The Issue The issue is whether the proposed site is consistent and in compliance with existing land use plans and zoning ordinances.
Findings Of Fact Notice of Hearing Applicant published sufficient notices of the October 29, 1992, land use hearing in The Tampa Tribune (Hillsborough County) on September 12, 1992, and in The Ledger (Polk County) on September 13, 1992. Notice of the land use hearing was also posted at the site on September 14, 1992. On September 18, 1992, DER mailed by certified mail, return receipt requested, a copy of the public notice for the land use hearing for the proposed project to Polk County Development Services. Copies were mailed by certified mail, return receipt requested, to the Central Florida Regional Planning Council and the Tampa Bay Regional Planning Council. On October 21, 1992, DER issued a news release concerning the proposed project and the land use and zoning hearing to appropriate media selected by DER. The notice for the land use hearing published in the September 25, 1992, Florida Administrative Weekly was not published at least 45 days prior to the public hearing on the land use hearing as required by Section 17- 17.151(4)(e), Florida Administrative Code. On October 27, 1992, Applicant filed a motion for alteration of the 45-day time limit for notice of publication in the Florida Administrative Weekly. During the hearing, the Hearing Officer granted Applicant's motion and approved of the late notice in the Florida Administrative Weekly. On November 4, 1992, the Hearing Officer entered a written order confirming her prior oral order. Stipulation Applicant and Polk County entered into a stipulation concerning the proposed project's compliance with Polk County's zoning and land use regulations. This stipulation was admitted as Exhibit 4. The stipulation reflects Polk County's agreement that the proposed site of the Polk Power Station and transmission line corridors, which are subject to Conditional Use Permit number 92-05, are consistent and in compliance with the Polk County Comprehensive Plan and Polk County zoning ordinance number 83-2 and subsequent amendments (hereinafter The Polk County Zoning Ordinance). Site Identification Process In identifying the location of the Polk Power Station, Applicant received public guidance from a public power plant siting task force composed of environmentalists, educators, and business people. Over half the task force membership was composed of environmentalists. The task force selected a professional environmental consulting firm to assist in conducting the studies necessary to complete the siting project. A six county study area was initially selected for evaluation by the task force, which then commenced a multi-phase screening process. First, preliminary study areas were identified and reviewed and some areas were rejected. In phase two, the remaining preliminary areas were subjected to an environmental, engineering, and economic review which narrowed the list to fifteen candidate sites. In phase three, the task force reviewed these fifteen sites in greater detail, then narrowed the list to six "prime siting areas" and received input concerning these six areas from the public and various governmental agencies including DER and the Southwest Florida Water Management District. Upon completion of the third phase, the task force narrowed the field to three preferred sites, all of which were located in southwestern Polk County on land that had been mined for phosphate. The task force determined that each of these sites was essentially indistinguishable and left the selection of the final site to Tampa Electric Company. Project Site Description Design and Construction Applicant proposes to construct and operate a power plant and affiliated components including two transmission lines. The total generating capacity at the site will be approximately 1150 megawatts. The plant will commence operation in two stages. The first stage will be construction of a nominal 260-megawatt integrated coal gasification combined cycle (IGCC) demonstration project developed by Applicant and supported in part by the United States Department of Energy under the Clean Coal Technology Demonstration program. The IGCC facility is scheduled to be brought on-line in two phases. The first phase of the IGCC project will begin commercial operation in July, 1995, and will consist of a simple cycle combustion turbine. During this first year of operation, the combustion turbine will burn low sulfur number two fuel oil. In July, 1996, the remaining facilities consisting of the heat recovery steam generator, steam turbine, and coal gasification facilities will be added and integrated to complete the nominal 260-megawatt IGCC unit. After integration of these facilities, the IGCC unit will be fueled by coal-derived gas which is produced in the coal gasification facilities, with low sulfur number two fuel oil as the backup fuel. The second stage of the project will be the addition of two nominal 220-megawatt combined cycle facilities and six 75- megawatt nominal combustion turbines. These facilities are proposed to be fueled by natural gas as the primary fuel, with low sulfur number two fuel oil as the backup fuel. Associated with the Polk Power Station electrical generating plant will be a coal handling facility, a rail loop, water treatment and storage facilities, fuel oil storage and handling facilities, storm water management ponds, transmission lines and substations, and a cooling reservoir located southeast of the plant site. The cooling reservoir will be used to cool the steam from the heat recovery steam generator so that water can be reused in the system. Location of Site The proposed site for the Polk Power Station consists of 4,348 acres. The site is located in southwestern Polk County approximately 10.4 miles northwest of Bowling Green in Hardee County. Within Polk County, the nearest municipality is Fort Meade, approximately 10.8 miles to the east of the proposed site. Within Hillsborough County, the nearest municipality is Plant City located approximately 19.2 miles to the northwest. Within Manatee County, Bradenton is located approximately 34.8 miles to the southwest. The unincorporated community of Bradley Junction is located approximately 4.4 miles to the north of the generating facility. The Polk Power Station site is bisected by State Road 37, which divides the project into two tracts, the eastern tract and the western tract. The eastern tract will contain the proposed generating facility and cooling reservoir. The western tract will be reclaimed into a series of wetlands and uplands for a natural habitat area. Existing Land Uses The eastern tract is bordered to the north by County Road 630 and bordered to the east by the existing Hardee-Pebbledale 230 Ft. Green Road, and a CSX Railroad line. The eastern tract is bordered to the south by clay settling areas. The western tract is bordered to the south by State Road 674 and bordered to the west by the Hillsborough/Polk County line. The western tract is bordered to the north by Albritton and Bethlehem Roads. The western tract of the proposed site is currently undergoing active phosphate mining operations. Most of the western tract will be mined. The eastern tract has also been subject to phosphate mining operations. Portions of the eastern tract have not and will not be mined and will be the location for the proposed generating facility. The eastern tract contains three lakes of significant size, all created from phosphate mining activities. Adjacent land uses for the western tract include reclaimed phosphate mining lands, citrus groves, scattered residences, pasture lands, inactive clay settling ponds, undeveloped lands, an inactive phosphate chemical processing plant and cooling pond, and an active clay settling pond. Land uses adjacent to the eastern tract include pasture land, a citrus grove, one single family residence, active and inactive clay settling ponds, and an agricultural test tract operated by Polk County and the Florida Institute of Phosphate Research. Transmission Line Corridors Description Design and Construction The proposed transmission lines will transport bulk power at the 230- kV level from the Polk Power Station substation to the existing Tampa Electric Company grid system. Two types of transmission line structures are planned for the Polk Power Station. The first, the H-frame structure, consists of two vertical poles with an out-of-ground height of approximately 65 feet. The vertical poles are connected by a cross-arm assembly. The cross-arm assembly holds the porcelain insulators and the conductors for the transmission system. One overhead ground wire is attached to the top of each vertical pole. The single pole structure may be constructed in two configurations: single circuit or double circuit. These configurations are identical except that the single circuit configuration has one set of conductors, insulators, and ground wires, whereas the double circuit configuration has two sets. The typical out-of- ground height for the single pole structure is 96 feet. Location of Corridors There are two transmission line corridors associated with the proposed Polk Power Station, which are referred to as the eastern and northern corridors. The eastern corridor exits a substation located on the project site in a northeast direction to a point where the corridor meets the existing Hardee- Pebbledale 230-kV line, located along the western edge of Fort Green Road, with the point of intersection being located approximately 1400 feet south of County Road 630. The eastern corridor will be 400 feet wide and is approximately one mile long. The northern corridor commences from an onsite substation and runs in a westerly direction onsite until it meets State Road 37. This onsite portion of the northern corridor will be 400 feet wide and approximately three quarters of a mile long. At the point where the northern corridor meets State Road 37, the corridor turns northeast and continues in that direction parallel to State Road 37 to a point south of Bradley Junction, where it turns to the northwest, and then to the north, crossing Doc Durrance Road. At this point, the northern corridor meets the existing Mines Pebbledale 230-kV transmission line. The width of the northern corridor along State Road 37 is one-half mile and the width in the northwestern segment is one mile. The total offsite length of the northern corridor is approximately 5.2 miles. Existing Land Uses The eastern corridor is located exclusively on land that previously has been mined for phosphate. The onsite portion of the northern corridor also crosses only land previously mined for phosphate. The northern corridor east of State Road 37 and north of County Road 630 encounters undeveloped land, a citrus grove, an abandoned gasoline service station, phosphate mining lands, a wetland, scattered residences, and unclaimed phosphate mining lands. Land uses within the northern corridor west of State Road 37 include inactive clay settling areas, mixed forested areas and scattered citrus groves, wetland areas, phosphate mining lands, scattered residences, and a clay settling pond. Existing land uses within the northwestern segment of the northern corridor include reclaimed agricultural lands, a reclaimed lake, and a clay settling area. Consistency With Applicable Land Use Plan and Zoning Ordinance The Polk Power Station site and associated electrical transmission line corridors are located exclusively in Polk County. Therefore, the land use plan and zoning ordinances applicable to the Polk Power Station and associated components and transmission lines are those adopted by Polk County. Conditional Use Permit On January 24, 1992, Applicant filed with Polk County a conditional use permit application for the Polk Power Station. Supplemental information for that application was submitted by Applicant on February 12, 1992. The project was reviewed at an impact review meeting on March 16, 1992. The Polk County Zoning Advisory Board recommended approval of a conditional use permit for the project on May 13, 1992. On June 2, 1992, the Polk County Board of County Commissioners unanimously approved Applicant's conditional use permit application and on June 18, 1992, Conditional Use Permit number 92-05 was issued. Polk County Land Use Plan The land use plan that governs the Polk Power Station site and associated transmission line corridors is the Polk County Comprehensive Plan, as adopted by the Polk County Board of County Commissioners on April 19, 1991. The future land use element of the Polk County Comprehensive Plan allows for the development of certified electric power generation facilities (i.e., generation facilities and ancillary facilities required to be certified pursuant to the PPSA) in the phosphate mining (PM) future land use category if the proposed facility is reviewed and approved by Polk County through a conditional use permit. The Polk County Comprehensive Plan also contains specific objectives and policies which are used in determining the appropriateness of a location for a certified electric power generating facility. These include locational, environmental, development approval, and adjacent development criteria contained in the future land use element. Also, general policies and objectives relating to design and operational features for developments within Polk County are contained in the future land use, conservation, economic, traffic circulation, and infrastructure elements of the Comprehensive Plan. Electric transmission lines are permitted as specialized uses in all future land use categories in Polk County, subject to County approval. Polk County has stipulated that the site of the proposed Polk Power Station and associated transmission line corridors, which are subject to the conditions contained in Conditional Use Permit number 92-05, are in compliance and consistent with the Polk County Comprehensive Plan. The power plant site is in compliance and consistent with the Polk County Comprehensive Plan. This determination is based on the fact that the Polk Power Station, a facility required to undergo certification review pursuant to the PPSA, is a certified electric power generating facility to be located within the PM future land use category. Electric power generating facilities such as the Polk Power Station are allowed in the PM future land use category if the County grants its approval in the form of a conditional use permit. Here, Conditional Use Permit number 92-05 has been issued by the County approving the Polk Power Station site. Furthermore, the proposed Polk Power Station site complies with the locational, environmental, development approval, and adjacent development criteria of the land use element of the Comprehensive Plan applicable to certified electric power generating facilities as well as with the general policies for developments contained in the future land use, conservation, economic, infrastructure and traffic circulation elements of the Plan. With respect to the Polk Power Station transmission line corridors, the eastern transmission corridor and onsite portions of the northern corridor are located within the PM future land use category. The offsite portion of the northern corridor is located primarily within the PM future land use category with a small area in the southern portion of this corridor located in the agricultural/residential-rural category. Because transmission lines are permitted uses within all future land use categories, subject to Polk County approval, and County approval was issued for the Polk Power Station transmission line corridors in the form of Conditional Use Permit number 92-05, the Polk Power Station transmission line corridors are in compliance with the Polk County Comprehensive Plan. Polk County Zoning Ordinance Power stations are Class III Essential Services in Polk County, which are allowed conditional uses in the Rural Conservation (RC) zoning district. Electric transmission lines are Class I Essential Services under the Polk County Zoning Ordinance. Class I Essential Services are permitted uses in all zoning districts located within the transmission line corridors. Polk County has stipulated that the proposed site for the Polk Power Station and the associated transmission line corridors, which are subject to Conditional Use Permit number 92-05, are consistent and in compliance with the Polk County Zoning Ordinance. The proposed Polk Power Station site is in compliance and consistent with the Polk County Zoning Ordinance. This determination is based on the fact that Polk Power Station site is located exclusively within the RC zoning district, and Class III Essential Services, which include the Polk Power Station generating facility, are allowed conditional uses within the RC district subject to County approval in the form of a conditional use permit. Since Conditional Use Permit number 92-05 was issued to the Applicant for the Polk Power Station site, the site is consistent with the Polk County Zoning Ordinance. With respect to the Polk Power Station transmission line corridors, the entire eastern transmission line corridor and the onsite portion of the northern transmission line corridor lie within the RC zoning district. The offsite portion of the northern corridor is located predominately within the RC district with a small area within the Regional Commercial (C-3), Single Family Mixed residential (SF-1M), and Residence (R-1) zoning districts. Because transmission lines such as those associated with the proposed project are Class I Essential Services permitted in all Polk County zoning districts, it must be concluded that the Polk P ower Station transmission line corridors are consistent with the Polk County Zoning Ordinance.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet sitting as the Siting Board enter a Final Order finding that the proposed site of the Polk Power Station and associated facilities, including the site of the corridors for the directly associated transmission lines, are consistent and in compliance with existing land use plans and zoning ordinances. DONE and ENTERED this 23rd day of November, 1992, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-4896EPP The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Applicant and DER 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-27(1-27). COPIES FURNISHED: Lawrence N. Curtin Attorney at Law Holland & Knight Post Office Drawer 810 Tallahassee, FL 32302 Representing Applicant Richard Donelan Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 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, FL 32399-2400 Lucky T. Osho Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Representing DCA Michael Palecki, Chief Bureau of Electric & Gas Florida Public Service Commission 101 East Gaines Street Tallahassee, FL 32399-0850 Representing PSC M. B. Adelson, Assistant General Counsel Department of Natural Resources 3900 Commonwealth Blvd. Tallahassee, FL 32399-3000 Representing DNR Vernon Whittier Assistant General Counsel Department of Transportation 605 Suwanee Street, M.S. 58 Tallahassee, FL 32399-0491 Representing DOT James Antista, General Counsel Florida Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, FL 32399-1600 Representing GFWFC Martin D. Hernandez Richard Tschantz Assistant General Counsels Southwest Florida Water Management District 2379 Broad Street Brooksville, FL 34609-6899 Representing SFWMD Julia Greene, Executive Director Tampa Bay Regional Planning Council 9455 Koger Boulevard St. Petersburg, FL 33702 Representing Tampa Bay Regional Planning Council R. Douglas Leonard, Executive Director Central Florida Regional Planning Council 490 East Davidson Post Office Box 2089 Bartow, FL 33830 Representing CFRPC John J. Dingfelder Attorney at Law Hillsborough County Post Office Box 1110 Tampa, FL 33601-1110 Representing Hillsborough County Mark Carpanini Attorney at Law Office of County Attorney Post Office Box 60 Bartow, FL 33830-0060 Representing Polk County Sara M. Fotopulos Chief Counsel Environmental Protection Commission of Hillsborough County 1900 Ninth Avenue Tampa, FL 33605 Representing EPCHC Honorable Lawton Chiles Governor State of Florida The Capitol Tallahassee, FL 32399 Honorable Robert A. Butterworth Attorney General State of Florida The Capitol Tallahassee, FL 32399-1050 Honorable Bob Crawford Commissioner of Agriculture State of Florida The Capitol Tallahassee, FL 32399-0810 Honorable Betty Castor Commissioner of Education State of Florida The Capitol Tallahassee, FL 32399 Honorable Jim Smith Secretary of State State of Florida The Capitol, PL-02 Tallahassee, FL 32399-0250 Honorable Tom Gallagher Treasurer and Insurance Commissioner State of Florida The Capitol Tallahassee, FL 32399-0300 Honorable Gerald A. Lewis Comptroller State of Florida The Capitol, Plaza Level Tallahassee, FL 32399-0350
Findings Of Fact On September 12, 1995, Petitioner became a Florida Power customer. He received electricity service in his name at an apartment located at 2950 N. Pinehill Road #31, Orlando, Florida. From September 1994, through December, 1994, Petitioner occupied the apartment at 2950 N. Pinehill Road #31, Orlando, Florida. Petitioner's meter indicated he used 827 Kwh from September 12, 1994, through October 4, 1994. Petitioner's meter indicated he used 1525 Kwh from October 4, 1994, through November 2, 1994. Petitioner's meter indicated he used 1548 Kwh from November 2, 1994, through December 5, 1994. Petitioner's final bill was for December 5, 1994, through December 28, 1994. The meter indicated he used 221 Kwh for this final period. Respondent's tariff sheet 8.05 filed with the Commission sets forth the length of time within which Respondent must disconnect a customer's service after receiving a disconnect order. Respondent must disconnect service within 3 days of receiving the disconnect order. On December 26, 1994, Petitioner requested that his service be disconnected on December 27, 1994. Respondent disconnected Petitioner's service on December 28, 1994. On January 12, 1995, Petitioner's meter was tested in St. Petersburg, Florida. Petitioner's meter registered 99.96 percent accuracy.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Commission enter a Final Order finding that Respondent acted in compliance with applicable law and did not overbill Petitioner. RECOMMENDED in Tallahassee, Leon County, Florida, this 2nd day of January, 1995. DANIEL S. MANRY, 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 2nd day of January, 1995. COPIES FURNISHED: Rodney Gaddy, Esquire Florida Power Corporation 3201 34th Street, South St. Petersburg, Florida 33711-3828 Thomas Fuller Post Office Box 617217 Orlando, Florida 32861 Robert D. Vandiver, General Counsel Florida Public Service Commission Gerald L. Gunter Building 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Noreen S. Davis, Director Division of Legal Services Florida Public Service Commission Gerald L. Gunter Building 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850
