Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Agency for Health Care Administration, was the state agency responsible for the licensing of and the regulation of activities of nursing homes in Florida. The Respondent, Integrated Health Services, Inc., operated Heritage Park of Bradenton, a 120-bed nursing home facility in Bradenton, Florida. Soon after his employment by the Respondent, Duane E. Hathaway, the facility maintenance director, was conducting a familiarization survey of the facility's physical plant. He had previously been briefed on the possible severity of hurricane winds experienced in the area and was interested in the two back-up systems the facility had to provide electrical power in the event the regular power supply was interrupted. One system was a battery system which would operate the nurse call system and fill certain other emergency requirements. The other back-up system was a 90 kw Kohler generator powered by a 460 horsepower Ford propane engine. This generator was to be the main power source during emergency conditions which resulted in the main power supply being interrupted. During the course of his inspection, Mr. Hathaway found that the generator was not performing properly. Not relying only on his own inspection, he had the unit surveyed by a local generator company, Tampa Armature Works, (TAW), which advised him the generator was not holding a load as it was supposed to do. Though the generator worked, its performance was not reliable in an emergency and often resulted in a requirement for each load factor to be brought on line manually. There also was a question as to whether it could carry a full load for an extended period of time. Under the Agency's rules governing the operation of nursing homes, existing licensed nursing homes are not required to have emergency generators unless they employ life support systems in the facility. Heritage Park of Bradenton does employ life support systems and did at the time in issue. Therefore, it was required to have an emergency generator installed and operable in the facility. When the difficulty was discovered with the facility's existing generator, either Mr. Hathaway or Ms. Wilingham telephoned to Mr. Jay Grollman, the director of design and construction for Integrated, Heritage's parent company, who knew of a spare generator located at the company's Miami facility. This generator in Miami was good for Heritage because it was nearby and was certified for use in health care facilities by the Agency. It had been installed and maintained at the Miami facility by TAW which, when contacted, indicated that all factors being considered, it was the best option for Heritage Park of Bradenton and would meet their needs. This generator also met all standards set by the National Fire Protection Association. Thereafter, Respondent hired TAW to move the generator from the Miami facility to the Bradenton facility and install it. It was packaged at Miami, placed on a truck and transported to Bradenton where it was installed. Once installed, done in one day, a load bank test was done which indicated some minor difficulties which were remedied at once. The building load test was then done successfully and so was a subsequent bank test. The generator now is working properly and is currently tested weekly. Only minor discrepancies are ever noted and these are immediately corrected. On December 20, 1995, during the course of an annual inspection of the Respondent's Bradenton facility, Mr. Mehaffey, the Agency team's fire inspector, was advised by Mr. Hathaway that the facility's emergency generator recently had been changed out because they had been having problems with it in the past and had chosen to replace it. When Mr. Mehaffey asked if the facility had submitted plans for approval in advance of the change, Mr. Hathaway did not know. Somewhat later that day, however, in the Administrator's office, Ms. Willingham indicated that plans for the change-out had not been submitted in advance. At that point, Ms. Willingham indicated the facility had other approved work under way and she thought the generator change-out might be included in that. Nonetheless, Mr. Mehaffey wrote up the change-out as a violation on a formal complaint which was consistent with other prior instructions he had received. According to Ms. Willingham, who has been an administrator with the Respondent for several years, renovations other than the replacement of the generator had been granted a CON waiver by the Agency and submitted to the Agency's OPC before the generator work was contemplated, She was advised in September, 1995 by Mr. Hathaway that the existing generator was not up to snuff, and because it was the middle of a very active hurricane season, she called Mr. Grollman for advice. Because the Heritage Park facility has contracts to receive evacuees from other facilities during emergencies, and also has the need to shelter staff families and others in need, a reliable emergency generator is important to have in the event of a hurricane or other disaster. Ms. Willingham's immediate concern was for resident safety. When Mr. Grollman recommended the change in the generator, the new unit was installed within a week and a half of identification of the problem. As a result of the December 1995 annual survey, the facility was awarded a superior rating. Aside from the write-up for the generator, only a few minor deficiencies were identified, none of which were serious and all of which were corrected immediately. The generator write-up was included only because representatives of the facility, Mr. Hathaway and Ms. Willingham, had advised the Agency inspector of the change-out. No attempt was made to hide it. After the inspection, on December 31, 1995, Mr. Grollman, by letter, contacted the OPC to see if the generator replacement could be added to the existing project. Mr. Grollman's rationale in support of that proposal was that the failure to secure advance approval was an oversight occasioned by the emergency situation and the partial and impending failure of the system during the hurricane season. No immediate response from the Agency was forthcoming. However, on June 4, 1996, Mr. Gregory signed the Administrative Complaint reflecting the intention to impose a $5,000.00 fine. On June 24, 1996, another official from OPC, by letter, advised Ms. Willingham that the construction project had been surveyed and occupancy of the area approved subject to certain deficiencies noted in the survey. Only six deficiencies were noted. Of these, only one related to the generator, and that one required " a grade in wall opening at the generator exhaust area." In reality, that was a construction item. The cost of the project to which the generator was added was initially $285,000. The cost of shipping and moving the generator was an additional $25,000. Ms. Willingham recognized that the Agency's rule requires that all "contemplated" new construction or acquisition be submitted for prior approval but she is bemused by what the term "contemplated" actually means. Her prior inquiries to the Agency provided no clear answer. One source she contacted, not further identified, indicated that replacement of a product with a like product does not require prior approval. A question as to the need to seek prior approval to replace wall paper met with diametrically opposing advice. Ms. Willingham contends, and it is obvious, that she did not make a conscious decision not to seek agency approval of the generator change. She merely felt it was not that sort of project which needed to be reported. Fire alarm and nurse call replacements were called in for prior approval. OPC employs teams of architects and engineers to review all plans for modifications of and improvements to regulated health care facilities and reviews on site the construction related thereto for compliance with pertinent agency rules and statutes dealing with fire safety. It also reviews system installations and design criteria, air distribution, pressure relationships and fire alarm, nurse call and gas transmission systems. OPC is a part of the Governor's Emergency Operation Center and provides response teams in hurricane, flood or emergency areas to do assessments and give assistance as necessary. Some teams are based at diverse areas throughout the state. Teams are constantly on the road, and other teams stand ready in the office to be deployed in any emergency situation. According to Mr. Davis, a professional engineer who was working for the