STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
IN RE: TAMPA ELECTRIC COMPANY BIG BEND UNIT 1 MODERNIZATION PROJECT POWER PLANT SITING APPLICATION NO. PA79-12A2
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Case No. 18-2124EPP
RECOMMENDED ORDER ON CERTIFICATION
A duly-noticed certification hearing was held on the above-captioned application on March 11 through 15, 2019, in Riverview, Florida. The certification hearing was conducted by Francine M. Ffolkes, a designated Administrative Law Judge (ALJ) from the Division of Administrative Hearings (DOAH).
The certification hearing included public testimony taken in the same location on Monday, March 11, 2019, from 6:00 p.m. to 9:00 p.m.
APPEARANCES
For Tampa Electric Company:
Lawrence N. Curtain, Esquire Kevin W. Cox, Esquire Holland & Knight, LLP
315 South Calhoun Street, Suite 600 Tallahassee, Florida 32301
For Department of Environmental Protection:
Kelley F. Corbari, Esquire Michael J. Weiss, Esquire Kirk S. White, Esquire
Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399 For Intervenor Sierra Club:
Diana A. Csank, Esquire Julie Kaplan, Esquire
Aaron Messing, Qualified Representative Matthew E. Miller, Esquire
Kathleen Riley, Qualified Representative Sierra Club
50 F Street Northwest, 8th Floor Washington, D.C. 20001
STATEMENT OF THE ISSUES
Whether Tampa Electric Company's (Tampa Electric) application for site certification of existing Big Bend Generating Station Units 1, 2, and 3 and authorization to construct and operate the Big Bend Unit 1 Modernization Project should be approved under section 403.5175, Florida Statutes.
PRELIMINARY STATEMENT
On April 18, 2019, Tampa Electric submitted a Site Certification Application (SCA) to the Department of Environmental Protection (DEP) seeking site certification of existing Big Bend Generating Station Units 1, 2, and 3 and authorization to construct and operate the Big Bend Unit 1 Modernization Project at its existing Big Bend Power Station
(Modernization Project) in Hillsborough County, Florida. The Modernization Project consists of repowering the existing coal and natural gas-fired Unit 1 with a natural gas-fired
nominal 1,090 megawatt (MW) two-on-one combined-cycle generating facility and retiring existing Unit 2.
The SCA included a copy of Tampa Electric's application to DEP for a separate air permit to construct the Modernization Project under Florida's federally approved Prevention of Significant Deterioration (PSD) preconstruction review program.
Sierra Club filed a Notice of Intent to be a Party on July 2, 2018, and Tampa Electric filed a response in opposition on July 9, 2018. The Sierra Club's Notice of Intent to be a Party did not meet the statutory requirements necessary for party status and was denied on July 18, 2018. The SCA was
determined complete by DEP on July 19, 2018. Sierra Club filed a Motion to Intervene in the proceeding on October 2, 2018, which was granted on November 2, 2018.
No other agencies filed a notice of intent to be a party and no other domestic non-profit 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. Thus, the parties to the proceeding were Tampa Electric, DEP, and Sierra Club.
On February 21, 2019, the undersigned entered an Order Limiting Issues and Striking Paragraphs. The Order ruled on Tampa Electric's motion to strike filed on February 6, 2019, and Sierra Club's response in opposition filed on February 13, 2019. The Order struck a number of paragraphs from Sierra Club's Motion to Intervene and also limited evidence and argument that could be presented on matters within the scope of the Order.
That Order is incorporated into this Recommended Order.
On March 4, 2019, Tampa Electric and DEP filed a detailed pre-hearing stipulation agreeing to numerous findings of fact and conclusions of law. On March 5, 2019, Sierra Club filed a separate unilateral pre-hearing statement.
At the start of the hearing, several outstanding motions were argued and ruled upon. Most of the motions were denied without prejudice to any appropriate objections being made throughout the proceeding. DEP and Tampa Electric Joint Exhibits 1 through 4 were admitted into evidence pursuant to the provisions of section 120.569(2)(p), Florida Statutes, regarding an applicant's prima facie evidence.
At the certification hearing, Tampa Electric presented the testimony of the following six witnesses: Paul Carpinone, a licensed professional engineer (P.E.) and director of environmental services for Tampa Electric; Shawn Copeland, the vice president of safety; William Karl, P.E., expert in air
quality issues; Darrel Packard, P.E., expert in stormwater management systems; R. James Rocha, P.E., expert in resource planning; and Kristopher Stryker, P.E., project manager for the Modernization Project. Tampa Electric Exhibits 1 through 22 and 27 through 36 were admitted into evidence.
DEP presented the testimony of Cynthia Mulkey, the program administrator for DEP's siting coordination office. DEP Exhibit 1 was admitted into evidence.
Sierra Club presented the testimony of Angelina Klanchar; Winston Mark Walters; Daniel Roberts, Jr.; Cristy Costello; and Susannah Randolph, who testified as fact witnesses for purposes of standing. Sierra Club also presented the expert testimony of Harold Wanless, Ph.D., a professor of geological sciences at the University of Miami; and Ranajit "Ron" Sahu, Ph.D., a mechanical engineer and independent consultant. Sierra Club tendered the testimony of Kevin Lucas, director of rate design at Solar Energy Industries Association; Devi Glick, associate with Synapse Energy Economics; and Bruce Biewald, chief executive officer at Synapse Energy Economics. Tampa Electric and DEP objected to Mr. Lucas, Ms. Glick, and Mr. Biewald's testimony, who were excluded from testifying by the undersigned since the oral and written description of their expert testimony violated the scope of the certification hearing as limited by the undersigned's February 21, 2019, Order Limiting Issues and
Striking Paragraphs. Sierra Club proffered their resumes and expert reports, which travel with this record as proffered exhibits SC-85, SC-86, SC-116, SC-117, SC-134, SC-135,
and SC-137. Sierra Club also entered the deposition of Tom Fessler, the budget director of Hillsborough County as a result of his absence from the hearing. The deposition was admitted into evidence as Sierra Club Exhibit SC-209.
Sierra Club Exhibits SC-001 through SC-007, SC-024, SC-025, SC-027, SC-028, SC-030 through SC-032, SC-040 through SC-044,
SC-046, SC-047, SC-049, SC-050, SC-053, SC-054, SC-056, SC-058, SC-059, SC-063, SC-065 through SC-067, SC-072, SC-074, SC-076, SC-082, SC-084, SC-138 through SC-141, SC-143 through SC-148, SC-150, SC-152 through SC-162, SC-173 through SC-176, SC-179,
SC-203, and SC-208 were admitted into evidence. Sierra Club exhibits, SC-34.1 and a document containing Tampa Electric's answer and supplemental answer to Interrogatory 13, were not admitted into evidence but were proffered by Sierra Club.
Public testimony was taken the evening of Monday, March 11, 2019. Members of the public were sworn, testified orally, and submitted written comments on the Modernization Project.
Comment letters were also sent to the undersigned by the deadline of 5:00 p.m. on Friday, March 15, 2019. Those comment letters have been made a part of the record of this proceeding.
The five-volume Transcript of the certification hearing and the one-volume Transcript of the public hearing were filed on April 12, 2019, and the parties were allowed to submit proposed recommended orders of up to 75 pages by April 29, 2019. All the parties timely filed their proposed recommended orders, which were carefully considered in the preparation of this Recommended Order on Certification.
References to the Florida Statutes are to the 2018 version, unless otherwise indicated.
FINDINGS OF FACT
Based on the evidence adduced at the hearing within the scope of this proceeding, the following findings of fact are made:
The Parties
Tampa Electric is the applicant for site certification of Units 1, 2, and 3, and for approval of the Modernization Project at its Big Bend Power Station (Big Bend). Tampa Electric provides electric service to more than 734,000 residential, commercial, industrial, and governmental customers in west-central Florida. Its service territory includes all of Hillsborough County and portions of Polk, Pasco, and Pinellas counties. Its existing electric generating units are located at five facilities in the service territory, and consist of diverse generating technologies, including coal and natural gas-fired
steam units, natural gas-fired combined-cycle and combustion turbine units, an integrated coal-gasification combined-cycle unit, and renewable solar energy facilities.
DEP is the state agency charged with administering the Electrical Power Plant Siting Act (PPSA) contained in part II of chapter 403. DEP's Siting Coordination Office (Siting Office) coordinates the site certification process, receives comments from affected agencies, and prepares the Project Analysis Report (PAR) that contains DEP's recommendation to approve or deny the requested certification and the proposed Conditions of Certification.
Intervenor, Sierra Club, is a national non-profit environmental advocacy organization. A key component of Sierra Club's mission is to advocate for the use of clean energy sources.
Standing
Sierra Club's members are concerned about continued reliance on fossil fuels and related climate change impacts, including sea level rise, increased storm surge, severe weather events, and coastal flooding.
In Florida, Sierra Club has more than 30,000 members, including more than 2,000 members who live, work, and recreate in the Tampa Bay area and some near Big Bend in Hillsborough County. Sierra Club promotes outdoor activities, and many of
its Florida members organize and participate in outdoor recreation for people of all ages.
Sierra Club members who testified at the certification hearing take their own kids and others picnicking, kayaking, canoeing, and on service projects throughout South Florida and the Tampa Bay area. Sierra Club members, who testified at the certification hearing live in the vicinity of Big Bend, are Tampa Electric customers and enjoy outdoor recreation, such as boating in Tampa Bay and visiting the beaches.
Sierra Club members who testified at the certification hearing have been injured by and suffered the effects of climate change impacts, including sea level rise, increased storm surge, severe weather events, and coastal flooding.
The substantial environmental interests of Sierra Club's Florida members in the Tampa Bay area include the potential adverse effects of climate change to which Tampa Electric's greenhouse gas emissions would allegedly contribute. Thus, a substantial number of Sierra Club's Florida members' substantial interests could reasonably be affected by climate change impacts, including sea level rise, increased storm surge, severe weather events, and coastal flooding in the Tampa Bay area.
Climate Change
Sierra Club's expert, Harold Wanless, Ph.D., provided testimony on various aspects of the general topic of climate change. Dr. Wanless testified that climate change is a complex, worldwide issue, with contributions from many different sources. The primary is carbon dioxide emissions resulting primarily from human activities, including the combustion of fossil fuels.
Dr. Wanless testified about his predictions regarding global sea level rise, storm surge, and hurricane activities in the coming years. He opined that all of this should be taken into account in the design and evaluation of a project such as the Modernization Project, but concurred that there are no current regulatory standards, other than the Hillsborough County Code of Ordinances discussed below, which address these issues.
Dr. Wanless conceded that his predictions were more extreme based on a comparison with government data, to which he also cited. He advocated the immediate cessation of burning fossil fuels, and that the solution must happen "one car, one power plant at a time." Dr. Wanless also acknowledged that the timing and landfall of individual storm events, such as hurricanes, cannot be specifically attributed to human-induced global warming.