Findings Of Fact PROCEDURAL MATTERS 12 PROJECT DESIGN 16 ENGINEERING DESIGN, CONSTRUCTION, AND MAINTENANCE 17 Design 17 Construction 21 Maintenance 23 SYSTEM RELIABILITY AND SEPARATION FROM EXISTING TRANSMISSION LINES 24 THE TREASURE COAST REGIONAL PLANNING COUNCIL CORRIDORS FROM MIDWAY SUBSTATION TO CORBETT SUBSTATION 29 DESCRIPTION OF THE TCRPC CORRIDORS 29 Land Uses 29 Unusual Uses or Restricted Areas - Cemeteries 32 Water Resources 32 Vegetation 33 Wildlife 33 IMPACTS ON THE PUBLIC OF THE TCRPC CORRIDORS 34 Land Use Impacts 34 Impacts on Unique Uses or Restricted Areas - Cemeteries 41 Landscape Architecture and Visual Impacts 41 IMPACTS ON THE ENVIRONMENT OF THE TCRPC CORRIDORS 43 Water Resources Impacts 43 Vegetation Impacts 44 Wildlife Impacts 45 THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT CORRIDOR FROM CORBETT SUBSTATION TO LEVEE SUBSTATION 45 DESCRIPTION OF THE SFWMD CORRIDOR 45 Land Uses 45 Water Resources 48 Vegetation 49 Wildlife 50 IMPACTS ON THE PUBLIC OF THE SFWMD CORRIDOR 51 Land Use Impacts 51 Unique Proposed Uses 52 Landscape Architecture and Visual Impacts 52 Other Consideration - Impacts to Sugar Cane 53 IMPACTS ON THE ENVIRONMENT OF THE SFWMD CORRIDOR 54 Water Resources Impacts 54 Vegetation Impacts 55 Wildlife Impacts 56 DUDA CORRIDOR 1/1A FROM MIDWAY SUBSTATION TO CORBETT SUBSTATION 57 DESCRIPTION OF DUDA CORRIDOR 1/1A 57 Land Uses 57 Unique Uses or Restricted Areas - Airports 58 Water Resources 59 Vegetation 59 Wildlife 59 IMPACTS ON THE PUBLIC OF DUDA CORRIDOR 1/1A 59 Land Use Impacts 59 Impacts on Unique Uses or Restricted Areas - Airports 60 Landscape Architecture and Visual Impacts 61 IMPACTS ON THE ENVIRONMENT OF DUDA CORRIDOR 1/1A 62 Water Resources Impacts 62 Vegetation Impacts 62 Wildlife Impacts 62 DUDA CORRIDOR 2/2A FROM MIDWAY SUBSTATION TO CORBETT SUBSTATION 63 DESCRIPTION OF DUDA CORRIDOR 2/2A 63 Land Uses 63 Unique Uses or Restricted Areas - Airports 64 Water Resources 65 Vegetation 65 Wildlife 65 IMPACTS ON THE PUBLIC OF DUDA CORRIDOR 2/2A 65 Land Use Impacts 65 Impacts on Unique Uses or Restricted Areas - Airports 66 Landscape Architecture and Visual Impacts 67 IMPACTS ON THE ENVIRONMENT OF DUDA CORRIDOR 2/2A 67 Water Resources Impacts 67 Vegetation Impacts 67 Wildlife Impacts 68 CONSISTENCY WITH LOCAL GOVERNMENT COMPREHENSIVE PLANS 68 CONSISTENCY OF THE TCRPC CORRIDOR WITH LOCAL PLANS 68 St. Lucie County 68 Martin County 68 Palm Beach County 69 CONSISTENCY OF THE SFWMD CORRIDOR WITH LOCAL PLANS 69 Palm Beach County 69 Broward County 69 Dade County 70 THE SITE FOR THE CONSERVATION SUBSTATION 71 SYSTEM PLANNING AND ENGINEERING 71 System Planning 71 Engineering 72 DESCRIPTION OF THE SITE FOR CONSERVATION SUBSTATION 73 Land Uses 73 Vegetation 74 Wildlife 74 IMPACTS ON THE PUBLIC OF THE PROPOSED SITE FOR CONSERVATION SUBSTATION 74 Land Use Impacts 74 Landscape Architecture and Visual Impacts 74 Consistency with Local Comprehensive Plans 75 IMPACTS ON THE ENVIRONMENT OF THE SITE FOR CONSERVATION SUBSTATION 75 Vegetation Impacts 75 Wildlife Impacts 75 COSTS FOR THE LEVEE-MIDWAY TRANSMISSION LINE 76 ELECTRIC AND MAGNETIC FIELDS 77 Compliance with EMF Rule 77 Lightning 78 Noise 78 Radio and Television Interference 79 NONPROCEDURAL REQUIREMENTS OF AGENCIES 80 Conditions of Certification Agreed to by FPL 80 Supplemental Conditions Agreed to by FPL and SFWMD 83 Conditions of Certification Proposed by SFWMD but Opposed by FPL 85 Conditions of Certification Proposed by GFWFC 87 Local Government Zoning 89 Stipulations for Settlement Entered into by FPL 91
Conclusions Corridors That Remain Certifiable 93 Standing 94 CRITERIA TO EVALUATE CORRIDORS THAT REMAIN CERTIFIABLE 95 Compliance with Section 403.529(3)(a), Florida Statutes 96 Compliance with Section 403.529(3)(b), Florida Statutes 97 Compliance with Section 403.529(3)(c), Florida Statutes 98 Compliance with Section 403.529(3)(d), Florida Statutes 100 Compliance with Section 403.529(3)(e), Florida Statutes 101 Impacts on the Public 101 Impacts on the Environment 104 Compliance with Section 403.529(4)(a), Florida Statutes 106 Compliance with Section 403.529(4)(c), Florida Statutes 107 CONSERVATION SUBSTATION 108 RECOMMENDATION 109
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order and therein dismiss the parties who failed to make and appearance; ratify the partial Summary Recommended Order; and grant certification for the location of the Levee-Midway Transmission Line in TCRPC Corridor 1 and the SFWMD Corridor and for the construction and maintenance of the transmission line within those corridors as proposed in the application and in accordance with the conditions of certification contained in Appendices C, D, E, F, G, H, I, and K, as modified and recommended on pages 98 and 99 herein. DONE AND ENTERED this 2nd day of March, 1990, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1990. * APPENDIX TO RECOMMENDED ORDER * Appendix to this Recommended Order is available for review in the Division's Clerk's Office. COPIES FURNISHED: Carlos Alvarez David L. Powell Richard W. Moore Attorneys at Law Hopping Boyd Green & Sams, P.A. 123 South Calhoun Street (32301) Post Office Box 6526 Tallahassee, FL 32314 Attorneys for Florida Power and Light Company Richard T. Donelan, Jr. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road, Room 654 Tallahassee, FL 32399-2400 Attorney for Department of Environmental Regulation James V. Antista, General Counsel Florida Game and Fresh Water Fish Commission 620 South Meridian Street Tallahassee, FL 32399-1600 Attorney for the Game and Fresh Water Fish Commission Frances Jauquet John J. Fumero Attorneys at Law South Florida Water Management District 3301 Gun Club Road (33406) Post Office Box 24680 West Palm Beach, FL 33416-4680 Attorneys for South Florida Water Management District 1 Katherine Funchess Senior Attorney Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Attorney for Department of Community Affairs Roger G. Saberson, Attorney at Law Treasure Coast Regional Planning Council E. Atlantic Avenue Delray Beach, FL 33444 Attorney for Treasure Coast Regional Planning Council Samuel S. Goren, Attorney at Law Josias & Goren, P.A. 3099 East Commercial Boulevard, Suite 200 Fort Lauderdale, FL 33308 Attorney for South Florida Regional Planning Council Fred W. Van Vonno Assistant County Attorney Martin County 2401 S.E. Monterey Road Stuart, FL 34996 Attorney for Martin County Patrick M. Casey Assistant County Attorney Dade County Metro-Dade Center N.W. 1st Street, Suite 2810 Miami, FL 33128-1993 Attorney for Dade County Krista A. Storey Assistant County Attorney St. Lucie County 2300 Virginia Avenue, Annex Fort Pierce, FL 34982 Attorney for St. Lucie County Noel M. Pfeffer, Deputy General Counsel Broward County Governmental Center, Suite 423 115 South Andrews Avenue Fort Lauderdale, FL 33301 Attorney for Broward County Robert P. Banks Assistant County Attorney Palm Beach County Governmental Complex, 6th Floor 301 North Olive Avenue, Suite 601 West Palm Beach, FL 33401 Attorney for Palm Beach County Andrea L. Moore Assistant City Attorney City of Coral Springs 9551 W. Sample Road Coral Springs, FL 33065 Attorney for City of Coral Springs Richard L. Doody, Attorney at Law Office of City Attorney City of Tamarac 7525 NW 88th Avenue Tamarac, FL 33321-2401 Attorney for City of Tamarac Steven L. Josias, Attorney at Law Josias & Goren, P.A. Centrust Savings Bank 3099 East Commercial Boulevard, Suite 200 Fort Lauderdale, FL 33309 Attorneys for Vesta Vestra, Inc. and the City of Parkland Jon M. Henning, City Attorney City of Sunrise 10770 West Oakland Park Boulevard Sunrise, FL 33351 Lisa N. Mulhall, Attorney at Law Burke, Bosselman & Weaver One Lincoln Place 1900 Glades Road, Suite 350 Boca Raton, FL 33431 Attorney for Town of Davie Heather Ruda, Attorney at Law Gibson & Adams, P.A. 303 First Street, Suite 400 (33401) Post Office Box 1629 West Palm Beach, FL 33402-1629 Attorney for Solid Waste Authority of Palm Beach County Scott Shirley, Attorney at Law Oertel, Hoffman, Fernandez & Cole, P.A. 2700 Blair Stone Road, Suite C Post Office Box 6507 Tallahassee, FL 32314-6507 Attorney for Coral Ridge Properties William L. Hyde, Attorney at Law Roberts, Baggett, LaFace & Richard 101 East College Avenue (32301) Post Office Box 1838 Tallahassee, FL 32302 Co-counsel for Hollywood Lakes Country Club, Inc. Donald R. Hall, Attorney at Law Gustafson, Stephens, Ferris, Forman & Hill, P.A. 540 Northeast Fourth Street Fort Lauderdale, FL 33301 Attorney for Silver Lakes Partnership, Hollywood STS Associates, and the William Lyon Company Donna H. Stinson, Attorney at Law Moyle, Flanigan, Katz, Fitzgerald & Sheehan, P.A. The Perkins House, Suite 100 118 North Gadsden Street Tallahassee, FL 32301 Attorney for Indian Trail Grove, Limited, Irving Cowan, Savin Groves, Kenneth G. Savage, Robert Povey and Harold Wideman, and Sunny Urban Meadows Landowners Association; Indian Trail Scott Mager, Attorney at Law Mager & Gaffney, P.A. The 110 Tower - 12th Floor 110 Southeast 6th Street Fort Lauderdale, FL 33301 Attorney for the Shennandoah Community Association and Jeff Reisburg Water Control District Stephen Covert, Attorney at Law 631 U.S. Highway One, Suite 200 (33408) Post Office Box 14035 North Palm Beach, FL 33408 Attorney for Via Tropical Fruits, Inc.; Ronnie Hattaway; Talquin Corp.; Ralph C. Nash and Mikatum Groves J. A. Jurgens, Attorney at Law Jones, Foster, Johnston & Stubbs, P.A. 505 South Flagler Drive Suite 1100 (33401) Post Office Drawer E West Palm Beach, FL 33402 Co-counsel for Via Tropical Fruits, Inc.; Ronnie Hattaway; Talquin Corp.; Ralph C. Nash and Mikatum Groves Timothy J. Manor Margaret H. Schreiber Attorneys at Law Lowndes, Drosdick, Doster, Kantor & Reed, P.A. 215 North Eola Drive (32801) Post Office Box 2809 Oriando, FL 32802-2809 Attorney for The Coca-Cola Company William J. Payne Dale Konigsburg Donna Stinson Attorneys at Law Rinker Materials Corporation 1501 Belvedere Road (33401) Post Office Box 24635 West Palm Beach, FL 33416-4635 Attorneys for Rinker Materials Corporation Lawrence N. Ctrtin Samuel J. Morley Attorneys at Law Holland and Knight 315 South Calhoun Street, Suite 600 Post Office Drawer 810 Tallahassee, Florida 32302 Attorneys for New Hope Sugar Company, Okeelanta Corporation, Sugar Cane Growers Cooperative of Florida, Inc., South Bay Growers, Inc. United States Sugar Corporation, S. D. Sugar Corporation, Florida Sugar Cane League Alfred J. Malefatto, Attorney at Law Shapiro & Bregman, P.A. Suite 310, East Tower 777 South Flagler Drive (33401) Post Office Box 20629 West Palm Beach, FL 33416-0629 Attorney for FreBar, Inc.; Sugar Belle Joint Venture and Flor Ag Corporation Mark P. Gagnon Stanley D. Klett, Jr. Attorneys at Law Scott, Royce, Harris, Bryan & Hyland, P.A. 4400 PGA Boulevard, Suite 900 Palm Beach Gardens, Florida 33410 Attorneys for A. Duda and Sons, Inc. Leigh A. Williams, Attorney at Law Littman, Littman, Williams & Strike, P.A. 1855 S. Kanner Way (34994) Post Office Box 1197 Stuart, FL 34995 Attorney for VBQ, Inc.; Beach Brooks as Trustee and Individually Darrell White, Attorney at Law McFarlain, Sternstein, Wiley & Cassedy, P.A. 600 First Florida Bank Building (32301) Post Office Box 2174 Tallahassee, FL 32316-2174 Attorney for Allapattah Properties Partnership Michael K. Spotts, Attorney at Law Brennan, Hayskar, Jefferson & Gorman, P.A. 519 South Indian River Drive (34954) Post Office Box 3779 Fort Pierce, FL 34948 Attorney for Reuben Carlton Honorable Bob Martinez 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 Doyle Conner 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 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 Tallahassee, Florida 32399-0350 Eric Simon, Attorney at Law Borkson, Simon & Noskowitz 1500 N.W. 49th Street, Suite 401 Fort Lauderdale, FL 33309 Attorney for Hollywood Lakes Country Club, Inc. Mary M. Viator, Attorney at Law Caldwell & Pacetti Post Office Box 2775 Palm Beach, FL 33480 Attorney for Indian Trail Water Control District Robert D. Miller, Attorney at Law 1675 Palm Beach Lakes Boulevard Tower A, Suite 700 West Palm Beach, FL 33401 Sugar Belle Joint Venture and Flor-Ag Corporation Joseph M. Norton Transmission Line Siting Coordinator Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Tim Murphy Anita Tallarico Attorneys at Law South Florida Regional Planning Council 3440 Hollywood Boulevard, Suite 140 Hollywood, FL 33021 Attorneys for South Florida Regional Planning Council Kerri L. Barsh, Attorney at Law 1221 Brickell Avenue Miami, FL 33131 Attorney for Graham Companies Donald S. Rosenberg, Attorney at Law 2600 AmeriFirst Building One S. E. Third Avenue Miami, FL 33131 Attorney for Black Island Partnership Robert E. Ferris, Trustee 540 Northeast Fourth Street Fort Lauderdale, FL 33301 Paul H. Amundsen James C. Hauser Attorneys at Law Blank, Hauser & Amundsen 204-B South Monroe Street Tallahassee, FL 32301 Attorney for D.L. Scotto & Company; Indian River Citrus League Frank H. Fee, III, Attorney at Law Fee, Bryan & Koblegard, P.A. Post Office Box 1000 Fort Pierce, FL 34954 Attorney for North St. Lucie River Water Control District Thomas E. Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399 David Swafford, Executive Director Florida Public Service Commission Fletcher Building 101 E. Gaines Street Tallahassee, FL 32399-0875
Findings Of Fact The Petitioner, John Michael Hatcher, is an electrician by training and was employed at times pertinent hereto by the City of Gainesville. His job as an electrician spanned the years 1979 to 1992. He first worked at the Deer Haven Power Plant operated by the City of Gainesville. In 1987, he was transferred to a position as a substation electrician with the City utility entity. His primary duties as a substation electrician involved performing maintenance and repair to high-voltage circuit breakers and other equipment involved in the transmission and distribution of electrical power. Substation electricians perform their work by employing two crews of three members each. On each crew, there were two electricians and one crew leader. The work of substation crews is performed on 90-day schedules. In September of 1992, the Petitioner was suspended from his position for "inability to perform the essential functions of his job" and was ultimately terminated on October 7, 1992. That termination was upheld by the City of Gainesville through its grievance process on November 10, 1992, after exhaustion of the three-step grievance process provided for in the City's collective bargaining agreement. Sometime in 1987, the Petitioner experienced breathing difficulties or respiratory irritation, when in the presence of electric power circuit breaker vapors, related to petroleum products used to cool the circuit breakers. The Respondent installed high-volume ventilation fans at the substation and encouraged the Petitioner to use the fans to remove the noxious vapors from the power circuit breaker area prior to the fume exposure which he states caused his injury. The Respondent also advised the Petitioner to use breathing masks. The ventilation fans proved to be effective in removing the vapors which the Petitioner found irritating in the electric substation environment. The masks were also effective in allowing him to work in that environment without being bothered by the fumes, as he admitted. These steps solved the Petitioner's problem in his main working environment but still left a problem for him when he drove the vehicle he used to get from job site to job site. The Petitioner maintained that he was bothered by exhaust fumes when traveling through downtown traffic in the open van-type vehicle. The Respondent recommended that he wear the breathing mask during this time, as well, and he acknowledged that it was effective in preventing the respiratory irritation that had bothered him when driving or riding in the van. The Petitioner, however, advised that he could not wear the protective mask for very long periods. This was purportedly because the heat and humidity gave him problems wearing the mask for an extended period, although traveling across a town the size of Gainesville did not take a very extended period of time. The protective mask was shown to be effective at his regular work station and in the van. The irritation problem was caused by the Petitioner not timely donning the mask before he became symptomatic. It is not clear exactly when, after mid-1987, the Respondent learned that the Petitioner was purportedly having breathing difficulties in association with his work environment. In any event, during mid-1989, the Respondent, after hearing that the Petitioner had experienced breathing difficulties when in the presence of power circuit breaker vapors, began an independent study of the causes of his complaint. This was in addition to its recommendation that he use the high-volume ventilation fans and the protective masks the Respondent provided. The Respondent's risk management division hired Lipsey & Associates to conduct a toxicology evaluation of the areas in which the Petitioner worked. The air quality in the Petitioner's work environment, tested by this independent firm, was found to be within appropriate air-quality standards or "OSHA" standards. None of the Petitioner's co-workers suffered the symptoms the Petitioner complains of. The Petitioner did not always wear the breathing mask in the work areas where fumes occur nor does he always wear it when driving the van through downtown Gainesville. Because of the Petitioner's health complaints, he was referred to the Family Practice Medical Group and examined by Dr. Marvin Dewar on June 8, 1992. Previously, the Petitioner was examined by Dr. Pravda on April 23, 1991 and diagnosed with sinusitis and asthma. He was examined by Dr. Stringer, an ear, nose and throat specialist, on August 27, 1991, with no physical abnormalities being found. He was also examined by Dr. Gonzalez-Rothi on October 10, 1991, with no significant pulmonary disease being found. He was then diagnosed with a "sinobronchial syndrome". During this period of time, beginning in 1989, the Petitioner's attendance for his various evaluation periods was rated "conditional" and "below average" (in 1990-1991). In 1992, he received a score of "2" (out of 10) for below-average attendance. His absences in the 1992 evaluation period increased both in number of hours used and number of incidents. The Petitioner attributed his absences during his 1992 evaluation period to a recurring illness caused by his exposure to irritants in the work place. He acknowledged in his testimony, however, that the breathing mask and ventilation fans had helped prevent the problem but that he did not always avail himself of the protective devices on a timely basis to prevent symptoms. Rather, he only wore the masks intermittently after he felt symptomatic with respiratory irritation. Because of his continuing absences, the Respondent finally notified the Petitioner that he was being terminated, due to an inability to perform the essential functions of his job, rather than because of an unwillingness to do so. At the time the Petitioner was notified that his employment would be terminated, he had not ever informed the Respondent, or filed any claim, for an alleged disability. The Respondent was aware that he had a sensitivity to petroleum and automotive fumes, but with the ventilation fans and masks that it had provided, and with the air quality report stemming from the study, the Respondent was of the belief that the Petitioner was able to perform all of the duties of his job as an electrician. It only became convinced that he was unable to perform the essential functions of his job because of the frequency of absences, which failed to improve. An informal conference related to the termination was scheduled for September 17, 1992 and held on September 21, 1992. At this time, the Petitioner had not yet informed the Respondent of any alleged disability, as shown by Mr. Holder's testimony. Although the Petitioner claimed in his testimony that he informed the Respondent of his diagnosis of "chronic fatigue immune system dysfunction" and "idiosyncratic reaction to petroleum vapors" by purportedly giving Mr. Holder, his supervisor, a copy of Dr. Itzkowitz's diagnosis on one of the prescription forms, the credible testimony and evidence is that those diagnoses were not known to the Respondent nor discussed at the September 21, 1992 informal conference. The credible evidence and testimony shows that the Petitioner informed the Respondent that he had found a doctor who had diagnosed his problem and could cure him, but did not mention any handicap or the need for any accommodation at the time of that informal conference. In fact, the Petitioner's testimony in this regard is contradicted in a document he himself wrote, in evidence as Respondent's Exhibit 3. In this self-authored "termination summary," the Petitioner himself states that prior to that September 21, 1992 meeting with management, management personnel did not know he had found a doctor who had diagnosed his condition. The Petitioner attempts to correct this contradiction by testifying that his statement to that effect referred to "upper management" not knowing. This attempted correction is itself contradicted by the Petitioner's statement on direct examination that he believed Mr. Holder would give the prescription form document, supposedly containing his diagnosis, to Mr. Holder's superior, Mr. Williams. Therefore, if, indeed, he