Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The Application Process On or about November 1, 1978, petitioner Transgulf Pipeline Company (Transgulf) filed with the respondent Board of County Commissioners of Gadsden County Florida (Gadsden County) an application for development approval (ADA) of a proposed liquid petroleum products storage and truck loading terminal to be located near Midway, Gadsden County, Florida (Midway Terminal). Copies of the ADA were provided to the Apalachee Regional Planning Council (ARPC) and the Division of State Planning. The ARPC requested additional information about the project from Transgulf on or about December 12, 1978, Transgulf supplied the additional information to the ARPC, and the ARPC informed Gadsden County on or about December 18, 1978 that Transgulf had supplied the additional information requested and that Gadsden County could advertise for a public hearing on the Midway Terminal ADA. The Gadsden County Planning and Zoning Commission voted to recommend approval of the Midway Terminal proposal to Gadsden County on February 27, 1979. On or about March 2; 1979; the ARPC submitted an analysis of the Midway Terminal and recommended approval of the development with three conditions: improvements to County Road 159, a buffer between the storage facility and existing residences in the area and adequate fire fighting facilities on the site. In addition, the ARPC noted that the proposed project site was unzoned and that "Therefore, the County Commissioners must consider in evaluating this project how it would like for Gadsden County to grow. Should the area be set aside for residential growth, commercial growth, or left in its existing state? The answer to this question is a growth policy that the County Commissioners must decide." (Petitioner's Exhibit 7) On March 13, 1979, Gadsden County conducted a public hearing and voted to deny development approval. A written Development of Regional Impact Order denying development approval was issued on or about April 3, 1979. The Order concluded: This DRI would have an unfavorable impact on the environment and the natural resources of the region involved. This DRI would have an unfavorable impact on the economy of the region involved. This DRI would unduly burden the public transportation facilities in the region involved. The Order further listed the following as changes which would make "this DRI .... eligible to receive a permit": Location of this DRI in an area that is not prime residential and densely populated. Location in an area where in the event of a catastrophe such as fire or explosion that such fire or explosion will not result in an adverse effect upon the environment of the area. Location of this DRI in an area where its presence will not create an adverse effect upon the economy of the region. Adequate provisions must be made for traffic safety in handling the large number of semi-tractor tankers that will use this facility to the end that no traffic hazards are created and that transportation facilities are not unduly burdened. (Petitioner's Exhibit 32) In addition, the County found the ARPC's report and recommendation to be incomplete and concluded that the "Midway, Florida area is predominantly rural residential in nature and affords a quiet community for peaceful living." Transgulf timely filed a petition and notice of appeal from Gadsden County's denial to the Florida Land and Water Adjudicatory Commission. Between that time and the time of the commencement of the instant administrative hearing, numerous judicial and other administrative proceedings have occurred. As relevant to the issues for determination in this proceeding, the Federal Energy Regulatory Commission (FERC) issued a certificate of public convenience and necessity for the entire pipeline project and, as a part of its review, considered potential alternative sites for the subject storage facility. The FERC staff concluded that "The Midway site would not create unaccept able impact. Further, no other site studied by the staff would constitute a superior alternative to the proposed Midway site." (Petitioner's Exhibit 11, page 130) The conceptual design and impact information contained in the petitioner's original ADA is basically unchanged. However, due to the passage of time pending this appeal, Transgulf has refined and updated certain information concerning the project in light of regulatory; technological and industry changes and advances; FERC and ARPC conditions; concerns expressed by interested persons and the detailed planning and designing of a larger, but similar storage facility to be located near Kissimmee, Florida, which facility has now received DRI approval. The final design plans for the proposed Midway terminal will cost approximately $1 million. Overview of the Proposed Project Florida Gas Transmission Company is the owner and operator of a dual pipeline system extending approximately from Baton Rouge, Louisiana to Fort Lauderdale, Florida. Florida Gas Transmission Company and Transgulf Pipeline Company are wholly owned subsidiaries of Houston Natural Gas Company. Transgulf is in the process of acquiring from Florida Gas Transmission Company one of the pipelines presently being used to transport natural gas, and plans to use this pipeline to transport refined liquid petroleum products, such as gasolines, diesel fuels, home heating oils and aviation jet fuels. Transgulf's liquid petroleum products pipeline will receive products from a refinery and existing pipelines near Baton Rouge Louisiana and from a pipeline at Lucedale Mississippi. These products will be delivered to the State of Florida through existing terminals at Jacksonville and Port Everglades and through terminals Transgulf plans to construct near Midway in Gadsden County, Florida and Kissimmee in Osceola County, Florida. At these terminals, products will be delivered into individual tanks assigned for each product and loaded from the tanks into trucks for distribution in the market area. The overall cost of the total pipeline project is approximately $500 million. It is estimated that the pipeline project as a whole will result in Savings in transportation costs of approximately $1.5 billion over the first 20 years of its life. The proposed Midway Terminal will serve a market area consisting of all or a portion of Jackson, Liberty, Franklin, Wakulla, Gadsden, Leon, Jefferson, Madison, Taylor, Lafayette Hamilton and Dixie Counties. The existing distribution system for liquid petroleum products in this market area is by truck from terminals in Panama City, Florida; Bainbridge, Georgia; Jacksonville, Florida; and St. Marks, Florida. The proposed Midway terminal will include seventeen above-ground petroleum storage tanks with an ultimate capacity of approximately 350,000 barrels of petroleum product. This is approximately 4.3 percent of the total pipeline capacity. The terminal's existence is not an essential element of the pipeline conversion project. As more particularly described below, the conceptual design for the proposed Midway terminal includes in addition to the 17 storage tanks, loading bays to service approximately 75 trucks per day a vapor recovery system, a water treatment system, dikes, retention ponds and settling ponds lined with impervious liners a manifold area, a driveway, a small office building security and lighting, an automatic self-contained fire detection and preventive system and a high-level communications system. The Intervenors Henry Baker Dover and his wife own and reside on approximately 344 acres of land located in Midway on the eastern side of County Road 159, north of its intersection with U.S. 90. Also on the property are two mobile homes and a house occupied by his two sons and their families along with another individual. Mr. Dover operates a channel catfish hatchery on this property. The catfish are grown in 32 different ponds located on the property; containing some 135 surface acres of water, and are sold as stock to numerous pond owners throughout Florida and South Georgia. A large portion of Mr. Dover's original acreage was sold (with the retention of a reverter interest) to a Fuller's earth mining company, and many of his ponds were created from stripped off overburden in connection with the mining activities. There is also an 18-acre Spring-fed lake on this property. When mining is conducted on the property, the activity involves three to six trucks making three to four trips per day. Mining activities were conducted on the mining company property for approximately 30 to 35 days in 1984, although for several previous years mining was not conducted. The Midway Community Council, Inc. is a nonprofit corporation composed of residents and other persons who have property interests or other community ties to the Midway, Florida area. It was formed in 1978 or 1979 and incorporated in May, 1979. A substantial number of Midway members either reside or own property on County Road 159, St. John's Church Road, Dupont Road or U.S. 90 in the Midway area; attend church in the Midway area, and/or have children who are transported by public school bus on County Road 159 to Havana, Florida. Among the purposes of the Council is to promote the improvement of the community by engaging in activities for improving the general welfare, health, safety, industrial, economic, social and cultural conditions of the community. The Site and Vicinity The proposed terminal site is presently owned by the heirs of Ida Munroe, deceased. In 1979 Transgulf had an option to purchase the property. However, that option lapsed and Transgulf currently has no ownership interest in or option to purchase the property. Title to the property is clouded due to the number of heirs in the estate. Transgulf intends to acquire the site through negotiation with the heirs or, if necessary, through what is anticipated to be a "friendly" eminent domain proceeding. Transgulf has communicated with the senior member of the Munroe family over the years and as recently as the week prior to the hearing. The proposed site for Transgulf's Midway Terminal is comprised of approximately 51 acres of land adjacent to the pipeline on the west side of County Road 159, approximately 7/10 of a mile north of the intersection of U.S. 90 and County Road 159. The terminal would be located approximately 10 1/2 miles east of Quincy Florida, approximately 12 1/2 miles west of Tallahassee, and approximately 1 1/2 miles north of the community of Midway, which is normally shown on maps as located south of U.S. 90 and Interstate 10. The intersection of County Road 159 and U.S. 90 is approximately 2.2. miles northwest of the intersection of U.S. 90 (a four-lane divided highway connecting Quincy and Tallahassee) and Interstate 10 (a limited access highway). Between these two intersections are several commercial establishments, both large and small, including a night club, marine and tractor equipment facilities, a paint and body shop, an auto salvage and service yard and scattered lower-priced residences. On the south side of U.S. 90 at its intersection with County road 268; which is effectively the southerly extension of County Road 159, is the 28-acre Midway Industrial Park. The industrial park houses facilities for producing manufactured homes, fabricating security systems and bars, storing electronic and sporting equipment, conducting sales, and a variety of other activities, with a total employment of about 100 persons. Interstate 10 lies between the industrial park and the Midway Community to the south. The Midway Terminal driveway will be located just south of the entrance of St. Johns Church Road onto County Road 159 and just north of the property of Orval Pettis who both resides and conducts a small used automobile storage, sales and repair operation at his property. Approximately 17 homes are located on St. Johns Church Road, which is an unpaved dead-end road running north of the site. Two churches, one built almost 100 years ago, are also located northeast of the terminal site. To the east of the proposed terminal tract are two or three cemetery sites, one of which may qualify for placement in the National Register of Historic Places. The Northwest Florida Water Management District offices are located on U.S. 90 southwest of the site; and the Lake Yvette subdivision with approximately 27 homes and 85 lots, is located to the northwest of the site. The terminal site is not visible from homes in Lake Yvette, and residents of Lake Yvette enter their subdivision from U.S. 90 at a point some distance northwest of County Road 159. In general; the unzoned area within one mile of the proposed terminal site is rural in character, but contains a scattered mixture of industrial; institutional; forestry, agricultural, mining and residential uses. After reviewing about twenty other alternative sites in four different counties, Transgulf chose the subject site based upon considerations of environmental sensitivity, development patterns; traffic; market access, soil suitability and local land use regulations. The Midway site was determined to be superior to all other sites. Gadsden County has no zoning ordinance or future land use map or code applicable to the Midway area or the proposed terminal site. The Gadsden County Comprehensive Plan is one of policy and is not site-specific. The review of commercial and industrial proposals are done on a site-specific basis. Among the elements contained in the 1981 Gadsden County Comprehensive Plan are the clustering of commerce along existing communities and the four interchanges along Interstate 10, and the appropriation of at least 25 acres for industry. To this extent, the location of the terminal at the Midway site is consistent with the County's Comprehensive Plan. While the property immediately along County Road 159 is also suitable for residential development, there is presently a mixture of commercial, industrial, residential and other uses in the vicinity. Real estate in the area has a higher value per acre for commercial or industrial use than for residential use. While residential values of property immediately surrounding the site may suffer some decline, residential growth and values should not be affected beyond a quarter or half mile from the site if proper buffering and safety precautions are provided. It is possible that the Midway area, particularly along County Road 159, might in the future be the location of anticipated growth spilling over from the Tallahassee area. However, this is somewhat conjectural and the likelihood of higher-priced homes in that area would be somewhat inconsistent with the industrial commercial and mining uses already in existence in the general vicinity. There are no basic inconsistencies between the Midway Terminal proposal and the general policies embodied in the State Comprehensive Plan. Design and Operation of Proposed Terminal The Midway Terminal will be designed to comply with or exceed all applicable federal state, regional and local regulatory requirements and permitting programs; and national industry design codes and standards. Because the terminal, as well as the pipeline project as a whole, is capital intensive, involves multi-million dollar investments, and will handle valuable products, Transgulf feels that it has a natural incentive to design; construct; operate and maintain the Midway Terminal in an efficient, effective and reliable manner; using state-of-the art technology. In comparison to other petroleum terminal facilities, the proposed Midway facility will be relatively small. Its capacity of 350,000 barrels of petroleum products will be stored in 17 above-ground tanks, the largest of which will hold about 40,000 barrels. The terminal will have a daily loading capacity of approximately 15,000 barrels and no more than 8 truck loading bays. The facility will load approximately 75 trucks per day and be available for operation on a 24-hour per day, seven day per week basis, although actual truck loading will occur sporadically. The Midway Terminal, like the pipeline system as a whole, will be highly automated. Terminal and pipeline operations will be continuously monitored by a central operator from Transgulf's Central Florida Control Center in Winter Park, Florida through a redundant supervisory control and data acquisition (SCADA) system. Communication between the Central Florida Control Center and the Midway Terminal will occur via a privately owned satellite system (for computer and voice communications) with a back-up dial-up system (for computer and voice communication) and an additional back-up V.H.F. radio system (for voice communication). At the Midway Terminal location, a local computer system will control safety and operational functions through a programmable logic controller with standby mini-processor and will also control truck loading operations, billing and tank inventories through a local processing unit. A non-interruptible battery power supply will be installed to provide control power and lighting in the event of a general power failure. The estimated costs of the SCADA and communications systems are $6 million and $2.5 million respectively. In addition to the automated systems and the central operator, the facility will be manned during normal working hours, 8:00 a.m. to 5:00 p.m., five days a week, by a supervisor and two utility personnel. Also, one or more truck drivers will be on site during truck loading operations. Each employee will be trained in the operations, maintenance and safety equipment of the facility. All three employees will be required to live within 15 minutes of the Midway Terminal, and one such employee will be on call on evening and weekend periods. Personnel assigned to the Midway Terminal and other facilities will be subject to call-out duty whenever circumstances require. Petroleum products will travel through the pipeline in fungible or segregated batches at a maximum velocity of approximately 7 miles per hour. It will take a minimum-sized batch of 50,000 barrels approximately 3 1/2 half hours to pass the Midway Terminal. The batches will not be physically separated and some mixture; or "interface," of products will occur within the pipeline. By using fluorimeter, densitomer and metering techniques, Transgulf will be able to track the progress of batches traveling through the pipeline and take off desired quantities of unmixed product at the Midway Terminal, thus avoiding any need for handling product interface at the Midway Terminal. Product will enter the Midway Terminal through a locally computer- controlled draw valve where the product will be automatically sampled. The draw valve will have a back-up power source to allow closing in the event primary electrical power is lost. The product will then flow consecutively through a control valve, which will regulate pressure and flow conditions; a turbine meter facility, a meter prover equipped with a pulse counter and pressure and temperature transmitters; and finally, a manifold area, which will include a separate pipe header for gasoline and distillate where product will be directed into the appropriate tank. A surge pressure relief system will automatically prevent pipe from becoming overpressured. The facility will use steel welded piping for transporting petroleum products. It will be designed in accordance with the regulations of the Federal Department of Transportation and State Fire Marshal and national industry standards, including American National Standards Institute/American Society of Mechanical Engineers Standard for pressure piping. The terminal will be designed for operation at less than twenty percent of the specified minimum yield strength of the pipe. Below-ground piping will be used except at the manifold area, at the entry point to the tanks, and at the loading area. The below-ground piping will be externally coated and cathodically protected against corrosion. Gasoline-type products will be stored in tanks with sealed internal floating decks and fixed external roofs. The external roofs will be either steel cone or geodesic dome roofs. Oil or distillate-type products will be stored in fixed roof tanks. Tanks will be designed and constructed according to Federal Department of Transportation and State Fire Marshal regulations, and national industry standards including American Petroleum Institute Standard 650 ("Welded Steel Tanks for Oil Storage"). Tank exteriors will be painted, and tank bottoms will have an additional internal coating to a height of at least eighteen inches, along with cathodic protection against corrosion. To provide initial settlement and to confirm that each tank is properly constructed and does not leak; the following tests will be conducted before filling with product: (a) each tank will by hydrostatically tested through filling with water, a liquid heavier than any petroleum product to be stored; (b) external welds in the tank shell will be x-rayed to detect any flaws; and (c) each tank bottom will be vacuum tested. Tanks will be constructed on concrete ring wall foundations, which will surround a pad comprised of layers of asphaltic sand and clean structural sand. Also underlying the tanks will be an impervious layer of bentonite clay material; used in lieu of a liner in order to allow for cathodic protection of the tank bottoms. The tanks will be placed within diked areas capable of holding the volume of the largest tank within the impoundment plus the volume of water resulting from a three-day, 25-year storm. Should some of the tanks be grouped in a common diked area, individual tanks will be separated by intermediate dikes. The diked areas; other than under the tanks, will have an impervious high density polyethylene (HDPE) liner battened to the concrete tank foundations; and special liner boots will be used where piping protrudes through the liner. The tanks will be spaced at or in excess of the distances required under National Fire Protection Association (NFPA) Standard 30 and at least one tank diameter from the inside edge of the vegetated buffer area which will extend on Transgulf's property around the site perimeter. The diked areas will be slightly graded so that any water or product outside a tank will flow away from the tank toward an environmental tank dike drain. The diked areas Surrounding the tanks will also be used to contain tank overfills or spills, should they occur. Small quantities of water may be in the petroleum products when they arrive at the Midway Terminal. Due to the tank designs and the fact that water will be removed from the products at other upstream pipeline facilities, it is estimated that only 1,000 barrels of water per calendar quarter for the total facility will be in the products stored at Midway. Any water in a tank may be visually observed through a water level sight glass and periodically drained by manual valve from the tank (which operates as an initial oil-water separator), into a second oil-water separator outside the tank known as the environmental tank drain. Following a second visual observation of the environmental tank drain and the removal of any hydrocarbon sheen water will be released from the environmental tank drain to the floor of the diked area. Any free product or hydrocarbon sheen observed on the surface of the diked area will be removed using absorbent material vacuum pump or similar method. Further testing could be performed to detect the presence of hydrocarbons. While in the diked area, water will have the opportunity to evaporate and organic compounds which may have solubilized in the water will be allowed to volatilize below the level of detection. At the environmental tank dike drain any hydrocarbon sheen will be removed from the water prior to release of water to a grass drain swale on Transgulf's property outside the diked areas. Transgulf has committed to hold any water drawn from the tank bottoms within the diked areas for a minimum retention period of seven days prior to release through the environmental tank dike drain. This is an adequate period of time for any dissolved organic compounds to be removed through evaporation prior to discharge from the diked area. One major cause of fire at petroleum terminal facilities is a tank overfill. The following features will be installed at the Midway Terminal to prevent tank overfill: (a) a gauging and meter reading system with continuous read-out that automatically closes the draw valve from the pipeline and terminates delivery once the desired quantity is placed in the tank; (b) as a back-up to the gauging and meter reading system; each tank will have a high level alarm which alarms locally and at the Central Florida Control Center to indicate normal fill level has been reached; (c) each tank will also have a high-high level detection alarm and shutdown system that automatically will close the draw valve and terminate delivery if no action is taken after the high level alarm is triggered; and (d) each tank will have a second high-high level detection alarm and system that will activate automatic shutdown independently from the other high-high level detection and alarm system. In addition, tanks will have hood deflectors rather than open screened vent outlets to prevent spraying of product should an overfill occur. Finally, combustible gas monitors will be available for use at the tanks to detect vapors from any product present in the diked areas due to an overfill. The Midway Terminal will have a self-contained system for fighting tank fires. Each tank will have automatic fire detection sensors and an automatic fixed foam system that is mounted on the tank shell and designed for full surface involvement to handle any situation where an internal deck is damaged or sunk. The automatic foam system will be locally computer controlled; not remotely controlled, and not dependent on action at the Central Florida Control Center. The fixed foam system at each tank will be connected to a central foam proportioning unit. The Midway Terminal will have 1,000 gallons of foam on-site for initial use. In additions at least 3,000 additional gallons will normally be kept on-site because the Midway Terminal, due to its central location, will hold foam reserve for the terminals Transgulf is constructing near Lucedale, Mississippi and Kissimmee, Florida, as well as for the Midway Terminal. As a further back-up to the automatic firefighting system at the tanks, the manifold area at the Midway Terminal will be equipped with portable, mobile foam cannons sized to the tanks that will be at the facility, along with additional hoses with foam nozzles. In the event of a tank fire, a local alarm will be enunciated at the Midway Terminal control room and a remote alarm will be transmitted to the Central Florida Control Center operator. As an additional firefighting technique, local personnel or the Central Florida operator will be able to initiate a preprogrammed pumping out of the contents of the affected tank into another tank or into the pipeline using the reinjection pump that will be located at the Midway Terminal. The largest tanks when full, could be emptied in a maximum of eight hours. The principal source of any water for use at the terminal in proportioning foamy cooling tanks or for other firefighting purposes will be the facility's retention pond. Transgulf will maintain the water supply in the retention pond to provide at least the quantity of water required for foam proportioning purposes under NFPA Standard 11, plus the amount that might be used for tank cooling purposes during an eight-hour tank fire. This translates to at least one million gallons of water in the retention pond for firefighting purposes. The retention pond will also be sized to contain a one in ten year storm, which is estimated to require approximately 0.7 million additional gallons; for a total retention pond capacity of at least 1.7 million gallons. It is estimated that the retention pond will be approximately five feet deep with a surface area of approximately 1.2 to 1.5 acres. Discharges from the pond will occur on an infrequent basis of about four or five times per year, at most, and the discharge will be from a point at least 50 feet within the site boundaries to a drainage swale. While Transgulf does not intend to rely on other sources of water, additional supplies could be obtained from fire trucks, the facility's well, and possibly from the local water main system which is expected to extend north of U.S. 90 on County Road 159. The well at the Midway Terminal will normally have a pump with a 35 to 40 gallon per minute (g.p.m.) capacity, but in an emergency, a 100 g.p.m. pump like that which will be used in the initial filling of the retention pond could be utilized. It is estimated that it would take approximately 10-11 days to fill the retention pond with 1.7 million gallons of water using a 100 g.p.m. pump. The water supply will be distributed using a buried and constantly pressurized water main and hydrant system and arranged to provide full coverage at the facility including all tank surfaces and the loading and manifold areas. Two fire water pumps will be installed with 100 percent redundant capacity and separate power sources. Mounted or portable water spray monitors will be provided for tank cooling purposes. In addition, hose reels, spare hoses, nozzles and a small hose house will be maintained on-site. The Midway Terminal will have limited access from County Road 159 and Security lighting and fencing. Entry into the facility will require a computer- read driver identification card. Drivers will be trained in facility operations, rules and emergency procedures prior to obtaining authorization to use the facility. Each truck will receive an annual governmental safety inspection from the Florida Department of Agriculture, an annual vapor tightness test required under 40 CFR Part 60, Subpart xx Section 60.505, and an annual Transgulf inspection to assure compatibility with Midway Terminal requirements, such as brake interlocks. As with