy beyond that currently forecasted——again encroaching on the PSC's exclusive jurisdiction to determine and manage the energy needs of the state pursuant to section 403.519 and chapter 366, Florida Statutes.
Accordingly, this relief is denied.
Paragraph 3 of Sierra's Statement on Relief
This requested relief would condition DBEC on requiring FPL to develop a public stakeholder process, described in paragraph 258, above. This relief also is denied.
Sierra presented no evidence at the certification hearing regarding key components of this proposed condition——
specifically, what a "locally-sited public stakeholder process" would require; which stakeholders would be included in such a process; why the process——if it involves GHG emissions——would and should be limited to local stakeholders; how such a process would result in "binding" commitments and what those "binding" commitments would entail; what constitutes a "meaningful" opportunity to participate; and whether and the extent to which such commitments would be consistent with state and local government rules and requirements applicable to site certification. Effectively, this condition would have the Siting Board fashion relief that is wholly unsupported by competent substantial evidence in the record.
Further, requiring such a process is inconsistent with the PPSA, which establishes a centrally coordinated process designed to ensure that the electrical power plant is subject to consistent, legally authorized conditions.
Third, there is no statutory, rule, or case law authority to support imposing this condition. As discussed above, the PPSA establishes the process and substantive requirements and limits for imposing conditions of certification. Imposing an additional or collateral process on DBEC certification that may result in "binding" commitments that could affect matters governed by the PPSA or encroach on the PSC's Need Determination jurisdiction is not legally authorized, and,
notably, Sierra did not cite any legal authority to support the imposition of this condition.
Paragraph 4 of Sierra's Statement on Relief
Sierra also requests that DBEC be conditioned on:
Requir[ing] FPL to evaluate, every five years in a detailed, transparent process with opportunity for meaningful public participation, the Climate Change Damages resulting from forty years of greenhouse gas pollution from building and operating DBEC as proposed, and approve DBEC subject to the opportunity for the Siting Board to reevaluate the approval of DBEC, including whether there are additional reasonable and available methods that should be adopted to minimize the Climate Change Damages caused by DBEC, and to impose further conditions, including future emissions reductions of DBEC.
There is no statutory authority to impose a condition that contemplates a reevaluation process for an approved site certification. To that point, section 403.509(7) states: "[t]he issuance or denial of the certification by the board or secretary of the department shall be the final administrative action
required as to that application." (emphasis added).
Moreover, even if such authority existed, "any damages resulting from greenhouse gas emissions" is vague. As discussed above, current climate change modeling does not support the identification of endpoint environmental impacts of GHGs on a project-specific basis.
Accordingly, this relief is denied.
Paragraph 5 of Sierra's Statement on Relief
Paragraph 5 of Sierra's Statement of Relief would condition approval of DBEC on:
requir[ing], in light of the expected 40-year operational life of DBEC, that at least every five years, FPL and FDEP reevaluate in a detailed, transparent process with opportunity for meaningful public participation, the Climate Change Damages which pose a risk to the DBEC facility specifically, and approve DBEC subject to the opportunity for the Siting Board to reevaluate the approval of DBEC, including whether there are additional reasonable and available methods that should be adopted to minimize the Climate Change Damages to the DBEC facility, and to impose further conditions, including future emissions reductions of DBEC.
This condition would require that climate change impacts on DBEC be evaluated every five years.
The relief requested in paragraph 5 is denied on the same basis as paragraph 4.65/
Paragraph 8 of Sierra's Statement on Relief
Sierra requests that if none of its proposed conditions are imposed on DBEC, that DBEC's site certification be denied.
As discussed below, the undersigned recommends approval of the site certification for DBEC, subject only to the Conditions of Certification that were included in the PAR.
Accordingly, this relief is denied.
Paragraph 9 of Sierra's Statement on Relief
Paragraph 9 of Sierra's Statement on Relief requests that the ALJ and the Siting Board provide "such relief as is just and reasonable."
With rare exception, administrative agencies in Florida may only take action that is specifically authorized by statute, and do not have broad authority to fashion equitable relief. See City of Cape Coral v. G.A.C. Util., Inc., 281 So.
2d. 493, 496 (Fla. 1973)(because agencies are creatures of statute, their powers, duties, and authority are those and only those that are conferred expressly or impliedly by statute).