had given the diagnosis on the prescription form to Mr. Holder, and if his statement that he believed Mr. Holder would convey it to Mr. Williams and "upper management" is his true belief, how could he then testify that management did not know (unless he really knew he had never informed the Respondent at or before the September 21, 1992 meeting at all)? Indeed, that is found to be the case. The Respondent did not learn of Dr. Itzkowitz's diagnosis until after that conference. In testifying at hearing, the Petitioner presented a "diagnosis" of "chronic fatigue syndrome" and "hypertriglecemia" by presenting a prescription form of Dr. Itzkowitz as Petitioner's Exhibit 2. That form is dated August 24th. The Petitioner stated that he presented it to his supervisor, Mr. Holder, in August or early September of 1992, before his September 14, 1992 suspension. He stated that he believed Mr. Holder would give the document to his superior, Mr. Randy Williams. In contrast, the Respondent presented its Exhibit R-1, which is a copy of the same document on Dr. Itzkowitz's prescription form. This copy is undated. It had been included in a packet of medical information from the Petitioner to the Commission, which contained copies of all the medical information previously submitted to the Respondent by the Petitioner. When asked how the same document could be dated in one version and undated in another, the Petitioner stated that he had received an undated version from Dr. Itzkowitz and had returned it to her for signature, whereupon the date was put on it. Dr. Itzkowitz, in her testimony, however, contradicts this and stated that she "absolutely" dated the document when she originally wrote it. The Petitioner and Dr. Itzkowitz cannot both be right. One of the two is either giving untrue testimony or has a very faulty memory in this regard. In any event, the authenticity of the document containing the purported diagnosis and by which the Petitioner maintains he informed the Respondent of his diagnosis and handicap before his suspension, the September 21, 1992 meeting, and his termination, is called into serious question, as are the motives of the document originators, particularly the Petitioner. It is thus found that the Respondent was not informed of the Petitioner's diagnosis and handicap before the termination and that Mr. Holder's testimony in this regard to the effect that he did not know of any handicap, or the diagnosis upon which the Petitioner relies, before the termination, is accepted as more credible and worthy of belief under these circumstances. The Petitioner's Exhibit 2 is not deemed a credible document. Subsequent to the Petitioner's September 21, 1992 informal conference with the Respondent, Petitioner's physician, Dr. Itzkowitz, sent the Respondent a letter dated September 29, 1992, stating her diagnosis of fibromyalgia and idiosyncratic reaction to petroleum vapors. Dr. Itzkowitz's letter to the Respondent does not state that the Petitioner was able to perform the duties as a substation electrician. The doctor states that he would do well at his previous assignment (power plant electrician). The doctor's September 29, 1992 letter finds "significant, reversible respiratory illness" even though prior medical examinations found no physical abnormalities. The doctor also supplied a "certificate of examining physician", for purposes of the Petitioner's unemployment compensation claim, stating that the Petitioner was unable to work from August 14, 1992 through September 14, 1992. In fact, that was an inaccurate statement because the Petitioner worked all but about four of the days between those two dates. The Petitioner submitted this document to the Department of Labor, Division of Unemployment Compensation, without advising that entity that the information was incorrect and that, indeed, he had been working during most of that period of time. When Dr. Itzkowitz was questioned by the Respondent about the Petitioner's ability to work during that period, following exchange occurred: Do you have any recollection as to whether or not Mr. Hatcher was actually not working during all that period? When Mr. Hatcher came to me, he told me he was not allowed to work. Whether that meant that he was given time off, he was suspended, or what, I have no clue. 2. So, when you say unable to work, you are going from what Mr. Hatcher told you? a. Or what other information was given to me, and again this is only a partial record. I mean I don't have the full record here, and what I do have I can't read. (See Petitioner's Exhibit 1 in evidence) However, according to the information on Respondent's Exhibit 4, the Petitioner became Dr. Itzkowitz's patient on August 14, 1992; and on that same day, the doctor wrote the Petitioner a doctor's excuse to be off work indefinitely. The Petitioner, however, only stayed off work for four days. The Petitioner was asked in this regard: Q. Whose idea was it for you to go back to work, yours or hers? Dr. Itzkowitz being the her. A. Mine, I believe. Q. Did you check with her to see if that was approved? A. Yes. Consequently, when Dr. Itzkowitz filled out the form represented in Respondent's Exhibit 4 in evidence, she must have known that it was not really accurate that the Petitioner was unable to work from August 14, 1992 through September 14, 1992. She authorized the Petitioner to be off work and approved the Petitioner returning to work, if the Petitioner's testimony quoted last above is true, that is. In any event, it has not been credibly demonstrated that the Petitioner had to be off work due to any disability or illness from August 14, 1992 through September 14, 1992. Up to the date of his termination on October 7, 1992, the Petitioner had not actually alleged a disability nor had he requested accommodations for such. He was terminated based upon his inability to perform the essential functions of his job and not because of his handicap. He could not perform the essential functions of his job because he was not there often enough, due to his pattern of frequent absences. He is able to perform the duties of his electrician job without accommodation, aside from the presence of irritating fumes. The problem of the irritating fumes was already alleviated by the voluntary provision of ventilation fans and face masks provided to him by his employer. After his termination on October 7, 1992, the Petitioner appealed to the third level or step of the Respondent's internal grievance procedure and alleged there for the first time that he was handicapped by "chronic fatigue syndrome". He requested accommodations for that alleged disability. The accommodations he requested involved a proposed return to his previous position as a power plant electrician at the Deer Haven Power Plant or the setting up of a rotating assignment, as a full-time position, as well as the allowance of an air-conditioned truck to perform this new position. None of the accommodations requested involved the Petitioner performing the same job and position from which he was terminated. During the period of time the Petitioner was experiencing high absenteeism from 1989 through 1992, purportedly because of his aversion to the fumes, he was encouraged to apply for other positions with the City that would take him away from fumes. The Petitioner stated to the Respondent during his "step 3" grievance conference, after his initial termination, that he considered job openings in the Human Resources Department but had not talked to anyone with that entity or filed an application. Subsequent to his termination, he applied two or three times for a position as a power plant electrician, the position he held before becoming a substation electrician. He falsified his application, where he stated that he had never been discharged or terminated but he was still allowed to take the test for the open position. Instead of testing for the position, however, he called the Respondent before the day of the test and advised the Respondent that he could not take the test due to illness. This is somewhat curious. Since the test was scheduled for the afternoon, it would seem if he wanted to avoid the test due to illness on the day of the test, he would have called on the morning of the test, rather than the day before it was administered to state that he could not take the test due to illness. The Petitioner could have consulted a physician to find out if something could be done to allow him to take the test at a different time and he could have called and requested some accommodation in taking the test, if he believed he was an applicant with a handicap. However, The Petitioner did neither of these things. He simply said he could not take the test due to illness and apparently never sought any alternative time or means of taking the test to become qualified for the position. This calls into question whether the Petitioner genuinely has any interest in returning to work at the power plant. Moreover, in his Petition for Relief, the Petitioner requested that he be reinstated to his former position. Subsequent to his termination, however, he filed a claim for social security benefits. In order to be considered disabled for purposes of social security benefits, a person must be "unable to do any substantial, gainful work due to a medical condition which has lasted or is expected to last for at least 12 months in a row. The condition must be severe enough to keep a person from working not only in his or her usual job but in any other substantial, gainful work." See Respondent's Exhibit 8, in evidence. The Petitioner's testimony at hearing conflicts with his representation of his condition in Respohndent's Exhibit 8. It reveals, in effect, that he did not meet this definition for disability when he unsuccessfully applied for those benefits. He was, and is, not in accord with that definition of disability, is able to work as stated above and seeks reinstatement to his former position with the power plant. The Petitioner stated in his Petition for Relief that his handicap is not hypersensitivity to petroleum vapors but, rather, is a chronic fatigue illness of his immune system, causing immune dysfunction and resulting sensitivity to drugs, allergies, odors, and chemicals. The Petitioner also alleges that the chronic fatigue causes the sensitivity to vapors. At the hearing, he could not point out any single incident of chronic fatigue suffered by him, but which preceded his sensitivity to petroleum vapors, which occurred back in 1987. The medical evidence indicates that prior to his sensitivity to vapors, his health had been good. Fibromyalgia is a chronic condition causing people who suffer from it to have chronic aches most of the time. It is a syndrome, and sufferers often also have associated chronic fatigue. The two terms are synonomous for the same condition. The Petitioner's medical history does not reflect any history of severe or chronic aches. Nothing in his medical records reflects any history of the fatigue syndrome preceding his vapor sensitivity. His allegation that his vapor sensitivity is a symptom of two separate conditions, chronic fatigue and fibromyalgia, is not credible.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered dismissing the Petitioner's Petition for Relief in its entirety. DONE AND ENTERED this 31st day of August, 1995, in Tallahassee, Florida. P. MICHAEL RUFF, 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 1st day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-264 Petitioner's Proposed Findings of Fact 1-4. Accepted. Rejected, as contrary to the preponderant weight of the evidence and subordinate to the findings of fact of the Hearing Officer. Rejected, as irrelevant. Rejected, as immaterial. Accepted, but not materially dispositive. 9-11. Accepted, but not itself materially dispositive. 12. Accepted, in terms of describing Dr. Itzkowitz's testimony but not as to its purported material import. 13-15. Accepted, but not itself materially dispositive. 16. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accord with the preponderant weight of the evidence. 17-19. Accepted, but not materially dispositive. Respondent's Proposed Findings of Fact The Respondent's proposed findings of fact are accepted to the extent that they are not inconsistent with the findings of fact made by the Hearing Officer. To the extent that they differ from the Hearing Officer's findings of fact, they are rejected. Certain of the Respondent's proposed findings of fact are omitted as being irrelevant or unnecessary. COPIES FURNISHED: John M. Crotty, Esq. Post Office Drawer 2759 Gainesville, FL 32602 Ronald D. Combs, Esq. Assistant City Attorney II City of Gainesville-Law Department Post Office Box 1110 Gainesville, FL 32602 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esq. General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149
The Issue The issue is whether Palm Beach County's application for a permit to construct a domestic wastewater collection/transmission system in Palm Beach County should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Parties The County is a political subdivision of the State of Florida and is the permittee in this matter. The County Water Utilities Department currently serves approximately 425,000 persons, making it the largest utility provider in Palm Beach County and the third largest in the State of Florida. ITID is an independent water control special district created by special act of the legislature in 1957 and whose boundaries lie within the County. Portions of the transmission line to be constructed by the County will cross easements and roads, and pass under canals, owned by ITID. Petitioners Joseph Acqualotta, Michael D'Ordine, Ann Hawkins, and Lisa Lander all live in areas in close proximity to the proposed transmission line. Lander lives adjacent to the proposed route of the line along 40th Street North, while Acqualotta, D'Ordine, and Hawkins live adjacent to the proposed route along 140th Avenue North. Acqualotta, Hawkins (but not D'Ordine, who resides with Hawkins), and Lander own the property where they reside. Petitioners Troy and Tracey Lee (Case No. 05-2979), Lisa Gabler (Case No. 05- 2980), and Anthony and Veronica Daly (Case No. 05-2982) did not appear at the final hearing. The Department is an agency of the State of Florida authorized to administer the provisions of Part I of Chapter 403, Florida Statutes, and is the state agency charged with the responsibility of issuing domestic wastewater collection/ transmission permits under Section 403.087, Florida Statutes (2004).1 Background On December 15, 2004, the County filed its application with the Department for an individual permit to construct a domestic wastewater collection/transmission system (Transmission Line). The Transmission Line is one element of the County's Northern Region Utilities Improvement Project (Project) and will be approximately 41,050 feet long and comprised of approximately 32,350 linear feet of 20-inch force main and 18,700 linear feet of 30-inch force main (or nearly ten miles in length). A primary purpose of the Project is to provide water and wastewater service to the Village, a 1,900 acre parcel located in the unincorporated part of the County several miles west of the Florida Turnpike, south of State Road 710, and north of the Villages of Wellington and Royal Palm Beach. The Village will be the home of the Scripps Project and Campus. The Transmission Line will run from the southeastern corner of the Village south to Northlake Boulevard, then east to 140th Avenue North, then south along that roadway to 40th Street North, where it turns east until it interconnects with existing facilities. The wastewater will be collected in a regional pump station on the Scripps Project site, where it will be pumped through the Transmission Line to the East Central Plant, which will be the primary treatment facility. The East Central Plant is owned and operated by the City of West Palm Beach (City), but the County owns between forty and forty-five percent of the treatment capacity. Because the wastewater system is interconnected, the wastewater could also be treated at the County's Southern Regional Plant. Ultimately, the flow from the Scripps Project will be one or two million gallons per day. The Transmission Line is the only way that wastewater can be handled at the Scripps Project. A preliminary analysis by the Department and the South Florida Water Management District determined that on-site treatment was not feasible because of the environmentally sensitive nature of the area. The Scripps Project will include residential units, commercial entities, and institutional uses, such as medical clinics. Besides serving these customers, the Transmission Line will also serve other customers in the area. The County has already signed agreements with the Beeline Community Development District (which lies a few miles northwest of the Village) and the Village of Royal Palm Beach (which lies several miles south-southeast of the Village). At the time of the hearing, the County anticipated that it would also sign an agreement with Seacoast Utility Authority (whose service area is located just southeast of the Village) to transport wastewater through the Transmission Line. All of the treatment facilities have sufficient existing capacity to treat the estimated amount of domestic wastewater that will be generated by the Scripps Project and the other users that will discharge to the Line. The County commenced construction of the Transmission Line in May 2005 when the Department issued the Permit. On August 2, 2005, the County published the Department's Notice to issue the Permit, and once the Petitions were filed, the County stopped construction pending the outcome of this hearing. Approximately seventy percent of the Transmission Line is now completed. The Permit does not allow the Transmission Line to be used until it is pressure tested and certified complete. Upon completion, the County must receive an Approval to Place a Domestic Wastewater Collection/Transmission System into Operation from the Department. Such approval is given only after the County has given reasonable assurance that adequate transmission, treatment, and disposal is available in accordance with Department standards. See Fla. Admin. Code R. 62-604.700. On August 15, 2005, Petitions challenging the issuance of the Permit were filed by ITID and the individual Petitioners. ITID contends that the Transmission Line will convey not only domestic wastewater, but also industrial waste; that the County did not comply with all applicable technical standards and criteria required under the Department's rules; that the Project will be located on ITID's right-of-way, on which the County has no right to occupy; that the Project will be located within seventy-five feet from private drinking wells and does not provide an equivalent level of reliability and public health protection; and that the pipe material and pressure design is inappropriate for the Transmission Line's requirements. The individual Petitioners (who filed identical Petitions) are mainly concerned about the location of the Transmission Line in relation to their private drinking wells and property, the possibility of the pipe bursting or leaking once it becomes operational, and the restoration of their property to its original condition after construction is completed. As to the property claims by all Petitioners, the County plans to place the Transmission Line in property that it either owns or has an easement, in property that it is in the process of condemning, or in a public right of way. While the County acknowledges that it has already placed, and intends to place other portions of, the Transmission Line in easements that ITID says it has the exclusive right to use and for which a permit from ITID is required, the County alleges that it also has the right to use those easements without an ITID permit. The dispute between the County and ITID is the subject of a circuit court proceeding in Palm Beach County, and neither the Department nor DOAH has the authority to decide property interests. Petitioners' Objections Domestic wastewater and pretreatment The wastewater that will be generated by the Scripps Project is considered domestic wastewater; it will not include industrial wastewater. Waste that is industrial or non- domestic must be pretreated to protect the wastewater plant, collection system, and the health of system workers and the general public. The Department administers a pretreatment program through which it requires a public wastewater utility to police the entities that discharge to their wastewater plants. A central part of the pretreatment program is the local ordinance that gives legal authority to the utility to permit, inspect, and take enforcement action against industrial users who are part of the pretreatment program. The utility files an annual report with an industrial user survey, and the Department periodically inspects and audits local pretreatment programs to ensure they are being operated as intended. The system is not failsafe but is designed to ensure that potentially harmful wastes are rendered harmless before discharge. For example, the utility has the authority to immediately shut water off if a harmful discharge is occurring. Both the County and the City have pretreatment programs approved by the Department. The City has an ordinance that allows it to enforce the pretreatment standards for all entities that discharge to its wastewater system. The County Water Utilities Department has a written pretreatment manual, and the County has zoning restrictions on the discharge of harmful material to the wastewater system. It has also entered into an interlocal agreement under which it agrees to enforce the City ordinance. The County provides wastewater treatment to industrial, educational, and medical facilities, and it has never experienced a discharge from any of these facilities that has caused adverse health or environmental impacts. The County pretreatment program for the Southern Regional Facility was approved in 1997. The City pretreatment program for the East Central Regional Facility was approved in 1980. The Scripps Project must apply for a