many modern terminal facilities in the United States, the truck loading process at the Midway Terminal will be computer-controlled and driver-operated. In order to load, the driver will be required to undertake several precautionary Steps and activities. The truck engine, ignition switch and all electrical equipment; such as lights and radios, must be shut off; the truck must be visually inspected; and grounding, brake-interlocking, vapor recovery, overfill prevention, and bottom loading connections must be made and checked. Product loading, which is initiated by a start button, cannot commence until all safety connections are made and the desired product volume is verified by the computer and pre-set into the meter. The meter will have an automatic set stop counter to shut down the pump and close the valves when the volume is received. Overfill will also be prevented by a high level device, either float- type or optical, which will automatically disengage the electrical connection and shut down the pump, and by a flow connection to the vapor recovery system where a flow switch also will actuate automatic shutdown. Leak of product will be further avoided through the use of dry-break coupling connections for the vapor recovery and product loading hoses, preventing the connections from being disengaged unless loading valves are closed. In addition, a grounding detector will discontinue loading if the grounding cable is disconnected. Bottom-loading of the trucks will provide a completely closed product loading system to allow vapors to be collected through a vapor recovery system that will be installed at the loading area. The precise system to be utilized has not yet been selected. After the loading operation is complete and the various connections are disengaged, a truck will be driven toward the exit gate where the driver will receive a computer printout designating the amount of product received. It is anticipated that a truck will typically be at the terminal for approximately 25- 30 minutes. Like the tanks, the truck loading area will have an automatic fire protection system. Each loading bay will be equipped with a combustible gas monitor which will activate an alarm and automatically close down operations if any significant amount of combustible gas is detected. Each bay will also have a system of fire detectors that will trigger automatic injection of dry chemical or foam from the top and the base of the bay if a flame is detected and that will initiate a local alarm and an alarm at the Central Florida Control Center. If a fire occurs at the rack, the system will automatically stop all loading pumps and close all valves. Portable fire extinguishers, fire blankets, large two-wheeled extinguishers and hose reels will also be provided at the loading area, as well as manual emergency shut-down Switches, an emergency shower and an eye wash sink. The loading area will be canopied, paved in concrete and curbed to drain into a water separation system similar in principle to the system that will be installed for tank bottom water separation. The manifold area; which will have an underlying layer of bentonite clay material; will also drain into this system. The system will have three separate water separation phases. It will consist of an oil/water separator sized to contain the contents of one tank truck, followed by a settling pond, which will in turn be followed by the retention pond that will contain water for firefighting purposes. Each phase will be connected by hard pipe and will be designed so that any floating hydrocarbons are trapped and will not flow with the effluent water to the next phase or to the drain swale. Like the diked areas, settling and retention ponds will be imperviously lined with HDPE. Any hydrocarbon sheen on the Settling and retention ponds will be removed as needed by absorbents, pumping or a similar method. The Midway Terminal will have a small office building to house the local computer system, laboratory equipment, restrooms and other miscellaneous facilities. The terminal will require a small septic tank and drainfield that must be approved by the Gadsden County Health Department. The terminal will also have a well approximately six inches in diameter for routine use at the facility and the initial filling of the retention pond. Geotechnical analysis of blow counts and split spoon soil samples obtained during the boring of 4 wells at the proposed facility site, together with related information, indicates that the soils are very Strong and dense with low plasticity, to a depth of at least 40 feet and, accordingly, well- suited to the construction of the proposed facility using standard foundation construction. Additional soil sampling will be performed prior to actual construction and less suitable soils, if found, can be replaced. Environmental Concerns The proposed Midway Terminal site is not located in any area of critical state concern and has no wetlands or other areas of unusual environmental sensitivity. The proposed site does not lie in a flood-prone area. The property has little off-site surface water flow, due to excellent percolation in the upper soil layers. A depression beginning approximately fifty yards south of the southwest corner of the proposed site connects to an intermittent creek that carries any off-site surficial flow under U.S. 90 approximately 1/4 mile south of the site, then into Munroe Creek which flows from Lake Yvette. After approximately three miles, Munroe Creek discharges into the Little River, which after approximately three more miles flows into Lake Talquin. During construction, any exposed soils will be watered as necessary to minimize dust. Temporary dikes or berms using hay bales or other materials will be used as needed to filter any silted water prior to installment of the drainage system. Following construction of the Midway Terminal, surface water discharge offsite is not expected to exceed preconstruction levels. Under the conceptual plan for the Midway Terminal, approximately 39 percent of the facility site will be impervious. However, natural drainage patterns will be retained in unaltered areas, and any flow from altered areas will be allowed to sheet flow and percolate back into the ground in the swale and buffer areas. The redundant systems for oil-water separation, physical removal and containment with infrequent releases are reasonably predicted to meet the criterion of 5 parts per million of oils and greases prior to discharge from a tank dike drain or the retention pond. Given the holding time of at least seven days in tank diked areas, the low frequency of annual release from the lined retention pond, and the considerable surface areas provided by these systems, dissolved organic compounds such as benzene, xylene, toluene, and ED8, which are quite volatile, are reasonably expected based on relevant experience in other facilities to be found in concentrations approximating the level of detection or less prior to discharge. These are conservative analyses because they assume that the applicable State standards of 5 ppm for oils and greases (surface water), 1 ppb for benzene (drinking water), and .02 ppb for EDB (drinking water) apply at the point of release, not after a mixing zone within surface waters or after a zone of discharge with groundwaters. They are also conservative with respect to volatilization of organic hydrocarbons because volatilization would be faster under conditions of heavy rainfall, warmer temperatures, or high winds. Transgulf has committed to installing a groundwater monitoring system. A monitoring well system will be designed in accordance with state and federal regulations and tailored to the site so that wells will be placed in close proximity to potential source areas at multiple depths, and covering all boundaries of the site, including up gradient. The impermeable HDPE liners in tank diked areas and settling and retention ponds, along with concrete at the loading area; and bentonite clay under the tanks and at the manifold area will provide significant safeguards against groundwater contamination from routine water release, accidental spill or leak. If contaminated wastewater were released or if an accidental spill or leak were to occur in an unlined area, there is little likelihood of an adverse impact to any Significant groundwater resource because of natural geological conditions at the proposed site. The Midway Terminal site lies over a layer of low permeability Fullers earth type clay ranging in thickness from approximately 16 to 30 feet and beginning at approximately 30 to 65 feet below land surface. Above the Fullers earth lies a highly localized shallow aquifer and below lies the low yielding Hawthorn carbonate aquifer which rests on a layer of low permeability Hawthorn confining material approximately 90 feet thick. The Floridan aquifer, the only regionally important aquifer underlying the site, lies below the Fullers earth and Hawthorne confining layers beginning at a depth of approximately 200 feet and continuing to a depth of approximately 350 feet. If a considerable amount of petroleum product were released onto a pervious surface at the site, contact with even the initial Fullers earth confining layer would be unlikely because the product would tend to float in an effectively quiescent stage atop the slow moving surficial aquifers where dilution, volatilization absorption and biodegration would occur. Nevertheless, assuming pure gasoline came in contact with Fullers earthy due to the confining Fullers earth and Hawthorn formations, it would take on the order of 1,000 years for any hydrocarbon to reach the Floridan aquifer, and dilution alone would reduce benzene to levels at least 100 times below the groundwater standards of one ppb. Transgulf's plans for a monitoring well system designed to provide early leak detection would allow remedial steps to be taken before the occurrence of any off-site impact. In addition, an appreciable clay content of the soil below a depth of approximately 5 feet would delay wastewater from reaching the surficial water table at a depth of approximately 10 feet and allow natural mitigation. All site-specific evidence indicates that surface water and groundwater flows at the proposed terminal site are toward the west and southwest away from the Dover catfish ponds to the east and southeast, residences and churches to the north and Lake Yvette to the northwest. Surface water and shallow groundwater flowing from the terminal site to the west and southwest would be intercepted by the existing natural depression in that area and drain away from the Northwest Florida Water Management District facilities in a south and southwesterly direction to the intermittent creek. Data gathered from test well-drilling experience at the Northwest Florida Management District site indicate that any drawdown resulting from pumping at Transgulf's Midway Terminal will be quite limited in duration and scope and will have no adverse impact on either quantity or quality of water Lake Yvette. Nor will the installation of approximately 20 acres available at the Water Management District or to residents of impervious surface at the Midway terminal adversely affect local water Supplies because (a) releases to Swales will percolate; (b) 20 acres are only a small percentage of the surface area draining to the depression southwest of the site and an even smaller percentage of the Little River basin; (c) the Transgulf Site is not a recharge area for local residents who might have shallow wells; and (d) Dover's catfish ponds are located in a different drainage basin, with County Road 159 as the watershed divide. The Florida Department of Environmental Regulation (DER) has issued Transgulf an air permit authorizing construction of the Midway Terminal. In its most recent extension of the permit to July 1, 1988, the DER required Transgulf to submit, at least 30 days prior to the start of construction, its plans specification and calculations for the pollution control equipment Selected for the truck loading facilities to demonstrate that applicable emission standards will be met. The Midway Terminal is not required to obtain a federal air quality permit because it will have less than 100 tons per year in hydrocarbon emissions and is therefore classified as a "minor source" under Environmental Protection Agency (EPA) regulations. Steps taken by Transgulf to minimize air quality impacts include the fixed roofs on all tanks and sealed internal floating decks on tanks holding volatile materials. These devices will prevent wind shears and the forming of vapors. The vapor recovery system selected for use at the truck loading racks will be designed to meet applicable federal emission standards. Due to the more central location of the Midway Terminal to the market area, emissions of hydrocarbon, carbon monoxide and nitrous oxides from trucks transporting petroleum products is predicted to be reduced. The Midway Terminal truck traffic emissions will amount to less than 1 percent of the projected background traffic emissions in the area. The terminal and associated trucks will result in a total of approximately 57 tons per year in emissions of volatile organic compounds (VOC). Approximately 54 tons per year would be attributable to the tanks and the loading racks, with fugitive emissions accounting for approximately 2.21 tons per year and trucks resulting in approximately one ton per year. This corresponds to the VOC emissions that would naturally result from approximately 1,149 acres of pine trees or 352 acres of oak trees. Local air quality impacts from the proposed facility will be minimal. Transgulf provided a classification of vegetative and wildlife species occurring at the proposed site. The vegetation on site is basically characteristic of the area and consists primarily of mixed hardwood forests and pine. No rare or endangered plants, nor any endangered or threatened wildlife species are known to occur on site. The terminal project will remove some habitat as part of the site is cleared; however, no significant impact on wildlife populations in the area is expected because a considerable amount of naturally vegetated area will remain around the site. Potential archaeological and historical resources at and near the proposed site were appropriately evaluated. Two archaeological sites exist within the vicinity of the terminal: Site 8Gd296, located on site, which is a Weeden Island habitation site (A.D. 200-A.D. 1,000) with no artifact concentration that is of National Register of Historic Places quality; and Site 8Gd108, which is an archaic lithic site located outside the terminal tract. A third site, 8Gd109, composed of two or three historic cemeteries and located outside and to the east of the proposed terminal tract may be eligible for National Register nomination, and, in any event, has importance to local residents. The cemeteries will not be destroyed as a result of the terminal :3 construction or operation; however a 100-foot buffer of natural woods will be maintained between the cemeteries and the proposed installation to provide a visual buffer. A chain link fence to be covered with prolific native Carolina jasmine and Cherokee rose, along with an irrigation system to Stimulate the rate of growth, will be placed inside a fifty-foot buffer adjoining the cemeteries; with an additional fifty-foot buffer inside the fence. This plan for the cemeteries is an appropriate mitigation concept. A fifty-foot buffer will also be retained at other boundaries of the proposed site to screen aesthetic impact. While the terminal itself will create no noise impacts on the local area, noise from the anticipated terminal traffic, approximately 150 tanker truck trips per days will have some impact upon homes and churches in the immediate vicinity of the terminal. Noise increases will occur; especially during truck accelerations, but the expected levels are substantially below the Florida Department of Transportation's criteria for sensitive receptors. Economic Impacts The Midway Terminal will be constructed in one phase and will require an average of approximately thirty persons over an estimated twelve month period of construction. The estimated payroll during construction is approximately $3.8 million. The payroll for the three permanent employees will be approximately $70,000 per year. The total improved value of the Midway Terminal facility and site is estimated at $10.7 million. The total improved value of other facilities Transgulf intends to place in Gadsden County if the Midway Terminal is approved is approximately $16.8 million, approximately $12.4 million of which will be expended on facilities that can be placed in counties other than Gadsden within the region. Thus, the total improved value of Transgulf's property in Gadsden County following approval of the Midway Terminal will be approximately $27.5 million. Gadsden County is a predominantly rural, revenue poor county. Many homeowners in the County pay no ad valorem taxes because the value of their homes is less than the homestead exemption cap. The County's per capita tax revenue, adjusted for inflation was $112 in 1979 but had fallen to $95 by 1984, representing a drop of 15 percent in the ability of the County to provide goods and services to the public. Transgulf's $10.7 million terminal investment alone would increase the County's ad valorem tax base by 4 percent, resulting in an approximately $4.56 per capita increase in tax revenue or a total of $167,600 to $199,700 per year depending on the applicable millage rate. Transgulf's discretionary investment; if made in Gadsden County, would more than double that amount, and its total potential investment, including the pipeline conversion; would produce annual Gadsden County tax revenues of $432,000 or greater. These revenues are significant because Gadsden County is at the ten-mill constitutional cap on ad valorem taxes and its total tax base grew at a rate less than half that of the State as a whole from 1979 to 1984. Nonresidential investment is also a more effective producer of net ad valorem tax revenues than residential development, because the latter is subject to the $25,000 homestead exemption and typically generates a greater demand for public services. There will be no negative impact on fire insurance availability on rates to homeowners if the proposed terminal is built at Midway. Petroleum products presently arrive to the 12-County market area by way of longer truck trips from Panama City, St. Marks, Jacksonville, and Bainbridge, Georgia. The average price of Liquid petroleum products within the market area is approximately 5 cents per gallon higher than the statewide average. Transgulf's Midway Terminal would be at the modal interface of major highway routes and the pipeline, as well as nearer the center of the market area. With increased competition, the price of petroleum products in the market area is likely to fall by 4.76 cents per gallon to approximately the statewide average. The resulting substantial savings to consumers in the region would be approximately $11 million per year. Because other means of transport could be expected to adjust prices to meet the increased competition, it is anticipated that few, if any, jobs will be displaced in the region. Local government might incur some cost in the event of a fire or other emergency at the proposed Midway Terminal. The closest fire department to the site are the Quincy Fire Department and the Havana Volunteer Fire Department, neither of which are trained or equipped for fighting petroleum fires. Even if they, or Tallahassee; should be called upon for aid or assistance; the Self- Sufficient fire prevention and fire fighting Capabilities of the Midway Terminal would minimize the governmental costs of such Services. Impact on Public Facilities Neither public water facilities nor public sewer facilities will be relied upon at the Midway Terminal. The demand for electricity at the terminal can readily be handled by Talquin Electric Cooperative, Inc. The amounts of domestic trash will be small and disposed of through a public landfill. Any residue removed from storage tanks will be returned to a refinery for reprocessing or appropriately disposed of at a permitted disposal facility. Monitoring, security lighting and fencing will be provided to protect the proposed facility. Public health care facilities are available in Gadsden and Leon Counties for providing any needed emergency medical treatment. General first aid will be provided on site. As noted above, the Midway Terminal will be designed, constructed and operated to place minimal reliance and burden on public firefighting facilities. The covered, floating roof Storage tanks remove the danger of lightning strikes or other ignition Sources. Fire risks from tank overfills, Should they occur, are minimized by graded dikes and combustible gas monitors. The truck loading area will have significant fire prevention features. If the redundant fire prevention systems were to fail, the automatic, Self-contained Systems at the tanks and loading areas are designed to effectively extinguish a fire. If the automatic devices are not triggered for some reason, the fixed fire fighting systems can be manually run without the need for further local firefighting equipment. A fifteen minute response time is not inadequate or inappropriate given the design and capabilities of this proposed terminal. Transgulf's design and self-sufficient approach to fire prevention and protection should enable it to control any potential fire on-site independent of local support. Transgulf is committed to provide fire safety training to local fire departments, its employees and truckers who utilize the facility; to develop detailed evacuation plans, and to enter mutual assistance agreements where helpful. Public Transportation Facilities Trucks using the Midway Terminal will enter County Road 159 at its intersection with U.S. 90, and will then travel north approximately three quarters of a mile down County Road 159 to the entrance of the terminal site. After loading, the trucks will exit into County Road 159 and travel south to the U.S. 90 intersection where they will turn either northeast or southwest onto U.S. 90 in order to distribute the petroleum products to the market area. Transgulf has agreed to provide, at its own costs, certain transportation improvements to County Road 159 to bring it from a second class to a first class road. These improvements include the repaving and widening of County Road 159 from the site entrance to U.S. 90 and the construction of acceleration and deceleration lanes at the site entrance. Transgulf has also agreed to the installation of a flashing beacon, advance warning and yield signs and geometric improvements to the intersection of County Road 159 and U.S. 90, warning signs on County Road 159 and a sign restricting truck traffic from using the roadway north of the site. In addition, Transgulf has committed to provide Orval Pettis, who resides and conducts his business south of the site but travels north across a portion of the site to County Road 159, a new driveway connecting his property to County Road 159, should he desire this improvement. Total truck mileage for the delivery of liquid petroleum products within the anticipated market area will actually decrease as a result of the Midway Terminal location, thus lessening the impact on public highways. With the improvement to County Road 159 agreed to be undertaken by Transgulf at its own expense, existing regional and local transportation facilities have the capacity to accommodate the volumes of truck traffic associated with the proposed terminal. Housing The proposed Midway Terminal should have no impact on either the temporary or permanent demand for housing in the area. Energy Resources The location of the liquid petroleum storage and loading facility at the proposed Site will ensure more adequate and reasonably priced gasoline and other energy supplies for the 12-county market area. Truck transportation from more distant, existing sources of supply will be reduced, thus conserving energy. Location of the terminal near the pipeline also minimizes the energy consumed in pumping. Further, the air pollution control equipment proposed for the facility will Significantly reduce vapor loss and save quantities of petroleum products.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a Final Order approving Transgulf's proposed liquid petroleum products storage and truck loading terminal near Midway, subject to the following conditions: In coordination with the Gadsden County Engineer and the Florida Department of Transportation; Transgulf shall make and bear the expense of the following road improvements: A flashing beacon at and the geometric improvement of the intersection of U.S. 90 and County Road 159, and advance warning and yield signs to that intersection; The reconstruction and widening of County Road 159 from Transgulf's driveway to U.S. 90, and tie construction of acceleration and deceleration lanes at the site entrance; The installation of warning signs alerting drivers of the site entrance, as well as a sign restricting truck traffic from using the roadway north of the site; and a driveway for Mr. Orval Pettis which provides him access to County Road 159 from his property, if he so desires. A fifty-foot buffer of trees shall be maintained around the entire perimeter of the site, with an additional fifty-foot buffer of trees adjacent to the cemetery sites. There shall be a distance of at least one storage tank diameter between any tank and the inside edge of the vegetative' buffer. Water withdrawn from tank bottoms shall be retained within the diked areas for a period of at least seven days prior to discharge. The retention pond shall be sized so as to hold at least 1.7 million gallons of water and located so as to ensure that any discharge occurs only from a point or points located at least 50 feet within the site boundaries. A reliable and site-specific groundwater monitoring system shall be installed in cooperation with the Department of Environmental Regulation so as to monitor all potential source areas at multiple depths and to cover all boundaries of the site. Each storage tank shall be surrounded by either an individual and separate dike or intermediate dikes within a diked area. The facility shall be finally designed, constructed and operated so as to provide a self-contained and self-sufficient fire prevention, fire detection and firefighting system. A detailed evacuation plan for the terminal facility and residents along St. Johns Church Road shall be developed in cooperation with local fire and law enforcement departments and Transgulf shall provide at is expense needed fire safety training to local fire departments and pursue the entering of mutual assistance agreements which may promote the safety of the terminal and the Surrounding areas. The approval granted by this Order is expressly conditioned upon and is of no force or effect until such time as, or at the end of three years from the date of the Final Order, whichever first occurs, Transgulf acquires legal ownership of the proposed Midway terminal site. Respectfully submitted and entered this 12th day of November, 1985, in Tallahassee, Florida. DIANE D. TREMOR 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 12th day of November, 1985. APPENDIX The proposed findings of fact submitted by the petitioner Transgulf Pipeline Company and the intervenor Henry Baker Dover have been accepted and incorporated in this Recommended Order, except as noted below: Transgulf 40. Rejected; irrelevant and immaterial. 43. Rejected; as irrelevant and immaterial. Dover Rejected; not supported by competent substantial evidence. Rejected; irrelevant and immaterial. 30-32. Rejected; not dispositive or material in light of Finding of Fact 41. 59. Rejected; contradicted by other competent substantial evidence. 64. Rejected; contradicted by other competent substantial evidence. 78-81. Rejected; irrelevant and immaterial and constitutes legal conclusions as opposed to factual findings. 90. Rejected; contradicted by other competent substantial evidence. 99. Rejected; not dispositive of any substantive issue in this proceeding. 102. Rejected in part as constituting a legal conclusion as opposed to a factual finding. 115. Rejected; contradicted by other competent substantial evidence. COPIES FURNISHED: Honorable Bob Graham Governor State of Florida The Capitol Tallahassee, Florida 32301 Honorable Jim Smith Attorney General State of Florida The Capitol Tallahassee, Florida 32301 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301 Honorable Ralph Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 Honorable Bill Gunter State Treasurer and Insurance Commissioner The Capitol Tallahassee, Florida 32301 Honorable Gerald Lewis Comptroller State of Florida The Capitol Tallahassee, Florida 32301 Gary P. Sams Peter C. Cunningham Steven A. Medina Hopping Boyd Green & Sams Post Office Box 6526 Tallahassee, Florida 32314 Joann G. Slay Harnett, Curry & Slay Post Office Box 391 Quincy, Florida 32351 Terry Cole Kenneth G. Oertel Oertel & Hoffrman 2700 Blair Stone Road Suite C Tallahassee, Florida 32301 Sally G. Munroe 107 South Bronough Street Tallahassee, Florida 32301 Marva A. Davis 229 East Washington Street Quincy, Florida 32351 =================================================================
The Issue It must be determined whether the placement of storage tanks, pumps, and appurtenant fueling equipment by Lewis Oil Company, Inc. (Lewis) at convenience stores constituted a license or lease of real property upon which that equipment was placed and, therefore, whether the commissions paid to the convenience stores for pumping and selling the Petitioner's fuel should have been the subject of sales tax, or conversely, whether the placement of the pumping equipment and fuel at the stores was a bailment and a non-taxable transaction.
