The Issue The principal issues to be resolved in this proceeding concern whether certification should be issued to the City of Lakeland, Department of Electric Utilities (Lakeland or Lakeland Electric) to construct and operate the steam electric equipment needed to create a nominal 350-megawatt combined-cycle generating unit located at Lakeland’s McIntosh Power Plant site in Lakeland, Florida in accordance with the provisions of Section 403.502, et seq., Florida Statutes. The related issues concern whether the site for the McIntosh Unit 5 Steam Cycle Project is consistent and in compliance with the applicable land use plans and zoning ordinances of the City of Lakeland, pursuant to Section 403.508(2), Florida Statutes.
Findings Of Fact Project Operations and Impacts Project Overview The City of Lakeland, Department of Electric Utilities is a municipal utility that supplies electric service to approximately 106,000 customers, which represents approximately 200,000 residents in its service area within Polk County. Lakeland’s electric utility commenced operation in 1891, making Lakeland one of only three Florida cities with electricity at that time. Lakeland currently operates power plants at two locations in the City of Lakeland with a combined generating capacity of 785 megawatts (MW). The McIntosh Power Plant site is the larger power plant site and contains six electrical generating units. McIntosh Unit 3 is a 365-megawatt, coal-fired electrical generating unit, which was originally certified under the Florida Electrical Power Plant Siting Act in 1978. In 1998, Lakeland obtained approvals to construct a new 250-megawatt, simple-cycle combustion turbine (CT) at the McIntosh site. These approvals consisted of a modification of the site certification for McIntosh Unit 3 and a separate Prevention of Significant Deterioration (PSD) Permit, both issued by FDEP. That modification of the site certification for the new Unit 5 CT was required because the new CT was to be located within the site certified for McIntosh Unit 3. Pursuant to FDEP rules, the approval for that new unit was required to be obtained under the PPSA’s modification rules. The new McIntosh Unit 5 CT is completing construction and will be placed into service in the near future. The original permits for the Unit 5 CT anticipated that the CT would later be converted to a combined cycle configuration. The City of Lakeland considered a number of generating options before selecting the Unit 5 project to meet the City’s required 15 percent reserve margin. Siemens Westinghouse submitted a proposal to the City that Lakeland be the host site for the first 501G simple-cycle combustion turbine. The City concluded that this proposal was the best alternative available to meet the City’s needs for additional electricity. The conversion of Unit 5 to combined cycle operation will expand Lakeland’s natural gas-fired generating capacity to 76 percent of Lakeland’s total electrical generating capacity. No energy conservation measures exist that would affect the need for the plant. The 250-megawatt CT in Unit 5 is one of the most efficient generating units currently operating. In the CT, compressed air is introduced into a combustion zone and fuel, typically natural gas, is combusted within the forward portion of the CT. The resulting hot gases expand in the turbine and turn an electrical generator. For Unit 5, this electrical generator produces approximately 250 MW of electricity. The hot exhaust gases then are exhausted out the existing stack. Under the proposed Unit 5 Steam Cycle Project, the combined cycle configuration for Unit 5 involves the construction of a heat recovery steam generator (HRSG), which captures the exhaust gas from the CT and produces steam by extracting the heat from the flue gases. In the HRSG, the hot gases are used to convert water into steam in a closed system of piping. The steam is then used to turn a new steam turbine, which then turns an electrical generator. Other equipment required for the steam cycle project includes: a new, taller exhaust stack; a new cooling tower; and other plant equipment. The addition of the new HRSG steam turbine and electrical generator to McIntosh Unit 5 will produce an incremental 100 MW of electricity produced through the use of steam. The PPSA requires an increase of steam-generating capacity at the McIntosh site to undergo the full permitting proceedings of the PPSA. Therefore, Lakeland was required to submit its application for site certification to add the steam cycle to Unit 5. The McIntosh Unit 5 will be located on a 3-acre tract of land within the larger 530-acre McIntosh Power Plant site. The site is located in the eastern portion of the City of Lakeland, along the northern shore of Lake Parker. The McIntosh plant site is generally surrounded by undeveloped lands, including reclaimed and vacant phosphate lands used, in part, as a recreational and fishing area managed by the Florida Fish and Wildlife Conservation Commission (FWCC). There are no residential or commercial properties adjacent to the project site. The nearest residence to the project site is over one mile away. The site