The Issue The issue to be determined in this proceeding is whether the Governor and Cabinet, sitting as the Siting Board, should certify the Polk 2-5 Combined Cycle Conversion Project (“Project”) of Tampa Electric Company ("TEC"), including its associated electrical transmission lines, subject to the proposed Conditions of Certification.
Findings Of Fact The parties stipulated there are no disputed issues of fact. TEC is an investor-owned electric utility regulated by the Florida Public Service Commission. It is headquartered in Tampa and has supplied electricity to customers in the Tampa Bay area since 1899. TEC's electric service territory covers approximately 2,000 square miles and includes all of Hillsborough County and portions of Polk, Pasco, and Pinellas Counties. TEC has five generating stations, Big Bend, HL Culbreath Bayside, JH Phillips, Polk Power Station, and Partnership Station. The Project is proposed for the Polk Power Station. Existing Facilities The Polk Power Station was certified pursuant to the Power Plant Siting Act in January 1994. It is located in southwest Polk County, 17 miles south of the City of Lakeland and 28 miles southeast of the City of Tampa. The original site consists of 4,348 acres bordered by the Hillsborough County line on the west; County Road 663 (Fort Green Road) on the east; County Road 630, Bethlehem Road, and Albritton Road on the north; and State Road 674 and several former phosphate clay settling ponds on the south. The Polk Power Station has five electric generating units and associated facilities. Polk Unit 1 is 260 megawatt integrated gasification combined cycle facility fired with synthesis gas or “syngas” produced by gasifying coal and other solid fuels. Polk Units 2 through 5 are 165 megawatt simple cycle combustion turbine generators fueled primarily with natural gas. Support facilities at the Polk Power Station include a 755-acre cooling reservoir, oxygen blown gasifier, air separation unit, sulfuric acid plant, slag byproduct storage area, and switchyard. The station is served by four 230 kilovolt (“kV”) transmission circuits, a railroad line, and a natural gas pipeline. Water is supplied from four onsite groundwater wells for the cooling water reservoir and other plant processes. Other existing facilities include an administration building, control room, warehouse, and construction management building. The Proposed Project Need On January 8, 2013, the Florida Public Service Commission issued its Final Order Granting Certification of Need for Polk 2-5 Combined Cycle Conversion. The Commission determined that the most cost effective and reliable alternative to meet future power needs is the construction of the Project at the Polk Power Station. The Commission's Final Order is TEC/Department Joint Exhibit 2. Among other findings, the Commission determined that the Project would improve fuel diversity and supply reliability, incorporate renewable energy and conservation factors, and is needed to maintain electric system reliability and integrity. Power Generation The Project involves the conversion of the four existing simple cycle combustion turbine generator units to combined cycle operation. The Project would be a four-on-one combined cycle unit consisting of the four existing combustion turbine generators, each combined with a new heat recovery steam generator, and a new steam turbine generator. The Project would achieve improved efficiency in electrical power generation. When operated in a simple cycle mode, a combustion turbine generator releases hot gases to the atmosphere. In the proposed combined cycle configuration, this exhaust heat would be routed to the heat recovery steam generators and the steam produced by the heat recovery generators would be routed to the new steam turbine generator to produce additional electricity. The Project is designed to allow the combustion turbine generators to be operated in simple cycle mode when the steam turbine generator is not in service. The combustion turbine generators may also be operated in simple cycle mode to meet peak power demands. The conversion would increase the nominal net generating capacity of the four existing generators from 660 megawatts to 1,160 megawatts. Total capacity for the Polk Power Station would be increased from 1,150 megawatts to 1,420 megawatts. The proposed generating facilities would be state-of- the-art, incorporating improvements in technology that have occurred over the past 20 years. They are designed by Black & Veatch, an internationally-recognized engineering firm with significant experience in designing similar facilities. Fuels The four combustion turbine generators would be fired with natural gas as the primary fuel. Ultra-low-sulfur diesel fuel would be the backup fuel. The four heat recovery steam generators would have natural-gas-fired duct burners for peaking operations. The existing onsite natural gas pipeline would provide the natural gas for the Project and the backup ultra-low-sulfur diesel fuel would be stored in existing onsite fuel storage facilities. Water Use Groundwater withdrawals from four wells are authorized by the current Conditions of Certification for 4.3 million gallons per day (“mgd”) on an annual average and 7.6 mgd on a peak monthly average. The Project will require additional water for cooling and plant process water uses. To minimize use of groundwater, TEC would treat and reuse 5.7 mgd of treated reclaimed water from the City of Lakeland. The treated reclaimed water would primarily be used to supply the makeup water for the proposed new cooling tower and the existing 755-acre cooling reservoir, as well as some process water needs. The cooling reservoir would be used for condenser cooling purposes. The new six-cell mechanical draft cooling tower would provide cooling for the Project’s auxiliary systems, which would be modified to use the new cooling tower instead of the reservoir. The reclaimed water would be initially provided by the City of Lakeland through a 15-mile pipeline. Later, reclaimed water would be provided by the City of Mulberry and Polk County. The Project systems are designed to maximize water reuse and recycling to reduce groundwater consumption. However, TEC requests that the maximum groundwater withdrawals currently authorized -- 4.3 mgd on an annual average and 7.6 mgd on a peak monthly basis –- be maintained in this certification to ensure that TEC can reliably and safely operate the facilities and manage water quality and levels in the cooling reservoir during extended periods of low rainfall conditions and in the event there is an interruption in the delivery of reclaimed water. The Project’s proposed water uses comply with all applicable agency requirements. Stormwater and Wastewater Discharges Stormwater and wastewater treatment systems are already in use at the Polk Power Station. These systems would be used for the Project facilities. The proposed facilities will not significantly affect the quantity or quality of stormwater runoff at the Polk Power Station. The current wastewater streams include runoff from industrial areas and process wastewaters. Wastewaters would continue to be collected and treated by the onsite industrial wastewater systems, including the equalization basin, neutralization basin, filtration system, and oil/water separator, and then discharged to the cooling water reservoir. With the addition of the Project, cooling water blowdown from the new cooling tower and treated reclaimed water will be introduced to the cooling reservoir. TEC has a permit for underground injection control wells which it plans to test for disposal of nonhazardous wastewater such as reverse osmosis reject water from the reclaimed water treatment process. The Project’s stormwater and wastewater discharges would comply with all applicable agency requirements. Air Quality Impacts Construction of the Project facilities at the Polk Power Station would generate fugitive dust emissions. These would be controlled by dust suppression control measures such as watering. The vehicles used by construction workers would release nitrogen oxide, carbon monoxide, and other fuel combustion- related air pollutants. These kinds of emissions from construction equipment would be minimized through the use of ultra-low-sulfur-diesel fuel in various diesel engines. Even under worst-case conditions, the air quality impacts caused by construction activities would be minimal, temporary, and limited to the construction site. The Project qualifies as a major modification to an existing major source. Air quality impacts from plant operations would be primarily nitrogen oxide, sulfur dioxide, and carbon monoxide emissions from the four combined cycle units, particulate emissions from the cooling tower, and various combustion emissions from operation of the emergency diesel generator. Air quality analyses were performed for nitrogen oxides, sulfur dioxide, particulates, and carbon monoxide. The dispersion modeling analyses demonstrate that the Project’s air quality impacts would not exceed the applicable regulatory limits and would not cause or contribute to an exceedance of any Prevention of Significant Deterioration Increment or National Ambient Air Quality Standard. For certain air emissions, Best Available Control Technology ("BACT") is required. BACT controls for nitrogen oxide would include the use of dry, low-nitrogen-oxide burners when firing natural gas and water injection when firing ultra- low-sulfur diesel fuel, and the installation of selective catalytic reduction technologies for the combined cycle combustion turbines. For sulfur dioxide emissions and emissions of sulfuric acid mist, BACT controls would include the use of low-sulfur natural gas as a primary fuel and ultra-low-sulfur diesel fuel as a backup fuel. For carbon monoxide and volatile organic compounds, BACT calls for good combustion design and operation. BACT for combustion particulates would be the use of low-ash natural gas as a primary fuel and ultra-low-sulfur diesel fuel as a backup fuel. For the emergency diesel engine, proposed BACT for all pollutants would be compliance with the applicable Standards of Performance for Stationary Combustion Ignition Internal Combustion Engines, which are federal standards that have been adopted by the Department. Proposed BACT for particulate emissions from the cooling tower is the use of high efficiency drift eliminators. The proposed air quality control technology for the Project and the expected emissions from the Project’s construction and operation would comply with all applicable agency requirements. Transmission Lines and Corridors The Project includes two new transmission line corridors. The proposed “Polk-Pebbledale Corridor” is a 5.5-mile, single-circuit 250 kV transmission line from the Polk Power Station north to the Pebbledale substation in Polk County. The proposed “Polk-Fishhawk Corridor” would be a single-circuit 250 kV transmission line running west from the Polk Power Station to the Mines substation near the intersection of State Road 674 and County Road 39 in Hillsborough County; from there, north and then west again to connect to a new Aspen switching station to be located near the intersection of County Road 672 and Balm-Boyette Road; and from the Aspen station, two separate 230kV transmission lines would run northeast to the existing Fishhawk substation near the intersection of Fishhawk Boulevard and Boyette Road; a total length of 27 miles. TEC exercised its option under section 403.5064(1)(b), Florida Statutes, to allow parties to file alternate transmission line corridors. No alternate corridors were filed or reviewed in this proceeding. TEC used a multidisciplinary team to evaluate alternative corridors for the new transmission lines. The team conducted initial data collection, prepared regional screening maps, identified alternate route segments, developed evaluation criteria, evaluated the routes, and selected the preferred routes. Public participation was a part of this effort. A regional screening map was created to identify existing infrastructure, roads, railroads, rivers and other water bodies, and siting constraints within the study area. TEC has existing transmission line rights-of-way in much of the study area, which together with public road rights-of-way provided co- location opportunities. The Polk-Pebbledale Corridor runs across former phosphate mining lands and follows roads and existing transmission line corridors to a point south of the town of Bradley Junction where it turns to the northeast and follows a transmission line through reclaimed phosphate lands to the intersection with another existing transmission line. In this certification proceeding, no party or non-party expressed opposition to the Polk-Pebbledale transmission line corridor. The Polk-Fishhawk Corridor runs across former and active phosphate mining lands, along road rights-of-way, and agricultural lands. As it approaches the Fishhawk substation, however, it passes through a residential development, referred to as the Fishhawk Community. The portion of the corridor that runs through the Fishhawk Community follows an existing TEC-owned transmission line right-of-way. No developer, agricultural operator, commercial entity, agency, or local government expressed opposition to the Polk to Fishhawk transmission line corridor, but residents of the Fishhawk Community testified in opposition to the corridor at the public hearing held in the Fishhawk community center. Their testimony at the public hearing is discussed later in this Recommended Order. The proposed transmission lines would be installed on steel poles embedded in the ground. Guy wires are generally not needed except where a transmission line makes a large angle turn or guy wires are otherwise necessary for safety and sound engineering. Pole heights would vary from 80 to 135 feet. The typical span length between poles would be 500 to 700 feet, but it can range up to 1,000 feet, when necessary to avoid natural or manmade obstacles or other siting constraints. The corridors are wider than the rights-of-way that will ultimately be determined in order to allow for flexibility in the final selection of the rights-of-way. The proposed rights-of-way would be reviewed by the agencies to insure compliance with the Conditions of Certification. Each transmission line would be designed, constructed, operated, and maintained in compliance with good engineering practices and all applicable codes, standards, and industry guidelines, including the National Electric Safety Code, the North American Electric Reliability Corporation, the American Society of Civil Engineers, requirements of the Florida Public Service Commission and the Federal Energy Regulatory Commission, the DOT Utility Accommodation Guide, applicable local and state government requirements, and TEC's internal design standards. TEC designs all of its 230 kV transmission lines to withstand a 130-mile-per-hour wind band, which exceeds the criteria in the National Electric Safety Code. Electric and Magnetic Fields The electric field produced by a transmission line is relatively constant over time. The magnetic field fluctuates over time depending on the load on the line. Electric and magnetic fields have been calculated for each of the configurations that may be used for the Project, based on the maximum requested voltage and current. The maximum expected levels for the electric and magnetic fields are within the limits in Florida Administrative Code Chapter 62-814. Considerable scientific research has been conducted in the past 30 years to understand the potential health effects associated with electric and magnetic fields. There is general agreement among scientists in national and international health agencies that the available evidence does not show adverse health effects can occur from exposure to the electric and magnetic fields associated with transmission lines. The Department’s limits for electric and magnetic fields at the edge of a transmission line right-of-way are lower than the limits recommended by the World Health Organization. Noise Impacts The noise limits applicable to the Project are those contained in the Polk Land Development Code and the in the rules of the Environmental Protection Commission of Hillsborough County. The Polk County noise limits are 75 decibels, A-weighted measurement (“dBA”) from 7:00 a.m. to 9:00 p.m. for non- residential areas and 65 dBA from 7:00 a.m. to 9:00 p.m. for residential areas. The noise requirements applicable to transmission lines in Hillsborough County are 60 dBA from 7:00 a.m. to 10:00 p.m. and 55 dBA from 10:00 p.m. to 7:00 a.m. Noise levels measured at four locations in the vicinity of the Project site varied between 41.9 and 51.1 dBA. Offsite noise levels during construction of Project facilities at the power station would be minimal because of the distance from the construction area to the site boundaries. Noise levels at the power station during operation are not expected to differ significantly from existing levels. Audible noise associated with transmission lines is usually associated with “corona,” which is a phenomenon that occurs when there is an irregularity on the surface of the conductors, such as water droplets or other significant particles. If the noise occurs during a rainstorm it is usually masked by the noise of the rain. At other times, corona noise will often be masked by other outdoor noises. Noise calculations were conducted for the proposed transmission lines and ranged from 32.0 to 45.2 dBA. These levels do not exceed the applicable limits. Wetlands and Terrestrial Ecology The areas proposed for the Project’s generating and associated facilities have been altered by the construction and operation of the Polk Power Station. These areas are also surrounded by lands altered by phosphate mining and reclamation. Wildlife habitats have already been destroyed, altered, or diminished by these activities and no longer have high functional values. Construction activities at the power plant site would not disturb any native or reclaimed wetland or upland habitats. Wildlife species expected to be found onsite would be common species for the region. Only two listed species of special concern were documented at the power station, the American Alligator and Tricolored Heron. They are both found in the reclaimed wetland west of the construction area and would not be affected. Impacts to other wildlife caused by construction at the Polk Power Station would be temporary and insignificant. There are no known threatened or endangered plant species at the Polk Power Station. No reclaimed or natural upland or wetland habitats are proposed to be affected. Wildlife habitats along the proposed transmission line corridors includes pine flat woods, mixed forested uplands, and various wetlands, including cypress forests, mixed hardwood swamps, and marshes. Surrounding land covers are dominated by current or former phosphate mining, farmsteads, or landscaped residential properties. The Balm-Boyette Scrub Preserve, Little Manatee River, Hurrah Creek, Fishhawk Creek, and Little Fishhawk Creek provide the best wildlife habitats along the transmission line corridors, but the corridors would cross these areas where there are already existing transmission line rights-of-way or roads. Wildlife found along the corridors are species commonly found in the region. No listed species are known to occur. Construction and maintenance of the transmission lines within the corridors would not significantly impact the habitats of fish and wildlife found in these areas. Impacts to vegetation along the transmission line corridors would be minimized by siting the rights-of-way within the most disturbed areas or on existing road and transmission line rights-of-way. TEC would span all open waters such as streams and tributaries. For smaller water crossings and wetlands, the facilities would be co-located with existing linear facilities to minimize impacts. Restrictive clearing practices on forested wetlands would be utilized, removing vegetation selectively. Impacts from filling would be avoided or minimized to the greatest extent practicable through a careful alignment of the transmission line rights-of-way and through the choice of span distances between structures. Where wetland impacts cannot be avoided, the impacts would be minimized and mitigation would be provided. Prior to the final selection of rights-of-way and the beginning of construction, surveys would be conducted to determine the presence of protected plant and animal species and the results would be shared with the FWC to determine if mitigation may be required in accordance with Conditions of Certification. Archeological and Historic Sites When the Polk Power Station was first certified and subsequently, archeological surveys were conducted to determine the presence of cultural and historical resources of significance. No such resources were identified. Cultural and historical resources in the study area for the transmission line corridors were evaluated during the corridor selection process. All National Register of Historic Places sites and districts as well as other known cultural resources were mapped and candidate corridors were laid out to avoid those resources. Corridors were laid out to co-locate with other transmission lines and linear facilities that have already disturbed the land to reduce the potential for new disturbances to cultural resources. After the rights-of-way within the corridors have been determined, cultural resource surveys would be conducted to identify the location of any archeological or historical resources and determine potential impacts whether they can be avoided. The surveys would be submitted to the Division of Natural Resources for its review and consideration. Transportation Impacts No additional transportation impacts are expected from the operation of the Project because there would be no addition to the current Polk Power Station staff of 78 employees to operate all facilities. The construction phase would generate 357 daily trips by construction workers and 50 additional delivery trips. The trip distribution per day is expected to be 228 northbound trips on State Road 37, 82 southbound trips on State Road 37, 75 northbound trips on Fort Green Road, and 22 southbound trips on Fort Green Road. Even at the peak of construction activities, the surrounding roadway network is expected to operate at acceptable levels of service. Land Use Compatibility The Project facilities would be located within the existing power station site, which is the logical and efficient location for the Project. There are no conflicting land uses in the vicinity of the Project site. Most of the land uses along the corridors are former and active phosphate mining lands, undeveloped lands, agriculture, and rural residences. The key exception is the segment of the Polk-Fishhawk Corridor that runs through the developed Fishhawk Community, which is a suburban residential area. Transmission lines of the types proposed are frequently located in proximity to all of these affected land uses, including the suburban residential areas. It is officially recognized that many people, if given a choice, would prefer not to have high voltage transmission lines near their homes, primarily based on aesthetic considerations. However, it is also officially recognized that many people are willing to live near transmission lines. Until there is a practical alternative to above-ground transmission lines, they will have to be located in developed areas in order to supply electricity to residences. The proposed transmission lines are not incompatible with residential uses. Polk County and Hillsborough County do not oppose the Project on any basis, including land use compatibility. The Project is consistent with the comprehensive plans and the land development regulations of these counties. Socioeconomic Impacts The Project would provide additional clean and reliable energy, additional jobs during construction, an increased property tax base, and increased economic activity in the form of purchases of goods and services. Local revenues from property taxes levied on the new plant facilities would primarily benefit Polk County. The estimated additional property tax revenue is between $6 million and $6.5 million annually. Significant revenues are also expected from sales taxes on goods purchased directly for the plant or indirectly from purchases of goods and services by the construction workers. Sales taxes are estimated to be $105,000 per year. Construction of the Project would employ an average of 250 workers, with a peak projected in 2015 of about 500 workers. Most of the construction workers would be drawn from an area within a commuting distance from the Project site. The construction payroll for the overall Project is expected to be $88 million and much of this would likely be spent in Polk County and the region. Site Boundaries TEC requests that the boundaries of the Polk Power Station site be reduced from 4,348 acres to 2,837 acres to reflect that the original certification required a donation of 1,511 acres to the Board of Trustees of the Internal Improvement Trust Fund as a wildlife management area and recreation area. The donation was completed in 2012. Construction Schedule Construction of the project is anticipated to begin in January 2014 and be completed in time to allow commercial operation in January 2017. Public Notice and Participation TEC engaged in extensive public outreach for the Project, using direct mail, a survey, public meetings, newspaper advertisements, a project webpage, a toll-free telephone number for information, and communications with agencies and public officials. TEC used two direct mailings, totaling over 10,000 letters in both English and Spanish. The letters were mailed to landowners and residents within one-quarter mile of the proposed transmission line corridors, all homeowners' associations within one mile, and all landowners and residents within three miles of the plant site boundaries. Three public meetings were held regarding the Project. The first meeting was held on April 10, 2012, at the Little Union Baptist Church. The second was on April 12, 2012, at the Fishhawk Fellowship Church. The third was on April 19, 2012, at the Wimauma Senior Center. TEC held meetings with county commissioners, mayors, state senators, and state representatives to inform them of the Project and the certification process. TEC representatives also met with developers in Hillsborough County who could be affected by the corridors to provide information and answer questions. Copies of the Application were available for inspection at the Polk County Library in Bartow and the John Germany Public Library in Tampa. A copy was also available for public review at TEC’s offices in Tampa. On October 24, 2012, public notice of the filing of the Application was published in The Tampa Tribune and The Ledger. On April 18, 2013, notice of the Certification Hearing was published in The Tampa Tribune and The Ledger and on April 19, 2013, in the Tampa Bay Times. When the certification hearing was rescheduled, TEC published notice of the rescheduling in The Tampa Tribune, The Ledger, and the Tampa Bay Times on June 16, 2013. The Department published notices of the Application, the certification hearing, the public testimony hearing, and rescheduling the certification hearing in the Florida Administrative Register. Hillsborough County published notice of the public testimony portion of the proceeding in The Tampa Tribune on June 19, 2013. Public Testimony A hearing was held in Lithia, Florida, on June 25, 2013, in the Fishhawk Community to provide members of the public who are not parties to the certification proceeding an opportunity to present sworn testimony concerning the transmission line portion of the Project. Twelve members of the public testified. Eight comment letters were received into the record as Public Testimony Composite Exhibit 1. A number of the residents expressed anger about what they perceived as the failure of the developer who sold them their homes, and TEC, to disclose to them that a transmission line might be constructed near their homes. As previously stated, the corridor is on property owned or controlled by TEC for the installation of transmission lines. The record evidence does not indicate any duty to disclose, any misrepresentation, or any obfuscation by TEC in this regard. If there was a failure to disclose or a misrepresentation by the developer, those are matters between the homeowners and the developer and beyond the scope of this proceeding. Several residents expressed concern about possible adverse health effects from exposure to electric and magnetic fields associated with the transmission lines. However, no speaker referred to personal knowledge or to any study results to support their comments on this subject. It is likely, therefore, that their concerns are based on rumors or speculation. As discussed above, independent scientists have not been able to substantiate the occurrence of adverse health effects from exposure to the electric and magnetic fields associated with transmission lines. There is a tennis court and there are nature trails underneath existing transmission lines located in another part of the Fishhawk Community, indicating that the fear of electrical and magnetic fields is not universal. Some residents urged that TEC be required to install the portion of the transmission line in the Fishhawk Community underground. There are substantial engineering difficulties associated with underground installation of high voltage transmission lines. TEC has never installed this type of transmission line underground. The cost for underground installation could be as much as 15 times greater than for overhead installation. Agency Reports Agency reports with proposed conditions of certification were submitted to the Department by SWFWMD, FWC, Florida Department of Transportation, Hillsborough County, and Hillsborough County Environmental Protection Commission. Agency Reports without recommended conditions of certification were submitted by the Florida Department of Economic Opportunity, Central Florida Regional Planning Council, Tampa Bay Regional Planning Council, and Polk County. The Department of State, Division of Historical Resources did not file an agency report, but recommended conditions in its Completeness Review. On January 28, 2013, The Department issued its Project Analysis Report for the transmission line portion of the Project, incorporating the reports of the reviewing agencies and proposing Conditions of Certification. On April 26, 2013, the Department issued its Project Analysis Report on the power plant and proposed Conditions of Certification. The Report was modified on May 21, 2013. No agency opposes certification of the Project. Conditions of Certification The Department recommends certification of the Project subject to the revised Conditions of Certification set forth in Department Exhibit 8, which supersedes all prior statements of conditions. The Conditions of Certification address numerous subjects and are designed to ensure that the construction and operation of the Project is protective of the public and the environment. The Conditions of Certification provide for post- certification reviews and investigations to confirm, for example, that sensitive areas will be avoided and that transmission lines structures will avoid or have minimal adverse impacts. TEC has agreed to construct, operate, and maintain the Project in compliance with the Conditions of Certification. No variances or exemptions from applicable state, regional, or local standards or ordinances have been requested or are needed for the construction, operation, and maintenance of the Project. Certification Considerations In determining whether TEC's application for the Project should be approved, approved with conditions, or denied, the Siting Board must determine whether, and the extent to which, the location, construction, and operation of the Project would: Provide reasonable assurance that the operational safeguards are technically sufficient for the public welfare and protection. Comply with applicable nonprocedural requirements of agencies. Be consistent with applicable local government comprehensive plans and land development regulations. Meet the electrical energy needs of the state in an orderly, reliable, and timely fashion. Effect a reasonable balance between the need for the facility as established pursuant to s. 403.519 and the impacts upon air and water quality, fish and wildlife, water resources, and other natural resources of the state resulting from the construction and operation of the facility. Minimize, through the use of reasonable and available methods, the adverse affects on human health, the environment, and the ecology of the land and its wildlife and the ecology of state waters and their aquatic life. Serve and protect the broad interests of the public. § 403.509(3), Fla. Stat. The evidence presented demonstrates that the location, construction, and operation of the Project would provide reasonable assurance that the operational safeguards are technically sufficient for the public welfare and protection. The evidence presented demonstrates that the location, construction, and operation of the Project would comply with applicable nonprocedural requirements of agencies. The evidence presented demonstrates that the location, construction, and operation of the Project would be consistent with applicable local comprehensive plans and land development regulations. The evidence presented demonstrates that the location, construction, and operation of the Project would meet the electric energy needs of the state in an orderly, reliable, and timely fashion. The evidence presented demonstrates that the location, construction, and operation of the Project would effect a reasonable balance between the need for the facility as established pursuant to section 403.519 and the impacts upon air and water quality, fish and wildlife, water resources, and other natural resources of the state. The evidence presented demonstrates that the location, construction, and operation of the Project would minimize, through the use of reasonable and available methods, the adverse effects on human health, the environment, and the ecology of the land and its wildlife and the ecology of state waters and their aquatic life. The evidence presented demonstrates that the location, construction, and operation of the Project would serve and protect the broad interests of the public.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Siting Board enter a final order: approving TEC's application for certification to construct, operate, and maintain the Polk 2-5 Combined Cycle Conversion Project, including its associated transmission lines, subject to the Conditions of Certification set forth in Department Exhibit 8; approving the increase in ultimate site capacity for the Polk Power Station site from the previously approved 1150 megawatts to 1420 megawatts; and modifying the Polk Power Station site boundaries from 4,348 acres to 2,837 acres, as depicted in TEC Exhibit 5. DONE AND ENTERED this 23rd day of August, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 2013. COPIES FURNISHED: Lawrence N. Curtin, Esquire Holland and Knight LLP Suite 600 315 South Calhoun Street Tallahassee, Florida 32301 Toni Sturtevant, Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kimberly Clark Menchion, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399 Anthony Justin Pinzino, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 Adam Teitzman, Esquire Florida Public Service Commission 2450 Shumard oak Boulevard Tallahassee, Florida 32399-0850 Michael S. Craig, Esquire Polk County Attorney's Office 330 West Church Street, Drawer AT01 Post Office Box 9005 Bartow, Florida 33831-9005 Marva M. Taylor, Esquire Hillsborough County Attorney`s Office 27th Floor 601 East Kennedy Boulevard Tampa, Florida 33602-4156 Richard Tschantz, Esquire Environmental Protection Commission of Hillsborough County 3629 Queen Palm Drive Tampa, Florida 33619 Patricia Anderson Department of Health Environmental Engineering 4042 Bald Cypress Way Tallahassee, Florida 32399-1742 Laura Kammerer Bureau of Historic Preservation R. A. Gray Building 500 South Bronough Tallahassee, Florida 32399 Manny L. Pumariega Tampa Bay Regional Planning Council Suite 100 4000 Gateway Center Boulevard Pinellas Park, Florida 33782 Patricia M. Steed Central Florida Regional Planning Council 555 East Church Street Bartow, Florida 33830-3931 Forrest Watson Department of Agriculture and Consumer Services Division of Forestry 3125 Conner Boulevard Tallahassee, Florida 32399-1650 Martha A. Moore, Esquire Southwest Florida Water Management District 7601 Highway 301 North Tampa, Florida 33637 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Matthew Z. Leopold, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issues to be resolved in this proceeding are: whether the Governor and Cabinet, sitting as the Siting Board, should approve the application of Progress Energy Florida (PEF) to certify and license the construction and operation of a 2200 megawatt (MW) (nominal) nuclear electrical generating facility and associated facilities, including electrical transmission lines; and, if so, what conditions of certification should be imposed.
