STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
IN RE: NORTH BROWARD COUNTY )
RESOURCE RECOVERY PROJECT, INC. ) CASE NO. 86-0674 POWER PLANT SITING CERTIFICATION ) (Land Use Hearing)
Application PA 86-22. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on June 9, 1986, in Fort Lauderdale, Florida.
APPEARANCES
For Broward County Timothy A. Smith, Esquire and North Broward Kerri L. Barsh, Esquire
County Resource Greenberg, Traurig, Askew, Recovery Project, Hoffman, Rosen & Quentel, P.A. Inc.: 1401 Brickell Avenue
Miami, Florida 33131
For the Department Karen A. Brodeen, Esquire of Environmental Department of Environmental Regulation: Regulation
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
For the Department C. Lawrence Keesey, Esquire of Community Affairs: Department of Community
Affairs
2571 Executive Center Circle E Tallahassee, Florida 32301
For the South Florida Elizabeth D. Ross, Esquire Water Management South Florida Water Management District: District
3301 Gun Club Road
West Palm Beach, Florida 33402 PRELIMINARY STATEMENT
Pursuant to the Florida Electrical Power Plant Siting Act, Sections 403.501
403.519, Florida Statutes, Broward County and North Broward County Resource Recovery Project, Inc. (Applicants) filed, on February 26, 1986, an application for power plant site certification for a resource recovery facility. The statutory scheme calls for both a land use hearing and a certification hearing. This land use portion of the proceeding raises the sole issue of whether the site selected for the Applicants' proposed resource recovery facility is consistent and in compliance with existing land use plans and zoning ordinances.
At the hearing, the Applicants called, as witnesses: Thomas M. Henderson; Albert H. Shamoun, accepted as an expert planner with emphasis on zoning and land use; and, Josephine Horner, accepted as an expert planner with emphasis on policy analysis of comprehensive plans. Applicant's Exhibits 1-5 and 7-31 were received into evidence.
The Department of Environmental Regulation (DER) called no witnesses, but did offer Exhibits 1-2, which were received into evidence. The Department of Community Affairs (DCA), and South Florida Water Management District (SFWMD), called no witnesses and offered no exhibits.
The Applicants, DER, DCA, and SFWMD have submitted joint proposed findings of fact and conclusions of law, and they has been reviewed and considered. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.
FINDINGS OF FACT
The Resource Recovery Facility
The purpose of the Applicants' proposed resource recovery facility (RRF), a solid waste-fired electrical power plant, is to dispose of municipal solid waste and recover energy. This "waste to energy" facility will initially dispose of up to 2,200 tons of refuse each day, and generate up to 55.5 megawatts of electrical power. The ultimate disposal capacity of the proposed facility is 3,300 tons of refuse each day, and a generating capacity of 83.25 megawatts.
The proposed RRF complex will include an administrative building, scalehouse/weigh station, receiving and handling building, furnace boilers, turbine generators, ash disposal area, and electrical substation. The site development plans for the project contemplate that solid waste will be delivered by truck to the enclosed refuse receiving and handling building. All waste will be stored and processed inside the main facility.
The Site
The site for the proposed RRF is an undeveloped 25-acre parcel of land situated on the south side of Northwest 45th Street (Hilton Road), midway between the Florida Turnpike and Powerline Road; an unincorporated area of Broward County.
The uses surrounding the site are predominantly industrial. On the south side of Hilton Road, between the Florida Turnpike, which lies to the west, and Powerline Road, which lies to the east, are welding shops, engine repair shops, and automobile salvage yards. Located north of Hilton Road is an industrial zoned area which includes an asphalt batching plant. Immediately south and east of the project site is a newly permitted landfill area which will function as an expansion of the existing landfill located immediately south and west of the site's boundaries.
Consistency of the site with local land use plans and zoning ordinances
Broward County has adopted a Comprehensive Plan, pursuant to Chapter
163 Florida Statutes, which establishes guidelines and policies to promote orderly and balanced economic, social, physical, environmental and fiscal development of the area. Pertinent to this proceeding are the Broward bounty
Land Use Plan-map and the Unincorporated Area Land Use Plan (the land use plan element of the comprehensive plan), and Broward County's zoning ordinances.
The proposed site is designated industrial under the Broward County Land Use Plan-map and the Unincorporated Area Land Use Plan. The proposed RRF is a utility for solid waste disposal and, as such, an allowable use under the industrial designation of both plans, and satisfies the goals, policies, and objectives of the Broward County Comprehensive Plan.