for the McIntosh Unit 5 contains no significant environmental features. No wetlands are found within the site. The Unit 5 site is an open field, containing grasses and low-quality, weedy vegetation. Further, no archaeological, or historical resources were found on the site. No sensitive local, regional, state or federal parks, wilderness areas, forests, or areas of critical concern are located within 5 miles of the site. No threatened, endangered, or protected plant or animal species are known to be present at or near the project site. The combined cycle unit will be fired primarily with natural gas, with fuel oil as a backup fuel. Natural gas is supplied by a 10-mile long pipeline owned by the City of Lakeland, which connects to the Florida Gas Transmission gas pipeline system. No alterations to those pipelines are required for the project. Fuel oil for the unit will be delivered by truck and stored in an existing on-site fuel storage tank. The capture and utilization of waste heat from the CT exhaust in the new heat recovery steam generator will significantly increase the efficiency of the electrical generation process for Unit 5. Use of the waste heat will not require any increase in fuel use and will not result in any increase in air emissions from the power plant. When considered on the basis of electrical output, the amount of emissions per megawatt hour of electricity will actually decrease by approximately 30 percent. All of the air emissions from Unit 5 are associated with the operation of the combustion turbine; and the addition of the heat recovery steam generator does not result in any increase in those emissions. Water Use, Wastewaters and Other Impacts The addition of the HRSG requires the use of a cooling tower to remove the heat from the circulating steam. Once the steam exits the steam turbine, it passes through a condenser in which the heat from the steam is transferred to circulating cooling water. The steam is condensed back to water and then recycled into the HRSG in a closed loop system. The heated cooling water is then routed to the cooling tower where forced air evaporation removes the heat. Periodically, a portion of the cooling water in the cooling tower system is removed to prevent the buildup of solids and other constituents which could impair the performance of the cooling tower. Replacement of this "blowdown water" and of the water lost through evaporation will be achieved through the use of treated domestic waste water (reuse water) supplied from the City of Lakeland’s wastewater treatment plants, including a plant adjacent to the McIntosh plant site. The cooling tower will require approximately 3.24 million gallons per day (mgd) to replace water lost in the cooling process. FDEP adopted Rule 62-610, Florida Administrative Code, to encourage the beneficial use of reuse water from domestic wastewater systems as a means of water conservation. The rule sets out certain treatment and design criteria that must be met when reuse water is used, including water used in cooling towers. The Lakeland Unit 5 cooling tower meets these rule requirements because the cooling tower is located more than 300 feet from the nearest property boundary, and the reuse water receives secondary treatment by the City of Lakeland. In the event reuse water is not available because of supply or quality problems, groundwater from on-site wells will be used as a backup source of cooling water makeup until reuse water is available again. The needed quantity of groundwater, up to 3.24 mgd, has been approved by the Southwest Florida Water Management District (SWFWMD) under the existing consumptive use permit issued by SWFWMD for the McIntosh plant site. That quantity of water has been shown to not have adverse effects on area users of groundwater. In addition to cooling water, the plant requires high quality service water to replace water lost in the operation of the HRSG and for other plant processes, including control of nitrogen oxide (NOx) emissions during oil firing. This water is obtained from groundwater wells and is treated in on-site water treatment facilities. Conversion of Unit 5 to combined cycle operation will reduce the use of groundwater by approximately 250,000 gallons per day during normal operations due to increased recycling of water within the unit. Wastewater from the plant is generated from the cooling tower, as a result of the periodic blowdown of the water in the cooling tower. This blowdown water is routed to an on-site collection sump and then routed to the City of Lakeland wastewater treatment system. Industrial-related wastewaters from plant operations, including wastewaters from plant water treatment, are also collected and routed to the City of Lakeland Wastewater Treatment system. There is no direct discharge of wastewater from McIntosh Unit 5 to adjacent surface waters. The project will not have any effect on area surface waters. There will be no increase in the need for potable water or domestic wastewater treatment. The addition of the new HRSG and related equipment for the steam-cycle project will not require an increase in permanent employment at the project