Findings Of Fact Background Florida Power Corporation, doing business as Progress Energy Florida, Inc. (PEF), provides electricity and related services to approximately 1.7 million customers in the state of Florida. PEF's retail service area spans 35 counties over about 20,000 square miles in central and west Florida. In Florida, PEF operates and maintains more than 43,600 miles of distribution and transmission lines that serve a population of more than 5 million people. PEF owns and operates a diverse mix of electrical generating units in Florida, including approximately 47 combustion turbines, 5 combined cycle units, 12 fossil units, and one nuclear unit at PEF's Crystal River Energy Complex (CREC). The CREC is located in northwest Citrus County approximately four miles west of U.S. Highway 19 on the Gulf of Mexico. There are five generating facilities within the CREC; four units are coal-fired and one is a nuclear unit. PEF considered locating new nuclear generating capacity at the CREC, but determined that would concentrate too much electrical generation at one site. PEF proposes to build and operate a two-unit nuclear- powered electrical generating facility in Levy County (LNP). Directly associated facilities include a heavy haul road used for construction (Levy County), two site access roads (Levy County), and cooling water intake and discharge pipelines (Levy and Citrus Counties). PEF also seeks certification of nine transmission corridors associated with eleven electrical transmission lines: Citrus 1 and 2 Transmission Lines — proposed LNP to proposed Citrus Substation, two 500-kV Transmission Lines (Levy and Citrus Counties), also referred to as the "LPC" Lines; Crystal River Transmission Line — proposed LND to existing CREC Switchyard, one 500-kV Transmission Line (Levy and Citrus Counties), also referred to as the "LCR" Line; Sumter Transmission Line — proposed LNP to proposed Central Florida South Substation, one 500-kV Transmission Line (Levy, Citrus, Marion, Sumter and Lake Counties and Municipalities of Wildwood and Leesburg), also referred to as the "LCFS" Line; Levy North Transmission Line — proposed LNP to existing 69-kV Inglis-High Springs Transmission Line, one 69-kV Transmission Line for LNP construction/administration (Levy County), also referred to as the "IS" Line; Levy South Transmission Line — proposed LNP to existing 69-kV Inglis-Ocala Transmission Line, one 69-kV Transmission Line for LNP construction/administration (Levy County and Town of Inglis), also referred to as the "IO" Line; Brookridge Transmission Line — existing CREC Switchyard to existing Brookridge Substation, one 230 kV Transmission Line (Citrus and Hernando Counties), also referred to as the "CB" Line; Brooksville West Transmission Line — existing Brookridge Substation to existing Brooksville West Substation, one 230-kV Transmission Line (Hernando County), also referred to as the "BBW" Line; Crystal River East 1 and 2 Transmission Lines — proposed Citrus Substation to existing Crystal River East Substation, two 230-kV Transmission Lines (Citrus County), also referred to as the "CCRE" Lines; and Polk-Hillsborough-Pinellas Transmission Line — existing Kathleen Substation to existing Lake Tarpon Substation, one 230-kV Transmission Line (Polk, Hillsborough and Pinellas Counties and municipalities of Tampa, Plant City and Oldsmar), also referred to as the "Kathleen" Line. Need for the Project The PSC issued its Final Order determining the need for the Project on August 12, 2008. The PSC found: "a need for Levy Units 1 and 2, taking into account the need for electric system reliability and integrity"; "a need for Levy Units 1 and 2, taking into account the need for fuel diversity"; "a need for Levy Units 1 and 2, taking into account the need for base-load generating capacity"; "a need for Levy Units 1 and 2, taking into account the need for adequate electricity at a reasonable cost"; "[t]here are no renewable energy sources and technologies or conservation measures taken by or reasonably available to PEF which might mitigate the need for Levy Units 1 and 2"; and "Levy Units 1 and 2 will provide the most cost-effective source of power." The PSC also found a need for the associated transmission lines. New transmission lines are required to interconnect and integrate the proposed plant into PEF's existing transmission grid and to reliably deliver bulk power to PEF's load centers. Load flow studies were conducted by PEF system planners to identify the appropriate transmission end- points and voltages. The proposed transmission lines in PEF's proposed corridors satisfy the need for transmission lines as determined by the PSC. Public Notice and Outreach PEF has engaged in extensive public outreach for the selection of the LNP site and for the transmission line corridors. With regard to the plant portion of the Project, PEF's outreach efforts have included communications with local community leaders, press releases, communications with state and federal legislators, dissemination of information to the general public and property owners in the vicinity of the plant via mailings and open houses, and participation in community and advisory groups. With regard to the electrical transmission line portion of the Project, public involvement has been key to the corridor selection process. PEF developed a Community Partnership for Energy Planning (CPEP) process to gain feedback from members of the community in a manner that would most effectively involve the community in the transmission line corridor selection process. Through the CPEP process, PEF established leadership teams in three geographic regions: Hillsborough, Pinellas, Pasco, and Polk Counties; Citrus, Hernando, and Levy Counties; and Lake, Marion, and Sumter Counties. The leadership teams identified and selected more than 100 community representatives to participate in regional Utility Search Conferences. The Utility Search Conferences involved intensive two-day discussions of local issues and the future of electricity supply in the region. The purpose of the conferences was to inform the participants about the Project, to gain public input, and to allow participants to nominate community members to become part of the Community Working Groups for the remainder of the Project. PEF formed the Community Working Groups to further study and refine the recommendations of the conferences as well as to provide ongoing input to PEF throughout the Project. PEF also held open houses in February and March 2008 to involve the public in the transmission line corridor selection process. PEF used newspaper advertisements, press releases, and direct mail letters to facilitate public awareness of the open houses. Over 2,900 people attended the open houses, and PEF received completed written questionnaires from 2,071 attendees. The goal of PEF's public outreach program (with regard to both the plant and transmission lines) was to provide information in a transparent manner to the public and to provide ample opportunity and many avenues for the public to provide input during all phases of the Project. In total, PEF has conducted over 40 public presentations and sent communications to more than 125,000 property owners and stakeholders regarding the Project. Many of PEF's outreach efforts have been beyond the efforts required by law. Pursuant to Section 403.5115(6), Florida Statutes, PEF provided direct notice by mail of the filing of the SCA to all landowners whose property and residences are located within: three miles of the proposed main site boundaries of the LNP; one-quarter mile of a transmission line corridor that only includes a transmission line as defined by Section 403.522(22), Florida Statutes; and (3) one-quarter mile for all other linear associated facilities extending away from the main site boundary. PEF timely submitted a list of the landowners and residences notified to DEP's Siting Coordination Office (SCO), as required by Section 403.5115(6)(b), Florida Statutes. PEF made copies of the SCA available at two of its offices and ten public libraries. In addition, PEF provided copies to all local governments and agencies within whose jurisdiction portions of the Project will be located. DEP made an electronic version of the document available on its website. On June 19, 2008, PEF published notice of the filing of the SCA in the Ocala Star-Banner, the Hernando Today, the Tampa Tribune, The Lakeland Ledger, The Villages Daily Sun, the Levy County Journal, the Orlando Sentinel, the Gainesville Sun, the Citrus County Chronicle, the Sumter County Times, the Hernando Times, and the North Pinellas Times, satisfying the requirements of Section 403.5115(1)(b), Florida Statutes, and Florida Administrative Code Rule 62-17.281(3). On December 18, 2008, PEF published notice of the certification hearing in the same newspapers, satisfying the requirements of Section 403.5115(1)(e), Florida Statutes, and Florida Administrative Code Rule 62-17.281(7). PEF published amended notices of the site certification hearing in the same newspapers on February 17, 2009. DEP also published notices in the Florida Administrative Weekly. All notices required by law were timely published and/or provided in accordance with Section 403.5115, Florida Statutes. Agency Reports and Stipulations Agency reports and proposed conditions of certification on the plant-related facilities of the Project were submitted to DEP by: (1) the PSC; (2) DCA; (3) SWFWMD; (4) Levy County; (5) FWC; (6) the Withlacoochee Regional Planning Council; and (7) DOT. All of these agencies either recommended approval of the Project or otherwise did not object to certification. Although Citrus County did not file an agency report, it recommended approval of the LNP in the prehearing stipulation of the parties. Affected state, regional, and local agencies reviewed the SCA and submitted to DEP reports concerning the impact of the transmission lines on matters within their respective jurisdictions and proposed conditions of certification, as required by Section 403.507(2), Florida Statutes. None of the agencies involved in the review process have recommended that the proposed electrical transmission line corridors be denied or modified. On September 25, 2008, DEP issued its written analysis on the transmission line portion of the Project, incorporating the reports of the reviewing agencies and proposing a compiled set of conditions of certification. The conditions of certification were subsequently revised to reflect agreed-upon language. DEP recommended that the PEF proposed transmission line corridors be certified subject to the conditions of certification. On January 12, 2009, DEP prepared a Staff Analysis Report (SAR) compiling all of the agency reports on the power plant, proposing conditions of certification, and making an overall recommendation. DEP recommended certification of the Project subject to conditions of certification. The conditions of certification attached to the SAR have been superseded by the Fourth Amended Conditions of Certification filed by DEP as DEP Exhibit 1 on March 23, 2009. PEF is committed to constructing the LNP in accord with these conditions. Plant and Associated Facilities2 Project Overview PEF's proposed nuclear-powered electric generating facility (the LNP) will be located in Levy County. The LNP site is east of U.S. Highway 19 and approximately four miles north of the Town of Inglis and the Levy-Citrus County border. The LNP site contains approximately 3,105 acres, with the two reactors and ancillary power production support facilities located near the center of the site. The majority of the LNP site is currently active silviculture and is unimproved. The proposed heavy haul road and pipelines will be located in corridors south of the LNP site. Two site access roads will tie into U.S. Highway 19 west of the site and proceed east to the main plant area. PEF also owns a second 2,000-acre tract contiguous with the southern boundary of the LNP site, which provides access to a water supply in the Cross Florida Barge Canal (CFBC) as well as containing the heavy haul road and electrical transmission line corridors that exit the LNP site. Project Description The LNP will include two 1,100 megawatt (MW) (nominal) generating units (LNP 1 and LNP 2) designed by Westinghouse Electric Company, LLC (Westinghouse). The reactor design has received an official design certification from the NRC and is referred to as the Westinghouse AP1000 Reactor (AP1000). The AP1000 is a standardized, advanced passive pressurized-water nuclear reactor. PEF proposes to place LNP 1 in commercial service by 2016 and LNP 2 in commercial service by 2017. In the AP1000, the reactor core heats water which flows through the reactor cooling system in the primary loop. The reactor coolant pump circulates water through the reactor core. A pressurizer is used to maintain a constant pressure in the primary loop. The heated water flows to the steam generator and through a combination of U-shaped tubes, transferring heat to a separate, independent closed-loop water system, or the secondary loop. Inside the steam generator, the water in the secondary loop boils and is separated in dryers which produce high quality steam. The reactor, the four coolant pumps, and the two steam generators are contained in the containment shield building for each unit. Within the shield building, a steel containment structure surrounds the reactor and steam generators. A passive cooling water tank, which will provide emergency cooling, sits in the top of the containment shield building. The steam in the secondary loop is routed to the adjacent turbine building where it goes into a high-pressure turbine and then three low pressure turbines. The steam produces the force to turn the turbines, which then turn the electrical generator. Electricity is then sent to the on-site switchyard for transmission. The steam exhausting from the turbines moves into the condenser where it comes into contact with the cold surfaces of the tubes in the condenser, which contain water circulating from the cooling tower. The steam condenses back to water. The condensed water is collected in the bottom of the condenser and pumped back into the steam generator. The cycle then repeats. Other components of the AP1000 design include an annex building which contains the main control room; a fuel handling area where new fuel is received and spent fuel is stored; and a diesel generator building. Two cooling towers, three stormwater runoff ponds, and one electrical transmission 500 kV switchyard serving both units are also to be located near the generating units. Each LNP unit will be equipped with a recirculating cooling water system, including a cooling tower, that supplies cooling water to remove heat from the main condensers. The cooling tower makeup water system supplies water to the cooling tower to replace water consumed as a result of evaporation, drift, and blowdown. The LNP's cooling water intake will be located on the CFBC. Cooling water will be conveyed to the LNP site via pipelines. The proposed corridor for the cooling water intake and wastewater discharge pipelines is approximately 13 miles long and 0.25 miles wide. The intake pipeline corridor extends south from the LNP site to the CFBC. The wastewater discharge corridor then turns westerly along the CFBC for six miles before turning south along the western side of an existing PEF transmission line and enters the CREC. As part of its pending application for an NPDES permit, PEF has proposed that LNP wastewater be released into the existing CREC discharge canal. Materials needed to construct the LNP will be delivered via: (1) U.S. Highway 19; and (2) a barge slip on the CFBC in conjunction with the heavy haul road for large components. The heavy haul road, to be used primarily during construction, will be co-located with the makeup and blowdown pipeline corridor south of the LNP site. Federally-Required Approvals The LNP is also subject to the construction and operation approval of the NRC. As part of the federal permitting process for nuclear power plants, PEF has submitted a Combined Operating License Application (COLA) to the NRC. PEF submitted the COLA for the LNP on July 30, 2008. The NRC's review is in progress, and a decision on the application is expected in late 2011. PEF has also requested a Limited Work Authorization (LWA) from the NRC. The LWA request covers the installation of a perimeter diaphragm wall and preliminary foundation work for the two units, and related buildings that are not nuclear safety-related items. An NRC-certified design for the AP1000 allows an applicant for NRC COL approval to avoid readdressing matters that the NRC has already considered when reviewing an individual COLA that uses that standard design. This approach is expected to provide more predictability and reduce the NRC's licensing review process. For PEF, the advantages of a standard design include the ability to apply lessons learned from other projects being constructed ahead of the LNP, as well as improved performance in cost and scheduling. PEF is seeking certification under the PPSA prior to completion of the NRC approval because state site certification will allow PEF to begin early site preparation (such as access roads) and will allow PEF to proceed to acquire property rights within the electrical transmission corridors. The NRC regulates radiological effluents and monitoring at nuclear power plants. The state of Florida does not have regulations specifically applicable to regulation of spent nuclear fuel. Under NRC regulations, nuclear power plants are required to have radiological environmental monitoring programs (REMPs). Part of the REMP is an offsite dose calculation manual (ODCM). The Florida Department of Health (FDOH), Bureau of Radiation Monitoring, performs much of the monitoring in the ODCM at nuclear power plants under an agreement with the NRC. See 42 U.S.C. § 2021(b); Florida Administrative Code Chapter 64E-5. The FDOH also monitors groundwater wells in the vicinity of a nuclear plant for numerous parameters, including radiological releases. In addition to the separate NRC approvals, PEF has filed applications with DEP for [a federally-required Prevention of Significant Deterioration (PSD) air construction permit under the federal Clean Air Act, a National Pollutant Discharge Elimination System (NPDES)] permit under the federal Clean Water Act, and (in accordance with 403.506(3), Florida Statutes) a state-required environmental resource permit (ERP) from DEP for construction of a new barge slip on the CFBC. DEP issued the final PSD air construction permit on February 20, 2009. DEP has not taken final agency action on the pending NPDES permit application. Federally-required permits issued by the DEP under the Clean Air Act and Clean Water Act are not subject to the PPSA. The PPSA provides that federal permits are reviewed and issued separately by the DEP, but in parallel with the PPSA process to the extent possible. Upon issuance, these federal permits will be incorporated into the conditions of certification. The separate DEP-issued ERP will also be incorporated by reference into the final site certification. Water Use The LNP has two primary needs for water: (1) saltwater to cool the steam condensers (circulating water); and (2) freshwater for power generation and component cooling (service water). Freshwater will be drawn from the upper Floridan aquifer. Saltwater will be supplied from the Gulf of Mexico via the CFBC. A circulating water system can be designed to use either freshwater or saltwater. Common design practice is to use the most abundant source; so saltwater was selected for the LNP. The service water system components for the LNP are established by Westinghouse for the AP1000 standard design and require freshwater. The service water system for the AP1000 reactor has been designed to provide an efficient means of cooling plant components with a relatively small demand for freshwater. Most of the water to be used at the LNP site will be needed for steam condenser cooling which will take place in two cooling towers; one for each unit. The source for cooling tower makeup water will be surface saline water withdrawn from the CFBC. Approximately 122 million gallons per day (mgd) will be withdrawn from the CFBC for cooling water needs. A new intake structure would be constructed on the canal bank at a site south of the LNP site and west of the Inglis Lock on the CFBC, approximately 6.5 miles inland from the Gulf of Mexico. Saltwater will be pumped from the CFBC and directed into the cooling tower basin. The circulating water system is a closed-cycle cooling system and is the primary heat sink for the plant during normal operation. Circulating water pumps direct water to the steam condenser to cool the steam after it passes through the main turbines. The heated saltwater is then returned to the cooling towers where it is cooled by air flow and returned to the cooling tower basin. The LNP recirculating cooling water will be cooled by induced draft, counter-flow, mechanical cooling towers. For each unit's cooling tower, there are 44 cooling tower cells, grouped into two banks of 22 cells each. Each of the cooling tower cells will be approximately 75-feet tall. The total length of each 22-cell cooling tower is approximately 1,200 feet. The LNP will have a continuous need to utilize cooling water. Most of the water loss in the cooling towers is a result of evaporation of the water being cooled in the cooling towers. A small amount of circulating water is lost from the cooling towers as liquid droplets entrained in the exhaust air steam. This is known as "drift." When water evaporates from the cooling tower, minerals and solids are left behind. As more water evaporates, the concentration of these materials increases. This concentration is controlled by continuously releasing and replenishing some water from the tower. Accordingly, both saltwater and freshwater are continuously discharged from the plant to help maintain proper water chemistry. This continuous release of water is called "blowdown" and, as proposed in PEF's pending NPDES application, it will be discharged to the discharge canal for the CREC and then into the Gulf of Mexico, a Class III marine water. The LNP will require up to 1.58 mgd, annual average, of freshwater. This freshwater will be used for plant operations, fire suppression, potable water needs, and demineralized water needs. Groundwater will be withdrawn from four supply wells at the south end of the PEF-owned property south of the LNP site. The AP1000 service water system requires freshwater for use in component cooling. The service water system provides cooling water for the nonsafety-related component cooling water heat exchangers. Demineralized water is processed to remove ionic impurities and dissolved oxygen and is used for plant operations that require pure water, primarily the feed water and condensate systems used in power production. When operational, the LNP site must be capable of supplying potable water to approximately 800 employees and visitors daily. Potable water will also be needed for onsite construction. The fire protection system will be capable of providing water to points throughout the plant where wet system fire suppression could be required. The fire suppression system is designed to supply water at a flow rate and pressure sufficient to satisfy the demand of automatic sprinkler systems and fire hoses for a minimum of 2 hours. Cooling Water Intake Structure The LNP cooling water intake structure (CWIS) will be located on the berm that forms the north side of the CFBC approximately 3 miles south of the LNP, downstream of the Inglis Lock. The CWIS will withdraw surface water into four intake pipelines (two for each nuclear unit) that will convey water to the cooling tower basins for use in the cooling towers. These 54-inch diameter pipelines will generally be buried to a minimum depth of five feet. The pipelines will cross over the Inglis Lock Bypass Channel located north of the CFBC on an approximately 33-foot-wide utility bridge. For each of the LNP units, the CWIS will contain three 50 percent capacity makeup pumps, each with a design flow rate of 23,800 gallons per minute (gpm). Two pumps will provide normal cooling tower makeup flow requirements for each unit. The third spare pump will be in standby mode and automatically start if one of the operating pumps shuts down for any reason. A dual-flow traveling screen upstream of each makeup pump will screen floating and suspended materials in the CFBC water. The screen opening will be 3/8-inch. The screens will be sized to ensure that the through-screen water velocity is no more than 0.5 feet per second (fps) to reduce the impingement and entrainment of aquatic life that could enter the pump bay. The velocity of the water in the intake bay upstream of the traveling screens (the approach velocity) will be about 0.25 fps. Upstream of the traveling screens will be trash racks (also referred to as bar racks). These are a series of steel bars (4 inches apart) to prevent large objects from entering the CWIS. Potential Impacts of Surface Water Intake Cooling water will be withdrawn via the CWIS from a section of the CFBC that extends approximately 7 miles from the Inglis Lock west to the Gulf of Mexico. Operation of the Inglis Lock was discontinued in 1999; the lock separates Lake Rousseau (to the east) from this section of the CFBC. This section of the CFBC has a continuous opening to the Gulf of Mexico. The CFBC bisects the Withlacoochee River, severing the original hydraulic connection between Lake Rousseau and the Lower Withlacoochee River. To maintain flow to the Lower Withlacoochee River which is north of the CFBC, the Inglis Lock Bypass Channel and associated Inglis Lock Spillway were built adjacent to the Inglis Lock (north of the CFBC). Flows in the CFBC are primarily a result of tides coming in and out from the Gulf of Mexico and, to a lesser extent, rainfall. Periodically, freshwater is released from Lake Rousseau into the CFBC via the Inglis Dam. Also, there is some groundwater seepage into the CFBC as well as minor leakage from the Inglis Lock. Residence time for water in the CFBC near the proposed CWIS is currently over 200 days; there is very little outflow. Waters in the CFBC downstream of the Inglis Lock vary in salinity seasonally, with tidal influences, and depending on freshwater releases from the Inglis Dam. On average, the salinity in the area of the CFBC where the intake structure is proposed to be located is approximately 10 parts per thousand (ppt). As the CFBC approaches the Gulf of Mexico, salinity increases, averaging over 20 ppt and as high as 30 ppt. The CFBC ranges from approximately 200-to-260 feet wide. There is vegetation along the banks, as well as riprap, the latter consisting of huge rocks to limit erosion. The upper end of this section of the CFBC has algal blooms during the summer and muddy, silty bottom conditions that limit biological activity. The CFBC does not have seagrass beds that serve as aquatic habitat, except downstream where it joins with the Gulf of Mexico. The CFBC does not serve as significant habitat for endangered fish species, such as the Gulf Sturgeon or Smalltooth Sawfish. Although freshwater and saltwater species may use the CFBC occasionally, it does not serve as significant spawning habitat for any migratory, sport, or commercial fish species. Pursuant to the proposed conditions of certification, pre- operational monitoring and sampling in the CFBC will be used to identify any changes in the use of that canal by such fish species. With regard to the remnant section of the Withlacoochee River between the Inglis Dam and the CFBC (Old Withlacoochee River, or OWR), the biota in the middle and lower reaches of that waterbody currently show the effects of variable salinity levels; these areas are characterized by organisms typically found in marine conditions. The upper reach of the OWR has species normally found in freshwater systems. Aquatic species in the OWR are affected by periodic releases from the Inglis Dam. The LNP CWIS hydraulic zone of influence on the CFBC extends about 5 miles to the west down the approximately 7-mile long CFBC. The hydraulic zone of influence defines the point at which the flow of the CFBC would be affected by the CWIS, under static conditions. In its biological analysis, PEF assumed that potential intake impacts would extend beyond this hydraulic zone of influence. After installation and operation of the LNP CWIS, the dominant forces affecting flow conditions in the CFBC will continue to be primarily tidal activity and releases from Lake Rousseau. The CFBC will become more saline. However, installation and operation of the LNP CWIS will improve flow conditions in the CFBC by adding consistent and very slow upstream movement of about 122 mgd. The LNP CWIS will cause the saline-freshwater transition zone to move up the remnant channel of the OWR, south of the CFBC. The increased salinity is not expected to affect the small enclave of freshwater organisms living in that upper segment of the OWR. Potential adverse impacts from a CWIS include entrainment (when organisms smaller than the screen openings enter the cooling water) and impingement (when organisms larger than the screen openings become trapped on the screen). Potential impacts of entrainment and impingement will be minimized because the LNP CWIS will utilize a closed-cycle recirculating cooling water system which will reduce the amount of cooling water required by approximately 90 percent; the through-screen velocity will be 0.5 fps or less; and the LNP will not disrupt thermal stratification in the CFBC. Under federal law, DEP will make the final determination of compliance with Section 316(b) of the Clean Water Act requirements in the NPDES permit. The LNP CWIS is not expected to pose a threat to threatened or endangered species or migratory, sport, or other fish species. Monitoring for fish species in the CFBC will be undertaken under the FWC's proposed conditions of certification to identify any actual impacts to such species and the need for any mitigation for such impacts. Locating the CWIS near the Inglis Lock on the CFBC will result in less entrainment and impingement impacts compared to potential locations closer to the mouth of the CFBC or in nearby off-shore waters. Proposed conditions of certification require PEF to submit a post-certification survey and monitoring plan for the CFBC and Withlacoochee River to assess actual impacts of the withdrawals for the LNP on these water bodies. If, after review of the annual reports required by these conditions by FWC, DEP, and SWFWMD, there is an indication of adverse impacts, PEF must submit a CFBC and/or Withlacoochee River mitigation plan to mitigate those impacts. As part of its pending NPDES permit application, PEF submitted a "316(b) Demonstration Study" to address compliance with intake standards applicable to the LNP CWIS. Final agency action on the NPDES permit application, including a determination of compliance with Section 316(b) regulations, has not been taken by DEP. Under 40 C.F.R., Subpart I, Sections 125.80-125.89, if pre- and post-operational monitoring demonstrates unacceptable adverse impacts associated with the CWIS, operational and technological improvements to the CWIS may be required. Under the proposed conditions of certification, the final NPDES permit for the LNP will be incorporated by reference into the conditions of certification. Operation of the CWIS is expected to have a negligible impact on saltwater intrusion in the area bounded to the south by the CFBC and to the north by the Lower Withlacoochee River. The waters of the CFBC are marine waters. There currently is stratification in the CFBC, with higher salinity along the bottom of the water column. The change in density of water in the CFBC as a result of the increased salinity due to the LNP's proposed water use in the CFBC is not expected to affect freshwater resources. The tide in the CFBC currently fluctuates 2-3 feet twice per day. The construction of the CFBC and the bisection of the Withlacoochee River have resulted in reduced freshwater flows in the lower portion of the Withlacoochee River north of the CFBC. There is no direct connection between the CFBC and the Lower Withlacoochee River (north of the CFBC). The flow in the By- pass Channel provides less freshwater from Lake Rousseau to the Withlacoochee River than historically flowed into the lower portion of the River. This has caused saltwater to move up the Lower Withlacoochee River, particularly during periods of low flow. SWFWMD has evaluated restoration of the River to its original condition, but has not advocated reconnection. Reconnection of the Withlacoochee River or downstream impoundment of the CFBC probably would not prevent the impacts of increased salinity in the Lower Withlacoochee River during periods of low freshwater flow. Although no agency is currently pursuing a project of this type, DEP has proposed a condition of certification to address future public projects for the maintenance, preservation, or enhancement of surface waters requiring modifications to the CFBC. Potential Impacts to Manatees Manatees use the Withlacoochee River and the CFBC year round, but primarily during the warmer months. The CFBC, including the area of the LNP intake, is not listed as critical habitat for manatees under the federal Endangered Species Act. Construction activities in the CFBC can take place in a manner reasonably likely to avoid adverse impacts to manatees. The FWC has proposed conditions of certification designed to protect manatees from adverse impacts of in-water construction through monitoring and mitigative measures. Compliance with these conditions will minimize impacts to manatees. The operation of the LNP cooling water intake structure (CWIS) is not likely to adversely impact manatees. The potential impacts of the LNP CWIS on manatees will be minimized by the system design and location. Additionally, DEP and FWC have proposed conditions of certification requiring PEF to submit a final CWIS plan for review by FWC prior to construction of the CWIS with regard to manatee safety issues. Potential impacts to manatees from barge traffic on the CFBC related to delivery of Project components and materials for the construction of the LNP is not expected to adversely impact manatees. FWC has proposed conditions of certification to protect manatees during in-water construction. Compliance with the proposed conditions of certification will minimize potential impacts to manatees. Impacts of Groundwater Withdrawals The LNP's proposed groundwater use meets all of the SWFWMD's water use criteria. To demonstrate that the proposed groundwater withdrawals associated with LNP operations will comply with the SWFWMD water use criteria, including not causing unacceptable adverse environmental impacts, PEF performed a groundwater modeling analysis using the SWFWMD's District-Wide Regulation Model 2 (DWRM2) groundwater flow model. The DWRM2 is an acceptable groundwater flow model for evaluating the effects of groundwater withdrawals. The DWRM2 modeling demonstrated that the proposed groundwater withdrawals would not lower surficial aquifer levels to the point of causing unacceptable adverse impacts to wetlands and other surface waters, or interfere with existing legal users. Groundwater pumping for the LNP is not expected to adversely impact Lake Rousseau, the Withlacoochee River, or other streams or springs in the Project area. Groundwater withdrawals for the LNP are likewise not expected to induce saline water intrusion, cause the spread of pollutants in the aquifer, adversely impact any offsite land uses, cause adverse impacts to wetland systems, or adversely impact any other nearby uses of the aquifer system. To confirm the values used in the groundwater flow model supporting the application, proposed certification conditions require that an aquifer performance testing plan be submitted by PEF, approved by the SWFWMD, and implemented. If leakance and transmissivity values derived from actual onsite well tests differ more than 20 percent from values determined through earlier modeling, PEF is required to revise its groundwater model to incorporate the aquifer test results and undertake further modeling. Updated groundwater modeling results will be used to determine whether alternative water supplies or additional mitigation will need to be implemented. To help ensure that the proposed groundwater use does not cause unacceptable adverse environmental impacts, SWFWMD and DEP recommended that conditions be included in the site certification requiring an environmental monitoring plan to evaluate the condition of surface waters and wetlands in areas that could potentially be affected by groundwater withdrawals. Monitoring will continue for a minimum of five years after groundwater withdrawals reach a quantity of 1.25 mgd on an annual average basis. Annual monitoring summaries will be submitted. If, after five years, this monitoring demonstrates that no adverse impacts of groundwater withdrawals are occurring or predicted, PEF may request that monitoring be discontinued. Groundwater withdrawals will be metered and reported to DEP and SWFWMD on a monthly basis. Proposed conditions of certification require periodic water quality sampling be performed on the withdrawn groundwater to ensure no adverse impacts to water quality. Proposed conditions also address ongoing monitoring and compliance by requiring a full compliance report every five years throughout the life of the LNP, to demonstrate continued reasonable assurance that the groundwater use is meeting all of the applicable substantive water use requirements set forth in SWFWMD rules. The SWFWMD has not established water reservations or minimum flows or levels for any waterbody in the vicinity of the LNP. Therefore, the use of water from the CFBC and from the ground will not violate any currently established water reservation or minimum flow or level. Fracture sets (also called solution channels) are small openings through which groundwater moves. Fracture sets are only an issue in groundwater flow if preferential flow paths develop near one of the solution channels. Preferential flow paths tend to develop near existing springs. There are no springs on the LNP site, and subsurface investigations did not reveal any evidence of solution channels under the site. PEF also proposes to withdraw groundwater as part of the dewatering needed for plant construction. PEF proposes to install an impervious diaphragm wall around and below the foundation excavations for each nuclear unit to minimize water flow into the construction site. It is anticipated that dewatering at each unit could last as much as two years. Additional construction dewatering will also be necessary in some locations for installation of the pipelines and other linear facilities. Naturally-occurring groundwater collected during dewatering and excavation activities will be directed into stormwater runoff ponds and allowed to filter back into the ground to recharge the surficial aquifer. Dewatering is expected to cause only a modest amount of drawdown of the surficial aquifer. Construction-related dewatering activities will be approved by DEP and SWFWMD on a post-certification basis after final construction designs are submitted. Potential Surface Water Discharge Impacts The LNP will have a combined wastewater discharge comprised of several wastewater streams. Blowdown from the cooling towers will comprise about 98 percent of the LNP wastewater. The blowdown will be combined with significantly smaller quantities of plant wastewaters, treated plant sanitary wastewater, and occasionally stormwater. LNP wastewaters consist of effluents from process equipment, floor drains, laboratory sample sinks, demineralized water treatment system effluent, and treated steam generator blowdown. Wastewaters will be processed before discharge. The treatment systems include oil separators (to separate oily wastes from the rest of the waste stream) and a wastewater retention basin (to settle out suspended particles). The combined LNP wastewater, as proposed by PEF in its pending NPDES permit application, will be piped to the CREC and released into the existing CREC discharge canal which flows into the Gulf of Mexico. The cooling tower blowdown discharges from the LNP will include saltwater blowdown from the plant recirculating cooling water system and freshwater blowdown from the service water cooling system; the vast majority of this will be saltwater blowdown from the plant recirculating cooling water system. The normal 2-unit recirculating water blowdown rate is expected to be 