On April 22, 1986, the Board of County Commissioners of Broward County approved the rezoning of the site to Planned Unit Development (PUD) Special Complex District, and approved the RRF conceptual site plan. The proposed RRF is a Planned Special Complex under Broward County's PUD zoning ordinances and, as such, a permitted non-residential use. 1/
The Department of Community Affairs, Department of Environmental Regulation, and South Florida Water Management District concur that the proposed RRF is consistent and in compliance with existing land use plans and zoning ordinances. The Public Service Commission did not participate in this land use portion of the power plant siting process.
Notice of the land use hearing was published in the Fort Lauderdale News/Sun-Sentinel on April 21, 1986, and in the Florida Administrative Weekly on April 18, 1986.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
The sole issue for determination in this land use hearing is whether the proposed resource recovery site is consistent and in compliance with existing land use plans and zoning ordinances. Section 403.508(2), Florida Statutes.
The Applicants have established by competent substantial evidence that the proposed resource recovery site is consistent and in compliance with existing land use plans and zoning ordinances.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board,
enter a Final Order finding that the proposed resource recovery site is
consistent and in compliance with existing land use plans and zoning ordinances.
DONE and ORDERED this 1st day of July, 1986, at Tallahassee, Florida.
WILLIAM J. KENDRICK,
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1986
ENDNOTE
1/ The proposed site was rezoned from a Limited Heavy Industrial M-4 District and an Agricultural-Disposal A-6 District.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-0674
The joint proposed findings of fact submitted by the Applicants, DER, DCA, and SFWM are addressed as follows:
Addressed in paragraph 1.
Addressed in paragraph 2.
Addressed in paragraph 3.
Addressed in paragraph 4.
Addressed in paragraph 5.
Addressed in paragraph 6.
Addressed in paragraph 7.
Addressed in paragraph 6.
Addressed in paragraph 8.
Addressed in paragraph 9.
COPIES FURNISHED:
Honorable Bob Graham Governor
The Capitol
Tallahassee, Florida 32301
Victoria Tschinkel, Secretary
Honorable George Firestone Department of Environmental Secretary of State Regulation
The Capitol 2600 Blair Stone Road Tallahassee, Florida 32301 Tallahassee, Florida 32301
Honorable Jim Smith C. Lawrence Keesey, Esquire
Attorney General Department of Community Affairs
The Capitol 2571 Executive Center Circle E. Tallahassee, Florida 32301 Tallahassee, Florida 32301
Honorable Gerald A. Lewis Bonnie Davis, Esquire
Comptroller Florida Public Service Commission
The Capitol Fletcher Building Tallahassee, Florida 32301 101 E. Gaines Street
Tallahassee, Florida 32301
Honorable Ralph Turlington
Commissioner of Education J. Alan Cox, Esquire
The Capitol MACLEAN, AMATO, ARLEN, et al. Tallahassee, Florida 32301 105 West Fifth Avenue
Tallahassee, Florida 32303
Honorable Doyle Conner
Commissioner of Agriculture Susan F. Delegal, Esquire The Capitol Office of General Counsel Tallahassee, Florida 32301 Attorney for Broward County
Governmental Center, Suite 423
Honorable Bill Gunter 115 S. Andrews Avenue Insurance Commissioner and Ft. Lauderdale, Florida 33301
Treasurer
The Capitol Karen Brodeen, Esquire Tallahassee, Florida 32301 Department of Environmental
Regulation
2600 Blair Stone Road Timothy A. Smith, Esquire Tallahassee, Florida 32301 Kerri L. Barsh, Esquire
GREENBERG, TRAURIG, ASKEW, HOFFMAN,
LIPOFF, ROSAN and QUENTEL Elizabeth D. Ross, Esquire 1401 Brickell Avenue South Florida Water Management Miami, Florida 33131 District
Post Office Drawer V
West Palm Beach, Florida 33402
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
IN RE: NORTH BROWARD COUNTY ) RESOURCE RECOVERY PROJECT )
POKER PLANT SITING ) CASE NO. 86-0674
CERTIFICATION APPLICATION ) (Certification Hearing) PA 86-22 )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on October 14-16, 1986, in Pompano Beach, Florida.
APPEARANCES
For the Applicants: Clifford A. Schulman, Esquire
Timothy A. Smith, Esquire Kerri L. Barsh, Esquire Greenberg, Traurig, Askew,
Hoffman, Lipoff, Rosen & Quentel, P.A. 1401 Brickell Avenue, PH-1
Miami, Florida 33131
For the Department Julie Cobb Costas, Esquire
of Environmental Department of Environmental Regulation Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
For the Department C. Lawrence Keesey, Esquire
of Community Department of Community Affairs Affairs 2571 Executive Center Circle, E.