From a regulatory standpoint, the United States Environmental Protection Agency's (EPA) guidance for permitting for greenhouse gases states:
As a general matter, GHG emissions contribute to global warming and other climate changes that result in impacts in 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.
Tampa Electric Ex. 22, p. 000296, ¶ 2 (quoting PSD and Title V Permitting Guidance for Greenhouse Gases, March 2011).
Big Bend Power Station Site
The Big Bend Power Station Site (the Site) is an existing electrical generating facility located on approximately 1,722 acres of property owned by Tampa Electric. It is approximately ten miles south of Tampa in the unincorporated southwestern portion of Hillsborough County, also known as
Apollo Beach. Its address is 13031 Wyandotte Road, Gibsonton, Florida.
Approximately 1,096 acres of the Site is currently certified under the PPSA. The SCA sought certification of an additional 92 acres, for a total of 1,188 acres. The Site has been used for power generation since 1970. The main fossil fuel generating facilities are in the northwestern portion of the Site located on land created by spoil materials from dredging the barge access channel to the Site in the late 1960s.
The Site contains four coal and natural gas-fired steam electric generating units, a combustion turbine generator peaking unit, and associated facilities. The Site contains the approximately 20 MW Big Bend I Solar Project that was placed into service in 2017 and an area for the approximately 33 MW Solar II Solar Project, which will be constructed in the future.
Each of the four coal and natural gas fired steam electric generating units uses what is known as a Rankine process to generate electricity. That process consists of taking high-pressure water and converting it in a boiler to high-pressure, high-temperature steam. The steam is then utilized in a steam turbine to convert the energy in the steam into mechanical energy. The mechanical energy provided by the steam is then used by the electrical generator associated with the steam turbine to create electrical energy. The steam
leaving the steam turbine is condensed back to water by the condenser and pumped back into the boiler to complete the process.
Onsite facilities associated with electric generation include: boiler and steam turbine generator buildings; air pollution control equipment; three exhaust stacks; water and wastewater treatment facilities; cooling water intake and discharge structures and canals; coal delivery and storage facilities; gypsum storage areas; coal combustion residuals beneficial use storage and handling facilities; electrical enclosures; transmission lines; substation; natural gas pipeline; and water storage and stormwater management facilities.
The Site also contains a Manatee Viewing Center and the Florida Conservation and Technology Center, which is a partnership between Tampa Electric, the Florida Aquarium, and the Florida Fish and Wildlife Conservation Commission (FWCC). Other facilities located on the Site include the STI Ash Beneficiation facility and the Tampa Bay Water desalination plant.
Portions of the Site were originally certified pursuant to the PPSA in 1981 for the construction and operation of Unit 4. That certification included associated facilities, which are shared with Units 1, 2, and 3, such as coal delivery
and storage areas. Units 1, 2, and 3 were not subject to the PPSA because those units were constructed and operational in the 1970s prior to the effective date of the PPSA.
In addition to the Modernization Project, Tampa Electric sought certification of the associated facilities for Units 1, 2, and 3, and an approximately 92-acre adjacent parcel, which would increase the certified site area to approximately 1,188 acres.
Proposed Modernization Project
The Modernization Project would retire Unit 2 and repower Unit 1 as a clean natural gas-fired two-on-one combined- cycle generating facility on an approximately nine-acre portion of the Site. The Unit 1 boiler would be repowered with a new natural gas-fired combined-cycle unit that would utilize
Unit 1's existing steam turbine generator. Upon completion, the repowered Unit 1 would have a nominal net generating capacity
of 1,090 MW.
Tampa Electric selected two General Electric (GE) combustion turbine generators, each with a nominal generating capacity of 370 MW, for the new combined-cycle unit. Hot exhaust gases would be used to generate steam in two heat recovery steam generators, which would be routed to the steam turbine generator. The combustion turbine generators would be capable of operating in simple-cycle mode.
The Modernization Project would include construction of new onsite associated facilities, such as electrical equipment enclosures, a gas metering station, water pumps, fin- fan coolers, transformers, an emergency diesel generator, fire protection systems, hydrogen and carbon dioxide storage tanks, an ammonia skid, and stormwater management systems.
Existing Unit 1's steam turbine generator, the boiler/turbine structure, once-through cooling system, condenser, intake/discharge structures, the generator step-up transformer, the auxiliary tower, and various electrical and control systems would be refurbished and used for the repowered Unit 1.
Other existing infrastructure and systems such as the demineralized water system, potable water and sanitary wastewater onsite service interconnections with Hillsborough County public services, and existing access roads, would also be used.
An administration office building would be located on an approximately 1.4-acre area north of the intake canal and southeast of the plant facilities. Temporary use of several areas for construction laydown and parking, barge delivery of larger equipment, and workspace for the gas pipeline horizontal directional drilling (HDD) activities will cover approximately
44 acres.
The existing 230 kilovolts (kV) transmission lines to the onsite substation would be upgraded. A new 230 kV transmission line interconnection would be constructed from the combined-cycle facilities to the existing substation.
An elevated pipe bridge across the intake canal would be constructed to carry steam from the heat recovery steam generators to the repowered Unit 1 steam turbine generator. The pipe bridge will also be used to support miscellaneous pipes, cable trays, and a personnel access walkway.
A new onsite natural gas pipeline interconnection would run east from the combined-cycle plant to a metering station tie-in along the north side of an existing access road located south of the barge canal. From the metering station, the pipeline would continue east to existing gas supply pipeline interconnection, located east of Wyandotte Road within the onsite railroad spur loop.
The Unit 1 once-through-cooling water (OTCW) aging circulating water pumps would be replaced in-kind. The cooling water intake structure (CWIS) would be upgraded to include modified traveling water screens and a fish-return system consistent with applicable federal regulations. Fish-holding tanks for the repowered Unit 1 fish return system would be constructed in the deconstructed Unit 2 CWIS area. There would be no changes to the OTCW system serving Units 3 and 4.
Construction activities for the Modernization Project would begin in July 2019, with commercial operation of the facility in simple-cycle mode in June 2021. Commercial operation of the combined-cycle plant would begin in
January 2023. Unit 2 would continue to operate firing natural gas from the date of certification until 2021 when it would be retired.
Environmental and Other Impacts from Existing Site Utilization
Historical aerial photographs of southwestern Hillsborough County showed largely undeveloped lands with agricultural activity. Current land uses include transportation and utilities, agricultural activities along with upland non- forested areas and some wetland areas. The existing Big Bend generating facilities and associated facilities were primarily located on artificial fill dredged from Tampa Bay. These areas were heavily impacted by industrial activities associated with power generation.
Other areas of the Site, located south of the existing generating facilities, were less impacted by industrial activities. Those industrial activities began in the 1970s and continue to the present time. The developed nature of the Site resulted in low vegetative diversity, limited wetlands, and limited wildlife habitat.
There have been significant air emissions from existing Units 1, 2, 3, and 4 since each began operating. As explained below, the units have been capable of burning natural gas or coal since 2015, and Units 1, 2, and 3 have used only natural gas since mid-2017. Prior to mid-2017, those units' coal emissions were significantly higher than the emissions associated with burning natural gas.
The air emissions from Big Bend are regulated by state and federally delegated air permitting programs. Air quality in the area is affected by emissions not only from Big Bend, but from a number of surrounding sources. For example, there are approximately 27 major sources of pollutants in Hillsborough County, including hospitals, airports, transportation, power production, and manufacturing. Ambient air quality standards were established for the protection of health and welfare- related concerns and those standards are currently being met in the area of the Site based on review of recent monitoring information.
The SCA included a copy of Tampa Electric's application to DEP for a separate air permit to construct the Modernization Project under Florida's federally approved PSD preconstruction review program. DEP published a Notice of Intent to Issue Air Construction Permit No. 0570039-119-AC (Air Permit) for the Modernization Project on June 16, 2018. Sierra
Club submitted comments on June 15, 2018, regarding the Air Permit, which were received and considered by DEP in the final Air Permit. However, no challenge was filed to the Air Permit, which was subsequently issued in final form on July 16, 2018.
Big Bend has regulated wastewater discharges.
Units 1, 2, 3, and 4 are steam electric generators that use water for cooling purposes. Cooling water is withdrawn from the man-made intake canal through CWIS 1 for Units 1 and 2 and
CWIS 2 for Units 3 and 4. After being pumped through the condensers, the cooling water is discharged through outfalls into the man-made discharge canal on the south side of Big Bend. This activity is regulated in accordance with the requirements of National Pollutant Discharge Elimination System (NPDES) Permit FL000817. This NPDES permit is administered by DEP under a federally approved program.
The cooling water discharge is the largest volume of surface water discharge from Big Bend. Preexisting stresses to aquatic systems are associated with the electrical generating operations at Big Bend, particularly effects from entrainment and impingement and the thermal effects of the cooling water discharge. The stresses have diminished with the use of fine mesh screens.
The cooling water is heated when discharged as a result of cooling the condensers. When the cooling water is
drawn from the intake canal by pumps and routed into the units, it contains organisms and fish that become trapped in the water and drawn through the intake structures and through the condensers. This causes mortality from entrainment and exposure to heat or impingement on the screens that are associated with the CWIS facilities. The CWIS for Units 1 and 2 has coarse screens that catch large fish and crabs. The CWIS for Units 3 and 4 has coarse and fine mesh screens that trap much smaller organisms that can be returned, alive, to the bay. These aspects are regulated by the federal Clean Water Act and the NPDES permit.
Ecological surveys and studies of impingement and entrainment at Big Bend began in 1970 prior to the start-up of Big Bend Unit 1 and have continued through 2013. The thermal limitations were determined to be protective of indigenous shellfish, fish, and wildlife and were permitted to continue. The fine mesh screen system was determined to constitute best technology for reducing entrainment for Units 3 and 4, which satisfied certain federal Clean Water Act requirements. A renewal NPDES permit application is pending and additional review of these aspects will occur.
Solid waste materials are produced at Big Bend as a result of the operations. The combustion of coal produces a number of byproducts, including gypsum solids from the flue gas
desulfurization equipment and fly ash from the electrostatic precipitators, both of which are air pollution control devices for the facilities. Bottom ash and slag are also produced.
These materials are left over after the combustion process and are the noncombustible materials. Economizer ash is also produced as a result of the process.
The fly ash byproduct is conveyed to the Separation Technologies, Inc., facility located on an area leased from Tampa Electric at the Big Bend site. The product is separated and reused by cement companies. Bottom ash is stored in surface impoundments and conveyed hydraulically for beneficial reuse as a raw material for other products. Economizer ash is stored in a surface impoundment, and the slag material is stored for future recycling in bins. Approximately 95 percent of the coal combustion residuals are recycled for beneficial use. Materials that are not useable are sent for disposal to approved landfills.