Agency at the time, personnel from OPC's Orlando office were available to go to Bradenton on very short notice if necessary and, in fact, were going there on a regular basis. As such, they could have taken part in an approved generator swap-out had Respondent sought approval. That being the case, the Agency contends, there was no emergency situation justifying non-compliance with the "prior approval" rule. Another function of OPC is to see that all required tests are carried out on new generators and that they are properly installed and within code before they come on line. The office also participates in the development of generator watch situations in the case of temporarily non-conforming generators. A significant part of the office operation is to approve plans for emergency situations. A generator is a part of the electrical system of a nursing home. In the instant case, a 30-bed medical specialty unit was being constructed which would hold patients needing life support. In a case such as here, the existing generator might be increased in size and the generator integrated with the existing electrical system. Nursing home administrators are advised by an Agency newsletter of all new requirements. In August 1994, this newsletter included an article concerning the requirements for submittal of plans for any construction or modification, regardless of how small. In addition, in either April or May 1994, Mr. Gregory sent a mass mailing to every nursing home administrator in the state regarding the need to advise OPC in advance of every modification so that a determination could be made if further review is necessary. Mr. Gregory receives three to four replies per day (300 - 400 per year) from which he determines whether the proposed project is sufficient or what else might be needed. Generator problems he has experienced include leaking oil, a loss of coolant or air pressure, overheating, a lack of monitoring alarms and the like. In the instant case, the Respondent did not submit plans for any generator upgrade in 1995 prior to the installation. What Mr. Gregory describes as "upgraded construction" came to his attention through a December 20, 1995 recommendation for administrative complaint submitted by Mr. Mehaffey. After receiving it, Mr. Gregory discussed the situation and what had to be done to rectify the situation by telephone with the planning director for Integrated, Mr. Grollman. He also had a discussion with the architect of the approved project. That project did not address the need for a different generator. Mr. Gregory contends that when Respondent identified the need for a replacement generator it should have phoned OPC and so indicated. The parties would then have had a dialogue on what had to be done to include, if necessary, sending an engineer to the site to insure the generator was installed correctly and according to code. In the instant case, TAW, which installed the generator, was not under the supervision of a professional engineer as Gregory indicates was required. The generator in issue was installed before any plans were submitted for review. As a result, according to Mr. Gregory nothing was done to insure it was installed and tested properly and according to code. No information was provided to the Agency to indicate if the new generator matched the need it would be used to meet or if it was the proper size, had the proper breaker ratings or the appropriate ACI ratings. Even though the Agency learned of the installation in December 1995, it did not send out an engineer to inspect the work until April 1996. Information received from the installer by the Agency's design engineers, and from the plans sent in, indicated deficiencies. Inspection showed the generator had an overheating problem along with other installation issues relating to alarms. These deficiencies, acknowledged by Mr. Hathaway, were corrected and the installation approved with the other construction in June 1996, well after the generator was installed. Mr. Gregory knows of no Agency rule which refers to emergency situations, except for the state emergency plan, EFS-8, which deals with natural or nuclear disasters. The plans for the generator were finally submitted in March 1996, after Mr. Gregory spoke with the architect who was supervising the new approved project. The architect said he would arrange for the plans to be submitted for inclusion in the ongoing project. Mr. Gregory concurred with this plan subject to CON office approval. Nevertheless, even in light of this and considering the conversations with Mr. Grollman and Mr. Mehaffey; and recognizing there was no intent to deceive shown by the Respondent, Mr. Gregory still recommended imposition of the maximum fine. This was after Respondent, in December 1995, requested, in writing, a waiver of the Administrative Complaint and agreed that the plans and installation would be modified as required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: Recommended that the Agency for Health care Administration assess an administrative fine of no more than $500 for Respondent's failure to submit plans for generator replacement to the Agency in advance of project initiation, as required. RECOMMENDED this 15th day of November, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1996. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 7827 North Dale Mabry Highway, Number 100 Tampa, Florida 33614 R. Bruce McKibben, Jr., Esquire Holland and Knight Post Office Box 810 Tallahassee, Florida 32302-0810 Sam Power Agency Clerk Agency for Health Care Administration Fort Knox Building Three, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
Conclusions THIS CAUSE comes before the AGENCY FOR HEALTH CARE ADMINISTRATION (the "Agency") regarding Certificate of Need ("CON") CON Application No. 10117. This matter concerned the establishment of a 24-bed comprehensive medical rehabilitation program for which the Agency issued a notice of preliminary intent to deny. This matter also concerned Application No. 10118, which proposed the establishment of a 34-bed comprehensive medical rehabilitation hospital which the Agency had preliminarily approved as submitted by Healthsouth Rehabilitation Hospital of Martin County, LLC. On July 22, 2011, JFK Medical Center Limited Partnership d/b/a JFK Medical Center (“JFK”) filed a Petition for Formal Administrative Proceeding to contest the noticed preliminary intent to deny its CON Application No. 10117 and to contest the preliminary approval of HealthSouth Rehabilitation Hospital of Martin County, LLC of CON 10118, which the Agency Clerk forwarded to the Division of Administrative Hearings (‘DOAH”) and assigned DOAH Case No. 11-3638CON. On July 22, 2011, TENET ST. MARY'S, INC. D/B/A ST. MARY'S MEDICAL CENTER (“Tenet St. Mary”) filed a Petition for Formal Administrative Hearing to contest the Agency’s preliminary approval of CON 10118 to HealthSouth Rehabilitation Hospital, which was forwarded to DOAH and assigned DOAH Case No. 11-3635CON. On September 2, 2011, JFK filed a Notice of Voluntary Dismissal. On September 6, 2011, DOAH entered an Order Severing Cases DOAH Case Nos. 11-3638CON and 11-3848CON from 11-3635CON so that an Order Closing File could be entered in DOAH Case No. 11-3638CON and as to Case No: 11-3648CON which the ALJ determined was rendered moot by the voluntary dismissal. On September 6, 2011, Tenet St. Mary filed a Notice of Voluntary Dismissal dismissing its Petition (DOAH Case No. 11-3635CON). On September 7, 2011, DOAH entered an Order Closing File in DOAH Case No. 11-3635CON. IT IS THEREFORE ORDERED AND ADJUDGED THAT: 1. The voluntary dismissals of JFK and St. Mary and the Order Closing File by DOAH are hereby acknowledged and accepted. 2. The Petitions filed by Tenet St. Mary and JFK are hereby dismissed. 3. Each party shail be solely responsible for its respective costs and attorney’s fees. 4. The Agency action regarding CON 10118, awarding the establishment of a 34-bed comprehensive medical rehabilitation hospital to Healthsouth Rehabilitation Hospital of Martin County, LLC is upheld. 5. The above-styled cases is hereby closed. DONE and ORDERED this 271 day of _Seplember 2011, in Tallahassee, Florida. Elizabeth Dudek, Sécfetary AGENCY FOR HEAL{H CAR
The Issue The issue to be determined in this case is whether the Governor and Cabinet, sitting as the Siting Board, should grant certification to New Hope for the expansion of the Okeelanta cogeneration facility to a total net steam electrical generating capacity of 140 megawatts (”MW”).