Tallahassee, Florida 32301
For the South Elizabeth D. Ross, Esquire
Florida Water South Florida Water Management District Management District 3301 Gun Club Road
West Palm Beach, Florida 33402
For the City of J. Allen Cox, Esquire Pompano Beach, City 105 West Fifth Avenue
of Deerfield Beach, Tallahassee, Florida 32303 City of Coconut
Creek, and City of Sunrise
PRELIMINARY STATEMENT
On February 26, 1986, Broward County and North Broward County Resource Recovery Project, Inc. (Applicants), filed their application with the Department of Environmental Regulation (DER) for power plant site certification for a resource recovery facility to be located in Broward County, Florida. Pursuant to Section 403.508(1) and (2), Florida Statutes, a land use hearing was held before the undersigned Hearing Officer on June 9, 1986, and a Recommended Order was submitted to the Governor and Cabinet, sitting as the Siting Board, on July 1, 1986. By order of September 7, 1986, the Siting Board concluded that the proposed site is consistent and in compliance with existing land use plans and zoning ordinances.
By Order Number 15858, issued March 19, 1986, the Florida Public Service Commission (PSC) concluded that a need existed for the electrical generating capacity to be supplied by the proposed resource recovery facility. That order constituted the final report of the PSC required by Section 403.507(1)(b), Florida Statutes, and creates a presumption of public need and necessity under Section 403.519, Florida Statutes.
At hearing the applicants presented the testimony of 12 witnesses and their exhibits 2, 2a, 2b, 3, 4a, 4b, 5, 6, 8a, 8b, 9a, 10-20, 22-28, 28a, 38, 38a, 39-
45, 45a, 46-60, 63-65, 77-85, 86a, 87-92, 94, 96-104, 106, 106a, 106b, 108, 110,
112, 113a-1131; and 114-117 were received into evidence. Testifying on behalf of the Applicants were Thomas M. Henderson; Ronald J. Mills, accepted as an expert in environmental permitting procedures for resource recovery facilities; Peter E. Robinson, accepted as an expert in civil, sanitary and environmental engineering, with emphasis on the design of storm water control, leachate, and liner systems for landfills; Robert McCann, Jr., accepted as an expert in meteorology and air quality modeling; Sherman R. Patton, accepted as am expert in stationary engineering; John D. McKenna, accepted as an expert in chemical and environmental engineering, with emphasis on air pollution control equipment; Robin Hart, accepted as an expert in plant physiological ecology, with emphasis on the effects of acid deposition and other air pollutants on vegetation; James
Newman, accepted as an expert in wildlife ecology and zoology, with emphasis on air pollution effects; Kennard P. Kosky, accepted as an expert in mechanical and environmental engineering, together with PSD and BACT analysis and air quality modeling; Edward T. Wei, accepted as an expert in toxicology and health
risk assessments; Allan H. Smith, accepted as an expert in epidemiology and health risk assessments; and Kay H. Jones, accepted as an expert in environmental engineering.
DER presented the testimony of 4 witnesses, and its exhibits 1-3 were received into evidence. Testifying on behalf of DER were Hamilton S. Oven, Jr., accepted as an expert in the processing and review of power plant siting certification applications, and the applicability of DER rules and standards to such applications; Barry D. Andrews, accepted as an expert in the review and analysis of stationary air pollution sources for compliance with state and federal regulations, the review and evaluation of air pollution control technologies and strategies, and BACT for resource recovery facilities in the State of Florida; Steven Smallwood, accepted as an expert in mechanical engineering with emphasis on air pollution control engineering and the regulation of air pollution sources in Florida; and, Thomas G. Rogers, accepted as an expert in meterology, including air quality impact analysis and air quality modeling.
The Department of Community Affairs (DCA) offered its exhibit 1, and it was received into evidence. Eleven members of the public testified on their own behalf, and their exhibit 1 was received into evidence. In addition, four cities (Pompano Beach, Deerfield Beach, Coconut Creek, and Sunrise) that unsuccessfully had sought intervention proffered the testimony of Daniel Wartenberg and Jack Lauber, as well as their exhibits 1-3.
The proposed findings of fact submitted on behalf of the parties to this proceeding have been addressed in Appendix I to this Recommended Order.