Findings Of Fact Lewis is a jobber or wholesale distributor of gasoline, diesel fuel, and related petroleum products. As a method of distributing its fuel products, the Petitioner contracts with convenience stores that it will install petroleum fuel storage tanks and dispensing equipment on the convenience store's real property, and will furnish product on consignment to the convenience store, who sells the fuels to its customers. Pursuant to the agreement between Lewis and the convenience stores, the equipment was owned by Lewis but Lewis relinquished exclusive possession and control of it to the convenience stores and their management. Lewis agreed to furnish the gasoline equipment installed at each location, and keep it in good working order. The convenience stores agreed to sell gasoline on its premises supplied exclusively by Lewis and agreed to collect and account for all monies as the result of sales of gasoline. The money associated with the sale of the gasoline was collected by the convenience stores. The amount collected was the entire cost of a gallon of gas to the consumer which would include the motor fuels tax. The convenience stores paid Lewis the full retail price of the sales less the agreed upon commissions and sales taxes. Lewis remitted the motor fuel tax to the State and paid the bills associated with the cost of fuel to the supplier, Chevron Oil Company. The convenience stores were required to account for the monies collected by taking meter readings which were then recorded on forms and remitted to Lewis regularly. Lewis was permitted to inspect the records, pumps and metering equipment for the purpose of verifying the accounting made by the convenience stores to determine whether or not Lewis was receiving an appropriate portion of the gross profit margin as agreed to in the commission agreement itself. The metering equipment is located on the face of the dispenser, and a meter reading can be done by looking at the meter or by pushing a button. On most of the equipment at the convenience stores, it was not necessary to take the meter readings from the actual equipment because the metering equipment was accessed on the inside of the stores on consoles. The convenience stores were responsible for inspecting the underground tanks by "sticking" the tanks with a long stick to reconcile actual tank inventory with meter readings to determine the possible loss of inventory. The convenience stores were responsible for the day to day maintenance of the pumps and islands such as sweeping and cleaning the equipment and inspecting the equipment for proper operations and damage. The convenience stores were responsible for the hiring, firing and management of employees associated with managing the gasoline tanks and pumps. If the tanks needed repairs, the convenience store operator was responsible for notifying Lewis of the necessary repairs, and Lewis would see that the repairs were made and would pay for the repairs. All repairs required the permission and cooperation of the convenience store operator who required that the repairs be coordinated so as not to interfere with store operations. The repairs required the cooperation of the convenience stores. Lewis set the price of the gasoline for the consumer, and the meters were physically changed by the employees at the convenience stores. Lewis agreed not to set the price of the gas at a price that would provide less than 1.5 cents per gallon commission except on consent of the convenience stores. The stores were responsible for advertising materials to display the price set. If for any reason Lewis was unable to supply gas for sale to the convenience store's customers, the stores’ management was free to obtain gas from other petroleum suppliers. It was only required to pay Lewis a 2-cent fee in this eventuality. Lewis did not have the right under the contract with the convenience stores to interfere with the stores’ possession by physically locking up the pumps or removing the tanks from the ground or blocking sales of the fuel. Under the terms of the contract, Lewis did not have the right to remove any of the gasoline. Upon expiration or termination of the agreement, Lewis would re-possess all equipment, inventory and merchandise from the convenience stores, and Lewis was required to return the ground to its original condition. Lewis would reuse the equipment if it still met environmental standards. Lewis carried insurance for property damage, environmental damage and the liability associated with the operation of the petroleum systems, and the convenience stores agreed to indemnify and insure against any losses or liabilities that arose out of their own negligence. The Florida Department of Environmental Protection lists Lewis as the owner of the petroleum tanks and lists the convenience store as the operator on its Petroleum Liability Insurance and Restoration Program forms.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department enter a Final Order determining that Lewis was not exercising a taxable privilege under Sections 212.103, F.S. DONE and ENTERED this 11th day of June, 1997, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 11th day of June, 1997. COPIES FURNISHED: Jefferson M. Braswell, Esquire Scruggs and Carmichael, P.A. Post Office Box 23109 Gainesville, FL 32602 James F. McAuley, Esquire John Upchurch, Esquire Office of Attorney General The Capitol - Tax Section Tallahassee, FL 32399-1050 Linda Lettera, Esquire Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100 Larry, Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100
Findings Of Fact Asphalt Pavers, Inc., was one of several bidders on DOT Project No. 09010-3518, a federal aid highway project in Highlands County, Florida. The bid specifications include a Disadvantaged Business Enterprise (DBE) goal of 10%. The bid packet provided to the bidders by FDOT includes a "Utilization Affirmative Action Certification", to be signed by the bidder, with a prominently displayed notice that DBE utilization forms reflecting full compliance with the contract goal must accompany the bid, or documentation must be included to demonstrate good faith efforts to meet the goals. The notice further states that failure to submit these items will be just cause to consider the bid nonresponsive. (Pet. Ex. #1) Section 2-5.3.2 of the Special Provisions of the bid specifications lists the forms to be attached to the bid submission, which forms include a utilization summary and DBE utilization forms. (Pet. Ex. #1, p. 138) Asphalt Pavers, Inc., submitted the lowest bid, at $2,402,747.90. The next lowest bidder was Weekley Asphalt Paving, at $2,406,484.55. The bids for this project, and several others, were opened on January 23, 1991, in the FDOT auditorium in Tallahassee, Florida. The occasion was unusual as Governor Chiles attended and read one of the bids. The staff was excited to have the Governor show up and express some interest in the transportation industry. Although bids were not accepted after the posted deadline, the opening was delayed about a half hour, or until 11:00 a.m., to allow the Governor to arrive. All other routine procedures were followed. These are the routine procedures: At the deadline, bids are collected from the contract management office of DOT and from the mailroom and are carried to the auditorium, where they are stacked on a table. As they are opened, the envelope is checked for loose papers. If any are found, they are placed inside the bid packet. The empty envelopes are placed in a separate pile. The two DOT employees opening bids then check to see if bid bonds are included in the packets. Another crew starts checking the packets to see if the bidders have acknowledged receipt of addenda (revisions in the specifications that are sent out after the project is advertised). If the acknowledgment form is not included, the bidder is contacted at the bid opening, if a representative is present, or later, if necessary, to see if the addenda were received. When the bids have been checked for bonds and acknowledgment forms, they are moved to the front of the auditorium, where they are stacked again. The bid amount from the face of each packet is read aloud, and the packets are placed in boxes. The bids are then wheeled on a cart to the Contracts Administration office. The auditorium area is checked for debris or loose papers. The bids are stacked again in the Contracts Administration office along a counter, and an employee is posted to watch them until staff from the Minority Programs Office comes down to check for DBE compliance. In this case, Howard Knight, an operations and management consultant with the Minority Programs Office, and his supervisor, arrived around 1:30 p.m. on the day of the letting. They commenced checking the bids to see if the DBE's were certified, to see if the summary DBE sheet and DBE utilization forms were attached, and to see if the total amount of the DBE subcontracts met the established goal. The first packet that Howard Knight checked was Asphalt Pavers'. He found the summary form listing four DBE subcontracts and the amounts for each; and he found three utilization forms conforming to three of the DBE subcontractors. The fourth form referenced on the summary sheet, for H.S. Thompson, was missing. Knight told his supervisor, who told him to check again. He checked the packet page by page and passed it to the supervisor, who did the same thing. When neither found the form, Knight computed the DBE total without H.S. Thompson's subcontract amount, resulting in a DBE participation rate of less than 10%. At the hearing Mr. Knight could not state what information is provided on the utilization form that is not also on the summary. In fact, the summary lists the name of each DBE subcontractor and the dollar amount for each, with a space for total and a space to indicate how many DBE utilization forms are attached. The separate utilization forms (one for each DBE subcontractor) provide the name and address of the DBE, a brief description of the work to be done, and the amount to be paid. The form includes a signature space for the prime and for the subcontractor, although the subcontractor is not required to sign. The summary form and the separate utilization forms are found as the last pages in the bid packet. In this case Asphalt Pavers' bid is comprised of 133 sheets (not including the H.S. Thompson form) stapled together in a packet approximately 3/4 inches thick. Asphalt Pavers' bid was reviewed by the Minority Programs Office and DOT's Good Faith Efforts Review Committee who found that no documentation was included as to good faith effort to achieve the DBE goal, since the bidder believed that he had met the goal. The bid was thus determined to be nonresponsive, and notice to award to the next lowest bidder, Weekley Asphalt Paving, was posted on March 4, 1991. Asphalt Pavers, Inc., proposal was prepared by Jennings Clay Dumas, an employee of Asphalt Pavers, Inc., who has been preparing bid proposals for work let by FDOT since 1953. In the last two years Dumas has prepared at least 20 bids for his company for FDOT projects, about one per month. Dumas prepared the bid in issue using the original packet received from FDOT. Only one blank utilization form was provided in the packet, but Asphalt Pavers had four separate DBE subcontractors, so three additional pages had to be added. Dumas accomplished this by folding back the staples, punching the additional forms into the back of the proposal, and folding the staples in place. H.S. Thompson is an approved DBE subcontractor who provided a quote of $27,650.00 to Asphalt Pavers and to another bidder in this letting. Jennings Clay Dumas completed the DBE summary form listing the four subcontractors, including H.S. Thompson, and completed four utilization forms, including the one for H.S. Thompson which was affixed as the last sheet in the packet. The packet was inserted into the envelope by Mr. Dumas, and was carried by him to the letting on January 23, 1991, where he sealed it and handed it to the FDOT representative. The total amount of DBE participation in Asphalt Pavers' bid was $240,519.70, including H.S. Thompson's subcontract. This meets the 10% DBE goal. It is virtually impossible to determine what happened to the H.S. Thompson utilization form in the Asphalt Pavers bid packet. Jennings Clay Dumas' testimony that it was included in the packet when he placed it in the envelope is credible. So also is the testimony of the various FDOT employees regarding their careful procedures to avoid loss of documents. Nonetheless, while several FDOT employees handled the bids, opened, stacked and checked them, not one who testified could specifically remember opening the Asphalt Pavers' bid; and it was not until the packets were moved at least twice that the DBE forms were checked and the H.S. Thompson form was not found. It is significant to note that at the hearing other pieces of the original Asphalt Pavers' bid packet were falling out of the staple. The H.S. Thompson form was lost, and it is more likely this occurred after the packet was opened by FDOT than before it was sealed in the envelope by Jennings Clay Dumas. At the same letting, but for a different project, another bid was rejected for failure to include a DBE utilization form. That bidder, Overstreet Paving Company, also contends that the form was submitted with its packet, and its separate bid protest is the subject of DOAH Case #91-2123BID. At the Contracts Administration Office, where the bid packets are set out for review by the Minority Programs Office staff, Overstreet's packet was stacked next to Asphalt Pavings' packet. These two cases are the only incidents of lost forms in the experience of FDOT's witnesses. For the subsequent February 1991 letting, FDOT determined that certain DBE information could be submitted within two days of the bid letting, rather than with the bid proposal. Only documentation that the DBE goal is met, that certified DBE's would be used and the amount of participation by each had to be included with the proposal. This is reflected in a memo dated February 20, 1991, to Juanita Moore, Manager, Minority Programs Office, from Tereasa Stewart, Director of Administration. (Pet. Ex. #2) Later, FDOT amended its DBE Rule 14-78.003(2)(b), F.A.C. to modify the requirement that all DBE documentation had to be included at bid opening.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Florida Department of Transportation enter its final order GRANTING the protest of Petitioner and awarding the bid in project #09010-3518 to Asphalt Pavers, Inc. DONE AND RECOMMENDED this 10th day of May, 1991, in Tallahassee, Leon County, Florida. MARY CLARK 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 10th day of May, 1991. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings 1. Adopted in paragraph 4. 2. Adopted in paragraph 3. 3. Adopted in paragraph 4. 4.- 5. Adopted in paragraph 10. 6.- 8. Adopted in paragraph 11. 9.-11. Adopted in paragraph 12. 12. Adopted in paragraph 13. 13. Adopted in paragraph 11. 14.-15. Adopted in paragraph 12. 16. Adopted in paragraph 14. (same finding as paragraph 2, above) Rejected as unnecessary. Adopted in paragraph 16. Adopted in summary form in paragraph 16. 21.-22. Rejected as unnecessary. Adopted in paragraph 15. Adopted in paragraph 6 and 7. Rejected as unnecessary. Adopted in paragraph 8. Adopted in substance in paragraph 14. Rejected as unnecessary. Adopted in paragraph 5. Respondent's Proposed Findings Adopted in paragraphs 1 and 2. Adopted in summary in paragraph 2. Adopted in paragraph 4. Adopted in part (as to lowest bid) in paragraph 3, otherwise rejected as contrary to the weight of evidence (as to the 10% goal requirement). 5.- 8. Adopted in summary in paragraphs 4 and 5. 9.-11. Adopted in paragraphs 7 and 8. 12.-13. Rejected as unnecessary. Adopted in part in paragraph 4. The "normal routine" was at least disturbed by the delay in the reading of the bids and by the excitement generated by the Governor's presence. Rejected as unnecessary. COPIES FURNISHED: Ben G. Watts, Secretary Attn: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams General Counsel Dept. of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 W. Crit Smith, Esquire Smith & Thompson, P.A. 1530 Metropolitan Blvd. Tallahassee, FL 32308 Susan P. Stephens, Esquire Mark Hankins, Esquire Dept. of Transportation 605 Suwannee St., M.S. 58 Tallahassee, FL 32399-0458
Findings Of Fact Based upon the evidence adduced at the evidentiary hearing on the Department's Motion, and the record as a whole, the following Findings of Fact are made: In October of 1995, Petitioners, who desired to construct a single-family, concrete dock in the Hillsboro Canal (in Broward County, Florida) for their 171-foot yacht and to perform dredging adjacent to the dock (Project), filed with the Department a Joint Application for Environmental Resource Permit/Authorization to Use State Owned Submerged Lands/Federal Dredge and Fill Permit (Application). In the Application, Petitioners indicated that their mailing address was: c/o Flynn Enterprises 676 N. Michigan Ave., Suite 4000 Chicago, IL 60611 Flynn Enterprises, Inc., is a business owned by Petitioner Donald Flynn. The Application listed "Jeff Adair, Project Manager" of "Keith and Schnars, P.A., 6500 N. Andrews Avenue, Ft. Lauderdale, FL 33309," as the "agent authorized to secure permit" for Petitioners. The application form that Petitioners used to submit their Application contained the following signature page: By signing this application form, I am applying, or I am applying on behalf of the applicant, for the permit and any proprietary authorizations identified above, according to the supporting data and other incidental information filed with this application. I am familiar with the information contained in this application and represent that such information is true, complete and accurate. I understand this is an application and not a permit, and that work prior to approval is a violation. I understand that this application and any permit issued or proprietary authorization issued pursuant thereto, does not relieve me of any obligation for obtaining any other required federal, state, water management district or local permit prior to commencement of construction. I agree, or I agree on behalf of my corporation, to operate and maintain the permitted system unless the permitting agency authorizes transfer of the permit to a responsible operation entity. I understand that knowingly making any false statement or representation in this application is a violation of Section 373.430, F.S. and 18 U.S.C. Section 1001. Typed/Printed Name of Applicant (if no Agent is used) or Agent (if one is so authorized below) Signature of Applicant/Agent Date (Corporate Title if applicable) AN AGENT MAY SIGN ABOVE ONLY IF THE APPLICANT COMPLETES THE FOLLOWING: I hereby designate and authorize the agent listed above to act on my behalf, or on behalf of my corporation, as the agent in the processing of this application for the permit and/or proprietary authorization indicated above; and to furnish, on request, supple- mental information in support of the appli- cation. In addition, I authorize the above- listed agent to bind me, or my corporation, to perform any requirement which may be necessary to procure the permit or authorization indicated above. I understand that knowingly making any false statement or representation in this application is a violation of Section 373.430. F.S. and 18 U.S.C. Section 1001. Typed/Printed Name of Applicant Signature of Applicant Date (Corporate Title if applicable) Please note: The applicant's original signature (not a copy) is required above. PERSON AUTHORIZING ACCESS TO THE PROPERTY MUST COMPLETE THE FOLLOWING: I either own the property described in this application or I have legal authority to allow access to the property, and I consent, after receiving prior notification, to any site visit on the property by agents or personnel from the Department of Environ- mental Protection, the Water Management District and the U.S. Army Corps of Engineers necessary for the review and inspection of the proposed project specified in this application. I authorize these agents or personnel to enter the property as many times as may be necessary to make such review and inspection. Further , I agree to provide entry to the project site for such agents or personnel to monitor permitted work if a permit is granted. Typed/Printed Name Signature Date (Corporate Title if applicable) The name "Jeff Adair" appears on the "Name of Applicant (if no Agent is used) or Agent (if one is so authorized below)" line under the first paragraph on the signature page of Petitioners' Application; however, neither Adair's signature, nor any other signature, appears on the signature line under this paragraph. Petitioner Donald Flynn's signature appears on the signature lines under the second (agent designation and authorization) and third (access to property) paragraphs on the page. By letter dated November 17, 1995, the Department informed Petitioners of the following: Preliminary evaluation of your project leads staff to the conclusion that the project as proposed cannot be recommended for approval. While this is not final agency action or