Management of coal combustion residuals, including monitoring and inspection requirements are contained in a Coal Combustion Residuals Management Manual. The manual also contains an emergency response plan, which includes communication protocols for specific local, state, and public notifications. The locations of the facilities for the storage of bottom ash, fly ash, and recycling areas are shown on an
aerial in the manual, as is the east gypsum storage area. The active coal combustion residual materials storage areas are equipped with liners to prevent groundwater discharges. The facilities are subject to the federal coal combustion residuals rule. The south gypsum storage area and the economizer ash impoundments are in the process of being closed.
The Coal Combustion Residuals Management Manual was developed as a component of an April 10, 2001, consent order between Tampa Electric and DEP. The consent order implemented projects that resulted in all the coal combustion residuals storage units being lined and fully contained to prevent contact of the coal combustion residuals, process water, and stormwater runoff with the environment. Previously, those areas were identified as potential release points to groundwater. Groundwater monitoring did not show any exceedances. Environmental and Other Benefits of the Modernization Project
Technology and Emissions
The Modernization Project includes repowering of Unit 1 into a highly efficient, state of the art, natural gas-
fired two-on-one combined-cycle generating power plant using the existing steam turbine generator for Unit 1 along with other equipment. Repowered Unit 1, a combined-cycle generating facility, would consist of two combustion turbine generators,
two heat recovery steam generators, and the existing steam turbine electrical generator from Unit 1.
Tampa Electric selected the advanced, large-frame GE Model 7HA.02 combustion turbine generator for the Modernization Project. In combined-cycle mode, these large combustion turbine generators are the most efficient electric generating technology currently available for utility scale power plants. The combined-cycle plants can achieve an efficiency of more than
60 percent, compared to combustion turbine generators alone in simple cycle mode at 35 to 38 percent and coal fired steam electric generating plants at 32 to 42 percent.
When a combustion turbine generator is operated alone in simple-cycle mode, hot exhaust gases from the combustion turbine generator are released to the atmosphere. In combined- cycle configuration, the hot exhaust gases from the combustion turbine generator are used to produce steam in the heat recovery steam generator and the steam is used to drive the steam turbine electrical generator to generate approximately 50 percent more electricity without using additional fuel, resulting in the efficiencies.
Sierra Club's expert witness, Ranajit Sahu, Ph.D., testified that the use of the existing steam turbine generator would result in a difference in generation compared to the use of a new steam turbine generator. Dr. Sahu testified that the
increase in performance would be 13 MW. Tampa Electric's expert witness, Kristopher Stryker, testified that Dr. Sahu's opinion was not based on the latest study, which showed that the performance differential between the new steam turbine generator and the refurbished steam turbine generator was 5 MW, which is less than one-half of one percent of the total output of the facility. Mr. Stryker further testified that since extensive modifications would be required to the foundation to install a new steam turbine generator, a 5 MW increase in performance did not justify those modifications.
Bypass stacks would be located between the combustion turbine generators and the heat recovery steam generators, which would allow the initial simple-cycle operation of the combustion turbine generators and also allow simple cycle operation in the future in the event that there is a reason to do so. The refurbished steam turbine generator would only be used when the facility is operating in combined-cycle mode.
The capacity of the combined-cycle unit is a nominal 1090 MW which would be the output at an average ambient temperature of 70 degrees Fahrenheit. Each combustion turbine generator has a nominal capacity of 370 MW, and the steam turbine generator has a nominal capacity of 350 MW.
The combined-cycle facility would be designed with technologies to control air emissions. The two combustion
turbine generators would be equipped with dry low-nitrogen oxide combustors to control nitrogen oxide air emissions. The heat recovery steam generators would be equipped with selective catalytic reduction systems to further reduce nitrogen oxide emissions. Emissions of other regulated air pollutants, including sulfur dioxide, volatile organic compounds, and particulate matter, would be controlled through the use of low sulfur, clean burning natural gas as the only fuel fired in the combustion turbine generators, along with advanced combustion equipment and operational practices.
The Modernization Project would minimize greenhouse gas emissions through the repowering of Unit 1 with clean burning natural gas, highly efficient combined-cycle electric generating technology, the retirement of Unit 2, and further reductions by dispatching other existing units in the system less often.
The Modernization Project was evaluated during the Air Permit process. It was determined that the PSD program was not applicable because the Modernization Project would not result in a net increase in emissions from the Big Bend facility. Based upon the evaluation process for systemwide emissions that was conducted in accordance with the applicable requirements, it was determined that the addition of the Modernization Project would result in a substantial net reduction in emissions in most
cases, including a net decrease in greenhouse gas emissions of over two million tons per year.
The Modernization Project is projected to result in significant reductions in emissions compared to the continued operation of Units 1 and 2 firing either coal or natural gas as a primary energy source. R. James Rocha, Tampa Electric's expert in resource planning, prepared projections using a Planning and Risk simulation model showing system-wide yearly energy produced or megawatt-hours (MWh) and the resultant yearly systemwide British Thermal Units (BTUs) or fuel use. First, for the case in which the Modernization Project is not constructed and Units 1 and 2 continue to operate into the future; and second, for the case in which the Modernization Project is constructed and Units 1 and 2 cease operations in 2021. The model is essentially an hourly dispatch simulation of the units in the Tampa Electric generating system taking into account a number of operational, fuel, probabilistic outage and planned maintenance outage scenarios, and other variables to develop a reliable estimate of the future operations of the system to meet the hourly needs of customers. Using a complex model, such as that used by Mr. Rocha, is a standard practice in the utility industry for forecasting the hourly dispatch of the system.
Outputs from the modeling and emission limits in existing permits, standard emission factors for natural gas, and
heat input numbers, were then provided to William Karl, an expert in air quality analyses. Mr. Karl developed calculations of projected emissions reflecting continued operation of Units 1 and 2 burning coal and natural gas, or coal only into the future, compared to projected emissions from the operation of the Modernization Project into the future.
In Tampa Electric Exhibit 27, Mr. Karl showed the current carbon dioxide emission rates for Units 1 and 2 operating with coal as a primary energy source and operating with natural gas only, compared to the expected performance of the Modernization Project. The emission rates were expressed in pounds per MWh of energy produced. The Modernization Project carbon dioxide emission rate was projected to be 737 pounds per MWh of energy produced. Units 1 and 2 operating on natural gas only, each had a carbon dioxide emission rate of 1,250 pounds per MWh. Units 1 and 2 operating primarily on coal each had a carbon dioxide emission rate of 2,180 pounds per MWh. Both comparisons demonstrated substantial reductions in the carbon dioxide emission rate of the Modernization Project compared to Units 1 and 2.
With Tampa Electric Exhibit 28, Mr. Karl showed the projected Tampa Electric systemwide reduction in greenhouse gas and criteria pollutant emissions if the Modernization Project was constructed compared to Units 1 and 2 continuing to operate
primarily on coal during the period of 2017 through 2046. This resulted in a projected reduction in greenhouse gas emissions of 50,500,000 tons and a reduction in emissions of criteria pollutants of 213,000,000 pounds during the period of 2017 through 2046.
With Tampa Electric Exhibit 29, Mr. Karl showed the projected Tampa Electric systemwide reduction in greenhouse gas emissions and all criteria pollutants with the Modernization Project constructed compared to operating Units 1 and 2 on natural gas only. This resulted in projected reductions in greenhouse gas emissions of 18,500,000 tons and projected reductions of all criteria pollutants of 21,000,000 pounds over the period of 2017 through 2046.
Sierra Club disputed that reduction credit should be given for the comparison of projected emissions from the Modernization Project to projected emissions from Units 1 and 2 continuing to operate using coal as a primary energy source. Sierra Club argued that Tampa Electric's decision to stop using coal in Units 1 and 2 was made prior to filing the SCA, and existing permits were modified to reflect that fact. Therefore, no benefit should be claimed for reduced air emissions resulting from a comparison of emissions of Units 1 and 2 burning coal projected into the future.
However, testimony from Paul Carpinone confirmed that if the Modernization Project is not constructed, Tampa Electric intends to continue operating Units 1 and 2, and a return to coal use remains an option. Mr. Rocha explained that based on pricing, it could make sense for the customers to return to coal in Units 1 and 2 if the Modernization Project is not approved. Mr. Carpinone also testified that permit modifications would be required to return the units to coal use.
If it is assumed that coal would not be used at all in the future, the construction of the Modernization Project would result in substantial decreases in air emissions. These are projected as decreases of 18,500,000 tons of greenhouse gases and 21,000,000 pounds in all other criteria pollutants as compared to continuing to operate Units 1 and 2 on natural gas only.
Although the evidence may support downward adjustment to the projected reductions in emissions resulting from the comparison of the Modernization Project to continuing Units 1 and 2 on coal based on the time it could take to obtain the necessary permit modifications to return to coal, these projected reductions should still be considered as environmental benefits of the Modernization Project.
Therefore, the preponderance of the evidence demonstrated that the Modernization Project would operate at a
substantially lower emission rate for greenhouse gases than the emission rates for Units 1 and 2 on natural gas or on coal.
Water Use
The most substantial water use for the Modernization Project would be the OTCW supply from Hillsborough Bay. The existing station is currently authorized to withdraw a combined 1,440 million gallons per day (MGD) for cooling purposes. Primarily as a result of the retirement of Unit 2 in 2021 eliminating Unit 2's cooling water requirements, the Modernization Project would reduce cooling water withdrawals by 25 percent to a maximum of 1,080 MGD.
Environmental benefits associated with the reduced cooling water withdrawals would include reductions in impingement and entrainment associated with reduced intake flows and velocity. Also, reduced fish mortality because of new fish friendly modified traveling screens and fish return system that would be installed at CWIS 1, where there previously were no such facilities. The fish return system would allow aquatic organisms washed from the modified traveling screens to be discharged back into Hillsborough Bay at a location that would minimize the potential for re-impingement.
Domestic and sanitary wastewater service for Big Bend with the Modernization Project would be provided by interconnection with the Hillsborough County wastewater system
similar to existing operations. Potable water for the facility would also be provided by Hillsborough County, but the volume of backup service water use would be significantly reduced.
There would be a number of changes to the service water uses. These would include elimination of the auxiliary cooling tower associated with Unit 2, reduction of flue gas desulfurization system makeup water from county effluent, use of county effluent for wash down associated with the combined-cycle unit, and rerouting and reuse of several other relatively minor water streams.
Wastes
Nonhazardous and potentially hazardous waste generated during operation of the Modernization Project would be managed in accordance with applicable federal, state, and local regulations. The use of natural gas, which does not produce solid wastes, would further reduce the need for onsite solid waste management units for disposal areas, and any waste generated would be disposed of at an offsite permitted solid waste or hazardous waste management facility.
Eliminating coal use at Units 1 and 2 along with the Modernization Project, there would be a decrease in the use of coal at the Site. This would lead to production of less coal combustion residuals and reduce the need for storage and handling of those residuals.