FINDINGS OF FACT
Broward County and North Broward County Resource Recovery Project, Inc. (Applicants), propose to construct a mass-burn resource recovery facility (RRF) to meet the solid waste disposal needs of North Broward County, an area encompassing thirteen municipalities and approximately 600,000 residents. 1/
The Site
The site for the proposed RRF is a 25-acre parcel of land situated on the south side of Northwest 48th Street (Hilton Road), midway between the Florida Turnpike and Powerline Road; an unincorporated area of Broward County. As sited, the RRF would lie within an area already used for the disposal of solid waste, and within the main industrial corridor designated by the Broward County Land Use Plan.
The site is owned by the Applicants' vendor, Waste Management, Inc., and is bounded on the south and west by lands currently used by Waste Management for solid waste disposal. The lands abutting the site's east boundary, as well as lands south of the existing southerly landfill, are approved for expansion of Waste Management's landfill operation. On the south side of Hilton Road, between the Florida Turnpike and Powerline Road, are welding shops, engine repair shops, and automobile salvage yards. Located north of Hilton Road is an industrial zoned area which includes an asphalt batching plant and other industrial uses.
The Facility
The facility proposed by the Applicants will consist of a gatehouse/weigh station, receiving and handling building, furnace boilers, turbine generators, ash disposal area, cooling system, stormwater runoff control pond, and an electrical substation. When completed, the facility will initially dispose of up to 2,200 tons per day (TPD) of waste and generate up to 55.5 megawatts of electrical power. The ultimate capacity of the facility will be 3,300 TPD of waste and 83.25 megawatts of electricity.
The Need for the Facility
By Order Number 15858, issued March 19, 1985, the Florida Public Service Commission (PSC) concluded that a need existed for the electrical generating capacity to be supplied by the proposed facility. That finding of need has not been contested in these proceedings.
As designed, the proposed facility will save at least 640,000 barrels of crude oil each year and more than 12.8 million barrels over the life of the facility (20 years). The RRF will increase the reliability and total capacity of the generating system in South Florida, while avoiding the need to construct other generating facilities using fossil or nuclear fuel to achieve the same goal. The facility will generate more than 300 million kilowatt hours of electricity each year, enough electricity to serve more than 25,000 homes, and the sale of that electricity will substantially reduce the cost of disposing of MSW in Broward County.
In addition to the need for the generating capacity of the facility, its design will serve to relieve the pressure on Broward County to provide a safe, environmentally sound, and ample means of disposing of its municipal solid waste. As designed, the RRF will reduce the volume of the waste it combusts by
90 percent. That volume reduction will substantially prolong the life of existing landfills, and reduce the need to acquire new lands for landfill operations.
Impact on Wetlands and Wildlife
As proposed, the site development plan will eliminate approximately
0.73 acres of jurisdictional wetlands by filling a drainage canal which bisects the site from north to south. To replace the function of the existing canal, the Applicants proposed to construct a stormwater runoff treatment pond that will discharge into a concrete lined ditch and ultimately the South Florida Water Management District's C-14 canal.
While the existing wetlands provide some limited pollutant assimilation and contribute detrital to the C-14 canal, they are considered low quality wetlands impacted by existing landfill leachate. Since the proposed retention pond will be lined, the loss of the drainage ditch will likely improve downstream water quality due to the elimination of landfill leachate.
No wildlife refuges, conservation lands, marine sanctuaries, or critical habitats of endangered species exist within five miles of the site. Further, there are no known historic or archaeological resources on site, and the probability that any such resources of any significance might exist is remote.
Impact on Water Resources
The parties have stipulated that, built as proposed and subject to the conditions pertinent to water quality protection contained in the conditions of certification annexed as Appendix II, the proposed facility will not adversely impact water resources. Accordingly, the Applicants have provided reasonable assurances that the requirements of Chapter 40E-4, Florida Administrative Code, relating to water quality, quantity and environmental impact will be met.
Air Quality Impact Analysis
Where, as here, a proposed facility will emit a regulated pollutant at a rate equal to or greater than 100 tons per year (TPY), the facility is subject to New Source Review (NSR)-Prevention of Significant Deterioration (PSD) for all pollutants it will emit in PSD-significant amount. 2/ NSR requires an ambient air quality analysis for any pollutant for which national or state ambient air quality standards have been established (the criteria pollutants) to assure that the emission levels will not cause or contribute to a violation of ambient air quality standards (AAQS) or any applicable maximum allowable increase (a PSD- increment analysis). For any pollutant for which an AAQS has not been established (non-criteria pollutants), NSR requires air quality monitoring to assess ambiont air quality for those pollutants in the area to be affected. Finally, NSR requires that the facility apply the Best Available Control Technology (BACT) for each criteria and non-criteria pollutant subject to NSR requirements.