Findings Of Fact The Applicant The Applicant, New Hope Power Partnership, is a Florida partnership that owns the existing Okeelanta cogeneration Facility. Ex. 1 at 1-1, 3-1. New Hope will also own the Project. See id. The Site The Facility is located in an unincorporated area in western Palm Beach County, Florida. Ex. 1 at 2-1; Ex. 4 at 6; T It is approximately six miles south of South Bay and two miles west of U.S. Highway 27. Id. The Facility is located on a site (the ”Site”) that is approximately 82.1 acres in size. Ex. 1 at 2-1; Ex. 4 at 8; T 19. The Site is adjacent to Okeelanta Corporation’s existing sugar mill, sugar refinery, and sugarcane fields. Ex. 1 at 2-1; Ex. 4 at 6; T 17, 20. The Surrounding Area There are large buffer areas around the Site. See Ex. 1 at 2-1, 2-2, 2-4; Ex. 4 at 6; T 17-18. Almost all of the land within five miles of the Site is used for agricultural purposes (sugarcane farming). Id. The community nearest the Site is South Bay. Ex. 1 at 2-2; Ex. 4 at 6; T 17. The nearest home is more than 3.5 miles northeast of the Site. Ex. 1 at 2-4; Ex. 5 at 9; T 17-18. The Facility is adjacent to an existing electrical substation (Florida Power & Light Company’s Okeelanta Substation). See Ex. 1 at 1-2. An existing electrical transmission line connects the Facility to the substation. Ex. 1 at 3-1. The Existing Facility The Facility uses biomass fuels (e.g., bagasse from the sugar mill; clean wood waste) to generate steam and up to 74.9 MW of electricity (net). Ex. 1 at 1-1, 3-1; Ex. 4 at 6-7; T 18. The Facility supplies steam to the sugar mill during the sugarcane harvest (October through March) and it supplies steam to the refinery throughout the year. Ex. 1 at 1-2, 3-1; Ex. 4 at 7; see T 18. Excess steam from the Facility is used to generate electricity, which is sold to utility companies, including Florida Power & Light Company. Ex. 1-3; Ex. 4 at 7; See T 50-51. The existing Facility includes three steam boilers, one steam turbine/electrical generator, a cooling tower, an electrical switchyard, materials handling and storage facilities for biomass fuels, and ancillary equipment. Ex. 1 at 2-1, 3-1; Ex. 4 at 7; T 20-21. The Expansion Project The Expansion Project will increase the Facility’s electrical generating capacity by 65 MW (net), creating a total generating capacity of 140 MW (net). Ex. 1 at 1-1, 1-3, 2-1; Ex. 4 at 7; T 18. The Expansion Project will involve the installation of a new turbine/electrical generator, a cooling tower, and related equipment at the Site. Ex. 1 at 1-3, 2-1; Ex. 4 at 8; T 19. Construction of the Expansion Project Approximately 0.5 acres of the Site will be occupied by the new equipment that will be installed for the Expansion Project. Ex. 1 at 2-1; Ex. 4 at 8; T 19. The construction of the Project will occur in disturbed upland areas that already are used for industrial operations. Ex. 1 at 3-2, 4-1; Ex. 4 at 9; T 20. No construction will take place in any wetland, wildlife habitat, environmentally sensitive area, or 100-year flood plain. Ex. 1 at 2-2, 2-18, 4-1; Ex. 4 at 9; T 20. No new electrical transmission lines will need to be built to accommodate the additional electrical power generated by the Expansion Project. See Ex. 1 at 3-1, 6-1. During construction, there will be a temporary increase in sound levels due to the heavy equipment associated with the construction process. Ex. 1 at 4-9 through 4-10; Ex. 5 at 9; T 42-43. Given the remote location of the Site, the sounds generated by the construction of the Expansion Project will not interfere with human activities or otherwise cause a nuisance at any residential locations. Id. The construction of the Expansion Project will result in a temporary increase in traffic on some roads near the Site, but these roads will continue to operate at acceptable traffic levels. Ex. 1 at 4-8 through 4-9; Ex. 5 at 9; T 42. Operation of the Expansion Project The Facility currently operates at its full capacity during the sugarcane harvest. See Ex. 30, Technical Evaluation at 2. The Expansion Project will enable the Facility to operate at its full capacity year-round. See Ex. 1 at 3-1 through 3-2; Ex. 30, Technical Evaluation at 2. Although the Facility will generate more electricity after the Expansion Project is completed, the basic operation of the Facility will not change. Ex. 4 at 10; Ex. 5 at 6; T 22. The Facility has a water use permit issued by the South Florida Water Management District, which authorizes the Facility to use water from the Miami/North New River Canal System, the surficial aquifer, and the Floridan aquifer. Ex. 1 at 3-11; Ex. 5 at 7; T 40-41. The Okeelanta Corporation also may provide water to the Facility, in accordance with the SFWMD water use permit for the Okeelanta Corporation’s sugar mill. Ex. 5 at 7; T 41. After the Expansion Project is completed, the amount of water used by the Facility will increase, commensurate with the increased use of the Facility. Ex. 5 at 7; DEP Ex. 2, Staff Analysis Report at 3; T 41. The additional water will be obtained from the cooling pond/rock pit located at the adjacent sugar mill. Id. In March 2005, the SFWMD issued a water use permit that allows the Okeelanta Corporation to increase the amount of water provided to the Facility from 0.4 mgd to 2.0 mgd. Ex. 37; see T 41. The Facility’s stormwater and process water are routed to a 600-acre area that is divided into four percolation basins. Ex. 1 at 3-16; Ex. 5 at 8; T 41. Each basin is used on a rotating basis--i.e., the basin is used for percolation for one year and then it is used for growing sugarcane for three years. Ex. 5 at 8; T 41. Each percolation basin is designed to hold all of the Facility’s process water, plus all of the contact and non-contact stormwater runoff from a 100-year, three-day storm event. Id. The Facility does not discharge any stormwater or process water to any surface water. Ex. 1 at 5-9; Ex. 5 at 8; T 41-42. The Facility’s use of the percolation ponds has not caused and is not expected to cause any violations of any ground water quality standards. Ex. 5 at 8. The Facility generates fly ash and bottom ash from the combustion of biomass fuels. Ex. 1 at 3-16, 5-10; Ex. 5 at 9; T 42. These materials are taken to a landfill for disposal. Id. The operation of the Expansion Project will not have any significant impacts on traffic. Ex. 1 at 5-17; Ex. 5 at 9; T 42. The local roads will continue to operate at an acceptable level of service. Id. Air Quality Regulations The Facility must comply with New Source Performance Standards (”NSPS”) and Best Available Control Technology (”BACT”) requirements, both of which impose strict limits on the Facility’s airborne emissions. See Ex. 1 at 3-5; Ex. 30, Technical Evaluation at 3. The Facility also must comply with Ambient Air Quality Standards (”AAQS”) and Prevention of Significant Deterioration (”PSD”) standards, which establish criteria for the protection of ambient air quality. Id. The Facility previously was reviewed and approved under the PSD program. Ex. 1 at 3-5; Ex. 5 at 6; Ex. 30, Technical Evaluation at 2; T 39-40. The DEP has determined that the Expansion Project is not subject to PSD pre-construction review. Ex. 5 at 6; Ex. 30, Technical Evaluation at 5; T 38. The cooling towers will be the only new source of air pollution associated with the Expansion Project. Ex. 1 at 3-5; Ex. 5 at 6; T 38. The water droplets leaving the cooling tower will evaporate, causing small amounts of particulate matter to enter the atmosphere near the Site. Ex. 5 at 6; T 38. However, the emissions from the cooling tower are so small that the cooling tower is exempt from the permitting requirements established by the DEP. Id. Best Available Control Technology A BACT determination is required for each pollutant for which PSD review is required. Ex. 1 at 3-5; Ex. 5 at 7; DEP Ex. 2, Staff Analysis Report at 15. BACT is a pollutant- specific emission limit that provides the maximum degree of emission reduction, after taking into account the energy, environmental, and economic impacts and other costs. Ex. 1 at 3-5; Fla. Admin. Code