Sierra does not specifically identify the "just and reasonable relief" it requests, so it is impossible to determine whether such relief is supported by the competent substantial evidence in the record. Sierra also fails to cite any legal authority to support such relief.
Accordingly, this requested relief is denied.
Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the State of Florida Siting Board enter a final order approving DBEC, subject to the Conditions of Certification contained in the PAR, and approving the variance to the City of Dania Beach Code of Ordinances, Chapter 17,
Article IV, Noise, Section 17-86, as set forth in the PAR.
DONE AND ENTERED this 30th day of July, 2018, in Tallahassee, Leon County, Florida.
S
CATHY M. SELLERS
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2018.
ENDNOTES
1/ All references to Florida Statutes are to the 2018 version, which was in effect at the time this Recommended Order was prepared. See Lavernia v. Dep't of Prof'l Reg., Bd. of Med., 616 So. 2d 53, 54 (Fla. 1st DCA 1993)(law in effect at the time of final agency action on licensure applies).
2/ The affected agencies are the Department of Economic Opportunity; the South Florida Water Management District; the Florida Fish and Wildlife Conservation Commission; the Department of Transportation; Broward County, Florida; the City of Dania Beach, Florida; and the City of Hollywood, Florida.
3/ The evidence, including the testimony, in this proceeding refer both to "DBEC" and "Unit 7." This Recommended Order uses the term "Unit 7" to specifically refer to the combined cycle electrical power generation unit.
4/ Order Granting Petition to Intervene and Limiting Issues to be Addressed in the Certification Hearing (Fla. DOAH May 4, 2018).
5/ For purposes of certification, section 403.503(14) defines "electrical power plant" in pertinent part as:
any steam or solar electrical generating facility using any process or fuel, including nuclear materials, except that this term does not include any steam or solar electrical generating facility of less than 75 megawatts in capacity unless the applicant for such a facility elects to apply for certification under this act. This term also includes the site; all associated facilities that will be owned by the applicant that are physically connected to the site; all associated facilities that are indirectly connected to the site by other proposed associated facilities that will be owned by the applicant; and associated transmission lines that will be owned by the applicant which connect the electrical power plant to an existing transmission network or rights-of- way to which the applicant intends to connect.
6/ DEP also issued the air construction/PSD permit for the DBEC air emissions units.
7/ Units 4 and 5 are subject to a separate site certification. The dismantlement of those units is not part of this site certification proceeding.
8/ As discussed above, the term "electrical power plant" is defined to include
all associated facilities that will be owned by the applicant that are physically connected to the site; all associated facilities that are indirectly connected to the site by other proposed associated facilities that will be owned by the applicant; and associated transmission lines that will be owned by the applicant which connect the electrical power plant to an existing transmission network or rights-of- way to which the applicant intends to connect.
§ 403.503(14), Fla. Stat.(emphasis added).
Here, the evidence showed that the natural gas pipeline that will transport the natural gas to DBEC for use as fuel for Unit 7 is owned by Florida Gas Transmission Company. No evidence whatsoever was presented showing that FPL has any ownership interest in the pipeline. Accordingly, any environmental impacts associated with the operation of the pipeline to transport natural gas to DBEC, or with the production of natural gas——such as through fracking——that may be piped to DBEC are beyond the scope of this proceeding.
9/ As further discussed below, Sierra takes the position that even though Unit 7 is more efficient in terms of natural gas consumption, because it is projected to operate until approximately 2062, it ultimately will emit a greater total amount of GHGs than not operating it and continuing to operate Units 4 and 5 through their projected retirement date of 2033. However, as extensively discussed below, if Unit 7 is constructed and operated, it will not only replace Units 4 and 5——which otherwise would be operated indefinitely——but also will substantially displace FPL's use of other less-efficient units that emit significantly greater amounts of GHGs than Unit 7 will emit over its projected life, thus resulting in a net system-wide reduction in GHG emissions.
10/ DBEC will emit small amounts of nitrogen oxide and sulfur hexafluoride.
11/ Methane is the primary component of natural gas. Although it comprises a relatively minor component of the GHGs emitted from natural gas-fired electrical power plants, it has a higher global warming potential than carbon dioxide. Approximately 99 percent of DBEC's GHG emissions will be comprised of carbon dioxide.