57,400 gallons per minute (gpm) or 81.4 mgd, and the maximum blowdown rate is expected to be about 59,000 gpm or 84.9 mgd. The 2-unit service water blowdown rate is expected to vary from about 130 gpm during normal operation, to a maximum of about 400 gpm. The CREC currently has two NPDES permits authorizing discharges to surface waters of the State. CREC Units 1, 2, and 3 are cooled with once-through cooling water from the CREC intake canal that is then discharged into the Gulf of Mexico via the existing CREC discharge canal. Once-through cooling water is cooling water that is released after condensing the steam, without being recycled in a cooling tower system. CREC Units 4 and 5 have cooling towers that receive make-up water from the CREC discharge canal and release blowdown into the discharge canal. The discharges for all five CREC units are released to the Gulf of Mexico through a single discharge canal at the CREC site. PEF has proposed to utilize the CREC discharge canal for the LNP discharge; however, the final location will be subject to approval as part of DEP's final agency action on PEF's pending application for an NPDES permit. The wastewater flow at the CREC is limited under the existing CREC NPDES permits to 1,898 mgd during the summer and 1,613 mgd during the winter. The expected day-to-day total wastewater flow from the LNP will be 83.4 mgd, with a conservative maximum total flow rate of 87.9 mgd. The proposed LNP discharge would be equivalent to 4-5 percent of the permitted discharge from the CREC. The design temperature of the LNP wastewater discharge is 89.1ºF, which is expected to be met more than 99.5 percent of the time. This LNP design temperature is cooler than the existing permitted temperature of the existing combined CREC discharge (96.5ºF). Even the expected worst case temperature of the LNP discharge (96.4ºF), will be cooler than the existing temperature limit applicable to CREC. With the addition of the LNP discharge, the CREC is expected to continue to meet its existing thermal permit limit. The addition of the LNP wastewater to the CREC discharge canal is not expected to significantly change the existing area of thermal impact associated with existing CREC discharges. Evaluation of the Project wastewater in this certification proceeding indicates that impacts to flora and fauna, including seagrasses and shellfish beds, will be minimized. PEF has committed to a condition of certification requiring the post-certification submittal of a surface water monitoring plan to DEP to ensure there will be no adverse impacts to seagrasses. The finding related to shellfish beds is supported by a letter from the Florida Department of Agriculture and Consumer Services to the DEP stating that "[r]eclassification of the shellfish harvesting areas will not be necessary if the Project is built as proposed." The LNP wastewater is projected to meet the limits defined under 10 C.F.R. Part 20. Evaluation of the LNP wastewater discharge in this certification proceeding indicates that impacts to surface water quality will be minimized. Adding the LNP discharge to the CREC discharge canal is not expected to have an adverse impact on manatees. The LNP discharge structure at the CREC is likewise not expected to cause adverse impacts to manatees that may be present in the CREC discharge canal. Evaluation of the LNP wastewater in this certification proceeding indicates that impacts to benthic invertebrates, fish, and other organisms in the Gulf of Mexico will be minimized. The discharge is not expected to have adverse impacts on endangered fish species. Proposed conditions of certification require PEF to submit a discharge monitoring plan to ensure that the addition of the LNP wastewater to the CREC discharge does not cause adverse impacts. If, after review of the annual reports required under these conditions by FWC, DEP, and SWFWMD, there is an indication of adverse impacts, PEF must submit a mitigation plan to address those impacts. DEP's final agency action on PEF's application for an NPDES permit for the LNP, if issued, will include final action on compliance with water quality standards and will be incorporated by reference into the conditions of certification. Surface Water Management System The LNP surface water management system consists of pipes and ditches that collect and convey stormwater from the plant area into onsite wet treatment ponds before discharge. Stormwater along the heavy haul road will be collected in roadside swales. The plant area will be raised approximately eight feet. Stormwater will drain from this area into three stormwater ponds. Any cross-flows from the plant site toward the raised areas will pass around the site through culverts or ditches. The stormwater ponds and swales are sized to treat stormwater releases to meet SWFWMD rules. In addition, all construction-related surface water management facilities will comply with SWFWMD's surface water management criteria. The design and proper construction and operation of the surface water management system will satisfy SWFWMD's water quantity and water quality criteria in Rules 40D-4.301 and 40D- 4.302. PEF has committed to a post-certification submittal of detailed stormwater design information to address floodplain impacts as required by section 4.7 ("Historic basin storage") of the SWFWMD Basis of Review for Environmental Resource Permit Applications (adopted in Rule 40D-4.091, which is incorporated by reference in Rule 62-330.200(3)(e)). Solid Waste Disposal There will be no onsite disposal of hazardous waste during construction of the LNP. All hazardous waste will be handled in accordance with applicable federal, state, and local regulations. Contractors will be responsible for having detailed procedures in place to handle hazardous waste. During operation, hazardous waste will be managed and disposed of in accordance with federal and state regulations under the federal Resource Conservation and Recovery Act. PEF has procedures in place for management and control of hazardous materials; such materials will be disposed of offsite through permitted facilities. All solid waste generated during construction will be disposed of at a permitted offsite landfill. There will be no onsite disposal of solid waste. Non-nuclear solid waste generated during operation of the LNP will be disposed of offsite at a permitted landfill. A proposed condition of certification precludes processing or disposal of solid waste onsite. Air Emissions, Controls, and Impacts The LNP is a nuclear-fueled power generating facility that will use uranium dioxide pellets in fuel rods. The LNP will also use a relatively small amount of diesel fuel in its emergency diesel generators, ancillary generators, and fire pump engines. Therefore, the LNP will not emit the typical types and quantities of air pollutants from fossil-fueled power generation such as sulfur dioxide, nitrogen oxides, particulates or carbon dioxide (CO2). The sources of air emissions at the LNP will include the two banks of mechanical draft cooling towers and diesel- fueled emergency power generators and fire pump engines. Air pollutants that will be emitted during normal facility operation will be limited to particulate matter (PM), both more than and less than 10 microns in diameter, which will be emitted from the low profile cooling towers. There will be a small amount of air emissions from the diesel-fueled emergency power generators and fire pump engines; however, these emissions are only expected to occur during the few hours per month when the engines are run for maintenance and testing purposes. There will be no other significant sources of air emissions from operation of the LNP. PM emissions from the draft cooling towers will occur as a result of the entrainment of a small amount of water, as small-diameter droplets, in the exhaust stream from the towers. Particulate matter, consisting of the naturally occurring dissolved solids that will be present in the cooling water, will be contained in these entrained droplets. The droplets and the associated suspended solid particulate matter are known as cooling tower "drift." The amount of cooling tower "drift" is controlled through the use of very high efficiency mist eliminators that will be in the cooling tower. The use of high efficiency mist eliminators on the LNP cooling towers is consistent with state and federal regulations that require the use of Best Available Control Technology to limit such air emissions. The LNP will be located in Levy County which is currently attaining all ambient air quality standards for all pollutants. The LNP will not have an adverse or discernible impact on ambient air quality at the LNP site, or at any location, for any regulated air pollutant. The LNP will not generate power by combusting any fuel. Therefore, there will be no measurable greenhouse gas emissions, including carbon dioxide, during normal plant operation. The estimated CO2 emissions from a natural gas-fired combined-cycle generating facility capable of generating the same amount of electricity as the LNP is approximately 6.4 million tons per year. For comparison, the estimated CO2 emissions from the LNP, which result from periodic testing of the facility's diesel-powered emergency equipment, is only 618 tons/year. Visible plumes from the cooling towers will remain very close to the cooling towers (within approximately 300 feet) under most meteorological conditions. The occurrence of visible vapor plumes at offsite locations is expected to be infrequent. The operation of the cooling towers is expected to have no significant or adverse impacts due to ground level fogging on any roadway or at offsite locations during plant operation. The maximum predicted offsite solids deposition rate from operation of the LNP cooling towers is six pounds per acre per month immediately adjacent to the nearest LNP property boundary. This is below the de minimis adverse impact threshold of nine pounds per acre per month published by the NRC. The rate of deposition is predicted to decrease rapidly and significantly with increasing distance from the plant. Operation of the LNP cooling towers is not expected to cause discernible impacts on any natural resources, including surface waters or wetlands. Noise Impacts of Construction and Operation The noise limits applicable to the LNP site are set by the Levy County Code of Ordinances. The noise limits defined by the County ordinance for the area surrounding the LNP site are 65 dBA from 7 a.m. to 10 p.m. and 55 dBA from 10 p.m. to 7 a.m. There are no other local, state, or federal noise regulations that apply to the plant. PEF conducted noise impact evaluations for construction and operation of the LNP. Ambient noise levels were measured at six locations around the LNP site. Noise levels were conservatively estimated by adding the composite average noise levels that would be generated by construction equipment during the loudest phases of construction. Equipment sound propagation factors were obtained from industry references. The noise model known as CADNA/A was used to predict noise levels at onsite and offsite locations, including the nearest residences for both construction and operation. The noise levels during construction activities and during normal maximum operation of the LNP plant site are projected to be below the Levy County noise limits for all hours at all offsite locations, including the locations of the nearest residences. Due to the large buffer surrounding the developed area of the site, and the relatively low noise levels associated with the LNP, there are not expected to be any significant or adverse noise impacts during construction or operation of the LNP. Wetlands and Terrestrial Ecology (Plant and Transmission Line Corridors) The proposed LNP site has been used for many decades for the production of pine. The clearing of native vegetation, furrowing, bedding, planting, and harvesting (primarily for pine) has altered the site from a natural Florida landscape into a monotypical landscape in both upland and wetland areas with reduced functional attributes. There are no open water bodies or streams on the LNP site. There are some flow-way connections between some of the wetlands, but they are not of the kind that will support long- term fish habitat or aquatic insect communities. Due to the silvicultural nature of the site and recent clearing, the ideal complement of biodiversity on the LNP site is no longer present. The predominant wildlife species are those that tolerate a mono-specific pine tree habitat, such as deer, turkey, and wild hogs. While pre-application surveys indicate that protected species occur at and in the vicinity of the LNP site, several of Florida's listed species are not likely to extensively use the LNP site. Impacts to State-listed and important wildlife species that have been documented or may occur on the LNP site and adjacent uplands will be further minimized under the proposed conditions of certification, including pre-construction wildlife surveys and consultation with FWC on the results and needed measures to avoid and mitigate such impacts. Historically, the 3,105-acre LNP site was dominated by forested cypress wetland systems. However, over the last century or more, those have been harvested and allowed to re- grow, so that many of the wetlands are no longer dominated by cypress trees. Today, most of the forested wetland systems in the footprint of development have been cleared of trees. The anticipated maximum wetland impacts for the entire Project, including the impacts from associated facilities and electrical transmission lines, are estimated to be 765 acres. These impacts are estimated to be: 13.3 acres of open water; 638.4 acres of forested wetlands; and 113.0 acres of herbaceous wetlands. Approximately one-half of the wetland impacts are expected to occur on the LNP site and one-half are expected to occur offsite. The Project's 765-acre wetland impact is a conservative estimate, including long-term and short-term impacts that are the result of direct dredging and filling as well as temporary disturbance. It is likely that the actual impact will decrease as the routing of facilities is refined within the electrical transmission and other corridors and on the LNP site. Based on these anticipated wetland impacts and the functions being provided by these wetlands, PEF calculated the proposed maximum wetland functional loss for the LNP to be 410.9 functional units, as determined under Florida's Uniform Mitigation Assessment Methodology (UMAM) contained in Rule Chapter 62-345. The UMAM scoring indicates that, on average, the wetlands being impacted have approximately one-half of the functional ecological value of an ideal wetland system. To comply with the applicable SWFWMD ERP rules under the PPSA process, PEF must offset the wetland impacts caused by the construction and operation of the LNP, associated transmission lines, roads, and pipelines. PEF submitted to DEP a Wetlands Mitigation Plan for the Progress Energy Levy Nuclear Plant and Associated Transmission Lines (WMP). A primary value of the WMP is an overall increase in ecological function provided across several thousand acres in a regionally-significant location. This regional landscape-level ecosystem benefit substantially augments the value of local-scale mitigation activities. The proposed mitigation for the LNP will potentially achieve greater offset of wetland impacts from a regional perspective and is expected to provide significant long-term ecosystem benefit. The WMP identifies a series of possible scenarios from which the appropriate and ultimate mitigation can be derived. Because impacts are still being refined as corridors are narrowed into actual routes, the information in the WMP is designed to demonstrate that there is available and desirable mitigation to affect the final degree of wetlands impacts, once calculated. The comprehensive mitigation plan, as described in the WMP, is an acceptable alternative to traditional "in-basin" mitigation. DEP conceptually approved this WMP with the understanding that more detailed information will be submitted when final routes are established and actual wetland impacts are known. The amount of mitigation PEF will undertake will be based on the amount of wetlands actually impacted. A condition of certification has been included to require submittal of refinements to the mitigation plan for DEP's approval following final certification. PEF looked at ways to reduce and eliminate wetland impacts at several levels, including site selection, routing of roadways, and commitments through discussions with agencies to further reduce impacts as transmission line routes are selected within the transmission corridors. The Project is designed to comply with SWFWMD ERP criteria in Rules 40D-4.301 and 4.302. There are not expected to be unacceptable secondary wetlands impacts due to the construction of the Project. Under SWFWMD rules, as long as a disturbance is at least 25 feet from a wetland, secondary impacts are deemed avoided. For the LNP site, unimpacted wetlands are dozens to thousands of feet away from Project development. Further, the rural and remote location of the facility, along with the high level of security associated with a nuclear facility (i.e., fencing, buffering, and reduced public access) makes causally-connected offsite development unlikely (with regard to the LNP site). The LNP will comply with the cumulative impact requirements of Section 373.414(8), Florida Statutes. The conceptual WMP is designed to be regionally significant and provides ecological benefits beyond the calculated UMAM functional value increase. For example, the WMP has the potential to connect the Goethe State Forest to the historic floodplain of the Withlacoochee River, which will maintain and enhance a large natural wildlife corridor. The LNP is not anticipated to adversely affect the value or functions provided to fish and wildlife and listed species, including any aquatic and wetland species, or other related-water resources. There are no documented listed aquatic or wetland-dependent species that might be adversely affected by construction at the plant site. Impacts to wetland dependent species will be further minimized under the proposed conditions of certification, including pre-construction wildlife surveys and consultation with FWC on the results. PEF has addressed all of the wildlife issues subject to the site certification process. The FWC has recommended certification, subject to conditions related to surveying of development areas and appropriate buffers for species prior to clearing, construction, and development to ensure appropriate relocation or mitigation opportunities and implementation of management activities to ensure the long-term well-being of the species. Project wetlands impacts are not expected to adversely affect the quality of receiving waters with respect to the applicable water quality criteria for those receiving waters, or adversely affect fishing or recreational values or marine productivity. Through implementation of the WMP, construction of the Project is not expected to adversely affect the current condition and relative value of the functions being performed by wetlands. Transportation The primary roadways in the vicinity of the LNP are U.S. Highway 19 (U.S. 19) and County Road 40 (C.R. 40). U.S. Highway 19 is a Florida DOT-maintained, four-lane arterial roadway west of the Project site. C.R. 40 is a Levy County- maintained, two-lane roadway approximately five miles to the south of the plant site. The Levy County Comprehensive Plan has adopted level of service (LOS) standards for roadways within Levy County. While LOS standards do not apply to temporary construction traffic, PEF evaluated the impacts of both LNP construction and operation traffic on adjacent roadways. This evaluation shows that future traffic levels with the addition of the Project construction and operation traffic are projected to be less than one-half the adopted LOS standards for U.S. 19 and C.R. 40. Roadway links during construction and operation of the LNP are projected to operate within adopted LOS standards. Socioeconomic Impacts and Benefits There is an approximate population of 4,700 persons within a five-mile radius of the LNP site. This equates to a population density of approximately 60 people per square mile. The closest towns to the LNP site are Inglis and Yankeetown, which are located approximately 4.1 miles and 8.0 miles southwest of the LNP site, respectively. The total cost of the LNP, including the proposed electrical transmission lines, is approximately $17 billion. The LNP construction workforce is expected to peak at approximately 3,300 workers in 2014. The operation workforce will consist of approximately 800 employees, with an additional 800 workers needed every 18 months for between 20 and 30 days to refuel the facility. PEF sees retention rate benefits when hiring locally and would like to employ the local workforce for construction and operation of the LNP. PEF has programs in place to train local residents to become part of the future workforce for the LNP. These programs focus on both construction and operation personnel and include programs or potential programs at Bronson High School, Chiefland High School, Dixie County High School, the Withlacoochee Technical Institute, and Santa Fe Community College. PEF is also working in partnership with Dunnellon High School (which draws students from Levy, Citrus, and Marion Counties) on a Power Academy to prepare students for the construction and operation of the LNP. PEF has a successful nuclear engineering program partnership with the University of Florida to train both nuclear engineers and plant operators, including the use of a first-of-its-kind digital training simulator. PEF has provided grants to modernize the nuclear facilities at the University of Florida. In 2005, there were approximately 395,000 workers in the region (defined as a 50-mile radius around the LNP, including Levy, Citrus, Marion, Alachua, Dixie, Gilchrist, Hernando, and Sumter Counties). Specific to construction of a nuclear power plant, there were 4,900 heavy construction workers in the region in 2006. It is probable that more of these 4,900 workers will be available due to rising unemployment rates across the region. Unemployment rates for the three counties immediately surrounding the LNP site have risen from around four percent in 2005 to eight percent in late 2008. There is sufficient housing available in the region to accommodate both LNP construction and operation employees. Construction of the LNP is not expected to significantly increase the number of pupils in the surrounding school systems. The school systems in the region of the LNP will be able to accommodate the increased number of pupils as a result of LNP operations workers and their families. Public services and facilities in the region of the LNP are sufficient to absorb any incremental population growth associated with construction and operation workers and their families. Construction of the LNP will have little, if any, impact on recreational facilities and uses in the area around the LNP site in Levy and Citrus Counties. During LNP operation, recreational facilities and uses will not be impacted. There are no officially-designated landmarks within five miles of the LNP site. The peak construction workforce in 2014 will result in approximately $152 million in annual earnings. Construction earnings in other years will also be substantial. In addition to jobs and earnings, the construction of the LNP will contribute an estimated $263 million annually to the regional economy via direct, indirect, and induced goods and services. The direct social and economic impacts of the LNP operation are expected to include approximately 800 direct jobs; 1,100 indirect or induced jobs; and associated increases in sales, property tax, and output revenues. These operations workers are expected to generate over $53 million in annual payroll. The LNP overall is expected to contribute nearly $521 million annually to the regional economy via direct, indirect, and induced goods and services. Local property tax collections will begin when Unit 1 is brought on-line, resulting in approximately $63 million in tax revenue to Levy County in the first year of operation. Annual property tax collections in Levy County of approximately $18 million are projected to increase by $104 million once both LNP units are operational. Archaeological and Historic Sites Construction and operation of the LNP will not adversely impact archaeologically significant sites or historic standing structures. The Project complies with all federal and state standards for identification and protection of archaeological sites. Field surveys of the plant site, the corridor extending south to the CFBC, and the pipeline corridor to the CREC did not reveal any archaeological sites or historic standing structures eligible for listing in the National Register of Historic Places (NRHP). The Florida State Historic Preservation Officer (SHPO) concurred with PEF's survey methodology and the determination that no sites are NRHP- eligible. PEF has guidelines designed to protect historic sites, landmarks, artifacts, and archaeological sites in the event of an inadvertent discovery. The Florida SHPO has concurred with PEF's approach to protect inadvertent discoveries during land-disturbing activities. Land Use PEF filed applications with Levy County for a comprehensive plan amendment and special exception zoning approval for the LNP. Those applications were approved and are now final. The majority of the existing land use on the LNP site is silviculture, and the property is unimproved. The primary existing land use of the property to the south of the LNP, where the heavy haul road, water pipelines, and other facilities will be located, is likewise silviculture and otherwise unimproved. The properties along the blowdown pipeline corridor to the CREC are primarily vacant and largely unimproved. The nearest residence to the LNP is approximately 1.5 miles to the northwest of the power block generating facilities, measured from the edge of the nearest power block to the residence. The electrical generating facilities are designed with a minimum 1,000-foot setback from the property line of any property not under the control of PEF. A natural 100-foot vegetative buffer is required to be maintained around the LNP's perimeter where the adjacent property is not under PEF's control. Given the setbacks, the perimeter vegetation, and the 250-foot maximum height limitation under Levy County's special exception for the LNP, the physical structures at the LNP site will not be visible from surrounding properties at ground level. The location of the LNP is consistent with the existing and future land uses surrounding the site. The cooling water blowdown pipelines are located to have the least impact on the existing land uses in the area. The LNP will have little impact on land uses in the vicinity. The LNP is consistent with the Levy County Comprehensive Plan and land development regulations (LDRs), the Strategic Regional Policy Plan of the Withlacoochee Regional Planning Council, and the State Comprehensive Plan contained in Chapter 187, Florida Statutes. Electrical Transmission Lines Project Description Generally, the purpose of electrical transmission lines is to transmit large amounts of electricity from a generating facility to one or more substations. Transmission lines operate at voltages above 69 kilovolts (kV). Bulk power, generally operating at 230-kV or 500-kV, is transferred from the generating plant to the substation. At the substation, the voltage of the electricity is changed through transformers and other electrical equipment for further transportation or distribution directly to customers. PEF is seeking certification of nine proposed corridors for transmission lines associated with the LNP. A proposed corridor is associated with each of the proposed transmission lines identified in Findings of Fact 182-189. All of the proposed transmission lines will directly support the construction and operation of the LNP. Corridor Selection Methodology PEF established a multi-disciplinary team to identify a corridor for each of the proposed transmission lines. The role of this team was to select a proposed corridor for certification for each line based on an evaluation of environmental, land use, socioeconomic, engineering, and cost considerations. The multi-disciplinary team was composed of experts in transmission line design, land use planning, system planning, real estate acquisition, corporate communications, and environmental disciplines as they relate to transmission lines. The multi-disciplinary team engaged in four major steps in this process. The first was to establish and define a project study area for each transmission line. The second step was to conduct regional screening and mapping. The third step was to select and evaluate candidate corridors using both quantitative and qualitative analysis. The fourth step was to select the proposed corridors and identify the boundaries of those corridors. Data collection was performed in connection with this effort from the databases of federal, state, regional, and local agencies and organizations, as well as from the public in a series of conferences and open houses described in Findings of Fact 8-11. A number of field studies, internal meetings, and individual and small group meetings were held with members of the public as a part of the process. In defining the project study area for each transmission line, the multi-disciplinary team considered the starting and ending points for the lines and other linear facilities in these areas. Within each study area, the multi-disciplinary team gathered regional screening data from a variety of sources to identify the different types of opportunities and potential constraints for siting a transmission line in the project study areas, such as various environmental and land use features, existing infrastructure, archeological and historical sites, roads, railroads, rivers, waterbodies, and similar features. The multi-disciplinary team evaluated each corridor using quantitative environmental, land use, and engineering criteria. Relative weights for each quantitative criterion were developed and validated with input from agency representatives and the public during the public outreach portion of the corridor selection process. The weights were applied to the quantitative values for the criteria for each candidate corridor segment and the scores were tabulated for all candidate corridors. The candidate corridors were then ranked in order from best to worst based on quantitative weighted scores. The high-ranking candidate corridors were then evaluated using predetermined qualitative criteria which do not lend themselves easily to quantification, such as the types of wetlands and vegetation present, safety, constructability considerations, and other similar considerations. Based on the quantitative and qualitative evaluation of the high-ranking candidate corridors, the multi-disciplinary team ultimately chose the nine proposed corridors. Once the proposed corridors were selected, the multi-disciplinary team refined the boundaries of each of the PEF proposed corridors. The team developed corridor boundaries of varying widths by narrowing the corridor to avoid siting constraints where practicable or widening the corridor to take advantage of siting opportunities. Transmission Line Design A transmission line generally consists of a steel or concrete structure, the conductor, which is attached to the structure by an insulator, and overhead groundwires used for lightning protection and communications for the protection and control systems located in the substation. Access roads and structure pads are also associated with transmission lines. The Project’s 230-kV and 69-kV transmission lines will be constructed using single-shaft tubular steel or spun concrete structures. The conductors will be attached to the structures with braced line post or V-string insulators. The braced line post arrangement is a compressed construction design which minimizes the amount of right-of-way needed. The V-string insulator design allows longer span lengths due to the increased strength of this assembly. Typical heights will range from 80 to 145 feet for the 230-kV structures and 60 to 90 feet for the 69-kV structures. The 500-kV transmission lines will be constructed using tubular steel H-frame or monopole structures. The conductors will be attached to the structures with V-string insulators which provide the necessary strength and minimize the amount of right-of-way needed. Structure heights will range from 110 to 195 feet. The span length between structures and the pole height will vary due to natural or man-made constraints such as wetlands, waterbodies, property boundaries, existing utility poles, utility lines, and roadways. The typical spans between structures supporting 230- kV transmission lines will range from approximately 500 to 700 feet for the braced line post structures and 700 to 1,400 feet for the V-string structures. The typical spans between structures supporting 69-kV transmission lines will range from approximately 250 to 600 feet. The typical spans between structures supporting 500-kV transmission lines will range from approximately 1,000 to 1,500 feet. Access roads and structure pads will be constructed only where necessary. When new roads are required, they will typically be 18 feet wide and unpaved, with the top elevation, two feet above the expected seasonal high water line. Generally, the existing ground will be leveled, a geotextile fabric will be installed, and compacted sand and gravel will be added to arrive at the desired road elevation. Culverts will be installed as required to maintain preconstruction waterflows. Structure pads will typically be 70 feet wide and 100 feet long and unpaved, with the top elevation, two feet above the expected seasonal high water line. The size of the structure pads will vary depending upon the heights of the structures supported and other site-specific factors. The designs for these access roads and structure pads have been used by PEF in the past and have been previously approved in Florida. Design Standards The transmission lines will be designed in compliance with all applicable design codes and standards. These include the National Electrical Safety Code, the standards of the North American Electrical Reliability Corporation, DEP's regulations on electric and magnetic fields, applicable local government requirements such as noise ordinances, and the DOT Utility Accommodation Manual. PEF's own internal design standards incorporate appropriate provisions or guidance from design codes and standards of the American Society of Civil Engineers, the Institute of Electrical and Electronics Engineers, and American Society of Testing Materials, the American National Standards Institute, and the American Concrete Institute. Transmission Line Construction PEF will work with the regulatory agencies and landowners to determine where the rights-of-way, transmission structures, access roads, and structure pads should be located. As rights-of-way are being selected, they will be surveyed to facilitate acquisition of the necessary property interests. After the right-of-way is established within the certified corridor, the initial phase of construction involves clearing the right-of-way. Where the proposed right-of-way is in uplands, the right-of-way clearing for the project will consist of vegetation and tree removal as necessary. Where the proposed right-of-way is in wetlands, vegetation will be cleared utilizing restrictive clearing techniques as necessary for specific sites. Restrictive wetlands clearing will be done by hand, with chainsaws or low ground-pressure shear or rotary machines, to reduce soil compaction and damage to vegetation. The cut material will be removed from the right-of-way utilizing either low ground-pressure equipment or temporary construction mats. Care will be taken to minimize rutting and disturbance of root mat. After the right-of-way is cleared, any necessary access roads and structure pads will be constructed. Existing access roads and structure pads will be used whenever practicable. Where a transmission line will be constructed adjacent to an existing transmission right-of-way, improvements to the associated access roads and paths may be made. Where adequate access roads or structure pads do not exist, new roads and pads will be constructed. The next phase of construction will involve the erection of the structures. All structures will be supported with engineered foundations. Tangent structure foundations will normally consist of either direct buried structures with concrete backfill or reinforced-concrete drilled piers. Structures may also utilize guys and anchors at angle and deadend structures to help support the load. Transmission structures are generally delivered to the site using semi-trucks with open trailers and are assembled onsite as close as possible to the foundation. Typically, the structures are framed with the structure arms and insulator assemblies while lying on the ground. During the assembly process, poles are maneuvered into place using cranes and other lifting equipment to facilitate connections. Once assembled, a crane is used to lift the structures for final placement on the foundation. After the structures are erected, conductor installation will commence. The process of installing conductors involves stringing a pilot line into each structure stringing block to form a continuous connection between stringing end points. This pilot line is then used to pull the conductor into position. The conductor is then tensioned to design specifications, transferred to the support clamp, and clipped into position. The operation is performed on all overhead ground wires and conductors. Typical equipment used in the conductor installation operation includes bucket trucks, wire pulling equipment, guard structures, wire reels, trailers, tensioners, and support vehicles. The final stage of construction will be right-of-way restoration which includes removal of all construction equipment and supplies, grading the right-of-way if needed, and planting or seeding of the disturbed area if needed. During all stages of construction, PEF will maintain traffic on any adjacent county, state, or federal roadways in compliance with DOT regulations. Sedimentation management techniques, including turbidity screens, temporary culverts, silt fences or staked hay bales, and the seeding or mulching of side slopes, will be utilized to minimize potential impacts to water quality from erosion and sedimentation. Corridor Descriptions The LNP will add approximately 185 miles of new 69- kV, 230-kV, and 500-kV transmission lines to be placed within nine proposed corridors. The proposed corridors provide significant opportunities for collocation with other linear facilities such as roads and transmission lines which provides the opportunity to reduce costs, the amount of new access road construction, impacts to wildlife habitat, and other impacts. The width of the proposed corridors varies along the routes to provide flexibility within the corridors to avoid impacts to existing developments, large wetland areas, and other features. After certification, and following the selection of rights-of- way, the boundaries of the corridors will be reduced to those of rights-of-way. The first proposed corridor is associated with the Citrus 1 and 2 lines. The Citrus lines are also referred to as the "LPC" transmission lines and the proposed corridor is referred to as the LPC corridor. The Citrus lines are two 500- kV transmission lines that will connect the LNP to the proposed Citrus Substation, which is not a facility for which PEF is seeking certification. The Citrus 1 and 2 lines will be located in Levy and Citrus Counties. This proposed corridor is approximately seven miles long and one mile wide. The LPC Corridor begins at the LNP site boundary and proceeds south on PEF-owned property south of the LNP site. Through the southern property, the LPC Corridor is collocated with the proposed Sumter and Crystal River 500-kV lines, the Levy South Administration 69-kV line, and is adjacent to the proposed LNP heavy haul road and water pipeline corridors. Continuing south, the LPC Corridor remains collocated with the Sumter and Crystal River lines as well as PEF's existing IO 69-kV line at some locations. The LPC corridor will cross C.R. 40, the CFBC and Inglis Island (which is wedged between the LWR and the CFBC), and will terminate at the proposed Citrus Substation located