site. The on-site stormwater management system is already sized to accommodate the addition of the steam-cycle equipment Minor amounts of solid and hazardous wastes will be generated by the project, mainly during construction. Any hazardous wastes will consist mainly of small amounts of spent solvent. Systems are already in place to dispose of these wastes in an approved manner. Electricity generated at the site is distributed from an on-site switchyard into the City of Lakeland transmission system. This system is interconnected to other Florida utilities. The addition of the Unit 5 Steam Cycle Project will not require any changes to the existing electrical transmission system. The McIntosh Unit 5 will be compatible with the other surrounding land uses in the vicinity of the project site. The project represents a logical expansion of the existing power plant site. It is well buffered from residential land uses. Noise from Plant construction and operation will not adversely impact nearby residents. Existing noise levels in the residential areas near the plant are low, even with the existing generating units at the McIntosh site in operation. Noise levels during construction and operation will comply with the applicable local noise ordinance, as well as the existing noise limitations in the McIntosh site certification conditions. Construction will generally occur during daylight hours, and construction equipment has to comply with noise limits set by the manufacturers. Addition of the new HRSG and other equipment will act to buffer noise from the existing CT. Operation of the plant will not be noticeable at the nearest residence, which is almost one mile away. Air Quality Analyses Required Polk County has not been designated by the U.S. Environmental Protection Agency (EPA) or FDEP as a nonattainment area for any federal or Florida ambient air quality standards. Federal and state Prevention of Significant Deterioration (PSD) program requirements applied to the simple cycle portion of McIntosh Unit 5. Because it was a major source of air pollution Because there were no significant net emission increases of any regulated air pollutants due to the conversion of McIntosh Unit 5 to combined-cycle operation, the PSD requirements did not apply to the addition of the steam cycle to Unit 5. Under the PPSA, air quality impacts associated with the new, taller stack and the new cooling tower associated with the combined-cycle operation of Unit 5 were required to be evaluated. However, no changes to the PSD permit itself were necessary to address the addition of the steam cycle to Unit 5, although some updated information reflecting the increased stack height and the addition of the cooling tower was provided to FDEP. Emission Impacts Under FDEP’s rules, air emissions from McIntosh Unit 5 must not cause or contribute to a violation of federal and state ambient air quality standards or PSD increments. Polk County is classified as a Class II area for PSD purposes. The nearest Class I area to the McIntosh Power Plant is the Chassahowitska National Wilderness Area, located approximately 90 kilometers (60 miles) from the Plant. The ambient air quality analysis demonstrated that McIntosh Unit 5's emissions, including operations in combined- cycle mode with the taller stack and cooling tower, will not have a significant impact on air quality near the McIntosh Plant or in the Chassahowitska Class I area. The maximum predicted impacts from Unit 5 in combined-cycle mode are below the EPA and FDEP significant impact levels. Unit 5's emissions will not cause or contribute to an exceedance of any state or federal ambient air quality standards. The 250-foot stack height for McIntosh Unit 5 in combined-cycle mode represents "good engineering practice" (GEP), calculated in accordance with FDEP and EPA rules. McIntosh Unit 5's air emissions are not expected to cause any adverse impacts on vegetation, soils, or visibility in the McIntosh Power Plant site vicinity or in the Chassahowitska National Wilderness Area, the nearest PSD Class I area. Air emission impacts of McIntosh Unit 5 on water bodies in the vicinity of the McIntosh Power Plant will be insignificant. No adverse air emission impacts are expected to result off-site during the construction of the steam cycle portion of Unit 5, and appropriate control methods will be used to minimize emissions during construction activities. The cooling tower plume could cause temporary and localized ground-level fog on occasion. The majority of these relatively rare instances will be of short duration and occur when fog is already naturally occurring. BACT and Emission Rates A Best Available Control Technology (BACT) analysis, required under the PSD program, is intended to ensure that the air emissions control systems selected for a new project reflect the latest in control technologies used in a particular industry based on a cost-benefit approach, taking into account technical, economic, energy, and environmental considerations. A BACT determination was made for emissions from Unit 5, including operation of the unit in combined-cycle mode, as part of the PSD permit previously