12/ Section 403.509(5), which addresses air permitting authority under the PPSA, states, in pertinent part: "[n]othing in this part shall be construed to displace the department's [(DEP's)] authority as the final permitting entity under the federally approved permit program."
13/ Although the Air Permit is not subject in this proceeding to being revised or modified to impose new, additional, or different conditions, it is important to note that use of carbon capture and sequestration technology was specifically considered as part of the BACT evaluation for DBEC, and was rejected because it was determined neither technically nor economically feasible.
14/ The air construction/PSD permit establishes specific emissions standards for Unit 7 for nitrogen oxides, carbon monoxides, PM/PM10/PM2.5, sulfur dioxide and sulfuric acid mist, volatile organic compounds, and GHGs.
15/ The GHG emissions rates for Unit 7 set forth in the Air Permit reflect the "worst case" scenario, which assumes that Unit 7 will operate at 100 percent capacity every hour of the year and will, during that period, burn 2,000 hours of ULSD oil (1,000 hours for each CT). The credible evidence established that this scenario is unlikely because electrical generating units typically do not run 100 percent of the time, and because backup fuel sources typically are used far less often and in smaller quantities than the amount permitted.
16/ This projection was based on the previously-discussed projected system-wide reduction of 133,966,983 million cubic feet of natural gas consumption between 2018 and 2047 if Units 4 and 5 are retired in 2018 and Unit 7 commences operation in 2022.
17/ In the Application, FPL also projected a reduction of GHG emissions by approximately 22 million tons over the period from 2022 to 2063 due to operation of DBEC. This projected reduction is a comparison between Unit 7 and Units 4 and 5, assuming that Units 4 and 5 continue to operate in the period from 2022 to 2063 at the same level at which they operated in the period from 2012 and 2016. The key differences between the scenario in which Unit 7 is projected to reduce GHG emissions by 8.1 million tons and in which is it is projected to reduce GHG emissions by
22 million tons are the comparative timeframes——30 years versus
41 years——and the different projected levels of operation of Units 4 and 5 over those timeframes. Importantly, under either scenario, DBEC provides a substantial reduction in GHG emissions.
18/ The evidence established that over 99 percent of the GHG emissions from DBEC consist of carbon dioxide.
19/ This estimated reduction in system-wide generation of GHG is conservative because it is based only on the projected reduction of natural gas consumption. In reality, some of FPL's older, less efficient electrical power generating units burn coal and oil, and these units may be displaced by the operation of Unit 7. In that scenario, GHGs would be reduced in amounts even greater than the 8.1 million tons projected as a result of the displacement by Unit 7 of less efficient natural gas-burning units.
20/ In its Proposed Recommended Order, Sierra cites PSC-16-0560, page 241, as support for the statement that "FPL admitted that it would probably retire the Lauderdale units by 2033." However, the order and the information on page 241 of the order were expressly excluded from admission into evidence in the certification hearing. Tr. Vol. II, p. 108, lines 13-17.
21/ See Sierra's Proposed Recommended Order, ¶¶ 204 – 224, 238, pp. 44-49, 52.
22/ PSD and Title V Permitting Guidance for Greenhouse Gases, United States Environmental Protection Agency, Office of Air and Radiation, March 2011, ("EPA PSD Guidance") at p. 41. This document is Exhibit 7 to Arif's deposition, which was admitted into evidence as Sierra Exhibit 85.
23/ Ackerman is an environmental economist employed by Synapse Energy Economics, Inc. He was accepted as expert in determining the social cost of carbon, the costs of reducing climate change impacts, and the use of cost/benefit analyses in these areas.
24/ Integrated assessment models attempt to assess, in compressed form, the effect of the growth of the world economy and resulting increased GHG emissions on the climate, and the effect of damage resulting from climate change on the world economy.
25/ This is the federal government's estimate of the social cost of carbon at the year 2040, which approximates the midpoint of DBEC's projected lifetime.
26/ There is a direct proportional relationship between amount of GHG emissions from DBEC and the monetized amount of damages resulting from such emissions. To that point, Ackerman testified that if DBEC actually emitted 60 percent of those annual emissions projections, then the monetized damages would be
60 percent of those annual emissions projections.