permit from the County and provide a baseline monitoring report, data on its flow, and information on the flow frequency and raw materials. Medical waste from the Scripps Project will be pretreated to render it safe before it is discharged into the Transmission Line. Transmission Line Design The Transmission Line was designed in accordance with the technical standards and criteria for wastewater transmission lines in Florida Administrative Code Rule 62- 604.300(5). That rule incorporates by reference a set of standards commonly known as the Ten State Standards, which contain several of the standards used in the design of this project. These standards are recommended, but are not mandatory, and a professional engineer should exercise his or her professional judgment in applying them in any particular case. The Transmission Line also meets the design standards promulgated by the America Water Works Association (AWWA). Specifically, the County used the AWWA C-905 design standard for sizing the polyvinyl chloride, or PVC, pipe used in the project. The County has received written certification from the manufacturer that the PVC pipe meets the standards in AWWA C-905. The Transmission Line is designed with stub-outs, which will allow for future connections without an interruption of service, and inline isolation valves, which allow the line to be shut down for maintenance. The Use of PVC Pipe There is no standard regulating the selection of PVC pipe material in the Department's rules. Instead, the Department relies on the certification of the applicant and the engineer's seal that the force main will be constructed to accepted engineering standards. The only specification applicable to the Transmission Line is the Ten State Standard, adopted and incorporated by reference in Florida Administrative Code Rule 62-604.300(5)(g). That document contains a general requirement that the material selected have a pressure rating sufficient to handle anticipated pressures in wastewater transmission lines. The Transmission Line will be constructed with PVC piping with a thickness of Dimension Ratio (DR) 32.5, which is the ratio of the outside diameter of the pipe to its thickness. Higher ratios mean thinner-walled pipes. This is not the first time the County has used 32.5 PVC piping for one of its projects, and other local governments in the State have used 32.5 or thinner pipe. The County is typically conservative in requiring thicker-walled pipe, because most transmission lines are built by developers, and the County is unable to design the entire line or control or inspect its installation. The specifications for wastewater transmission lines built in the County call for the use of DR 25 pipe. On this project, however, the County determined that thicker- walled pipe would have been an over-design of the system because the County controls the pump stations and oversees the installation; therefore, the Director of the Water Utilities Department has waived that requirement. The County considers the use of DR 32.5 PVC to be conservative. Although this pipe will be thinner than what is typically used in the County, it satisfies the Department's requirements. The Department has permitted many miles of similar PVC force mains in South Florida, and none have failed. PVC has benefits over other transmission line material, such as ductile iron. For example, PVC is more corrosion resistant. Wastewater generates hydrogen sulfide as it decomposes, which can form highly corrosive sulfuric acid. Some of the older transmission lines in the County that were made of ductile iron have corroded. PVC also has a superior ability to absorb surges, such as cyclical surges, than ductile iron. It is easier to install, and its interior flow characteristics are smoother than ductile iron or pre-stressed concrete pipe. Mr. Farabee, a professional engineer who testified on behalf of ITID, recommended a DR 14 pipe, which is thicker- walled than the DR 32.5 pipe used by the County. While he opined that the DR 32.5 pipe was too thin for the project, he could not definitively state that it would not pass the 150 per square inch (psi) pressure test. He also opined that the pipe is undersized because it will be unable to withstand the surge pressures during cleaning. The witness further testified that the pipe would be subject to much higher pressures than 150 psi, and therefore it was impossible to know whether the pipe would fail. In his opinion, this means the Department did not have reasonable assurance for the project. The County consulted with the Unibell PVC Pipe Association (Unibell) in the planning of this project. Unibell is a trade association that provides technical support for PVC pipe manufacturers. Robert Walker, a registered professional engineer and Unibell's executive director who testified on behalf of the County, disagreed with Mr. Farabee's conclusions concerning the adequacy of the PVC pipe in this project. The AWWA C-905 standard uses a safety factor of two, which means the pipes are tested at pressures that are at least twice their stated design strength. Mr. Walker explained the different standards that apply to PVC pipe. DR 32.5 pipe, which is used in this project, has a minimum interior pressure rating of 125 pounds per square psi. Each pipe section is tested before it is shipped at 250 psi, and the minimum burst pressure for the material is in excess of 400 psi. The pipe also meets a 1000- hour test at 270 psi. In light of these standards and testing, the pipe will pass the two-hour 150 psi test required by the Department. Mr. Farabee expressed some concern that the PVC pipe would be more prone to breakage than ductile iron or thicker PVC. However, the PVC pipe standards provide that the pipe can be flattened at sixty percent without splitting, cracking, or breaking. At shallow depths on dirt roads, ovalation, which occurs when PVC is flattened through pressure, will initially occur, but over time the soil around the pipe will become compacted and result in re-rounding of the pipe. The joints are three times stiffer than the body of the pipe, which will protect the joint from excessive ovalation and leaking, and the use of mechanical restrained joints will further strengthen the joints. There has been no joint leakage in Florida due to deflection of the joints. Finally, there have been no failures of PVC pipe caused by three-feet of fill, which is the depth to which the Transmission Line pipe will be buried. To further protect the pipe, the County optimized its pumping system to avoid cyclical surges by using variable frequency drive pumps that gradually increase and decrease speed rather than just turning on or off. In addition, the pump stations are fed by two power lines that come from different directions and emergency generators, which should lessen the chances of harmful surging. Testing the Installation The anticipated pressures in the Transmission Line will likely be about 50 psi. After installation, the Line will be pressure tested at 150 psi for two hours, which is sufficient to provide the Department with reasonable assurance that the Line will hold pressure and will not leak. Also, the County contract inspectors are on the construction site daily. If problems with the installation arise later, the County has committed to promptly fix the problem, even if it means digging up the line. During the hearing, ITID asserted that the Uniform Policies and Procedure Manual standards, which the County has adopted for use by developers when constructing wastewater transmission lines, should be applied to the County as well. This standard, which requires pressure testing to 200 psi for PVC pipes larger than 24 inches, has not been adopted by the Department and is not an applicable Department permitting standard. Even if it did apply, the Transmission Line would meet this criterion because it is designed to withstand 270 psi for at least 1,000 hours. Mr. Farabee believed that the entire Transmission Line would be pressure tested after the construction was complete, which would require digging up sections of the pipe to install bulkheads. However, this assessment of the County's testing program is incorrect. Leisha Pica, Deputy Director of the Water Utilities Department, developed the schedule for the project, helped develop the phasing of the work and budget, and oversaw the technical aspects. She stated that the County has successfully tested approximately fifty percent of the line that was already installed at 150 psi for two hours and not a single section of the line failed the test. Compaction The County has stringent backfilling and compaction requirements, which are sufficient to ensure the pipe will be properly installed and that there will be adequate compaction of the fill material. The County plans and specifications provide that compaction must be to ninety-five percent of the American Association of State Highway and Transportation Officials (AASHTO) standards for non-paved surfaces and one hundred percent of AASHTO standards for paved surfaces. Even ITID's expert agreed that the compaction specifications are sufficient. Mr. Farabee contended, however, that even though the standards are stringent, the County cannot properly test the installation for compliance with the standards. Mr. Farabee believed that testing of the backfill would be done after all of the construction was complete. In that case, he did not see how the testing could be done without digging many holes to check for the density of the backfill. These assumptions, however, are incorrect. The evidence shows that a total of two hundred sixty-four compaction tests have already been done on the portion of the Transmission Line that was completed. No part of the installation failed the tests. The County has an inspector who observes the installation and pressure tests. The compaction was tested at every driveway and major roadway, as well as every five hundred feet along the route. While Lander and D'Ordine pointed out at hearing that no compaction tests have been performed on the dirt roads which run adjacent to their property and on which construction has taken place, the Department requires that, before the work is certified as complete, non-paved roads must be compacted in accordance with AASHTO standards in order to assure that there is adequate compaction of the fill material. The Sufficiency of the Application When an application for an individual transmission/ collection line permit is filed with the Department, the applicant certifies that the design of the pipeline complies with the Department's standards. However, not all of the details of the construction will be included in the permit application. The Department relies on the design engineer to certify that the materials used are appropriate. The application form is also signed and sealed by a professional engineer registered in the State of Florida. All plans submitted by the County, including the original, modifications, and final version, were certified by professional engineers registered in the State of Florida. After receiving the application, the Department requested additional information before issuing the permit, and the County provided all requested information. The original construction plans that were submitted with the application were changed in response to the Department's requests for additional information. The Permit issued by the Department indicates the Transmission Line would be constructed with ductile iron pipe, but this was a typographical error. ITID maintains that all of the technical specifications for the project must be included in the application, and because no separate engineering report was prepared by the County with the application, the County did not meet that standard. While the County did not submit an engineering report, it did submit sufficient data to provide reasonable assurance that the project will comply will all applicable rules of the Department. As a part of its application package, the County submitted construction plans, which contain the specifications required by the Department. Also, the general notes included in the construction drawings specify the use of restrained joints where appropriate, the selection of pipe material, the pressure testing of the Transmission Line, and other engineering requirements. In addition, the plans contain numerous other conditions, which are also specifications sufficient to fulfill the Department's requirements. Finally, further explanation and clarification of the technical aspects of the application was given by the County at the final hearing. At the same time, the Department engineer who oversaw the permitting of this project, testified that a detailed engineering report was not necessary. This engineer has extensive experience in permitting transmission lines for the Department and has worked on over five hundred permits for wastewater transmission and collection systems. The undersigned has accepted his testimony that in a relatively straightforward permit such as this, the application and attachments themselves can function as a sufficient engineering evaluation. This is especially true here since the County is seeking only approval of a pipeline project, which would not authorize the receipt of wastewater flow unless other wastewater facilities are permitted. Impacts on Public and Private Drinking Water Wells As part of the design of the Transmission Line, the County located public and private drinking water wells in the area of the line. County personnel walked the route of the Transmission Line and looked for private wells and researched the site plans for all of the properties along the route. No public wells were found within one-hundred feet of the Transmission Line route, but they did find seventeen private wells that are within seventy-five feet of the line. None of the Petitioners have private wells that are within seventy- five feet of the line. While Petitioners D'Ordine and Hawkins initially contended that the well on Hawkins' property was within seventy-five feet of the Transmission Line, at hearing Mr. D'Ordine admitted that he "misread the plans and referred to the wrong property." In order to protect the private drinking water wells, Florida Administrative Code Rule 62-604.400(1)(b) requires that the County provide an extra level of protection for the wells that are within seventy-five feet of the Transmission Line. The County will provide that extra level of protection by installing restrained joints that will restrain the joints between the pipe sections. The restrained joints are epoxy-coated mechanical devices that reduce the tendency for the pipes to separate under pressure. The County has used these restrained joints on its potable water and wastewater lines in other areas of the County and has never experienced problems with the devices. The restrained joints will provide reliable protection of the private wells within seventy-five feet of the Transmission Line. The Department is unaware of any instances where restrained joints have failed in South Florida. If more wells are discovered that are within seventy-five feet of the Transmission Line, then the County will excavate the Line and install restrained joints. Minimum Separation Distances The County has complied with all applicable pipe separation requirements in the installation of the Transmission Line. More specifically, it is not closer than six feet horizontally from any water main and does not intersect or cross any reclaimed water lines. See Fla. Admin. Code R. 62-555.314(1)(a). It will be at least twelve inches below any water main or culvert that it crosses. See Fla. Admin. Code R. 62-555.314(2)(a). Finally, it will be a minimum of twelve inches below any culverts that it crosses. (However, the Department has no separation requirement for culverts crossed by the Transmission Line.) h. The M-Canal Crossing The Transmission Line must cross the M-canal, which runs in an east-west direction approximately midway between 40th Street North and Northlake Boulevard. The original design called for the Transmission Line to cross above the water, but the City and the Department suggested that it be located below the canal to eliminate the chance that the pipe could leak wastewater into the canal. In response to that suggestion, the County redesigned the crossing so that a 24- inch high density polyethylene pipe in a 48-inch casing will be installed fifteen feet below the design bottom of the canal. The polyethylene is fusion-welded, which eliminates joints, and is isolated with a valve on either side of the canal. Appropriate warning signs will be installed. See Fla. Admin. Code R. 62-604.400(2)(k)2.-5. The depth of the subaqueous line and the use of the slip line, or casing, exceeds the Department's minimum standards. See Fla. Admin. Code R. 62-604.400(2)(k)1. i. Flushing Protocol Section 48.1 of the Ten State Standard recommends that wastewater transmission lines maintain a velocity of two feet per second. When the Transmission Line becomes operational, it will not have sufficient flow to flush (or clean) accumulated solids from the lines at the recommended two feet per second velocities. (Sufficient flow will not occur until other customers connect to the Transmission Line during the first one to three years of operation.) Accumulated solids produce gases and odors that could create a problem at the treatment plant and might leak out of the manhole covers. To address this potential problem, Specific Condition 9 of the Permit requires the County to flush the lines periodically. Pursuant to that Condition, the County plans to flush the Transmission Line with additional water which will raise the velocity to three or four feet per second, so that the accumulated solids will be flushed. The water will be supplied by large portable tanks that will be temporarily set up at several locations along the Line. During the purging of the Line, sewage will collect in the pump stations until the purge is finished. There is sufficient capacity in the pump stations to contain the wastewater. In addition, the County will use a cleansing tool known as a pig, which is like a foam bullet that scrapes the sides of the pipe as it is pushed through the line. This protocol will be sufficient to keep the Line clean. ITID asserts that the County's plan for flushing is inadequate, because it does not provide enough water for long enough to flush both the 20-inch and 30-inch lines. Mr. Farabee calculated that the County would need almost twice the proposed volume, or almost six million gallons, to adequately flush the lines. ITID's analysis of the flushing protocol is flawed, however, because it assumes a constant flow in all segments of the pipe, which is not practical. In order to maintain the flushing velocity of three feet per second, the County will introduce water into the Transmission Line at three separate locations, resulting in a more constant flow velocity throughout the Transmission Line. In this way, it can maintain the proper velocity as the lines transition from a 20-inch to 30-inch to 36-inch pipe. The County has flushed other lines in the past using this protocol and has had no problems. This flushing protocol would only be in effect from one to three years. The County estimates that the necessary volumes to maintain a two-feet-per-second velocity in the 20- inch line would be reached in about one year. The 30-inch line should have sufficient flows sometime in 2008. These estimates are based on the signed agreements the County has with other utilities in the area to take their flows into the Transmission Line. Because of these safeguards, the Transmission Line will not accumulate solids that will cause undesirable impacts while flow is less than two feet per second. Other Requirements The construction and operation of the Transmission Line will not result in the release or disposal of sewage or residuals without providing proper treatment. It will not violate the odor prohibition in Florida Administrative Code Rule 62-600.400(2)(a). It will not result in a cross- connection as defined in Florida Administrative Code Rule 62- 550.200. The construction or operation of the Transmission Line will not result in the introduction of stormwater into the Line, and its operation will not result in the acceptance of non-domestic wastewater that has not been properly pretreated. If constructed and permitted, the Transmission Line will be operated so as to provide uninterrupted service and will be maintained so as to function as intended. The record drawings will be available at the Department's district office and to the County operation and maintenance personnel. Finally, concerns by the individual Petitioners that the County may not restore their property to its original condition after construction is completed are beyond the scope of this proceeding. At the hearing, however, the Deputy Director of the Water Utilities Department represented that the County would cooperate with the individual property owners to assure that these concerns are fully addressed. Reasonable Assurance The County has provided the Department with reasonable assurance, based on plans, test results, installation of equipment, and other information that the construction and installation of the Transmission Line will not discharge, emit, or cause pollution in contravention of the Department's standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying all Petitions and issuing Permit No. 0048923-017-DWC. DONE AND ENTERED this 18th day of October, 2005, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2005.
The Issue The principal issue to be resolved in this proceeding concerns whether certification should be issued to Florida Power Corporation (FPC) for approval to operate a nominal 269 megawatt (MW) combined-cycle generating unit located at FPC's Tiger Bay Cogeneration Facility west of Ft. Meade, Florida, in accordance with the provisions of Section 403.501(2), Florida Statutes. The second issue to be resolved in this consolidated proceeding is whether the site of the Tiger Bay Cogeneration Facility is in compliance and consistent with the applicable land use plans and zoning ordinances of Polk County, pursuant to Section 403.508(2), Florida Statutes.