just north of PEF's existing Crystal River Central Florida transmission line in Citrus County. The second proposed corridor is associated with the Crystal River line, which is also referred to as the "LCR" transmission line and the corridor is referred to as the LCR Corridor. The Crystal River line is a 500-kV transmission line that connects the LNP to the existing CREC switchyard in Citrus County. The Crystal River line will be located within Levy and Citrus Counties. The LCR Corridor is approximately 14 miles long and one mile wide. It begins at the LNP site boundary and proceeds south on the PEF-owned property south of the LNP site. Through the southern property, the LCR corridor is collocated with the proposed Sumter and Citrus 1 & 2 500-kV lines, and the Levy South Administration 69-kV line, and is adjacent to the proposed LNP heavy haul road and water pipeline corridors. Continuing south, the corridor remains collocated with the Sumter and Citrus 1 & 2 lines as well as PEF's existing IO 69-kV line in some locations. The LCR Corridor will cross C.R. 40, the CFBC and Inglis Island, and will enter the existing PEF Crystal River to Central Florida transmission line right-of-way. At this point, the LCR Corridor turns west and follows the general alignment of the existing PEF Crystal River to Central Florida Transmission right-of-way into the CREC where it terminates at the CREC 500-kV switchyard. The third proposed corridor is associated with the Sumter line, which is also referred to as the "LCFS" transmission line. This corridor is referred to as the LCFS Corridor. The Sumter line is a 500-kV transmission line that will connect the LNP to the proposed Central Florida South Substation in Lake and Sumter Counties, which is not a facility for which PEF is seeking certification. The Sumter line will be located in Levy, Citrus, Marion, and Sumter Counties. The LCFS Corridor is approximately 59 miles long and ranges in width from approximately 1,000 feet to one mile wide. For most of its length, the 500-kV LCFS Corridor is collocated with the existing PEF transmission lines, except in the vicinity of the Central Florida South Substation, where it is collocated with the Florida Turnpike. The LCFS Corridor begins at the LNP site boundary and proceeds south on the PEF-owned property south of the LNP site. It will be collocated with the proposed Citrus 1 & 2 and Crystal River 500-kV lines and the Levy South Administration 69-kV line. The LCFS Corridor crosses C.R. 40, the CFBC and Inglis Island, and continues south until reaching the existing PEF Crystal River to Central Florida transmission line right-of-way. At that point, the LCFS Corridor turns east and follows the existing transmission line right-of-way through Citrus and Marion Counties for approximately 45 miles. The corridor turns southeast crossing into Sumter County and crosses S.R. 44 and I-75. The remaining five miles of the LCFS Corridor follows the general alignment of the Florida Turnpike to the southeast and terminates in the area of the proposed Central Florida Substation near Wildwood. The fourth proposed corridor is associated with the Crystal River East 1 & 2 lines, which are also called the "CCRE" transmission lines. This is the CCRE Corridor. The Crystal River East lines are two 230-kV transmission lines that will connect the proposed Citrus Substation to the existing Crystal River East Substation in Citrus County. The lines will be located entirely within Citrus County. The CCRE Corridor is approximately 2.7 miles in length and one mile wide. The west end of the north boundary of the corridor is approximately one- half mile west of U.S. 19 and runs east approximately one-half mile north of West Dunnellon Road (CR-488). The west end of the south boundary of the corridor starts approximately 1 mile west of U.S. 19 and runs east along the northern boundary of the existing PEF transmission right-of-way. At a point approximately 0.3 miles east of U.S. 19, the corridor shifts south approximately one-half mile and continues east for another mile. The corridor also includes five existing 115-kV, 230-kV and 500-kV transmission lines and the Crystal River East Substation. The fifth and sixth proposed corridors are associated with the Levy North and South lines, which are also referred to as the "IS" and "IO" transmission lines. The Levy North and South lines are 69-kV transmission lines required to supply power for the construction and administration of the LNP. These lines will be located entirely within Levy County, and are mostly located on property owned by PEF in the immediate vicinity of the proposed LNP. The IS Corridor is approximately 373 feet in length and 400 feet wide. The IO Corridor is approximately 4.5 miles in length and one mile wide. The IO Corridor will begin at the south boundary of the LNP site and extend south to encompass the existing 69-kV transmission line located south of C.R. 40 in Levy County. The IS Corridor will begin at the west boundary of the LNP site and extend west to encompass the existing 69-kV transmission line that is located parallel to and east of U.S. 19 in Levy County. The seventh proposed corridor is associated with the Brookridge line, which is also referred to as the "CB" transmission line. The corridor is referred to as the CB Corridor. The Brookridge line is a 230-kV transmission line that will connect the existing CREC to the existing Brookridge Substation in Hernando County. The Brookridge line will be located in Citrus and Hernando Counties. The overall length of the CB corridor is approximately 38 miles and ranges in width from approximately 1,000 feet to one mile. The corridor begins at the CREC switchyard and proceeds east towards the existing Crystal River East Substation then southeast to S.R. 44. The corridor collocates with existing transmission line rights-of- way. At S.R. 44, the corridor turns south, following the existing PEF 115-kV transmission right-of-way. Approximately one mile south of Centralia Road, the corridor turns east and ends at the existing Brookridge Substation. The eighth proposed corridor is associated with the Brooksville West line, which is also called the "BBW" transmission line. The corridor is referred to as the BBW Corridor. The Brooksville west line is a 230-kV transmission line that will connect the existing Brookridge Substation to the existing Brooksville West Substation in Hernando County. This line will be located entirely within Hernando County. The overall length of the BBW Corridor is approximately three miles and one-half mile wide. The BBW Corridor exits the Brookridge Substation, collocated with PEF's existing 500/230/115-kV transmission line right-of-way, and travels along Sunshine Grove Road to the south. It terminates at the Brooksville West Substation. The ninth and final proposed corridor is associated with the Kathleen line, which is also called the "PHP" transmission line. The corridor is referred to as the PHP Corridor. The Kathleen line is a 230-kV transmission line that will connect the existing Kathleen Substation in Polk County to the existing Lake Tarpon Substation in Pinellas County. The Kathleen line will be located in Polk, Hillsborough, and Pinellas Counties. The overall length of the PHP Corridor is approximately 50 miles, and it ranges in width from approximately 300 feet to 1000 feet. The corridor begins at the Kathleen Substation and travels west. It crosses U.S. 98 and turns south along the existing transmission line right-of-way to the Griffin Substation. At the Griffin Substation, the corridor turns west paralleling C.R. 582. The corridor crosses U.S. 301 and turns north and then west and crosses I-75, continuing northwest and following the existing transmission right-of-way, and then crosses I-275 and the Veteran's Expressway to the Lake Tarpon Substation. No alternate corridors were proposed for any of the nine proposed transmission line corridors. For each PEF- proposed transmission line corridor, the proposed corridor is the only corridor for the respective line that is proper for certification in this proceeding. For each of the proposed corridors, engineering features of interest, natural resource features, and land use features have been identified and depicted on maps, aerial images, and photographs, which have been utilized in the analysis of the corridors. Operational Safeguards The operational safeguards for each of the transmission lines proposed by PEF are technically sufficient for the public welfare and protection. Each transmission line will be designed, constructed, operated, and maintained in compliance with all applicable codes, standards, and industry guidelines, including: the National Electric Safety Code; the North American Electric Reliability Corporation; the American National Standards Institute; applicable local government requirements; the DOT Utility Accommodation Guide; and PEF's internal design standards, which incorporate appropriate provisions or guidance from design codes and standards of the American Society of Civil Engineers, the Institute of Electrical and Electronics Engineers, the American Society of Testing Materials, the American National Standards Institute, and the American Concrete Institute. Each of the transmission lines proposed by PEF will be constructed, operated, and maintained in compliance with the applicable standards which regulate the electric and magnetic fields associated with new transmission lines. Compliance with the electric and magnetic field requirements has been calculated for each of the configurations that may be utilized for the Project. The results were then compared to the requirements contained in DEP's Rule 62- 814.450(3). The maximum expected values from all configurations for the electric fields and for the magnetic fields are within the values set forth in the rule. The calculations were performed in accordance with the rule requirements, using the maximum voltage and current for each configuration. Operation of any of these transmission lines at maximum voltage and current is not a likely condition. At normal operating levels of voltage and current, the electric fields produced by the transmission lines will be less than calculated at the maximum operating conditions, and the magnetic fields produced will be about 50 percent less than calculated at the maximum operating conditions. The levels of electric and magnetic fields at the edge of the rights-of-way associated with the transmission lines are similar to levels that are experienced by exposure to common household appliances. Transmission lines can generate audible noise as a result of build-up of particles on the conductor. This is known as corona. During periods of fair weather, particulate matter can collect on the conductor causing low levels of audible noise. During rain events, the particles are washed off and replaced with water droplets on the conductor that create a condition that can result in slightly higher levels of audible noise. The noise levels experienced during rainfall events are temporary and masked by the sound of rain falling on vegetation and other surfaces, and the noise is reduced as soon as the water droplets evaporate from the conductor. The expected levels of noise have been calculated using an industry standard software program known as the Bonneville Power Administration Corona Field Effects Program. The calculations performed for each of the transmission lines demonstrate that the maximum audible noise levels at the edge of the right-of-way will be less than the noise levels from most rainfall events or conversational speech at a distance of five feet. The calculated noise levels are expected to comply with all applicable noise ordinances. The operation of the proposed transmission lines is expected to cause minimal interference with radio and television reception in the vicinity of the transmission lines. Radio and television interference can be produced by corona on transmission line conductors or as a result of faulty equipment. Based upon the studies that have been performed, it is not expected that significant interference will occur. Beginning on July 12, 2009, the Federal Communications Commission has directed all television station operators to convert their transmissions to digital format. Digital signals are unaffected by electric fields or weather disturbances. In the event any homeowner or business experiences abnormal interference as a result of the transmission lines, PEF will investigate the complaints and mitigate impacts appropriately. Part of the BBW Corridor has an existing natural gas pipeline and a proposed additional natural gas pipeline that will be operated by Florida Gas Transmission Company. Safety concerns will be addressed in a licensing agreement allowing the pipeline company to utilize the right-of-way. Such collocation is common throughout Florida. The licensing agreement will require that the pipeline company comply with all applicable safety requirements for pipeline operation and will require that the pipeline design be reviewed by an independent engineering company to ensure that the pipeline can be safely operated given the constraints of the design and the proximity of transmission lines. This will ensure that the pipeline can be safely operated near the transmission lines and the electric current. Compliance with Nonprocedural Standards of Agencies The construction, operation, and maintenance of each of the proposed transmission lines in the proposed corridors is expected to comply with the applicable nonprocedural requirements of agencies. The parties have agreed that the conditions of certification found in DEP Exhibit 1 are the applicable nonprocedural requirements of the state, regional, and local agencies with regulatory jurisdiction over the transmission lines. PEF has agreed to construct, operate, and maintain the transmission lines in the proposed corridors in compliance with the conditions of certification. No variances or exemptions from applicable state, regional, or local standards or ordinances have been requested or are needed for construction, operation, and maintenance of these transmission lines. Consistency with Local Government Comprehensive Plans and Land Development Regulations There are a number of different land uses within the nine proposed corridors ranging from open lands, recreational lands, mining and agricultural lands, public and conservation lands, commercial uses, and residential. The construction of the transmission lines in the respective proposed corridors is not expected to impact the existing land uses or change those land uses. The location of the transmission lines in the proposed corridors is appropriate from a land use perspective. The construction, operation, and maintenance of the transmission lines in the respective corridors are compatible with all types of existing land uses occurring in the vicinity of those corridors. Each of the proposed transmission lines will be constructed, operated, and maintained in the proposed corridors consistent with applicable provisions of local government comprehensive plans and land development regulations. After certification of the LNP, each proposed transmission line will be located and constructed established rights-of-way, including easements acquired after certification of the respective corridors. Construction of transmission lines on such established rights-of-way is excepted from the definition of "development" contained in Section 163.3164(6), Florida Statutes. To the extent that comprehensive plans or land development regulations of the local governments crossed by the transmission lines include provisions that are applicable to non-development activities, the transmission lines in each of the designated corridors will be consistent and in compliance with those requirements. Meet Electrical Energy Needs of the State In an Orderly, Timely and Reliable Fashion Each proposed transmission line will be constructed, operated, and maintained in the proposed corridor to meet the electrical energy needs of the state in an orderly, reliable, and timely fashion. The anticipated schedule for the transmission line portion of the Project calls for the permitting, licensing and engineering activities, right-of-way acquisition, and construction to be carried out such that the transmission lines are constructed and operating in 2015 in advance of certain construction and start-up activities for LNP Unit 1. The proposed corridors maximize collocation opportunities for the transmission lines, enabling the collocated transmission lines to be constructed in a more timely and efficient manner. PEF will make all practicable efforts to minimize the impacts to traffic from the proposed transmission lines. PEF will comply with conditions of certification proposed by DOT and local governments to facilitate the orderly construction, operation, and maintenance of each of the transmission lines in the proposed corridors. Reasonable Balance Between the Need and the Impacts Each of the transmission lines is essential to meet the need identified by the PSC. PEF has a long history of reliably constructing, operating, and maintaining similar transmission lines throughout Florida. Each of the transmission lines is designed to comply with stringent reliability standards such as the National Electrical Safety Code and the standards of the North American Electric Reliability Corporation. The construction, operation, and maintenance of the transmission lines in the proposed corridors will meet the need identified by the PSC. The PSC determined that there is a reliability need for additional base-load capacity by 2016. Levy Units 1 and 2 will add 2200 MW of capacity, and new transmission lines are necessary to accommodate this capacity on the electrical power system. The required transmission facilities include those necessary to connect the LNP to PEF's existing grid and to reliably integrate the additional capacity into the existing transmission system. PEF cannot meet the need identified by the PSC without these proposed transmission lines. PEF's proposed corridors were chosen using a multidisciplinary team of experts to minimize impacts on the environment. Each transmission line will be constructed, operated, and maintained in the designated corridor with minimal adverse environmental impacts. The corridor selection process involved regional screening to minimize inclusion of areas of ecological constraints. Each corridor maximizes utilization of previously disturbed areas, where possible. The corridor width has been selected for each corridor to provide flexibility for selection of the final right-of-way to provide the ability to avoid ecological resources within the corridor to the extent practicable. No adverse impacts to air quality are anticipated as a result of the construction or operation of the transmission lines. Each of the transmission lines will be constructed, operated, and maintained in the proposed corridor with minimal, if any, adverse impact to water quality. Each transmission line will be constructed, operated, and maintained in the proposed corridor with minimal adverse impact to fish and wildlife, including protected animal species. The presence of protected animal species was an important consideration during the corridor selection process, and each corridor avoids areas with known concentrations of protected species occurrences to the extent practicable. The agreed-upon conditions of certification require that preconstruction surveys be conducted, and the results will be submitted to the FWC for analysis. Mitigation, as appropriate, may be required. Each transmission line will be constructed, operated, and maintained in the proposed corridor with minimal adverse impact to water resources, including wetlands. Water resources, including wetlands, were an important consideration during the corridor selection process and were avoided to the extent practicable. Structures will not be constructed in major water bodies. The spans between structures will be varied to avoid wetland areas and other sensitive areas, where practicable. Herbaceous wetland communities, including marsh and wet prairie wetlands, can continue to grow underneath the proposed transmission lines. Best management practices will be utilized during construction to ensure that impacts to water bodies and other water resources are minimized. Each transmission line will be constructed, operated, and maintained in the proposed corridor with minimal adverse impacts to other natural resources, including protected plant species and wildlife habitat. The presence of protected plant species and wildlife habitat were important considerations during the corridor selection process and were avoided to the extent practicable. Wildlife habitat in the vicinity of each of the corridors with collocation opportunities has been altered from its natural state for construction and maintenance of the linear facility already there. This will minimize potential impacts. Minimize Adverse Effects Using Reasonable and Available Methods PEF will use reasonable and available methods during construction, operation, and maintenance of the transmission lines in the proposed corridors to minimize adverse effects on human health, the environment, and the ecology of the land and its wildlife and the ecology of state waters and their aquatic life. Construction, operation, and maintenance of the transmission lines in the designated corridors will comply with the limits for electric and magnetic fields established by DEP in Rule Chapter 62-814 and by the National Electric Safety Code and related standards. In the corridor selection process, collocation opportunities were considered to be a significant criterion, and the corridors were chosen in a way that maximizes collocation with existing linear facilities. This is advantageous because existing linear facilities often provide existing access, and collocation can minimize the need for new access roads and structure pads and the need for new clearing, generally minimizing impacts. PEF will avoid wetlands and water bodies to the extent practicable by varying the length of the spans between structures. PEF will use restrictive clearing practices on forested wetlands, removing vegetation selectively. In cases in which fill is required, PEF will install culverts to maintain water movement. PEF will allow certain vegetation to re-grow, or re- vegetate, in the rights-of-way of the transmission lines following construction, which will maintain suitable habitat for certain listed species. Wetland impacts that cannot be avoided will be appropriately mitigated. Prior to final rights-of-way determination and the beginning clearing in the rights-of-way for the transmission lines, surveys for protected plant and animal species will be conducted to verify their presence or absence in the proposed transmission line right-of-way for each of the lines. In the event that protected plants or animals cannot be avoided, efforts will be made to relocate the individuals in consultation with the FWC and the United States Fish and Wildlife Service, or to provide appropriate mitigation in accordance with the conditions of certification. PEF has agreed to comply with the conditions of certification in the construction, operation, and maintenance of each of the transmission lines. The conditions require measures to eliminate or minimize potential impacts to the environment, including impacts to the ecology of the land and its wildlife and the ecology of state waters and their aquatic life. Serve and Protect the Broad Interest of the Public The construction, operation, and maintenance of the transmission lines in the proposed corridors will serve and protect the broad interests of the public. The public's interest is served through the provision of safe, reliable, and cost-effective electric service. The transmission lines are essential for providing that service. The public outreach program carried out by PEF provided the public with an avenue to voice their concerns. Concerns expressed were considered in the selection process. The corridor selection process maximized collocation opportunities for the selection of each of the corridors, where practicable. By following existing linear features where possible, the corridors and the ultimate rights-of-way can conform to existing development patterns and minimize intrusions into surrounding areas. Collocation reduces costs and impacts. The existing land uses found within the corridors are compatible with each of the proposed transmission lines in part because the corridors are collocated with linear facilities to the extent feasible. The transmission lines that are proposed can coexist with the types of development that are found along each of the corridors. As a result of the process utilized by the multidisciplinary team, the corridors minimize the number of homes that may be affected and avoid public and conservation lands to the maximum degree practicable. The transmission lines will minimize the impacts on cultural and historical resources by avoiding those areas where practicable and by performing a preconstruction survey in consultation with DEP and the Division of Historical Resources to determine the appropriate action should such resources be found. Disruption to traffic during the construction of each of the transmission lines is expected to be minor. PEF will comply with conditions of certification proposed by DOT and local governments to ensure minimization of traffic impacts. Radio and television interference as a result of the operation of the transmission lines will be minimal, and any impacts will be addressed by PEF. The expected noise levels from the transmission lines will be similar to the noise levels resulting from rainfall events and conversation at five feet. The calculated noise levels will comply with all applicable noise ordinances and requirements. The electric and magnetic fields produced by the transmission lines will comply with the applicable standards established by the DEP. Southern Alliance for Clean Energy (SACE) Following the withdrawal of the other intervenors in this proceeding, SACE was the only remaining party opposing certification of the Project. In the prehearing stipulation of the parties, SACE appears to raise five basic issues: (a) there must be express conditions in the agency reports to address impacts to wetlands, fish, wildlife, water resources, and necessary mitigation should the Project not be completed; (b) adverse impacts to wetlands and water resources; (c) business risks of "significant delay, default or abandonment"; (d) risks to fish, marine wildlife, and vegetation; and (e) agency reports must address risks to water resources, wetlands, fish, marine wildlife, and vegetation. SACE did not offer the testimony of any witnesses or present any evidence in this proceeding on these or any other issues. With regard to SACE's first issue, SACE has failed to identify which of the reviewing agencies neglected to propose appropriate conditions or what additional conditions are necessary. In any event, the record shows that DEP, FWC, and SWFWMD all proposed extensive conditions in their agency reports related to protection of wetlands, fish, wildlife, water resources, and/or mitigation of Project-related impacts. With regard to wetlands mitigation, if the Project is not completed, PEF will perform mitigation necessary to compensate for wetlands actually impacted. See Finding of Fact 126. SACE's second contention is that the Project will cause adverse impacts to wetlands and water resources. As detailed in Findings of Fact 73, 115-131, 133-134, PEF has presented competent, substantial evidence that the LNP will not cause adverse impacts to wetlands or to water resources that are not fully offset by mitigation. SACE did not present any contrary evidence. Further, as indicated in Findings of Fact 124-126, 130, and 134, PEF has proposed a comprehensive wetlands mitigation plan that will offset any adverse impacts to wetlands caused by the construction of the LNP. SACE did not present any evidence that this mitigation plan, which has been conceptually approved by the DEP, is inadequate to protect wetlands or meet regulatory requirements. SACE's third contention is related to business risks of "significant delay, default or abandonment." These matters are not relevant under the PPSA criteria, Section 403.509(3), Florida Statutes, but are instead addressed by the PSC. A petition for a determination of need for a new nuclear plant must include a cost estimate, base revenue requirements, and information related to joint ownership discussions. See § 403.519(4)(a), Fla. Stat. The PSC has already determined that the Project is needed, specifically finding that "Levy Units 1 and 2 will provide adequate electricity at a reasonable cost." Under Section 403.519(4), Florida Statutes, the PSC is the "sole forum" for a determination of need. Reconsideration of factors already considered by the PSC in this proceeding is improper. Further, the record does not support SACE's contention regarding alleged business risks. PEF presented uncontroverted evidence that LNP Units 1 and 2 are on schedule to be in service in the 2016/2017 timeframe and that procurement activities have begun. See Finding of Fact 21. SACE's fourth issue relates to adverse impacts to fish, marine wildlife, and vegetation. As detailed in Findings of Fact 51, 56, 61, 62, 69–72, 88–92, and 131-133, PEF presented competent, substantial evidence that the LNP will not cause adverse impacts to fish, marine wildlife, or vegetation. SACE did not present any contrary evidence. Finally, SACE contends that the agency reports must address risks to water resources, wetlands, fish, marine wildlife, and vegetation. Again, SACE has failed to identify which agency reports failed to address these alleged risks. SACE likewise has not identified any specific regulatory requirement for such evaluations of environmental risks beyond the evaluations provided by the agencies. The record shows that DEP, FWC, SWFWMD, and Levy County all addressed risks to water resources, wetlands, fish, marine wildlife, and/or vegetation in their agency reports and proposed conditions of certification related thereto. Public Comment and Public Testimony Sworn oral public testimony was received from approximately 69 individuals and unsworn public comment was received from approximately 16 individuals during the portion of the final hearing devoted to that purpose. Many of the individuals who provided public testimony also submitted written comments. Three written comments were received from members of the public who did not attend one of the public comment sessions. Thirty hours were devoted to allowing members of the public to comment on the Project over six separate sessions. Members of the public testified both in favor of and in opposition to the Project. Several members of the public commented on the benefits of nuclear power in general and the economic benefits of the LNP specifically. Many others spoke in favor of the extensive public outreach conducted by PEF on the Project. Numerous members of the public spoke of PEF's history of being a good corporate neighbor. The individuals who testified in opposition to the Project raised a wide range of questions and concerns. Many of these concerns and questions are addressed by the evidence and are discussed by reference to the relevant Findings of Fact. However, several were outside the scope of the matters considered in this certification hearing. Several members of the public expressed concerns that the Project is not needed, is too costly, and should be deferred in favor of other energy alternatives. But the PSC already considered those issues in certifying a need for the Project. The PSC's determinations are binding, and those issues were not reconsidered in this certification hearing. Several members of the public expressed concerns related to radiological safety, storage of nuclear waste, and radioactive effluent contamination of groundwater via "fracture sets." Radiological issues raised by SACE were stricken because they were preempted by federal regulation under the Supremacy Clause of the United States Constitution. As a result, radiological safety issues were not considered in the certification hearing. The LNP must be approved by the NRC which regulates radiological safety of nuclear power plants. However, there was evidence that the Florida Department of Health monitors groundwater and other media in the vicinity of nuclear plants, and PEF's subsurface investigation did not reveal any evidence of fracture sets below the LNP site. See Finding of Fact 79. Some members of the public expressed concerns regarding potential infrastructure and lifestyle changes to the Town of Inglis. Specifically, members of the public raised concerns related to strain on local public services; traffic impacts; limits on development due to the LNP; and concerns that financial benefits will go only to Levy County and, more specifically, not the Town of Inglis. First, it should be noted that, along with other affected local governments, the Town of Inglis was provided a copy of PEF's nine-volume SCA on June 2, 2008. The Town of Inglis did not file a notice of intent to be a party to this proceeding pursuant to Section 403.508(3), Florida Statutes, and thus waived its right to be a party. In addition, the Town had the opportunity to submit an agency report or to propose conditions of certification pursuant to Section 403.507, Florida Statutes, but did not. As acknowledged in public testimony by one of the Town Council members, the Town of Inglis's Council is unanimously in favor of the LNP. Nonetheless, as detailed in Findings of Fact 143-146, PEF presented competent substantial evidence that public services and facilities in the region of the LNP (which includes the Town of Inglis) are sufficient to absorb any incremental population growth associated with construction and operation workers and their families. PEF also presented evidence that roadways in the vicinity will continue to operate at or above their adopted level of service capacities. See Findings of Fact 135-137. Further, there is no evidence that development will be restricted as a result of the LNP. Current limitations around the CREC related to increases in density are the result of Citrus County's Comprehensive Plan, not the CREC or state regulatory requirements. Finally, while significant tax revenues will go to Levy County, PEF presented evidence that the LNP's operation will contribute $521 million annually to the regional economy, which includes the Town of Inglis. See Finding of Fact 148. By way of comparison, although PEF's CREC is in Citrus County (and outside the Crystal River city limits), the Crystal River City Manager testified that PEF has been good for the Citrus County school system, has provided jobs for residents, and has been very helpful to efforts in the community. Other members of the public expressed concerns that the new jobs created by the LNP will not go to local residents. As indicated in Finding of Fact 141, PEF has and will continue to make efforts to train and employ local residents at the LNP. Other members of the public expressed concern that increased salinity in the CFBC would cause saltwater intrusion in the Lower Withlacoochee River. There is no connection between the CFBC and the Lower Withlacoochee River. While the LNP's withdrawals from the CFBC will increase salinity in the CFBC somewhat, it will not cause increased salinity in the Lower Withlacoochee River. See Findings of Fact 66-67. A member of the public expressed concern that PEF's proposed location for the CWIS would prevent future reconnection of the Withlacoochee River in an effort to provide more freshwater to the Lower Withlacoochee River.3 As detailed in Finding of Fact 68, options for reconnection of the Withlacoochee River have been evaluated by SWFWMD, but would not provide adequate increased freshwater flow to the Lower Withlacoochee River. Another issue raised during the public testimony sessions was the impact of cooling tower drift on vegetation surrounding the LNP. As indicated in Findings of Fact 103-104 and 110-111, PEF presented uncontroverted expert testimony that cooling tower drift will not adversely impact natural resources, including wetlands and surface waters. Several residents of Hernando County expressed concern that a portion of the BBW transmission line as proposed along Sunshine Grove Road is incompatible from a public safety standpoint with existing and proposed natural gas pipelines in this same area. PEF presented evidence, however, that this type of collocation of transmission lines and gas pipelines is commonplace throughout Florida. Further, it was not demonstrated that such collocation is prohibited under or contrary to applicable law or agency regulation. Some of these residents focused their concern on whether locating the BBW transmission line in proximity to a natural gas pipeline would be inconsistent with PEF's internal collocation guidelines, which these residents believe prohibit such collocation because an unsafe operating condition will result. As noted by Hernando County’s attorney and DEP's Siting Administrator, there is no basis in statute, ordinance, or rule to require PEF to comply with its internal guidelines. In any event, PEF presented evidence that the purpose of its internal collocation guidelines is to ensure the safety of persons involved in the construction and installation of a pipeline in proximity to an existing transmission line. Further, PEF is bound by the conditions of certification to comply with requirements of the National Electric Safety Code as they relate to induced currents that might affect a gas pipeline. See DEP Ex. 1, p. 76, Condition XLII(H). Other residents were concerned that construction of the BBW transmission line would be unsafe due to the presence of an existing natural gas pipeline. The conditions of certification require, however, that PEF comply with applicable federal Occupational Safety and Health Standards during construction of each of the transmission lines. The conditions of certification also require PEF to contact the Sunshine State One Call service to locate underground utilities prior to construction activities. Finally, after PEF selects its ultimate location for the BBW transmission line, Hernando County and other agencies will have the opportunity to review the proposed location and notify the DEP Siting Coordination Office if it believes that the construction of the transmission line within the selected right-of-way cannot be accomplished in accordance with the conditions of certification. See DEP Ex. 1, p. 65-66, Condition XXXV(A).
Conclusions For Progress Energy Florida: Douglas S. Roberts, Esquire Brooke E. Lewis, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314-6526 Lawrence Curtin, Esquire Gigi Rollini, Esquire Holland & Knight, LLP 315 South Calhoun Street, Suite 600 Tallahassee, Florida 32301-1872 For the Department of Environmental Protection: W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 For Levy County: Anne Bast Brown, Esquire Levy County Attorney 380 South Court Street Bronson, Florida 32621-6517 For Hillsborough County: Marva M. Taylor, Esquire Hillsborough County Attorney's Office 601 East Kennedy Boulevard, 27th Floor Tampa, Florida 33602-4156 For City of Tampa: Janice McLean, Esquire Office of the City Attorney Old City Hall, 5th Floor 315 East Kennedy Boulevard Tampa, Florida 33602-5211 For the Southern Alliance for Clean Energy: E. Leon Jacobs, Esquire Williams & Jacobs 1720 South Gadsden Street, Suite 201 Tallahassee, Florida 32301-5506
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Siting Board enter a Final Order: Approving PEF's Application for Certification to build, operate, and maintain a two-unit nuclear powered electrical generating facility in Levy County, Florida, including a heavy haul road, site access roads, and cooling water intake and discharge pipelines, subject to the conditions of certification set forth in DEP Exhibit 1, as amended; and Approving PEF's Application for Certification to build, operate, and maintain each of the following electrical transmission line corridors as associated facilities, as described above and subject to the conditions of certification set forth in DEP Exhibit 1, as amended: Citrus 1 and 2 Transmission Lines, Crystal River Transmission Line, Sumter Transmission Line, Levy North Transmission Line, Levy South Transmission Line, Brookridge Transmission Line, Brooksville West Transmission Line, Crystal River East 1 and 2 Transmission Lines, and Polk-Hillsborough-Pinellas Transmission Line. DONE AND ENTERED this 15th day of May, 2009, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 2009.