issued for the simple-cycle operation on the Unit 5 CT. High efficiency drift eliminators are being installed on the McIntosh Unit 5 cooling tower to minimize particulate matter emissions from solids contained in the water released from the cooling tower. While the NOx emission limits in the PSD permit will not change due to the addition of the steam cycle portion of Unit 5, the projected emission rate in terms of pound-per-megawatt- hour (lb/mwhr) are actually lower when in combined-cycle mode because of the increase in electricity generated with no additional emissions being created. Compliance McIntosh Unit 5 in the combined-cycle mode will comply with all applicable federal and state air quality standards, including the conditions contained in the PSD Permit for Unit 5 and in FDEP is proposed conditions of certification. Consistency with Local Land Use Plan and Zoning Ordinances The Lakeland McIntosh Unit 5 project site, as well as the entire McIntosh Plant Site, is located in a future land use map designation of "Industrial" on the City of Lakeland’s Future Land Use Map. That map is part of the locally-adopted Comprehensive Plan for the City of Lakeland. Electrical power plants are a permitted use in that Industrial land use category. McIntosh Unit 5 meets the locational criteria in the future land use element, in that it is well buffered and served by adequate, available public facilities. The McIntosh Unit 5 Steam Cycle project site is zoned I-3, or Heavy Industrial under the City of Lakeland’s zoning regulations. That zoning district allows electrical power plants, subject to further review under the City’s zoning requirements. This additional zoning review consists of a conditional use permit, which is intended to provide an additional layer of review for these types of facilities. On September 7, 1999, the City of Lakeland City Council issued a conditional use permit for the entire McIntosh plant site, which includes the site for McIntosh Unit 5. McIntosh Unit 5, when converted to combined-cycle operation, will be consistent and in compliance with the City of Lakeland’s land use plans and zoning designations for the project. Further, the project will be consistent with the conditional use permit issued for the project site. McIntosh Unit 5 will also be consistent with the other provisions of the City of Lakeland Comprehensive Plan. The project meets the local Plan’s concurrency requirements, promotes the use of treated wastewater for cooling of power plants, and meets the provisions for protection of local air quality. Agency Positions and Stipulations The FDEP, the Florida Department of Community Affairs, the Southwest Florida Water Management District, the Florida Department of Transportation and the Fish and Wildlife Conservation Commission each prepared written reports on the project, and all recommended approval of the City of Lakeland McIntosh Unit 5 Steam Cycle Project. (Amended FDEP Exhibit 3). FDEP has proposed Conditions of Certification for the project, which Lakeland agrees to accept and comply with in plant construction and operation. The Department of Community Affairs determined that the project, if certified, would be consistent with the State Comprehensive Plan. The Central Florida Regional Planning Council (CFRPC) did not submit a report to FDEP as part of its review of the project. However, CFRPC entered into a prehearing stipulation with the City of Lakeland in which it stated that the project would be consistent with the CFRPC’s Strategic Regional Policy Plan. DCA entered a similar stipulation indicating its agreement that the project was consistent with the State Comprehensive Plan. The Department of Transportation entered into a prehearing stipulations indicating it did not object to certification of the project. No state, regional, or local agency has recommended denial of certification of the project.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The City of Lakeland, Department of Electric Utilities be granted certification, pursuant to Chapter 403, Part II, Florida Statutes, for the location and operation of the McIntosh Unit 5 Steam Cycle Project, representing an expansion of the electrical generating capacity of the existing McIntosh Unit 5, as proposed in the Site Certification Application and the evidence presented at hearing, and subject to the Conditions of Certification contained in Amended FDEP Exhibit 3, and subject to the Conditions of Certification attached hereto; The Siting Board find that the site of the McIntosh Unit 5 Steam Cycle Project, as described in the Site Certification Application and the evidence presented at the hearing, is consistent and in compliance with the existing land use plans and zoning ordinances of the City of Lakeland as they apply to the site, pursuant to Section 403.508(2), Florida Statutes. DONE and ENTERED this 2nd day of March, 2000, 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 2nd day of March, 2000. COPIES FURNISHED: Mark Carpanini, Esquire Polk County Attorney’s Office Drawer AT01 Post Office Box 9005 Bartow, Florida 33831-9005 Douglas S. Roberts, Esquire Hopping Green Sams & Smith Post Office