Stormwater Management
The Modernization Project would include onsite stormwater management. The stormwater management system would serve areas that include the combined-cycle and combustion turbine generator areas, onsite construction laydown and parking areas, barge unloading and laydown area, new office building area, and remote construction laydown area.
Tampa Electric's stormwater system design expert, Darrel Packard, was the lead civil engineer for the Modernization Project. Mr. Packard testified about the purpose of the stormwater management system and its design and benefits. The stormwater management system would convey runoff from developed areas in a controlled manner and attenuate the stormwater peak flow such that the discharge is not greater than the current discharge conditions. The system would provide water quality benefits through retention and Best Management Practices to minimize and control the discharge of nitrogen and phosphorus.
The stormwater system would also address the potential for flooding by the use of appropriately sized pipes and ditches to convey runoff from developed areas and discharge runoff into stormwater ponds that meet the regulatory requirements. Offsite flooding would also be prevented by attenuating the peak discharges that might be increased due to development.
Regulatory requirements applicable to the stormwater system include required sediment basins, Best Management Practices such as silt fences, the requirement to control a one-inch runoff from the developed areas, provision of a littoral zone of approximately 35 percent of the pond surface area, and the retention of a one-inch volume of runoff for at least 120 hours prior to discharge. Half of that volume would be contained over 60 hours after the rainfall event.
In addition, the design would be sufficient to control the 25-year stormwater runoff event, which is roughly 8.2 inches over 24 hours.
The Modernization Project would include installation of a floodwall surrounding repowered Unit 1 to protect it from flooding. Mr. Packard's testimony provided details about the design and dimensions of the floodwall.
Tampa Electric Exhibit 12 showed the details of the elevation of the floodwall. Beginning from a published datum referred to as NAVD88 or North American Vertical Datum of 1988 reflected at 0.00 elevation on the exhibit, the existing
grade was shown at elevation 8.3 feet above NAVD88. The top of the floodwall was depicted at elevation 18.029 feet above NAVD88, meaning that the total elevation of the flood protection would be 18.029 feet above NAVD88.
The design basis for the floodwall height took into account the elevation of the 100-year flood for facilities that are in a defined federal Emergency Management Agency (FEMA) AE Zone. Based on current FEMA flood maps, the Modernization Project is in the AE Zone, and the 100-year flood elevation is
12 feet above NAVD88.
Another 2.5 feet were added to the 12-foot, 100-year flood elevation. The Hillsborough County Code of Ordinances specified the use of the American Society of Civil Engineers Standard for Flood Resistant Design and Construction (ASCE Standard) 24-05. The Modernization Project would fall into Category 3 for the ASCE Standard 24-05, adding two feet. The applicable Hillsborough County Ordinance required an additional six inches, resulting in a total minimum flood protection height of 14.5 feet.
The design of the floodwall was 18.029 feet above NAVD88 and the amount by which it exceeded the 14.5-foot regulatory requirement provides a margin to account for uncertainties such as sea level rise.
The FEMA flood maps for the area are under revision and have not yet been finalized. Under section 403.5185, a proposed revised map not yet in effect is not applicable to this SCA. However, a comparison of the currently effective and the
preliminary flood maps showed that the flood zone for the Modernization Project would not change.
Sierra Club's expert, Dr. Sahu, opined that since the Modernization Project concerns electric power generation facilities, there should be heightened scrutiny and flood protection requirements. However, Dr. Sahu's testimony did not dispute the Modernization Project's compliance with the applicable regulatory requirements. The Hillsborough County Code of Ordinances defines "critical facilities" as those for which even a slight chance of flooding might be too great. That definition of "critical facilities" does not include power plants.
The design details for the floodwall followed ASCE Standard 7-10 for the minimum design load requirements for buildings and other structures. The floodwall was designed considering two design cases. When the cases were considered, essentially three checks were made for wall stability, which included values obtained from the geotechnical report plus calculations performed by the geotechnical engineers.
Dr. Sahu questioned the design basis of the floodwall in terms of its ability to withstand the forces that the wall was designed to withstand. His criticism was mainly based on a lack of ability to review final detailed design plans. DEP's witness, Cynthia Mulkey, explained in her testimony that final
design plans are not required for every aspect of the project. Ms. Mulkey testified that it was not unusual that final detailed design plans were not available at the time the application was being processed. The applicable nonprocedural requirement pertaining to this issue was contained in the Hillsborough County Code of Ordinances, Part A, SCC 8-1-Hillsborough County Construction Code, and the FEMA flood map. Dr. Sahu's testimony did not dispute the Modernization Project's compliance with these regulatory requirements.
Socioeconomic Benefits
Construction and operation of the Modernization Project is expected to provide significant benefits to the economy of Hillsborough County and the State of Florida through increased employment and revenues during construction and operation of the project. Direct benefits from construction will include employment and payroll for an average monthly employment of approximately 250 workers, as well as the purchase of equipment and materials. Approximately $300 million of construction expenditures for materials and services would occur during the construction period from 2019 through approximately mid-2023. Approximately $210 million would be spent in the local area.
Once the repowering project begins operations, tax revenues and operational and maintenance expenditures would be
in the range of $18 million per year. The majority of construction wages would be spent within Hillsborough County. Anticipated annual property tax revenue and sales tax revenue would be $8.4 million and $1.26 million respectively. The peak construction employment would be approximately 500 workers, and this would occur in the most labor intensive construction period in 2021.
Land Use and Zoning
The applicable Hillsborough County future land use (FLU) map designation for the Modernization Project and barge offloading areas is Heavy Industrial. Electrical generation plants and expansions of electrical power plants are among the allowed uses within this FLU designation. The remote construction laydown area is designated Community Mixed Use-12 which allows for light industrial multipurpose use. Areas associated with the Modernization Project are located within either Manufacturing or Planned Development-Industrial zoning districts.
On June 1, 2018, Hillsborough County found the additional 92 acres, as well as the proposed activities, consistent with its existing land use plans and zoning ordinances.
Impacts from Construction of the Modernization Project
Environmental Impacts
The site certification process includes only state, regional, and local requirements. Federal permits issued by the state under federally approved or delegated permit programs that were sought, or modified, in association with the Modernization Project are processed separately from the SCA. These include the Air Permit, the NPDES Permit, and the United States Army Corps of Engineers (USACE) Section 404 application.
Tampa Electric would apply for applicable federally delegated stormwater discharge permit(s), including requirements for a comprehensive Stormwater Pollution Prevention Plan, prior to construction. During construction, stormwater would be managed to meet the requirements of those federal permits. As previously found, the stormwater management system for the Modernization Project would be designed to treat the first inch of runoff from the 25-year, 24-hour storm event and would meet federal, state, regional, and local requirements.
During operation, contact stormwater runoff from the power block and equipment areas would be collected and treated through a new oil/water separator and routed to a new contact water transfer sump prior to discharge to the existing coal field pond. Noncontact stormwater runoff from the facility area
would be collected and routed to a stormwater detention pond for treatment prior to discharge to the barge canal.
The Modernization Project would create a new internal outfall for the reverse osmosis (RO) concentrate, and the OTCW discharge from Unit 2 would cease. The NPDES discharge compliance point would include the combined cooling water discharge from Units 1, 3, and 4, and the treated effluent from the flue gas desulfurization treatment plant, as well as the RO concentrate to Hillsborough Bay, a Class III marine water, via the onsite discharge canal.
Low-volume industrial wastewater generated by the Site primarily includes floor and equipment drains, water treatment equipment waste, and service cooling tower and boiler blowdown. These waste streams are routed to a system of lined ponds, a reclaimed water storage pond, and bottom ash ponds for containment or reuse within the facility, and the same practice would continue with the Modernization Project.
Groundwater monitoring around the water storage ponds is required under the facility's industrial wastewater permit No. FLA017047 and would continue to be a requirement of the Site License.
The Modernization Project would include construction of stormwater detention ponds during the beginning stages of the Modernization Project development activities to provide
stormwater storage and treatment for onsite runoff during construction. Because of the disturbed nature of the Site, preparation would require minimal clearing and grading.
Erosion, sedimentation, and runoff control measures, both pre- and post-construction, will meet applicable nonprocedural requirements of part IV of chapter 373, Florida Statutes, Florida Administrative Code Chapter 62-330, and applicable Hillsborough County land development regulations.
Best Management Practices (BMPs) and a sediment control plan would also be implemented during site construction. Monitoring of construction runoff and the operation and maintenance of BMPs for erosion and sediment control would be undertaken as required by applicable construction permits, such as the NPDES Generic Permit for Stormwater Discharge from Large and Small Construction Activities contained in Florida Administrative Code Chapter 62-621.
Under current operation, the Site does not withdraw groundwater for plant processes or potable water uses nor will the Modernization Project use groundwater as a source. The Site relies on treated effluent from Hillsborough County and recycled water for its process needs. There would be no consumptive use nor anticipated impact to groundwater supply due to the Modernization Project.
Site preparation and facility construction activities may have potential short-term effects on groundwater in the shallow surficial aquifer in the immediate area of the combined- cycle facilities from temporary dewatering activities. Because of the temporary and localized nature of potential dewatering activities and the direction of the flow from east to west of the Floridan aquifer in the area, construction of the Modernization Project is not anticipated to have significant adverse impacts to on or offsite groundwater resources.
Construction and operation of the Modernization Project would impact approximately 55 acres of the approximately 1,188-acre certified Site. The Site has been utilized for industrial purposes for the past 50 years. Therefore, most of the land was previously disturbed and not prime habitat for wildlife species. Both uplands and wetlands are located onsite but are considered low-quality and contain a mixture of nuisance exotic and native species.
Construction of the Modernization Project would not result in permanent impacts to wetlands. In fact, over
99 percent of the wetlands and surface waters onsite would remain intact. An approximately 0.18-acre portion of a low- quality wetland is proposed to be temporarily cleared for workspace during the construction of the gas pipeline
interconnection. Once construction is complete, this area would be allowed to revegetate naturally.
Other potential impacts proposed include: an additional 0.02 acres of permanent impact to surface waters/water bodies for the construction of a new pipe bridge across the existing intake canal; temporary impacts in the barge canal due to the spud columns; and approximately 0.01 acres of a man-made, roadside ditch would be filled for construction of a new culverted driveway for access to the remote construction laydown and/or parking area.
The wetland proposed for clearing is considered a lower quality wetland, and impacts would be offset by the purchase of mitigation bank credits or onsite mitigation, if necessary. Secondary impacts to preserved wetland communities would be minimized by maintaining an average 25-foot and minimum 15-foot buffer surrounding wetlands where no construction activities would occur.
Impacts from the in-water work during construction of the intake canal pipe bridge would be mitigated with the use of turbidity barriers.