27/ It must be noted here that Sierra's contention that operating Unit 7 will result in a greater total amount of carbon emissions than continuing to operate Units 4 and 5 appears based on the assumption that Units 4 and 5 will be retired in 2033 and, presumably, will not be replaced at all or else will be replaced with generating technology that has lower or no carbon emissions. As discussed in note 20, above, there is no competent substantial evidence in the record to support the assumption that Units 4 and 5 will be retired in 2033 if Unit 7 is not constructed, nor is there is any competent evidence in the record to support any
assumption regarding any specific type of power generating technology or type that may or may not be used by FPL in the future.
28/ While section 403.509(3) confers broad authority to the Siting Board to consider, and deny or impose conditions on site certification in order to protect air and water quality, fish and wildlife, water resources, other natural resources of the state, human health, and the broad interests of the public, this statute has not previously been interpreted to impose the requirement that the social costs of carbon be considered or addressed, and no state or federal rules or regulations applicable to permitting electrical power plants impose such a requirement. Although the evidence presented in this proceeding regarding climate change and the need to exigently address it is compelling, the evidence shows that it is extremely difficult, at this juncture, to accurately perform cost/benefit analyses regarding climate change because there is substantial uncertainty and lack of consensus regarding the extent, rate, and effects of climate change.
29/ In support of its position that a life-cycle analysis that included the emissions generated by natural gas production and transport to DBEC should have been performed, Sierra cites section 377.601(2)(j), Florida Statutes, which states: "[i]t is the policy of the State of Florida to: . . . (j) [c]onsider, in its decision-making, the social, economic, and environmental impacts of energy-related activities, including the whole-life- cycle impacts of any potential energy use choices, so that detrimental effects of these activities are understood and minimized." Neither DEP nor the Siting Board are statutorily authorized to implement this provision through the air construction permitting program or the PPSA. See Schiffman v.
Dep't of Prof'l. Reg., 581 So. 2d 1375, 1379 (Fla. 1st DCA 1991) (under Florida law, administrative agencies only have the authority conferred by statute). In fact, section 377.601(2)(j) is administered by the Florida Department of Agriculture and Consumer Services Office of Energy, which has not adopted any rules to implement this specific provision. Further, as a specific statute covering a particular subject matter, the provision in section 403.503(14) that expressly limits PPSA applicability to associated facilities that are or will be owned by the applicant controls the scope of this proceeding. Read v. MFP, Inc., 85 So. 3d 1151, 1154 (Fla. 2d DCA 2012)("[i]t is a
well settled rule of statutory construction . . . that a special statute covering a particular subject matter is controlling over a general statutory provision covering the same . . . subject[] in general terms.").
30/ USLRP, Figure 1, p. 5.
31/ Each curve is named for the government entity that created the projected sea level rise curve and states whether the curve represents be low, high, median or extreme projected sea level rise. "NOAA" is the National Oceanic and Atmospheric Administration; "IPCC AR5" is the United Nations Intergovernmental Panel on Climate Change, Fifth Assessment Report; and "USACE" is the United States Army Corps of Engineers.
32/ The sea level rise projection curves in the USLRP document reflect global sea level rise projection methods that have been adjusted to account for conditions in southeast Florida, which is particularly vulnerable to sea level rise.
33/ The year 2060 was used as the reference point because DBEC's end of design-life is 2062.
34/ USLRP, at p. 4.
35/ Id.
36/ Id. at p. 12. To that point, the USLRP document's inclusion of only nuclear power plants as among the facilities to which the NOAA High Curve should be applied——along with the express inclusion of "energy infrastructure"——which is fairly read to mean non-nuclear electric power generation facilities and transmission infrastructure——among facilities to the USACE High Curve is appropriately applied, means that it is neither necessary nor appropriate to use the NOAA High Curve in planning the design elevation of the DBEC power generating facility.
37/ Id. at p. 1. Sierra's expert, Wanless, was a member of the Working Group that prepared the USLRP document. He testified that the sea level rise projections in that document represented the ones that the entire group could agree on.
38/ Maul has over 50 years of experience and his research specifically focuses on tides, currents, and sea level, including sea level rise. He was accepted as an expert in physical oceanography.