R. 62-210.200(38). As part of its BACT analyses for the Facility, DEP determined that mechanical cyclone dust collectors and an electrostatic precipitator (”ESP”) will control the Facility’s emissions of particulate matter, a selective non-catalytic reduction system (”SNCR”) will control oxides of nitrogen (”NOx”), use of low-sulfur fuels will control sulfur dioxide emissions, and proper facility design and operating methods will control other pollutants. Ex. 1 at 3-6 through 3-8; Ex. 30, Draft Permit at D-1; T 40. Accordingly, these air pollution control systems and techniques are utilized at the Facility. Id. The Facility also uses an array of continuous emissions monitors to ensure that the Facility is continuously in compliance with the BACT emission limits. Ex. 1 at 5-14; Ex. 30, Draft Permit at E-1 through E-2. Protection of Ambient Air Quality The EPA has adopted ”primary” and ”secondary” National Ambient Air Quality Standards (”NAAQS”). See Ex. 1 at 2-21. The primary NAAQS were promulgated to protect the health of the general public with an adequate margin of safety. See Ex. 1 at 2-21; see also 42 U.S.C.A. § 7409(b) (1997). The secondary NAAQS were promulgated to protect the public welfare, including vegetation, soils, visibility and other factors, from any known or anticipated adverse effects associated with the presence of pollutants in the ambient air. Id. Florida has adopted EPA’s primary and secondary NAAQS, and has adopted some Florida AAQS (”FAAQS”) that are more stringent than EPA’s NAAQS. See id. The Facility’s potential impacts on ambient air quality were evaluated by DEP, based on the continuous operation of the Facility at full load, following completion of the Project. Ex. 30, Technical Evaluation at 4. DEP concluded that the maximum impacts from the Facility will not cause or contribute to any violations of AAQS. Ex. 1 at 5-10 through 5- 14; Ex. 5 at 6-7; Ex. 30, Technical Evaluation at 4; Ex. 5 at 6; T 39. Other PSD Analyses The PSD program provides protection for those areas that have good air quality. See Ex. 1 at 2-22; Ex. 30, Technical Evaluation at 3-4. Different areas of Florida have been designated as PSD ”Class I” or ”Class II” areas, depending upon the level of protection that is to be provided under the PSD program. Id. In this case, the Project is located in a PSD Class II area. Id. The nearest PSD Class I area is the Everglades National Park (”Everglades”), which is approximately 92 kilometers (”km”) south of the Site. Ex. 1 at 2-22. The DEP’s analyses demonstrate that the Facility’s impacts on ambient air quality will not violate any applicable PSD requirement for the Class I and Class II areas. Ex. 1 at 5- 14; Ex. 5 at 6; Ex. 30, Technical Evaluation at 4; DEP Ex. 2, Staff Analysis Report at 16-17; T 39. Compliance With Air Standards New Hope has provided reasonable assurance that the Expansion Project and the Facility will comply with all of the applicable air quality standards and requirements. Ex. 5 at 7; Ex. 30; DEP Ex. 2, Staff Analysis Report at 17; T 38-40. Environmental Benefits of the Project The Expansion Project will provide environmental benefits. Ex. 1 at 7-3 through 7-4; Ex. 5 at 10; T 43-44. For example, the Project will be capable of producing approximately 65 MW (net) of electricity in Southeast Florida, which needs new electrical generating capacity. Ex. 1 at 7-3 through 7-4; Ex. 5 at 10; T 43-44. The Expansion Project will also enhance fuel diversity by using renewable biomass fuels to generate electricity. Id. Over 20 years, the Project may displace the use of approximately 5,600,000 barrels of oil worth nearly $170,000,000 (assuming oil prices of $30 per barrel). Id. In addition, the Expansion Project will beneficially reuse clean wood waste, which otherwise would likely be placed in a landfill for disposal. Ex. 1 at 7-4; Ex. 5 at 10; T 44. The Facility receives wood waste and biomass materials from Miami-Dade County, the Palm Beach County Solid Waste Authority, and approximately 25 private recycling companies, thus assisting them with their solid waste management programs. Ex. 5 at 10; T 44. The Facility also burns melaleuca trees that have been removed pursuant to land clearing programs for the eradication of this nuisance species. Ex. 5 at 10. Socioeconomic Benefits of the Project The Expansion Project will provide jobs for an average of 70 construction workers during the 12-month construction phase of the Project. Ex. 1 at 7-1 through 7-2; Ex. 5 at 10; T 43. Approximately $3.5 million will be paid in wages for construction employees working on the Expansion Project. Id. Consistency with Land Use Plans and Zoning Ordinances The proposed use of the Site is consistent and in compliance with Palm Beach County’s comprehensive land use plan and zoning ordinances. Ex. 1 at 2-2 through 2-4; Ex. 4 at 16; Ex. 23; Ex. 24; Ex. 38; Ex. 39; T 28-29. The Facility and Project have both been reviewed and approved by the Palm Beach County Board of County Commissioners. Ex. 4 at 11-12; Ex. 23; Ex. 24; T 23-25. Compliance with Environmental Standards New Hope has provided reasonable assurance that the Facility and Project will comply with all of the nonprocedural land use and environmental statutes, rules, policies, and requirements that apply to the Project, including but not limited to those requirements governing the Project’s impacts on air quality, water consumption, stormwater, and wetlands. Prehearing Stipulation at 24, paragraph 5.B.3.; Ex. 5 at 11; DEP Ex. 2, Staff Analysis Report at 22; T 44-45, 60. The location, construction and operation of the Facility and Project will have minimal adverse effects on human health, the environment, the ecology of the State’s lands and wildlife, and the ecology of the State’s waters and aquatic life. Ex. 5 at 12; DEP Ex. 2, Staff Analysis Report at 20; T 45-46, 61-62. The Facility and Project will not unduly conflict with any of the goals or other provisions of any applicable local, regional or state comprehensive plan. Ex. 4 at 16; Ex. 23; Ex. 24; Ex. 38; Ex. 39; T 28-29. The Conditions of Certification establish operational safeguards for the Facility and Project that are technically sufficient for the protection of the public health and welfare. Ex. 5 at 13; T 46-47, 61. Agency Positions and Conditions of Certification On November 18, 2004, the PSC issued an Order (No. PSC-04-1105A-FOF-EI) granting New Hope’s petition for determination of need for the Expansion Project. Ex. 22; DEP Ex. 2, Staff Analysis Report at 4-6, 12-13. The PSC determined, consistent with the criteria of Section 403.519, Florida Statutes, that the Expansion Project is needed. Id. The DEP, DOT, DCA, and SFWMD all recommend certification of the Expansion Project, subject to the Conditions of Certification. Prehearing Stipulation at 10-11, 13-16. New Hope has accepted, and has provided reasonable assurance that it will comply with, the Conditions of Certification. Prehearing Stipulation at 24-25, paragraph V.B.4; Ex. 5 at 11-12; T 45, 61-62. Public Notice of the Certification Use Hearing On September 29, 2004, New Hope published a ”Notice of Filing of Application for Electrical Power Plant Site Certification” in the Palm Beach Post, which is a newspaper of general circulation published in Palm Beach County, Florida. Ex. 31; see also Ex. 5 at 16; T 49. On October 1, 2004, the Department published ”Notice of Receipt of Application for Power Plant Certification” in the Florida Administrative Weekly. Ex. 35; see also Ex. 5 at 16; T 49. On February 2, 2005, New Hope published notice of the Certification Hearing in the Palm Beach Post. Ex. 33; see also Ex. 5 at 16; T 49. On February 4 and 11, 2005, the Department published notice of the Certification Hearing in the Florida Administrative Weekly. Ex. 36; see also Ex. 5 at 16; T 49. The public notices for the Certification Hearing satisfy the informational and other requirements set forth in Section 403.5115, Florida Statutes, and Florida Administrative Code Rules 62-17.280 and 62-17.281(4). Prehearing Stipulation at 24, paragraph V.B.2,3; Ex. 5 at 17; T 49, 63-64.