Existing Units 3 and 4 and the repowered Unit 1 would continue to discharge through separate outfalls into the Site's 4,500-foot discharge canal that leads to Hillsborough Bay through an inlet at the north end of Apollo Beach. The south
side of the discharge canal is bordered by a sheet pile seawall that serves as a thermal barrier to the adjacent shallow waters in North Apollo Bay, minimizing thermal impacts to surface waters in this area. Adverse changes in hydrologic or water quality conditions in the existing intake and discharge canals or Hillsborough Bay are not expected to result from operation of the Modernization Project.
The existing Site's OTCW discharge provides a primary thermal refuge for the local population of West Indian manatees, and seagrass along the southern boundary of the discharge canal provides food for the manatees that winter in the canal. The area outside the discharge canal and the canal itself are designated as manatee protection areas under both state and federal laws. The Site's NPDES permit includes a manatee protection plan that contains requirements for timely communication with manatee recovery program personnel and for production of adequate warm water during the winter months. Because of these required measures, projected reductions in the effluent temperature and total thermal loading in the discharge canal from operation of repowered Unit 1 and retirement of
Unit 2 are unlikely to adversely impact manatees.
Noise
Noise impacts resulting from construction activities are expected to be minimal and mitigated by the distance between the construction area of the power block and the site boundaries, and the fact that the construction activities will take place mainly on an existing power plant site that is currently operational. Average noise levels during the
loudest construction activities are projected to be between 62 and 66 A-weighted decibels (dBA) at the northern property boundary, and noise levels from construction activities will be lower at all other property boundaries.
Under the rules of the Hillsborough County Environmental Protection Commission, Chapter 1-10, Noise Pollution, construction activities occurring during the hours of 7:00 a.m. and 6:00 p.m. are exempt from the noise rule if reasonable steps are taken to abate the noise. The construction activities, however, are expected to be below the 70 dBA level applicable to industrial land use category. Noise resulting from the operation of the Modernization Project would not have any adverse impact on the existing noise levels in the general vicinity of the Big Bend Power Station.
Archeological and Historic Sites
Based on results of cultural resource assessments conducted in 1979, no significant archaeological or historical
sites were found or are expected to be found at the Site. A survey conducted in January of 2018 did not identify any previously recorded archaeological sites. In the event that any archaeological resources are encountered during construction activities, the Florida Division of Historical Resources will be notified and consulted to determine appropriate actions.
Safety Issues
Shawn Copeland, vice president of safety for Tampa Electric, testified on safety issues associated with Big Bend. Tampa Electric has safety programs at the different generating stations, as well as for the operating areas. The programs are designed to provide a safe environment for workers and compliance with regulations and standards. The safety programs apply to Big Bend and are designed to create a safe work environment and also public protection.
There is an Emergency Action Plan for Big Bend. The plan provides basic information for initial emergency actions. Actions and procedures for reporting emergencies, procedures for emergency evacuation, procedures to account for personnel after an evacuation, procedures to be followed by employees performing rescue or medical duties, and procedures to be followed by employees remaining to conduct critical plant operations prior to evacuation. The Emergency Action Plan primarily focuses on events related to fires, medical, natural gas, and severe
weather emergencies. There are specific emergency evacuation plans for each type of event.
The storm preparedness procedures contained in the Emergency Action Plan do not apply to hurricanes, but rather storms that are more sudden. Hurricane preparedness is addressed in the Big Bend Station Storm Preparedness Procedures, revised May 9, 2018, which consists of approximately 151 pages of information and checklists applicable when hurricanes or hurricane-related events are approaching. Emergencies of all types are addressed by the All Hazard Notification Flowchart, which provides protocols for communications and activities to be taken during the occurrence of suspicious activities or an unexpected emergency at the plants.
In addition to the foregoing, Big Bend has an Integrated Contingency Plan dated December 2018. The purpose of the Integrated Contingency Plan is to focus on emergency prevention and preparedness and provide rapid, effective protection of human health and the environment during an emergency caused by a chemical release or other physical hazardous release. The objectives of the Integrated Contingency Plan are to establish: (i) means of recognizing an emergency;
rapid notification procedures to avoid delay in response;
an organizational structure for accountability;
initial assessment and response procedures to isolate and
stabilize the incident; (v) sustained response procedures to mitigate the consequences of the incident; and (vi) post- incident investigations to document and eliminate the incident causes. The scope of the plan covered involves hazards or releases associated with hazardous waste, oil, and petroleum products, substances subject to the emergency planning and Community Right-to-Know Act requirements, federal workplace requirements for emergency response plans, Florida requirements governing release prevention and response for pollutants stored in regulated tanks, radiation hazards, and federal and state requirements for response to an air release of asbestos containing fibers. The plan provides protection from these hazards for both workers and the public.
The Coal Combustion Residuals Management Manual assists the facility in maintaining compliance with permits and environmental procedures and preventing unauthorized releases to the environment, while maximizing beneficial use of this material and minimizing generation of additional wastes.
Mr. Stryker detailed the design standards that apply or would be used in the design of the Modernization Project including the natural gas pipeline lateral. The generating facility additions were designed by an internationally recognized engineering firm with significant experience designing similar projects throughout North America and Florida,
including one for Tampa Electric. Sound engineering practice will be utilized, and all applicable laws and regulations and required codes, such as the Florida Building Code and the Hillsborough County Code requirements, would be met. The natural gas lateral, in addition to adhering to good engineering practices and industry requirements, is subject to review by the Florida Public Service Commission (PSC).
The PPSA and SCA Process
The PPSA created a centrally coordinated process for review and evaluation of electrical generating facilities at the state and local level on the basis of adopted standards and recommendations of the reviewing agencies. DEP, through the Siting Office, is responsible for coordinating and processing the SCA and maintaining the Site License for the life of the electrical generating facility.
The SCA was filed with DEP on April 18, 2018. DEP submitted the application to DOAH, along with a proposed schedule for processing the SCA for approval by the ALJ. The SCA was distributed to the reviewing agencies that review the SCA for completeness and ultimately submit agency reports containing recommendations. Each agency conducts a review as to the compliance of the SCA with the statutory and administrative requirements within the respective agencies' jurisdiction and also provides a report containing a recommendation of approval
or denial of the Modernization Project, including any proposed Conditions of Certification.
Following initial agency review, the SCA was determined to be incomplete, and additional information was requested. Tampa Electric submitted the additional information requested on June 27, 2018, and the SCA was determined to be complete on July 19, 2018.
The Southwest Florida Water Management District (SWFWMD), the FWCC, the Florida Department of Transportation (DOT), the Florida Department of Economic Opportunity (DEO), the Florida Department of State, Division of Historical Resources (DHR), and the DEP were the state and regional agencies reviewing the SCA.
As required by the PPSA, the local government in whose jurisdiction the project would be located was also included. Hillsborough County, as well as the Environmental Protection Commission of Hillsborough County, reviewed the SCA. The state, regional, and local agencies supported the Modernization Project. The agencies determined that the Modernization Project would comply with all applicable non- procedural requirements when constructed and operated in conformance with the proposed Conditions of Certification. SWFWMD, FWCC, DOT, DHR, and Hillsborough County proposed Conditions of Certification to which Tampa Electric agreed.
DEP prepared a PAR summarizing the substantive review by the agencies, including DEP's review of the applicable environmental regulations by all the relevant divisions within DEP. The PAR contains DEP's recommendation, taking into account all of the information received from Tampa Electric and the various reviewing agencies, that the SCA should be approved subject to the proposed Conditions of Certification. Tampa Electric has agreed to accept the proposed Conditions of Certification in the PAR.
With the exception of DEP, the reviewing agencies waived their rights to be a party and to participate in the certification hearing by not filing the notice required to do so.
Need Determination
The SCA was filed and processed under the provisions of section 403.5175, which provides for the certification of existing, uncertified units that were not previously subject to the provisions of the PPSA. The SCA requested certification of existing Units 1, 2, and 3, and the authorization to repower Unit 1 and retire Unit 2 after continuing to operate until 2021.
Units 1, 2, and 3 are not subject to the PPSA unless the steam electric generating capacity was expanded after the effective date of the PPSA. The preponderance of the evidence established that repowering Unit 1 would not result in an
expansion of the steam electric generating capacity, Unit 2 would continue to operate as currently operated until its retirement in 2021, and Unit 3 would continue to operate as currently operated into the future, so there is no expansion of steam electric generating capacity at either of those facilities.
The Unit 1 repowering project would use the existing steam turbine electrical generator that is currently used for Unit 1. The electrical generating rating or capacity of a facility is found on a nameplate on the generator. The nameplate capacity of existing Unit 1 steam turbine electrical generator is 445.5 MW. The maximum steam electric generating capacity of the combined-cycle, after the repowering, would be
360 MW. This is because the steam produced in the heat recovery steam generators would limit the amount of electricity that can be produced using the steam. It would be well below the existing capacity of the steam turbine electrical generator for Unit 1. There would not be an expansion of steam electrical generating capacity as measured by the nameplate of the existing Unit 1 steam turbine electrical generator. Therefore, the provisions of the PPSA that require a need determination are not triggered. Ms. Mulkey testified that DEP defines "expansion" as an increase in steam generation.
In addition, early in the process, DEP's Siting Office considered the PPSA applicability issues. DEP evaluated the information provided by Tampa Electric and consulted with PSC staff to determine whether the Modernization Project should be subject to a need determination. Because the combined-cycle facility that would repower Unit 1 has the capacity to produce sufficient steam to generate only 360 MW, no expansion of steam turbine electrical generating capacity would occur. The PSC staff and DEP agreed that proceeding under the provisions of section 403.5175 was appropriate.
Mr. Stryker testified to other projects where repowering did not go through the site certification process. One such project involved the repowering of Tampa Electric's Gannon Station with a combined cycle unit using the existing steam turbine electrical generator for the repowered units. A similar repowering project was carried out by then Progress Energy at the Bartow facility. The Progress Energy project, although not increasing steam electric generating capacity as a result of the repowering, actually used an entirely new steam electric generator unit. Notwithstanding this difference, DEP concluded that the Bartow repowering project was not subject to the PPSA because it did not increase steam electric generating capacity.
Sierra Club's expert, Dr. Sahu, testified that Tampa Electric's consideration of only the steam-generated electricity to determine whether a need determination was required was factually incorrect and misleading. He opined that evaluating only the steam component of the generation for purposes of determining the applicability of the PPSA was not appropriate since the PPSA is 40 years old and the manner in which electricity is generated has changed during that period of time. Instead, he suggests that the entire facility should be looked at, rather than just the steam component.
However, Ms. Mulkey testified that for purposes of evaluating whether the Modernization Project would be subject to a need Determination, the focus was on whether there would be an expansion of steam electrical generating capacity defined as an increase in steam generation. It was appropriate to focus on the steam generation component, and the PSC did not express any concerns with this approach.
Notice, Outreach, Public Hearing
All notices required by the PPSA were provided.