Findings Of Fact Florida Power Corporation is an investor-owned utility that provides electric service to more than 1.2 million customers in its Florida service area. Tiger Bay Limited Partnership completed the construction of the Tiger Bay Cogeneration Facility in late 1994. FPC entered into a power purchase agreement to purchase the power provided by the Tiger Bay Facility. On January 20, 1997, FPC agreed to purchase the Tiger Bay Facility from the Tiger Bay Limited Partnership. FPC now operates the Tiger Bay Plant as one of its electric generating facilities. The Tiger Bay Cogeneration Facility is an existing combined-cycle electrical generating plant which has been in operation since January 1995. The Facility consists of a combustion turbine (CT) and a steam turbine generator, that is currently limited to generating no more than 74.9 megawatts (MW) of electricity. The steam turbine has been specifically operated to produce no more than 74.9 MW. Therefore, the Plant was not subject to the Power Plant Siting Act. However, FPC has determined that the generating capacity of the steam turbine is nominally 10-15 MW greater than the capacity currently being used at the Plant. The Tiger Bay Facility is currently operating under separate environmental and other permits and approvals issued by FDEP, the Southwest Florida Water Management District (SWFWMD), Polk County and other agencies. The Tiger Bay Facility has been operated in compliance with those permits and approval, and no violations of those permits have occurred since the Plant began operation. By this certification application, FPC is seeking to consolidate the current permits and approvals for the Tiger Bay Facility into a single PPSA certification to authorize the use of the Plant's incremental steam-electric generating capacity. FPC proposes to utilize the additional steam-electric generating capacity in the steam turbine which would increase the generating capacity above the 75 MW threshold of the Power Plant Siting Act. Therefore, certification under the PPSA is required before FPC can obtain the additional electricity from the Plant. No physical changes to the facility or new construction are required to obtain the additional electricity. Only a minor operational change in the steam turbine controls is required to produce the incremental electricity through more efficient utilization of the steam. The Tiger Bay Facility is located on a 6.2 acre tract of land that is leased from the U. S. Agri-Chemical (USAC), Ft. Meade Chemical Complex. The lease extends until 2025 and may be renewed for an additional 25 years. The project's site boundaries will not be expanded to obtain the additional electrical generation. The site is located in southwest Polk County, Florida, approximately 3 miles west of Ft. Meade. The site is bounded on the north by S. R. 630. The project site is in the unincorporated area of Polk County. Ft. Meade is the only local government within a 5-mile radius of the Facility. The area surrounding the Tiger Bay Facility has been dominated by phosphate mining operations. Most of the land within a 5-mile radius of the Plant consists of active phosphate mining, reclaimed mine land, and lands in various stages of reclamation. Other land uses in the area include pasture land and citrus groves, along with limited residential, commercial and industrial uses. The nearest residence is over one mile from the project site. Land use in this area of Polk County is in transition as the phosphate industry completes mining phosphate deposits in the County. The Tiger Bay Plant site contains no significant environmental features. No wetlands, trees, shrubs or listed species or habitats exist within the site. Site vegetation consisted of ruderal and grassy communities prior to development for this project. No jurisdictional natural wetlands exist on the project site. No archaeological or historical sites were found on the project site when developed for this facility. The Tiger Bay Cogeneration Facility consists of one combustion turbine and electric generating unit, and one heat recovery steam generator (HRSG) and one steam turbine generator. In the CT, compressed air and fuel are ignited to provide energy to the air as it passes through the expansion section of the CT. The CT drives an electrical generator which has a nominal electrical output of 184 MS. Exhaust gases from the combustion turbine are then routed to the HRSG where water is boiled into steam. The steam from the HRSG powers a steam turbine which drives a second electrical generator, which will now generate 85.5 MW (nominal) of electricity. As a Cogeneration facility, the Tiger Bay Plant also exports up to 75,000 pounds per hour of low-pressure steam to the adjacent USAC Plant for use in its processes. This steam is extracted from the steam turbine part way through the steam electric generation process. The combined cycle facility is fired primarily with natural gas, with fuel oil as a backup fuel. Natural gas is supplied by a pipeline connected to the Florida Gas Transmission System. Oil will be stored in an onsite tank. The increase in steam generating capacity will be obtained by more efficient use of the steam that is already being produced in the HRSG. Currently, the steam is not fully utilized because its pressure is throttled by an internal control valve. To obtain the additional steam-generated electricity, the controls on this valve will be adjusted to increase the volume and pressure of the steam passing through the steam turbine. This increased steam pressure will generate additional electricity in the steam turbine generator. However, no physical modifications to the Tiger Bay Facility are required to obtain this additional steam generating capacity. Further, no increase in fuel use is required to obtain this additional capacity, and no increase in air emissions will result. All of the air emissions form the Facility are associated with the operation of the combustion turbine, which operates independently from the heat recovery steam generator. The main plant cooling-system begins with a steam condenser which cools the steam exhausted from the steam turbine. Heated cooling water is circulated to the on-site cooling tower where it is sprayed within the cooling tower to release the heat to the atmosphere. Fans at the top of the tower pull air into the tower in the opposite direction to the falling water. Cooled water collects in the bottom of the cooling tower and its returned back to the steam condenser. Approximately five percent of the cooling-water is lost in the cooling tower through evaporation and through drift, or water entrained in the air flowing through the tower. Two deep wells on site supply the makeup water for the cooling-water system. The other on-site water use is the potable water system, permitted for up to 1,000 gallons per day. Water is piped from an on-site well, filtered, and treated in a chlorinator before being distributed for use in the Plant. Wastewaters from the Plant consist of blowdown, or water withdrawn from the cooling tower and the heat recovery steam generator. This blowdown is necessary to prevent a buildup of dissolved solids in the waters from scaling in the circulating water system. Process wastewater and stormwater that contacts industrial processes are collected and recycled or routed to the adjacent USAC Plant where the wastewater is used in the phosphate production process. The Tiger Bay Facility has no off-site discharges of wastewater to either surface water or groundwater. The Facility also includes a back-up zero liquid discharge unit, which treats cooling-tower blowdown and process waters to remove the solids. The recovered high-quality water is recycled back into the Plant's process water stream. Domestic wastewater is treated and disposed on site through a septic tank system. Solid wastes that are generated at the Plant are typical of those associated with a light industrial facility. These wastes are re-cycled or re-used as much as possible. Solid wastes not re-cycled are picked up and disposed of in the Polk County landfill. The back-up zero liquid discharge system, when operational, produces a filter cake as result of drying the wastewater discharge. The non-hazardous material is also sent to the Polk County landfill for disposal. Electricity generated at the Plant is distributed from an on-site switchyard into the Florida Power Corporation transmission system. No changes to this transmission system are required for the additional electricity to be produced. Project Impacts: The Tiger Bay site is located in an area classified by FDEP as in "attainment" of all criteria air pollutants. The area is designated as Class II from a "prevention of significant deterioration" standpoint. The nearest Class I air-quality area is over 100 km to the northwest of the project site. The Tiger Bay Cogeneration Facility operates under an existing FDEP-issued Prevention of Significant Deterioration (PSD) permit. Nitrogen oxide (NOX) emissions are controlled with the use of low NOX burners when using natural gas, and with steam or water injection when firing oil. Particulate matter (PM) emissions are controlled through the use of clean fuels and combustion controls. Carbon monoxide and volatile organic compound emissions are also controlled through good combustion practices. Emissions of sulfur dioxide and metals, such as lead, mercury, beryllium and arsenic, are controlled through the use of clean fuels. PSD increments and ambient air-quality standards will be protected when the facility is being operated. The operation of the Plant at its increased steam generating capacity of 85.5 MW will not require any changes or additions to the facility. No increase in environmental impacts will result from the 10-15 MW (nominal) increase in steam generating capacity. The Plant will continue to operate within the currently permitted quantities of water for the facility, under the existing SWFWMD consumptive use permit. The project will not result in an increase in project- related traffic. The project also will not result in an increase in noise levels at the Plant site. The benefits of the project are that additional electricity is obtained without increasing either fuel use or environmental impacts from the Tiger Bay Plant. These "free megawatts" result from enhancing the efficiency of the Tiger Bay Plant, resulting in savings to FPC's customers. The project also conserves energy by using the additional existing generating capacity without increasing fuel use in the Plant. Consistency with Local Land-Use Plans and Zoning Ordinances: The Tiger Bay Cogeneration Facility is located in a future land-use classification of "PM" or phosphate mining on the Polk County future land-use map. Electrical power plants like the Tiger Bay Cogeneration Facility are permitted in that land- use category. The project site is zoned by Polk County as "RC" or rural conservation, which allows electric power generating facilities as a conditional use in that zoning district. Polk County issued a conditional use permit and site approval for the Tiger Bay Cogeneration Facility on November 20, 1992. The continued operation of the Tiger Bay Plant with its increased electrical output under site certification will be consistent with the land-use and zoning designations for the project site as well as the conditional use permit since there will be no physical changes made to the facility. The Polk County development approvals for the Tiger Bay Facility were consistent with the Comprehensive Plan in effect at the time the approvals were granted. Further amendments to the Polk County Comprehensive Plan are not retroactively applied to projects once they have received necessary development approvals. Agency Positions and Stipulations: The DEP, the Florida Department of Community Affairs (DCA), the Florida Game and Freshwater Fish Commission (FG&FWFC), the Southwest Florida Water Management District (SWFWMD), the Florida Department of Transportation (FDOT), and Polk County each prepared written reports on the Project, and all recommended approval of the Tiger Bay Cogeneration Project. The DCA determined the project, if certified, would be consistent and on balance with the state comprehensive plan. In its report, Polk County indicated that no changes to zoning at the project site were required as a result of certification of the project. Polk County also determined that the Facility would still meet the conditions of the County's original conditional use permit for the project and no further actions would be required by the Applicant. The Central Florida Regional Planning Council did not submit a report to the Department of Environmental Protection as part of its review of the project. No state, regional or local agency has recommended denial of certification. The recommended Conditions of Certification incorporate the existing permits for the Facility.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the Evidence of Record, and the pleadings and argument of the parties, it is, RECOMMENDED that: Florida Power Corporation be granted final certification, pursuant to Chapter 403, Part II, Florida Statutes, for the location and continued operation of the existing Tiger Bay Cogeneration Facility and its increased steam- electric generation capacity, as proposed in the Site Certification Application, and subject to the Conditions of Certification attached hereto; and The Siting Board find that the site of the Tiger Bay Cogeneration Facility, as described in the Site Certification Application, is consistent and in compliance with the existing land-use plans and zoning ordinances of Polk County, as they apply to the site, pursuant to Section 403.508(2), Florida Statutes. DONE AND ENTERED this 30th day of April, 1998, 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 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1998. COPIES FURNISHED: Scott A. Goorland, Esquire Department of Environmental Protection Twin Tower Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Doug Roberts, Esquire Hopping, Green, Sams and Smith, P.A. Post Office Box 6526 Tallahassee, Florida 32314-6526 Charles T. Collette, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Robert V. Elias, Esquire Division of Legal Services Florida Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 James V. Antista, Esquire Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Andrew S. Grayson, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Suite 315 Tallahassee, Florida 32399-2100 Earl Peterson, Director Division of Forestry Department of Agriculture and Consumer Services 3125 Conner Boulevard, C-19 Tallahassee, Florida 32399-1650 Hamilton Oven, Administrator Office of Siting Coordination Department of Environmental Protection 2600 Blair Stone Boulevard Mail Station 48 Tallahassee, Florida 32399-2400 Brian Sodt Central Florida Regional Planning Council 555 East Church Street Bartow, Florida 33830 Mary Miller, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 George W. Perry, Director Director of Historical Resources Archives and History R. A. Gray Building 500 South Bronough Street Tallahassee, Florida 32399 Pepe Menendez, P.E. Department of Health Environmental Health Services 1317 Winewood Boulevard Tallahassee, Florida 32399-0070 Rich Tshantz, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Merle Bishop Polk County Florida Post Office Box 60 Bartow, Florida 33830 W. Jeffrey Pardue Florida Power Corporation Post Office Box 14042 MAC H2G St. Petersburg, Florida 33733 Doug Roberts, Esquire Hopping, Green, Sams and Smith, P.A. Post Office Box 6526 Tallahassee, Florida 32314-6526
Findings Of Fact The findings of fact set out in paragraph 1 of the Recommended Order are based upon Hearing Officer's exhibit 1 and FPC exhibits 6, 7, and 8. The findings of fact set out in paragraph 2 are based upon a stipulation of the parties which is recorded in the transcript of the formal hearing, Volume III, pp. 181-182. The findings of fact set out in paragraph 3 are based upon the testimony of the witnesses Schaefer and Guillet; and upon Hearing Officer's exhibit 1 and FPC exhibits 1 through 8, and 69. The findings of fact set out in paragraph 4 are based upon the testimony of the witnesses Greene, Schaefer, and Conner; and upon Hearing Officer's exhibit 1, and FPC exhibits 1, 5, 14, 47, and 48. The findings of fact set out in paragraph 5 are based upon the testimony of the witnesses Greene and Conner; and upon Hearing Officer's exhibit 1, and FPC exhibits 1, 5, 47, 48, and 49. The findings of fact set out in paragraph 6 are based upon the testimony of the witnesses Schaefer, Greene, Conner, and Voigts; and upon Hearing Officer's exhibit 1 and FPC exhibits 1, 5, 12, 35 through 45, 59, and 61. The findings of fact set out in paragraph 7 are based upon the testimony of the witness Conner; and upon Hearing Officer's exhibit 1, and FPC exhibits 14,35, and 39 through 43. The findings of fact set out in paragraph 8 are based upon the testimony of the witnesses Schaefer, Greene, Marin, Voigts, Guillet, Harp, Lokey, Gilmartin, and Watson; upon the testimony of public witnesses Wagoner, Velden, and Dykes; and upon Hearing Officer's exhibit 1 and FPC exhibits 1, 5, 14, 16, 22, 27, 28, 32 through 34, 39 through 43, 45, 46, 52, 61, and Public exhibit 1. The findings of fact set out in paragraph 9 are based upon the testimony of the witnesses Schaefer, Greene, Marin, Voigts, Guillet, Harp, Lokey, Gilmartin, and Watson; upon the testimony of public witnesses Wagoner, Velden, and Dykes; and upon Hearing Officer's exhibit 1 and FPC exhibits 1, 5, 14, 16, 22, 27, 28, 32 through 34, 39 through 43, 45, 46, 52, 61, and Public exhibit 1. The findings of fact set out in paragraph 10 are based upon the testimony of the witnesses Marin, Brown, Guillet, Lokey, Gilmartin and Watson; and upon Hearing Officer's exhibit 1 and FPC exhibit 16. The findings of fact set out in paragraph 11 are based upon the testimony of the witnesses Brown, Cartensen, and Miller; and upon FPC exhibits 49, 50, 51, and 65. The findings of fact set out in paragraph 12 are based upon the testimony of the witness Brown. The findings of fact set out in paragraph 13 are based upon the testimony of the witnesses Brown and Harp; and upon FPC exhibit 52. The findings of fact set out in paragraph 14 are based upon the testimony of the witness Conner. The findings of fact set out in paragraph 15 are based upon the testimony of the witness Miller; and upon FPC exhibits 51 and 65. The findings of fact set out in paragraph 16 are based upon the testimony of the witness Schaefer; and upon FPC exhibits 9, 10, 11, and 69. The findings of fact set out in paragraph 17 are based upon the testimony of the witness Koszulinski and Guillet; and upon Hearing Officer's exhibit 1, and FPC exhibits 70 through 73. ENTERED THIS 2nd day of June, 1982, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 2nd day of June, 1982.
Findings Of Fact On February 4, 2008, the Department filed a two-count Administrative Complaint against Boetzel, alleging that Boetzel violated sections 481.323(1) and 489.531(1), Florida Statutes (2006), in that Boetzel engaged in the unlicensed practice of landscape architecture and electrical contracting. The following pertinent facts were alleged in the Administrative Complaint: At no time material hereto were Respondents the holders of valid licenses to engage in the practice of landscape architecture pursuant to Chapter 481, Part II, Florida Statutes. At no material time hereto were Respondents the holders of valid licenses to engage in the practice of electrical contracting pursuant to Chapter 489, Part II, Florida Statutes. At all times material hereto, Respondent TODD P. BOETZEL was the Registered Agent and Officer/Director/President of Respondent BOETZEL LANDSCAPING, INC. Respondents' last known address is 2534 22nd Avenue North, St. Petersburg, Florida 33713. On or about June 5, 2007 Respondents submitted an invoice to Southern Cross Construction for site preparation, including grading, placement of plantings, and installation of an irrigation system at a construction site in Reddington [sic] Beach, Florida. The aforementioned invoice also included electrical contracting work. On or about June 19, 2007 Respondent Todd P. Boetzel signed a sworn Claim of Lien indicating that he provided "Landscaping, Sod, and Irrigation" for the aforementioned project. Respondent was paid a deposit of $8,000.00 by check number 1274 on May 25, 2007. Boetzel requested an administrative hearing, and the case was referred to DOAH. A final hearing was held, and the Administrative Law Judge entered a Recommended Order, recommending that a final order be entered finding that Boetzel did not engage in the unlicensed practice of landscape architecture and electrical contracting. On October 28, 2008, the Department filed a Final Order, which adopted the Findings of Fact and Conclusions of Law in the Recommended Order and found that Boetzel was not guilty of engaging in the unlicensed practice of landscape architecture and electrical contracting. On November 17, 2008, Boetzel filed a Verified Petition and Affidavit for Attorney's Fees and Costs under Florida Statutes § 57.111 (2006). The petition included an Affidavit for Attorney's Fees executed by the attorney for Boetzel, stating that 102.2 hours of attorney time had been rendered in the case and that the usual rate was $300.00 per hour. The total amount claimed for attorney's fees is $30,660.00. The petition also included a Bill of Costs executed by Todd P. Boetzel, which included costs for services of process and transcripts. The total amount claimed for costs is $1,327.30. On December 8, 2008, the Department filed Respondent's Answer to Initial Order. The answer stated: The Department does not dispute the reasonableness of the fees and costs submitted by Petitioner. The Department does not dispute that Petitioner [sic] were a prevailing party in the underlying proceeding. The Department does not dispute that Petitioner [sic] are a small business party. The Department does not dispute that it was non-nominal party at the underlying proceeding. The Department knows of no circumstances or facts that would make an award of attorney's fees to Petitioner unjust in the present case. * * * The Department alleges that its actions in prosecuting this matter were substantially justified, thereby negating Petitioners' entitlement to attorneys' fees. The only disputed issue in the instant case is whether the Department was substantially justified in issuing the Administrative Complaint. In February 2008, Laura P. Gaffney (Ms. Gaffney) was the chief attorney in the unlicensed activity section of the Department. Her primary responsibility was to review incoming cases and determine whether the cases should be closed out, whether additional investigation was needed, or whether charges should be filed in the form of an administrative complaint. Ms. Gaffney had been delegated the authority by the Secretary of the Department to make probable cause findings on cases dealing with unlicensed activity.2/ In making her determination of whether there was probable cause to file an administrative complaint, Ms. Gaffney considered the investigative report dated December 29, 2007, and a supplemental report dated January 19, 2008. The investigative file included a complaint filed by Steve Petrozak (Mr. Petrozak), a licensed general contractor and manager of Southern Cross Construction, alleging that Boetzel had engaged in the unlicensed practice of landscape architecture. The complaint described the work performed by Boetzel as "landscaping, lawn irrigation, sod." The complaint filed by Mr. Petrozak included an invoice from Boetzel for the work performed. The invoice was for the planting of various plants, site preparation, irrigation, installation of pine bark, and lighting. The site preparation was described in the invoice as follows: "Sodcut areas to be planted, remove unwanted vegetation and haul away, prepare areas for planting, stump grind. Grade entire property and create swale down left side." The lighting work was described in the invoice as follows: "Install Low Voltage Halogen Lights, uplight 3 foxtail palms, 1 adonidia palm and 2 lights on mailbox, with one automatic transformer. Additional transformer." The investigative file also included a letter dated November 7, 2007, from Gregory Elliott, an attorney representing Boetzel. Mr. Elliott stated that Boetzel was not in the business of landscape architecture, but was in the business of selling and installing landscape materials for residential or commercial use. Mr. Elliott described Boetzel as a laborer or materialman working under the general contractor. Ms. Gaffney felt that the "single most important part of this investigative report" was the sworn claim of lien filed by Boetzel, which stated that Boetzel had furnished "labor, services and material consisting of Landscaping, Sod, and Irrigation" at the property situated at 511 161st Avenue, Redington Beach, Florida. Ms. Gaffney assumed that because the work performed by Boetzel included grading the property and creating a swale that Boetzel had set the grades for the grading and had designed the swale. The investigative report does not contain sufficient information to make that determination. Such information could easily have been obtained from Mr. Petrozak, but the investigator did not get the information nor did Ms. Gaffney request the information. Ms. Gaffney assumed that because transformers were being provided and that halogen lights were being installed that Boetzel hardwired the installation of the lights and transformers. She assumed that because lights were being placed near a mailbox that the work would entail more than plugging in the lights. The information contained in the investigation file is insufficient to supports such assumptions. The investigator could have obtained the necessary information from Mr. Petrozak, but did not do so nor did Ms. Gaffney request the information.