notice of intent, it does represent the staff review of your application based on consider- able experience in permitting matters. We are sending you this letter at this stage of the processing to allow you to assess fully the further commitment of financial resources for design dependent on permit issuance. . . . In summary, please revise plans to: (1) reduce the amount of dredging; (2) reduce impacts to natural resources; (3) reduce the size of the dock; (4) reduce encroachment on navigational channel; (5) reduce encroachment on adjacent properties; and (6) after minimization, offer mitigation plans that would address the loss of seagrass in the vicinity (watershed or basin) of the project site. Your application is currently "incomplete" and Final Agency Action will not occur until a reasonable amount of time is allowed for the submittal of a revised plan. A completeness summary has been sent under separate cover, addressing the items that are still outstanding. Staff will continue to process your application in the normal manner; however, I suggest you contact Tim Rach of this office . . . to discuss these possible alternatives regarding your project. The Department's November 17, 1995, letter was addressed to Petitioners "c/o Jeff Adair, Project Manager, Keith and Schnars, P.A., 6500 North Andrews Avenue, Fort Lauderdale, FL 33309-2132," as were subsequent requests for additional information made by the Department and other correspondence from the Department concerning the Project. Adair responded to the Department's requests for additional information and otherwise corresponded and communicated with the Department on behalf of Petitioners. In July of 1996, Adair participated in a telephone conference call during which the Department advised him that, if the Application was not withdrawn, it would be denied. On August 13, 1996, Adair sent the following letter to the Department concerning the Project: Pursuant to our recent discussions pertaining to the proposed mitigation plan and final review and processing of the Flynn Dock application, we have been advised via Mr. Flynn's attorney not to withdraw the application. Therefore, we await the Department's final decision relative to the permittability of this project. As you have indicated, we are anticipating the Depart- ment's response toward the end of this month. In making your decision, we strongly urge you to consider the merits or our innovative and "no risk" mitigation plan. We believe our mitigation plan more than compensates for proposed impacts and provides substantial net benefits to the environment and the research community. In particular, information obtained from our proposed research effort would not only benefit our project, but would also facilitate scientific analysis and review of similar applications and issues. As always, please do not hesitate to call should you have any questions or concerns. On August 19, 1996, the Department sent the following letter to Petitioners "c/o Flynn Enterprises, 676 N. Michigan Ave., Suite 4000, Chicago, IL 60611," the address that Petitioners had indicated in the Application was their mailing address: We have reviewed the information received on May 31, 1996 for an Environmental Resource Permit and authorization to use sovereign submerged lands. The Department has deemed the application complete as of this date. Final action on your application for an Environmental Resource Permit and sovereign[] submerged lands authorization will be taken within 90 days of receipt of your last item of information unless you choose to waive this timeclock. If you have any questions, please contact me at . . . . A copy of this August 19, 1996, letter was sent by the Department to Adair. On August 27, 1996, the Department issued a Consolidated Notice of Denial (Notice) in which it announced its preliminary decision to deny Petitioners' Application. The Notice contained the following advisement: A person whose substantial interests are affected by the Department's action may petition for an administrative proceeding (Hearing) in accordance with Section 120.57, Florida Statutes. Petitions filed by the permittee and the parties listed below must be filed within 14 days of receipt of this letter. Third party Petitioners shall mail a copy of the petition to the permittee at the address indicated above at the time of filing. Failure to file a petition within this time period shall constitute a waiver of any right such person may have to request an administrative determination (hearing) under Section 120.57, F.S. The Petition must contain the information set forth below and must be filed (received) in the Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000: The name, address, and telephone number of each petitioner, the permittee's name and address, the Department Permit File Number and county in which the project is proposed; A statement of how and when each petitioner received notice of the Depart- ment's action or proposed action; A statement of how each petitioner's substantial interests are affected by the Department's action or proposed action; A statement of the material facts disputed by petitioner, if any; A statement of facts which petitioner contends warrant reversal or modification of the Department's action or proposed action; A statement of which rules or statutes petitioner contends warrant reversal or modification of the Department's action or proposed action; and A statement of the relief sought by petitioner, stating precisely the action petitioner wants the Department to take with respect to the Department's action or proposed action. If a petition is filed, the administrative hearing process will constitute a renewed determination of the Department's decision on the application. Accordingly, the Department's final action may be different from the position taken by it in this letter. Persons whose substantial interests will be affected by any decision of the Department with regard to the permit have the right to petition to become a party to the proceeding. The petition must conform to the requirements specified above and be filed (received) within 14 days of receipt of this notice in the Office of General Counsel at the above address of the Department. Failure to petition within the allowed time frame constitutes a waiver of any right such person has to request a hearing under Section 120.57, F.S., and to participate as a party to this proceeding. Any subsequent intervention will only be at the approval of the presiding officer upon motion filed pursuant to Rule 28-5.207, and 60Q-2.010, F.A.C. This Notice constitutes final agency action unless a petition is filed in accordance with the above paragraphs or unless a request for extension of time in which to file a petition is filed within the time specified for filing a petition and conforms to Rule 62-103.070, F.A.C. Upon timely filing of a petition or a request for an extension of time this Notice will not be effective until further Order of the Department. . . . The Notice was mailed (by certified mail, return receipt requested) to Petitioners "c/o Flynn Enterprises, 676 N. Michigan Ave., Suite 4000, Chicago, IL 60611." Although the Notice's certificate of service reflected that a copy of the Notice had been mailed to Adair "before the close of business on AUG 27 1996," in fact, as a result of inadvertence on the part of Department staff, a copy of the Notice had not been mailed to Adair. On September 3, 1996, the Notice sent to Petitioners was received by a Flynn Enterprises, Inc., employee at the address to which it was mailed. The employee executed a return receipt upon receiving the Notice. The Notice was referred to Victor Casini, Esquire, the general counsel of Flynn Enterprises, Inc., on September 4, 1996. Casini set the document aside for filing. He did not believe that there was any immediate action that he or anyone else in the Flynn Enterprises, Inc., office in Chicago needed to take in response to the Notice. Casini noted that Adair's name was listed in the Notice as among those who purportedly had been furnished copies of the Notice. He knew that Adair was handling all matters relating to the permitting of the Project for Petitioners. He therefore assumed that any action that needed to be taken in response to the Notice would be taken by Adair on behalf of Petitioners. Inasmuch as it appeared (from his review of the Notice) that the Department had already furnished Adair with a copy of the Notice, he saw no reason to contact Adair to apprise him of the issuance of the Notice. In taking no action in response to the Notice other than setting it aside for filing, Casini acted reasonably under the circumstances. Adair first learned of the issuance of the Notice during a telephone conversation he had on September 9, 1996, with an employee of Broward County, who mentioned to him, in passing, that the Department had denied Petitioners' Application. 2/ Adair thereupon immediately telephoned the Department to confirm that the Application had been denied. The Department representative to whom he spoke confirmed that the Notice had issued, apologized for the Department's failure to have sent him a copy of the Notice, and promised to rectify the error by sending him a copy of the Notice as soon as possible. Keith Skibicki, the vice president of Flynn Enterprises, Inc., in charge of its day-to-day operations, served as the liaison between Adair and Petitioners. On September 12, 1996, Adair telephoned Skibicki to inquire (for the first time) if Petitioners had received a copy of the Notice. Skibicki, who previously had neither seen nor heard about the Notice, asked around the office and learned that the Notice had been received and was in Casini's files. Skibicki related this information to Adair. Later that same day, September 12, 1996, Adair received the copy of the Notice that the Department had sent him. He then faxed a copy of the Notice to Harry Stewart, Esquire, the Florida attorney who had been retained by Petitioners to assist them in their efforts to obtain favorable action on their Application. Shortly thereafter Adair telephoned Stewart to discuss what they should do in response to the Notice. During their conversation, Stewart expressed the opinion that the 14-day period for filing a petition for an administrative proceeding began to run only upon Adair's receipt of the Notice and that therefore Petitioners had until September 26, 1996, to file their petition. During the two-week period that followed their telephone conversation, Adair and Stewart worked together to prepare such a petition. The petition was filed with the Department on September 26, 1996 (which was 23 days after the Notice had been delivered to the Chicago office of Flynn Enterprises, Inc., but only 14 days after Adair, Petitioners' designated agent in their dealings with the Department, had received a copy of the Notice). The actions taken on behalf of Petitioners in response to the Notice were intended to preserve Petitioners' right to challenge the proposed denial of their Application. At no time was there any knowing and intentional relinquishment of that right.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter an order finding that Petitioners' petition challenging the proposed denial of their Application is not time-barred and remanding the matter to the Division of Administrative Hearings for a Section 120.57(1) hearing on the merits of Petitioners' challenge. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of February, 1997. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1997.
Findings Of Fact In May, 1983, DOT advertised for bids to separately lease the 11 service stations on the Florida Turnpike. Prospective bidders were prequalified before being allowed to submit bids. Bids were to be awarded to the bidder submitting the highest responsible bid and based solely on the amount per gallon to be paid to DOT on each gallon of motor fuel sold at the service plaza. The existing leases were all due to expire and an attempt to get bids in 1982 had been dropped after litigation delayed completion of the bid process. Turnpike prices for motor fuels are regulated somewhat by DOT, in that the Turnpike prices must be comparable to prices at off-Turnpike stations in the vicinity which offer similar services. Those stations selected for comparative prices must be acceptable to the Turnpike station operator and DOT. Equipment at the existing service plazas has been in use for many years and in the bid offering in May, 1983, several new provisions were included, as were many provisions of the expiring leases. To insure competent and qualified service to motorists on the Turnpike, retained lease provisions require the stations to be open 24 hours per day, to provide wrecker service, and to have a mechanic on duty. Few off-Turnpike stations meet these requirements. Accordingly, "comparable" stations within SD miles east-west of the Turnpike and in the vicinity of a specific service plaza may not be readily available. The bid offering provided that these "comparable" stations will be selected by mutual agreement of the parties but makes no provision for settling a dispute between the lessor (DOT) and the lessee. This is significant because another of the lease provisions contained in the bid offering is that the prices at which the service plazas sell fuel must not exceed by more than two cents per gallon the prices at these selected comparable stations. New provisions in this bid offering required the successful bidder to replace all dispensing equipment (gas pumps) with modern equipment, and to provide for sale of motor fuels at self-service pumps. The bid offering contained no specifics as to where the self-service pumps are to be located with respect the existing service islands, whether self-service motor fuels are to be available by credit card or cash only sale, or whether there could be a different price for cash sales than for credit card sales. The bid offering provided that no one entity could be awarded the lease of more than five service stations on the Turnpike, and no bond was required to be posted by any bidder. DOT expected the successful high bidders to submit bids in the vicinity of eight cents per gallon. This was based on DOT's knowledge from surveys taken at frequent intervals over a long period of time, of the price motor fuels was selling bat comparable stations off the Turnpike; of the tank wagon costs of motor fuels to the station operators; of the sales of tires, batteries and accessories historically made by these stations, the profits from which are not included in the lease price; of the uncertainties inherent in the profits engendered by the to-be-offered self-service sales; other changes which increased the field of bidders; and the expected stability of motor fuel prices. When the bids were opened on September 12, 1953, the first, second, and third highest bids received for each of the 11 service plazas are as follows: Service Plaza First Second Third (Number) Highest Highest Highest Bid Bid Bid Snapper Creek (601) 13.51 12.34 5.40 Crocco, Inc. Gus Crocco William Crocco Pompano (611) 14.35 Crocco, Inc. 14.33 Gus Crocco 9.75 William Crocco Pompano (612) 14.33 Crocco, Inc. 12.76 Gus Crocco 9.20 Super Service West Palm Beach (623) 15.67 15.67 11.55 Gus Crocco Crocco, Inc. William Crocco West Palm Beach (624) 15.67 14.53 11.55 Gus Crocco Crocco, Inc. William Crocco Ft. Pierce (635) 15.67 14.83 13.90 Gus Crocco Crocco, Inc. Super Service Ft. Pierce (636) 15.67 14.53 12.40 Gus Crocco Crocco, Inc. WMG, Inc. Ft. Drum (647) 16.20 Super Service 15.67 Gus Crocco 14.53 Crocco, Inc. Canoe Creek (658) 15.67 Gus Crocco 14.90 Super Service 14.53 Crocco, Inc. Turkey Lake (669) 14.34 Gus Crocco 14.20 Super Service 13.43 Crocco, Inc. Okahumpka (670) 14.34 13.25 5.67 Crocco, Inc. Gus Crocco Gulf Oil Although Crocco, Inc., and Gus Crocco were the apparent high bidders for 10 of the 11 Turnpike service station leases, DOT, with only 20 days to award or reject bids, on October 3, 1983, issued a notice of intent to enter into leases with the high bidders. Before such leases could be executed, a petition to protest the award of these bids was filed by parities who are the intervenors herein, the case was referred to the Division of Administrative Hearings and was assigned DOAH Case No. 83-3539. Gus Crocco and William Crocco are brothers, are shareholders in Crocco, Inc., are shareholders in WMG, Inc., and have operated service stations on the Florida Turnpike for the past several years. All entities named in the above sentence submitted bids for Turnpike leases at this offering. Super Service General Partnership, the high bidder for the lease at Ft. Drum service plaza, is composed of a partnership consisting of Ralph Girvin and two other partners. Girvin prepared the bid submitted by Super Service General Partnership which, at 16.02 cents per gallon of motor fuel sold, was the highest bid submitted for any lease. Gus Crocco, Crocco, Inc., William Crocco, and WMG, Inc., submitted the three highest bids for five of the 11 service station leases. During discovery in preparation for the hearing in Case No. 83-3539, it was disclosed that Gus Crocco prepared the bids submitted by Gus Crocco and Crocco, Inc.; that no market survey was taken by Gus Crocco or Ralph Girvin before establishing the selling prices for motor fuels upon which their bids were predicated; that the profit per gallon of motor fuel assumed by Crocco included a rebate from the supplier of approximately six cents per gallon even though no rebate has ever been given at a Turnpike service station for more than a short period of time; the profits to be made per gallon did not take into consideration county taxes that are applicable to some of the service plazas; that existing prices at stations accepted as comparable in the past were much lower than the sale prices which Gus Crocco and Ralph Girvin used to arrive at a bid price; that absent a requirement for the posting of a bond the high bidder could withdraw his bid without financial penalty or liability; that some communication between the Crocco brothers had taken place before the bids were submitted; that Ralph Girvin hand attempted to contact Gus and William Crocco before submitting his bid; that the data upon which Gus Crocco, Crocco, Inc., and Super Service General Partnership based their bids was insufficient to account for all expenses to be incurred; and that there was a high probability that the service station could not provide adequate service to the motorists while paying the price bid for the leases and selling motor fuels at a price comparable to that charged by off-Turnpike stations in the vicinity. This information was passed to DOT. Sam Roddenberry, Turnpike engineer for DOT, is the individual primarily responsible for the operation of the Turnpike in accordance with policies established by DOT. He was the DOT employee primarily responsible for the provisions of the bid proposals and lease, for the award of the lease to the highest qualified bidder, and for the policy changes, including the sale of motor fuel at self-service pumps. After receiving information discovered during trial preparation for Case No. 83-3539, Roddenberry compared Gus Crocco's projected selling price of $1.239 per gallon of regular leaded self-service gasoline with the 1983 average price in Jacksonville of $1.0991; compared the Crocco price estimate for unleaded self-service gasoline of $1.349 per gallon with the Jacksonville price of $1.1789; and the Crocco price estimate of $1.3996 for self-service super unleaded with the Jacksonville price of $1.2997. A similar comparison was made with respect to Super Service General Partnership's bid. These comparisons, the close relationship between the three high bidders at all stations (except for Super Service) and his knowledge that rebates, when given, are good only for short periods of time, led Roddenberry to conclude that all bids should be rejected. On October 1, 1984, Chapter 84-276, Laws of Florida, became effective. This discontinued the high-bid system upon which the bids here involved were solicited and substituted therefor a request for proposal (RFP) system upon which the Department selects the applicant deemed best qualified to satisfy the statutory criteria established by this statute. On June 25, 1984, each of the high bidders was notified by DOT that Respondent intended to withdraw its notice of intent to award leases and that it intended to reject all bids. These bidders at the same time were advised of their right to a Chapter 120.57 hearing, and the petitions for hearing, here involved, followed.
The Issue In this proceeding, Florida Power Corporation (FPC) seeks approval to construct and operate 470 MW of natural gas-fired advanced design combined cycle (NGCC) generating capacity at its proposed Polk County Site. Additionally, FPC seeks a determination that the Polk County Site has the environmental resources necessary to support an ultimate capacity of 3,000 MW of combined cycle generating capacity fueled by a combination of natural gas, coal-derived gas and distillate fuel oil. Such an ultimate site capacity certification may be granted pursuant to Section 403.517, Florida Statutes and Rule 17-17.231, Florida Administrative Code.