Tampa Electric published the required Notice of Filing for Electrical Power Plant Site Certification on May 7, 2018, Notice of Land Use Consistency Determination on Electrical Power Plants Site on June 20, 2018, Notice of Certification Hearing on November 2, 2018, and Notice of Rescheduled Certification
Hearing on January 4, 2019, all in the Tampa Bay Times. DEP notices were published in the Florida Administrative Register.
Tampa Electric engaged in public outreach for the SCA. The public outreach included newspaper notifications, direct mailing, establishing a website for the SCA, and a phone number to call for questions concerning the SCA. There was one direct mailing consisting of 8,948 direct letters to landowners within three miles of the Site and in accordance with the PPSA. Tampa Electric representatives also met with various elected officials to discuss the Modernization Project. A copy of the SCA was made available for public inspection at Tampa Electric's main office on Tampa Street in downtown Tampa, and a copy of the SCA was also made available at the John F. Germany Hillsborough County Public Library on Ashley Street in Tampa. Those SCAs were updated as appropriate.
As part of the certification proceeding, a public hearing was held on March 11, 2019, from 6:00 p.m. until
9:00 p.m. At the hearing, comments were accepted from those who expressed a desire to speak. Thirty-nine members of the public testified. Twenty-six members of the public spoke in opposition, and 13 members of the public spoke in favor of the Modernization Project. The public hearing was recorded and transcribed as part of the Transcript of the certification hearing.
CONCLUSIONS OF LAW
Jurisdiction
DOAH has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to sections 120.569, 120.57(1), and 403.508(2).
In accordance with chapters 120 and 403 and Florida Administrative Code Chapter 62-17, proper notice was accorded to all persons, entities, and parties entitled to such notice, and appropriate notice was provided to the general public by both Tampa Electric and DEP.
The preponderance of the competent and substantial evidence demonstrated compliance with the procedural requirements of the PPSA, including the notice requirements for the certification and public hearings. Reports were issued by DEP and the other reviewing agencies in satisfaction of their various statutory duties under the PPSA. See § 403.5175(1),
Fla. Stat.
Standing
It is well-established that to demonstrate that a person or entity has a substantial interest in the outcome of a proceeding, two things must be shown. First, there must be an injury-in-fact of sufficient immediacy to entitle one to a hearing. Second, it must be shown that the substantial injury is of a type or nature which the proceeding is designed to
protect. The first has to do with the degree of the injury and the second with the nature of the injury. See Agrico Chem.
Co. v. Dep't of Envtl. Reg., 406 So. 2d 478, 482 (Fla. 2d
DCA 1981), rev. den., 415 So. 2d 1359 (Fla. 1982).
Agrico was not intended as a barrier to the
participation in proceedings under chapter 120 by persons who are affected by the potential and foreseeable results of agency action. See Peace River/Manasota Reg'l Water Supply Auth. v.
IMC Phosphates Co., 18 So. 3d 1079, 1082-83 (Fla. 2d DCA 2009)("[S]tanding is a legal concept that requires a would-be litigant to demonstrate that he or she reasonably expects to be affected by the outcome of the proceedings, either directly or indirectly." (quoting Hayes v. Guardianship of Thompson, 952 So. 2d 498, 505 (Fla. 2006))).
Rather, the intent of Agrico was to preclude parties from intervening in a proceeding where those parties' substantial interests are remote and speculative. See Vill.
Park v. Dep't of Bus. Reg., 506 So. 2d 426, 433 (Fla. 1st DCA 1987).
Sierra Club members who testified at the certification hearing have been injured by and suffered the effects of climate change impacts, including sea level rise, increased storm surge, severe weather events, and coastal flooding. The substantial environmental interests of Sierra
Club's Florida members in the Tampa Bay area include the potential adverse effects of climate change to which Tampa Electric's greenhouse gas emissions would allegedly contribute. Thus, a substantial number of Sierra Club's Florida members' substantial interests could reasonably be affected by climate change impacts, including sea level rise, increased storm surge, severe weather events, and coastal flooding in the Tampa Bay area.
Sierra Club must prove its associational standing by satisfying the three-prong test for environmental associational standing test established in Friends of the Everglades Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 595
So. 2d 186 (Fla. 1st DCA 1992). In Friends of the Everglades, the Court held that an environmental organization must meet both the two-pronged test for standing of Agrico and the test for standing of associations under Florida Home Builders Association
v. Department of Labor and Employment Security, 412 So. 2d 351
(Fla. 1982)(extended to administrative proceedings under section 120.57(1), Florida Statutes, by Farmworker Rights
Organization v. Department of Health and Rehabilitation Services, 417 So. 2d 753 (Fla. 1st DCA 1982)).
Sierra Club proved its environmental associational standing by demonstrating (1) that a substantial number of its members were substantially affected by the challenged agency
action; (2) that the agency action it seeks to challenge was within Sierra Club's general scope of interest and activity; and (3) that the relief it requests was of the type appropriate for Sierra Club to receive on behalf of its members. See
St. Johns Riverkeeper, Inc. v. St. Johns River Water Mgmt.
Dist., 54 So. 3d 1051, 1054 (Fla. 5th DCA 2011).
Sierra Club's burden is not whether it has or will prevail on the merits, but rather whether it has presented sufficient proof of injury to its asserted interests within the two-prong standing test. See Bd. of Comm'rs of Jupiter Inlet
Dist. v. Thibadeau, 956 So. 2d 529 (Fla. 4th DCA 2007). Sierra Club proved that a substantial number of Sierra Club's Florida members' substantial interests could reasonably be affected by climate change impacts, including sea level rise, increased storm surge, severe weather events, and coastal flooding in the Tampa Bay area.
Scope of This Proceeding
Section 403.4175 provides:
An electric utility that owns or operates an existing electrical power plant as defined in s. 403.503(14) may apply for certification of an existing power plant and its site in order to obtain all agency licenses necessary to ensure compliance with federal or state environmental laws and regulation using the centrally coordinated, one-stop licensing process established by this part. An application for certification under this section must be in the form
prescribed by department rule. Applications must be reviewed and processed using the same procedural steps and notices as for an application for a new facility, except that a determination of need by the Public Service Commission is not required.
An application for certification under this section must include:
A description of the site and existing power plant installations and associated facilities;
A description of all proposed changes or alterations to the site and all new associated facilities that are the subject of the application;
A description of the environmental and other impacts caused by the existing utilization of the site and associated facilities, and the operation of the electrical power plant that is the subject of the application, and of the environmental and other benefits, if any, to be realized as a result of the proposed changes or alterations if certification is approved and such other information as is necessary for the reviewing agencies to evaluate the proposed changes and the expected impacts;
The justification for the proposed changes or alterations;
Copies of all existing permits, licenses, and compliance plans authorizing utilization of the site and associated facilities or operation of the electrical power plant that is the subject of the application.
The land use and zoning determination requirements of s. 403.50665 do not apply to an application under this section if the applicant does not propose to expand the boundaries of the existing site or to add
additional offsite associated facilities that are not exempt from the provisions of
s. 403.50665. If the applicant proposes to expand the boundaries of the existing site or to add additional offsite associated facilities that are not exempt from the provisions of s. 403.50665 to accommodate portions of the electrical generating facility or associated facilities, a land use and zoning determination shall be made as specified in s. 403.50665; provided, however, that the sole issue for determination is whether the proposed site expansion or additional nonexempt associated facilities are consistent and in compliance with the existing land use plans and zoning ordinances.
In considering whether an application submitted under this section should be approved in whole, approved with appropriate conditions, or denied, the board shall consider whether, and to the extent to which the proposed changes to the electrical power plant and its continued operation under certification will:
Comply with the provisions of s. 403.509(3).
Result in environmental or other benefits compared to current utilization of the site and operations of the electrical power plant if the proposed changes or alterations are undertaken.
An applicant's failure to receive approval for certification of an existing site or an electrical power plant under this section is without prejudice to continued operation of the electrical power plant or site under existing agency licenses.
Section 403.509(3) provides:
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.
Section 403.519 provides that the PSC is the exclusive forum for determination of need:
On request by an applicant or on its own motion, the commission shall begin a proceeding to determine the need for an electrical power plant subject to the Florida Electrical Power Plant Siting Act.
* * *
(3) The commission shall be the sole forum for the determination of this matter, 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.
Tampa Electric and DEP argued that based on the above provisions of the PPSA, Sierra Club should not be allowed to present evidence and argument on whether failure to seek a determination of need from the PSC was contrary to the public interest, or that the Siting Board was authorized to conduct its own need determination under section 403.509(3). Tampa Electric and DEP also argued that any disputed issues of fact and law related to project costs and ratepayer costs were matters
for the PSC and not the Siting Board under sections 366.04 and 366.041, Florida Statutes. See § 403.511(4), Fla. Stat.
The undersigned agreed and limited the scope of this proceeding in the February 21, 2019, Order Limiting Issues and Striking Paragraphs.
The Order and this Recommended Order on Certification recognizes that key tenets of statutory interpretation mandated by the Florida Supreme Court must be applied to the language of the PPSA. The actual language of a statute evinces legislative intent, and effect should be given to every clause in it. See
Larimore v. State, 3 So. 3d 101, 106 (Fla. 2008). Also, "[i]f a part of a statute appears to have a clear meaning if considered alone but when given that meaning is inconsistent with other parts of the same statute or others in pari materia," the entire PPSA must be examined to ascertain overall legislative intent.
Fla. Dep't of Envtl. Prot. v. ContractPoint Fla. Parks, LLC,
986 So. 2d 1260, 1265-1266 (Fla. 2008).
Section 403.519 statutorily commits the need determination exclusively to the jurisdiction of the PSC. Section 403.519(3) even lists areas of inquiry for the PSC. As a result, the Siting Board must follow the unambiguous language of sections 403.4175(1) and 403.519(3) and recognize that it does not have jurisdiction to conduct an independent need determination. The scope of this proceeding under section
403.5175 does not include evidence and argument on matters within the exclusive jurisdiction of the PSC under section
403.519. See State v. Falls Chase Special Taxing Dist.,
424 So. 2d 787, 793 (Fla. 1st DCA 1982)(reflecting that as a creature of statute, an agency may not increase its own jurisdiction).
The scope of this proceeding also does not include issues of project costs and ratepayer costs, which are matters for the PSC and not the Siting Board under sections 366.04
and 366.041. See § 403.511(4), Fla. Stat. The Siting Board, in
its most recent decision, reiterated this interpretation of its own jurisdiction under the PPSA. See In Re: Fla. Power & Light
Co.; Dania Beach Energy Ctr. Project Power Plant Siting Application No. PA89-26A2, Case No. 17-4388EPP (Fla. DOAH
July 30, 2018; Fla. Siting Bd. Dec. 13, 2018).