Conclusions For Petitioner New Hope Power Partnership (”New Hope”): David S. Dee, Esquire Landers & Parsons 310 West College Avenue Tallahassee, Florida 32301 For the Florida Department of Environmental Protection: Scott A. Goorland, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399
Recommendation Based on the foregoing Findings of Facts 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 expansion of the Okeelanta Cogeneration Facility to a total capacity of 140 MW (net), in accordance with the Conditions of Certification, DEP Exhibit 3. DONE AND ENTERED this 31st day of March, 2005, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2005. COPIES FURNISHED: David S. Dee, Esquire Landers & Parsons 310 West College Avenue Tallahassee, Florida 32301 Scott Goorland, Esquire Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 James V. Antista, General Counsel Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Roger Saberson, General Counsel Treasure Coast Regional Planning Council 70 Southeast 4th Avenue Delray Beach, Florida 33483 Jennifer Brubaker, Esquire Public Service Commission Division of Legal Services 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0863 Leslie Bryson, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399 Sheauching Yu, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 Sarah Nall, Esquire 9341 Southeast Mystic Cove Terrace Hobe Sound, Florida 33455 Denise M. Nieman, Esquire Palm Beach County Attorney's Office 302 North Olive Avenue, Suite 601 West Palm Beach, Florida 33401-4705 Raquel A. Rodriguez, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-1001 Kathy C. Carter, Agency Clerk Department of Environmental Protection Office of General Counsel Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Unit No. 2 is certified to be a nuclear facility situated on 300 acres of a 1132 acre site previously cleared and filled on Hutchinson Island in St. Lucie County, Florida. The site is presently occupied by Unit No. 1, also a nuclear facility. Hutchinson Island is a typical but highly developed coastal barrier island of the Florida Atlantic Coast. The site prior to development was predominantly flat and water covered, with dense vegetation typical of coastal mangrove swamp. On the Eastern side of the island, the land rises slightly in a dune to approximately 15 feet above mean low water. The cooling system for Unit No. 2 is essentially the same as that for Unit No. 1. It is proposed that the existing intake and discharge canals, present on the 300 acre tract for Unit No. 1, will be utilized by Unit No. 2. As originally planned and presently certified, the discharge structure for cooling water from Unit No. 2 consists of an open discharge canal, excavated to elevation - 17 feet. This canal is 28 feet wide at the bottom, with a slope of to 3. The open discharge canal extends from the plant approximately 2200 feet to a point 400 feet west of the existing shoreline. From there, a 12 foot diameter concrete conduit, for each unit, is buried beneath the ground and carries the discharged water under the beach and ocean floor out to the ocean discharge structures. The conduit for Unit No. 2 will extend approximately 2800 feet from the shoreline. The Unit No. 2 ocean discharge structure consists of a multiport diffuser containing 48 ports. Each port will be 1.5 feet in diameter, spaced 22.5 feet between centers and oriented to discharge horizontally. The jets will be mounted in an alternating manner on either side of a 1,060 foot manifold. Ocean depth at the discharge point will be approximately - 35 to - 40 feet mean low water. Exit velocity of the discharged water from each port will be approximately 13 feet per second. The effects on the environment which would occur from construction of the discharge conduit with the multi-port diffuser originally planned for Unit No. 2 were thoroughly studied and were the subject of extensive testimony at the 1975 certification hearing. Paragraphs 11, 44, 46, 50, 53, 54, 55 and 64 of the Findings of Fact contained in the October 8, 1975 Recommended Order, discuss and summarize the studies and testimony. On January 11, 1980, Florida Power & Light Company filed and served on all parties a "Petition for Modification of Terms of Certification" pursuant to Section 403.516(3), Florida Statutes. The petition requests a modification to the certification previously issued to reflect proposed design modifications to the cooling water discharge system which are necessary to account for design head losses resulting from the final multi-port diffuser design and to allow a margin for greater than anticipated marine fouling effects. The petition filed by Florida Power & Light Company seeks to modify the original design from that described in paragraph 6 of the Recommended Order entered October 8, 1975 by widening the distance which the open discharge canal extends along the shoreline, increasing the size and length of the conduit, and increasing the number of ports in the diffuser. On January 28, 1980, pursuant to Sections 120.57 and 403.615(3), Florida Statutes, and proper notice published in the local newspapers and served on all parties, a formal hearing was held at the St. Lucie County Library, 124 North Indian River Drive, Fort Pierce, Florida. At the hearing, Florida Power & Light Company presented three (3) witnesses who testified in support of the Petition for Modification of Terms of Certification. These witnesses, Clifford Kent, James O'Hara, and J. Ross Wilcox, described the need for, and the effects of the proposed modifications. Their testimony demonstrated that the proposed modification will result in improved availability of St. Lucie Unit No. 2, and will not result in a significant environmental impact or effect to the public that was not previously considered in the certification proceedings. Florida Power & Light Company also introduced into the record documentary evidence reflecting that it has applied for and been granted the following permits and approvals for this project: U.S. Army Corps of Engineers Construction Permit No. 79K-1019 issued January 7, 1980, and State of Florida, Board of Trustees of the Internal Improvement Trust Fund (Department of Natural Resources) Easement No. 25624 (2670-56)A, St. Lucie County, approved January 8, 1980. The testimony and evidence were not opposed or contradicted by testimony or evidence of any other party. At the hearing on the petition to modify, the Department of Environmental Regulation presented evidence indicating that the effects anticipated from construction of the modified discharge system would increase turbidity in the ocean during construction in the immediate area of the excavation. Adequate control structures are to be used however. The construction of the canal extension would remove approximately two acres of impounded mangrove habitat. To mitigate this loss, Florida power & Light Company proposes to breach the dike on the northern mangrove area to allow approximately 50 acres of mangrove to function more normally with the Indian River estuary. The environmental effects from operation of the revised Unit No. discharge system will be approximately the same as the original proposal. The Department of Environmental Regulation has recommended that the proposed modification be certified subject to the following additional conditions: That the dike around the mangrove area north of the discharge canal be opened up to Big Mud Creek by breaching the dike in three (3) places. Each breach in the dike shall be a minimum of ten feet (10') wide at the bottom and the bottom elevation of the breach shall not be higher than one foot below mean sea level (- 1 MSL) or deeper than - 3 MSL. That the Department of Natural Resources, Bureau of Beaches and Shores be allowed to inspect the dune once restored. Florida Power and Light Company has agreed to the imposition of the proposed conditions. The Conservation Alliance of St. Lucie County has stated that its experts have concluded that the anticipated effects on the environment from the proposed modification will not be dramatically different from those which have previously occurred. Accordingly, the Alliance does not oppose this petition to modify.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaints? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Parties The Department is a state government licensing and regulatory agency. Respondent is now, and has been at all times material to the instant cases, a physician licensed to practice medicine in the State of Florida. He holds license number ME 0037235. Facts Relating to Case No. 93-5861 On December 29, 1983, at Indian River Memorial Hospital, Dr. Phil Morgan performed a partial mastectomy and an axillary lymph node dissection on G.K., a female patient who was then 57 years of age. The mastectomy was performed on G.K.'s left breast. Approximately a quarter of the breast volume was removed, including a malignant tumor that was no more than two centimeters in diameter. The procedures performed by Dr. Morgan revealed no evidence of any further malignancy. In early 1984, G.K. went to the Lawnwood Oncology Center in Fort Pierce, Florida to consult with Respondent, a radiation oncologist, regarding her receiving postoperative radiation therapy. From January 17, 1984, to February 27, 1984, Respondent administered doses of external beam radiation therapy to what remained of G.K.'s left breast and the lymphatic drainage regions. The total nominal dosage administered was 5040 cGy or rads. On or about March 13, 1984, Respondent supplemented the external beam therapy treatment G.K. had received with an Iridium-192 radioisotope interstitial implant in G.K.'s left breast. The implant consisted of two layers of radioactive needles, with one layer one centimeter deeper than the other. There were ten needles, spaced one centimeter apart, in each of the two layers. In 1984, the prevailing standard of care recognized as acceptable and appropriate by reasonably prudent radiation oncologists performing multi-layer interstitial implants required that the oncologist design and structure the implant in such a manner that the radioactive sources in each of the layers were spaced at least 1.2 centimeters apart and that the oncologist use less than half the number of radioactive sources that Respondent used. The