Findings Of Fact Project Site and Vicinity FPC's proposed Polk County Site is located on approximately 8,200 acres in southwest Polk County, Florida, in an area dominated by phosphate mining activities. The Polk County Site is approximately 40 miles east of Tampa, 3 miles south of Bartow and 3.5 miles northwest of Fort Meade. Homeland, the nearest unincorporated community, lies about one mile to the northeast of the site boundary. The Polk County Site is bounded on the north by County Road (CR) 640 and along the southeast and south by a U.S. Agri-Chemical Corporation (USAC) mine. CR 555 runs north-south through the site. The Polk County Site is comprised of land in four different phases of mining activity: mine pits, clay settling ponds associated with phosphate mining, land which has been mined and reclaimed, and land which has yet to be mined. Approximately one-half of the Polk County Site is subject to mandatory reclamation. Land uses adjacent to the Polk County Site consist almost entirely of phosphate mining activities. One mobile home is located at the intersection of CR 640 and CR 555 approximately 2 miles from the proposed location of the principal generating facilities. General Project Description The initial generating capacity at the Polk County Site will be NGCC units. Under what has been designated as the Case A' scenario, ultimate site development will consist of 1,000 MW of NGCC and 2,000 MW of CGCC generating capacity, for a total of 3,000 MW. Under the alternative Case C scenario, the ultimate site capacity would consist of 3,000 MW of all NGCC capacity. The Case C scenario was initially developed as the worst case scenario for the socioeconomic impact analysis (i.e., the one that would produce the least amount of economic benefit.) The combined cycle units which initially burn natural gas can be modified to burn coal gas if necessary to meet changes in fuel supply or pricing. However, under the proposed ultimate site capacity, CGCC generating capacity will be limited to a maximum of 2,000 MW out of the total of 3,000 MW. At ultimate buildout the major facilities at the Polk County Site will include the plant island, cooling pond, solid waste disposal areas, and brine pond. The plant island will be located on mining parcels SA-11, SA-13 and the northerly portion of SA-12. The plant island ultimately will contain the combined cycle power block, oil storage tanks, water and sewage treatment facilities, coal gasification facilities, coal pile and rail loop, and coal handling facilities. The cooling pond at ultimate buildout will be located in mining parcels N-16, N-15 and N-11B, with a channel through N-11C. Mining parcels N-11C, P-3, Phosphoria, Triangle Lakes and P-2, if not used as a solid waste disposal area, will be used as water crop areas to collect rainfall for supplying the cooling pond. The brine pond will receive wastewater reject from the reverse osmosis (RO) water treatment system and will be located on mining parcel SA-9. Two solid waste disposal areas (SWDA) are planned for ultimate development of the Polk County Site. The SWDAs will be mining parcel SA-8 initially and mining parcel P-2 in later phases, if necessary. Coal gasification slag will be the predominant solid waste to be disposed of in the SWDAs. Other areas included within the Polk County Site are mine parcels N- 11A, N-13, N-9B, Tiger Bay East, Tiger Bay, the northerly 80 acres of N-9, SA-10 and the southerly 225 acres of SA-12. Along with providing a buffer for the Polk County Site facilities, these parcels also will provide drainage to Camp Branch and McCullough Creek. Linear facilities associated with the initial 470 MW of generating capacity at the Polk County Site will include a 230 kilovolt (kV) transmission line upgrade, a reclaimed water pipeline, and a backup natural gas pipeline. Site Selection A comprehensive process was used to select the Polk County Site. The goal of that process was to identify a site which could accommodate 3,000 MW of generating capacity and offer characteristics including: (1) multi-unit and clean coal capability; (2) technology and fuel flexibility; (3) cost effectiveness; (4) compatibility with FPC's commitment to environmental protection; (5) ability to comply with all government regulations; and (6) consistency with state land use objectives. The site selection process included the entire State of Florida. Participants in the site selection process included a variety of FPC departments, environmental and engineering consultants, and an eight-member Environmental Advisory Group (EAG) composed of environmental, educational, and community leaders. In October, 1990, with the concurrence of the EAG, the Polk County Site was selected. The ultimate basis for the selection of the Polk County Site was the disturbed nature of the site as a result of extensive phosphate mining activities. The Polk County Site also is compatible with FPC's load center and transmission line network, and is accessible to rail and highway transportation systems. PSC Need Determination On February 25, 1992, the PSC issued Order No. 25805 determining the need for the first 470 MW of generating capacity at the Polk County Site. The PSC concluded in its order that the first two combined cycle units (470 MW) at the Polk County Site will contribute to FPC's electric system reliability and integrity. It also concluded that the first two units would enable FPC to meet winter reserve margin criteria and to withstand an outage of its largest unit at the time of system peak demand. The PSC stated that it was important for FPC to secure a site to meet future needs and that the first two units would contribute toward this goal. Basis for Ultimate Site Capacity The Site Certification Application (SCA), including the Sufficiency Responses, addressed the impacts associated with 3,000 to 3,200 MW of generating capacity under several scenarios. FPC eliminated or modified several of the scenarios by filing a Notice of Limitations which addressed the capacity and environmental effects of 1,000 MW of NGCC and 2,000 MW of CGCC generating capacity at the Polk County Site. Throughout the SCA, Sufficiency Responses and Notice of Limitations, the capacity constraints and environmental effects were analyzed under a worst case scenario, i.e., the maximum environmental effects that could be expected at ultimate site capacity. An ultimate site capacity determination will significantly reduce the time and expense associated with processing supplemental applications for future units at the Polk County Site under the expedited statutory procedures of the Power Plant Siting Act. This will allow FPC to respond more quickly to changes in growth and demand. An ultimate site capacity determination also provides FPC the assurance that the Polk County Site has the land, air and water resources to support future coal gas-fired generating capacity. Project Schedule and Costs Construction of the initial 470 MW of NGCC generating capacity is scheduled to begin in 1994. These units will go into operation in 1998 and 1999. Based on current load forecasts, it is expected that approximately one 250 MW unit will be added every other year to the Polk County Site. Under this schedule, ultimate site development of 3,000 MW would occur about 2018. Capital investment for the Polk County Site is expected to be approximately $3.4 billion for the 1,000 MW NGCC/2000 MW CGCC Case A' scenario and approximately $1.7 billion for the all NGCC Case C scenario. Project Design Generating units for the Polk County Site will be advanced design combined cycle units firing natural gas and/or coal gas, with low sulfur fuel oil as backup. Each combined cycle unit will consist of one or two combustion turbines (CT), a heat recovery steam generator (HRSG) for each CT and one or two steam turbines (ST). The first 470 MW of generating capacity will consist of two CTs firing natural gas, two HRSGs and one or two STs. At ultimate site capacity, the Polk County Site will consist of 12 CTs, 12 HRSGs, and 6 to 12 STs. A combined cycle unit is a generating system that consists of two sequential generating stages. In the first stage, the natural gas, coal gas or fuel oil is burned to operate the CT. Hot exhaust gas from the CT is passed through the HRSG to produce steam to operate the ST. The CT and steam from the HRSG can be arranged to drive individual generators or a single generator. In later phases of the Polk County Site, up to 2,000 MW of combined cycle generation may be fired on coal gas. The combined cycle units that were initially constructed to operate on natural gas can be modified to operate on coal gas. Under the Case A' scenario, two coal gasification plants would be built to produce coal gas for the combined cycle units. Associated with the coal gasification phase of the project will be the expansion of the plant island to accommodate the storage and handling of coal. Coal will be transported onsite by railroad. A rail loop for coal trains will be constructed on the plant island. It will be sized to accommodate a 100-car coal train. The coal storage area and limestone stockout will be located within the coal loop. Limestone is used in the coal gasification process as a fluxing agent to improve the viscosity of the coal slag, a by-product of the coal gasification process. The coal storage area, including the coal piles and emergency coal stockout system, will be lined with an impervious liner, and runoff from the coal storage area will be recycled to the coal gasification plants. The cooling pond for the Polk County Site will be located north and east of the plant island. Water from the cooling pond will be used for producing steam and condenser cooling. The cooling pond will be constructed initially in mining parcel N-16 and then in parcels N-15 and N-11B for later phases. These areas are mined-out pits which are surrounded by earthen dams. These dams will be upgraded where required to provide stability equivalent to the requirements of Chapter 17-672, Florida Administrative Code, for phosphate dams. Soil and Foundation Stability To evaluate the existing soil conditions at the Polk County Site, more than 165 test borings were made. The plant island is an existing mine pit which has been partially filled with sand tailings from phosphate mining operations. Underlying the sand is the Hawthorn formation which is often used as the base for deep load bearing foundations. Foundations for the heavier loads of power plant facilities will require pile foundations or similar types of deep foundations that will extend into the Hawthorn formation. The potential for sinkhole development at the Polk County Site was investigated by reviewing historic sinkhole records, aerial photographs, well drillers' logs, and by drilling three deep borings at the site. The investigation demonstrated that the potential for sinkhole development at the Polk County Site is low and acceptable for this type of construction. Construction Activities Construction of the Polk County Site will be phased over an approximately 25-year period beginning in 1994. The development of the Polk County Site is expected to take place in seven phases. Changes in the scope or sequence of the individual phases may occur depending on capacity needs over time. During Phase I, the initial earthwork and dewatering activities required for the construction of the plant island and cooling pond will take place. The initial cooling pond and plant island area will be dewatered and fill will be placed in SA-11 and SA-13 for the initial power plant construction. Water from the dewatering activities will be conserved by storage in mining parcels SA-8, SA-9, SA-10, N-15 and the northerly part of SA-12, except for quantities used in IMC's recirculation system. Clay consolidation will commence for other parcels, such as N-11A, N-11B, N-11C, N-13 and N-9B. Phosphate mining and related operations will still function in parcels P-2, P-3, Phosphoria, Triangle Lakes, and N-9. The initial vertical power plant construction for the first 470 MW of generating capacity will take place in Phase II. Water stored in Phase I, along with reclaimed water from the City of Bartow, will be used to fill the cooling pond in parcel N-16. Any excess reclaimed water from the City of Bartow, if necessary, will be stored in the eastern portion of N-16. Mining parcels SA-10, the southerly part of SA-12, and a portion of the offsite Estech Silver City plant site will be configured for drainage enhancement to McCullough Creek. Mining parcel SA-8 will be prepared to receive solid waste and parcel SA-9 will be prepared to receive wastewater from the RO system and neutralization basin. Wildlife habitat creation and enhancement will begin in parcels N-9B and N-13. Phase III of the Polk County Site represents the operation of the power plant from 235 MW to 1,500 MW, currently projected as NGCC capacity. The plant island, which will contain the generating units, will be located on mining parcels SA-11 and SA-13. The cooling pond will be located in N-16 and will receive reclaimed water from the City of Bartow and water crop from mining parcels P-3, Phosphoria, P-2, Triangle Lakes, N-15, N-11B, N-11C, the northerly end of SA-12 and the east end of N-16. Phase IV will encompass the development of the Polk County Site from 1,500 MW to 2,000 MW, currently projected as NGCC capacity. In conjunction with the additional generating units onsite, the cooling pond in N-16 will be enlarged to 1,219 acres. Other portions of the Polk County Site would remain the same as in Phase III. During Phase V, coal gasification is projected to be introduced to the Polk County Site. Generating capacity will be increased to 2,250 MW of which 1,000 MW are projected to be NGCC and the remaining 1,250 MW will be CGCC. To accommodate the coal gasification facilities, the northerly portion of SA-12 would be filled. The balance of the site would remain as described in Phase IV. During Phase VI, the generating capacity at the Polk County Site is projected to increase from 2,250 MW to 3,000 MW. This generating capacity will be a combination of 1,000 MW on NGCC and 2,000 MW on CGCC. During this phase, the cooling pond will be enlarged to 2,260 acres and will include parcels N-16, N-15 and N-11B, and a channel through N-11C. Earthwork will be required in N-15 and N-11B to repair and improve dams, and add slope protection on the dam inner faces and seeding on the exterior faces. Phase VII will be the final phase of the Polk County Site. During this phase, if the solid waste disposal area in mining parcel SA-8 were to become full it would be closed and mining parcel P-2 would be prepared to receive solid waste from the power plant operations. Parcels P-3 and Phosphoria will be available for mitigation, if necessary, as a result of activities in parcel P-2. This phase might not occur if coal slag is successfully recycled. Fuel Supply Fuel for the initial 470 MW of combined cycle generation will consist primarily of natural gas, with light distillate fuel oil as backup. Natural gas will be delivered by pipeline to the Polk County Site at a rate of 3.75 million cubic feet per hour. FPC currently plans to receive natural gas from the proposed Sunshine Pipeline for which certification is being sought in a separate proceeding. The Application for the Sunshine Pipeline was filed with DEP in August 1993. The other source for natural gas will be the backup natural gas pipeline which is being certified in this proceeding as an associated linear facility. Fuel oil will be delivered to the site by tanker truck, and enough fuel oil will be stored onsite for three days of operation for each combined cycle unit. At ultimate development, three 4-million gallon oil tanks will be located on the Polk County Site. All fuel handling and storage facilities, including unloading areas, pump areas, piping system, storage tanks, and tank containment areas will meet the requirements of DEP Chapter 17-762, Florida Administrative Code, and applicable National Fire Prevention Association Codes. At ultimate site development, the combined cycle units would use both natural gas and coal gas as primary fuels, and fuel oil as a backup fuel. As with the initial phase of operation, natural gas will be supplied by pipeline. At 1,000 MW of NGCC capacity, six to eight million cubic feet per hour of natural gas will be required. Coal for the coal gasification units will be delivered by railroad. For 2,000 MW of CGCC generating capacity, approximately 15,000 to 20,000 tons of coal a day will be required. Linear Facilities The initial 470 MW of NGCC generation includes three associated linear facilities: a 230-kV transmission line upgrade, a reclaimed water pipeline, and a backup natural gas pipeline. 230-kV Transmission Line The 230-kV transmission line will be routed from the existing FPC Barcola Substation within the Polk County Site to the FPC Ft. Meade Substation adjacent to CR 630. The transmission line corridor is approximately 1,000 feet wide within the Polk County Site boundary and narrows to 500 feet as the corridor leaves the site. The transmission line corridor follows several linear facilities including an existing transmission line right-of-way, CR 555 and CR 630. Land uses along the corridor are primarily phosphate mining, agricultural and industrial. Wetlands within the transmission line corridor are minimal and are associated primarily with roadside ditches. Where the transmission line crosses McCullough Creek, the creek will be spanned. The 230-kV transmission line will be constructed using single shaft tubular steel poles with a double circuit configuration for two 230-kV circuits. The transmission line structures will range in height from 110 feet to 145 feet. The conductor for the transmission line is a 1590 ACSR conductor that is approximately 1.54 inches in diameter. Conductor span lengths between structures will range from 500 to 900 feet. The transmission line will be constructed in six phases. During the first phase, the right-of-way will be cleared. Clearing in upland areas will be done using mowers and other power equipment. Clearing in wetlands, if necessary, will be accomplished by restrictive clearing techniques. After the right-of-way has been cleared, existing structures which will be replaced with new transmission line structures will be removed by unbolting them from their foundations and removing the structures with a crane. Foundations for new transmission line structures will be vibrated into the ground using a vibratory hammer or placed into an augured hole and backfilled. After the foundations are in place, new structures will be assembled on the foundations using a crane. Insulation and pole hardware will be mounted on the structures after erection. In the fifth phase of construction, conductors will be placed on a structure by pulling the conductors through a stringing block attached to the structure. During the final phase of construction, the structures will be grounded and any construction debris will be removed from the right-of-way. The construction of the 230-kV transmission line is estimated to require approximately 17 weeks. Construction of the transmission line will meet or exceed standards of the National Electrical Safety Code; FPC transmission design standards; Chapter 17- 814, Florida Administrative Code; and the Florida Department of Transportation Utility Accommodation Guide, where applicable. Electric and magnetic fields from the 230-kV transmission line will comply with the standards set forth in Chapter 17-814, Florida Administrative Code. Audible noise from the transmission line should occur only during rainy weather and will not exceed 39.1 dBA at the edge of the right-of-way. Since the transmission line is not located near many residences, interference to television and AM radio reception should be minimal. If interference does occur, it can be identified easily and corrected on an individual basis. Backup Natural Gas Pipeline The backup natural gas pipeline will originate at the Florida Gas Transmission pipeline in Hillsborough County at CR 39. The backup pipeline corridor runs generally east for 18 miles until it enters the Polk County Site at the western boundary of the plant island. The pipeline corridor is 1,000 feet wide and it generally follows linear facilities such as Jameson Road, a Tampa Electric Company transmission line, the CSX Railroad, Durrance Road, and Agricola Road. Several subalternate corridors are proposed in Polk County where the backup natural gas pipeline crosses phosphate mining land. The subalternate corridors, all of which are proposed for certification, are necessary to maintain flexibility in routing the backup natural gas pipeline around active mining operations. The uses of land crossed by the backup natural gas pipeline corridor consist primarily of phosphate mining and some agriculture. There are only two areas of residential land use along the corridor, one along Jameson Road in Hillsborough County, and the other near Bradley Junction along Old Highway 37 in Polk County. Ecological areas crossed by the natural gas pipeline corridor include a portion of Hookers Prairie in Polk County, some isolated wetlands associated with phosphate mining activities, and the South Prong Alafia River near CR 39 in Hillsborough County. The backup natural gas pipeline will consist of a metering facility, a scraper trap for pipeline cleaning, a maximum 30-inch buried pipeline made of high strength steel, a pressure regulating station, a cathodic protection system for corrosion control, and a Supervisory Control and Data Acquisition (SCADA) system to monitor and operate the pipeline. The pipe to be used for the natural gas pipeline will be manufactured in accordance with standards specified in 49 CFR 192 and the industrial standards referenced therein. Pipe thickness will vary depending on the population of the area crossed. External corrosion control for the pipe will be provided by an external coating around the pipe and a cathodic protection system designed to prevent electrochemical corrosion of the pipe. Pipeline sections will be hydrostatically tested before leaving the factory to 125 percent of the design pressure. Activities associated with the construction of the backup natural gas pipeline will include survey and staking of the right-of-way, right-of-way preparation, stringing of the pipe, bending, lineup welding and nondestructive testing, ditching, lowering in of pipeline sections, backfilling, tying in pipeline sections, testing and right-of-way restoration. Construction of the pipeline will take place typically within a 75 foot-wide right-of-way. A wider right-of-way may be required where specialized construction activities, such as jack and bore methods, are used. After construction, the natural gas pipeline will have a permanent 50-foot right-of-way. Where the pipeline crosses federal and state highways or water courses, directional drilling or jack and bore construction methods will be used to minimize disturbance. Where the pipeline crosses the South Prong Alafia River, directional drilling will be used to locate the pipeline underneath the river bed. Pipeline welding will be done by highly skilled personnel who have been qualified in accordance with 49 CFR 192. Pipeline welds will be visually inspected and a percentage of the welds will be x-rayed for analysis. Once the pipeline is constructed, buried and tie-in welds completed, the pipeline will be hydrostatically tested. Hydrostatic testing will use water with a minimum test pressure of 125 percent of maximum operating pressure. Water for hydrostatic testing will be pumped from and returned to the Polk County Site cooling pond. Construction of the pipeline will comply with Title 49 CFR Part 192, Transportation of Natural and Other Gas by Pipelines: Minimum Federal Safety Standards; Chapter 25-12, Florida Administrative Code; Safety of Gas Transportation by Pipeline; and the FDOT Utility Accommodation Guide. After construction of the backup natural gas pipeline, the right-of- way will be restored and a 50-foot-wide permanent right-of-way will be maintained. Line markers will be located along the pipeline at regular intervals and warning signs will be posted where the pipeline crosses roads, railroads, or stream crossings. The estimated cost for the pipeline construction is $611,100 per mile, or $11.2 million for the 18.2 mile pipeline route. Reclaimed Water Pipeline The reclaimed water pipeline will run from the City of Bartow to the cooling pond near the eastern side of the Polk County