In addition, under chapter 366, the PSC is charged with jurisdiction over the rates and service of electric and natural gas utilities in Florida. Chapter 366 vests the PSC with "jurisdiction over the planning, development, and maintenance of a coordinated electric power grid throughout Florida to assure an adequate and reliable source of energy for operational and emergency purposes in Florida and the avoidance of further uneconomic duplication of generation, transmission, and distribution facilities." § 366.04(5), Fla. Stat.
PSC jurisdiction over the electrical power grid in Florida includes matters relating to electrical generating, transmission and distribution planning needs and reliability, renewable and alternative generating resources, electrical conservation measures, electrical transmission and distribution storm hardening efforts and natural disaster preparedness, and the safety of the electrical grid. See § 366.04, Fla. Stat.
(electric power conservation and reliability, rates, territorial agreements, grid, and safety standards); § 366.041, Fla. Stat. (rates and efficiency, sufficiency and adequacy of the facilities and energy conservation, and the efficient use of alternative energy resources); § 366.05, Fla. Stat. (rates, construction standards, and reliability reports); § 366.051, Fla. Stat. (cogeneration, standard-offer contracts, and power purchase agreements); § 366.055, Fla. Stat. (energy reserves and grid reliability); and § 366.80-83, Fla. Stat. (energy conservation and demand-side management).
The scope of this proceeding under section 403.5175 does not include evidence and argument on matters within the exclusive jurisdiction of the PSC under chapter 366. See Falls Chase Special Taxing Dist., 424 So. 2d at 787, 793 (reflecting
that as a creature of statute an agency may not increase its own jurisdiction).
The Order also excluded evidence and argument on matters addressed by the separately issued Air Permit. Any issues that could have been raised in a challenge to the Hillsborough County Land Use and Zoning Determination were excluded. Matters related to the impacts associated with the location, construction, and operation of the natural gas transportation pipeline were excluded. Evidence and argument on issues related to property values and the impact of the Modernization Project on property values were excluded. Matters related to increased costs and risks related to burning fossil fuel which are passed on to Sierra Club members in utility bills were excluded. The potential damage to the Modernization Project itself and its surrounding vicinity during its lifetime from climate-change related impacts were also excluded.
Nature of This Proceeding
A power plant site certification proceeding arises under chapter 403. Under section 120.569(2)(p), Sierra Club, as the nonapplicant third-party challenger to the site certification application, has the ultimate burden of persuasion in this proceeding and must demonstrate by competent and substantial evidence that the license should not be granted.
The applicable standard of proof for findings of fact is a preponderance of the evidence. See § 120.57(1)(j), Fla.
Stat. Section 120.569(2)(p) provides:
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 permit, license, 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. (Emphasis added).
Tampa Electric presented its prima facie case of entitlement to site certification by entering the SCA and PAR, in addition to calling the witnesses described above. DEP presented direct evidence in support of its recommendation that reasonable assurances were provided demonstrating that the Modernization Project can be certified subject to the proposed Conditions of Certification.
As discussed below, Tampa Electric's prima facie case demonstrated reasonable assurance of entitlement to the site certification. Reasonable assurance is a standard that requires
the applicant to demonstrate a substantial likelihood that the project, as proposed, will be successfully implemented. This does not require absolute guarantees that the applicable requirements for issuance of a license have been met. Nor does it require that the applicant eliminate all contrary possibilities, however remote, or call for the applicant to address impacts that are theoretical or negligible, or cannot be measured in real life. See In Re: Fla. Power & Light Co.;
Dania Beach Energy Ctr. Project Power Plant Siting Application No. PA89-26A2, Case No. 17-4388EPP.
Sierra Club had the ultimate burden of persuasion in this proceeding to prove its case in opposition, by a preponderance of the competent and substantial evidence. Sierra Club failed to carry its ultimate burden of persuasion.
Section 403.509(3)(a)-Operational Safeguards
The PPSA requires the Siting Board to consider whether, and the extent to which, the location, construction, and operation of the electrical power plant provides reasonable assurance that operational safeguards are technically sufficient for public welfare and protection.
Upon certification, existing Unit 1 would be repowered with the combined-cycle unit, existing Unit 2 would be retired after operating until 2021, and existing Unit 3 would continue to operate. As existing facilities, Units 1, 2, and 3
are currently subject to individual permits that will be incorporated into the certification upon issuance. Those regulatory permits contain conditions that were imposed to protect the public health, safety, and welfare. The same, or substantially similar, conditions would apply to the continued operation of these facilities and would continue providing protection for public health, safety, and welfare through compliance with those requirements in the proposed Conditions of Certification.
The preponderance of the competent and substantial evidence showed that Tampa Electric has increased its emphasis on safety at its facilities, including in particular at Big Bend, and that safe operations will continue to be a significant priority. The Big Bend Station Emergency Action Plan, the Big Bend Station Storm Preparedness Procedures, the All Hazards Notification Flow Chart Procedures, and the Big Bend Station Integrated Contingency Plan procedures would provide protections to the public and to workers in the event of any emergencies. The Coal Combustion Residuals Management Manual would help to ensure that the materials produced as a result of coal combustion are handled in a safe and environmentally protective manner and that any issues associated with these materials would be minimized.
The credible expert testimony established that the information contained in the SCA accurately depicted the Modernization Project from an engineering standpoint. A team of professionals would oversee implementation of all aspects of construction including safety-related issues. The generating facility additions were designed by an internationally recognized engineering firm with significant experience designing similar projects throughout North America and Florida. Good engineering practice would be utilized and all applicable laws, regulations and required codes, such as the Florida Building Code and the Hillsborough County Code, would be met. The natural gas lateral, in addition to adhering to good engineering practices and industry requirements, would be subject to review by the Florida PSC. All proposed Conditions of Certification would be met.
Repowered Unit 1 would utilize the cleanest fuels and the latest, most efficient technology available to generate electric power. Existing infrastructure is available at the site to support operations, and there would be sophisticated controls and continuous monitoring systems providing operational safeguards and minimizing environmental impacts to the area.
The preponderance of the competent and substantial evidence demonstrated reasonable assurance that operational
safeguards are technically sufficient for public welfare and protection.
Section 403.509(3)(b)-Nonprocedural Requirements
Section 403.509(3)(b) requires that the Siting Board consider whether, and the extent to which the location, construction, and operation of the electrical power plant will comply with the applicable nonprocedural requirements of various agencies with jurisdiction.
Each of the reviewing agencies that submitted reports to DEP recommended approval of the Modernization Project. SWFWMD, FWCC, DHR, DOT, and Hillsborough County submitted proposed Conditions of Certification, and the DEP Southwest District staff and other regulatory programs with jurisdiction over the Modernization Project provided input for Conditions of Certification. Tampa Electric has stated that it is in agreement with, and would comply with the Conditions of Certification for the Modernization Project.
The Environmental Protection Commission of Hillsborough County did not submit a final report, but indicated it had no objections to the Modernization Project and did not submit any proposed Conditions of Certification. DEP in the PAR concluded that the Modernization Project would comply with applicable nonprocedural requirements of agencies, and no agency found otherwise.
The preponderance of the evidence demonstrated reasonable assurance that the design of the stormwater management system for the Modernization Project would meet all the nonprocedural requirements of agencies.
The preponderance of the evidence demonstrated reasonable assurance that construction and operation of the Modernization Project would comply with all applicable nonprocedural air quality related requirements of DEP and EPA.
The preponderance of the competent and substantial evidence in the record demonstrated that reasonable assurance has been provided that the Modernization Project will comply with the applicable nonprocedural requirements of agencies.
Section 403.509(3)(c)-Consistency with Comprehensive Plans and Land Development Regulations
Units 1, 2, and 3 at Big Bend are existing facilities, and nearly all activities associated with the repowering of Unit 1 into the combined-cycle generating plant will take place within the boundaries of the existing Big Bend Site. The exception is a 92-acre parcel owned by Tampa Electric that would be added to the Site and utilized for a construction laydown area and temporary parking area during construction.
The SCA requested that the 92-acre parcel be added to the certified site.
Section 403.50665(2)(a) of the PPSA specifies that a land use consistency review for local land use plans and zoning ordinances is not required for activities carried out within the boundaries of an existing power plant site. Section 403.5175(3) also states that the land use and zoning determination requirements do not apply to an application if the application is not proposing to expand the boundaries of an existing site or add additional offsite associated facilities that are not exempt from the provisions of section 403.50665. It goes on to state that if it is proposed to expand the boundaries of the existing site, a land use and zoning determination is to be made on the sole issue of whether the site expansion is consistent and in compliance with existing land use plans and zoning ordinances.
The 92-acre parcel was submitted to Hillsborough County for a land use and zoning consistency determination. On June 1, 2018, Hillsborough County issued its determination that the addition of the proposed 92-acre parcel and the activities proposed to be carried out on that parcel are consistent with existing land use plans and zoning ordinances that were in effect on the date the SCA was filed. The determination was noticed in the Tampa Bay Times on June 20, 2018, and in the Florida Administrative Register on June 22, 2018. No challenge was filed to the land use consistency determination.
In addition to the 92-acre parcel, a small portion of the transmission line will go offsite where it crosses Wyandotte Road, and, similarly, a small portion of the natural gas pipeline lateral will go offsite where it crosses under Wyandotte Road. Those portions are not subject to the land use consistency determination under the provisions of section 403.50665(2)(a), which states that the land use consistency determination does not apply to any facilities that are exempt from the requirements of land use plans and zoning ordinances under chapter 163 and section 380.04(3), Florida Statutes.
Section 380.04(3)(b) exempts electric and gas transmission and distribution lines from the definition of "development" and that exemption is incorporated into the Community Planning Act in section 163.3164(14), Florida Statutes. As a result, those portions of the transmission line and natural gas pipeline lateral qualify for the exemption contained in sections 403.50665(2)(a) and 403.5175(3).
The preponderance of the competent and substantial evidence established that the non-exempt portions of the Modernization Project, which consists of the 92-acre parcel addition and the activities proposed to be carried out thereon, would be consistent with the applicable local government comprehensive plans and land use development regulations.
Section 403.509(3)(d)-Meet Electrical Energy Needs of State and Section 403.509(3)(e)-Effective Balance Between Need Established Pursuant to Section 403.519 and Impacts
The SCA was submitted pursuant to section 403.5175(1). The statute permits an electric utility owning and operating an existing electrical plant as defined in section 403.503(14) to apply for certification of the existing plant or plants and the site to obtain agency licenses utilizing the centrally coordinated, one-stop process established by the PPSA. The SCA is reviewed and processed using the procedural steps and notices that are applicable to a new plant, except that "a determination of need by the [PSC] is not required."
§ 403.5175(1), Fla. Stat.
Section 403.5175(2)(b) further provides that the SCA must include a description of proposed changes or alterations and new and associated facilities that are the subject of the SCA.