Findings Of Fact The proposed transmission line corridor is for the purpose of connecting a 230 kV line from the City of Tallahassee's existing system to the Georgia Power Transmission grid. The southern terminus of the corridor is in Leon County where the City's 230 kV line running north from the Hopkins' Power Plant makes a right angle turn toward the east, following Interstate Highway 10 (Section 13, Range 1 West, Township 1 North). The northern terminus of the corridor is that point where it ties to the Georgia system in Gadsden County, Florida, just south of the Florida State line in close proximity to the intersection of U.S. Highway 27 and SR 157 (Section 90, Range 1 West, Township 3 North, north of the Watson line). The corridor generally follows a center line conjunct with the Range 1 West range line, except that approximately 2.75 miles north of its southern terminus the corridor bends approximately 25 degrees to the east for a distance of approximately one-half mile before turning north for approximately 1.4 miles at which point the corridor turns west approximately 25 degrees for a distance of approximately 1.2 miles, and then turns east approximately 35 degrees for approximately 8 miles before once again turning north. The corridor encompasses several major highways, including Interstate Highway 10 and U.S. Highway 27. It also encompasses part of the Ochlocknee River, the Gadsden County, Florida landfill, part of the Tallahassee Commercial Airport, and part of the Ochlocknee Wildlife Management Area and Lake Talquin State Recreation Area. Just north of the rest stop on Interstate Highway 10, the corridor includes an area known as Riverwood Acres, a non-platted subdivision. The center line of the corridor bisects the subdivision. From its southern origin north, for approximately the first one mile of the corridor, the width of the corridor is approximately 9/16 mile. Thereafter the width of the corridor is approximately 1/2 mile. The location of the corridor is depicted in Figures 2-3, 2-6A, 2-6B, and 2-6C of the application. There being no more definitive a description of the location of the corridor than that shown in the maps comprising figures 2-6A, B, and C of the application, it is found as a matter of fact that those figures define the parameters of the proposed corridor. The length of the corridor is approximately 15 miles. The purpose of the corridor is to provide a 100 foot right-of-way for a 230 kV transmission line constructed upon H-frame wood poles, with an approximate span of 600 feet. Pursuant to the requirements of Section 403.537, Florida Statutes (1980 Supp.), the Florida Public Service Commission, by order dated March 31, 1981, found that: The construction of the proposed transmission line will enhance electric system reliability and integrity. The proposed transmission line will improve the availability of low-cost electric energy within the State of Florida. The point at which the City of Tallahassee proposes to connect to the construction of Georgia Power Company, and the point at which it proposes to connect to its own system, are the appropriate starting and ending points of the line. The Public Service Commission then concluded that the proposed transmission line is needed. Approximately 11.0 miles of the corridor's center line traverses land that is wooded and undeveloped. The remainder of the corridor center line, 3.9 miles, crosses land that reflects some type of human development or use. That includes land that is currently agricultural, in improved pasture, or simply open, cleared land. Although no residences lie within the corridor's center line, houses do lie elsewhere within the corridor. Several houses are located near the southern end of the corridor just north of Interstate Highway 10 in the area referred to as Riverwood Acres. Several houses are located near the Gadsden County Sanitary Landfill, and scattered houses are located in the corridor to the west of the Concord and to the south of the Darsey communities. Immediately beyond the eastern corridor boundary, but not within the corridor, is a developing neighborhood located in Township 1 north, Range 1 West, Section In that area residential property boundaries abut the eastern corridor boundary. Because of the objection by homeowners in the Riverwood Acres area, the width of the corridor has been slightly extended along the western and eastern boundaries so that the right-of-way may be placed with least impact upon the homes in that area. Approximately 0.05 acres of agricultural land will be directly disturbed by placement of transmission structures. It is expected that agricultural land can continue to be farmed between transmission structures. Where possible, existing road crossings or roads adjacent to the right-of-way will be utilized for maintenance and construction purposes. Where necessary, new access roads will be developed, but only to the extent needed for construction and maintenance of the line. The only major water body crossed by the proposed corridor is the Ochlocknee River. Impacts to the river should be negligible since the line structures on each side of the river will be physically located away from the river banks, and the lines and structures spanning the river will be situated well above the ordinary high water mark as defined by the United States Corps of Engineers. The uncontradicted evidence presented indicates that other streams or small water bodies crossed by the corridor will not be adversely impacted. Similarly, the uncontradicted evidence established that the two wetland areas to be crossed by the corridor center line will not be adversely impacted. A 230 kV transmission line is not considered an extra high voltage transmission line. Lines at 345 kV or larger are considered extra high voltage lines. The uncontradicted evidence establishes that there will be no significant noise impacts from the proposed transmission line operation. Except as otherwise noticed in the Findings of Fact herein, the uncontradicted evidence established that the proposed transmission line, if constructed along a right-of-way in the proposed corridor, pursuant to the conditions of certification, would have no significant adverse effect on the environment. Its impact on the environment will be minimal. Although none of the parties to this proceeding posed any objection to the proposed transmission line corridor and the transmission line to be constructed therein, three members of the public gave testimony in opposition to the site certification at the final certification hearing. The three persons were all residents of Riverwood Acres and were generally expressing the concerns of the neighborhood. Their sincere concern is evidenced by the excellent quality of their presentation. They expressed their opinion that their land value would be diminished by the construction of a transmission line adjacent or over their property. While it is difficult to consider the construction of such a transmission line as an enhancement to the property, as established by the testimony of their property will be diminished by the construction of the transmission line. These public witnesses also expressed a concern for the aesthetic damage to their neighborhood by the construction of this transmission line. It is found as a matter of fact that should the transmission line be constructed over or adjacent to these residential owners in Riverwood Acres, the aesthetic value of their environment would be diminished by the visual impact of the transmission line. Finally, these public witnesses expressed their concern and belief that the effects of the electric and magnetic fields generated by the transmission line would effect the health and welfare of the residents of the neighborhood. However, as established by the testimony of two witnesses expert in the areas of electrical engineering, radiation biology, and biophysics, the electric and magnetic field forces encountered in the vicinity of the transmission line at ground level will have essentially no biological effect, and will be no stronger than similar forces encountered in the normal course of modern daily life. These members of the public presented a thoughtful, well conceived proposed alternative routing which would take the proposed transmission line around their residential neighborhood. However, the evidence presented in this proceeding does not establish that the existence of the alternative proposed by these members of the public by itself indicates that the corridor for which site certification has been requested, will not produce minimal adverse effects on the environment, public health, safety and welfare. The Department of Environmental Regulation, the Department of Veterans and Community Affairs, the Department of Natural Resources, the Florida Game and Fresh Water Fish Commission, and the Northwest Florida Water Management District have all recommended that the proposed transmission line corridor will have minimal, if any, adverse effects on the environment and public health, safety and welfare. Those agencies have recommended no reason why the site should not be certified subject to the conditions proposed by the Department of Environmental Regulation, which conditions are attached to this Recommended Order. Notice of the final certification hearing was published on May 13, 1981, in the Tallahassee Democrat, a daily newspaper published at Tallahassee, in Leon County, Florida.
Recommendation Having reviewed the record of this proceeding, and based upon the Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that certification, pursuant to the Transmission Lines Siting Act, Chapter 403, Florida Statutes (1980 Supp.), be GRANTED to the City of Tallahassee for the transmission line corridor and the construction of the subject transmission lines as proposed in the application as amended and the evidence admitted to the record. It is further RECOMMENDED that certification be made subject to the Conditions of Certification attached hereto and the further condition pursuant to the requirement in Section 403.531(3), Florida Statutes (1980 Supp.), that the City of Tallahassee shall be required to seek any necessary interests in state lands, the title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund, from the Board prior to engaging in any activity on or affecting such lands. DONE AND ENTERED this 23rd day of July 1981 in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July 1981. COPIES FURNISHED: Louis F. Hubener, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 C. Laurence Keesey, Esquire Department of Veteran and Community Affairs Room 204, Carlton Building Tallahassee, Florida 32301 Paul Sexton, Esquire Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Douglas Stowell, Esquire Northwest Florida Water Management District Route 1, Box 3100 Havana, Florida 32333 Kenneth Gilleland, Esquire Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32301 John Williams, Esquire Department of Natural Resources 3300 Commonwealth Building Tallahassee, Florida Ted Steinmeyer, Esquire Leon County Attorney Leon County Courthouse, Room 203 Tallahassee, Florida 32301 John Shaw Curry, Esquire Gadsden County Attorney Post Office Box 469 Quincy, Florida 32351 Barrett Johnson, Esquire c/o Mahoney, Hadlow & Adams Post Office Box 471 Tallahassee, Florida 32302 James R. Brindell, Esquire Post Office Box 3103 Tallahassee, Florida 32303 (Representing Riverwood Acres Neighborhood Association)
The Issue Whether a proposed amendment to Rule 12A-1.053(7), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority and/or is unconstitutional?
Findings Of Fact The Parties. Petitioner, Florida Cable Television Association (hereinafter referred to individually as the "Association"), is a voluntary association of franchised cable television operators in the State of Florida. The Association's membership is reflected on Joint Exhibit 7. Petitioner, Cablevision Industries of Central Florida, Inc. (hereinafter individually referred to as "Central"), and Petitioner, Cablevision Industries of Middle Florida, Inc. (hereinafter individually referred to as "Middle"), are franchised cable system operators in Orange County, Florida. Central and Middle are members of the Association. Central provides cable television services in the cities of Clermont, Edgewater, Groveland, Helen, Holly Hill of Lake County, Mascotte and Oak Hill, and the Town of Minneola. Central also provides services in the Winter Garden, Orange County, Florida, franchise area. Middle provides cable television services in the cities of Belle Glade, Live Oak, Pahokee, Palatka, South Bay and the Town of Interlachan. Middle also provides cable television services in the unincorporated areas of Bradford, Palm Beach and Putnam Counties. Middle also provides services in the MAGNA franchise area, an area of Orange County. The Respondent is the Florida Department of Revenue, an agency of the State of Florida. The Department is charged with responsibility for administering the State's revenue laws. See Section 213.05, Florida Statutes. The following facts concerning the Intervenor, BellSouth, were stipulated by the parties to be true: BellSouth is a corporation authorized to do business in Florida . . . . . . . . 5. . . . a) BellSouth is a utility service provider which owns utility or transmission poles and receives fees from others for the privilege of attaching wires and other equipment to those poles; and, b) BellSouth pays fees to others who own utility or transmission poles for the privilege of attaching wires and other equipment to those poles. . . . . Adoption of the Challenged Rule. On December 31, 1992, the Department caused to be published notice of its intent to amend Rule 12A-1.053, Florida Administrative Code. The notice was published in the Florida Administrative Weekly, Volume 18, No. 53, December 31, 1992 (hereinafter referred to as the "Notice"). See Joint Exhibit 1. On January 21, 1993, the Petitioners initiated a challenge to the proposed amendment of Rule 12A-1.053(7), Florida Administrative Code, by instituting a Section 120.54, Florida Statutes, proceeding. The Challenged Rule provides the following: The charge by the owner of a utility or transmission poles to anyone other than a utility service provider as the term "utility service" is defined in s. 203.012(9), Florida Statutes, for the privilege of attaching wires and other equipment thereto is taxable as provided in s. 212.031, Florida Statutes, as a license to use real property. Joint exhibit 1. The "specific authority" for the Challenged Rule cited by the Department in the Notice was Sections 212.17(6), 212.18(2), and 213.06(1), Florida Statutes. The "law implemented" by the Challenged Rule cited by the Department in the Notice was Sections 212.02(20), 212.05(1)(b)(e), 212.06(1)(a)(b) and (2)(a), 212.08(4) and (7)(j), and 212.18(2), Florida Statutes, and Sections 13 and 14 of Chapter 92-319, Laws of Florida. The Taxable Event; Effect on the Petitioners. Typically, members of the Association, including Central and Middle, deliver cable television services in the State of Florida through wires and equipment attached to utility poles. Typically the wires are utilized by cable television providers to transmit audio and video signals to subscribers of the providers' services. Although cable television providers may own some poles and, in some instances, may install their own poles, most cable television providers, including Central and Middle, enter into agreements with owners of utility poles, such as electric and telephone providers, for the use of existing poles (hereinafter referred to as "Attachment Agreements"). See Joint Exhibits 2(a)- 1, 2(a)-2, 2(b)-1, 2(b)-2, 2(c)-1 and 2(c)-2, which are examples of Attachment Agreements. Pursuant to the Attachment Agreements, cable television providers agree to pay a fee to the owner of utility poles for the right to attach cable television wires and equipment to the poles. The fee is typically calculated based on the number of poles used each year. Pursuant to the Challenged Rule, members of the Association, and Central and Middle, will be required to pay sales and use tax on the charges they pay pursuant to Attachment Agreements they enter into. Utility Pole Characteristics. Utility poles to which cable television provider wires and equipment is attached are usually owned by utility service providers and are installed on public and private streets or rights-of-way. The underlying land and right-of- way may or may not be owned by the utility provider. Utility poles remain the property of the utility provider and do not become the property of the owner of the land or the right-of-way upon which the pole is located. Electric service provider utility poles are generally considered to be components of the "overhead electric distribution system," which consists primarily of the poles wires and transformers. The components are suppose to be designed and installed in accordance with the National Electric Safety Code. Poles installed pursuant to the National Electric Safety Code are to be installed in the ground and are anchored to the ground to insure that the pole remains in a vertical position. Anchoring may be secured by cement anchors and bolts embedded in concrete which is placed in the ground. Poles are installed and anchored to withstand the forces of nature. Generally, poles are installed to withstand winds of up to 150 miles per hour. In general, poles are intended to be installed permanently and, on average, have a useful life of twenty-five to thirty years. In practice, utility poles are sometimes replaced or moved. Poles become rotten and have to be replaced. Poles are also replaced when damaged. Poles are also removed and relocated for various reasons. Central and Middle were aware of approximately 200 utility pole changes during one year. In order to replace or move a utility pole, heavy equipment is required. Exemption for Utilities. Most poles to which cable television wires are attached are already being used by utilities for utility services. Pursuant to the Challenged Rule fees paid by "utility service providers" for the use of utility poles to attach wires and other equipment to utility poles are exempt from sales and use tax. The Department's exemption of utility service providers is based upon the provisions of Section 212.031(1)(a), Florida Statutes: (1)(a) It is declared to be the legislative intent that every person is exercising a taxable privilege who engages in the business of renting, leasing, letting, or granting a license for the use of any real property unless such property is: . . . . 5. A public or private street or right-of-way occupied or used by a utility for utility purposes. Currently only utilities and cable television providers enter into Attachment Agreements. Local Government Franchise Agreements. Central and Middle operate in their respective areas of the State of Florida pursuant to agreements with local governments (hereinafter referred to as "Franchise Agreements"), authorizing them to provide cable television services within the jurisdiction of the city or county with which the agreement has been entered into. See Joint exhibit 3. Franchise Agreements entered into by Central and Middle generally give them a nonexclusive right to provide cable television services in the areas they serve. Central and Middle both operate within areas located in Orange County, Florida. Orange County has enacted Chapter 12 of the Orange County Code, Community Antenna Television Systems; Cable Television, Etc. Joint exhibit 5a. Section 12-48 of the Orange County Code, provides, in part, the following: Payment to the grantor of franchise consideration. A cable operator shall pay to the county a franchise fee of five (5) percent of its gross annual revenues for each year of the term of the franchise. The franchise fee shall be in addition to all other taxes, fees and assessments which are required to be paid to the county, and which do not constitute a franchise fee under the Act. . . . . . . . Time of Payment. . . . . (3) Nothing in this subsection (b) shall limit the cable operator's liability to pay other applicable local, state or federal taxes, fees, charges or assessments. A fee (hereinafter referred to as a "Franchise Fee"), similar to that charged pursuant to Section 12-48 of the Orange County Code is imposed by Palm Beach and Hillsborough Counties. See Joint exhibits 5(b) and 5(c). Franchise Fees are paid by cable television providers for the right to serve a given community. Not all cable television service providers are required to pay Franchise Fees of 5 percent. Central and Middle report their gross income on a quarterly basis to Orange County for purposes of paying the Orange County Franchise Fee imposed by Section 12-48 of the Orange County Code. Central and Middle calculate and pay to Orange County a Franchise Fee of 5 percent of their annual gross income. The Orange County Franchise Fee is paid quarterly. See Joint exhibits 4(a) and 4(b). The Orange County Franchise Fee is imposed on all gross revenues of Central and Middle, i.e., installation charges, leases of remote and converter boxes, sale of program guides and advertising. Central and Middle have entered into Attachment Agreements to utilize utility poles located in Orange County. A fee is paid for the use of those poles pursuant to the Attachment Agreements. The State of Florida does not impose a Franchise Fee on cable television service providers in Florida. In addition to paying Franchise Fees, some cable television service providers, including Central and Middle, also pay sales taxes in the State of Florida. 47 U.S.C. Sections 521-559 (hereinafter referred to as the "Cable Act"), provides Federal regulations governing cable television systems operated in the United States. Rule 12A-1.046(4)(b), Florida Administrative Code. Rule 12A-1.046(4)(b), Florida Administrative Code, provides: (b) The charge by the owner of utility or transmission poles to others for the privilege of attaching wires or other equipment thereto is exempt as a service transaction. The provisions of Rule 12A-1.046(4)(b), Florida Administrative Code, are in conflict with the Challenged Rule. Rule 12A-1.046(4)(b), Florida Administrative Code, has not been amended or repealed by the Department. It is, therefore, a valid rule of the Department. The Department, after proposing to amend Rule 12A-1.046(4)(b), Florida Administrative Code, to eliminate the inconsistency with the Challenged Rule, decided to await the outcome of this case. Although a final decision has not been made, it is reasonable to conclude that the discrepancy between the Challenged Rule and Rule 12A-1.046(4)(b), Florida Administrative Code, will be eliminated if the validity of the Challenged Rule is ultimately upheld.
The Issue The issues in this preliminary hearing are whether the South Florida Water Management District (WMD) has jurisdiction and whether Petitioners have standing. In part, the issue of WMD's jurisdiction involves sub-issues as to Petitioners' timeliness in requesting an administrative hearing.
Findings Of Fact Issuance of FPL's Permit and Waivers On May 2, 2000, WMD received an application from FPL for ROW Standard Permit to construct a parallel run of transmission lines (Parkland Transmission Line) in Sections 26, 27, 28, 29 and 35, Township 47, Range 41 East, located in Palm Beach and Broward Counties, inside the south ROW of the Hillsboro Canal. The Parkland Transmission Line was planned to carry 230 kilovolts (kV) of electricity to FPL's Parkland substation. FPL applied to place the 91-foot high poles for the transmission lines 14 feet from the top of the canal bank, on the south side of the canal, which is at least 80 feet wide. On May 5, 2000, WMD received from FPL a Petition for Waiver of Rule 40E-6.011(4), (5) and (6), which governs the placement of permanent and semi-permanent encroachments within forty feet of the top of canal bank within Works and Lands of WMD. Although not identified in the style of the Petition for Waiver, FPL also sought a "waiver from the Basis of Review Rule (L)(4)(Transmission Lines, p. 113 of Sept. 1999, Volume V, Criteria Manual for Use of Works of the District.)"3 The Petition for Waiver sought permanent waivers. The District published notice of receipt of the petition for waiver from FPL in the Florida Administrative Weekly (FAW), Volume 26, Number 21, dated May 26, 2000. However, instead of giving notice that FPL was requesting permanent waivers, the notice stated that FPL only sought "temporary relief from the Rule 40E-6.011(4), (5) and (6) . . . and the Basis of Review." In addition, while the notice described Rule 40E-6.011(4), (5) and (6) as requiring a "minimum 40 foot setback requirement from the top of bank," it did not describe the criteria in the Basis of Review, which states in pertinent part: The use of the District's Works or Lands for the construction, operation, and maintenance of transmission lines has the potential to interfere with the District's operation, maintenance and allied purposes. Applicants should acquire their own right of way and should not look to the District to utilize District-controlled Works or Lands, which were acquired for water management and other allied purposes. This policy should not be construed as a prohibition against the construction of distribution or transmission line crossings, nor is it a prohibition against use of short segments of District's right of way for the construction of local distribution facilities when such facilities will not interfere with operations and maintenance and are otherwise acceptable to the District. Finally, WMD's notice did not describe FPL's project. As a result, it could not have been ascertained from WMD's notice what FPL's Petition for Waiver was for (installation of a 230 kV overhead transmission line) or what the Basis of Review provided on transmission lines. Instead, as worded, the notice implied that both Rule 40E-6.011(4)-(6) and the Basis of Review required a "minimum 40 foot setback . . . from the top of bank." The District published notice of the July 13, 2000, Governing Board meeting (in Fort Myers, Florida) in the FAW, Volume 26, Number 25, dated June 23, 2000. This notice simply stated that the agenda of the meeting was available upon written request or via WMD's website. The meeting agenda fully described both FPL's Permit application and Petition for Waiver. It also noted WMD staff's recommendation that the both be approved. WMD's Governing Board granted both FPL's Permit application and Petition for Waiver at its meeting on July 13, 2000. An Order Granting Waiver was reduced to writing and filed on July 26, 2000, effectively nunc pro tunc July 13, 2000. The Order Granting Waiver also granted FPL's Permit application and included a Notice of Rights, which advised affected persons how to seek an administrative hearing by filing "a petition for hearing pursuant to Sections 120.569 and 120.57(1)." WMD published in the FAW, Volume 26, Number 36, dated September 8, 2000, notice of the disposition of FPL's Petition for Waiver under Section 120.542, Florida Statutes. Unlike the notice of filing the Petition for Waiver, the notice of disposition described the project as "installation of 3.7 miles of overheads parallel transmission pole line inside the south right of way of the Hillsboro Canal, Palm Beach and Broward Counties." The notice of disposition did not contain a Notice of Rights or other "point of entry" to request an administrative hearing. Except as set out in Findings 3-6, supra, neither WMD nor FPL gave Petitioners any other kind of notice of FPL's Permit application or Petition for Waiver proceedings. WMD did not determine that FPL's project was of heightened public concern, or that there was the likelihood of a request for an administrative hearing, so as to require additional notice in accordance with WMD rules. First Notice to Petitioners (Except Leserra and Smith) Petitioners all own residences in the vicinity of FPL's transmission line project. While Jeff Leserra lives south of the Hillsboro Canal and across Loxahatchee Road in Broward County, the other Petitioners all live north of the Hillsboro Canal in Boca Winds, a group of related residential developments in Palm Beach County, west of Boca Raton. Some of the Boca Winds residents--Terwilliger, Tennant, Pam Danko, Larry Rosenman, Teresa Badillo, and Mike Sturm--live in homes on property adjacent to WMD's north ROW along the Hillsboro Canal. These homes are approximately between 230 and 250 from the nearest Parkland Transmission Line pole. Moreover, in late 1999, each of these Petitioners applied to WMD for a Noticed General Permit (NGP) to extend their backyard fence enclosures between 20 and 25 feet into WMD's north ROW along the Hillsboro Canal--closer to the poles. Their applications were processed primarily by Badillo and another homeowner, Gary Fishman, who is not one of Petitioners. The applications were granted and NGPs were issued to them on May 8, 2000, just after FPL's Permit application and Petition for Waiver were filed. The homes of the other Petitioners--Jose and Amalia Gutman, Frank Longo, David Weinstein, and Ballard Smith--are not adjacent to the Hillsboro Canal. The homes of the Gutmans and Smith are approximately 370 and 390 feet from the nearest pole; Weinstein's home is approximately twice as far away; Longo's home is approximately 1,100 feet away from the nearest pole. All Petitioners use their homes as their permanent residence except for Ballard Smith, whose principal residence is in Bradenton, Florida. Prior to November 2000, Petitioners had no notice or knowledge of FPL's Permit application or Petition for Waiver proceedings. FPL began installing 90-foot high poles for the Parkland Transmission Line along the Hillsboro Canal ROW on or about November 1, 2000. By mid-November 2000, all Petitioners except Leserra and Smith has seen the poles, made inquiry of various kinds, and learned of FPL's plans to construct the Parkland Transmission Line. Leserra and Smith did not see any poles and had no knowledge about the Parkland Transmission Line until later. See Findings 49-53 and 58, infra. Initial Reaction to Transmission Poles The Boca Winds homeowners who became aware of the installation of the poles just south of the Hillsboro Canal reacted in different ways. Some instantly suspected both the ultimate use of the poles for electrical transmission and that the poles were on WMD ROW. Others suspected the former but not the latter. Several made telephone inquiries of different kinds-some to FPL, some to their homeowner association. Quickly, word spread, and these homeowners, including all Petitioners except Smith and Leserra, began organizing to oppose FPL's Permit. Meetings were held, and many members of the loosely-organized opposition were involved initially, but the group soon turned to and relied heavily on a handful of its members--primarily the Gutmans, Badillo, and Gary Fishman- -to gather information and contact FPL and WMD on behalf of the group. While none of the group was particularly knowledgeable about the legal technicalities of WMD procedures, Jose Gutman was a Florida-licensed lawyer (albeit practicing in patent law), and Fishman had handled the applications of Terwilliger, Tennant, Pam Danko, Rosenman, Badillo, Sturm, and others for WMD NGPs to extend their backyard fence enclosures into WMD's north ROW along the Hillsboro Canal. Although most members of the group did not view Jose Gutman technically as their attorney during this time, Gutman asserted attorney-client privilege as to communications between himself and members of the group beginning in November 2000, and Petitioners' objections to disclosure of these communications were sustained. A meeting between Jose Gutman, Fishman, Badillo, and other Boca Winds residents and various FPL representatives was held on November 8, 2000. During this meeting, the residents essentially complained that they had no notice and asked FPL to relocate the transmission line. FPL responded that the required notice was given and said it would respond to the request to relocate the lines. The next day the homeowners put their requests to FPL in writing. They asked for proposals for relocating the transmission line, for the projected cost of putting the line underground for the 1.3 miles in the vicinity of their homes, for EMF testing of their homes, and for a statement of safety. The Gutmans then began the process of drafting a petition for circulation to residents for signature. Entitled "Petition to Halt Construction of FPL High Power Transmission Lines on the Land Adjacent to Our Homes," the petition stated that the homeowners "hereby petition our government and [FPL] to halt construction . . . [and] relocate the lines away from our communities." The petition stated that the homeowners had no notice until November 1, 2000, and did not consent to the project. It complained about "a significant loss in property value along with the additional serious concern of health risks [namely, leukemia and cancer] to our children that will be playing within the electric and magnetic fields (EMFs) emitted." The petition requested "that our government representatives and FPL engineers promptly halt construction . . . and provide in writing proposed alternative plans for moving these transmission lines away from our communities." The petition was dated November 18, 2000, but signatures were collected after that date. Meanwhile, Jose Gutman and Fishman arranged to meet with WMD representatives at WMD's main offices in West Palm Beach on November 28, 2000. Since they had a follow-up meeting with FPL scheduled for the following day, they were surprised on their arrival to find Daniel Hronec, FPL Principal Engineer on the Parkland Transmission Line project, in attendance, apparently having been notified and invited by WMD. Gutman and Fishman essentially reiterated their complaint of lack of notice and their request to have the transmission line relocated. Discussion ensued on the permitting process used by FPL and WMD. WMD's Laura Lythgoe explained that WMD rules provide for different review criteria and notice requirements depending on the nature of the request.4 She stated that no notice to affected parties is required for ROW use permits, such as the one FPL got for the Parkland Transmission Line. She went on to explain that the procedure for requesting a variance is set out in Section 120.542, Florida Statutes, which only requires notice in the FAW. Fishman complained that the FAW notice was not specific enough. Thomas L. Fratz, WMD ROW Division Director, responded that the notice was legally sufficient. Lythgoe also pointed out that the agenda item gave specifics and was available on WMD's internet web site. In testimony at the preliminary hearing, Fishman recalled a statement being made during the course of discussion that the homeowners had 21 days to petition for a hearing and that the time had expired. Gutman did not recall such a statement being made specifically, but he conceded that the thrust of the discussion was that the proper notice was given and that the homeowners were too late. During the discussion of WMD procedures, Gutman asked for copies of certain documentation being discussed. Gutman also expressed the homeowners' need for legal advice on the subject and asked for a referral to an attorney knowledgeable in the area. WMD agreed to respond to these requests in writing. Towards the end of the meeting on November 28, 2000, Gutman asked how the homeowners could proceed with their grievance. Fratz responded that the homeowners' issue was with FPL, not WMD. Gutman replied that the homeowners could only negotiate with FPL (which they already were doing) but could petition WMD, as their government, to take action to rectify the situation. Gutman indicated that he had a petition with approximately 150 signatures for that purpose. It is not clear whether the petition and signatures were physically presented to WMD at that time, but it is clear that WMD did not direct Gutman to WMD's Clerk's office, which was just down the hall from where they were meeting, to file the petition. The next day, FPL hosted a meeting with the homeowners to respond to their requests made at the meeting on November 8, 2000, and in their letter dated November 9, 2000. FPL confirmed its response in a letter dated November 30, 2000. FPL told the homeowners that there were options for relocating the transmission line but that implementing the options would cost the homeowners between $900,000 and $1.5 million, depending on the option chosen and that a $20,000 engineering deposit would be required up-front. The option of replacing the planned overhead transmission lines with underground lines would be much more expensive--approximately $15 million--and "unquestionably prohibitive." The homeowners considered FPL's proposals to be financially infeasible and unacceptable. By letter dated December 1, 2000, WMD provided Jose Gutman and Fishman documentation in response to their request during the meeting on November 28, 2000. Included were copies of the agenda for the Governing Board's meeting on July 13, 2000, and Section 120.542, Florida Statutes (2000). The letter stated that Section 120.542 applied, not Section 403.201 (applicable to the Department of Environmental Protection), which