39/ Based on his research, Maul opined that the USACE High Curve may overestimate sea level rise through 2100. Therefore, FPL's use of that curve to determine the minimum elevation of the DBEC power block is conservative——i.e., more protective.
40/ Wanless's research focuses on the effects of hurricanes and sea level rise on tropical shallow marine and coastal environments, including coral reefs and mangrove ecosystems. He was accepted as an expert in climate change as related to sea level rise, hurricanes, and their effects on coastal marine environments.
41/ Wanless did not conduct this research himself, and relied on research by others in formulating his opinion for his certification hearing testimony.
42/ Wanless testified that before 2010, "we didn't talk about something called redistribution of the Earth's mass."
43/ Mean sea level datums are determined based on a 19-year period of observations at a given tide station. The 19-year mean is based on an 18.6 year astronomical cycle that accounts for all significant variations in the distances to the moon and sun that cause slowly varying changes in the range of tides.
68 Fed. Reg. 31689 (May 28, 2003); § 90.202(11), Fla. Stat.
44/ Maul is a physical oceanographer whose expertise includes researching ocean currents. He has specifically studied the Gulf Stream, and he concluded that, at least by 2015, there had been no statistically significant slowing of that current. Wanless's research, on the other hand, has been more specifically focused on climate change as determinable through the examination of sediments and terrestrial and marine geological features. There was no evidence presented showing that Wanless has performed scientific research on the Gulf Stream, nor was there any evidence presented regarding Wanless's own research that directly and persuasively refuted Maul's conclusion regarding the Gulf Stream. Accordingly, the undersigned assigns greater weight to Maul's testimony on this point.
45/ DBEC's use of existing infrastructure results in significant savings in financial expenditures, resource expenditure, and environmental impacts, that otherwise would be incurred if FPL constructed new infrastructure.
46/ There is conflicting evidence regarding the rate of, and extent which, sea level has risen, and will continue to rise, on a local level in southeast Florida. Maul, who has researched sea level in southeast Florida for decades, did not observe any significant rise in sea level between 2000 and 2015 in the southeast Florida region, as determined from tide gauge data from Key West.
47/ Some testimony presented by Sierra's expert witnesses addressed topics on which they were not qualified as experts. For example, Wanless testified that rising ocean temperatures already have caused substantial damage to coral reefs and other
marine ecosystems, and that ocean acidification is anticipated to have devastating impacts on marine phytoplankton and other marine organisms and sensitive ecosystems, including coral reefs.
However, Wanless was not qualified as a marine biology expert in this proceeding, so his testimony on these topics has not been assigned weight by the undersigned. Similarly, Ackerman testified that in determining the social cost of carbon, impacts to agricultural crops are among the factors considered. However, he was qualified as an environmental economist, rather than an expert in agriculture. Accordingly, his testimony is not considered evidence that such agricultural impacts are occurring due to climate change——only that those impacts are among the things he considers in determining the social cost of carbon.
It is further noted here that several scientific publications tendered by Sierra were admitted into evidence. To the extent those publications were not the subject of testimony at the certification hearing, they are hearsay evidence to which no weight has been assigned. § 120.57(1)(c), Fla. Stat. (hearsay evidence is not sufficient in itself to support a finding of fact unless it falls within an exception to the hearsay rule).
48/ "Completeness" means that the site certification application has addressed all applicable sections of the prescribed application format, and that those sections are sufficient in comprehensiveness of data or in quality of information provided to allow the SCO to determine whether the application provides the reviewing agencies adequate information to prepare the agency reports. § 403.503(10), Fla. Stat.
49/ The "affected agencies" are DEP, DEO, the water management district in whose boundaries the electrical power plant is proposed to be located, each local government in whose jurisdiction the electrical power plant is proposed to be located, FFWCC, DOT, and any other agency requested by DEP to prepare studies or reports regarding matters within that agency's jurisdiction that may be affected by the electrical power plant.
§ 403.507(2), Fla. Stat.
50/ The SCO prepares a PAR only if the PSC first issues an affirmative determination, pursuant to section 403.519, that the electrical power plant is needed. § 403.507(4)(b), Fla. Stat.