implant remained in position for 52 hours. A volume of 253 cubic centimeters of breast tissue received a dosage of 60 cGy or rads per hour. In 1984, the prevailing standard of care recognized as acceptable and appropriate by reasonably prudent radiation oncologists performing interstitial implants required that the oncologist regulate the radiation dosage rate so that it did not exceed 50 cGy or rads per hour. An additional 72 cubic centimeters of breast tissue received a dosage of 100 cGy or rads per hour, twice the maximum dosage rate. Inasmuch as these 72 cubic centimeters of breast tissue received a total dosage of 5200 cGy or rads during the time the implant remained in position, compared to the total dosage of 3120 cGy or rads that the other 253 cubic centimeters of targeted breast tissue received, the inhomogeneity of dosage distribution well exceeded 20 percent, contrary to the then prevailing standard of care recognized as acceptable and appropriate by reasonably prudent radiation oncologists performing interstitial implants, which required that the physical design of the implant be such that there was no more than 20 percent of dosage distribution inhomogeneity. Furthermore, in designing the implant, Respondent targeted a greater volume of breast tissue than was acceptable and appropriate under the prevailing standard of care. The implant and the external beam therapy combined delivered a total nominal dosage of 8160 cGy or rads, with some areas within the central region of the implanted tissue receiving in excess of 10,000 cGy or rads. Given the relatively small size of the malignant tumor that had been removed from G.K.'s breast and the absence of any apparent residual malignancy, a reasonably prudent radiation oncologist, governed by standards in effect in 1984, would have administered, in toto, a nominal dosage of no more than 6000 to 7000 cGy or rads. In or about December of 1985, G.K. presented to Respondent with breast fibrosis and skin retraction on the side that Respondent had treated in 1984. Respondent recommended conservative measures only. G.K. went to Dr. Everrett Sugarbaker, a surgical oncologist, for a second opinion. Dr. Sugarbaker initially examined G.K. and evaluated her situation in August of 1986. He noted that G.K.'s left breast was totally contracted back against the chest wall with extensive telangiectatic and fibrotic change in the area where Respondent had inserted the Iridium-192 implant. There was also a scab over a one and a half centimeter ulcer. It was apparent to Dr. Sugarbaker that G.K. was suffering from radionecrosis as a result of the radiation therapy she had received from Respondent. Dr. Sugarbaker recommended daily peroxide application to the ulcer, but added that, if the ulcer increased in size or became infected, he would consider surgical correction of the problem. G.K. visited Respondent again in October of 1986. The area of her left breast where the implant had been inserted had experienced further tissue destruction and had become infected. Respondent prescribed antibiotic therapy, which ultimately proved to be unsuccessful. In or about February of 1987, Respondent recommended that G.K. try hyperbaric oxygen therapy, but G.K. refused to follow Respondent's recommendation. On February 13, 1987, G.K. returned to Dr. Sugarbaker for reassessment. G.K. told Dr. Sugarbaker of her recurring infection. Upon his examination of G.K., he noticed that the necrotic area of her left breast was larger than when he had seen her in August of the previous year. Dr. Sugarbaker recommended surgical correction. On February 18, 1987, Dr. Sugarbaker surgically removed the remainder of G.K.'s left breast and, in connection therewith, performed other procedures to reconstruct the chest wall and improve blood supply and promote healing in the area. The necrosis from which G.K. was suffering that made these procedures necessary was caused by Respondent having overradiated her during the course of the radiation therapy he administered to her in 1984. Facts Relating to Case No. 93-5861 In September of 1982, Dr. Khalil Cassimally performed a modified radical mastectomy on V.H.'s cancerous left breast. V.H. was approximately 34 years of age at the time. Postoperatively, from approximately October 10, 1982, to November 22, 1982, V.H. received radiation therapy from Dr. Victoria Cividino at the Lawnwood Oncology Center, of which Respondent was the director. The therapy included a total nominal dosage of 5000 cGy or rads (with a 1000 cGy or rads "boost") to the left axilla. Following the therapy, V.H. was in constant pain. At some point in time, a knot or nodule developed in the area where she had had her mastectomy. V.H. told Respondent, who had assumed responsibility for V.H.'s care and treatment from Dr. Cividino, about the nodule. The nodule was biopsied on September 15, 1983, by Dr. Cassimally. No malignancy was found. The area that was biopsied did not heal properly. V.H. continued to have problems. On March 16, 1984, Respondent visited Dr. James Grossnickle, a general surgeon. She presented with a large ulcer on her left chest wall surrounded by thick elevated tissue. On April 20, 1984, Dr. Grossnickle biopsied a portion of the ulcer and surrounding tissue. The pathological diagnosis was fat necrosis and fibrosis. There was no evidence of any malignancy. V.H. eventually returned to see Respondent. From approximately April 16, 1985, to June 11, 1985, Respondent treated V.H. with further radiation therapy. The therapy included a total nominal dosage of 5000 cGy or rads to the left axilla, which was administered in 20 fractions. The dosage, when considered in light of the dosage previously administered by Dr. Cividino in 1982, exceeded the limits of normal tissue tolerance. As a result, it caused considerable tissue damage. There was no medical justification for administering additional radiation therapy to V.H., particularly in light of the results of the post- mastectomy biopsies that had been performed by Drs. Cassimally and Grossnickle. A reasonably prudent radiation oncologist, governed by standards in effect in 1985, would not have followed such a course of treatment. After receiving this additional radiation therapy, Respondent developed a large mass of scar tissue in the treated area, in the center of which was an oozing ulcer. Her condition was the result of having been overradiated. In or about October of 1986, V.H. went to Juan Carlos Giachino, a plastic and reconstructive surgeon, who performed surgery on V.H. in an effort to remedy the situation. The surgery was unsuccessful. Oozing ulcers reappeared. One such ulcer, near her left underarm, had to be irrigated and cleaned three to four times a day. Furthermore, V.H.'s left arm became unusable as it accumulated undrained lymphatic fluid and resultingly increased in size. The excessive radiation treatment that V.H. had received had resulted in the obstruction of the lymphatic drainage pathways in the arm. The problem with her left arm became so severe that amputation of the arm was required. Other corrective surgical procedures, including chest reconstruction, were performed on V.H. to improve her condition.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board enter a final order finding Respondent guilty of the violations of subsection (1)(t) of Section 458.331, Florida Statutes, alleged in the Administrative Complaints and disciplining him for having committed these violations by imposing the penalties described in Conclusion of Law 78 of this Recommended Order. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of May, 1994. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 93-5739 and 93-5861 The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the Department in its proposed recommended order: 1-9. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. To the extent that this proposed finding addresses the standard of care for single layer implants, it has not been incorporated in this Recommended Order because, even if true, it would have no bearing on the outcome of the instant case. To the extent that it addresses the standard of care for multi- layer implants, it has been accepted and incorporated in substance. Accepted and incorporated in substance. 12-13. Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer. 14-36. Accepted and incorporated in substance. First and second sentences: Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer; Third sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the weight to be given certain evidence adduced at hearing. First sentence: Accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the weight to be given certain evidence adduced at hearing. To the extent that this proposed finding states that V.H. was 25 years of age at the time of the mastectomy, it has been rejected because it is contrary to the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance. 40-56. Accepted and incorporated in substance. First and second sentences: Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer; Third sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the weight to be given certain evidence adduced at hearing. First sentence: Accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the weight to be given certain evidence adduced at hearing. First sentence: Accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the weight to be given certain evidence adduced at hearing. Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because it has no bearing on the outcome of the instant case. First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because it has no bearing on the outcome of the instant case. COPIES FURNISHED: Francesca Plendl, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Charles H. Kent, M.D. 3605 Juan Ortiz Circle Ft. Pierce, Florida 34947-6110 Dr. Marm Harris, Executive Director Board of Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Esquire General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Pursuant to Section 403.508(2), Florida Statutes, the sole issue for determination in this case is whether the proposed site for the Petitioner’s electrical power plant “is consistent and in compliance with existing land use plans and zoning ordinances.” (All statutory references are to the 2001 codification of the Florida Statutes.)