Gutman and Fishman apparently cited at the meeting. The letter also stated that there was no requirement for publishing or other notification to affected parties for issuance of a ROW permit. Attorney Walker and the Board Meeting December 14, 2000 After the meetings and letters, the homeowners decided that it would be necessary to appeal directly to WMD Governing Board. They also decided that they needed competent legal representation to assist them. Amy Gutman contacted Governing Board member Nicholas J. Gutierrez, Jr., who advised the homeowners to bring their grievances to the next Board meeting on December 14, 2000. Gutierrez put Amy Gutman in contact with the Board's meeting coordinator, Sandra Gomez, who scheduled the homeowners to participate in the public comment portion of the upcoming Board meeting on December 14, 2000. Meanwhile, Jose Gutman took steps on behalf of the homeowners to retain counsel. After considering several candidates, Gutman eventually settled on Stephen A. Walker and his law firm of Lewis, Longman & Walker, P.A. to represent the group of homeowners (including all Petitioners except Leserra and Smith). Walker served as General Counsel of WMD from 1985 to 1991, and was a frequent practitioner before the SFWMD Governing Board. He also has appeared in cases before the Division of Administrative Hearings. It is not clear from the evidence what documentation Walker obtained from WMD's permit files before appearing on behalf of the homeowners at the Governing Board's meeting on December 14, 2001. However, it is reasonable to infer that, as former WMD General Counsel and an attorney specializing in WMD permitting with extensive experience in that field, Walker was aware of the generally applicable 21-day time limitation for seeking an administrative hearing regarding proposed agency action. Walker also was aware of the difference between petitioning to intervene in a proceeding for the issuance of a permit and asking an administrative agency to initiate proceedings to revoke a permit that has already been issued. Whether Walker communicated this knowledge is not clear from the evidence because Petitioners objected to questions seeking disclosure of attorney-client communications, and the objections were sustained. However, it can be inferred from all of the evidence that such communications probably took place. Walker and the homeowners not only appeared for the public comment portion of the Governing Board's agenda for December 14, 2001, they also conducted a protest demonstration that caused a disturbance in the hallway outside the meeting room during an earlier part of the agenda. Attempting to ascertaining the reason for the disturbance, the Chairman of the Governing Board, Michael Collins, asked WMD Ombudsman, Richard E. Williams, to attempt to gain some understanding of the reason for the demonstration and to suggest possible solutions. When it was made known that Fratz and other WMD staff already had met with the homeowners and FPL, Collins asked that Fratz be included. Williams then met with the homeowners, FPL, and some WMD staff in the nearby WMD cafeteria. When the situation was explained to Williams, he suggested that all parties agree to give him time to gather additional facts and try to mediate an "acceptable agreement" to report back to the Governing Board at its meeting in January 2001. In the meantime, it was agreed that FPL would postpone construction in the vicinity of the homeowners and that the homeowners would postpone pursuit of their grievance. This was acceptable and agreed by all involved. When FPL and the homeowners returned to the Governing Board meeting for the public comment portion, Walker appeared on behalf of the homeowners. Walker summarized the history of FPL's Permit and waivers. He asked the WMD Governing Board to do three things: (1) have staff investigate the appropriateness of the issuance of the Permit in the first instance; (2) based upon that investigation, partially revoke FPL's Permit; and (3) have Williams continue to work with the homeowners and FPL in an effort to find a solution. The Gutmans, Tennant, Terwilliger, and Badillo also addressed the Governing Board to ask that FPL's Permit be revoked. Jose Gutman advised the Governing Board that the homeowners had a petition (by then with 256 signatures) with a cover letter that would provide the Board a summary of the issues. He offered to provide the Board with copies and was directed to hand them to Darrell Bell, a member of the staff of WMD's Clerk's office, who would make sure all Board members got a copy. The other speakers expressed their concerns about EMF, aesthetics, and property values. Collins then asked the WMD's General Counsel, John Fumero, to identify the Board's options. Fumero advised that the Board could modify, revoke or suspend FPL's Permit but that, before taking such action, the Board would want to know the facts and understand the consequences of each option. Without taking a formal vote, the Board asked staff to investigate the facts and report back at the next meeting. Walker advised the Board, and Dan Hronec on behalf of FPL concurred, that FPL had temporarily stopped construction near where his clients lived while it continued work on other portions of the transmission line. Smith's First, Incomplete Knowledge Smith saw a tall concrete structure off to the left of the main entrance to Little Palm Lane when he visited his home for approximately four days in late December 2000. He denied seeing any other poles (although all of the poles behind the Boca Winds homes were installed by then). Smith explained that he spent most of his time during this visit in the house or in the backyard where the poles would be less visible. Although Smith admitted that he was outside in front of his house, where the poles would have been more visible, at times during his visit in December and that he can now see the poles and lines from inside his house through any front window on either the first or second story, Smith's testimony as to what he saw in December 2000 is accepted and credited. Likewise, Smith's testimony that he did not realize the purpose of the pole he saw or its location on WMD ROW is accepted and credited. Walker's Review of WMD Documents As part of his representation of the homeowners, Walker or one of his subordinates obtained copies of at least parts of WMD's official agency file on FPL's Permit. Walker's files contained several partial copies of FPL's Permit; there also was a Notice of Rights form (the kind attached to the Order Granting Waiver). Walker's file also contained other materials that are found in the WMD's file on FPL's Permit, such as the standard form letter that accompanies each permit transmittal. Fishman understood that Jose Gutman had asked Walker or one of his subordinates to go to WMD and undertake an investigation regarding the issuance of FPL's Permit. Gutman did not confirm Fishman's understanding, and Walker denied that he or anyone from his staff went to WMD's main office in West Palm Beach to investigate the issuance of FPL's Permit and obtain the documentation in his file. It is possible that Walker was given the documents by one or more of the homeowners. Walker also testified at hearing that he could not recall when he obtained the documentation that was in his file. However, based on the record evidence, it is reasonable to infer that this occurred prior to January 8, 2001, as Walker sent a letter to WMD on that date which described the Permit in detail and to which he attached copies of FPL's Permit, FPL's permit and waiver applications, and several items of WMD correspondence from the permit file. Failure of Mediation; Board's Meeting February 14, 2001 After the Governing Board's December 2000 meeting, Ombudsman Williams undertook to schedule separate meetings with the homeowners and with FPL, to be followed by a joint meeting with all involved. It soon became apparent that it would not be possible to conduct all the meetings and be ready to report back to the Governing Board at its January 2001 meeting. In a letter from FPL to Fratz dated January 5, 2001, FPL confirmed that FPL would continue to postpone construction in the vicinity of the homeowners until after the February 2001 meeting of the Governing Board and that, "in return for this concession, the concerned residents have agreed to hold any further action, including comment to the Board, until the February Board meeting." Williams met separately with the homeowners and with FPL, as planned. When Williams contacted Amy Gutman to schedule a joint meeting, she asked whether anything new was being proposed. When Williams said, no, Gutman told him she did not think another meeting would be productive and declined on behalf of the homeowners to participate in one. Apparently, FPL representatives met with WMD staff, and they discussed landscaping to help mitigate the aesthetic concerns of the homeowners. Having declined to participate, the homeowners were not aware of the landscaping proposals (essentially, planting cabbage palms in the ROW.) FPL's Permit and waivers made up an agenda item at the WMD Governing Board's meeting on February 14, 2001. Fratz introduced the item with a presentation. The Board then received public comment from Walker on behalf of the homeowners and from a number of homeowners. Walker, on behalf of all Petitioners except Smith and Leserra, identified three concerns of the homeowners, one of which was the lack of notice. Specifically, Walker stated that the Administrative Procedure Act was involved, that the model rules provide for a point of entry for people wanting to object to a permit, and that his clients did not get the required point of entry. At the conclusion of his presentation, Walker asked the Board to revoke FPL's Permit. When asked by one of the Board members whether there were other options available, Walker stated that he was not aware of an available alternative other than revocation. Petitioners Tennant, Frank Longo, Terwilliger, Jose Gutman, Larry Rosenman, and Badillo also addressed the Board and provided reasons why they believed FPL's Permit should be revoked. FPL then made a presentation, after which the Board discussed the issue and entertained several motions. During the Board's discussion, staff was asked about possible interference with WMD's operation and maintenance of the Hillsborough Canal as a result of the transmission line and about the safety of WMD's workers. These questions were addressed by Fratz, by WMD's Executive Deputy Director, Joe Taylor, and by WMD's Director of Field Operations (South), John Adams. They advised the Board that WMD could adequately operate and maintain the canal with the transmission lines in place and that the safety of WMD's workers would not be compromised. Fratz noted that WMD frequently received requests for waiver of the 40-foot setback from the top of canal banks, and Adams pointed out that WMD does not operate any of its equipment, including cranes with booms, along WMD ROW in winds above 35 miles per hour. After these questions were answered, Board Chair Michael Collins again asked General Counsel, John Fumero, to list the Board's options. Fumero outlined three possible courses of action: (1) to take action relative to the Permit such as revocation, modification or suspension; (2) to take no action with respect to the Permit; or (3) to direct staff to publish notice of the Permit to create a point of entry for an administrative challenge. After some questions from the Board were answered, Board member Dr. Patrick J. Gleason moved to give the homeowners a point of entry, and the motion was seconded. After further discussion, the motion was amended in two respects: (1) the Board would delegate to the executive director the authority to initiate a proceeding to suspend FPL's Permit while the administrative challenge was ongoing; and (2) the Board's action would be based upon information received during the meeting indicating that certain WMD criteria may not be met. The motion, as amended, was defeated by a 7 to 1 vote. A subsequent motion was made for FPL to install and maintain certain landscaping over a portion of the ROW to provide a visual buffer between the homes and the transmission line. That motion passed, 7 to 1. Petitioners (except Smith and Leserra, who still had no knowledge of events taking place and did not participate in the meeting on February 14, 2001) understood that the Governing Board had refused to initiate revocation proceedings at the meeting. Although some Petitioners expressed willingness to hear more about the landscaping proposal, which was new to them, Petitioners also already knew that the landscaping alternative proposed would not be acceptable to them and that they still wanted FPL's Permit revoked. After the Board's vote, several Petitioners, including Jose Gutman, Badillo, and Rosenman (as well as Fishman) talked to Walker about other avenues to pursue in their continued opposition to FPL's Permit. This discussion included advice on seeking a formal administrative hearing. It is highly likely that, even if Walker did not have all his documentation from WMD's file on FPL's Permit by January 8, 2001, he had them by the Governing Board's meeting on February 14, 2001. During the meeting, Walker introduced exhibits that he indicated were retrieved from WMD's file on FPL's permit. These included a copy of the Notice of Rights attached to the Order Granting Waiver. Walker advised the homeowners for the last time after the meeting on February 14, 2001, before his clients left the meeting. His representation was terminated shortly thereafter. Petitioners have invoked attorney-client privilege to preclude discovery of the precise substance of the discussion with Walker after the meeting on February 14, 2001- -in particular whether the various jurisdictional time limitations were discussed. However, it is reasonable to infer that Walker shared this information with the homeowners, including the information contained in the Notice of Rights attached to the Order Granting Waiver, before terminating his representation. Leserra's Knowledge and the Petition Petitioner Leserra first learned of the installation of high-voltage transmission line poles in the vicinity of his home in approximately February 2001. The closest pole was just 69 feet away from his home, across Loxahatchee Road. Leserra contacted State Representative Stacy Ritter to complain, and his office contacted WMD and obtained information concerning the project in mid to late-February 2001. A letter sent by Representative Ritter's office to Leserra on February 28, 2001, and received by Leserra shortly after March 2, 2001, stated that the line in question was located on property determined to be owned by WMD. Leserra testified that, even after receiving this information, he did not know how WMD's ownership was determined and still did not know for certain of WMD's involvement at the time. In early March 2001, a friend informed Leserra that homeowners in Boca Winds in Palm Beach County were having a similar problem with installation of high-voltage transmission lines near their homes and gave him Teresa Badillo's name and telephone number. Leserra telephoned her and was told that there was a meeting about it at WMD in February 2001. Badillo gave Leserra Jose Gutman's name and number for additional information. Badillo testified that she also told Leserra about FPL's Permit to use WMD's ROW. Leserra does not recall her saying that. Even if she did, Leserra did not even know where Boca Winds was at the time and did not know that Boca Winds was being affected by the same transmission line project that was affecting him. On March 12, 2001, Leserra wrote to FPL and WMD and threatened that he would hold WMD responsible for any adverse impact from the FPL facilities on the Hillsborough Canal. At the time he sent the letter, he had not yet been able to speak to Jose Gutman. At some point during the next four days, Leserra was able to contact Jose Gutman by telephone. Gutman explained the Boca Winds situation in detail, including the homeowners' intention to request an administrative hearing, and Leserra agreed to be a co-petitioner. Since Petitioners objected to disclosure of communication with Gutman on grounds of attorney-client privilege, it is not clear that Gutman imparted to Leserra information as to the Notice of Rights attached to the Order Granting Waiver to FPL or the deadline for petitioning for an administrative hearing. But it can be inferred that the former was communicated and that the latter was discussed. On March 16, 2001, Amy Gutman contacted Ombudsman Williams to tell him that the homeowners no longer were represented by Attorney Walker but, along with Leserra now, wanted to petition for an administrative hearing, wanted to know their rights, and wanted assistance in understanding the process to avail themselves of their rights. On March 20, 2001, Williams relayed this information to Deputy Executive Director Taylor and General Counsel Fumero for handling. The office of WMD General Counsel responded to Williams' request by sending a letter dated March 22, 2001, to Amy Gutman, on behalf of the homeowners, enclosing a copy of the Order Granting Waiver, with Notice of Rights, which "explains the various remedies that are available to anyone substantially affected by a decision of the District." After receipt of the letter with copy of the Order Granting Waiver with Notice of Rights, Amy Gutman and some of the homeowners (including all Petitioners except Ballard Smith) decided to file a petition for administrative hearing. Suzanne Terwilliger telephoned WMD office of General Counsel to get sample petitions, which were faxed to her on April 3, 2001. Terwilliger drafted a Petition for Formal Administrative Hearing (Petition) and telephoned WMD to see if it could be filed by fax. She was told Sandra Gomez would call her back. Terwilliger called again on April 6, 2001, angry that she had gotten no response from Gomez and that FPL was energizing the transmission line which had been completely installed since February 14, 2001. Told that it could be filed by fax, the Petition was filed in that manner on April 6, 2001. The Petition was filed by Terwilliger, Amy Gutman, and Leserra purportedly on behalf of unnamed residents of several residential areas in southwest Palm Beach County. On April 11, 2001, FPL filed a Motion to Dismiss asserting that the Petition was untimely, that WMD had no jurisdiction over the matters raised in the Petition, and that Petitioners had no standing. Smith's Knowledge and Joinder; Amended Petition There was no evidence that Ballard Smith knew anything at all about what transpired between the homeowners, FPL, and WMD from December 2000 through April 13, 2001. Smith visited his home in Boca Winds again during Easter weekend 2001. When he arrived, he was shocked to see the transmission line in place. On April 14, 2001, he talked to his neighbors, the Gutmans, who informed him of some of what had transpired between the homeowners, FPL, and WMD from December 2000 through April 13, 2001, including FPL's Motion to Dismiss the Petition. He agreed to give Gutman an affidavit to help oppose the Motion to Dismiss and to join the Petition. As set out in the Preliminary Statement, on May 3, 2001, the original Petitioners filed the Affidavit of Ballard Smith as part of their opposition to FPL's Motion to Dismiss. In it, Smith swore that he lived in Bradenton and was not aware of WMD's actions until April 14, 2001; he also swore that he "substantially agrees" with the Petition and "joins with the Petitioners in this Case No. 01-1504." While not clear from the Affidavit itself, Smith clarified in his testimony that he intended by the Affidavit to join in the Petition. On May 18, 2001, Petitioners filed an Amended Petition. The Amended Petition listed 13 individual Petitioners--those included in the above-caption (including Smith), plus one other who later voluntarily dismissed and was dropped. The Amended Petition states that Petitioners' interests in this proceeding are based on the following concerns: (i) the effects of electromagnetic fields (EMF); (ii) impact on Petitioners' property values; (iii) aesthetics and loss of quiet enjoyment; (iv) structural safety; and (v) interference with radio and television. Several Petitioners testified to concerns that the transmission line would interfere with the operation of the Hillsborough Canal and cause their properties and roads to flood, and Tennant testified that the transmission line interfered with her husband's fishing in the canal. The Amended Petition did not allege that these things affected Petitioners in particular, as opposed to the community in general. But they were heard without objection and by implied consent. Likewise, Tennant's testimony about her family's canoeing and kite-flying being impacted by the transmission line were heard without objection and by implied consent. EMF Petitioners Badillo, Smith, Rosenman, Weinstein, Tennant, and the Gutmans expressed concerns about EMF generated by transmission lines (although Smith disclaimed any personal interest in the issue.) The remaining Petitioners did not express EMF concerns. The only competent, substantial evidence in the record on Petitioners' medical concerns about EMF were two booklets--one produced in 1995 by the National Institute of Environmental Health Sciences and the United States Department of Energy, and another produced by the Department of Engineering and Public Policy of the Carnegie Mellon University--which FPL provides to those asking for information about EMF. These booklets did not prove that medical or health impacts on Petitioners are likely as a result of the Parkland Transmission Line. Far from proving immediate injury, these booklets at most were only enough to generate some speculation about possible medical or health impacts. Property Values and Aesthetics The Amended Petition states that the presence of the Parkland Transmission Line will adversely impact Petitioners' property values, decreasing values by 20-30 percent. This claim is coupled with claims regarding the aesthetics of the facilities. As to property values, there was no competent, substantial evidence in the record to support Petitioners' contentions. Petitioners made no attempt to substantiate their expressed concern of a drop in property values. They presented no expert evidence regarding property values, none that sales of homes in the area have been or will impacted, and none that the sale price of any home has been lower than it would have been without installation of the transmission line. As for aesthetics, the only evidence was the opinions of several Petitioners who testified that the transmission lines are unsightly. Even if this was enough to prove diminished aesthetics, at least for Petitioners closest to the transmission line, there was no evidence to causally connect diminished aesthetics to a reduction in property value, so as to be actionable in this proceeding. Structural Safety Petitioners presented no competent, substantial evidence that the Parkland Transmission Line is structurally unsound or in any reasonable danger of failure. FPL presented ample evidence to the contrary. The Parkland Transmission Line is designed to meet FPL's internal standards. FPL's internal standards are more stringent (i.e., designed to withstand heavier loads) than the present regulatory requirements for wind-loading and structural safety. FPL's internal standards are also more stringent than the voluntary standards for electric transmission facilities developed by the American Society of Civil Engineers (ASCE). The structural strength of FPL's transmission line also exceeds the requirements of both the Broward and Palm Beach County building codes. Based largely on FPL's stringent internal standards, the National Electrical Safety Code (NESC) is being revised to improve the wind-loading standards for electric transmission poles. Because the new standards are based on FPL's existing internal standards, the Parkland Transmission Line structures are designed to comply with the new NESC that is currently in the final stages of development. FPL's stringent design standards make the possibility for Petitioners to be affected by a failed transmission pole or conductor extremely remote and speculative. Petitioners have expressed a concern over the effects of hurricanes on FPL's concrete transmission poles. However, it is highly unlikely that any portion of the transmission line would fail in a hurricane. FPL's experience reveals that no concrete transmission pole has ever been lost to a Category 3 hurricane, which is a 1-in-100 storm event. Hurricane Andrew, which was a 1-in-400 year storm event, was the only hurricane known to have affected such poles. Even then, 92 percent of FPL's poles stood up. The likelihood of a storm of that magnitude hitting the area where Petitioners' homes are located is very remote. Additionally, the poles along the Parkland Transmission Line are built to FPL's post- Andrew standards and have more load-bearing capacity than the poles in place during Andrew. Petitioners questioned the credibility of FPL's evidence on the structural integrity of FPL's transmission poles and lines, contending that FPL's design calculations for wind-loading failed to increase the basic design wind speed by the terrain factor for exposure category "D." According to the "Guidelines for Electrical Transmission Line Structural Loading," ASCE Manual No. 74, Exposure D is "described as unobstructed coastal areas directly exposed to wind flowing over large bodies of water." Petitioners contend that Exposure D applies because the Hillsboro Canal "runs for miles along the transmission line." But FPL Structural Engineer, C. Jerry Wong, Ph.D., P.E., testified clearly and persuasively that the presence of the Hillsboro Canal does not place the Parkland Transmission Line in an Exposure D setting. Even if failure of a pole were to occur during a hurricane, the chance that a pole would fall and hit one of Petitioners' homes still would be remote. For all Petitioners except Leserra, the poles are too far away for that to happen. The poles, which weigh 45,000 pounds apiece, are too heavy to become airborne. Petitioners presented no competent, substantial evidence suggesting that either a pole or electric conductor could somehow become airborne and reach the property of any Petitioner except Leserra. The only record evidence on this point established that, when there is a structural failure, the pole and the conductor fall down approximately right below where the transmission line is located. The odds of one of these homes being hit by a pole or transmission line due to high winds are almost zero. Even in the case of Leserra, who is the closest to the transmission line at approximately 69 feet away, the odds of his house being hit by a pole due to high winds is less than two-tenths of one percent. Because the transmission line is designed to have higher structural capacity than required by local building codes, it is likely that any winds strong enough to have the potential to damage the line would also destroy surrounding homes. It is far more likely that Petitioners' homes would be destroyed and strike the transmission line than the other way around. In any event, if a hurricane was strong enough to topple one of FPL's transmission line poles or blow down lines, it also would be strong enough already to have destroyed Petitioners' homes. So even if by some bizarre and remote chance a pole or wires blew into one or more of Petitioners' homes, the homes probably already would have been destroyed by such a storm. Petitioners next expressed concern regarding one of the poles being struck by a vehicle, such as a fully-loaded commercial truck. For most Petitioners, even if a truck could knock down a pole, the pole would not reach their property. Only Leserra's home is close enough for there to be any possibility of this happening. Even in Leserra's case, it is next to impossible for a truck to cause one of the poles to fall. The only truck traffic near the poles is on Loxahatchee Road, which runs parallel to the pole line. The poles are separated from the road by a guard rail designed to withstand a 50 mile per hour (mph) collision. The maximum weight of a truck allowed on the road is 80,000 pounds. Such a truck would have to hit a pole at a near right angle and at over 100 mph to have any chance of causing a failure. Because the trucks travel parallel to the pole line, and there is a guardrail in the way, the chance of failure from a collision is extremely remote and speculative. In essence the truck would need to make a 90- degree turn near the pole, break through the 50-mph guard rail a few feet away, and still be traveling at over 100 mph at the time it struck the pole. Then, the pole would have to fall in the opposite direction from the impact to hit Leserra's home. The odds of something this bizarre happening are extremely remote. Finally, it is noted that FPL's Permit has an indemnity clause, which "requires that FPL hold and save the South Florida Water Management District and its successors harmless from any and all damages, claims or liabilities which may arise by reason of the construction maintenance or use of the work or structure involved in the permit." Since this makes it clear that any liability resulting from the presence of the transmission line must be borne by FPL alone, any claim that a structural failure could lead to liability for WMD is speculative at best. Flooding Concerns Several Petitioners testified to concerns about flooding in the Boca Winds subdivision by blocking of subdivision drainage culverts that flow into the Hillsborough Canal or by interference with WMD's routine maintenance of the canal. But Petitioners presented no competent, substantial evidence that flooding for these reasons would be likely. There are two box culverts leading from Boca Winds into the Hillsborough Canal. But, as required by WMD rules, the Boca Winds storm water system is designed to accommodate a 3-day long, 1-in-100 year storm event, with no external outflow. In other words, the system is designed to function without the drainage culverts in even this extreme rainfall condition. There is only a one-percent chance that a 1-in-100- year rainfall event would hit Boca Winds in any given year. In any storm of this magnitude or less, the onsite system would be sufficient to accommodate the rainfall with no flooding of the floor elevation of Petitioners' homes. The possibility that any one storm event would even require drainage into the Hillsborough Canal to prevent flooding in Boca Winds is therefore remote. The culverts leading to the Hillsboro Canal essentially provide additional drainage capacity to the internal storm water management system of Boca Winds. In addition, by slowly draining ("bleeding") water from the Boca Winds subdivision to the canal, they allow the system to recover capacity for subsequent rain events. It is highly unlikely that a transmission pole, even if it was to shear off and fall toward the canal-which is in itself an extremely remote possibility--could in any way impede the functions of either the drainage structures or the canal. Even if a pole were to fall and directly strike and crush one of the two drainage structures, it probably would not appreciably affect the culvert's ability to bleed water into the canal. The drainage into the structures is controlled initially by a weir at the inflow point, not by the pipe diameter at the outflow. Even if a pole were to somehow crush the outflow pipe, water would continue to flow into the canal at roughly the same rate. A pole falling into the canal itself would not affect the ability of the canal to provide drainage. If a pole were to fall into the canal, it would most likely do so top first. Because the pole is tapered, only a small cross section would enter the canal, which would have almost no effect on the flow of water. Even assuming that a pole were to enter the canal in its entirety, it would affect only a minimal portion of the canal cross section and would not significantly affect the flowage capacity of the canal. Even multiple poles falling completely in the canal--an extremely unlikely event--would not significantly affect the function of the canal, due to the small cross-section taken up and the distance between the poles. Most maintenance of the Hillsborough Canal is done with herbicides and from boats in the canal itself. There is rarely a need to use heavy land-based equipment to maintain a drainage canal. The Parkland Transmission Line is on the south bank of the canal, and the Permit provides for the poles to be set approximately 450 feet apart and more than 14 feet from the top of the canal bank. (In many instances the poles are much more than 14 feet from the top of the canal bank). The Permit provides that the poles are to be installed with turn structures that allow at least a 14-foot passing zone around each pole. This is sufficient for the types of vehicles used by WMD to pass around the poles, assuming there was a need to drive along the south bank of the canal. Most heavy equipment can operate from the passing pad and from the space between poles. When heavy equipment is needed, a backhoe or grade- all is typically used. Both of these types of equipment can operate unimpeded from the south side of the canal. A grade- all operating from the south bank has sufficient reach to dredge the bottom of the canal should that be necessary and is the optimal piece of equipment for such an operation. The transmission line would not affect the operation of a grade- all from the southern bank of the canal. Because of the higher elevation, a grade-all would not be used from the north bank, and a crane would be used if there were a need to conduct dredging from that direction. However, because of its location, the transmission line would not impede any equipment use on the north bank. Moreover, if any extensive dredging were done, the routine method would be to operate from a barge on the canal itself, which would also not be affected by the transmission line. There also is no way that the presence of the transmission line could affect the maintenance of the outfall structures from Boca Winds. Any maintenance of those structures would be performed from the north bank of the canal-the side opposite to the transmission line-or from boats or barges operating in the canal. Petitioners introduced evidence to prove that, in some instances, the poles may not have been installed as provided in the permit, with not enough room between the poles and the top of the bank on one side or Loxahatchee Road on the other. It was not clear from their evidence whether this may have occurred in more than two instances, or in any instance other than where the transmission line intersected the canal and changed direction near a culvert. Even if proven, these would have amounted to compliance enforcement issues, not permitting issues. It was not proven that the installation design at these locations was improper; if installation was designed properly but implemented improperly, it was not proven that installation as designed was impossible at these locations. Finally, it was not proven that the installation hampered canal maintenance. Leserra also expressed concerns about flooding of his property from a north-south drainage ditch along his property line, which conveys water from the south to a box culvert under Loxahatchee Road to the Hillsboro Canal, draining a significant area in the vicinity of Parkland. There was little evidence on the operation of Leserra's drainage ditch. The little evidence presented was insufficient to prove the likelihood of flooding of Leserra's property due to the existence of the transmission line. The evidence presented about the Hillsboro Canal in general suggests that flooding of Leserra's property due to the existence of the transmission line is highly unlikely. Indeed, there was no testimony that water in the Hillsborough Canal has ever risen above its banks, even in major rain events. Recreational Use of Canal Tennant testified that her husband regularly used the Hillsboro Canal for fishing and canoeing before the transmission line was installed. The transmission line does not physically obstruct canoeing or fishing in the canal, but her husband chooses not to canoe or fish in the canal any longer due to medical and health concerns and for aesthetic reasons. He does not enjoy those activities as much any more due to the transmission line being there both visibly and audibly. (It makes a noise described as "buzzing" or "humming.") Tennant also testified that her family used to fly kites from the dirt road in the ROW along the north side of the canal behind their home. Due to the proximity of the transmission line, this activity no longer is safe and has been discontinued.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order dismissing the Amended Petition for lack of standing. DONE AND ENTERED this 27th day of February, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2002.
The Issue The issue in this case is whether Kenneth Tuch is liable to Florida Power and Light Company for receipt of unmeasured electric energy and if so, what amount is due?