Site. The reclaimed water pipeline corridor follows the CSX Railroad and U.S. Highway 17/98 south from the southerly Bartow city limit turning west toward the Polk County Site just south of Homeland. Land uses along the corridor include phosphate mining, commercial sites, rural residences and recreation. The corridor does not cross any environmentally sensitive habitats. The reclaimed water pipeline consists of a buried pipe, 24 to 36 inches in diameter, butterfly valves about every mile along the pipeline, and a flow meter. Pumping of reclaimed water will be provided by the Bartow Sewage Treatment Plant. Construction of the reclaimed water pipeline is similar to that of the natural gas pipeline and includes the following activities: survey and staking of the right-of-way, right-of-way preparation, ditching or trenching construction, stringing of the pipe and pipe installation, back filling, hydrostatic testing, and right-of-way restoration. Where the pipeline crosses state or federal highways or railroads, the pipe will be installed by using jack and bore construction. Construction of the reclaimed water pipeline is estimated to cost $500,000 per mile or $5,000,000 for the total length of the pipeline. Construction of the reclaimed water pipeline will comply with the standards in Chapter 17-610, Florida Administrative Code, the Florida Department of Transportation Utility Accommodation Guide, and the EPA Guidelines for Water Reuse Manual. The pipeline will be hydrostatically tested prior to operation. Corrosion control of the pipeline will depend on the material used for the pipeline and the soil conditions. If a polyethylene or a polyvinylchloride material is used, no corrosion control will be necessary. If ductile iron is used, the soil will be tested for corrosive properties and, if necessary, the pipeline will be protected from corrosion with a poly wrap material. Solid Waste Disposal Various types of solid waste will be generated by the operation of the Polk County Site. Depending upon the type of solid waste, disposal may be made in the onsite solid waste disposal areas or it may be disposed of offsite. Waste inlet air filters from the combustion turbines and general waste, such as office waste, yard waste and circulating water system screenings, will be recycled or disposed of offsite at the Polk County North Central Landfill. Solid waste from the well water pretreatment and blowdown pretreatment will be disposed of onsite in the solid waste disposal area to be constructed in mining parcel SA-8. Sulfur, a by-product of coal gasification, will be of marketable grade and will be stored in a molten state onsite and delivered to buyers by rail car or tanker truck. Slag, a by-product of coal gasification, will be the largest volume of solid waste generated at the Polk County Site. Slag is potentially marketable and FPC will make efforts to recycle this by-product as construction aggregate. If slag is not marketable, it will be disposed of in the onsite solid waste disposal areas initially in mining parcel SA-8 and later, if necessary, in parcel P-2. Low volume spent acidic and basic solutions produced in the regeneration of demineralizer resin bed ion exchanges during operation of the facility will be treated in an elementary neutralization unit to render them non-hazardous. Other potentially hazardous waste will be tested and if determined hazardous will be disposed of in accordance with all applicable federal and state laws. Onsite disposal of slag, and well water and blowdown pretreatment solids will be made in the solid waste disposal areas to be constructed in parcels SA-8 and later, if necessary, P-2. These parcels are clay lined impoundments that have clays generally 20 to 40 feet thick. Prior to disposal of any solid waste in a clay settling area, that area will be drained and the clays consolidated. The clays will be probed and if the clay thickness is less than 10 feet it will be refurbished or patched with a synthetic liner. Additionally, a geotextile net will be installed to provide tensile strength to the upper layer of clay. Perimeter leachate collection piping will be installed. Leachate in the interior of the solid waste disposal areas will be monitored and collected by the use of well points to maintain the leachate head at no greater than 4 feet. The solid waste disposal area in parcel SA-8 will be closed by installing a two-foot thick soil cover which will be seeded and graded to provide water crop to parcel N-16. At closure, the leachate level will be pumped down to minimize the residual leachate head. The clay which lines the base of the solid waste disposal areas decreases in permeability as it consolidates and the solids content of the clay increases. In the first 20 to 50 years of consolidation, the hydraulic gradient of the clay is reversed and water will drain upward. Analysis of the clay shows that it would take 60 to 100 years for leachate to seep through the clay liner. After closure and capping of the solid waste disposal area occurs and the leachate residual head is pumped out, leachate is not expected to break through the liner. Based on the design of the solid waste disposal areas and the analysis of the clay, the solid waste disposal areas in parcels SA-8, and later P-2, should provide equivalent or superior protection to that of a Class I landfill under Chapter 17-7.01, Florida Administrative Code. Industrial Wastewater The Polk County Site is designed to be a zero discharge facility. There will be no offsite surface water discharge of contaminated stormwater or cooling pond blowdown. Cooling pond blowdown will be treated first by a lime/soda ash softening pretreatment system. A portion of the softened effluent will be routed to the cooling pond and a portion will be treated further by reverse osmosis (RO). High quality water from the RO system will be reused in the power plant as process water. The reject wastewater from the RO system will be sent to the brine pond for evaporation. In later stages of the Polk County Site operation, the RO reject wastewater will be concentrated prior to disposal in the brine pond. The brine pond will be constructed in parcel SA-9, a waste clay settling pond. Parcel SA-9 has thick waste clay deposits which will act as a liner. A synthetic liner will be placed along the interior perimeter of the brine pond out to a point where the clay is at least 10 feet thick. The synthetic liner will prevent seepage of the brine through the embankment of the brine pond and will provide added protection near the perimeter of the brine pond where the clay liner is thinner. Groundwater Impacts/Zone of Discharge The brine pond and solid waste disposal areas will be located in waste clay settling ponds with thick clay liners. They will be constructed to minimize, if not eliminate, seepage of brine and leachate to groundwater. If brine or leachate should seep through the clay liner, dispersion and dilution will reduce chemical concentrations so that neither primary nor secondary groundwater quality standards will be exceeded at the boundary of the zone of discharge. A zone of discharge has been established for the solid waste disposal area in parcel SA-8, the brine pond in parcel SA-9, and the cooling pond in parcels N-11B, N-15 and N-16. The zone of discharge will extend horizontally 100 feet out from the outside toe of the earthen dam along a consolidated boundary surrounding these facilities and vertically downward to the top of the Tampa member of the Hawthorn Group. A groundwater monitoring plan will be implemented to monitor compliance with groundwater standards at the boundary of the zone of discharge. Surficial Hydrology and Water Quality Impacts The Polk County Site is located along the divide between the Peace River Drainage Basin and the Alafia River Drainage Basin. Water bodies near the site include McCullough Creek, Camp Branch, Six Mile Creek, Barber Branch, and South Prong Alafia River. Mining has disrupted or eliminated natural drainage patterns from the Polk County Site to these water bodies. Currently the only drainage from the Polk County Site to these water bodies is through federally permitted National Pollutant Discharge Elimination System (NPDES) outfalls to McCullough Creek and Camp Branch. To assess the impact to the surficial hydrology of the Polk County Site and surrounding water bodies, the baseline condition was assumed to be the surficial hydrology which would be present under current mandatory reclamation plans for the mining parcels onsite and offsite. The baseline for non-mandatory parcels was assumed to be the minimum reclamation standards under the DEP/Bureau of Mine Reclamation (BOMR) (formerly within the Department of Natural Resources) Old Lands Program and the baseline for non-mandatory offsite parcels was considered to be the existing condition. The one water body onsite for which the baseline condition presently exists is Tiger Bay, which has been reclaimed and released. The baseline condition for the Polk County Site ultimately would include elimination of seepage from N-16 to Tiger Bay and removal of the NPDES outfall weir from Tiger Bay to Camp Branch. These conditions will result in a lowering of the water table in Tiger Bay and the drying out of wetlands in that area. Under current reclamation plans, water bodies also will be created in parcels SA-12 and SA-11. Other than the reclaimed Tiger Bay and Tiger Bay East, DEP, Southwest Florida Water Management District (SWFWMD) and Polk County have not claimed jurisdiction over any of the water bodies onsite within areas in which phosphate mining activities have been or will be conducted. The major construction activities which may impact offsite surface water bodies are the dewatering activities associated with the initial phase of construction. During this period, parcels SA-11, SA-13 and N-16 will be dewatered to allow earth-moving activities to take place. Dewatering effluent will be stored onsite, reused in IMC's recirculation system, or discharged in the event of above-average rainfall. After the earthwork is complete, the water will be returned to N-16. Based on this construction scenario, no adverse impact to offsite surface water bodies is expected from the construction activities associated with the Polk County Site. The Polk County Site has been designed to function as a "zero discharge" facility. No surface water will be withdrawn from or discharged to any offsite surface water body as a result of plant operations. Certain non- industrial areas within the Polk County Site will be designed, however, to provide offsite drainage to enhance flows to McCullough Creek and Camp Branch. Flow to McCullough Creek will be enhanced by drainage from parcel SA-10, an offsite portion of the Estech Silver City Plant Site, and the southerly portion of parcel SA-12. Drainage from parcels N-11A, N-13, N-9B, Tiger Bay East and Tiger Bay will enhance flows to Camp Branch. Additionally, FPC has agreed to explore the possibility of restoring drainage to Six Mile Creek if onsite water cropping produces more water than FPC needs for power plant operations and if such drainage can be accomplished without additional permits. The net effect of the drainage enhancement plans will be to equal or improve flows to McCullough Creek and Camp Branch over the baseline condition for the site. There are several types of surface water systems to be developed on the Polk County Site. Surface water runoff from the plant island, other than that from the coal and limestone storage areas, will be routed to the site runoff pond and then used in the cooling pond as makeup water. Surface water runoff from the coal and limestone storage areas, as well as runoff from the active solid waste disposal area, will be routed to a lined recycle basin and will be used as process makeup water for the coal gasification plant. Surface water runoff from mining parcels N-11C, Triangle Lakes, N-11B and N-15 prior to its use as part of the cooling pond, P-3, Phosphoria, P-2 prior to its use as a solid waste disposal area, and SA-8 after it has been closed as a solid waste disposal area, will be directed to the cooling pond as makeup water. All of the surface water management systems will meet the requirements of the SWFWMD Management and Storage of Surface Water rules. Subsurface Hydrology and Impacts from Water Withdrawal The Polk County Site will use a cooling pond for process water and for cooling water for the combined cycle units and the coal gasification facilities. For the initial 940 MW of generating capacity, makeup water for the cooling pond will come from onsite water cropping and reclaimed water from the City of Bartow. FPC has negotiated an agreement with the City of Bartow for 3.5 or more million gallons per day (mgd) of reclaimed water from its wastewater treatment facility. At ultimate site capacity, the Polk County Site will require up to 23.6 mgd from a combination of offsite sources and groundwater for the operation of the power plant. FPC has agreed with the SWFWMD to obtain at least 6.1 mgd from reclaimed water and other offsite non-potable water sources, including the City of Bartow, for use as makeup water for the cooling pond. The additional 17.5 mgd of water may be withdrawn from the Upper Floridan Aquifer if additional sources of reclaimed water are not available. FPC has identified substantial amounts of reclaimed water that may be available. A limited quantity of potable water from the Upper Floridan Aquifer will be needed to supply drinking water and other potable water needs for power plant employees. Well water from the Upper Floridan Aquifer will be treated, filtered and chlorinated in an onsite potable water treatment system prior to consumption. At ultimate site development, potable water consumption is estimated to average 19,000 gallons per day, with a peak consumption of 36,000 gallons per day. As an alternative, FPC may connect with the City of Bartow or the City of Fort Meade potable water system. The subsurface hydrology of the Polk County Site consists of three aquifer systems. The uppermost system is the surficial aquifer which is located in the upper 20 to 30 feet of soil. Due to mining operations, the surficial aquifer has been removed from the site except beneath highway rights-of-way and portions of some dams. Below the surficial aquifer lies the intermediate aquifer which is comprised of an upper confining layer approximately 120 feet thick, a middle water bearing unit about 60 feet thick, and a lower confining unit about 80 to 100 feet thick. This aquifer system provides potable water to some small quantity users in the area. Below the intermediate aquifer is the Floridan Aquifer, which consists of the Upper Floridan Aquifer, a discontinuous intermediate confining unit, and the Lower Floridan Aquifer. The Upper Floridan Aquifer provides a larger source of potable water for the area. The Lower Floridan Aquifer is characterized by poorer quality water and has not been used generally for water supply. The principal impact to groundwater from construction of the Polk County Site will be from the dewatering activities in parcels N-16, SA-11 and SA-13. This impact, if not mitigated, could result in the lowering of groundwater levels in the surficial aquifer in adjacent wetlands. During construction, recharge trenches will be constructed in certain locations near wetlands. Modeling analysis demonstrates that the recharge trenches will adequately mitigate any offsite groundwater impacts that otherwise would be caused by construction dewatering. The principal groundwater impact from the operation of the Polk County Site will be the withdrawal of water from the Upper Floridan Aquifer for process water and cooling pond makeup. Water from the Upper Floridan Aquifer is the lowest quality of groundwater that can be used for the Polk County Site while maintaining the cooling pond as a zero discharge facility. The withdrawal of 17.5 mgd from the Upper Floridan Aquifer at ultimate site development will not adversely impact offsite legal users of groundwater and will comply with the SWFWMD consumptive use criteria for groundwater withdrawal. Ecological Resources The baseline for the ecological resources at the Polk County Site was established as the site condition that would exist following (i) mandatory reclamation under reclamation plans approved by the DEP/BOMR, and (ii) non- mandatory reclamation normally carried out by the mining companies. In the cases of Tiger Bay, which has been reclaimed and released by DEP/BOMR, and Tiger Bay East, which has revegetated naturally without reclamation, the ecological baseline was represented by the current condition of these parcels. This baseline methodology was proposed by FPC in a Plan of Study which was accepted by DEP in a Binding Written Agreement. The predominant land cover that would occur under the baseline condition at the Polk County Site would be agriculture. Approximately 70 percent of the Polk County Site, or approximately 5,678 acres, would be developed as crop land, citrus or pasture. The remaining 30 percent of the site would be reclaimed as non-agricultural uplands, wetlands and open water bodies. Tiger Bay already has been reclaimed and released by DEP/BOMR and Tiger Bay East has revegetated naturally. These two parcels represent one-fourth (524 acres) of the natural habitat under the ecological baseline condition. The quality of the baseline land cover and vegetation was established by surveying several onsite and offsite areas which have been reclaimed and released. Baseline aquatic resources at the Polk County Site consist of Tiger Bay and the aquatic resources which would have been developed under existing reclamation plans. This baseline would include open water bodies and forested wetlands in parcels SA- 11 and SA-12, and forested and herbaceous wetlands in parcel N-16. Both Estech and IMC have exceeded their mine-wide wetlands mitigation obligations even without those wetlands. The quality of the baseline open water bodies on the Polk County Site was evaluated by surveying parcel N- 16, which currently consists of open water habitat. The quality of wetlands was determined by surveying Tiger Bay, which contains wetlands that have been reclaimed and released. The baseline aquatic resources were found to have significant fluctuations of dissolved oxygen, and were characterized by encroachment of cattail, water hyacinth and other nuisance species. All of the aquatic areas sampled as representative of baseline conditions showed significant eutrophication. No DEP or SWFWMD jurisdictional wetlands currently exist onsite, within areas in which phosphate mining activities have been or will be conducted, except in the reclaimed Tiger Bay and Tiger Bay East. Baseline evaluation of threatened and endangered species, and species of special concern (listed species) was conducted by collecting information regarding regional habitat descriptions; plant species lists and ecological reports for the area; lists and ecological reports of birds, mammals, reptiles and amphibians common to the area; species checklists; reports of sightings or abundance estimates; interspecific relationships and food chains of important species; location of rare, threatened or endangered species or critical habitat for these species in the region; and occurrence of potential preexisting stresses. Information from the Florida Natural Areas Inventory and approved mine reclamation plans was reviewed. Visits were made to nearby reclaimed sites by land and low-flying helicopters. No listed plant species were found at the site or offsite study areas. Existing reclamation plans, and consequently the ecological baseline condition, do not require the planting of such species. Listed animal species which were observed at the Polk County Site and are expected under the baseline conditions include the American alligator, woodstork, southeastern kestrel, osprey, little blue heron, snowy egret and tricolored heron. The baseline conditions would provide suitable feeding habitat for these species, but only limited areas of suitable nesting habitat. Both the current condition of the site and baseline condition provide feeding habitat for the American bald eagle, however, the nesting potential for this species will be greater after the implementation of the baseline condition. Impacts to the baseline ecological resources from the construction and operation of the Polk County Site will be more than compensated by habitat creation and enhancement programs proposed by FPC. The primary impacts to the baseline ecological resources will occur when power plant facilities, such as the plant island, cooling pond, brine pond and solid waste disposal area are constructed, eliminating these parcels from the baseline ecological resources. Without development of the Polk County Site, these parcels would represent approximately 2,268 acres of viable lakes and upland and wetland habitats. FPC has proposed a total of 3,713 acres of viable wildlife habitat as part of the ultimate development of the Polk County Site. Accordingly, the available wildlife habitat after construction of the Polk County Site represents a net increase of 1,445 acres over the baseline ecological resource conditions. This increase in habitat, particularly in the buffer area, will be a net benefit for protected species. In providing more wildlife habitat than baseline conditions, FPC has agreed to certain enhancement activities that will specifically offset any impact to baseline ecological resources. These enhancement programs include habitat and wetland creation in parcels N-9B and N-13; habitat creation and offsite drainage enhancement in parcel SA-10; implementation of a wildlife habitat management plan and exotic vegetation control in parcels SA-10, N-9B and N-13; drainage enhancement to McCullough Creek and Camp Branch; and funding the acquisition of a 425 acre offsite area to serve as part of a wildlife corridor. Air Pollution Control Polk County has been designated by the U.S. Environmental Protection Agency (EPA) and DEP as an attainment area for all six criteria air pollutants. Federal and state Prevention of Significant Deterioration (PSD) regulations provide that the project will be subject to "new source review." This review generally requires that the project comply with all applicable state and federal emission limiting standards, including New Source Performance Standards (NSPS), and that Best Available Control Technology (BACT) be applied to control emissions of PSD pollutants emitted in excess of applicable PSD significant emission rates. The project will limit emission rates to levels far below NSPS requirements. For the initial 470 MW phase of the Project, BACT must be applied for the following pollutants: sulfur dioxide (SO2), nitrogen oxides (NOx), particulates (PM and PM10), volatile organic compounds (VOCs), carbon monoxide (CO), beryllium, inorganic arsenic, and benzene. For the ultimate site capacity, BACT is required for each of these pollutants, and sulfuric acid mist (H2SO4), mercury, and lead as well. BACT is defined in DEP Rule 17-212.200(16), Florida Administrative Code, as: An emission limitation, including a visible emission 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. The primary purpose of a BACT analysis is to minimize the allowable increases in air pollutants and thereby increase the potential for future economic growth without significantly degrading air quality. Such an analysis is intended to insure that the air emissions control systems for the project reflect the latest control technologies used in a particular industry and is to take into consideration existing and future air quality in the vicinity of the project. The BACT analysis for the project therefore evaluated technical, economic, and environmental considerations of available control technologies and examined BACT determinations for other similar facilities across the United States. For the first 470 MW of NGCC units, BACT for SO2 emissions from the CTs is the use of natural gas as the primary fuel and the use of low sulfur oil for a limited number of hours per year. For the first 470 MW of NGCC units, BACT for CO, VOCs, PM, beryllium, arsenic, and benzene emissions from the CTs is efficient design and operation of the CTs, the inherent quality of natural gas (the primary fuel), and a limitation on the annual use of fuel oil. For the first 470 MW of combined cycle units, BACT for NOx emissions from the CTs is the use of advanced dry low NOx combustors capable of achieving emissions