Findings Of Fact The Petitioner Calpine intends to license, construct, own, and operate a new electrical power plant in unincorporated Indian River County, Florida. Calpine filed an application with DEP under the PPSA for the proposed electrical power plant, which is known as the Blue Heron Energy Center ("the Project"). The Site for the Blue Heron Energy Center The site (“Site”) for the Blue Heron Energy Center is located in southeastern Indian River County, approximately 5 miles southwest of the City of Vero Beach. The Site is approximately 50.5 acres in size and is currently undeveloped. The primary vegetation on the Site is pine flatwoods. The Site contains two small wetlands that will be preserved. The general area surrounding the Site is a mixture of agricultural, industrial, institutional, utility and residential land uses. The Interstate 95 ("I-95") corridor is adjacent to the west side of the Site. Just west of the I-95 corridor are two existing electrical transmission line corridors operated by Florida Power & Light Company ("FPL"). There is an existing natural gas pipeline owned by Florida Gas Transmission Company located between the two electrical transmission line corridors. The Indian River County Correctional Institution is located directly northwest of the Site. Farther to the north are Indian River County's landfill and several industrial (citrus processing) facilities. There also is one single-family residence located north of the Site. The eastern boundary of the Site is adjacent to 74th Avenue, which is adjacent to a drainage ditch known as the Lateral C Canal. A citrus grove and an industrial wastewater sprayfield are located on the east side of the Lateral C Canal. The southern boundary of the Site abuts the border between Indian River County and St. Lucie County. The I-95 corridor and undeveloped lands lie south of the Site in St. Lucie County. Southeast of the Site, in St. Lucie County, is a residential development known as Spanish Lakes Fairways. The Site is separated from this residential development by a drainage ditch, a berm, and an existing buffer of mature trees and dense vegetation. Description of the Proposed Blue Heron Project The Blue Heron Energy Center will involve the construction and operation of a combined cycle, natural gas- fired, electrical power plant that will generate approximately 1080 MW (nominal). The Blue Heron Project will be built in two phases, each generating approximately 540 MW (nominal). The first phase of the Project will include two combustion turbines, two heat recovery steam generators, a steam turbine, exhaust stacks, cooling towers, a treatment and storage system for process water, a treatment system and detention basin for storm water, an operations control center, transformers and related switching gear, and other ancillary structures and features. The second phase of the Project will be similar to the first phase. The Blue Heron Energy Center will connect to Florida's electrical grid with two overhead transmission lines that will extend west from the Site approximately 1400 feet (over I-95) to the existing FPL transmission lines. The Project will obtain natural gas by installing an underground pipe that will extend from the Site approximately 1400 feet to the west (under I-95) to where the Project will interconnect with the natural gas pipeline systems operated by Gulfstream and Florida Gas Transmission Company. Calpine has obtained options to purchase the land west of the Site where Calpine's gas pipeline corridor and electrical transmission line corridor will be located. The primary source of cooling and process water for the Blue Heron Energy Center will be surface water (storm water), which will be obtained from the Lateral C Canal or the County's proposed stormwater park. Potable water and domestic wastewater services will be provided by Indian River County. No groundwater will be used by the Project. The Blue Heron Project will not discharge any industrial or domestic wastewater to any surface water or groundwater. Existing Land Use Plans and Zoning Ordinances The Site is designated Agricultural (AG-1) in Indian River County's Comprehensive Plan. Under the Comprehensive Plan, the AG-1 designation allows for the construction of electrical power plants, like the Project, as "public facilities." Indian River County has adopted land development regulations and zoning districts that implement the intent of the County’s Comprehensive Plan. Under the zoning code, like the Comprehensive Plan, the Site is located in an Agricultural (A-1) district. The County’s zoning code expressly allows the construction of "public and private utilities, heavy" as a special exception use in A-1 zoning districts. The County's zoning code defines "utilities, public or private, heavy" to include "all major electrical generation plants (generating fifty (50) megawatts or more)." Thus, the A-1 zoning designation for the Site allows the development of the Project as a special exception use. Special Exception Use Section 971.05 of the County Code sets forth the procedures and criteria for obtaining the County's approval of a special exception use. Among other things, Section 971.05(9) of the County Code requires an applicant for a special exception use to demonstrate that the proposed project is consistent with the County's Comprehensive Plan and zoning code. Calpine has worked with the County to ensure that every aspect of the Blue Heron Energy Center will comply with the County's criteria. Consistent with the requirements of Section 971.05 of the County Code, Calpine filed an application with the County for approval of a special exception use and conceptual site plan for the Blue Heron Project. The Special Use Exception Application ("SUEA") fully described the Project, including the corridors for the proposed transmission lines and natural gas pipeline. The County’s staff reviewed Calpine’s SUEA and recommended approval, subject to certain conditions. On August 9, 2001, the County's Planning and Zoning Commission held a duly noticed public hearing and then recommended approval of Calpine’s SUEA, with conditions. On September 18, 2001, the Indian River County Board of County Commissioners ("County Commission") held a duly noticed public hearing and then approved Calpine’s SUEA, with conditions. It is "typical" for the County to include conditions as part of the County's approval for a special exception use. If Calpine complies with the County's conditions for its special exception use, the County will "automatically approve the final site plan" for the Blue Heron Project. No one appealed the County Commission's approval of Calpine’s SUEA and the deadline for filing an appeal has passed. Consistency With Land Use Plans and Zoning Ordinances The County staff, the Planning and Zoning Commission, and the County Commission considered whether the Project is consistent and in compliance with the County's Comprehensive Plan and zoning ordinances, pursuant to Section 971.05 of the County Code, and then they approved the Project, with conditions. The evidence presented in the Land Use Hearing demonstrated that the Site is consistent and in compliance with Indian River County’s Comprehensive Plan. The evidence also demonstrated that the Site is consistent and in compliance with Indian River County’s zoning ordinances. In the Prehearing Stipulation, Indian River County, St. Lucie County, the Florida Department of Community Affairs, the Treasure Coast Regional Planning Council, the Florida Department of Environmental Protection, the Florida Department of Transportation, the Florida Public Service Commission, the Florida Fish and Wildlife Conservation Commission and the St. Johns River Water Management District either agreed with or did not dispute Calpine’s assertion that the Site is consistent and in compliance with existing land use plans and zoning ordinances. Indian River County also stipulated that it supports Calpine’s plan to construct and operate the Blue Heron Project on the Site. Public Notice of the Land Use Hearing On December 11, 2000, Calpine published a “Notice of Filing of Application for Electrical Power Plant Site Certification” in the Vero Beach Press-Journal, which is a newspaper of general circulation published in Indian River County, Florida. On October 9, 2001, the Administrative Law Judge issued an “Order Granting Continuance and Re-Scheduling Land Use Hearing” and served a copy of his Order on all of the parties to this proceeding. The Judge’s Order stated that the Land Use Hearing would be conducted on February 6, 2002. On December 14, 2001, Calpine published a “Notice of Land Use and Zoning Hearing on Proposed Power Plant Facility” in the Vero Beach Press-Journal. On December 14, 2001, the Department published notice of the Land Use Hearing in the Florida Administrative Weekly. The public notices for the Land Use Hearing satisfy the informational and other requirements set forth in Section 403.5115, and Rules 62-17.280 and 62-17.281(4), Florida Administrative Code.