Findings Of Fact Procedural Matters The Public Service Commission issued its Order Approving Electrical Transmission Line on October 30, 1987, determining the need for the Crane- Bridge-Plumosus 230 kV transmission line to provide additional service load capacity and maintain system reliability. Florida Power & Light Company (hereinafter "FPL") filed with the Department of Environmental Regulation (hereinafter "DER") its Application for Corridor Certification of the Crane-Bridge-Plumosus 230 kV transmission line corridor on July 14, 1988. That Application was deemed by DER to be complete but insufficient, and FPL's Sufficiency Response was filed on September 16, 1988. The certification hearing was originally scheduled to commence on February 6, 1989. PGA Property Owners' Association, Inc. (hereinafter "PGA") timely filed alternate corridors on December 13, 1988. Old Marsh Partners, Old Marsh Golf Club, Inc., and Old Marsh Homeowners Association, Inc., (hereinafter "Old Marsh" or "OM") timely filed alternate corridors on December 15, 1988. Several of the alternates filed by PGA were accepted by FPL on December 7 20, 1988. Several of the alternates filed by Old Marsh were accepted by FPL on January 5, 1989. FPL did not respond to several of the alternates proposed by PGA and Old Marsh (the burial alternates) because FPL considered these proposed alternates to be design modifications to FPL's corridor, a factual proposition that was accepted by this Hearing Officer prior to the final hearing in this cause but which was disproven during the evidentiary hearing. One of Old Marsh's alternates was rejected by FPL. The certification hearing was rescheduled to commence on April 3, 1989, due to the timely filing of alternate corridors and the acceptance of some of them. George H. Sands, Jeffrey H. Sands, George H. Sands and Jeffrey H. Sands d/b/a Princeton Arms (hereinafter "Sands") and Southern Land Group, Martin Downs Country Club, Inc., and Martin Downs Property Owners Association, Inc., (hereinafter "Martin Downs") timely filed alternate corridors on February 9, 1989. Two of those alternates were rejected by FPL, and FPL did not respond to one of those alternates because it considered that alternate to be within the FPL proposed corridor. By the time of the final hearing in this cause, alternate corridors proper for consideration were reduced to Alternate Corridors 2A and 2B filed by PGA and jointly proposed by PGA and Old Marsh (hereinafter "Alternate corridor" unless otherwise described). During the final hearing, settlement agreements between Sands and FPL and between Martin Downs and FPL resulted in Sands and Martin Downs voluntarily dismissing their petitions to intervene in this proceeding and voluntarily withdrawing their proposed alternate corridors in exchange for FPL agreeing to a number of additional conditions of certification of the Martin County segment of the Crane-Bridge-Plumosus corridor are set forth in Attachment A to this Recommended Order. Prior to the final hearing, all parties entered into a Prehearing Stipulation which included Attachment D. Attachment D set forth the minimum conditions for certification, which conditions were agreed to by FPL, and which conditions will apply no matter which corridor is certified. Those conditions are set forth in Attachment B to this Recommended Order. All statutory notices regarding the filing of FPL's Application, the filing of the PGA/OM Alternate corridors 2A and 2B, and the scheduling and rescheduling of the certification hearing were properly published, and all statutory notifications were properly accomplished. Description of the FPL Proposed Corridor Essentially, the Crane-Bridge-Plumosus 230 kV transmission line corridor would run from the existing site of the proposed Crane Substation in the immediate vicinity of the Martin Downs community near Stuart, Martin County, Florida, to the existing Plumosus Substation near Jupiter, Palm Beach County, Florida. The total length of the proposed FPL corridor is approximately 40 miles. The FPL proposed corridor is of variable width, ranging from approximately 300 feet to 1 mile wide. Crane-Mapp: The FPL proposed corridor begins at the site for the Crane Substation in Martin County and runs south to the proposed Mapp Substation siting area paralleling the Florida Turnpike so that a right-of-way could be located on either side of the Turnpike. Mapp-Hanson: From the proposed Mapp Substation siting area, the FPL proposed corridor continues to proceed south straddling the Florida Turnpike until it reaches the junction of I-95 and the Turnpike. From that point the proposed corridor runs southeast away from the Florida Turnpike and parallel with I-95 on the east side to the proposed Hanson Substation siting area. Hanson-Bridge: At a point approximately 1 mile south of the State Road 76 interchange with I-95 at the proposed Hanson Substation siting area, the FPL corridor turns west and crosses both I-95 and the Florida Turnpike until it reaches County Road 711. The proposed corridor then proceeds south along County Road 711 for a distance of 13 mi1es crossing County Road 708, County Road 706 and the C-18 Canal. As the proposed corridor begins proceeding south straddling County Road 711, it reaches the proposed Bridge Substation siting area and continues south, narrowing at one point to exclude the actual residential structures in the Foxwood development but not excluding the properties owned by the residents of that subdivision. At the proposed Bridge Substation siting area, the corridor widens to allow flexibility in connecting the proposed transmission line to an existing 230 kV transmission line. Bridge-Moroso-Alexander: From the proposed Bridge Substation siting area, the FPL proposed corridor continues to parallel County Road 711 south through the proposed Moroso Substation siting area to the intersection of State Road 710 where it connects to the proposed Alexander Substation siting area. Alexander-Steeplechase: At the intersection of County Road 711 and State Road 710 which is also known as the Beeline Highway, in the vicinity of the proposed Alexander Substation siting area, the FPL proposed corridor turns southeast and straddles State Road 710 until the Beeline Highway intersects with PGA Boulevard at the proposed Steeplechase Substation siting area. Along the Beeline Highway, the corridor narrows to exclude the residences in the Caloosa residential development but does not exclude the properties on which those residences are located. Steeplechase-Ryder: At the intersection of the Beeline Highway and PGA Boulevard, the FPL proposed corridor turns east on PGA Boulevard crossing the C-18 Canal a second time and crossing the Loxahatchee Slough. At the point where FPL's proposed corridor crosses the C-18 Canal along PGA Boulevard in Palm Beach County, the proposed corridor would be approximately 1,000 feet wide. At a point just east of the C-18 Canal, FPL's proposed corridor narrows somewhat on the south side of PGA Boulevard to exclude the residential structures in the PGA National community from the corridor. Nevertheless, the corridor width would still encompass both the north and south sides of PGA Boulevard, and on the south side it would extend through the individual backyards and actually abut the homes of the PGA National residents. FPL's corridor continues to proceed easterly on both sides of PGA Boulevard to a point where Ryder Cup Boulevard intersects the south side of PGA Boulevard. At that intersection, the corridor is widened and turns to the north to accommodate the proposed Ryder Substation location. FPL's proposed Ryder Substation siting area is located in the area adjacent to and north of the intersection of PGA Boulevard and Ryder Cup Boulevard. Ryder-Bonnette: The FPL proposed corridor continues north through the proposed Ryder Substation siting area following a dirt road past a sewage treatment plant. As it proceeds north of Hood Road along the proposed Jog Road extension, it narrows as it passes between the Old Marsh and Eastpointe residential developments. Despite the narrowing of the corridor at this point, homesites, storm water management facilities, and portions of golf courses in both of those developments are encompassed by the proposed corridor. As the corridor passes the northern boundary of Old Marsh, it again widens and continues to proceed north encompassing wetland areas, until it reaches the current western termination point of Donald Ross Road. The Bonnette Substation is proposed by FPL to be located in this area. Bonnette-Plumosus: From the proposed Bonnette Substation siting area, the FPL proposed corridor turns east and follows Donald Ross Road for approximately 2 miles, running along the Palm Beach Country Estates subdivision on the north side of Donald Ross Road and the northern edge of the Eastpointe subdivision along the south side of Donald Ross Road. Once again, the corridor narrows on the Donald Ross Road segment to exclude the actual residential structures in the Eastpointe and Palm Beach Country Estates developments but does not exclude the properties on which those residences are located. The corridor continues to run east along Donald Ross Road until it crosses the Florida Turnpike and I-95, turning north just west of the Donald Ross Road and Central Boulevard intersection. The FPL proposed corridor then runs north paralleling an existing 138 kV transmission line for a distance of 2 miles to the existing Plumosus Substation. Except for a small segment of the FPL proposed corridor located at the proposed Hanson Substation siting area in Martin County, the corridor includes the lands on both sides of the roadways it follows in order to provide flexibility to FPL in designing and constructing its proposed transmission line. The width of FPL's proposed corridor -- up to 1 mile wide -- serves the same purpose of allowing flexibility to FPL in locating a right-of-way for its transmission line facility. No specific right-of-way within the proposed corridor is contemplated at this time, and the eventual right-of-way is not the subject of this proceeding; rather, FPL can locate a right-of-way anywhere within a corridor which is certified. Description of the PGA/OM Alternate Corridor The PGA/OM Alternate corridor differs from one 4-mile segment of the FPL proposed corridor by commencing north 13 from PGA Boulevard at a point just after the FPL proposed corridor crosses the C-18 Canal for the second time. The Alternate corridor follows an existing unnamed canal for 1 mile, then parallels Sections 33 and 28 for 2 miles. Alternates 2A and 2B are coextensive with each other up to the point at which the Alternate corridor is due west of Donald Ross Road. At that point, Alternate 2A turns east at the northwest corner of Section 28 and continues easterly to reconnect with the FPL proposed corridor in the vicinity of the Bonnette Substation. Alternate 2B continues north, rather than east, at the northwest corner of Section 28 for approximately 3/4 of a mile along the west boundary of Section 21. At that point, Alternate 2B turns southeasterly following a proposed future alignment of the Donald Ross Road extension to reconnect with the FPL proposed corridor in the vicinity of the Bonnette Substation. In conjunction with the PGA/OM Alternate corridor, FPL's proposed site for the Ryder Substation would be relocated approximately 1 mile to the west so that the Ryder Substation would be located just east of the PGA/OM Alternate corridor and north of PGA Boulevard. Description of the Transmission Line The transmission line which FPL proposes to construct within its proposed corridor would be an overhead line using a single-circuit, single-pole concrete structure. The concrete poles would average 80 feet in height, but may be as tall as 100 feet. The concrete pole is 2 feet wide at its base. The wires that transmit electricity, called conductors, are connected to insulators which are attached to the concrete pole structures. Three conductors will be used for this proposed transmission line. The single concrete pole structures will have one of two types of configurations: vertical or triangular (delta). In a vertical configuration, all three of the conductors are located on one side of the concrete pole structure, and in the triangular configuration, two conductors are located on one side of the concrete pole structure, and one conductor is located on the opposite side. A ground wire is located at the top of the concrete pole structure and acts to protect the conductors from lightning strikes. The right-of-way required for the proposed transmission line will vary from 15 feet to 50 feet, depending on whether a vertical or a triangular configuration is used and on whether the transmission line structure can be placed adjacent to an existing road that can be used for access to the transmission line. Additional right-of-way up to 140 feet in width may be required for guyed corner or side tension structures. When an existing road or road right-of-way can be used for access, a 15 foot right-of-way adjacent to the road right-of-way can be used for the transmission line structures with a vertical configuration. If a triangular configuration is used adjacent to an existing road or road right-of-way that can be used for access, a 35 foot right-of-way would be required for this transmission line. Where new access roads will be required, a 35 foot right-of- way is required for the vertical configuration, and a 50 foot right-of-way is required for the triangular configuration. FPL anticipates constructing approximately 12 miles of new access roads in its proposed corridor in areas that do not have existing roads or where adjacent roads cannot be used for access, such as adjacent to the Florida Turnpike and adjacent to I-95. If the PGA/OM Alternate corridor is certified, FPL anticipates requiring a 50-foot wide right-of-way along the entire length of the Alternate corridor due to the absence of existing roads (excluding unofficial roads created by persons using all-terrain recreational vehicles) and the use of triangular configured structures. Since the segment of the FPL proposed corridor from which the PGA/OM Alternate corridor deviates follows existing roadways which FPL anticipates using for access, FPL plans to use vertical structures with a smaller 15-foot right-of-way in that corridor segment. Span lengths between structures will vary between 300 feet and 600 feet, with a minimum conductor-to-ground clearance of 24 feet. The span lengths depend upon specific right-of-way widths determined by FPL after corridor certification and on final line design also determined by FPL after corridor certification. The transmission line poles may also be used for other utility attachments, such as distribution or communication lines. Access to the transmission line concrete poles must be provided for both construction and maintenance purposes. Any new access roads to be constructed will typically be unpaved and 14 feet in width. Finger roads connecting access roads to the pole location will typically be 30 feet in width. A structure pad for location of trucks for maintenance purposes will be constructed at the location of each pole. The structure pads surrounding each concrete pole will typically be 30 feet by 40 feet. Substations Between the existing site for the proposed Crane Substation and the existing Plumosus Substation, the proposed transmission line will connect 8 proposed intermediate substations in Martin and Palm Beach Counties. Proposed intermediate substations in Martin County include the Mapp, Hanson, and Bridge Substations. The proposed Moroso Substation will be located in the vicinity of the Martin County and Palm Beach County line. Proposed intermediate substations in Palm Beach County include the Alexander, Steeplechase, Ryder, and Bonnette Substations. Most of the proposed substation siting areas are one square mile or 640 acres in size. However, Bridge is one-half mile square, Moroso is 5 miles square, and Alexander is 4 mile square. Prior to filing its Application for Corridor Certification for the Crane-Bridge-Plumosus 230 kV transmission line, FPL enlisted the aid of an advisory committee composed of representatives from agencies and local governments and two home owners. At the time the advisory committee convened, the substation locations were already identified and the geographical areas already determined. The advisory panel did not provide input into the location or size of the substation areas. Rather, the advisory panel merely looked for a corridor which would connect the already-designated substation siting areas. It is unclear how much input the advisory committee actually had into the corridor proposed by FPL in this proceeding. Only the location proposed for the Ryder Substation is at issue in this proceeding, since it is proposed to be located along the segment of FPL's proposed corridor from which the PGA/OM Alternate corridor deviates. If the PGA/OM Alternate corridor is certified, the proposed Ryder Substation siting area would be moved approximately 1 mile west of the Ryder Substation location proposed by FPL. Locating the Ryder Substation adjacent to the Alternate corridor on the east side of that corridor is appropriate from a land use perspective and will not materially affect the efficiency and reliability of electrical service to the area to be served by that substation. The actual difference in service reliability of the Ryder Substation if located adjacent to the Alternate corridor on the west side of the Alternate corridor would be an increase of 0.3 service interruptions per year, or one additional service interruption every 3 to 4 years. The difference in service reliability if the Ryder substation were located adjacent to the Alternate corridor on the east side of the Alternate corridor would be even less. Therefore, essentially the same service reliability would result. Engineering and Design The construction techniques for the proposed transmission line set forth in FPL's Application are standard construction techniques in the industry. The proposed Crane-Bridge-Plumosus transmission line will be designed for two types of load: structural and electrical. The structural load of the proposed transmission line will be designed to hold the weights of the poles, insulators, and conductors in a sustained wind of 115 mph. The electrical load for the proposed transmission line will be designed to carry 230 kilovolts with a conductor capacity of 647 megavolt amperes (MVA). Under normal operation, the proposed transmission line will carry between 250 and 350 MVA. The design and construction of the proposed transmission line will comply with all applicable codes and standards including the National Electrical Safety Code, the American Society of Testing Materials, the American National Standards Institute, the American Concrete Institute, the Southern Building Code, and the Florida Department of Transportation Utility Accommodation Guide. Transmission lines can be constructed adjacent to or within road rights-of-way, with the road drainage facility or swale between the road and the concrete pole. The maintenance finger road to access the pole structure is culverted where that road crosses the drainage facility or swale. The transmission line can be constructed, from an engineering perspective, within the right-of-way east of Old Marsh. FPL has constructed transmission lines within road rights-of-way for other transmission line projects. FPL has entered into agreements with local governments for other projects to share road right-of-way. From an engineering perspective, the transmission line can be constructed to span Impoundment 2BE (discussed hereinafter), if necessary. From an engineering perspective, the design and siting of the transmission line within the FPL proposed corridor would be more flexible if located on the north side of PGA Boulevard near PGA National. From an engineering perspective, the design and siting of the transmission line within the FPL proposed corridor would be more flexible if located south of the Beeline Highway near the Caloosa Development. From an engineering perspective, the design and siting of the transmission line within the FPL proposed corridor between the Old Marsh and Eastpointe developments offers limited flexibility. From an engineering perspective, the design and siting of the transmission line within the Alternate Corridor is preferable because line siting flexibility is increased. From an engineering perspective, location of the Ryder Substation adjacent to the Alternate corridor or in the location proposed by FPL is appropriate. Impacts to the Environment Wetlands Both the FPL corridor and the Alternate corridor may impact wetlands within the jurisdiction of DER, the South Florida Water Management District, and the United States Army Corps of Engineers. DER has not formally identified jurisdictional wetlands within the FPL corridor or within the 20 Alternate corridor. The South Florida Water Management District and the United States Army Corps of Engineers have expressed jurisdiction over certain wetlands within the FPL corridor and within the Alternate corridor. The actual extent of wetlands impacted is unknown and will ultimately be determined at the time of actual line siting within the certified corridor. Section 3.2 of the FPL Application states that FPL will provide detailed information on dredging or filling (locations and volumes) to DER after a corridor is certified, when the right-of-way is determined and engineering is completed. Mitigation for wetland impacts will be required at the time of line construction. Attachment D to the Prehearing Stipulation sets forth specific mitigation criteria as conditions of corridor certification acceptable to DER and the South Florida Water Management District for wetland impacts. Implementation of those mitigation conditions will not result in any conflicts or problems with the mitigation practices and policies of the Corps of Engineers, DER, or the South Florida Water Management District. The jurisdictional determination evidenced in PGA/OM Joint Exhibit 18A, though not a "binding jurisdictional" pursuant to DER rules, is an accurate representation of the DER jurisdictional areas in the proximity of the Loxahatchee Slough and the Alternate corridor. That jurisdictional drawing was participated in by DER personnel. That informal jurisdictional determination evidences minimal acreage of wetlands within the jurisdiction of DER within the Alternate corridor. Along the FPL corridor route, numerous altered or disturbed wetland areas exist. Road construction, land clearing, and other human activities have altered the natural state of wetlands previously associated along the FPL proposed corridor. The wetlands within the southern half of the Alternate corridor are altered or disturbed due to existing canals and ditches as well as dirt roads within and adjacent to the Alternate corridor. Over time, due to the altered hydrology and transitional vegetation within and adjacent to the Alternate corridor, the acreage of wetlands impacted due to construction of a transmission line would approximate the acreage of wetlands impacted within the FPL corridor from the same transmission line construction. Certain wetlands within the FPL corridor are comparable to the wetlands within the Alternate corridor in terms of hydrology, quality, and habitat. The FPL corridor will cross 26 water bodies, all of which are classified as Class III, except for the C-18 Canal which is classified as Class I. The FPL corridor also crosses several isolated wetlands and the Loxahatchee Slough. There will be no significant impact to water quality from the construction of the Crane-Bridge-Plumosus transmission line. Short-term turbidity caused by the removal of vegetation will be controlled through the use of erosion control practices, such as fabric fences and straw bales. Long-term water quality will be maintained by allowing the vegetation around access roads and structure pads to re-establish. Any impacts to wetlands caused by the proposed transmission line can be mitigated consistent with regulatory agency mitigation criteria and the DER dredge and fill criteria. Wildlife Species of plants or animals designated as endangered, threatened, or species of a special or regional concern by the Treasure Coast Regional Planning Council, the United States Fish and Wildlife Service, the Florida Game and Fresh Water Fish Commission, the Florida Department of Agriculture and Consumer Services, and/or the Florida Committee on Rare and Endangered Plants and Animals, and species based on literature surveys and agency consultations were researched for potential occurrence within the FPL and Alternate corridors. The species studied are listed in FPL's Application. None of the species were found to have breeding or viable populations in the FPL or Alternate corridors. The presence or absence of specific plant species is primarily based upon suitable habitats. None of the corridors under consideration herein is expected to have any significant impact on important plant species. Of the 48 vertebrate species identified as occurring or possibly occurring within the proposed corridors, most are characteristic of or restricted to coastal habitat or estuarine habitat. Therefore, presence of these species would be of a migratory nature. Because of the absence of these species, impact to such wildlife would be expected to be minimal. Since the FPL corridor and the Alternate corridor include areas of disturbed habitat, the probability of occurrence for threatened and endangered species and other regionally significant species is diminished. Wildlife observed actually within the Old Marsh community included the sandhill crane, a threatened species listed by the Florida Game and Fresh Water Fish Commission. From a wildlife perspective, the FPL corridor and the Alternate corridor are appropriate locations for the construction of a 230 kV transmission line. The Prehearing Stipulation entered into by the parties requires the identification of endangered species prior to any clearing for the construction of the transmission line. Vegetation Vegetation communities associated with the FPL corridor include hammock, wet prairie, grassland and rangeland, pine flatwoods, cypress, freshwater marsh, pinewood, pinewood prairie, forested old field and mixed