Findings Of Fact Kenneth Tuch resides alone at 1924 N.E. 25th Street, Ft. Lauderdale, Florida. He receives his electric current from Florida Power and Light Company. In June of 1985, an employee of American Cable Company went to Mr. Tuch's home to investigate a complaint about the quality of cable television reception at the Tuch residence. The employee noticed that the air conditioning was on in the Tuch residence while he was investigating the complaint. When following the cable lines outside the home, he noticed the electric meter was not operating. He provided this information to Florida Power and Light which sent two employees to the Tuch residence on June 20, 1985. They found the air conditioning and swimming pool pump were on, but the electric meter disk did not turn. The meter seal was opened and the meter was removed from its socket, and photographed. The photographs demonstrate that the potential clip of the meter was open. The potential clip is used when testing a meter. When it is open no registration of electric current is made. The meter was originally placed at the Tuch residence in 1960. The potential clip could not have been open then, for it never would have registered any electric consumption were that the case. The potential clip would not have fallen into the open position on its own. There was tampering with the potential clip because a screw in the slot in the center of the clip had been tightened to keep the clip in the open position. In addition, the picture of the potential clip and the screws (FP&L Exhibit 5) show wear and tear on the screw. Marks on the area around the screw slot in the center of the potential clip show that the clip has been slid back and forth. These facts prove a deliberate attempt to divert unmeasured electricity. The meter seal consists of a wire bail of a horseshoe shape which fits into a rectangular base body approximately 1 and 1/4 inches by 3/4 inch by 1/8 inch. The seal removed from Tuch's meter bears the inscription on one side "77 FP&LS" and on the other side, the numbers "0379126". The condition of the seal was such that by tugging on the wire bail, it would loosen from the body of the seal, and open, but the bail could be replaced into the seal body giving the impression on casual observation that the seal was intact. While the inscription on the seal indicates that it is a genuine Florida Power and Light seal, it is not in the condition in which seals are originally placed. It is not possible to open the wire bail of a seal and thereby gain access to the meter canopy without tampering with the seal. The billings for consumption of electricity at the Tuch residence show an erratic pattern of monthly electric consumption during the period for which Florida Power and Light has records available, January 1982 through June 1986. For the years 1982 through 1984, Mr. Tuch was billed for an average of 11,022.33 kilowatts per year. On June 20, 1985, the meter at the Tuch residence was replaced with a new meter which was locked in place. Readings were taken from the new meter on June 21, June 27, July 2 and July 9. During those 19 days, 1,063 kilowatts had been consumed for an average use of 55.9 kilowatts per day. This equals 1,677 kilowatts for a 30 day period. An average percentage of use chart was introduced into evidence as the basis for distributing the total yearly kilowatt consumption based upon seasonal variations in consumption. According to the chart 9.8 percent of the total kilowatts used by Florida Power and Light customers in 1985 were consumed in the July billing period. That being so, the total estimated annual usage given a July bill of 1,677 kilowatts would be 17,112 kilowatts. The total additional billing on that basis for 1982, 1983, 1984 and 1985 (through the date of the discovery of the tampering) would be $1,829.57. A potential problem with this methodology for determining annual usage is that it extrapolates a bill for a one year period based on readings taken over only 19 days. As a check on the method Florida Power and Light also placed in evidence the readings for approximately six months actual usage after replacement of the meter which had been tampered with. Mr. Tuch used 7,865 kilowatts during the 172 day period from June 20 through December 31, 1985. This was an average use of 45.72 kilowatts per day. When multiplied by 365 days the estimated yearly usage is 16,690 kilowatts. This results in a billing $17.52 lower than the extrapolation and shows the reasonableness of using the 19 day period to project annual usage. The electric meter removed from Mr. Tuch's residence was tested, but due to its age was then destroyed. Florida Power and Light rendered its additional bill two months later. Mr. Tuch therefore did not have the opportunity to inspect or test the meter. Florida Power and Light tested the meter appropriately before it was destroyed and it was accurately registering current flow when the potential clip was closed. If this case involved questions about the accuracy of the registration on the meter which had been removed, Mr. Tuch's inability to test the meter would have seriously impaired the fairness of this proceeding. The testimony and photographic evidence, which is accepted, is that the potential clip was open, and thus the meter would register no use of current at all. Essentially the meter had been turned on and off. This tampering caused the underregistration, not inaccuracy of the meter's measurement ability. In this case, the inability to test the old meter did not prejudice Mr. Tuch. Florida Power and Light is not entitled to recover $157. 88 in investigative costs. The witness proffered to testify about investigative costs was listed in interrogatories as a witness on matters of corporate policy. See Notice of Serving Answers to Interrogatories filed April 21, 1986. While it may be corporate policy to bill those who divert current for investigative charges, the exhibit purporting to set out the costs incurred in the Tuch investigation was admitted to show the corporate form for recording charges. No evidence of the charges in this specific case was admitted (Transcript 196-97). 1/
Recommendation It is RECOMMENDED that a final order be entered by the Public Service Commission requiring Kenneth Tuch to pay Florida Power and Light $1,829.57 for current diverted. If such payment is not made, electric service to Mr. Tuch's residence at 1924 N.E. 25th Street, Ft. Lauderdale, Florida, should be discontinued. DONE AND ORDERED this 29th day of January, 1987, in Tallahassee, Florida WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1987.
The Issue On December 13, 1989, Florida Power Corporation (FPC) filed a wetland resource permit application with the Florida Department of Environmental Regulation (DER) for a project to construct, operate and maintain a 69 kilovolt (kV) electrical transmission line in Osceola County. The application described the placement of power line poles in jurisdictional wetlands. On September 28, 1990, DER issued its notice of permit denial, DER File No. 49-173789-4. The ultimate issue for determination is whether FPC is entitled to the permit. Ancillary issues include the scope of "cumulative impacts" to be considered; the scope of "secondary impacts"; whether alternative sites must be considered; whether FPC's clearing of the right of way constituted dredge and fill activity; and whether mitigation is required, and if so, whether the mitigation offered by the applicant is adequate.
Findings Of Fact FPC, whose headquarters are located at 3201 34th Street, South, St. Petersburg, Florida, 33733, is required by Florida Statutes and regulations promulgated by the Florida Public Service Commission (PSC) to provide electric utility service in the vicinity of the proposed transmission line. DER, 2600 Blair Stone Road, Tallahassee, Florida 32399-2900 is an executive agency directly responsible for prevention of pollution of the air and waters of this State. Pursuant to that obligation, Sections 403.91-403.929, Florida Statutes, and Chapter 17-312, F.A.C., DER regulates proposed dredging and filling activities in waters of the State. FPC, pursuant to its statutory and regulatory mandate, transmits electricity through 33 counties within the state, providing actual service to customers in 32 counties. FPC's electrical transmission lines range in voltage capacity from 69 kV (69,000 volts) to 500 kV (500,000 volts). Considering other utilities, there are approximately 7,000 miles of 69 kV electrical transmission lines within the state, over 1,855 miles of which are operated and maintained by FPC. The Project The electrical transmission line at issue in the instant proceeding will traverse approximately 10 miles. It intercepts two areas of jurisdictional wetlands; however, the main point of contention in the permitting proceeding is the six acres of wetland vegetation which have been cleared in the vicinity of where the transmission line corridor intersects the main crossing of Reedy Creek. The original application for this project was 14 miles long; however, FPC and DER agreed to modify the application by separating the northern-most four miles of the project and submitting it as a separate application. The northern segment starts at the Intercession City substation and proceeds easterly along an existing transmission line corridor in the right of way of SR 17/92 to Old Tampa Road and then turns south terminating at the Poinciana Industrial Park. The proposed transmission line which is the subject of this proceeding starts from the Poinciana Industrial Park and proceeds south, then crosses Reedy Creek in a northeast to southwest direction and continues south, ultimately terminating at the Poinciana substation. There are references in the application to a 72 kV line. 72,000 volts is the maximum operating voltage. 69,000 volts is the normal daily load. Direct dredge and fill impacts associated with the proposed construction include 301 cubic yards of fill, which includes the wooden transmission poles as well as crushed rock backfill at the base of those poles. This fill material would be placed over .00846 acres. This fill amount equates to an area analogous to a 20 foot by 20 foot room. Initial placement and continued maintenance of the poles and lines require clearing. This enables access by equipment and prevents vegetation from interfering with the lines. Clearing is essential for the safety and reliability of the electrical power distribution system. The wood electrical transmission line poles will be spaced approximately 300 foot apart in an area of vegetation clearing 60 feet wide. The major jurisdictional area north and south of the Reedy Creek crossing is approximately 4,400 feet long. The Applicant will, after construction, undertake corridor maintenance on a three to five year cycle. An area will be kept clear 50 foot square around each wooden pole structure along the proposed transmission line. Vegetation will be maintained at ground or water level for 17 feet on either side of the wooden utility poles. The outer 13 feet on each side will be allowed to regenerate except for fast growing trees and other vegetation with the potential to reach 30 feet prior to the next regularly scheduled maintenance period. Fast growing trees within the 13 foot outer area on either side of the corridor will be girdled or treated with herbicides by specific and selective application. The only herbicides to be used will be those that are EPA approved for use in the State of Florida. All exotic or nuisance target species will be removed from the entire right of way as part of FPC's maintenance program. The Application Process FPC submitted a wetland resource permit application for this project on December 6, 1989, received by the DER Central Florida District on December 13, 1989. DER requested additional information on January 12, 1990, and the Applicant submitted responses by letter dated April 20, 1990. On May 18, 1990, DER submitted a second request for additional information, which was responded to by FPC at a meeting with DER Central District staff in Orlando on June 5, 1990, and by a follow-up letter dated June 20, 1990. Neither of DER's requests for additional information required information relative to alternate routes for the proposed transmission line; however, a letter from DER to FPC dated June 20, 1990 states that mitigation would be required since an alternative route was not presented and impacts could not be reduced any further. The application was deemed complete on June 22, 1990. Subsequently, FPC proposed a preservation mitigation of 1:1 ratio by offering for preservation a 6-acre area of Reedy Creek Swamp near the Intercession City substation. FPC waived DER's 90 day statutory time clock in which it has to act on complete permit applications until October 1, 1990. The DER Central District Office issued a notice of permit denial regarding FPC's project on September 28, 1990. The maintenance plan described in paragraph 6, above, includes a departure from FPC's past practices. The plan and specifics of the 13-foot border areas were provided to DER during the hearing on December 3, 1991. Without objection by DER, the hearing proceeded on the application thus modified. Reedy Creek Swamp and the Project Context Reedy Creek Swamp is located in Orange, Osceola and Polk Counties. It is the only large mixed wetland forest system in Osceola County and is one of the largest systems in central Florida. It provides valuable forested wetland habitat for numerous plant and animal species. The proposed dredging and filling activity which is the subject of this application occurs in the South Reedy Creek basin. It is part of the Reedy Creek and its associated floodplains and uplands that drain south-southeast of Interstate-4. South Reedy Creek basin, as described in the instant proceeding, consists of over 92,000 acres of upland and wetland habitats. Approximately 31,448 acres of contiguous forested wetland are contained within that 92,000 acres. Based on the limited nature of the project's corridor, the six acre disturbance has been correctly characterized as de minimis. Since the turn of the century the South Reedy Creek basin has been the subject of extensive logging and silviculture impacts through either clearcutting or selective timbering which continues to this day. The basin is also the subject of an ongoing effort by the South Florida Water Management District for land aquisition and management. Approximately 7,000 acres of the basin have been bought or are under plans to purchase for protection. Commercial and environmental interests command the basin's resources. Clearing the Way FPC's clearing of the six acres of forested wetland was accomplished from March 12 through June 7, 1990. Clearing occurred during the processing of the dredge and fill application in order to take advantage of dry conditions and to facilitate bringing the electrical transmission line into service in accordance with FPC's established schedule. All vegetation in the wetland area was removed at ground or water level and the material was then either burned on site or removed to upland locations. Charles Duncan, FPC's chief inspector for transmission line construction, made regular spot investigations of all construction and assured that the hand clearing and low pressure rubber wheeled and tracked vehicles used by FPC did not result in significant soil disturbance. It is unrefuted that between June and November 1990, well after FPC's clearing was completed, considerable silvicultural activity occurred immediately adjacent to the corridor, both east and west. John Vogel, an expert in forestry and the effects of clearcutting, provided photographic evidence of those silvicultural entities' use of the corridor and identified the adjacent property owner as the party actually responsible for that activity. These facts, and DER employee Don Medellin's tacit admission that what he saw on his June 7, 1990, site inspection clearly could have been accomplished by parties other than FPC, leads to the specific finding that no FPC-initiated dredging and filling has occurred within the corridor. Dredging and filling will occur when the poles are placed. The evidence submitted by FPC, including rainfall and flow discharge information for the relevant time period, closely corroborate Mr. Duncan's eye witness accounts that clearing was conducted during a period when the wetland areas were extremely dry. Mr. Duncan further noted that the dry conditions precluded the burning of all of the collected and stockpiled debris beyond the week of June 7, 1990, and those conditions account for some of Mr. Medellin's observations of stockpiled material during his visit to the site on June 7, 1990. Considering the site conditions at the time of clearing and the absence of running water within Reedy Creek itself, there were effectively no water quality consequences to the creek from the clearing activity. Silt screens were constructed on the site on May 1, 1990, and according to Dr. Miles Smart, an expert in water chemistry and limnology, that precaution adequately safeguarded water quality within Reedy Creek during subsequent rain events. DER witness, Don Medellin, confirmed that the Department had no knowledge of any water quality violations having occurred during the FPC construction activity. The Public Interest Criteria Much, if not all, of the Department's opposition to the proposed project is based on the clearing of vegetation as opposed to pole placement and filling associated therewith. In this case the impacts of the clearing are already known. In the traditional dredge and fill case, the applicant provides evidence, testimony and test results predicting the impacts of the proposed construction activity, whereas in the instant case, the Applicant has the benefit of providing reasonable assurances by documenting the consequences of its acts. In the instant case, FPC provided a detailed analysis of biological and water quality ramifications from its clearing. DER presented several witnesses who contested the positive or neutral effects that the proposed transmission line corridor would have on wildlife, citing nest parasitism, predation, fragmentation, and reduction in patch size as examples of adverse impacts that the proposed line could impose on wildlife. DER witness, Dr. Francis Putz, testified that the project could cause unraveling of the forested wetland and sunscalding of newly exposed trees along the edge of the corridor. However, no DER witness presented any quantitative data or analyses that would indicate that any of the possible adverse consequences mentioned above were, in fact, occurring or reasonably likely to occur in Reedy Creek as a result of FPC's project. It is undisputed by either party that clearing of the proposed transmission line corridor resulted in a change to that specific six acre area from a forested wetland to a herbaceous/shrub wetland. Furthermore, it is undisputed that FPC's proposed maintenance practices will maintain that change over the expected 30-year operational life of the transmission line. However, different is not synonymous with adverse. The structural change to the wetland has not had, and will not have, any deleterious consequences to water quality within Reedy Creek. Dr. Miles Smart, the only expert in water chemistry and limnology to testify, presented testimony, based on samples of water quality in Reedy Creek and available historical water quality data, that water quality approximately a year and a half after initial clearing was no different than the ranges observed over the ten year period for which historical information was available. In most cases, water quality was the same or extremely close for the sampled parameters which included water temperature, pH, dissolved oxygen, alkalinity, turbidity, concentrations of nitrogen, phosphorous, total kjeldahl nitrogen and orthophosphate nitrogen. FPC's proposed maintenance practices which include the use of EPA approved herbicides for use in control of target species, will pose no problem to water quality. A study of twenty-two transmission line rights of way in the State of New York found virtually no water quality problems as a result of maintenance of those transmission lines. It was uncontroverted that FPC has never experienced water quality violations as a result of its management practices, nor has it been the focus of any enforcement or noncompliance action with respect to any previous clearing or construction activity it has undertaken. The clearing created no impediment to flow or impounding. The continuing use of silt screens and hay bales by FPC during pole installation will reduce the likelihood of erosion or shoaling. Extensive ground cover currently present in the corridor and FPC's proposed preservation of this herbaceous/shrub vegetation will further minimize any possible shoaling and erosion. Vegetative surveys conducted approximately a year and a half after the initial clearing show that the corridor has revegetated with 85 percent mean herbaceous plant cover in the corridor. Species composition of vegetation is similar in the corridor and no new species have been introduced nor have any been eliminated as a result of the clearing activity. Based on primary productivity and decomposition rate studies, FPC's clearing activity and the vegetative change that has resulted predictably should increase net primary productivity threefold over what exists in the adjacent forest, primary productivity being simply biomass accumulated over a period of time. Several DER witnesses testified to the possible introduction of nuisance or invader species as a result of FPC's clearing activity and subsequent maintenance of the corridor. However, FPC's proposed maintenance practices will eliminate those target species which inhibit the growth of other species, resulting in a wetland community having similar shrub and herb strata to that of the adjacent forest. DER admitted that any proliferation of nuisance species can be controlled with proper management techniques and has required such control as mitigation for clearing associated with an electrical transmission line project by Florida Power and Light Company in Lee County. Left to natural processes, the cleared corridor would eventually return to a forested area similar in species composition to the adjacent forest within several years. This rapid regeneration comports with experiences in other transmission line projects and in the silviculture industry. Qualitative analysis of other utility corridors in the Central Florida region confirm this natural process of succession. One of those projects, the Tampa Palms Corridor Improvement Project, constructed in a large forested wetland similar to the Reedy Creek Swamp, revealed that in 25 years after clearing, trees had regenerated to heights of 10 to 50 feet with corresponding diameters at breast height ranging from 2.7 to 30.5 centimeters. John Vogel, an expert in forestry and the effects of clearcutting, provided unrefuted testimony and photographic evidence of a clear cut site in the South Reedy Creek basin where after a period of 8 years rapid revegetation and reforestation was occurring, resulting in a fully stocked pre-commercial stand of timber. Several DER witnesses indicated that FPC's manner of cutting trees at ground or water height could have adverse effects on the ability of tree species to regenerate. However, this was refuted by the evidence of tree coppicing ( sprouting within the cut-off stumps) within the corridor with some canopy species having coppices over six feet tall in the 18 month period since FPC's initial clearing. DER employee, Donald Medellin, indicated at hearing that the clearing and proposed maintenance activity of FPC may impact a limited number of plant species listed as threatened. The Applicant's onsite analysis established that Tillandsia, a species listed in Chapter 581, Florida Statutes, as endangered, does exist in the adjacent forest in large numbers. No species referenced by Mr. Medellin appear on any federal endangered or threatened plant species list. Certain referenced plants appear on various state lists; however, none of these lists preclude the clearing of such vegetation with permission of the landowner. FPC's proposed maintenance activities for this project would not threaten the continuing existence of any of those species. The loss of some individual plants as a result of FPC's initial clearing was inconsequential, and continued maintenance of the corridor will not impact the species' continuing existence in the area. The change from forested to herbaceous wetland was demonstrated to have had no adverse effect on the conservation of fish and wildlife in the South Reedy Creek basin. An extensive quantitative analysis undertaken by J. Steven Godley established that aquatic organisms (i.e., fish, aquatic amphibians, and reptiles), invertebrates, mammals, and birds have not been negatively impacted by FPC's initial clearing of the transmission line corridor. It was uncontroverted that the project has occasioned a twofold increase in the number of aquatic organisms in the corridor as compared to the adjacent forest. Even though wildlife surveys conducted over 1,000 manhours revealed no measurable impact to any species of wildlife, Mr. Godley constructed a theoretical listing of several species of vertebrates indigenous to the Reedy Creek Swamp system which were likely to use the swamp system in an average year or at least a part of their life cycle, in order to assess the possible impact of the corridor on those species. Mr. Godley's unrefuted analysis revealed that the vast majority of all species of the various groups (fish, amphibian, reptiles, mammals, birds) are expected to be either positively affected or not affected at all by FPC's proposed project. DER witness, Dr. Herbert Kale, testified that some bird species such as red-eyed vireos, warblers, woodpeckers and thrushes could possibly be impacted due to the loss of forested canopy since they are cavity nesters, and because of nest parasitism by the brownheaded cowbird. Dr. Kale readily admitted, however, that the transmission line swath was small and was not fatal to any of those interior forest bird species. Moreover, his testimony regarding the nest parasitism was inherently contradictory, since the cowbirds breed in winter during a period when the other species are actually in Central and South America. The wetland change occasioned by FPC's project will not adversely affect endangered or threatened wildlife species. The only reptile likely to occur in the Reedy Creek Swamp that is either threatened, endangered or a species of special concern is the indigo snake, which will likely be positively impacted by the corridor, as it feeds on aquatic organisms in the swamp. No listed mammals will be impacted by the corridor. Three species of wading birds, the wood stork, little blue heron and snowy egret, will be positively affected by the transmission line corridor as they, too, will be provided excellent feeding habitat. DER's witness, Dr. Kale, agreed that the change will provide additional habitat for marsh wading birds. The only other possible endangered species that may occur in the swamp is the bald eagle. Since bald eagles prefer large water bodies, they are unlikely to occur. They would benefit, however, from the enhanced feeding habitat. Existing literature regarding the ecological impacts of clearcutting and electrical transmission line corridors on wildlife is consistent with the quantitative evidence submitted by FPC. Existing scientific literature generally reflects that transmission line rights of way cause edge effect, defined as a transition between two or more diverse communities. This edge causes an increase in species number and diversity for wildlife in the corridors, as compared to the adjacent forest. This is particularly true of bird species. For small mammals there is either a nonsignificant difference in species numbers in the corridor as compared to the adjacent forest, or there is a larger small mammal diversity within the corridor as opposed to the adjacent forest. The same applies for larger mammals and game species. The applicant's witnesses touted edge effect as essentially positive, while DER's witnesses described the phenomenon as a negative impact, since any new species are already abundant in other habitats. No finding is made generally on this issue, but rather in this case it is concluded that edge effect is not so significant as to constitute a negative consequence of the project. Based on the weight of empirical evidence and opinion testimony presented, wildlife species residing in the South Reedy Creek basin have been and will continue to be either positively affected or not affected at all by FPC's proposed project. Moreover, the overall productivity of the wetland from the standpoint of vegetation and wildlife, when balanced across all plant and animal species, has not and will not be negatively affected. Although the opportunities for recreational activities are limited in South Reedy Creek basin due to the inaccessibility of the site, those activities such as hunting, fishing, and bird watching are unchanged or have improved as a result of the small localized change to a herbaceous/shrub wetland. The need for the electrical transmission line was unrefuted. FPC must meet minimum service standards in its provision of electric power as set out by the PSC. In order to meet these service standards, FPC decided, through its internal system planning and modeling, that a new 69 kV electrical transmission line was required between its Intercession City and Poinciana substations to provide a more reliable source of power to the towns of Davenport and Haines City as well as the Parker-Poinciana 55,000 unit residential development, as these areas have experienced problems with low voltage. The demonstrated need for this facility and the public benefit which DER has admitted it will provide, when balanced with minimal changes to the forested wetland system, lead to the finding that this project is not contrary to the public interest. Cumulative Impacts DER failed to present any evidence disputing the hydrologic and biologic validity of the boundaries of the South Reedy Creek basin or the location of existing and proposed electrical transmission lines in that system. The only other projects suggested by DER for cumulative impact analysis were several projects consisting of construction of berms, roads and pipelines, as well as proposed developments of regional impact (DRI's). However, these projects were not shown to be similar in construction or amount of impact to FPC's proposed electrical transmission line, except for their linear nature. Unlike this project, roads, berms, pipelines and residential developments remove wetlands. It was not established that all the project applications considered by DER for cumulative impacts were within the South Reedy Creek basin. Instead, several DER witnesses alluded to the loss of forested wetlands allegedly occurring throughout the state. The evidence was anecdotal and unreliable. DER cited an analysis showing a three percent decline in forested wetlands, but the study combined both South Carolina and Florida acreages. Of the existing and proposed transmission lines within a 10 year planning horizon, very few (only three) will directly cross any portion of the South Reedy Creek basin. Those proposed electrical transmission lines will be co-located along existing rights of way and will have little, if any, impact on the forested component of the South Reedy Creek basin. It was undisputed that as a general proposition, the construction and operation of electrical transmission lines vital to the provision of electrical service does not stimulate subsequent development in an area but, in fact, follows development where electrical services are projected to be needed. Logging has occurred extensively in this area in the past and there is no evidence that the 60 foot corridor has induced additional logging activity, as asserted by DER. Consideration of Alternative Routes and Methods Having identified the need for a new transmission line, FPC conducted an intensive route selection analysis taking into account environmental, property (real estate), economic, and construction considerations. In this case, FPC considered two routes to address the electrical needs of this area: the recommended route, which is the subject of this proceeding, and an alternate route to the east and along an existing roadway. The alternate route would still have crossed Reedy Creek and its contiguous wetlands at some point in order to connect to the Poinciana substation. Both of the proposed corridor routes are within FPC's service territory. A consideration in choosing the recommended route was its proximity to existing and proposed substations. The alternate route would have necessitated more vegetative clearing in the future, as its location was not near proposed substations in this area. Moreover, the recommended route was aligned through the narrowest portion of the South Reedy Creek basin through what was an old tram railbed used by the logging industry. Major property owners in the area of the proposed line expressed their preference for the recommended route. The landowner for most of the proposed corridor south of the Reedy Creek crossing granted easements at no cost to FPC. FPC fully participated in the give and take of the permit application process for this project with DER. It was unrefuted that FPC employee, W. Jeffrey Pardue, met with a DER employee prior to submittal of the application during which meeting the two routes were discussed. The only concern about the project expressed by DER at that meeting was construction of access roads. In response to this concern, and prior to application submittal, FPC's transmission line was redesigned to consist of only wooden pole structures requiring shorter span construction and allowing less right-of-way clearing, since the transmission line wires would not move as much due to wind or other weather conditions. Wood pole construction will also allow for the use of low pressure, high flotation, equipment for construction and maintenance of the transmission line, thereby obviating the need for access roads. Mitigation: The policy applied In order to appease DER's demand for mitigation, FPC entered into negotiations with DER and offered the preservation of six acres of existing wetlands located east of its Intercession City substation adjacent to State Road 17/92, an area vegetatively similar to the area affected. Mitigation is the reduction or elimination of actual or anticipated adverse effects caused by a wetland project. Mitigation, as evolved in DER's permitting processes, can be the creation of new wetlands to replace those destroyed, the enhancement of an existing wetland, or preservation of an existing wetland other than that impacted by the project. Because preservation as a mitigation measure does not replace lost wetlands, DER has consistently required a preservation ratio of more than 1:1, most often 10:1, and sometimes substantially more than 10:1. The requirement is based on a case by case analysis of the quality of the wetland impacted, the extent of the impact and the quality of the wetland offered for preservation by the applicant. Clearing, without more, is not considered a dredge and fill activity and therefore has not, alone, required a DER permit. Clearing has not, therefore, been the subject of mitigation requirements in the past. Until the recent past, DER has not applied its mitigation policy to clearing associated with construction and maintenance of electrical transmission lines. Most of those lines have been placed along roadways and other existing corridors with little additional impact to jurisdictional areas. DER has required mitigation for other linear configured projects such as pipelines and the unique "Maglev" project, a high speed elevated train proposed to be constructed from the Orlando Airport to a tourist center in Orange County. DER is presently requiring power companies in three power plant or transmission line siting cases to address the secondary impact of clearing. Until the review of impacts is complete, the DER staff cannot predict what and how much mitigation will be required in those cases. Prior to the instant case, DER Chief of the Bureau of Wetland Resource Management, Janet Llewellyn, could identify only one instance of mitigation for clearing associated with an electrical transmission line: the Florida Power and Light Company line in Lee County addressed in paragraph 21, above. The "mitigation" required in that case is already proposed in FPC's maintenance plan. DER in this case has adequately justified its policy of considering secondary impacts of clearing related to the construction and maintenance of electrical transmission lines. Those impacts are legitimately assessed when the need for mitigation is being considered. The nature and extent of secondary impacts from clearing are properly part of the discourse and review of the nature and extent to which mitigation will be required. The need for mitigation, however, is not reached when no adverse impacts are found. Here, the applicant has successfully demonstrated by the substantial weight of evidence that neither the clearing already completed, (albeit precipitately) nor the planned pole and line construction and future right of way maintenance will violate water quality standards or otherwise offend the public interest criteria of Section 403.918, F.S. The application of DER's mitigation policy is unnecessary in this case.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That the agency enter its final order granting the application for permit #49-173789-4. DONE and RECOMMENDED this 19th day of February, 1992, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1992. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 5. Adopted in paragraph 6. Adopted in paragraph 7. Adopted in paragraph 11. Adopted in paragraph 12. Adopted in paragraph 13. Adopted in paragraph 9 and paragraph 10. Adopted in paragraph 14. Rejected as unnecessary. Adopted in paragraph 15. Rejected as unnecessary. Adopted in paragraph 16. Adopted in paragraph 17. Adopted in paragraph 18. Adopted in paragraph 19. Adopted in substance in paragraph 20. Adopted in substance in paragraph 21. Adopted in substance in paragraph 22. Adopted in substance in paragraph 23. Adopted in substance in paragraph 24. Adopted in substance in paragraph 25. Adopted in substance in paragraph 26. Adopted in substance in paragraph 27. Adopted in paragraph 28. Adopted in paragraph 29. Adopted in paragraph 30. Adopted in paragraph 31. Adopted in paragraph 32. Adopted in paragraph 33. Adopted in part in paragraph 34, except for the proposed finding that forested wetlands are increasing, which finding is not supported by reliable, nonhearsay evidence. Adopted in paragraph 35. Adopted in paragraph 36. Adopted in paragraph 37. Adopted in paragraph 38. Adopted in paragraph 39. Rejected, except for the conclusory finding that mitigation is not necessary here because of no finding of adverse impacts. See paragraph 44. The proposed findings related to the error of the policy generally are rejected as contrary to the evidence. Respondent's Proposed Findings Adopted in paragraph 7. 2.-3. Adopted in paragraph 4. 4.-5. Adopted in part in paragraph 7. Rejected as unnecessary. Rejected as contrary to the evidence (as to any implication that dredging and filling was done by the applicant); otherwise adopted by implication in paragraph 11. Adopted in substance in paragraph 11. 9.-10. Adopted in substance in paragraph 7. Adopted in substance in paragraph 39. Adopted in substance in paragraph 7. Adopted in substance in paragraph 4. Adopted in substance in paragraphs 6 and 7. Adopted in substance in paragraph 5. Adopted in substance in paragraph 6. Adopted in substance in paragraph 5 and conclusions of law #3. Rejected as contrary to the evidence. The clearing conducted by FPC did not constitute dredge and fill activity. 19.-22. Adopted in substance in paragraph 11. 23.-24. The conclusion that logging activity is a secondary impact of the FPC is rejected as wholly unsubstantiated by competent evidence. Adopted in paragraph 8. Adopted in part in paragraph 8, otherwise rejected as contrary to the weight of evidence. Rejected as unnecessary. Adopted in substance in paragraph 24. Adopted in paragraph 10. Adopted in paragraph 16. Rejected as unsupported by competent, credible evidence. 