51/ The term "nonprocedural requirements of agencies" means each agency's substantive regulatory requirements established by statute, rule, ordinance, zoning ordinance, land development code, or comprehensive plan. § 403.503(21), Fla. Stat.
52/ It is well-established in Florida law that administrative agencies only have the authority that the Legislature has conferred by statute. Schiffman at 1379; see City of Cape Coral v. G.A.C. Util., Inc., 281 So. 2d. 493, 496 (Fla. 1973)(because agencies are creatures of statute, their "powers, duties, and authority are those and only those that are conferred expressly or impliedly by statute").
53/ Several persons at the public hearing spoke in opposition to FPL engaging in fracking and using fracked gas derived from near the DBEC site. It must be noted that the DBEC project, as proposed does not entail a natural gas activity fracking component, and there was no competent substantial evidence to the contrary presented at the certification hearing. As discussed above, DBEC will use natural gas that is transported to the site by a pipeline owned by Florida Gas Transmission Company. The source of that natural gas, which will be produced by unknown third parties, is unknown at this juncture.
54/ The public comments are transcribed at pages 203 through 305 of the May 15, 2018, volume of the Transcript.
55/ As discussed above, there is no competent substantial evidence in the record to support Sierra's assumption that Units 4 and 5 must or will retire by 2033 if DBEC does not go into operation.
56/ During DBEC construction, FPL will continue to provide a warm water refuge for manatees.
57/ Sierra did not present evidence regarding its total number of members nationwide.
58/ In Farmworker Rights Organization, Inc. v. Department of Health and Rehabilitation, 417 So. 2d 753, 754-55 (Fla. 1st DCA 1982), the associational standing test was extended to apply to proceedings conducted pursuant to section 120.57.
59/ As the Florida Supreme Court noted in Florida Home Builders, "[e]xpansion of public access to the activities of governmental agencies was one of the major legislative purposes of the . . .
[Florida] Administrative Procedure Act." Fla. Home Builders, 412 So. 2d at 352-353.
60/ Section 403.511(3) states that the certification license issued under the PPSA "shall be in lieu of" any license, permit, certificate, or similar document required by any state, regional, or local agency pursuant to, but not limited to, chapter 125, chapter 161, chapter 163, chapter 166, chapter 186, chapter 253,
chapter 298, chapter 373, chapter 376, chapter 379, chapter 380, chapter 381, chapter 403, Florida Statutes, except for permits issued pursuant to any federally delegated or approved permit program.
61/ To this point, Sierra contends that if DBEC is flooded by sea level rise and storm surge, FPL's ratepayers——many of whom are Sierra members——will be required to shoulder the financial burden of repairing the facility. Pursuant to section 403.511(4), ratemaking matters are not germane to this proceeding, and the undersigned specifically excluded such matters from consideration in this proceeding in the Order Granting Intervention and Limiting Matters to be Addressed in the Certification Hearing issued in this proceeding on May 4, 2018.
62/ Section 403.511(6) states: “[n]o term or condition of an electrical power plant certification shall be interpreted to supersede or control the provisions of a final operation permit for a major source of air pollution issued by the department pursuant to s. 403.0872 to a facility certified under this part.”
63/ There is no technologically feasible way to terminate GHG emissions from DBEC other than ceasing its operation. As discussed above, carbon capture and sequestration was considered as BACT and specifically rejected because it is not technologically or economically feasible.
64/ As previously stated, there is no competent substantial evidence in the record supporting a 2033 retirement date for Units 4 and 5.
65/ See note 62, supra.
COPIES FURNISHED:
Scott A. Goorland, Esquire
Florida Power & Light Company Law/JB 700 Universe Boulevard
Juno Beach, Florida 33408 (eServed)
Gregory M. Munson, Esquire Gunster, Yoakley and Stewart, P.A.