hardwood swamp. Vegetation communities associated with the Alternate corridor include tropical hammock, cabbage palm, wet prairie, cypress, pine wet prairie and pine flatwoods. The majority of vegetation within the Alternate corridor is pine wet prairie. The transmission line can be constructed to avoid the tropical hammock community. The alteration of habitat and associated vegetation due to human activities and altered hydrology in both the FPL and the Alternate corridors has resulted in the transition of vegetative communities including the introduction of exotic, nuisance plant species such as Melaleuca, Brazilian Pepper, and Australian Pine to those corridors. If the hydrologic condition remains the same within and adjacent to the Alternate corridor, additional exotic, nuisance plants would invade the area. Due to changes in the hydrologic condition east of the C-18 Canal and west of the Alternate corridor, a portion of the historic Loxahatchee Slough, exotic plants such as Melaleuca and Brazilian Pepper have invaded that area. The eastern boundary of the Loxahatchee Slough, as identified through analysis of vegetation, is a north-south line approximately half-way between the eastern leg of the C-18 Canal and the western boundary of the Alternate corridor. The Alternate corridor is not located within the historic Loxahatchee Slough. The implementation of the Loxahatchee River Basin Water Resources Plan (discussed hereinafter) would result in the creation of a littoral zone, Impoundment 2BE, not currently present within the geographical proximity of the Alternate corridor and would restore the historic hydroperiod of the Slough, limiting the introduction of additional exotic species to the area. From a vegetative perspective, both the FPL corridor and the Alternate corridor are appropriate locations for the construction of the 230 kV transmission line. Construction of the Crane-Bridge-Plumosus transmission line in the FPL 25 corridor or in the Alternate corridor will produce a minimal impact to existing vegetation. In wetland areas, the vegetation root mat will be retained in the right-of-way areas not occupied by access roads or structure pads. Construction of the proposed transmission line in the FPL corridor or in the Alternate corridor will not destroy the vegetative communities, but will merely force the shift in the successional stages of those communities within the right-of-way. Hydrology Due to human activities such as road construction and channelization, the hydrology associated with the FPL corridor is altered. Further, the Hood Road and Jupiter wellfields have contributed to altered hydrologic conditions in the proximity of the FPL corridor and the Alternate corridor near Old Marsh. The construction of the C-18 Canal in the early 1950's contributed to the lowering of the water table and altered the natural hydrologic conditions, impacting the wetlands lying east of the C-18 Canal but west of the Alternate corridor. Drainage of the Slough is increased when compared to drainage patterns prior to canal construction. The altered hydrology rendered the former Loxahatchee Slough area, east of the C-18 Canal and west of the Alternate corridor, a seasonally flooded area. In the area of the Alternate Corridor the C-18 Canal has altered the natural hydrological regime, impacting the associated vegetation and habitat. Further, the area within the southern half of the Alternate corridor is subject to persistent draining due to the location of an unnamed canal and other ditches within and adjacent to the Alternate corridor. The area within the Alternate corridor immediately north of Old Marsh is subject to minimum channelization. Adjacent developments and the Hood Road and Jupiter wellfields have lowered the water table, altering natural hydrologic conditions. In the geographical area immediately south of Old Marsh, both within and adjacent to the FPL corridor and the Alternate corridor, a series of connected channels have had a drastic impact on the wetlands and hydrology of that area. This channelization has resulted in the general lowering of the water table, altering natural hydrologic conditions. Attachment D to the Prehearing Stipulation includes conditions for certification regarding culverts and construction techniques to maintain historical drainage patterns along the eventual transmission line right-of-way. Construction of the transmission line along PGA Boulevard through the Loxahatchee Slough will not significantly impact water quality or water resource hydrology. From a water quality and hydrologic perspective, the FPL corridor and the Alternate corridor are appropriate locations for the construction of the transmission line. Construction techniques used will maintain water flows, existing drainage patterns, and hydroperiods. Impacts to wetland storage volumes will be minimized through removal of vegetation within the wetlands and installation of culverts. Installed culverts will be designed to accommodate the design storm of applicable agency design criteria. Loxahatchee River Basin Water Resources Plan The Loxahatchee River Basin Water Resources Plan (hereinafter "Plan") is a regional plan extending from southern Martin County into the northeastern part of Palm Beach County. The Plan's purpose is to capture surplus water during the rainy season or during an extremely rainy year, store the water in reservoirs, and deliver that water when necessary during times of drought. Additionally, the Plan would increase the hydroperiod in the Loxahatchee Slough, offsetting the adverse impacts of C-18 Canal construction. The Plan would result in releases of water into the historic Northwest Fork of the Loxahatchee River. The Plan would also augment recharge of two impacted municipal wellfields, the Hood Road wellfield and the Jupiter wellfield. The Northern Palm Beach County Water Control District is proposing the Plan and will seek regulatory approval for the Plan. By the time of the Final Hearing in this cause, the Plan had been informally discussed and reviewed by all regulatory agencies involved. The public hearings held thus far on the Plan by the Northern Palm Beach County Water Control District had brought forth no objections to the Plan. Although the Plan had not been filed with the South Florida Water Management District at the time of the Final Hearing in this cause and formal application for approval had not yet been made, it was anticipated that the Plan and applications for approval would be filed with the regulatory agencies involved around June 1, 1989. The Plan calls for reservoirs to be constructed on both sides of the C-18 Canal. The location of one of those reservoirs, Impoundment 2BE, may be partially within the Alternate corridor. Impoundment 2BE borders the eastern edge of the traditional Loxahatchee Slough. That reservoir, starting at PGA Boulevard, as currently designed, would occupy an area immediately to the east of the Alternate corridor, extending northerly along the eastern side of that corridor, crossing the corridor at the reservoir's narrowest point, then continuing parallel to the west side of the Alternate corridor into the northern portion of the Alternate corridor area. Impoundment 2BE is adjacent to, but will not be located within, the Loxahatchee Slough. Implementation of the Plan would not result in additional standing water within the Alternate corridor altering existing impacted wetlands. Hydrology of the Alternate corridor would be minimally impacted by the Plan due to the impoundment of the natural west to east water sheet flow. The location of Impoundment 2BE is subject to minimal change during the permitting review and approval process due to the nature of valuable wetlands to the west of the proposed location of the Impoundment, the location of existing and planned development to the east of the proposed location, and because the planned location maximizes the environmental benefits of Impoundment 2BE to recharge the Loxahatchee Slough. The impact of the reservoir on the wetland area incorporated as part of the proposed Bonnette Substation site is minimal because the reservoir water levels are not high enough to effectuate sufficient seepage nor will there be releases of surface water into that area. Direct releases from the Impoundment will be only through existing channels. The direct release channels are the south canal of the South Indian River Water Control District, north of the Alternate corridor, and the east channel from Impoundment along the south boundary of Old Marsh into the Eastpointe development. These two channels are the only two areas for direct releases of surface water. Impoundment 2BE will include an 8-foot berm constructed around its perimeter. The Plan includes a 16-foot wide road atop the impoundment berm to maintain berm side slopes. It is anticipated that the water level in the reservoir will average 3 feet above natural grade, and it is not expected to be higher than 4 feet. To avoid seepage impacts, the Plan includes construction of toe drains to capture seepage and deliver that seepage to a pump system, returning the seepage to the reservoir. The Plan includes an access road surrounding the toe drains which surround the berm to access and maintain the toe drains. The access road next to the toe drains will be approximately 10-15 feet wide. FPL and the Northern Palm Beach County Water Control District have shared maintenance access roads in other 30 locations. A conflict would not exist between FPL and the Water Control District in sharing the Impoundment 2BE access road. The South Florida Water Management District, through the Loxahatchee River and Slough Restoration Program (hereinafter "Program"), intends to restore the historic hydrologic condition of the Loxahatchee Slough. The Program and the Plan are compatible and complementary water resource plans. Conflicts would not result due to the implementation of the Plan and the Program. Implementation of the Plan and construction of the 230 kV transmission line would not conflict from an engineering perspective. Impoundment 2BE and the line can be constructed sharing access roads, and conflicts would not result in maintaining the reservoir and the transmission line. If the Plan is implemented as proposed, much of the wetlands in the vicinity of the Alternate corridor would be significantly impacted, if not completely obliterated. Thus, the possible wetland impacts which might occur as a result of construction of the transmission line through the Alternate corridor would be minimized, or would already have occurred, if the proposed reservoir is constructed. In the event the reservoir is constructed as currently envisioned, construction of the transmission line through the Alternate corridor would have to span the reservoir at its narrowest point where it crosses the Alternate corridor. The reservoir is anticipated to be 400 feet wide at its narrowest point, and the normal span length for an FPL transmission line varies between 300 and 600 feet. Accordingly, spanning the reservoir does not pose a significant engineering problem, and the two projects could be constructed in a compatible manner. Impacts To The Public Land Use: The FPL corridor originates just south of the Martin Downs development and is adjacent to, incorporates, or is in the proximity of industrial parks, low and medium density residential development, a communications tower, borrow pits, the St. Lucie Canal, vacant and undeveloped land, trailer parks, agricultural land, the Foxwood subdivision, the Pratt-Whitney industrial complex, Palm Beach Park of Commerce, service stations, the Caloosa subdivision, a platted undeveloped subdivision, the C-18 Canal, the proposed North Palm Beach County General Aviation Airport, the Loxahatchee Slough, PGA National subdivision, the Seacoast Utility sewage treatment plant, a plant nursery, Old Marsh and Eastpointe residential developments, Palm Beach Country Estates, North Palm Beach Heights, and the Hampton residential development. The FPL corridor is aligned immediately adjacent to the edges of homes in the PGA development and includes the backyards and setbacks of those homes. The FPL corridor includes several golf course holes, buildings, and critical water management facilities within the Old Marsh development. The Alternate corridor from south to north beginning at PGA Boulevard, is adjacent to, or in the proximity of, an unnamed canal, undeveloped but disturbed land, the west boundary of Old Marsh, and more undeveloped, partially disturbed land. Numerous changes in the extent and type of development, whether commercial, industrial, or residential, occurred between the filing of the FPL Application in July, 1988, and subsequent land use review by FPL personnel conducted immediately prior to the Final Hearing in April, 1989. The Florida Department of State, Division of Historical Resources, did not find any archaeological or historical sites recorded within the FPL or the Alternate corridors. The City of Palm Beach Gardens has annexed the geographical area bordered by PGA Boulevard, the proposed Jog Road extension, the south boundary of Old Marsh, and the Alternate corridor. The City of Palm Beach Gardens' plans to annex the Old Marsh, Eastpointe, and, possibly, the Caloosa developments. The City of Palm Beach Gardens plans to annex the area bordered by the proposed Donald Ross Road extension, west to the Beeline Highway, south to the section line just south of PGA Boulevard, and east to PGA National. The Palm Beach Gardens land use plan for the areas north and south of Old Marsh between the Alternate and FPL corridors is low density residential development. The Palm Beach Gardens land use plan for the area north of PGA Boulevard, south of the Eastpointe development, and east of the FPL corridor is low density residential development. The FPL corridor, north from Ryder Cup Boulevard where that Boulevard intersects PGA Boulevard, would bisect planned low density residential communities. Associated with the sewage treatment facility adjacent to the FPL corridor, north of Ryder Cup Boulevard along the existing dirt road, is a planned golf course to buffer developing residential areas from the sewage treatment plant and to effectuate the use of spray water irrigation to comply with DER's water reuse rule. The proposed Jog Road extension, as depicted on the draft of the Palm Beach County Thoroughfare Plan, is subject to possible relocation and realignment due to environmental concerns, absence of reserved right-of-way, and the history of the road as previously depicted within PGA National. The FPL corridor provides numerous opportunities for paralleling other linear facilities within the corridor. Linear facilities within that corridor include the Florida Turnpike, I-95, County Road 711, State Road 710 (the Beeline Highway), PGA Boulevard, the sewage treatment plant access road, the proposed extension of Jog Road, Donald Ross Road, another transmission line, and numerous overhead distribution lines. Although FPL contends that the existing linear facilities also can be used as access roads to the transmission line structures thereby minimizing the amount of land required for the transmission line right- of-way, the accuracy of that position cannot be determined until an actual right-of-way is located and the transmission line is designed. For example, I- 95 and the Florida Turnpike are limited access roads, and FPL potentially would construct its own access road outside the rights-of-way of those highways. Similarly, FPL has a preference to not use Florida Department of Transportation road rights-of-way. Further, the location of the proposed Jog Road extension is yet to be determined. The wide corridor proposed by FPL to maintain maximum flexibility for siting the eventual transmission line right-of-way and for designing the actual transmission line would allow FPL to site the transmission line far enough in distance from the existing linear facilities so that the existing rights-of-way of those facilities need not be shared by FPL. From a land use perspective, the narrower Alternate corridor also tracks linear facilities, conforming to coexisting and proposed land use patterns. The existing unnamed canal, the proposed Donald Ross Road extension, section lines, and the possible Impoundment 2BE and its maintenance road serve as such linear facilities. None of these linear facilities have restricted rights-of-way. Land use patterns are more than conceptually developed in the area of the Alternate corridor. The section line serves as an edge of a clearly established land use pattern. The annexation plans and Comprehensive Plan of Palm Beach Gardens evidence future development plans. From a land use perspective, it is appropriate to site a transmission line and allow developing residential areas to adjust and to mitigate impacts from that line. Development can build around a transmission line if the transmission line is placed in the landscape first. From a land use perspective, the Alternate corridor is more appropriate than the FPL corridor for construction of a 230 kV transmission line due to its greater distance from existing and proposed residential areas, which reduces the potential for visual impacts, adverse health effects, and reduction in property values. Old Marsh is a golf course community of 120 acres constructed in an area of pristine, natural prairie marsh wetlands. Two hundred and seventeen lots are platted within the Old Marsh development, with a maximum lot price of $250,000. Heavy vegetation, including palm and pine trees, borders the western boundary of Old Marsh. A 25-foot vegetative buffer borders the eastern boundary of Old Marsh. Old Marsh expended significant sums of money to bury all electrical distribution lines within the community to maintain the visual aesthetics of that unique, environmentally-sensitive community and to avoid injury from overhead electrical lines that may occur during a hurricane or other storm. The naturally occurring wetlands in the center and western part of the project were preserved. In the eastern part of the project, within the FPL proposed corridor, are located several golf course holes and water control facilities consisting of lakes and littoral zones. A canal system, which serves to manage the water resources for stormwater and environmental purposes, flows throughout the development. The lakes and littoral zones within the proposed FPL corridor serve as part of the project mitigation plan. The same facilities provide part of the storage volume retaining stormwater runoff, maintaining the project's water quality and reducing nutrient loading. The Northern Palm Beach County Water Control District, through the establishment of Unit of Development No. 21, constructed, operates, and maintains the water control facilities for Old Marsh. The operation and maintenance are in accordance with approved federal, state, and local permits and a judicially-approved plan. Securing permits for the Old Marsh project was extremely difficult because approximately one-third of the project land area was required to be preserved. The portion of the Old Marsh project included within the FPL proposed corridor includes land subject to conservation easements in favor of DER and the Northern Palm Beach County Water Control District. Transmission line construction within the FPL corridor through the Old Marsh property would severely impact the water control facilities and golf holes which are fully constructed. Old Marsh maximized the land area available such that relocating or reconfiguring the water management facilities or golf holes is not possible. Relocation or reduction in size of the water management facilities would destroy the function of the facilities. PGA National is a resort community located in the City Of Palm Beach Gardens which includes approximately 5,700 homesites, 4 golf courses, a hotel, a sports and recreation complex, and commercial and light industrial areas. It is an "upscale" community. One of the amenities of PGA National is that electrical distribution lines within the community are buried. The lines were buried for two reasons: to maintain the visual aesthetics of the community and for safety reasons, to avoid injury from downed electrical lines during hurricanes and other storms. The cost of burial of the distribution lines throughout the community was in the hundreds of thousands of dollars, which was part of the overall development cost of the community. The homes within PGA National along PGA Boulevard are traditional, single-family homes with permanent residents. The approximate cost of a home is $300,000. From a land use perspective, the north side of PGA Boulevard near PGA National would be a more appropriate location for a transmission line than the south side. The proposed FPL corridor parallels the Beeline Highway between the Beeline's intersection with County Road 711 and the Beeline's intersection with PGA Boulevard. This segment of FPL's proposed corridor is approximately 800 feet in width. On the north side of the Beeline, at the intersection with County Road 711 is the developing Palm Beach Park of Commerce. Just below the Park of Commerce is the Caloosa subdivision. Although the FPL proposed corridor is narrowed at that point, it is only narrowed to exclude the physical structures on the residential lots in the Caloosa development; it does not exclude the backyards of those properties. North of the Beeline Highway right-of-way, the FPL proposed corridor includes a 70 foot recreation, utility, and drainage easement within the Caloosa subdivision. The northern boundary of the corridor for much of its length corresponds to the northern boundary of that easement. The easement includes a canal which is an integral part of Caloosa's drainage system and is also a source of recreation for Caloosa residents. The Caloosa canal system will also be an integral part of the proposed Northern Palm Beach County Water Control District Water Resource Management Plan. Residential lots and homes are located immediately adjacent to the 70-foot easement. The corridor also includes portions of some of the residential lots of Caloosa property owners. Caloosa is the only residential area which abuts FPL's proposed corridor along the Beeline Highway segment. South of the Beeline Highway, the FPL proposed corridor also includes additional Florida Department of Transportation right-of-way, a railroad right- of-way, other easements for underground utilities, and approximately 200 feet of vacant undeveloped land. These linear facilities run parallel to the Beeline Highway corridor. The vacant land within the corridor south of the Beeline Highway, which is not a part of any existing right-of-way or easement, contains some scattered disturbed or impacted wetlands. There are no residential developments on the south side of the Beeline Highway. The land uses of the Beeline Highway segment of the corridor include vacant or undeveloped land, agricultural land, and residential land only where Caloosa is located. There are no planned residential developments along the Beeline Highway segment other than Caloosa. The linear facilities located on the south side of the Beeline Highway provide an opportunity to efficiently plan the transmission line corridor. From a land use perspective, the south side of State Road 710 (the Beeline Highway) would be a more appropriate location for a transmission line than the north side. Sharing of rights-of-way means either actually co-locating structures within the right-of-way or, for example, locating the FPL concrete structure within an FPL easement adjacent to the existing right-of-way but overhanging the conductors in the existing right-of-way. Such sharing of rights-of-way is important from a land use planning perspective in that it represents an opportunity to avoid impacting residential property and reduces the amount of land necessary for rights-of-way. Although it is FPL's preference to obtain its own rights-of-way, it is common practice for linear facilities to share rights- of-way. A transmission line is a linear facility. Along the Beeline Highway, FPL would have the opportunity to share existing rights-of-way on the south side of the Beelihe Highway with the Florida Department of Transportation, with the railroad, and with the other utilities in the utility easements. On the north side of the Beeline Highway, FPL would have the opportunity to share the Beeline Highway right-of-way. To locate the transmission line facility within the recreation, utility, and drainage easement within the Caloosa subdivision, FPL would need the approval of the Northern Palm Beach County Water Control District. It is the opinion of the Executive Director of the Northern Palm Beach County Water Control District that the Crane-Bridge-Plumosus 230 kV transmission line should not be located north of the Beeline Highway in the Caloosa easement. The construction of the transmission line in that easement creates a potential for conflict between FPL's construction and maintenance of its transmission facility and the Northern Palm Beach County Water Control District's maintenance of that easement and the canal system in Caloosa. Aesthetics At the PGA National community, on the south side of PGA Boulevard, there is currently a berm along the residential lot lines, approximately 4 feet in height with vegetation extending another 4 feet in height. Despite the presence of the berm, the 38-foot wooden distribution poles on the north side of PGA Boulevard are clearly visible from the backyards and patios of those residents living along PGA Boulevard as well as from the homes located across the street to the south. The transmission line structures in FPL's proposed corridor would be visible from the homes and the yards within the PGA National subdivision despite the berm and landscaping between the homes and the proposed 230 kV transmission line. Similarly, the transmission line structures would be visible from the homes and yards of the residents in the Martin Downs, Foxwood, Caloosa, Eastpointe and Palm Beach Country Estates subdivisions. Further, the entrance ways and entrance roads to those subdivisions and to the Old Marsh subdivision would be spanned by the proposed 230 kV transmission line. Although there are existing distribution lines along the roadways adjacent to those subdivision, those existing distribution lines utilize