Pertinent to this proceeding, the pollutants subject to NSR requirements are the criteria pollutants `particulate matter (PM), sulfur dioxide (502), nitrogen oxides (NOx), carbon monoxide (CO), and lead (Pb), and the non-criteria pollutants fluoride (F), sulfuric acid mist, beryllium (Be), and mercury (Hg). 3/
To predict the impact of the proposed facility on air quality, the Applicants used DER and Environmental Protection Agency (EPA) approved air quality dispersion models. 4/ These models are used to predict maximum and average ground level concentrations for gaseous and fine particulate emissions that travel as gases, and maximum and average deposition concentrations for heavy particulates which settle out. The concentration values, as modeled, represent conservative scenarios. 5.
The Applicants' atmospheric dispersion modeling established that the emission rate of the criteria pollutants pertinent to this proceeding (PM, SO 2, NOx CO, and Pb), will not cause or contribute to a violation of primary or secondary AAQS. 6/ The modeling further established that the emissions from the facility will not cause a violation of the PSD-increment standards established for So 2 and PM. 7/
Although the Applicants have met the monitoring and air quality analysis requirements of NSR, NSR also requires that the Applicants apply the Best Available Control Technology (BACT) for each pollutant the facility will emit in excess of the significant emission rates established by Table 500-2, Rule 17-2.500, Florida Administrative Code. /8 BACT is defined by Rule 17- 2.100(22), Florida Administrative Code, as:
An emission limitation, including a visible emissions standard, based on the maximum degree of reduction of each pollutant emitted which the Department, on a case by case basis, taking into account energy,
environmental and economic impacts, and other costs, determines is achievable through application of production processes and available methods, systems and techniques (including fuel cleaning or treatment or innovative fuel combustion techniques) for control of each such pollutant.
Essentially a BACT analysis is a scientific analysis of the energy, environmental, and economic impacts of applying demonstrated technology to achieve the most feasible controls on emission rates. The purpose of such an analysis is, among other things, to ensure the optimum use of PSD increments. Under the case-by-case approach mandated by the rule, good engineering practice mandates a pollutant-by-pollutant evaluation of alternative control technologies to establish the particular emission limits that should be accepted as BACT.
The Applicants and DER initially differed on what emission limitations constituted BACT for the proposed facility. The Applicants advocated an emission limitation achievable through combustion design efficiencies and an electrostatic prescriptor (ESP). DER advocated an emission limitation achievable through application of a baghouse to control PM, Pb and other metals, and flue gas control equipment (dry scrubbers) to control acid gases (502 , F, sulfuric acid mist and hydrogen chloride). At hearing, the parties stipulated that BACT for the proposed facility was an emission limitation achievable though combustion design efficiencies and high efficiency fine particulate control technology, and that space would be provided at the facility for installation of acid gas control technology if subsequently required by rule. /9
Consistent with the parties' stipulation, the proof established that BACT for the proposed facility are emission limitations achievable through combustion design efficiencies and an ESP. These emission limitations, with the exception of PM, 502 and Pb, have been agreed to by the parties and are contained in the conditions' of certification annexed hereto as Appendix II. Accordingly, the dispute between the parties resolves itself to a determination of what emission limitations for PM, S02, and Pb can be realistically achieved with the selected BACT technology.
Emission Limits for PM & Pb
DER and the Applicants propose the following different emission limits for PM and Pb:
Pollutant | DER's Proposed Limit | Applicant's Proposed Limit |
PM | 0.015 gr/dscf on each unit. | 0.02 gr/dscf on each unit or alternatively, 0.015 gr/dscf as a facility-wide average. |
Pb | 0.00056 1b/MBtu on each unit. | 0.001 1b/MBtu on each unit or alternatively, 0.00056 1b/MBtu as a facility-wide average. |
The proof establishes that the emission limits proposed by DER are BACT.
There is no question that an ESP can be designed to consistently meet an air emission limit for PM of 0.015 gr/dscf on each unit and an emission limit for Pb of 0.00056 1b/MBtu on each unit. Such design, compared with that proposed by the Applicants, would result in a reduction of PM emissions by 25 percent and of Pb emissions by 67 percent. This equates to an annual reduction in PM emissions by 36 tons and in Pb emissions by 4 tons. At this level, the facility would no longer be considered "major" for Pb.