of 12 parts per million by volume dry (ppmvd) at 15 percent oxygen when burning natural gas, water/steam injection to achieve 42 ppmvd at 15 percent oxygen when burning fuel oil, and limited annual fuel oil use. For the first 470 MW of NGCC units, the DEP staff initially proposed BACT for NOx emissions from the CTs as 9 ppmvd at 15 percent oxygen when burning natural gas, using dry low NOx combustor technology. However, after careful consideration, it was determined that, because of the lack of proven technology to achieve such emission rate, it would be more appropriate to establish BACT at 73 lb/hour/CT (24-hour average, based on 12 ppmvd at 15 percent oxygen and 59o F) using dry low NOx combustor technology and to require FPC to make every practicable effort to achieve the lowest possible NOx emission rate with those CTs when firing natural gas. FPC also is required to conduct an engineering study to determine the lowest emission rate consistently achievable with a reasonable operating margin taking into account long-term performance expectations and assuming good operating and maintenance practices. Based on the results of that study, DEP may adjust the NOx emission limit downward, but not lower than 55 lb/hour/CT (24-hour average, based on 9 ppmvd at 15 percent oxygen and 59o F.). For the 99 MBtu/hour auxiliary boiler that is part of the initial phase of the project, BACT for NOx emissions is low NOx burners, limited annual fuel oil use, and limited hours of annual operation. BACT for NOx emissions from the 1300 kW diesel generator is combustion timing retardation with limited hours of annual operation. For the 99 MBtu/hour auxiliary boiler and the diesel generator as part of the initial phase of the project, BACT for CO, VOC, SO2, PM, benzene, beryllium, and arsenic emissions consists of good combustion controls, the inherent quality of the fuels burned, the use of low-sulfur fuel oil, and limited hours of operation. For the fuel oil storage tank as part of the initial phase of the project, BACT is submerged filling of the tank. For the coal gasification and other facilities to be built during later phases of the project, a preliminary BACT review was undertaken by FPC to support the demonstration that the Polk County Site has the ultimate capacity and resources available to support the full phased project. Air Quality Impact Analysis Air emissions from the project also must comply with Ambient Air Quality Standards for six criteria pollutants and Prevention of Significant Deterioration increments for three pollutants. Polk County and the contiguous counties are classified as Class II areas for PSD purposes; the nearest Class I area is the Chassahowitzka National Wilderness Area, located approximately 120 km. from the Site. An air quality analysis, undertaken in accordance with monitoring and computer modeling procedures approved in advance by EPA and DEP, demonstrated that the project at ultimate capacity utilizing worst-case assumptions will comply with all state and federal ambient air quality standards as well as PSD Class I and II increments. For nitrogen dioxide, sulfur dioxide and particulate matter, air quality modeling was based on conservative assumptions, including background concentrations based upon the highest long- term and second highest short-term measured values (established through an onsite one-year air quality monitoring program and regional data), existing major sources at their maximum emissions, the estimated maximum emissions from certain other proposed projects, and the impacts of the proposed FPC project at ultimate site capacity. For other pollutants, detailed analyses were not performed because offsite impacts were predicted to be insignificant. Impacts of the project's estimated emissions of certain hazardous air pollutants (antimony, arsenic, barium, beryllium, benzene, boron, cadmium, calcium, chromium, cobalt, copper, formaldehyde, magnesium, manganese, nickel, selenium, vanadium, and zinc) at ultimate capacity were compared to the DEP draft no-threat levels under DEP's draft "Air Toxics Permitting Strategy." All pollutants except arsenic were projected to be below the corresponding draft no- threat level. Because of the conservatism of DEP's draft no-threat levels, it was concluded that arsenic impacts would not pose a significant health risk to the population in the surrounding area. Impacts on vegetation, soils, and wildlife in both the site area and the vicinity of the Chassahowitzka National Wilderness Area, the nearest PSD Class I area, will be minimal. Visibility in the vicinity of the Chassahowitzka National Wilderness Area will not be impaired significantly by the project's emissions. Air quality impacts from commercial, industrial, and residential growth induced by the project are expected to be small and well-distributed throughout the area. Impacts from the initial phase of the Project (470 MW) will comply with all State and federal ambient air quality standards as well as PSD Class I and II increments. The impacts from the initial phase of the Project are also well below the draft no-threat levels. The initial phase of the Project will not significantly impair visibility in the vicinity of the Chassahowitzka National Wilderness Area, and the impact on vegetation, soils, and wildlife in both the site area and the vicinity of the Chassahowitzka National Wilderness Area will be minimal. The air quality impacts due to commercial, industrial, and residential growth from the initial phase of the Project will be small, and are not expected to impact air quality. Land Use Planning/Socioeconomic Impacts of Construction and Operation The proposed site is an appropriate location for the Polk County Site project. The Polk County Site has adequate access to highway and rail networks, including CR 555, a major collector road, and the CSX railroad. The Polk County Site is located away from major residential areas in a location already heavily disturbed by mining activity. The site is located in reasonable proximity to major metropolitan areas that can supply an adequate work force for construction. Development of the Polk County Site in a mined-out phosphate area is a beneficial use of land and will provide an economic benefit for Polk County. The Polk County Site also is close to existing facilities, such as existing transmission line corridors and reclaimed water facilities, which will benefit the operation of the site while minimizing the impact of the project. The linear facilities associated with the Polk County Site are sited in appropriate locations. The 230-kV transmission line upgrade, reclaimed water pipeline and backup natural gas pipeline corridors: (i) are located adjacent to other linear facilities, such as existing roads and transmission lines, (ii) avoid major residential areas, and (iii) minimally disrupt existing land uses. The Polk County Site is compatible with the State Comprehensive Plan, the CFRPC Regional Policy Plan, and will meet the requirements of the Polk County Conditional Use Permit. The portion of the backup natural gas pipeline located in Hillsborough County is consistent with the Hillsborough County Comprehensive Plan and the policies of the TBRPC Regional Policy Plan. Construction of the Polk County Site will occur over an approximately 25-year period beginning in 1994. If the Polk County Site is developed only for NGCC capacity, construction employment will average 153 jobs per year with a peak employment of 350. The average annual payroll for construction of the Polk County Site on all NGCC is expected to be $7.1 million per year. If 1,000 MW of NGCC and 2,000 MW of CGCC units are built at the Polk County Site, peak construction employment will be 1,000 with an average annual construction employment of 315 over the approximate 25-year period. Average annual payroll under this scenario would be $14.6 million per year. Indirect jobs created as a result of buildout of the Polk County Site will average 231 jobs for all NGCC and 477 jobs if 2,000 MW of CGCC is added to the Polk County Site. After completion of the construction of the Polk County Site at ultimate capacity, 110 permanent direct jobs will be created if the site uses all NGCC and 410 jobs will be created if coal gasification is added to the Polk County Site. The operation of the Polk County Site will have a multiplier effect on the Polk County economy. The all NGCC scenario will create 272 indirect jobs and the Case A' scenario with CGCC will create 1,013 indirect jobs. After buildout, property taxes generated by the Polk County Site are estimated to be $24.3 million per year for the all NGCC scenario and $37.4 million per year if CGCC capacity is constructed at the site. Noise Impacts The ambient noise, or baseline noise condition at the Polk County Site was measured in five locations. These measurements show that the baseline noise condition for the site ranges between 30 dBA and 65 dBA at the nearest residential location. The higher noise levels are caused by truck traffic associated with the phosphate mining industry. Noise impacts from construction will be loudest during initial site preparation and steel erection stages. Earth moving equipment will produce noise levels of 45 to 50 dBA at the nearest residence in Homeland. During final phases of construction, steam blowout activity to clean steam lines will produce short duration noise levels of 69 dBA at the nearest residence. This activity will take place only during daylight hours. Noise levels from the operation of the Polk County Site were calculated using a computer program specifically designed for assessing noise impacts associated with power plant operation. The highest predicted continuous noise level will be 41 dBA at several houses 2.9 miles south of the site and 47 dBA at the nearest church. Noise impacts from fuel delivery trucks and coal trains will not significantly increase the noise levels over existing conditions. The continuous noise level from the operation of the Polk County Site at the nearest residence or church will be below the 55 dBA level recommended by the U.S. Environmental Protection Agency. Traffic Traffic analyses were made for impacts to highway traffic which will result from the construction and operation of the Polk County Site. These analyses included impacts at rail crossings caused by the delivery of coal to the Polk County Site under the Case A' scenario. A highway traffic analysis was made to determine if the existing roadway network in the vicinity of the Polk County Site would operate at acceptable levels of service based upon increased volumes of traffic associated with the construction and operation employment at the Polk County Site. Methodologies for evaluating traffic impact complied with Polk County, FDOT and CFRPC criteria. County roads were evaluated using Polk County criteria and state roads were evaluated using both Polk County and FDOT criteria. Traffic volumes were evaluated for peak construction traffic in 2010 and full plant operations, estimated in 2018. The traffic evaluation included analysis of existing traffic conditions, increased traffic volume associated with growth in the area not associated with the Polk County Site, and increased traffic associated with construction and operation employment at the Polk County Site. During peak construction employment under the Case A' scenario, 1,000 employees are expected at the Polk County Site. Under this scenario, the expected trip generation of the Polk County Site is expected to be 1,792 trips per day, with a morning peak of 717 trips and an afternoon peak of 717 trips. Based on this analysis, all roadways are expected to operate at acceptable levels of service with currently planned improvements to the roadways. Intersection levels of service were found acceptable for 7 out of 11 intersections. FPC has recommended improvements to four intersections at U.S. 98 and SR 60A, SR 60 and CR 555, SR 37 and CR 640, and CR 555 and CR 640 at specified traffic levels. Peak operation employment under the Case A' scenario is expected to be 410 employees in 2018. Based upon this employment figure, the expected trip generation of the Polk County Site is 964 trips per day with a morning peak of 195 trips and an afternoon peak of 154 trips. At peak operation employment, all roadways evaluated were found to operate at acceptable levels of service. All intersections, except the intersection at SR 60 and CR 555, were found to operate at acceptable levels. FPC has recommended a protected/permissive westbound left turn lane at this intersection. With FPC's recommended improvements, which have been incorporated as conditions of certification, and those improvements currently planned by FDOT, the existing roadway network will meet Polk County and FDOT approved levels of service at peak employment during the construction and operation of the Polk County Site to its ultimate capacity. In addition to the highway traffic impact analysis, FPC evaluated the impact on rail/highway crossings from the transportation of coal by rail under the Case A' scenario. It was assumed that all coal for the Polk County Site will be delivered by rail over existing CSX transportation lines. It is expected that at full operation two 90-car trains per day will be required for the delivery of coal, resulting in four train trips per day. It was also assumed that trains will travel at speeds averaging 35 to 45 miles per hour. Evaluation of the impacts at rail crossings found an increase of .5 second per vehicle per day at urban rail crossings and .3 second per vehicle per day at rural rail crossings. Based on the 1985 Highway Capacity Manual, the total delay at rail crossing intersections caused by the increased train traffic to and from the Polk County Site will not cause a significant delay and the rail crossing intersections will maintain level of service A. Archaeological and Historic Sites The Florida Department of State, Division of Historical Resources, has stated that because of the location of the Polk County Site, it is unlikely that any significant archaeological or historical sites will be affected. Mandatory Reclamation of Mining Parcels The Polk County Site is comprised of phosphate mining parcels, portions of which are subject to mandatory reclamation under the jurisdiction of DEP/BOMR. The mandatory mining parcels are currently owned by Estech, IMC, and USAC. FPC has entered into stipulations with each mining company agreeing to reclamation of the mandatory mining parcels in accordance with the conditions of certification proposed by DEP/BOMR. In those conditions, DEP has proposed to incorporate the reclamation conceptual plan modifications included in Appendix 10.9 of the SCA into the certification proceeding for the Polk County Site and has redesignated those conceptual plan modifications as EST-SC-CPH and IMC-NP- FPC. The portions of the site which will be developed by FPC will be released from mandatory reclamation requirements when FPC purchases the Polk County Site. Variances FPC has requested variances from certain reclamation standards set forth in Rule 16C-16.0051, Florida Administrative Code, which will be necessary until the affected mining parcels on the Polk County Site are released from reclamation. FPC has requested a variance from Rule 16C-16.0051(5)(a), which requires artificial water bodies to have an annual zone of fluctuation, and Rule 16C-16.0051(5)(b), which requires submerged vegetation and fish bedding in artificially-created water bodies. The criteria in these rules are inappropriate for a cooling pond, because it is an industrial wastewater treatment facility which cannot be efficiently or safely operated with fluctuating water levels and aquatic vegetation zones. With regard to the construction of dams for the cooling pond, brine pond and solid waste disposal areas, FPC will need a variance from Rule 16C-16.0051(2)(a), which requires a 4:1 slope for dam embankments and Rule 16C-16.0051(9)(b) and (c), which requires vegetation of upland areas, which may include dam embankments. Dams for the cooling pond, brine pond and solid waste disposal areas will have steeper slopes and the interiors of the dams will be concrete blanket revetments, synthetic liners or solid waste consistent with the industrial purposes for which these facilities have been constructed. Access to these areas will be controlled to prevent any potential safety hazard. Finally, FPC will need a variance from Rule 16C-16.0051(11)(b)(4), which requires reclamation to be completed within two years after mining operations are completed. Construction of the Polk County Site requires extensive dewatering and earthwork which cannot be completed within this timeframe. Applications for variances from mining reclamation criteria were included in Appendix 10.9 of the SCA and have been incorporated into the certification proceeding for the Polk County Site. DEP has redesignated these variance applications as EST-SC-FPC-V and IMC-NP-FPC-V. These variances are appropriate and should be granted. Agency Positions and Stipulations The Department of Environmental Protection, Southwest Florida Water Management District, and Polk County have recommended certification for the construction and operation of the initial 470 MW of natural gas combined cycle generating capacity and have recommended the determination that the Polk County Site has the ultimate capacity for 3,000 MW of natural gas and coal gas combined cycle generating capacity, subject to appropriate conditions of certification. No other state, regional or local agency that is a party to the certification proceeding has recommended denial of the certification for the construction of the initial 470 MW of generating capacity or determination of ultimate site capacity. Several agencies which expressed initial concern regarding certification of the Polk County Site have resolved those concerns with FPC and have entered into stipulations with FPC as discussed below. The Florida Department of Transportation, the Game and Fresh Water Fish Commission, and the Department of Community Affairs have entered into stipulations with FPC recommending certification of the Polk County Site and a determination that the Polk County Site has the ultimate site capacity to support 3,000 MW of NGCC and CGCC generating capacity subject to proposed conditions of certification. Hillsborough County, the Environmental Protection Commission of Hillsborough County, and the Tampa Port Authority have entered into a stipulation and agreement with FPC recommending certification of the backup natural gas pipeline corridor subject to proposed conditions of certification. FPC and the agency parties have agreed on a set of conditions of certification for the Polk County Site. Those conditions are attached as Appendix A to this Recommended Order.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that: Florida Power Corporation be granted certification pursuant to Chapter 403, Part II, Florida Statutes, for the location, construction and operation of 470 MW of combined cycle generating capacity as proposed in the Site Certification Application and in accordance with the attached Conditions of Certification. Florida Power Corporation's Polk County Site be certified for an ultimate site capacity of 3,000 MW fueled by coal gas, natural gas, and fuel oil subject to supplemental application review pursuant to 403.517, Florida Statutes, and Rule 17-17.231, Florida Administrative Code, and the attached Conditions of Certification. A zone of discharge be granted in accordance with the attached Conditions of Certification. The conceptual plan modifications (EST-SC-CPH and IMC-NP-FPC) for the mandatory phosphate mining reclamation plans be granted subject to the attached Conditions of Certification. The variances from reclamation standards (EST-SC-FPC-V and IMC-NP-FPC- V) as described herein be granted subject to the attached Conditions of Certification. DONE AND ENTERED this 3rd day of December, 1993, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5308EPP RECOMMENDED CONDITIONS OF CERTIFICATION * * NOTE: 114 page Recommended Conditions of Certification plus attachments is available for review in the Division's Clerk's Office. COPIES FURNISHED: Gary P. Sams Richard W. Moore Attorneys at Law Hopping Boyd Green & Sams Post Office Box 6526 Tallahassee, Florida 32314-6526 Representing Applicant Pamela I. Smith Corporate Counsel Florida Power Corporation Post Office Box 14042 St. Petersburg, Florida 33733-4042 Richard Donelan Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road, Room 654 Tallahassee, Florida 32399-2400 Representing DER Hamilton S. Oven, Jr. Office of Siting Coordination Division of Air Resources Mgmt. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Lucky T. Osho Karen Brodeen Assistant General Counsels Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Representing DCA Michael Palecki, Chief Bureau of Electric & Gas Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399-0850 Representing PSC M. B. Adelson, Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Representing DNR Carolyn S. Holifield, Chief Chief, Administrative Law Section Department of Transportation 605 Suwanee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Representing DOT Doug Leonard, Executive Director Ralph Artigliere, Attorney at Law Central Florida Regional Planning Council 409 East Davidson Street Bartow, Florida 33830 Representing CFRPC Julia Greene, Executive Director Tampa Bay Regional Planning Council 9455 Koger Boulevard St. Petersburg, Florida 33702 Representing Tampa Bay Regional Planning Council John J. Dingfelder Assistant County Attorney Hillsborough County Post Office Box 1110 Tampa, Florida 33601-1110 Representing Hillsborough County Mark Carpanini Attorney at Law Office of County Attorney Post Office Box 60 Bartow, Florida 33830-0060 Representing Polk County Martin D. Hernandez Richard Tschantz Assistant General Counsels Southwest Florida Water Management District 2370 Broad Street Brooksville, Florida 34609-6899 Representing SWFWMD James Antista, General Counsel Florida Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Representing GFWFC Sara M. Fotopulos Chief Counsel Environmental Protection Commission of Hillsborough County 1900 Ninth Avenue Tampa, Florida 33605 Representing EPCHC Joseph L. Valenti, Director Tampa Port Authority Post Office Box 2192 Tampa, Florida 33601 Representing Tampa Port Authority Board of Trustees of the Internal Improvement Trust Fund Don E. Duden, Acting Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Representing the Trustees Honorable Lawton Chiles Governor State of Florida The Capitol Tallahassee, Florida 32399 Honorable Robert A. Butterworth Attorney General State of Florida The Capitol Tallahassee, Florida 32399-1050 Honorable Bob Crawford Commissioner of Agriculture State of Florida The Capitol Tallahassee, Florida 32399-0810 Honorable Betty Castor Commissioner of Education State of Florida The Capitol Tallahassee, Florida 32399 Honorable Jim Smith Secretary of State State of Florida The Capitol, PL-02 Tallahassee, Florida 32399-0250 Honorable Tom Gallagher Treasurer and Insurance Commissioner State of Florida The Capitol Tallahassee, Florida 32399-0300 Honorable Gerald A. Lewis Comptroller State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350
The Issue The Department adopts and incorporates in this Final Order the Statement of the Issue presented in the Recommended Order.
Findings Of Fact The Department adopts and incorporates in this Final Order the Findings of Fact set forth in the Recommended Order.
Conclusions This cause came before the Department of Revenue for the purpose of issuing a final order. The Administrative Law Judge assigned by the Division of Administrative Hearings issued a Recommended Order dated July 5, 2001, sustaining in full the Department’s assessment. Petitioner timely filed exceptions to the Recommended Order, but Petitioner subsequently withdrew its exceptions by way of letter dated September 7, 2001. The Department filed no exceptions to the Recommended Order and there are no proposed substituted orders to consider. A copy of the Recommended Order is attached to this Final Order and is specifically incorporated by reference. The Department has jurisdiction of this cause.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the , Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Department of Revenue and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate District where the party resides. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.