31(a). Rejected as contrary to more substantial evidence and, as to recreation mitigation, unnecessary. 32.-33. Rejected in substance as unsubstantiated by the weight of evidence. Rejected as unnecessary. Rejected as contrary to the weight of evidence. 36.-38. Rejected as unnecessary. FPC will remove the nuisance species as part of its maintenance plan. 39.-47. Rejected as contrary to the greater weight of evidence. 48.-50. Rejected as unsubstantiated by competent evidence. 51.-52. Rejected as contrary to the weight of evidence. Adopted in paragraph 17. Rejected as unnecessary. The construction activity could have, but did not cause water quality violations. See paragraph 13. 55.-58. Rejected as unnecessary. 59. Rejected as contrary to the evidence. The logging activity was occurring long before and during the relevant period and was not caused by the FPC project. 60.-76. Rejected as irrelevant or contrary to the weight of evidence. Adopted in paragraph 32. Adopted in paragraph 36. 80.-87. Rejected as irrelevant. 88. Adopted in part in paragraph 42. That mitigation is required is rejected as contrary to the evidence. 89.-90. Adopted in paragraph 39. Rejected as unnecessary. Adopted in part in paragraph 42, otherwise rejected as an enforcement issue and irrelevant here. Adopted in paragraph 40. Adopted in substance in paragraph 40. 95.-106. Rejected as unnecessary. COPIES FURNISHED: Frank E. Matthews, Esquire Michael P. Petrovich, Esquire Hopping, Boyd, Green & Sams O. Box 6526 Tallahassee, FL 32314 Douglas MacLaughlin, Esquire Office of the General Counsel Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, General Counsel Dept. of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. The Petitioner is MCI Telecommunications Corporation, whose business address is Suite 400, 400 Perimeter Center Terrace NE, Atlanta, Georgia 30346. The Respondent is State of Florida, Department of General Service, whose address is 614 Larson Building, 200 East Gaines Street, Tallahassee, Florida. The Intervenors are Microtel, Inc., whose address is 7100 West Camino Real, Suite 311, Boca Raton, Florida 33433, and United States Transmission Systems, whose business address is 320 Park Avenue, New York, New York 10022. MCI, Microtel, AT&T, Southland, and USTS are all interexchange carriers authorized by the Federal Communications Commission to provide, among other things, interstate WATS. MCI, AT&T, Southland, and Microtel are all interexchange carriers certified by the Florida Public Service Commission to provide, among other things, intermachine trunks and intrastate WATS. The interexchange carriers who participated in the November 5, 1987, negotiations were not advised prior to 9:00 a.m. on that day that the negotiations would consist of three rounds of price quotations with the prices quoted and each round being posted immediately on the board for review by the other carriers. The posting by the Division of Purchasing between 3:00 p.m. on November 2, 1987, and 3:00 p.m. on November 5, 1987, of a draft memorandum from William Monroe to Glenn Mayne was not a bid tabulation. The State of Florida provides a communications system to state agencies, local governments, and public school districts through the SUNCOM Network. The SUNCOM Network consists of switches, access lines, and transmission facilities such as Intermachine Trunks, Interstate WATS, and Intrastate WATS. On the SUNCOM Network, long distance calls from one SUNCOM user to another SUNCOM user are completed on IMTs. Intrastate WATS facilities are used to place in-state long distance calls from a SUNCOM user to a party not a member of the SUNCOM Network. Interstate WATS facilities are used to complete out-of-state long distance calls. The Division of Communications desired to migrate the data users of the SUNCON Network from an analog environment to a digital environment. In order to do that, there had to be changes to the SUNCOM switching facilities and changes to the transmission facilities. In 1984, a Request for Proposal (RFP) was issued for the switches. As a result of the RFP, the network went from 5 to 11 switches on December 1, 1986. The Division of Communications decided to utilize digital transmission facilities for both IMTs and Interstate WATS facilities on the newly configured network. In 1985, the Division of Communications negotiated a contract with MCI for the provision of the Interstate WATS. MCI made no protest to being awarded the contract by negotiation. AT&T was selected to provide the IMTs. The selection of AT&T and MCI was an interim measure to give the Division of Communications time to evaluate the transmission facilities for changes after the new network had stabilized. At the time of the final hearing, AT&T was the current provider for the IMTs and Intrastate WATS and MCI was the current provider for the Interstate WATS. On March 1, 1987, the Division of Communications and the Division of Purchasing sent a letter to seventeen suppliers of transmission facilities. The letter advised the suppliers that the Division of Communications was beginning an evaluation process to determine the viability of replacing some or all of the SUNCOM Network completion facilities with different suppliers. The suppliers were advised that a potential supplier did not have to service all routes or provide all facilities in order to be considered. Suppliers were requested to provide information concerning their transmission facilities. It was contemplated that the transmission facilities would be tested for approximately 90 days, during which time there would be consideration of reliability, maintainability, cost, and billing. The evaluation process also contemplated consideration of corporate viability and status, network typology, and references from existing customers similar in size to the State of Florida. The suppliers were cautioned that their participation in the evaluation process did not guarantee a contract and that it was possible that the evaluation process might not result in any contract. The suppliers were also advised that any contract would be negotiated. The March 18, 1987, letter is a request for information and was so considered by the Division of Communications and the Division of Purchasing. By April 9, 1987, the Department of General Services had received ten responses to the March 18, 1987, letter. A five member evaluation team was formed to review the April 9 responses from the suppliers, conduct the oral presentations, conduct the 90-day test and make recommendations. The evaluation committee was comprised of five employees of the Division of Communications. Division of Purchasing personnel did not actively participate on the evaluation committee because they wanted to remain impartial in the event the Division of Purchasing would later have to decide what method of procurement to use. Each potential supplier was scheduled for an oral presentation in late April or early May of 1987. Additional information about the proposals was obtained at those presentations. The suppliers were asked during oral presentation if their prices were open for negotiation. Ed Martinez of MCI said that MCI was open for negotiation. Of the carriers that survived the technical evaluation process, MCI had submitted the lowest price for all of the solicited telecommunications facilities and services. An in-service test of the ten suppliers was conducted from July 10 to September 30, 1987. One supplier, Lightnet, disconnected its transmission facility prior to the end of the test period. Robert Davis, chairman of the evaluation committee, used a numerical rating scheme to assist in evaluating the suppliers. The numerical point system was used as a way to make the evaluation process more objective. Additionally, when the evaluation was begun, the evaluation committee did not know whether contracts would be awarded through a formal acquisition process or through negotiation. The committee thought that an orderly ranking of the participants based on a rating scheme would be beneficial to Mr. Mayne in determining the method of acquisition. Mr. Mayne was unaware that a numerical point system was being used to evaluate the responses until he read the report prepared by the evaluation committee. On October 16, 1987, the evaluation committee issued the "Report on Alternate Suppliers for SUNCOM Network Transmission Facilities." The report outlined the evaluation process, presented the findings of the committee in the areas of pricing, billing, reliability-maintainability, corporate viability and general compliance by the suppliers, and made recommendations based on their findings. The evaluation committee concluded that, based on the prices submitted by the suppliers, it was possible for the state to reduce the cost of the operation of the network by over $368,000 per month. In considering the corporate viability of a supplier, the evaluation committee did not intend to conduct an indepth financial analysis. The evaluation committee wanted to determine whether the suppliers would have the ability to survive in a competitive environment for the contract period of three years. Both DGS' staff and MCI's financial analysis expert agreed that ITT, MCI, Microtel, AT&T and Southland were in a position to maintain their corporate viability for the contract period. The evaluation committee recognized that there was an opportunity to further reduce the cost of the network transmission facilities. The committee recommended that the IMTs, Interstate WATS and Intrastate WATS not be provided by one supplier. It was also recommended that Sprint, Digital Signal, and Lightnet be eliminated from further consideration. The report did not recommend specific suppliers. The committee recognized that if the point evaluation were used that the ranking would change as the result of further negotiations. They felt that if a decision was made not to use the point evaluation, then low cost would determine the suppliers. The report was presented to Glenn Mayne for his consideration. Based on his review of the report, Mr. Mayne determined that the State was currently paying far too much money for the transmission facilities; the State desired to have more than one supplier for the transmission facilities; and there was a group of potential alternate suppliers who could supply the State with transmission facilities which would be acceptable for the SUNCOM Network. As soon as Mr. Mayne became aware of the enormous potential savings to the State (and probably because of that awareness) things began to happen very quickly. A copy of the evaluation report was given to Bill Monroe. Mr. Mayne and Mr. Monroe discussed the report and Mr. Mayne expressed some concerns relating to the Division of Communications' need to migrate data signals to the network. Monroe asked that those concerns be put in writing. Mr. Mayne complied by memorandum dated October 28, 1987, in which he expressed his concerns relating to the discontinuance of Telpak and the Division of Communications' plans to migrate data to the voice network. The desire to address these concerns in the negotiations was due primarily to an AT&T proposal submitted in the late summer or early fall of 1987, which addressed these concerns. The Department had made no effort to obtain proposals similar to AT&T's from the other suppliers prior to requesting authority to negotiate from the Division of Purchasing. The Division of Purchasing deemed the October 28 memorandum to be the Division of Communications' formal request for the authority to negotiate. Mr. Monroe authorized the Division of Communications to negotiate contracts for the transmission facilities and services for the SUNCOM Network. The authorization to negotiate was granted because the providing of transmission facilities and services was a regulated portion of the telephone industry; the participants were limited to those which met Florida Public Service Commission guidelines for facility based operations; an indepth evaluation of the suppliers had been performed; and the delay incident to using any other procurement method would result in a substantial monetary loss to the State. The most significant factor in the decision to negotiate was the monetary loss which would result from delay. The authorization memorandum recommended that the negotiation be handled as a joint venture between the Division of Communications and the Division of Purchasing, and that the Division of Purchasing participate in development of the criteria for final selection of a supplier. Mr. Mayne discussed the method of negotiations to be used with Mr. Monroe and his staff. Based on his past experience with one-on-one negotiations, Mr. Mayne felt it would be fairer to put up everyone's prices on the board so that all suppliers could see each others prices. Mr. Mayne suggested that there be two verbal rounds of pricing and a final round in writing. Mr. Monroe concurred with Mr. Mayne's suggestion. It was felt this method of negotiations would result in better pricing for the State; could be done quickly and easily; and would reduce the chance of one supplier being favored over another. The intended decision of the Division of Purchasing to authorize the negotiation was posted in the Division of Purchasing beginning November 2, 1987, at 3:00 p.m. The posting was in the form of a post-dated, unsigned memorandum from the Division of Purchasing Director to the Division of Communications Director. Stamped at the bottom of the draft memorandum was the language required by Section 120.53(5), Florida Statutes, indicating that the failure to file a timely protest would constitute a waiver of Chapter 120, Florida Statutes, proceedings. In large letters at the top of this posting was the word DRAFT. Each of the ten suppliers was notified that the Division of Purchasing had authorized negotiations and that this decision would be posted beginning November 2 through November 5, 1987. On November 2, 1987, Cherrie McClellan, a purchasing specialist for the Division of Purchasing, called MCI's Ed Martinez to advise him that the authorization for the Division of Communications to negotiate for the procurement of the SUNCOM Network alternate suppliers would be posted from 3:00 p.m. November 2, 1987 to 3:00 p.m. November 5, 1987. Ms. McClellan was unable to reach Mr. Martinez and left the message on his recording machine. On November 3, 1987, Mr. Martinez called Ms. McClellan to confirm the message. She told him that the posting was for the authority for the Division of Communications to negotiate and she assumed that the Division of Communications would be contacting him. In giving the telephone notification to MCI, the Division of Purchasing did not specifically advise MCI that its failure to file a timely protest of the Division of Purchasing's decision would waive MCI's rights to proceedings under Chapter 120, Florida Statutes. On November 3, Mr. Martinez also called John Fain, a purchasing specialist supervisor with the Division of Purchasing. Mr. Fain advised Mr. Martinez that the Division of Purchasing had received a request for authority to negotiate from the Division of Communications, final negotiation could not begin until after the conclusion of the posting at 3:00 p.m. on November 5, 1987, and he did not know if there would be another posting. On November 2, 1987, Mohammed Amirzadeh Asl, an electrical engineer with the Division of Communications, called Ed Martinez between 2:00 and 3:00 p.m.; invited him to the negotiations on November 5; told him to bring his best prices for IMT routes and personnel who could make a decision; advised him he would have access during the negotiations to a phone but he had to use his credit card for any calls; and told him that DGS would be faxing him additional information concerning the negotiations. Mr. Amirzadeh also advised the other suppliers on November 2 of the negotiations and told them the same thing he had told Mr. Martinez. Mr. Martinez called Mr. Amirzadeh on November 3 and 4 with questions concerning the negotiations. On November 4, DGS faxed a memorandum to the suppliers concerning the criteria for the negotiations and the prices which had been quoted thus far to the Division of Communications. The memorandum advised the suppliers that preliminary discussions would start at 9:00 a.m. on November 5 at the Division of Communications and official negotiations would not start until 3:00 p.m. When Mr. Martinez, the MCI representative, came to the negotiations, he expected the Department to negotiate first with MCI to attempt to reach a mutually satisfactory agreement for the solicited telecommunications facilities and services, and he expected the Department to negotiate with other suppliers only if the negotiations with MCI were unsuccessful. These expectations were based on MCI's status as one of the incumbent suppliers, on the fact that the Department appeared to very satisfied with MCI's performance, and on the fact that MCI had submitted the lowest price proposals for all of the solicited telecommunications facilities and services in its April 9, 1987, submittal. These expectations were unwarranted. The negotiations began at 9:00 a.m. on November 5,1987. Glenn Mayne started out the negotiations by discussing the criteria which had been faxed to the suppliers on November 4. The suppliers were also given copies of the evaluation committee report. The suppliers were advised that there would be three rounds of negotiations The first two rounds would be preliminary. The last round of negotiation was to take place prior to 5:00 p.m. There were some assumptions that the suppliers were given to use in presenting their prices. The suppliers' prices were to be for one T-1 on each route, and the costs were to include access charges. Additionally, if there was any difference between the quoted and actual access charges the difference would be the responsibility of the supplier. The format used by the Division of Communications for the negotiations on November 5, 1987, was not normally used by the Department. The first round of pricing was at 11:00 a.m. Each supplier gave its price orally and as the price was given it was written on a board in the room. An objection was raised by one of the suppliers that the method used could give the last supplier an advantage because he would have seen all of the other suppliers' prices prior to giving his price. The second round was scheduled for 2:00 p.m. The method of receiving prices was changed to accommodate the objections at the first round. In the second round each participant wrote his prices on a piece of paper, all the papers were picked up, the papers opened, and the prices were written on the board. Between the second and third rounds, each supplier was given an opportunity to meet with Mr. Mayne and his staff. Mr. Martinez met with Mr. Mayne and his staff at 3:00 p.m. During the meeting, Mr. Mayne advised Mr. Martinez that DGS would like two separate fibers for each T-1 route for IMTs. The price for IMTs given by Microtel was approximately $9.50 per mile month. The corresponding price for MCI was around $15 or $16 per mile month. Mr. Mayne advised Mr. Martinez that, in order for MCI to be considered for a portion of the IMTs, MCI's price needed to be around $10 per mile month. Mr. Mayne did not reference access charges when he discussed the $10 per mile month. One of the assumptions of the pricing for the negotiations was that all prices would include access charges. During the meeting, Mr. Mayne told Mr. Martinez that MCI's price for IMTs was almost twice as much as the other suppliers. Additionally during the 3:00 p.m. meeting between Mr. Mayne and Mr. Martinez, Mr. Mayne explained to Mr. Martinez that the suppliers would reconvene at 4:00 p.m. and report their final responses and the last round of pricing would be before 5:00 p.m. Notwithstanding the clear explanation of when the suppliers would have their last opportunity to give their final prices, Mr. Martinez was apparently confused because he thought (albeit erroneously) that he would have another opportunity to offer a price after the third round. Because he thought that as an incumbent supplier MCI would have another opportunity to offer a price after all of the other suppliers had given their final prices, Mr. Martinez made a judgment call not to offer MCI's best price during the third round of the negotiations. The best price that Mr. Martinez was authorized to offer on the interstate WATS was slightly higher than the best price actually offered by another supplier. Mr. Martinez appears to be the only one who was confused about the finality of the third round of negotiations. It would not have been fair to the other suppliers to have afforded MCI an opportunity to submit further prices after the third round. No one from the Department of General Services advised Mr. Martinez that he would be given an opportunity to present further pricing after the other suppliers had given their best and final prices. The suppliers reconvened at 4:00 p.m. A supplier inquired whether the prices could be given before 5:00 p.m. Mr. Mayne asked the other suppliers whether they were ready and no one objected to giving the prices before 5:00 p.m. Mr. Mayne emphasized the third round was the last round. The suppliers gave their final prices at 4:19 p.m. The suppliers were asked to sign the sheets which contained their prices for the last round. Microtel submitted the lowest price for IMTs at $8.89 per mile. MCI's price for the IMTs was $12.52 per mile. ITT submitted the lowest price for Interstate WATS facilities at $.1249 per minute. MCI submitted $.1285 per minute for the Interstate WATS facilities. MCI submitted the lowest price for Intrastate WATS facilities at $.1133 per minute. Microtel submitted $.1139 per minute for the Intrastate WATS facilities. At the conclusion of the final round of pricing, AT&T indicated that they had additional pricing which was contained in a proposal submitted to Mr. Mayne in late summer or early fall of 1987. Mr. Mayne thought that AT&T had submitted its final prices during the last round and he advised AT&T that he would not consider the prices that were not contained on the sheets submitted by AT&T during the last round. John Fain, representative for the Division of Purchasing at the negotiations, also stated that prices not placed on the board could not be accepted. Mr. Mayne advised the suppliers at the end of the negotiations that the Division of Communications would try to reach a decision by the close of business on November 6. At the end of negotiations on November 5, 1987, the Division of Communications returned to AT&T its proposal which had formed part of the basis for the Division of Communications' request for authority to negotiate after AT&T claimed pricing information contained in that proposal was proprietary. At the beginning of the negotiation session on November 5, Mr. Mayne was satisfied that each of the participants could provide the solicited transmission facilities and services. Since the AT&T proposal would not be considered, Mr. Mayne determined that the contract should be awarded based on lowest cost for each of the transmission facilities. Prior to acting on this determination, Mr. Mayne discussed the matter with the Division of Purchasing. The Division of Purchasing concurred in the decision to award on the basis of lowest cost. The contract awards were based on low price and not the total points assigned to the providers based upon the numeric rating system used by the evaluation committee in the evaluation report. Mr. Amirzadeh telephoned Mr. Martinez on November 6, 1987, to inform MCI that the Department intended to award the Intrastate WATS facilities to MCI. Mr. Martinez advised Mr. Amirzadeh that the prices submitted by MCI were package prices. MCI later contacted the Department and advised the Department that the MCI price for Intrastate WATS was a package price. MCI withdrew its offering for Intrastate WATS. On being advised that MCI was withdrawing its offer for the Intrastate WATS facilities, the Department decided to award the Intrastate WATS facilities to the next lowest provider, which was Microtel. On November 10, 1987, the Department issued Communications Service Authorizations (CSAs) to Microtel for the Intrastate WATS facilities and IMTs, and to ITT for the Interstate WATS facilities. These CSAs are the only contracts to be executed by the State of Florida for the solicited telecommunications services and facilities. The CSAs were signed by the Division of Communications. By contracting with Microtel for IMTs, Mr. Mayne estimated there would be a cost savings of $216,000 per month. The cost savings associated with contracting with Microtel for the Intrastate WATS is approximately $98,000 a month. It is estimated the State will save approximately $105,000 per month by contracting with ITT for Interstate WATS. MCI filed a notice of intent to protest the contract awards on November 12, 1987. MCI filed its formal written protest on November 23, 1987. In acquiring these transmission facilities the Department is leasing spaces on the supplier's fiber optic cable. The spaces within the cable are analogous to time envelopes, which may carry information or no information, being shot down the fiber optic cable. The Department leases the spaces in multiples of T-1s. A T-1 represents 1.544 million spaces per second. When the Department leases a T-1, the Department has a dedicated physical connection and the information that will be contained in the spaces or time envelopes will always appear in the same space and in the same time. The Department leases the fiber facilities on a 24-hour-a-day basis, because it is more economical than leasing for shorter periods of time. While the space is being leased to the State, no other customer of the transmission facilities supplier can use that space. The functions of the facilities can also be described as follows. The interstate WATS service, the intrastate WATS service, and the IMT service for which the Department contracted, involve the receipt by the carrier of an originating call from a SUNCOM switch and the transmission of that call over the carrier's owned or leased facilities, including access facilities leased by the carrier from the local exchange company, to its destination either outside or inside the State of Florida or to another SUNCOM switch. In addition to the lease of spaces, the Department will be acquiring maintenance and billing services and, in the case of the WATS facilities, it will also be procuring management reports concerning the location of calls. For the facilities used to provide interstate WATS service, intrastate WATS service, and IMT service, the State of Florida will not have physical access to, the ability to monitor traffic over, maintenance or repair responsibility for, or rights to use particular components of those facilities. This applies to both the carriers' facilities and the access facilities leased by the carrier from local exchange companies to connect the SUNCOM switches and the carriers' facilities. For the facilities used to provide interstate WATS service, intrastate WATS service, and IMT service, the long distance carrier will have the responsibility for maintenance and repair of those facilities, the right to replace or upgrade those facilities in a fashion transparent to the State, and the right to determine the physical path through those facilities over which information from the State of Florida would be transmitted. This applies to both the carrier's facilities and the access facilities leased by the carrier from the local exchange companies to connect the SUNCOM switches to the facilities. The Department interprets Rule Chapter 13C-2, Florida Administrative Code, to apply to the acquisition of nonregulated communications equipment. The forms referred to in Rule 13C-2.008 are forms which State agencies use in requesting approval from the Division of Communications for the purchase or lease of nonregulated communications services or equipment. Rule Chapter 13C-1, Florida Administrative Code, has been interpreted by the Department to deal with a regulated environment. The procurement at issue in this proceeding is in a regulated environment. The criteria and procedures described in Chapter 13C-2, Florida Administrative Code, were not used in this procurement of the solicited telecommunications facilities and services. The negotiation process itself was negotiated in a fair and equitable manner. Each supplier was advised at the beginning of the negotiation session that there would be three rounds of pricing. There has been no claim by MCI that any of the suppliers had knowledge prior to 9:00 a.m. on November 5, 1987, of the actual negotiation process that would be used. When an objection was made by one of the suppliers to the method of accepting pricing in round one, the method of accepting prices was changed so that no supplier would have an advantage over another. It was made clear that the third round was the last round in which the suppliers could submit their best and final offers. The Department did not consider offers which were not submitted during the third round. The Department attempted to provide competition in the negotiation process by having the suppliers compete against each other in the pricing rounds. No supplier was treated more favorably than another. MCI was never told that it would be awarded the contracts. MCI made no protest or objection to the negotiation process prior to or on November 5, 1987.
Recommendation Based on all of the foregoing, it is recommended that a final order be entered denying the relief requested by the Petitioner. DONE AND ENTERED this 11th day of February, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5338BID The following are my specific ruling on all of the findings of fact proposed by all of the parties. Findings proposed by the Petitioner: Paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 9: All generally accepted, but some details have been omitted as either subordinate or unnecessary. Paragraph 10: Rejected as subordinate and unnecessary details. Paragraphs 11 and 12: Rejected as irrelevant. Paragraphs 13, 14, and 15: Accepted. Paragraph 16: Rejected as irrelevant. Paragraphs 17, 18 and 19: Accepted. Paragraph 20: Rejected as irrelevant in light of other evidence. Paragraphs 21, 22, 23 and 24: Accepted. Paragraph 25: Accepted in substance. Paragraphs 26 and 27: Accepted. Paragraph 28: Rejected as subordinate and unnecessary details. Paragraph 29: Accepted in substance. Paragraph 30: Rejected a subordinate and unnecessary Paragraphs 31 and 32: Accepted: Paragraph 33: Rejected as contrary to the greater weight of the evidence. Paragraphs 34, 35, 36, 37, 38 and 39: Accepted. Paragraphs 40 and 41: Rejected because the analogies fail. Paragraph 42: Accepted. Paragraph 43: Rejected as subordinate and unnecessary details. Findings proposed by the Respondent: Paragraphs 1, 2, 3, 4, 5, 6 and 7: Accepted. Paragraph 8: Rejected as subordinate and unnecessary details. Paragraphs 9 and 10: Accepted. Paragraph 11: Rejected as subordinate and unnecessary details. Paragraphs 12, 13, 14, 15, 16, 17 and 18: Accepted. Paragraph 19: Rejected as subordinate and unnecessary details. Paragraphs 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32,33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43 and 44: Accepted. Paragraph 45: First sentence accepted. The remainder is rejected as subordinate and unnecessary details. Paragraph 46: First four sentences accepted. Last sentence is a conclusion of law. Paragraphs 47 and 48: Accepted. Findings proposed by the Intervenors: Paragraph 1: Rejected as statement of position rather than proposed finding. Paragraph 2 and 3: Accepted. Paragraphs 4, 5 and 6: Rejected as subordinate and unnecessary details. Paragraphs 7, 8, 9 and 10: Some of the details proposed in these paragraphs have been included, but most are rejected as subordinate and unnecessary. Paragraph 11: Rejected as subordinate and unnecessary, details. Paragraphs 12 add 13: Accepted in substance. Paragraphs 14: Rejected as unnecessary. Paragraph 15: Accepted in substance. Paragraphs 16 and 17: Rejected as irrelevant or as subordinate and unnecessary details. Paragraphs 18, 19, 20, 21, 22, 23 and 24: Some of the details proposed in these paragraphs have been included, but most have been rejected as subordinate and unnecessary. Paragraphs 25, 26 and 27: Rejected as subordinate and unnecessary details. Paragraph 28: Accepted. Paragraph 29, 30, 31 and 32: Rejected as subordinate and unnecessary details. Paragraphs 33, 34, 35, 36, 37 and 38: Accepted. Paragraphs 39, 40, 41, 42, 43, 44, 45, 46, 47, 48 and 49: Rejected as subordinate and unnecessary details. Paragraphs 50 and 51: Rejected as subordinate and unnecessary details. Paragraphs 52 and 53: Accepted. Paragraph 54: Rejected as subordinate and unnecessary details. Paragraph 55: Accepted in substance. Paragraph 56: Rejected as subordinate and unnecessary details. Paragraphs 57, 58 and 59: Accepted in substance. Paragraphs 60 and 61: Rejected as subordinate and unnecessary details. COPIES FURNISHED: Susan Kirkland, Esquire Sandra D. Allen, Esquire Office of General Counsel Department of General Services Room 452, Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0955 Carolyn S. Raepple, Esquire Richard D. Melson, Esquire Hopping, Boyd, Green & Sams Post Office Box 6526 Tallahassee, Florida 32314 Patrick K. Wiggins, Esquire Wings Solcum Benton, Esquire Ranson & Wiggins 325 West Park Avenue Post Office Drawer 1657 Tallahassee, Florida 32302 Ronald W. Thomas Executive Director Department of General Services 133 Larson Building Tallahassee, Florida 32399-0955
The Issue The issue for determination is whether Respondent should grant Petitioner's application for a commercial telephone seller's license.
Findings Of Fact Petitioner, Stanley Sarentino, Jr. (Sarentino) is the owner and president of the The A/C Guy, Inc. (The A/C Guy) an air-conditioning service business based in Pompano Beach, Florida. The A/C Guy was incorporated in 1996, and serves residential and business customers in Broward and Palm Beach Counties. Respondent Department of Agriculture and Consumer Services (the Department) is the state agency charged with the enforcement of state regulation of telemarketing businesses in accordance with the provisions of the Florida Telemarketing Act, Chapter 501, Part IV, Florida Statutes (2000) (the Telemarketing Act). Sarentino has worked in the air-conditioning business in South Florida for over ten years. Both as an employee of other companies and since he formed The A/C Guy, Sarentino works exclusively as an air-conditioning mechanic. Sarentino has no expertise in, and has never been involved with, the daily running of the business, nor in the marketing of services, at the A/C Guy. Neither has Sarentino worked in the business side of any of the prior companies in which he was employed. Sarentino is assisted in managing The A/C Guy by his wife of 10 years. The Sarentinos have three children, and the family is well regarded in the community. Prior to the marriage, Sarentino's life was less exemplary. In 1991, Sarentino was charged with felony transportation of stolen stock certificates. Close in time to the stock charges, Sarentino was charged with unlawfully purchasing cocaine. Both incidents were disposed of by plea agreements which spared Sarentino a jail sentence. Since then, Sarentino has devoted himself to “turning his life around” by attending church, providing for his growing family, and otherwise occupying himself with lawful pursuits. Recently, Sarentino has made efforts to grow his small business. Those efforts included hiring John Frank Aiello, Jr. (Aiello) as full-time General Manager of The A/C Guy in the spring of 2001. Sarentino and Aiello came to believe that The A/C Guy had grown about as much as it could via word of mouth and print media advertising. They desired to expand the customer base for the business through telemarketing. Under the provisions of the Telemarketing Act, individuals who wish to have their business engage in telemarketing are required to be licensed (the Department). Aiello prepared a telemarketing license application for Sarentino in accordance with the instructions contained in the application package provided by the Department. Before commencing to prepare the application, Sarentino and Aiello carefully reviewed the licensing criteria. They paid special attention to the requirement that any criminal background be disclosed, and acted in good faith to disclose Sarentino’s history with as much precision as Sarentino’s 10-year-old memory would allow. The Department’s independent investigation corroborated that Sarentino had truthfully provided all requested information. Since his successful completion of probation for the decade-old incidents revealed on his telemarketing application, Sarentino has been a law abiding citizen. All applications for a telemarketer's license must be accompanied by a non-refundable $1500 processing fee. Applicants must also provide proof that they have paid the premium and have otherwise fulfilled the requirements to obtain a $50,000 bond from a private bonding company. The bond premium in this case was $1000.00. It is also necessary for applicants to provide extensive information about the business in whose name telemarketing will be conducted, along with information about individuals affiliated with the business, so that the Department may investigate their backgrounds for the public’s protection. Sarentino spent in excess of $350.00 in accounting fees for the preparation of financial statements required for the application. Prior to investing the time and incurring the expense associated with the application process, both of which are considerable, Sarentino carefully considered the question of whether he had a realistic chance to obtain a license. At the time he submitted his application, Sarentino reasonably believed, based upon the information provided by the Department itself, that his application would not be automatically rejected on account of his decade-old legal difficulties. After Sarentino’s application was submitted, Aiello, in his capacity as The A/G Guy general manager, had telephone conversations with the Department’s Regulatory Consultant Tom Kenny (Kenny) to follow-up on the status of the application. During the course of such conversations, Kenny revealed that the plea to the stock charge as well as the plea to the cocaine charge---each, by itself---would trigger the denial of the license application once the Department had independently confirmed that Sarentino had indeed truthfully disclosed the pleas. The evidence established and the Department conceded that there is an informal, unwritten practice enforced by Kenny's supervisor, James R. Kelly (Kelly), the Department’s Director of the Division of Consumer Services, that a plea of guilty to a felony charge, no matter what the felony, no matter how remote in time, no matter whether the applicant was rehabilitated or not will automatically result in the denial of a license application. The Department has no written rules, policies, or guidelines to which a citizen may refer in order to be apprised that the applications of individuals like Sarentino, and those similarly situated, are, in fact, dead on arrival. The Department's interpretation of the law is directly contrary to the discretionary language of the statute, which plainly does not foreclose all possibility that mitigating factors would be taken into account by Department officials in evaluating an applicant's criminal history. Sarentino has fulfilled all the statutory criteria for licensure. The Department would have granted the license were it not for its unwritten policy that the statute requires that any plea to a criminal charge mandates automatic denial.
Recommendation Based on the foregoing, it is hereby recommended that a Final Order be entered by the Department granting a commercial telephone seller's license to Stanley Sarentino, Jr. DONE AND ENTERED this 28th day of September, 2001, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 28th day of September, 2001. COPIES FURNISHED: James Curran, Esquire 633 Southeast Third Avenue Suite 201 Fort Lauderdale, Florida 33301 William N. Graham, Esquire Department of Agriculture and Consumer Services Mayo Building, Room 515 407 South Calhoun Street Tallahassee, Florida 32399-0800 Brenda D. Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture and Consumer Services 541 East Tennessee Street India Building Tallahassee, Florida 32308 Honorable Terry L. Rhodes Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