Acceptance of DER's emission limits as BACT is also economically acceptable. The Environmental Protection Agency (EPA) has established a figure of $3,000 per ton of PM removed as a reasonable guideline figure for evaluating compliance with New Source Performance Standards. Under DER's proposed emission limit for PM, the cost per ton of PM removed is $3,014; a cost consistent with the EPA guideline figure. Further, these costs will not be absorbed by the Applicants but will be passed on to the consumer. The citizens who elected to testify on their own behalf unanimously agreed that they would willingly absorb any reasonable cost to assure that the emissions from the facility would not adversely impact them or the environment. On average, the cost per household under DER's more stringent level of PM control will amount to little more than
$.04 per month.
While an ESP designed to meet DER's emission limits would consume more energy than the ESP proposed by the Applicants, such increase is nominal. The proposed facility is a net producer of electricity, with the capacity to generate up to 300 million kilowatt hours per year. DER's proposal would only require an additional 290,000 kilowatt hours per year over the less stringent limits proposed by the Applicants', an insignificant amount.
Emission Limits for 502
DER and the Applicants propose different emission limits for 502. DER proposes 0.31 1b/MBtu thirty day average, not to exceed 0.62 1b/MBtu one-hour average for each unit. The Applicants propose 0.55 1b/MBtu on each unit or, alternatively, 0.42 1b/MBtu as a facility-wide average. In view of the technology selected as BACT (combustion design efficiencies and an ESP), the proof supports the adoption of the Applicants' proposed limit of 0.55 1b/MBtu on each unit.
The amount of 502 emitted from a resource recovery facility is directly related to the sulfur content of its municipal solid waste (MSW). In the case of Broward County, that waste will contain large quantities of sulfur- laden vegetation the year round.
The Applicants demonstrated, based on Broward specific data on the sulfur content of its MSW and nation-wide emission testing data, that the technology selected as BACT can reasonably achieve an emission limit for 502 of
0.55 1b/MBtu on each unit. DER's proof to support a lower emissions limit was not persuasive.
DER premised its lower limits on short term test results from two Florida resource recovery facilities; Pinellas County and McKay Bay (Tampa). Out of the three sets of test runs on the Pinellas County facility, one set violated the limit proposed by DER, one set was voided, and one set met DER's proposed limit. At the McKay Bay facility, only two of the four sets of test runs met DER's proposed limit. Such results fail to demonstrate that the proposed technology can reasonably be expected to achieve DER's proposed limits for S02.
Facility-wide Averaging
With regard to the emission limits to be established for PM, Pb and 502, the Applicants submitted an alternative emission limit based on a facility- wide average of the emissions from each incineration unit. DER opposes
facility-wide averaging, and asserts that emission limits must be established for each unit. The proof establishes that facility-wide averaging is not appropriate, and that the limits heretofore established for PM, Pb, and S02 must be applied to each unit.
Chapter 17-2, Florida Administrative Code, mandates that each "source or stationary source" must obtain a permit, comply with the standards for new stationary sources, and demonstrate compliance under established stationary point source emission test procedures. Rules 17-2.210, 17-2.660, and 17-2.700, Florida Administrative Code. "Source" and "Stationary Source" are defined by Rule 17-2.100(150), Florida Administrative Code, as:
An identifiable piece of equipment (or the smallest integral combination of pieces of equipment, structures, and necessary appurtenances) that is used as a complete unit to accomplish a specific purpose or to produce a specific product; and which:
Includes at least one activity or operation which is the point of origin of an air pollutant from process or other materials or accomplishes the conversion of all or part of various materials or fuels into a pollutant;
Has at least one emission or discharge point; and
Exists at or is designed to be operated as a unit at a fixed location, although parts of the source may move while the source is in operation.
The facility proposed by the Applicants will initially consist of four incinerators, and ultimately six incinerators, each designed as a complete unit capable of processing 550 tons of MSW per day. Each unit will be vented through its own flue, which will rise within a common stack. Consequently, each unit is a "source" or "stationary source" of air pollution, and each unit must comply with the emission limits established for each pollutant.
Impact on Human Health and the Environment
During the course of these proceedings some concern was expressed regarding the emission of acid mist, heavy metals and dioxins from the proposed facility, and their potential impact on human health and the environment. While these concerns merit consideration, competent substantial evidence established that the concentration levels of all pollutants, including HCL, heavy metals and the numerous isomers of polychlorinated dibenzo-p-dioxin and polychlorinated dibenzo-furans (dioxins), are far below all known or predicated levels at which any adverse impacts to the public health, the environment, or the ecology of the land and its wildlife could be reasonably expected.