Findings Of Fact The applicant has proposed, as part of its project, certain mitigation activities designed to offset the adverse environmental impacts that would be caused by the dredging of the proposed turning notch. These proposals consist of (a) the creation of 23 acres of new mangrove forest in the John U. Lloyd State Recreation Area (Park) which lies across the ICW from the proposed notch; (b) the construction of approximately 7300 linear feet of riprap along the eastern edge of the ICW to protect existing and proposed mangrove areas from excessive tidal or wave action; (c) the enhancement of 16 acres of existing mangrove forest in the Park; (d) the deepening of an existing tidal creek in the Park to create a manatee sanctuary; and (e) the grant of a conservation easement to the Department which would prohibit any future development in the remaining acres of mangrove forest adjacent to the proposed notch. The 23 acres on which the applicant proposes to create a new mangrove forest are presently vegetated with exotic plants, primarily Australian pine and Brazilian pepper. The applicant proposes to remove the exotics, scrape the area to an appropriate inter tidal elevation, and handplant approximately 165,000 red mangrove seedlings on three foot centers. The new mangroves will be monitored and maintained for seven years, with at least an 80 percent survival rate. 1/ To evaluate its plan for creating new mangrove areas, the applicant planted 3,800 red mangroves in a pilot project along the east side of the, ICW, adjacent to the Park. Following the passage of two years, those mangroves have evidenced a survival rate of approximately 80 percent, and white and black mangrove recruits have established themselves on the site. The applicant has provided reasonable assurances that its' mangrove project will survive, and that its character will be similar to the well-flushed fringe mangrove forest that will be displaced by the notch. The new mangroves should develop a canopy in four to six years, at which time the production of leaf litter will be maximized. When the canopy develops, the per acre productivity of the new mangrove forest should be similar to the present productivity of the mangroves in the notch. In addition to creating 23 acres of new mangroves to replace the 18 acres lost by construction of the notch, the applicant's project will improve the health and productivity of those mangroves presently growing in the Park. This will be accomplished by the removal of the exotics which currently shade A the existing mangroves and by the improvement of the tidal circulation. In conjunction with its mangrove planting project, the applicant will install approximately 7,300 feet of riprap along the eastern shore of the ICW, an area subject to severe erosion. The ripap, which will be constructed to a height of +6 feet MLW (mean low water), will protect the shoreline, the existing mangroves, and the newly planted mangroves from erosion, turbulent water and floating debris. 2/ Fish populations and fishing values will directly benefit from the riprap and new mangroves by providing shelter and a food source. While large fish and materials will not generally pass through the interstitial spaces in the riprap, small fish and other marine organisms will. 3/ These small fish will be protected from predators part of the time, but at low tide they will be forced through the riprap and into the ICW where they will provide a food service for larger fish. The macroinvertebrate population of the area will increase in number and diversity as a result of the mitigation plan. In the long-term, the macroinvertebrate habitat of the mitigation area will be similar to that presently existing in the notch area. Additionally, new macroinvertebrate communities will emerge along the riprap. The mitigation proposal will also create a net benefit to the local and migratory bird population found in the area. The creation of 23 acres of mangroves, together with the enhancement area, infra, will provide additional habitat and improved food source for the birds. 1O. The third feature of the applicant's mitigation proposal is the enhancement of approximately 16 acres of mangroves in the interior of the Park. These mangroves are presently stressed and poorly flushed. The applicant proposes to excavate ditches from the enhancement area to Whiskey Creek, a tidal creek running through the interior of the Park, and scrape, certain upland areas to create inter tidal elevations between Whiskey Creek and the enhancement area. As a result of the ditching and the removal of upland areas, there will be improved tidal penetration and circulation within the enhancement ,area. This will translate to increased leaf litter production, and the export of more detritus to the marine environment. In the fourth part of its mitigation plan, the proposes to construct a manatee refuge in a U-shaped cove in the Park. While manatee should not be adversely impacted by the proposed projet, the proof did establish that boats are the largest cause of manatee injury and mortality. Construction of the proposed refuge outside the active waters of the ICW should, therefore, increase the survival rate of this endangered species. Finally, the applicant has agreed to grant the Department a conservation easement to the 53 acres of mangrove forest that will remain after construction of the turning notch. The dedication of a permanent conservation easement over the remaining mangrove forest will ensure that future construction projects are not undertaken in this area, and that adverse cumulative impacts do not occur. At hearing, the Department announced its intention to impose all of the conditions contained in its September 16, 1986, draft permit, except for condition number, 11, which dealt with the removal of exotics within the conservation easement. The Department also added two new conditions designed to provide additional protection for the manatee. The new conditions would require, all work boats to observe idle speed restrictions in the manatee sanctuary at all times during construction. The Department would also require that the applicant receive approval from the Department of Natural Resources before working in open waters during the manatee season. The applicant agreed to accept and comply with all of the Department's proposed conditions. The proof establishes that the applicant's mitigation plan, built as proposed and subject to the Department's permit conditions, will produce a net benefit for the environment. On balance, this benefit outweighs the negative impact to the environment that would be occasioned by the construction of the turning notch and renders the project not contrary to the public interest. SUPPLEMENTAL RECOMMENDATION Based on the foregoing Supplemental Findings of Fact and the Department's order of remand, dated April 6, 1987, it is RECOMMENDED: That the subject dredge and fill permit be ISSUED, subject to the Department's proposed permit conditions. DONE AND ORDERED this 27th day of May, 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 27th day of May, 1987.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the application of Port Everglades Authority for a dredge and fill permit be DENIED. DONE AND ORDERED this 20th day of February, 1987, in 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 20th day of February, 1987.
The Issue Whether the after-the-fact permit sought by Petitioner for a single family dock that has been constructed within the Indian River Aquatic Preserve, Malabar to Vero Beach, should be granted and, if so, the conditions that should be imposed.
Findings Of Fact Petitioner, Richard O. Thomas, resides at 13845 North Indian River Drive, Sebastian, Florida. Mr. Thomas is the owner of this real property, which fronts the intracoastal waterway in an area that is referred to as the Indian River Aquatic Preserve, Malabar to Vero Beach (IRAP). Construction of docks in the IRAP requires a permit from Respondent pursuant to Section 253.77(1), Florida Statutes. A dock is presently built in front of Petitioner's property and is within the IRAP. 1/ Petitioner began applying for a permit from Respondent to construct a single-family private dock in front of his property to extend into the IRAP in April of 1987. The size of main access docks and terminal platforms are limited by Respondent primarily to protect the fragile environment found in aquatic preserves such as the light-sensitive sea grass beds and attached algae found in the vicinity of Petitioner's dock and to minimize the effect of the construction of these type facilities on those areas. Petitioner sent a drawing of the requested dock to the Florida Department of Environmental Regulation (DER) in April of 1987. DER thereafter forwarded a copy of the drawing to Respondent. The April 1987 drawing depicted a main access dock 200' long and 4' wide with a terminal platform in an ell shape to the south of the main access dock 16' wide and 10' long. The dock was to be elevated 4' in height with railings around the terminal platform. This drawing was not the drawing subsequently permitted by Respondent. In June 1987, Petitioner first learned that he needed, in addition to the other permits he was seeking, a permit from Respondent. After consulting Brian Poole, an Environmental Specialist employed by Respondent, Petitioner submitted a revised drawing to Respondent on June 25, 1987. This drawing, stamped "Revised" by Respondent, was forwarded to Wilbert Holliday, an Environmental Specialist Supervisor, in Respondent's Orlando office. The June 1987 drawing depicts a main access dock 200' long and 4' wide with an ell shaped terminal platform facing south that is 6' long and 10' wide. The main access dock did not extend the length of the terminal platform. Petitioner made numerous telephone calls between June 1987 and October 1988, to Mr. Poole and to Mr. Holliday in an effort to determine the status of his request and in an effort to have his request approved. In the interim, Petitioner received conflicting instructions from Respondent, the Army Corps of Engineers, and DER as to how long the dock would have to be. Respondent's staff wanted the dock to be 500' in length so that the boats that would be moored at the dock would not be crossing sea grass beds that were located closer to shore. Petitioner testified that he engaged in a series of telephone conversations with Mr. Holliday concerning the pertinent permitting requirements. Pursuant to conversations with Mr. Holliday, Petitioner submitted a written request on October 17, 1988, for permission to build a dock "... no longer than 210 feet, 5 feet above mean low water, and with 1/2 inch spaces between deck planks. The platform is to be no more that 6 feet by 10 feet. The draft of the boat is to be used is no more than 18 inches. " Between October 17 and October 20, 1988, Petitioner informed Mr. Holliday that the ell platform had to be moved from south of the main access dock to north of it due to the county's concern for his neighbor's riparian rights. During that same telephone conversation Mr. Holliday informed Petitioner that his staff was still recommending that the dock be 500 feet in length. On October 20, 1988, Petitioner wrote Mr. Holliday a letter which voiced his displeasure as to that recommendation and which provided, in part, as follows: ... I again respectfully request that the dock length be 210 ft. long with platform area 160 sq. ft. and the dock to be 4 ft. in height with spaces 3/8 inches (they will shrink to 1/2 inches.) If the 4 ft. is disallowed then I need a lower platform area to get in and out of my two boats. My wife is 5 ft. 2 in tall. If this isn't's going to fly then I have no other recourse than seek a third party opinion. At Petitioner's request, Mr. Holliday gave Petitioner the name and number of John Peterson, an environmental specialist in Respondent's Tallahassee office. Petitioner and Mr. Peterson engaged in a lengthy telephone conversation about Petitioner's application. At the conclusion of the conversation, Mr. Peterson asked Petitioner to submit his final plan and informed Petitioner that he would be back in contact with Petitioner. A day or two after that conversation, Mr. Holliday called Petitioner and requested that Petitioner send to him Petitioner's final plan. On October 27, 1988, Petitioner sent to Mr. Holliday what Petitioner considered to be his final plan depicting a main access dock 4' x 210' with a 12' x 12' covered ell platform facing north. This 12' by 12' area (or 144 square feet) is the area Petitioner considers to be the terminal platform. The main access dock extended the length of the terminal platform and added to the terminal platform an area 4' wide and 12' long (or 48 square feet). The main access dock and the terminal platform were to be 5' above mean low water. Two boat slips were requested with an adjacent catwalk 3.5' above mean low water. On November 14, 1988, Casey Fitzgerald, as Chief of Respondent's Bureau of Submerged Lands Management, sent Petitioner a letter that stated in pertinent part: You are hereby authorized to proceed with construction of a two-slip single-family dock as depicted on the attached drawing ... . This authorization is specifically conditioned upon the following: The proposed dock shall be elevated +5 feet above the ordinary water line with 3/8 inch spaces between deck planks. The terminal platform area shall be elevated +3 feet above the ordinary water line. Vessels to moor at the dock shall have a maximum running draft of 18 inches, and shall be operated in a manner that will minimize impacts to the grassbeds at the site; and The attached general consent conditions shall be accepted and complied with. 2/ Please consider this the conditional authority sought under Section 253.77, Florida Statutes, to pursue this project. The letter in no way waives the authority and/or jurisdiction of any governmental entity, nor does it disclaim any title interest that the State may have in this project site. We appreciate your cooperation with our resource management objectives, and apologize for the long delay. If you have and questions, please feel free to contact me. No drawing was attached to Mr. Fitzgerald's letter of November 14, 1988. Petitioner thereafter constructed the dock in accordance with the plan he submitted on October 27, 1988. Construction on the dock and covered terminal platform was concluded in approximately March of 1989. The as constructed dock deviated from the plan submitted on October 27, 1988, in that Petitioner added two lowered platforms approximately 3.5' x 12' each around the north and east ends of the terminal platform to be used for access to moored boats. Petitioner concedes that these platforms were not part of the drawing of October 27, 1988, and he has agreed to remove them. Respondent calculated that the square footage of the terminal platform is 351 square feet (19' wide and 19.5' long). Respondent's calculations included the two lowered platform areas that Petitioner has agreed to remove and the portion of the main access dock that extends the length of the terminal platform. Petitioner made a good faith effort to follow the instructions of Respondent and to comply with the appropriate permitting procedure. He relied in good faith on the letter of November 14, 1988, and he reasonably assumed that the October 27, 1988, drawing was the one referred to in the November 14, 1988, letter. Mr. Fitzgerald did not testify at the formal hearing. The greater weight of the evidence establishes that Mr. Fitzgerald, as the bureau chief, had greater authority in permitting matters than did either Mr. Holliday or Mr. Poole. While there is no question that Petitioner was permitted to construct a dock, there is no direct evidence as to which of the several drawings Petitioner submitted had been approved by Mr. Fitzgerald. Mr. Holliday did not recall having sent the October 27, 1988, drawing to Mr. Fitzgerald. After Mr. Peterson and Mr. Fitzgerald became involved in Petitioner's application, it is not clear what involvement Mr. Holliday had, other than to ask Petitioner to submit his final plan. It is clear that Mr. Fitzgerald had information pertaining to Petitioner's application available to him when he wrote Petitioner on November 14, 1988. The most reasonable inference 3/ to be drawn from the evidence is that Mr. Fitzgerald had for his review Petitioner's complete application file, including the drawing submitted October 27, 1988, and it was to the drawing of October 27, 1988, that his letter referred. The next contact between Petitioner and Respondent occurred June 1, 1990, when an inspection team from Respondent's field office, including Mr. Poole, visited the site and met with Petitioner. During this visit, Mr. Poole observed that the sea grass that had been visible before the dock was built had died and that underneath the structure was now white sand. Mr. Poole wrote a letter to Petitioner dated June 14, 1990, which asserted Respondent's understanding of an agreement reached during the on-site meeting of June 1, 1990, 4/ and provided, in pertinent part, as follows: The terminal platform area will be reduced to no more than 160 square feet. This will require the removal of all the catwalks and reducing the ell-shaped platform area to 10' x 16' or any other shape so long as the size does not exceed 160 square feet. The resulting terminal platform may be lowered to a height of +3 feet above the ordinary water line to facilitate ingress and egress from the two vessels. The roof over the platform will be removed. ... It is our position that the roof is inconsistent with Chapter 18-20, FAC, and the adopted Indian River Malabar to Vero Beach Aquatic Preserve Management Plan. Section 18-20.004(5)(a)(2) provides for more restrictive modification for docks that fall within areas of special or unique importance, such as extensive seagrass beds. Section 18- 20.004(1)(f) requires that the structure be necessary to conduct water dependent activities, a roof over the platform is not necessary to access the water. ... * * * 6. You agreed to comply with the above requirements within 60 days. Your receipt of this letter will initiate the 60 day time clock. The letter of June 14, 1990, also discussed the requirement that Petitioner remove a boat hoist and that he not moor a commercially registered vessel at the dock. These two matters were resolved by the parties and were not at issue at the formal hearing. On October 24, 1990, James M. Marx, an Environmental Administrator with Respondent's Bureau of Submerged Lands and Preserves, sent a letter which advised that modifications to the dock in accordance with the letter of June 14, 1988, including removal of the roof, must be completed within thirty days of his receipt of the letter and that failure to do so will result in action that may result in removal of the entire structure. On December 26, 1990, Petitioner filed an application seeking approval of the dock as constructed less the two platforms he had agreed to remove. After the removal of the two platforms, the dock will be substantially in compliance with the drawing submitted by Petitioner on October 27, 1988. On April 4, 1991, Michael E. Ashey, as Chief of Respondent's Bureau of Submerged Lands and Preserves, advised Petitioner by letter that his after-the- fact permit application was denied on the following grounds: 1. Section 18-20.004(5)(b)(6) (sic), Florida Administrative Code, states in pertinent part: "terminal platform size shall be no more than 160 square feet." The existing structure has a terminal platform area of 392 square feet. 2. Section 18-20.004(5)(b)(1) (sic), Florida Administrative Code, limits the width of the main access walkway to 4 feet. The existing structure includes a main access walkway and a 3' x 42'11" catwalk adjacent to the walkway. The combined width of the access walkway structure exceeds the 4' width limit of the rule. 3. Section 18-20.004(1)(f), Florida Administrative Code, states in pertinent part: "that activities shall be designed so that the structure or structures to be built in, on or over sovereignty lands are limited to structures necessary to conduct water dependent activities." The existing roof is not a necessary component to a water dependent activity. All three of the deviations raised by Mr. Ashey's letter of April 4, 1991, were reflected on the drawing that Petitioner submitted to Mr. Holliday on October 27, 1988. Petitioner understood that the terminal platform could not exceed 160 square feet. Petitioner believed that the terminal platform consisted only of the 12' x 12' platform that was attached to the main access dock. Petitioner did not understand that the 4' width of the adjacent main access dock would be included in calculating the square footage of the terminal platform, nor did he understand that the two unauthorized platforms (which did not appear on his final plans of October 27, 1988) would be included in calculating the terminal platform. The term "terminal platform" is not defined by rule. By internal memorandum, to which Petitioner did not have access, a "terminal platform" is considered to be that portion of the dock which is wider than the main access dock, generally at the terminus of the dock, and the area where boats are generally moored. Neither Mr. Poole, Mr. Holliday, Mr. Fitzgerald, or Mr. Peterson has the authority to permit the construction of a dock which contains the design of a terminal platform in excess of 160 square feet. Mr. Holliday and Mr. Poole testified that Respondent does not mark approved plans "approved" before returning the plans to the file so there is no way to distinguish preliminary plans from approved or permitted plans. There is no plan in Respondent's files pertaining to Petitioner's application marked "approved" or "permitted". On November 18, 1988, the date of Mr. Fitzgerald's letter to Petitioner, Mr. Fitzgerald served as the Bureau Chief, Department of Submerged Lands and Aquatic Preserves in Respondent's Tallahassee office. Mr. Holliday served as the Planning Manager of the East Central Florida field office located in Orlando. Mr. Poole served as an Environmental Specialist out of the Respondent's Melbourne office. The letter of November 14, 1988, was not routed through either Mr. Holliday or Mr. Poole. Petitioner and other members of his family, including his mother, his aunt, and his uncle have had skin cancers in the past. Young children and babies use the dock for recreational purposes during the day. Petitioner had not, prior to the construction of the structure, discussed his desire to have the terminal platform covered with either Mr. Poole or Mr. Holliday. The first drawing reflecting that the platform would be covered was the drawing of October 27, 1988. The roof on the dock would offer those using the dock during the day protection from the sun. Respondent has permitted at least two other docks located within an aquatic preserve that were roofed. Respondent is opposed to permitting the roof because of the shading that results from a solid structure. Neither Mr. Poole nor Mr. Holliday would have permitted the dock pursuant to the drawing of October 27, 1988, because neither believed the dock to be in compliance with his interpretation of the permitting requirements found in Chapter 18-20, Florida Administrative Code.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which requires that Petitioner remove the two lowered platforms on the north and east ends of the terminal platform within sixty days of the entry of the Final Order. It is further recommended that the Final Order find that the after the fact application submitted by Petitioner on December 26, 1990, is consistent with the authorization granted by the letter issued by Mr. Casey Fitzgerald on November 14, 1988. It is further recommended that the Final Order grant the after the fact application submitted by Petitioner on December 26, 1990. DONE AND ENTERED this 31st day of January, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 31st day of January, 1992.
Findings Of Fact NFS filed an application with the Department for a renewed operations permit, Permit No. A016-126149. The Department entered a Notice of Permit Issuance indicating its intent to grant NFS' permit application. The Department, however, informed NFS that it was imposing several specific conditions on the permit being issued to NFS. NFS requested a formal administrative hearing to contest the imposition of several of the specific conditions it had been informed the Department intended to impose. At the commencement of the final hearing, the parties represented that they had resolved their dispute concerning all of the specific conditions at issue except one. The parties represented that the only remaining condition imposed by the Department which was still at issue hearing was specific condition number 9. Pursuant to specific condition number 9, NFS was required to comply with the requirements of Rule 17-2.650(2)(c)11.b.(i), Florida Administrative Code. Rule 17-2.650(2)(c)11.b.(i), Florida Administrative Code, requires the following: No owner or operator of a source governed by Rule 17-2.650(2)(c)11., F.A.C., shall cause, permit, or allow any visible emissions (five percent opacity) from such source(s) except that at the point where material is being discharged to the hold of a ship from a conveyor system. When the conveyor and/or hatch covering is moved, an opacity of 10 percent will be allowed. NFS has not filed a challenge pursuant to Section 120.56, Florida Statutes, to the requirements of Rule 17-2.650(2)(c)11.b.(i), Florida Administrative Code. NFS failed to offer any proof that Rule 17-2.650(2)(c)11.b.(i), Florida Administrative Code, and the rule's 5% opacity limit does not apply to it. NFS suggested that it "could not live with" the 5% opacity requirement. Rule 17-2.650(2)(c)11.b.(i), Florida Administrative Code, does contain an exemption from the 5% opacity requirement of the rule. NFS did not, however, offer any proof that it qualifies for any exemption from the 5% opacity requirement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order dismissing North Florida Shipyard, Inc.'s challenge to the Department's Notice of Permit Issuance. DONE and ENTERED this 24th day of August, 1992, in Tallahassee, Florida. LARRY J. SARTIN 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 24th day of August, 1992. APPENDIX Case Number 92-2822 The Department has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 Hereby accepted. 2 4-5 3 5. 4 7-8. 5 8. COPIES FURNISHED: North Florida Shipyard, Inc. Commodores Point - Administrative Office Attn: John B. Shiffert Post Office Box 3863 Jacksonville, Florida 32206 Jefferson M. Braswell Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel State of Florida Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary State of Florida Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