As found above, early in the process, there were discussions between Tampa Electric and DEP representatives, and DEP representatives and representatives of the PSC, concerning the appropriateness of proceeding under section 403.5175. The resulting conclusion was that the Modernization Project SCA was appropriately processed under section 403.5175, and, thus, a need determination from the PSC would not be required.
The preponderance of the competent and substantial evidence demonstrated that the Modernization Project activities would not result in an "expansion in steam generating capacity as measured by an increase in the maximum electrical generator rating of any existing electrical power plant" after the applicability date of the PPSA.
The preponderance of the competent and substantial evidence established that the Modernization Project repowering activities would utilize the existing steam turbine electrical generator that currently serves Unit 1. The result of the Modernization Project would be a decrease in the steam electric generating capacity of repowered Unit 1. There will be an additional decrease in steam capacity of 445.5 MW at the Big Bend Station with the retirement of Unit 2 in 2021.
In the PPSA, the Legislature choose to focus on steam generating capacity, rather than overall generating capacity by any means, and has not chosen to alter that focus. There is no basis under the current statutory regime to deviate from that mandate. Both section 403.509(3)(d) and section 403.509(3)(e) are predicated on a need determination having been obtained from the PSC for a particular facility. For power plants that are "existing" for purposes of the PPSA and are not undertaking activities that result in expansion of the steam electrical generating capacity, it is logical that a need determination
would not be required since the power is already being utilized on the grid. This would continue to be the case.
Despite proceeding under section 403.5175 for the Modernization Project, the PSC still retains its regulatory jurisdiction and will review the Modernization Project at the appropriate time under its exclusive authority that is contained in chapter 366. Under section 366.04(1), the PSC has jurisdiction to regulate and supervise public utilities with respect to rates and service. Section 366.04(2) grants the PSC the power to prescribe a rate structure for electric utilities and require conservation and reliability within a coordinated grid in addition to other powers. Conservation and renewable energy issues are a part of the PSC portfolio under
sections 366.041, 355.91, and 366.92, Florida Statutes. Thus, the argument that the Siting Board must have a need determination from the PSC prior to fulfilling its statutory duties is not supported by either the terms of the PPSA or the terms of chapter 366.
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 Modernization Project will minimize, through the use of reasonable and available methods, the adverse effects on human health, the environment, and the
ecology of the land and wildlife and the ecology of the state waters and their aquatic life.
As previously found, much of the existing infrastructure necessary to support electric generation and distribution is already present and can accommodate the Modernization Project resulting in minimized impacts both on and offsite.
Approximately 55 acres would be impacted by the construction activities, much of which would be temporary uses, such as construction laydown and parking on areas previously disturbed that would be reseeded and allowed to revegetate as necessary. Impacts to vegetation and wetland areas have been avoided, and there would be reduced impacts on wildlife habitat based on the prior use of the site and disturbances that have already taken place, again minimizing any new impacts that may occur. The majority of onsite wetlands and surface waters would be avoided and remain intact.
The use of existing facilities, such as the CWIS and the discharge structures, would also result in less impacts because no dredging or filling or in-water construction work would need to occur in waters where the structures are located, again minimizing potential impacts.
Groundwater would not be utilized and other associated water uses would be reclaimed wastewater and recycled
stormwater from onsite lined ponds, minimizing and eliminating impacts to groundwater. Reduced coal storage onsite as a result of repowering Unit 1 and the ultimate retirement of Unit 2 also would minimize impacts by reducing the activities necessary for handling and storage of coal and associated by-products.
There would be substantial reductions in air emissions which would result in minimization of impacts to the environment. The use of natural gas and the use of the most efficient combined-cycle technology along with post combustion emission control technology would help to minimize the adverse impacts that may be associated with air emissions from the Modernization Project and the Big Bend Station. Expected reductions in emissions would be significant and are projected to be a minimum reduction of 18,500,000 tons of greenhouse gases and 21,000,000 pounds of all other criteria pollutants. There will be a net environmental benefit resulting from the operation of the Modernization Project as compared to the continued operation of existing Units 1 and 2 indefinitely.
Once-through cooling water withdrawals would be reduced by 25 percent, reducing and minimizing impacts on aquatic organisms that may be adversely affected by the withdrawals and discharges from the cooling water system. The new screen system would allow aquatic organisms washed from the screens to be returned back to Hillsborough Bay at a location
that would minimize the potential for impingement of these organisms. The state and federally designated thermal refuge for manatees in the discharge canal would be maintained to ensure the availability of warm water during the colder winter months.
The regulatory requirements addressing discharges of air, water, and other waste materials are designed to prevent and minimize harmful impacts to the environment, and to the public health and welfare. Construction and operation of the Modernization Project, and continued operation of Unit 3, in accordance with these requirements will minimize the impacts and 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.
The preponderance of the competent and substantial evidence demonstrated that the Modernization Project, including the continued operation of Unit 3 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 the 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 Modernization Project will protect the broad interests of the public.
The preponderance of the competent and substantial evidence established that the Modernization Project satisfied the certification factors in section 403.509(3)(a) through (f), as applicable to the Modernization Project. Accordingly, the preponderance of the competent and substantial evidence established that the Modernization Project will serve and protect the broad interests of the public. See In Re: Fla. Power & Light Co.; Dania Beach Energy Ctr. Project Power Plant
Siting Application No. PA89-26A2, Case No. 17-4388EPP.
Section 403.5175(4)-Comply with Section 403.509(3) and Provide Environmental and Other Benefits
This section requires the Siting Board to consider, in determining whether the SCA should be approved, approved with appropriate conditions, or denied, the extent to which the proposed changes to the existing facilities and continued operation under certification will comply with the requirements of section 403.509(3), as applicable, and result in environmental and other benefits compared to the current utilization of the site if the proposed changes or alterations are undertaken.
As set forth above, the preponderance of the competent and substantial evidence found that the Modernization
Project will satisfy the certification factors in section 403.509(3), as applicable to the Modernization Project.
The environmental benefits of the Modernization Project as compared to the continued utilization of the existing site would include significantly reduced impacts as a result of utilization of existing infrastructure resulting in less disturbance and less impact; use of clean burning natural gas and a highly efficient combined-cycle generator resulting in significantly reduced air emissions, including emissions of greenhouse gas; reduced cooling water withdrawals resulting in reduced impacts from the cooling water intake and the discharge of the cooling water; use of modified traveling screens to reduce impacts to aquatic organisms; reduced utilization of coal resulting in less impacts as a result of the handling and storage of coal and its by-products; reduced impacts to surface waters; and reduced impacts to groundwater.
Construction and operation of the Modernization Project would provide significant benefits to Hillsborough County and the State of Florida through increased employment and revenues during construction and operation of the Project. The direct benefits from construction include employment and payroll for an average monthly employment of approximately 250 workers as well as expenditures of approximately $300 million for materials and services during the period of 2019 through
approximately mid-2023. Approximately $210 million of this would be spent in the local area. Once the repowered Unit 1 begins operations, tax revenues and operational and maintenance expenditures are expected to be in the range of $18 million per year. Anticipated property tax revenue and sales tax revenue are $8.4 million and $1.26 million respectively. Peak construction employment will be approximately 500 workers occurring during the most labor-intensive construction period in 2021.
The preponderance of the competent and substantial evidence established that the Modernization Project would comply with the applicable provisions of sections 403.509(3) and 403.5175(4), and would result in environmental and other benefits compared to current utilization of the site.
Based on the foregoing Finding of Facts and Conclusions of Law, it is
RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a final order approving certification of Tampa Electric Company, Big Bend Power Generating Station's, existing Units 1, 2, and 3; and authorizing the Modernization Project, subject to the Conditions of Certification contained in DEP's Project Analysis Report.
DONE AND ENTERED this 30th day of May, 2019, in Tallahassee, Leon County, Florida.
S
FRANCINE M. FFOLKES
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 May, 2019.
COPIES FURNISHED:
Lawrence N. Curtin, Esquire Kevin W. Cox, Esquire Holland & Knight, LLP
315 South Calhoun Street, Suite 600 Tallahassee, Florida 32301 (eServed)
Kelley F. Corbari, Esquire Michael J. Weiss, Esquire Kirk S. White, Esquire
Department of Environmental Protection Douglas Building, Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000 (eServed)
Diana A. Csank, Esquire Julie Kaplan, Esquire Aaron Messing
Matthew E. Miller, Esquire Sierra Club
50 F Street Northwest, 8th Floor Washington, DC 20001
(eServed)
Kathleen Riley Sierra Club
50 F Street Northwest, 8th Floor Washington, DC 20003
Theresa Lee Eng Tan, Esquire Florida Public Service Commission 2450 Shumard Oak Boulevard Tallahassee, Florida 32399 (eServed)
Andrew S. Grayson, Esquire Florida Fish and Wildlife
Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (eServed)
Marva M. Taylor, Esquire Hillsborough County
601 East Kennedy Boulevard Tampa, Florida 33601 (eServed)
Vivian Arenas-Battles, Esquire Southwest Florida Water
Management District 7601 U.S. Highway 301
Tampa, Florida 33637 (eServed)
Kimberly Clark Menchion, Esquire Department of Transportation
605 Suwannee Street, Mail Station 58
Tallahassee, Florida 32399 (eServed)
Jon F. Morris, Esquire
Department of Economic Opportunity
107 East Madison Street, Mail Station 110 Tallahassee, Florida 32399
(eServed)
Richard Thomas Tschantz, Esquire Environmental Protection Commission 3629 Queen Palm Drive
Tampa, Florida 33619 (eServed)
Sean Sullivan
Tampa Bay Regional Planning Council
4000 Gateway Center Boulevard, Suite 100 Pinellas Park, Florida 33782
Jason Aldridge
Division of Historical Resources Department of State
R.A. Gray Building
500 South Bronough Street Tallahassee, Florida 32399-0250
Carlos A. Rey, Esquire Department of State
R.A. Gray Building
500 South Bronough Street Tallahassee, Florida 32399-0250 (eServed)
Ronald W. Hoenstine, Esquire Department of Environmental Protection Douglass Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000 (eServed)
Andres Restrepo, Esquire Sierra Club
520 Carpenter Lane
Philadelphia, Pennsylvania 19119
Joshua Douglas Smith, Esquire Sierra Club
2101 Webster Street
Oakland, California 94612 (eServed)
Kathryn E.D. Lewis, Esquire
Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000 (eServed)
Tara R. Price, Esquire Holland and Knight, LLP
315 South Calhoun Street, Suite 600 Tallahassee, Florida 32302 (eServed)
Lea Crandall, Agency Clerk
Department of Environmental Protection Douglas Building, Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000 (eServed)
Justin G. Wolfe, 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 |
|---|---|---|
| Jul. 29, 2019 | Agency Final Order | |
| May 30, 2019 | Recommended Order | Sierra Club did not prove its case in opposition, therefore, the Siting Board should approve certification of Tampa Electric Company, Big Bend Power Generating Station's existing Units 1, 2, and 3, and the Modernization Project. |