Additionally, the proposed facility will comply with primary and secondary AAQS, and its emission of regulated pollutants, with minor exception, will fall far below the de minimus standards established by Rule 17-2.500, Florida Administrative Code. Except for HCL, the concentrations of all pollutants which exceed de minimus standards, or which are of special concern in these proceedings, are less than one five-hundredth of established safe level concentrations for the work place. 10/ For HCL, the concentration level is less than the safe level concentration established for the work place or the calculated safe level (140 micrograms per cubic meter) for even the most sensitive persons (the young, the old, or the infirm).
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
While recognizing the need and demand for increased power generation facilities, it is the policy of this State to ensure that the location and operation of electrical power plants will produce minimal adverse effects on human health the environment, the ecology of the land and state waters and their wildlife and aquatid life. Thus, the need and demand for electrical power is to be balanced with the broad interests of the public. This balancing requires a consideration of the provision of abundant, low-cost electrical energy, technically sufficient operational safeguards and the need versus environmental impacts resulting from construction and operation of the facility. Section 403.502, Florida Statutes.
The evidence adduced at the certification hearing established that the construction and operational safeguards for the proposed facility are technically sufficient for the welfare and protection of the citizens of Florida. If performed in accordance with the recommended conditions of certification attached hereto as Appendix II, the construction operation and location of the proposed facility may be reasonably expected to produce minimal adverse effects on human health, the environment, the ecology of the land and its wildlife, and the ecology of state waters and their aquatic life. Certification is consistent with the premise of abundant, low-cost electrical energy and is a reasonable balance between those minimal environmental impacts which will occur and the recognized need for the proposed facility.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That the Governor and Cabinet, sitting as the Siting Board, enter a Final Order granting certification for the location, construction and operation of the proposed facility, subject to the conditions of the certification attached to this Recommended Order as Appendix II.
DONE AND ORDERED this 9th day of January 1987, in Tallahassee, Florida.
WILLIAM J. KENDRICK
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
FILED with the Clerk of the Division of Administrative Hearings this 9th day of January 1987.
ENDNOTES
1/ Broward County is the governmental sponsor of the project, and North Broward County Resource Recovery Project, Inc., is a private corporation formed by Broward County to own and operate the facility. Under the County's agreement with Waste Management, Inc., the project vendor, North Broward County Resource Recovery Project, Inc., will merge into Waste Management's corporate structure.
2/ Table 500-2, Rule 17-2.500, Florida Administrative Code, establishes a "significant emission rate" in TPY or pounds per year (PPY) for regulated pollutants. If the anticipated emission rate of a pollutant, whether a criteria or non-criteria pollutant, equals or exceeds the established significant emission rate, the pollutant is subject to the NSR requirements.
3/ DER and EPA designate geographic areas which meet AAQS for a pollutant as "attainment, and those areas which do not meet AAQS as "nonattainment". Broward County is designated as an attainment area for all criteria pollutants except ozone. Under such circumstances the applicants would normally be required to undergo "non-attainment-new source review" for the pollutant ozone. However, where as here, less than 100 TPY of volatile organic compounds (the controlling pollutant for ozone) will be emitted, non-attainment review is unnecessary and such pollutant is not pertinent to these proceedings.
4/ The applicants used the EPA-approved Industrial Source Complex Short-term (ISCST) atmospheric dispersion model to complete its air quality impact analysis. The model incorporates elements for plume rise, transport by the mean wind, Gaussion dispersion, atmospheric transformation or deposition, building wake downwash, and various other features.
5/ For modeling purposes, the facility was assumed to operate for short periods of time (24 hours or less) at 110 percent of the nameplate capacity of 2,200 TPD, and on an annual basis the model assumes 80 percent operation.
6/ Federal and state laws establish primary AAQS to protect the public health and secondary AAQS to protect the public interest in animal and plant life, property, visibility and atmospheric clarity.
7/ The PSD-increments represent the amount that new sources in an area may increase ambient ground-level concentrations of 502 and PM over the concentrations that existed on December 27, 1977 (the "baseline date").
DER also suggests that:
it is appropriate to select as BACT a technology that will reduce the emissions of criteria and non-criteria pollutants more stringently than would normally be required, in order to reduce the non-traditional and presently non-regulated "exotic" pollutants of concern. (DER proposed findings of fact, paragraph 25)
As a generalization, DER's suggestion is ill founded.
8/ DER may properly regulate the discharge of any pollutant which may result in "air pollution", as defined by Rule 17-2.100(7), Florida Administrative Code.