215 South Monroe Street, Suite 601 Tallahassee, Florida 32301 (eServed)
Jennifer Brown, Esquire
South Florida Water Management District 3301 Gun Club Road
West Palm Beach, Florida 33406 (eServed)
Kimberly Clark Menchion, Esquire Department of Transportation
605 Suwannee Street, Mail Station 58
Tallahassee, Florida 32399 (eServed)
Tom Ansbro, Esquire City of Dania
100 West Dania Beach Boulevard Dania Beach, Florida 33004
Andrew Scott Grayson, Esquire
Florida Fish & Wildlife Conservation Commission 620 South Meridian Street
Tallahassee, Florida 32399 (eServed)
Theresa Lee Eng Tan, Esquire Florida Public Service Commission 2450 Shumard Oak Boulevard Tallahassee, Florida 32399 (eServed)
Michael Christopher Owens, Esquire Broward County
115 South Andrews Avenue, Room 423 Fort Lauderdale, Florida 33301 (eServed)
Jason Aldridge
Division of Historical Resources Department of State
Gray Building
500 South Bronough Street Tallahassee, Florida 32399-0250
Bob Vincent
Bureau of Environmental Health Water Programs Department of Health
4052 Bald Cypress Way, Bin A-08 Tallahassee, Florida 32399-1710
Alan Fallik, Esquire
Acting Hollywood City Attorney 2600 Hollywood Boulevard
Hollywood, Florida 33020 (eServed)
Michael James Weiss, Esquire Department of Environmental Protection
3900 Commonwealth Boulevard, Mail Station 35
Tallahassee, Florida 32399 (eServed)
Jon F. Morris, Esquire
Department of Economic Opportunity
107 East Madison Street, Mail Station 110 Tallahassee, Florida 32399
(eServed)
Kelley F. Corbari, Esquire
Department of Environmental Protection
3900 Commonwealth Boulevard, Mail Station 35
Tallahassee, Florida 32399 (eServed)
Julie Kaplan, Esquire Sierra Club
8th Floor
50 F Street Northwest Washington, DC 20001 (eServed)
Deborah K. Madden, Esquire Gunster, Yoakley and Stewart, P.A.
450 East Las Olas Bouelevard Fort Lauderdale, Florida 33301 (eServed)
Mary Elizabeth Keating, Esquire Gunster, Yoakley & Stewart, P.A.
215 South Monroe Street, Suite 601 Tallahassee, Florida 32301 (eServed)
Terry Cole, Esquire
Gunster, Yoakley and Stewart, P.A.
215 South Monroe Street, Suite 601 Tallahassee, Florida 32301 (eServed)
Zachary Fabish Sierra Club 8th Floor
50 F Street Northwest Washington, DC 20001
Diana A. Csank, Esquire Sierra Club
8th Floor
50 F Street Northwest Washington, DC 20001 (eServed)
Nicolas Soares
Terris, Pravlik, and Millian, LLP 1816 12th Street Northwest, Suite 303
Washington, DC 20009
Joshua Stebbins Sierra Club
8th Floor
50 F Street Northwest Washington, DC 20001
Jeffrey Sheffel, Esquire City of Hollywood
2600 Hollywood Boulevard
Hollywood, Florida 33020
Paul Joseph Polito, Esquire
Department of Environmental Protection
3900 Commonwealth Boulevard, Mail Station 35
Tallahassee, Florida 32399 (eServed)
Matthew J. Knoll, Esquire
Department of Environmental Protection Office of the General Counsel
3900 Commonwealth Boulevard, Mail Station 35
Tallahassee, Florida 32399 (eServed)
Carson Zimmer, Esquire
Department of Environmental Protection
3900 Commonwealth Boulevard, Mail Station 35
Tallahassee, Florida 32399 (eServed)
Ronald Woodrow Hoenstine, Esquire Department of Environmental Protection
3900 Commonwealth Boulevard, Mail Station 35
Tallahassee, Florida 32399 (eServed)
Chadwick R. Stevens, Deputy General Counsel Department of Environmental Protection
3900 Commonwealth Boulevard, Mail Station 35
Tallahassee, Florida 32399 (eServed)
Lea Crandall, Agency Clerk
Department of Environmental Protection Douglas Building, Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000 (eServed)
Robert A. Williams, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000 (eServed)
Noah Valenstein, Secretary
Department of Environmental Protection Douglas Building
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000 (eServed)
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 13, 2018 | Agency Final Order | |
| Jul. 30, 2018 | Recommended Order | Applicant for electrical power plant site certification demonstrated entitlement to site certification pursuant to section 403.509(3), subject to proposed Conditions of Certification. |