wooden poles approximately 38 feet high. On the other hand, the proposed Crane-Bridge- Plumosus transmission line will utilize concrete poles 80 feet or more in height, 2 feet wide at the base. The placement of the Crane-Bridge-Plumosus transmission line in the FPL proposed corridor will result in a new visual intrusion to residents of existing and planned residential communities. The visual impact of the proposed line is not the same impact as the existing distribution lines and is not merely an increased impact over the existing distribution lines; rather, the proposed transmission line utilizing tall concrete poles is a different visual impact than that currently caused by any existing wooden distribution poles. FPL does not contemplate any landscaping improvements in constructing the transmission line in order to visually block the line from the view of adjacent residences and residential property. To screen the view of a power pole such as is contemplated by FPL for this transmission line from a home 100 feet from the transmission line would require a 35-foot-high vegetative buffer. A power pole 150 feet away would require a 28-foot-high vegetative buffer. At a distance of 300 feet, a 20-foot-high buffer would be required; at 500 feet, an 18-foot-high buffer would be required. The proposed Crane-Bridge-Plumosus transmission line is not aesthetically pleasing and will have a substantial impact on the residents of subdivisions adjacent to it. Electric and Magnetic Fields When energized with electricity, a transmission line produces both electric and magnetic fields (hereinafter "EMF"). The Environmental Regulation Commission of DER adopted a rule on January 18, 1989, which established EMF standards to be met at the edge of transmission line rights-of-way or at the property boundary of new substations. Although the Crane-Bridge-Plumosus transmission line will meet the standards set forth in that rule, the rule itself specifically provides that the standards contained therein are interim standards pending further research and study. The rule provides that the standards contained within that rule will be re-visited within 2 years and further provides that there does exist evidence of potential for adverse health effects on the public and that existing knowledge is inadequate to conclude that no further action is needed. On the day following the passage of its EMF rule, the Environmental Regulation Commission passed a resolution recognizing the potential for adverse health effects on the public from EMF, and recognizing that it would be prudent to keep the long-term exposure of the population to low values of EMF by routing transmission lines outside of residential areas. That resolution specifically provided that new electric transmission lines of 69 kV or greater should be sited in a manner that would consolidate those lines with existing corridors, and, further, that new corridors should be planned in coordination with the land use plans of local governments to avoid placing corridors through residential areas. Members of the public testified in this proceeding that the recently- promulgated standards adopted by the Environmental Regulation Commission were not reassuring regarding public concerns of health hazards associated with electric and magnetic fields. The standards themselves are not a guarantee of safety. Moreover, the standards may not prove safe in the future. Of the numerous persons who testified at the two public hearings held in this cause, a substantial majority of them expressed fear for the health and welfare of themselves and their families from ENF. Burial of the transmission line within the FPL proposed corridor would alleviate the concerns of the residents of the PGA National, Caloosa, and Palm Beach Country Estates subdivisions who testified in this proceeding. Property Values Limited studies have been completed analyzing the impact of single concrete pole transmission lines on residential property values. Factors associated with power lines impacting property values include the proximity of homes to the line, the price range of the homes, the type of power line, lot sizes, and the public perception of transmission lines. The higher the price of the residence, the greater the potential impact on the residential value caused by a transmission line because purchasers of more expensive property favor and expect a more attractive visual environment. FPL's study of the impact of transmission lines on residential property values focused on communities on the west coast of Florida. That study was of little value since there was no showing of the similarity of the real estate markets in those communities and the real estate markets in Palm Beach County and Martin County. On the other hand, a Palm Beach County study indicated a devaluation of residential property as high as 32 percent when comparing sales of comparable homesites adjacent to and not adjacent to several types of transmission lines. Prior to the Final Hearing in this cause, parents of school age children had sued the Palm Beach County School Board to prevent the School Board from opening a new school facility which was built adjacent to large transmission lines. That litigation had been extensively covered by the media, and residents in at least Palm Beach County had become generally aware of the controversy regarding the impact of transmission lines on the health of children and the general population. That litigation was still pending at the time of the Final Hearing in this cause. At least in Palm Beach County there is a public perception that transmission lines are hazardous to human health. The public awareness of the controversy in Palm Beach County had caused one developer to cease sales of residential units located near transmission lines in that development. In other developments, the lots adjacent to transmission lines have been sized two or three times larger than lots located away from those transmission lines in order that the sales price of the lots near the lines could be comparable to the sales price of the lots away from the lines. Other developers have established large vegetative buffer areas or unusually wide setback areas between transmission lines and the lots nearest those transmission lines in order to offer to potential buyers an extra factor of privacy to compensate for the location of those homesites near transmission lines. In the Caloosa, PGA National, and Palm Beach Country Estates subdivisions, real estate sales have already been negatively impacted due to public knowledge of the proposed location of the FPL proposed corridor for the Crane-Bridge-Plumosus 230 kV transmission line. The numerous public witnesses testifying in this proceeding believe the property value of their homes will be severely and negatively impacted if the transmission line is constructed near their property. No one testified in this proceeding that he or she would be willing to purchase a home, or live, in the near proximity of a 230 kV overhead transmission line. The public perception of adverse health effects from overhead transmission lines, coupled with the adverse visual or aesthetic impact of transmission lines in residential areas, does have an adverse effect on residential property values. Policies of Public Bodies Just as the Florida Environmental Regulation Commission has issued a policy statement that transmission lines should be routed away from residential communities, the regional planning agency and local governments in the geographical area through which the proposed Crane-Bridge-Plumosus transmission line will be constructed have addressed similar positions. The Treasure Coast Regional Planning Council reviewed the FPL proposed corridor for the Crane- Bridge-Plumosus transmission line and concluded that burial of the proposed transmission line within the FPL proposed corridor may represent the best solution to provide a balance between environmental and socioeconomic impacts. Palm Beach County, by Resolution passed on April 4, 1989, adopted the comments of the Treasure Coast Regional Planning Council. That Resolution further strongly recommended that, based upon the policies of the County's Comprehensive Plan, as an additional condition of certification, the Crane- Bridge- Plumosus transmission line be placed underground where its right-of-way is to be located adjacent to existing or developing areas of densities of one unit per acre and above to minimize potential health, safety, aesthetic and property value impacts. The Resolution also recommended as a condition of certification that the FPL proposed corridor be narrowed to the south side of the Beeline Highway and the north side of PGA Boulevard to avoid the existing residential developments located on the north side of the Beeline Highway (Caloosa) and the south side of PGA Boulevard (PGA National). The current Palm Beach County Comprehensive Plan even calls for the burial of electrical distribution facilities in new growth areas. Martin County also adopted the Treasure Coast Regional Planning Council's report on the Crane-Bridge-Plumosus line and, therefore, the same comments regarding burial of the proposed line within the FPL proposed corridor as the best balance among the competing interests. The City of Palm Beach Gardens, by Resolution adopted April 21, 1988, after reviewing the FPL proposed corridor for the Crane-Bridge-Plumosus transmission line, opposed the establishment of the corridor for the proposed above-ground transmission line on PGA Boulevard. The Resolution further recited that the impact of such transmission lines pertaining to potentially adverse health consequences from both electric and magnetic fields and to the aesthetic balance of the PGA National entrance ways and the general community being destroyed far outweighed the other values that could be placed on the proposed location of the corridor. The City Council of Palm Beach Gardens prefers an alternate corridor alignment corresponding to the alignment of the Alternate corridor. The subdivision regulations of the City of Palm Beach Gardens require electrical distribution lines to be placed underground, and the City's proposed Comprehensive Plan in its current draft calls for the burial of transmission lines. Burial Burial of transmission lines has been used as an alternative engineering design where, for example, the transmission line is to go through residential areas or is to be located in the vicinity of airports. The Crane- Bridge-Plumosus proposed corridor is located in the same area as the proposed North Palm Beach County General Aviation facility on the south side of the Beeline Highway near the Caloosa residential community. Burial of the transmission line would negate the impacts to the public described above, i.e., the potential impacts from electric and magnetic fields, and the negative impacts to property values based upon the visual impact of the transmission line and the public perception of the hazardous nature of the transmission line. From a land use perspective, from a transmission line engineering perspective, and from an environmental perspective, the burial of transmission lines is an appropriate and desirable design technique. Burial of the Crane-Bridge-Plumosus 230 kV transmission line is not a design modification since the proposed transmission line has not been finally designed. This proceeding involves only the location of the corridor in which the line is to be designed and constructed, and FPL will not determine the design of the line until after this cause has reached final resolution. Rather, burial of the transmission line is an appropriate condition of certification to be considered, similar to the other design criteria agreed to previously by FPL in Attachment D to the Prehearing Stipulation as other conditions for certification of the Crane-Bridge-Plumosus corridor. The public bodies which have considered burial of the Crane-Bridge- Plumosus transmission line have determined burial to be an appropriate and desirable design condition for certification. Additionally, the witnesses who testified during the public hearing portions of this certification proceeding overwhelmingly endorsed burial of the transmission line as a condition of certification and expressed an enthusiastic willingness to pay the costs of that additional design criteria. Other Considerations During fair weather, noise from the proposed 230 kV transmission line normally will be below ambient levels. The noise from the proposed Crane- Bridge-Plumosus transmission line will comply with applicable local government noise ordinances. Radio and television interference from transmission lines is generally inversely proportional to the frequency of the radio or television transmission, the lower the frequency, the greater the potential for interference. FM radio transmissions, because of their higher frequency, have no noise interference from transmission lines. AM radio frequencies may be susceptible to interference from transmission lines. The effect can generally be corrected by simply adjusting the position of the receiver or antenna for the radio receiver. Television is broadcast using both AM and FM frequencies. The audio portion of the television is transmitted using FM frequency and, therefore, there is no transmission line interference. The video portion of television uses AM frequency and, therefore, may be susceptible to interference from foul weather on the lower television channels of 2 through 6. This interference can generally be corrected by reorienting the TV antenna. Pursuant to a condition of certification in Attachment D to the Prehearing Stipulation, FPL will investigate all complaints regarding radio and television interference and will provide appropriate mitigation for all impacts. If FPL complies with all of the conditions of certification contained in Attachment D to the Prehearing Stipulation, those conditions of certification agreed to in the settlement agreements entered into with Sands and with Martin Downs during the certification proceeding, the policies set forth in the resolutions of the public bodies discussed hereinabove, and the conditions of certification contained in this Recommended Order, then the Crane-Bridge- Plumosus 230 kV transmission line is expected to comply with all non-procedural requirements of agencies. Variances or exceptions from local zoning ordinances will likely be required, and these are expected to be obtained. Although none of the comprehensive plans of Martin County, Palm Beach County, the Town of Jupiter, or the City of Palm Beach Gardens requires transmission lines to be buried, the draft of the future Palm Beach Gardens Comprehensive Plan calls for the burial of transmission lines, and it is reasonable to believe that that provision will be retained in the final Comprehensive Plan in view of the policy statements of the City of Palm Beach Gardens discussed above. A waiver from the Martin County Comprehensive Plan prohibition on development in wetlands may be required once the ultimate right- of-way for the Crane-Bridge-Plumosus transmission line has been selected by FPL. I. Initial Costs FPL has provided estimated costs per mile for the construction and location of the Crane-Bridge-Plumosus line in its proposed corridor, including right-of-way acquisition costs, line construction costs (conductor installation costs and all other construction costs) and access road construction costs. According to FPL's estimates, the total cost per mile for the location and construction of the transmission line along the entire distance of the FPL proposed corridor averages $297,500. For the 4.0 miles of the FPL proposed corridor segment located between the beginning of the PGA/OM Alternate corridor and the Bonnette Substation (that segment where the FPL proposed corridor and the PGA/OM Alternate corridor deviate from each other), FPL estimates the total cost per mile to be $273,400, for a total cost of $1,093,600 for that 4.0 mile segment. FPL estimates the total cost per mile for the location and construction of the Crane-Bridge-Plumosus transmission line in PGA/OM Alternate corridor 2A to be $425,700. FPL adds to that cost the sum of $640,300 for "relocating" the Ryder Substation to the west of the PGA/OM Alternate corridor. Using those figures, the total cost for PGA/OM Alternate corridor 2A for the 4.1 miles from the beginning of that corridor to the Bonnette Substation is $2,385,700. For the PGA/OM Alternate corridor 2B, FPL estimates the total cost per mile to be $458,300. Adding the cost of $640,300 for "relocating" the Ryder Substation, the total cost for the 5.2 miles of PGA/OM Alternate corridor 2B would be $3,025,500. It is erroneous to include in the cost estimates for the PGA/ON Alternate corridor the figure of $640,300 for the cost of relocating the Ryder Substation. First, no relocation is involved since the Ryder Substation does not exist. What does exist is a site that FPL has selected for placement of a substation to be called the Ryder Substation. Second, PGA/OM does not propose that the Ryder Substation be relocated to the west side of the Alternate corridor, but rather proposes that the Ryder Substation be relocated to the east side of the Alternate corridor, a difference of approximately 1,100 feet less. Even FPL's experts admit that relocating the Ryder Substation to the east side of the Alternate corridor rather than the west side would only cost $490,000, rather than the $640,300 which they have computed in their cost estimates. Third, the only cost identified in the "relocation" figure is the cost of distribution lines (radial feeds) which would be increased in length and therefore be more expensive due to locating the Ryder Substation one mile west of FPL's projected load center. Although computing the extra expense for the longer lines running in one direction, FPL fails to compute the decreased costs of the necessarily shorter lines running in the opposite direction. Most importantly, there is no basis for computing the costs of the location of the Ryder Substation and adding those costs to the cost estimates for the PGA/OM Alternate corridor since FPL does not compute the cost of the seven other intermediate substations in computing the costs of the transmission line to be constructed in FPL's proposed corridor. Since the cost of the substations along the FPL proposed corridor are not computed in FPL's cost estimates, so should the cost of the Ryder Substation be similarly excluded from the cost estimates for the Alternate corridor. Only the location of the Ryder Substation is at issue in this proceeding. Even if the costs of the Ryder Substation were an issue, they are highly speculative. The cost difference estimated by FPL between Alternate 2A and the FPL corridor is approximately $1.3 million. The cost difference estimated by FPL between Alternate 2B and the FPL corridor is approximately $2 million. Estimated costs are higher for the Alternate corridor, if evaluated under present conditions, in part due to the dissimilarity between the FPL proposed corridor and the Alternate corridor in the extent of roads available for construction and maintenance access purposes. The difference attributable to access road construction is speculative for two reasons: first, until FPL actually selects a right-of-way, the extent of access roads necessary in the FPL proposed corridor is uncertain. Second, approval of the Loxahatchee River Basin Water Resources Plan and/or the other two water management plans proposed in the area east of the C-18 Canal may well reduce the extent of access roads needed to be constructed in the Alternate corridor. It appears that transmission line initial costs for PGA/Old Marsh Alternate corridor 2A would be less than for Alternate corridor 2B, primarily because of Alternate corridor 2A's shorter length. FPL estimates costs for right-of-way acquisition in the FPL proposed corridor between Old Marsh and Eastpointe to be $39,000 per mile. FPL's estimate for right-of-way acquisition does not include the cost of acquisition of improvements within a right-of-way, severance damages, or costs of litigation. FPL calculated its estimated costs based upon present conditions and factors. Final costs of line construction may be substantially different from those estimates for both the FPL and the Alternate corridors based upon an increase or decrease in construction materials costs, the ability of FPL to enter into agreements with local governments or the Northern Palm Beach County Water Control District for access easements, the ability of FPL to enter into agreements with private land owners for access easements, the ability of FPL to site the line to minimize wetlands impacts and the associated costs of mitigating those impacts, the ability of FPL to site the transmission line to minimize land use impacts existing at the time of actual siting and construction of the line, and the ability of FPL to use transmission line construction techniques developed during the time between the Final Hearing in this cause and the actual line construction that may further reduce construction line costs. These costs could vary whichever corridor is certified. Further, engineering design problems are created when a transmission line corridor is designed to go through already developed property or developing property as opposed to vacant land. Design problems which occur because the transmission line is designed for developed or developing property increase. The cost of the transmission line. Generally, the cost of constructing the transmission line is reduced where there is less congestion. As to the approximate cost for burial of a 230 kV transmission line, FPL estimates the cost per mile for materials and labor to install a double circuit 230 kV transmission line underground ranges from $1.6 million to $2.2 million. Added to these costs is $1.2 million for the two terminal ends required at the beginning and ending points of each underground segment of the transmission line, however many miles long that transmission line segment might be. The FPL estimates for burial costs are based upon historic FPL costs, such as the previous burial of transmission lines under Biscayne Bay. It is likely that such a project would have been more costly than burial of transmission lines in any of the segments of the corridors proposed for the Crane-Bridge- Plumosus transmission line. Another historical cost project in which FPL buried its transmission line was a project in which FPL chose to place that line underground because burial costs were much less expensive than the cost of acquiring the right-of-way needed through the residential area. Underground placement of 230 kV transmission lines is technically feasible and has been done by FPL in the past. The decision to bury transmission lines is primarily a decision based upon cost considerations. The costs of burying transmission lines are decreasing. Typical underground transmission line design calls for the cable to be oil-insulated and encased in concrete. Other technology involving solid dielectric trunk cable which is less expensive and easier to handle than oil-insulated cables has been used throughout Europe for many years. Other utility companies have buried transmission lines at less cost than FPL's estimates. The Jacksonville Electric Authority recently constructed an underground transmission project at a cost of approximately $1 million per mile utilizing typical oil-insulated technology. The utilization of solid dielectric cable would have been even less costly.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Siting Board enter a Final Order: Approving FPL's application for certification of its proposed `Crane- Bridge-Plumosus 230 kV transmission line corridor subject to the following conditions: FPL's proposed corridor shall be modified so that it substitutes PGA/OM Alternate 2A for that portion of the FPL proposed corridor from which PGA/OM Alternate corridor 2A deviates; The Ryder Substation siting area shall be moved so that it is located adjacent to PGA/OM Alternate 2A on the east side of that Alternate corridor; The transmission line shall be buried in all other segments of the FPL proposed corridor where the corridor is within 300 feet of any existing subdivisions as specifically described in the Conclusions of Law section of this Recommended Order. FPL shall comply with all conditions set forth in Attachments A and B to this Recommended Order; and FPL shall seek any necessary interest in state lands prior to engaging in any activity on or affecting that land, pursuant to Section 403.531(3), Florida Statutes. In the alternative and as a second choice to the recommendation contained in paragraph numbered 1, approving FPL's application for certification of its proposed Crane-Bridge-Plumosus 230 kV transmission line corridor subject to the following conditions: FPL shall bury the transmission line where its proposed corridor is within 300 feet of existing subdivisions as specifically described in the Conclusions of Law section of this Recommended Order; FPL shall locate the Ryder substation in the interior portion of its proposed siting area and north of PGA Boulevard; FPL shall comply with all conditions set forth in Attachments A and B to this Recommended Order; and FPL shall seek any necessary interest in state lands prior to engaging in any activity on or affecting that land, pursuant to Section 403.531(3), Florida Statutes. Dismissing as parties to this proceeding for non-appearance at the Final Hearing the Department of Community Affairs, the Treasure Coast Regional Planning Council, the Florida Game and Fresh Water Fish Commission, the Town of Jupiter, the City of Palm Beach Gardens, Donald Ross Landowners Association, Inc., and Box Ranch Management Corporation. DONE AND ENTERED this 30th day of June, 1989, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 30th day of June, 1989. COPIES FURNISHED: Honorable Bob Martinez Governor State of Florida The Capitol Tallahassee, Florida 32399 Honorable Robert A. Butterworth Attorney General State of Florida The Capitol Tallahassee, Florida 32399 Honorable Doyle Conner Commissioner of Agriculture State of Florida The Capitol Tallahassee, Florida 32399 Honorable Betty Castor Commissioner of Education State of Florida The Capitol Tallahassee, Florida 32399 =================================================================