That rule defines "air pollution" as:
The presence in the outdoor atmosphere of the state of any one or more substances or pollutants in quantities which are or may be harmful or injurious to human health or welfare, animal or plant life, or property, or unreasonably interfere with the enjoyment of life or property, including outdoor recreation.
Accordingly, to justify the regulation of a non-regulated pollutant would require that DER articulate a rational basis from which it could be concluded that such non-regulated pollutant was or could be harmful or injurious to human health or the other interests sought to be protected. See: City of Tallahassee
v. Florida Public Service Commission, 473 So.2d 505 (Fla. 1983) and McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). In this case, DER made no such showing. Therefore, there is no rational basis to impose stricter emission limits on the regulated pollutants in order to reduce non- regulated emissions.
9/ DER has commenced rule making procedures designed to discern the need for acid gas controls and, if needed, what controls should be imposed.
10/ The American Conference of Governmental Industrial Hygienists has published a list of threshold limit values (TLVs) for certain pollutants. These TLVs are based on human and animal experiments, and represent a level of concentration which will produce no adverse effects to a worker exposed 40 hours per week, 365 days a year, for a lifetime.
APPENDIX I
The Applicants' proposed findings of fact are addressed as follows:
Addressed in paragraph 1.
Addressed in paragraph 7.
Addressed in paragraphs 7 & 30.
Addressed in paragraphs 2 & 3.
5-6. Addressed in paragraphs 8-11 and Appendix II. 7-10. Addressed in paragraphs 12-15.
11-14. Addressed in paragraphs 10 & 31-32.
Addressed in paragraph 16.
Addressed in paragraphs 16, 18 & 19.
Addressed in paragraphs 19, 20 & 24.
13. Addressed in paragraph 17.
19-21. Addressed in paragraphs 18 & 19.
22-24. Addressed in paragraphs 20-23 & 28-30.
25. Addressed in paragraphs 24-30.
DER's proposed findings of fact are addressed as follows:
Addressed in paragraph 1.
Addressed in paragraph 4.
Addressed in paragraphs 2-3.
Addressed in paragraph 4.
Addressed in paragraph 3.
6-7. Addressed in paragraphs 8-9.
8-13. Addressed in paragraphs 8-9 & 11.
14-18. Addressed in paragraph 12.
19-20. Addressed in paragraph 13.
21-22. Addressed in paragraph 14.
23-24. Addressed in paragraph 15.
25-26. Addressed in paragraph 16.
27. Addressed In paragraph 18.
28-30. Addressed in paragraph 16 & 18.
31-41. Addressed in paragraphs 20-30.
COPIES FURNISHED:
Honorable Bob Martinez Governor
The Capitol
Tallahassee, Florida 32301
Susan F. Delegale Esquire Office of General Counsel Attorney for Broward County Governmental Center, Suite 423
115 South Andrews Avenue
Ft. Lauderdale, Florida 33301
Honorable George Firestone Secretary of State
The Capitol
Tallahassee, Florida 32301
Karen Brodeen, Esquire
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
Honorable Robert Butterworth Attorney General
The Capitol
Tallahassee, Florida 32301
Elizabeth D. Ross, Esquire
South Florida Water Management District 3301 Gun Club Road
West Palm Beach, Florida 33402
Honorable Gerald A. Lewis Comptroller
The Capitol
Tallahassee, Florida 32301
Honorable Betty Castor Commissioner of Education The Capitol
Tallahassee, Florida 32301
Honorable Doyle Conner Commissioner of Agriculture The Capitol
Tallahassee Florida 32301
Honorable Bill Gunter Insurance Commissioner and
Treasurer The Capitol
Tallahassee, Florida 32301
Clifford A. Schulman, Esquire Timothy A. Smithe Esquire Kerri L. Barsh, Esquire
Greenberg, Traurig, Askewe Hoffman, Lipoff, Rosen & Quentel, P.A.
1401 Brickell Avenue, PH-1 Miami, Florida 33131
Julie Cobb Costase Esquire
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee Florida 32301
C. Lawrence Keesey, Esquire Department of Community Affairs 2571 Executive Center Circle East Tallahassee, Florida 32301
Bonnie Davis, Esquire
Florida Public Service Commission Fletcher Building
101 East Gaines Street Tallahassee Florida 32301
J. Allen Cox, Esquire
105 lest Fifth Avenue Tallahassee, Florida 32303
| Issue Date | Proceedings |
|---|---|
| Jul. 01, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 09, 1987 | Agency Final Order | |
| Jul. 01, 1986 | Recommended Order | Balancing the need for electrical power with the interests of the public supported certification of power plant site |