Conclusions For Petitioner Calpine Construction Finance Company, L.P.: David S. Dee, Esquire Landers & Parsons 310 West College Avenue Tallahassee, Florida 32301 For the Florida Department of Environmental Protection: Scott A. Goorland, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399 For Audubon of Florida and the Pelican Island Audubon Society: Kevin S. Doty, Esquire Hatch & Doty, P.A. 1701 A1A, Suite 220 Vero Beach, Florida 32963
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Land Use Final Order in this case finding that the Site of the Blue Heron Energy Center is consistent and in compliance with the existing land use plans and zoning ordinances. DONE AND ORDERED this 5th day of March, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2002. COPIES FURNISHED: James V. Antista, General Counsel Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Ross Stafford Burnaman, Esquire Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Paul Bangel, Esquire County Attorney's Office 1840 25th Street Vero Beach, Florida 32960 Kathy Beddell, Esquire Harold Mclean, General Counsel Florida Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 David S. Dee, Esquire Landers & Parsons 310 West College Avenue Tallahassee, Florida 32301 Kevin S. Doty, Esquire Hatch & Doty, P.A. 1701 Highway A1A, Suite 220 Vero Beach, Florida 32963-2206 Scott A. Goorland, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Charles Lee, Sr., Vice President Florida Audubon Society 1331 Palmetto Avenue Suite 110 Winter Park, Florida 32789 Terry E. Lewis, Esquire Lewis, Longman & Walker, P.A. 1700 Palm Beach Lakes Boulevard Suite 1000 West Palm Beach, Florida 33401 Daniel S. McIntyre, Esquire St. Lucie County 2300 Virginia Avenue 3rd Floor Administrative Annex Fort Pierce, Florida 34952 Cari L. Roth, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Roger G. Saberson, Esquire 70 Southeast Fourth Avenue Delray Beach, Florida 33483 Colin M. Roopnarine, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Jennifer B. Springfield, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Sheauching Yu, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact Rubin Klein, M.D., dispenses radiation therapy treatments at his office in Hollywood, Broward County, Florida, just north of the Dade County line. He uses two cobalt machines for this purpose. Cobalt's radioactivity fades at an approximate rate of one percent per month, and at least one of Dr. Klein's machines has deteriorated to the point that it cannot be used much longer. Dr. Klein would like to see the failing machine replaced by a linear accelerator, but he does not want to bear the expense of acquiring a linear accelerator, particularly since his practice fell off sharply two or three years ago with the opening of a radiation therapy department at Hollywood Memorial Hospital. Dr. Klein has offered to donate his equipment to petitioner, and petitioner proposes to accept Dr. Klein's donation of his better cobalt unit, to bear the expense of moving the cobalt unit, to acquire a linear accelerator, to construct an appropriate facility, and to install the equipment. Petitioner estimates that it would cost approximately eight hundred twenty-three thousand dollars ($823,000.00) to accomplish this. On the other hand, Dr. Klein estimates that it would cost approximately two hundred five thousand dollars ($205,000.00) to acquire a linear accelerator and to install it in his office. Once the physical changes which it proposes have been accomplished, petitioner proposes to hire Dr. Klein's office staff, including a full-time radiation physicist and two radiation therapy technicians. In August of 1977, petitioner submitted its application for certificate of need, joint exhibit No. 1, receipt of which was acknowledged by Mr. Robert E. Straughn on behalf of the Office of Community Medical Facilities, on August 29, 1977. Joint exhibit No. 2. The staff of the Health Systems Agency of South Florida, Inc. prepared an analysis of petitioner's application, which concluded with a recommendation against approval of the application. Joint exhibit No. 4, p. 31. Because of petitioner's proximity to Broward County, the Health Systems Agency of South Florida, Inc. solicited the views of the Health Planning and Development Council for Broward County on petitioner's application, but these views were never made known. A review committee of the Health Systems Agency of South Florida, Inc. voted against granting petitioner's application. In a memorandum from the review committee's chairperson to the Health Systems Agency's Board of Directors, the committee's reasons were stated as follows: Although this is a transfer and upgrade of existing equipment, it still represents excess capacity for the total community. The project does not foster cost containment since construction costs represent the expense of building a new unit. (The committee felt that such expense would be asking the community to absorb unnecessary costs.) Joint exhibit No. 7. On October 18, 1977, the Board of Directors of the Health Systems Agency of South Florida, Inc. adopted the staff's analysis and voted to recommend denial of petitioner's application because, inter alia, "[i]t is less costly to maintain the facility in its present location." Joint exhibit No. 8. On November 16, 1977, Mr. Art Forehand wrote petitioner that the Office of Community Medical Facilities had also reviewed the application and had also concluded that it should be denied. Joint exhibit No. 9. Petitioner's hospital is located in Dade County on Biscayne Boulevard one fifth of a mile south of the Broward County line. Petitioner has six or seven oncologists on its medical staff and 20 percent of its beds are filled by cancer victims, half of whom receive radiation therapy. The demographic data suggest that cancer patients will continue to occupy petitioner's beds in like or greater numbers. Seventy-eight percent of petitioner's patients are 65 years old or older, an age group three or four times more vulnerable to cancer than the general population. As things now stand, petitioner's patients must leave the hospital in order to receive radiation therapy. This ordinarily necessitates transportation by ambulance. The cost for such transportation to Dr. Klein's office and back is sixty-five dollars ($65.00). Dr. Klein's office is four and one half miles from petitioner's hospital. Approximately three percent of Dr. Klein's patients are hospitalized at Biscayne Medical Center, Inc., and travel to and from his office by ambulance. The practice of radiation medicine occurs more and more in hospitals rather than in radiologists' offices, and this trend is generally believed to be desirable. Tumors may be treated surgically or chemically instead of or in addition to being treated with radiation. Physicians sometimes disagree among themselves as to whether surgery, medicine or radiation is indicated in a given case. Petitioner's cancer patients would benefit from examination by a radiation oncologist as well as by other medical specialists. A cancer victim who presents himself at a radiologist's office may not have been examined beforehand by a medical oncologist or by a surgical oncologist; a cancer patient who has been admitted to a hospital is perhaps more likely to be examined by these specialists before a course of treatment is settled on. Chemotherapy and various heat treatments, which are more readily administered in a hospital setting, may enhance the beneficent effects of radiation in some cases. Hospitalization facilitates observation of patients and detection of untoward side effects. In practice, however, nine outpatients for every one inpatient "tends to be the normal spread for a radiation therapy department." (R326) Radiation emitted from a linear accelerator can be focussed more sharply than radiation emitted from a cobalt unit. For Hodgkin's disease, certain pituitary and other disorders, a linear accelerator is a much better means of treatment than a cobalt unit is. Since radiation tends to destroy human tissue, whether diseased or healthy, the linear accelerator's relative precision can be a significant advantage in a wide range of cases. Treatment takes more time with a cobalt unit, especially one with a failing source of radiation. Dr. Klein estimates he could treat a fifth again as many people in the same time, with a linear accelerator. What constitutes optimum utilization of radiotherapy equipment is a matter of debate. Dr. Richard Johnson testified that six to seven thousand patients annually constitute "the maximum you can give good treatment," (R153) apparently on the basis of a 35 hour work week. (Rl54) On the other hand, the staff of the Health Systems Agency of South Florida, Inc. used a 48 hour work week in its calculations and concluded that both Dade and Broward County have substantial excess capacity in radiotherapy equipment. Both Dade and Broward Counties do, in fact, have excess capacity in radiotherapy equipment. On the assumption that Dr. Klein's practice would grow, if removed to petitioner's hospital, and on the assumption that Dr. Klein would charge (in addition to the hospital's charges) twenty dollars per procedure (which he indicated was the very minimum he might charge), Mr. Donald Dahlfues testified that the federal government might be billed less for the same number of treatments if Dr. Klein performed them in petitioner's hospital than if he performed them in his present office. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for certificate of need. DONE and ENTERED this 17th day of April, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1978. APPENDIX Paragraphs one, two, three, four, five, six, seven, eight, nine, ten, eleven, fourteen, fifteen, and nineteen of petitioner's proposed findings of fact are generally supported by the evidence and have largely been adopted, in substance, insofar as relevant. Paragraph thirteen of petitioner's proposed findings of fact recites an "optimum accepted utilization rate" which was not established by the evidence. Paragraph sixteen of petitioner's proposed findings of fact is not supported by the evidence and has not been adopted for that reason. One of petitioner's witnesses indicated that 90 percent of the anticipated use of the equipment would be on an outpatient basis. While another of petitioner's witnesses claimed that hospital bed time would be reduced in some cases, petitioner's administrator is looking to "increased inpatient days as a result of having the equipment" (R43) to help defray the cost of the equipment. Paragraph seventeen of petitioner's proposed findings of fact states a debatable policy conclusion rather than a fact established by the evidence at the hearing. Paragraphs eighteen, twenty and twenty-one of petitioner's proposed findings of fact are not supported by the evidence as a whole and have not been adopted for that reason. Paragraphs one, three, four, five, six, seven, eight, nine, ten, thirteen, fourteen, sixteen, seventeen, eighteen, nineteen and twenty-one of respondent's proposed findings of fact are generally supported by the evidence and have largely been adopted, in substance. COPIES FURNISHED: Edward R. Rumin, Esquire Adams and Adams 2870 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Milton E. McRay, Esquire 6502 Powers Ferry Road, N. W. Atlanta, Georgia 30339 Steven W. Boss, Esquire 1323 Winewood Boulevard Room 309 Tallahassee, Florida 32301