Box 6526 Tallahassee, Florida 32314 Scott A. Goorland, Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Sheauching Yu, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 James V. Antista, Esquire Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Andrew S. Grayson, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Robert V. Elias, Esquire Florida Public Service Commission Gerald Gunter Building 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Frank Anderson, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Thomas B. Tart, Esquire Orlando Utilities Commission 500 South Orange Street Orlando, Florida 32801 Andrew R. Reilly, Esquire East Lake Parker Residents Post Office Box 2039 Haines City, Florida 33845-2039 Norman White, Esquire Central Florida Regional Planning Council 555 East Church Street Bartow, Florida 33830 Kathy Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Office of the General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact On September 12, 1995, Petitioner became a Florida Power customer. He received electricity service in his name at an apartment located at 2950 N. Pinehill Road #31, Orlando, Florida. From September 1994, through December, 1994, Petitioner occupied the apartment at 2950 N. Pinehill Road #31, Orlando, Florida. Petitioner's meter indicated he used 827 Kwh from September 12, 1994, through October 4, 1994. Petitioner's meter indicated he used 1525 Kwh from October 4, 1994, through November 2, 1994. Petitioner's meter indicated he used 1548 Kwh from November 2, 1994, through December 5, 1994. Petitioner's final bill was for December 5, 1994, through December 28, 1994. The meter indicated he used 221 Kwh for this final period. Respondent's tariff sheet 8.05 filed with the Commission sets forth the length of time within which Respondent must disconnect a customer's service after receiving a disconnect order. Respondent must disconnect service within 3 days of receiving the disconnect order. On December 26, 1994, Petitioner requested that his service be disconnected on December 27, 1994. Respondent disconnected Petitioner's service on December 28, 1994. On January 12, 1995, Petitioner's meter was tested in St. Petersburg, Florida. Petitioner's meter registered 99.96 percent accuracy.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Commission enter a Final Order finding that Respondent acted in compliance with applicable law and did not overbill Petitioner. RECOMMENDED in Tallahassee, Leon County, Florida, this 2nd day of January, 1995. DANIEL S. MANRY, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1995. COPIES FURNISHED: Rodney Gaddy, Esquire Florida Power Corporation 3201 34th Street, South St. Petersburg, Florida 33711-3828 Thomas Fuller Post Office Box 617217 Orlando, Florida 32861 Robert D. Vandiver, General Counsel Florida Public Service Commission Gerald L. Gunter Building 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Noreen S. Davis, Director Division of Legal Services Florida Public Service Commission Gerald L. Gunter Building 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850
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 Whether, as alleged, Respondent, International Paper Company, violated the Human Rights Act of 1977, by discharging Petitioner from employment because of his race or color, and, if so, the affirmative relief which should be granted.
Findings Of Fact Petitioner, a twenty-five year old black male, was hired as a general laborer by the Company on August 4, 1972, and continued in the Company's employment until his discharge on August 28, 1978. During the course of his employment, Petitioner worked at the Company's Panama City pulp and paper mill as a laborer, power plant utility man, turbine operator, assistant water treatment plant operator, and finally, as a power plant tender. Each new job assignment was a promotion and was accompanied by a salary increase. At the time of his discharge by the Company, Petitioner was employed as a power plant tender, and received $9.08 per hour. (Testimony of Petitioner, P.E. 2, 4, 5, 6,) Petitioner's Performance Record During his six years of employment with the Company, Petitioner's work performance was periodically reviewed every six months by this supervisors through completion of an Employee Performance Review Form. His performance records reflect that his work performance was marginally satisfactory, generally meeting minimum Company standards, although falling below average in several areas. He was frequently characterized by his supervisors as an individual who was lazy, laced initiative, needed frequent reminders to do his work, and not dependably present at his work station. His last periodic performance evaluation, dated April 6, 1978, noted that his performance, after two and one half years on the job, had not improved, and that he "must improve his performance during the next period." (P.E. 9) The Petitioner's reactions, during the counseling session on that performance review, were characterized by his supervisor as "passive-unconcerned." Id. (Testimony of Petitioner, P.E. 8, 9) Petitioner's Disciplinary Record Prior to Discharge During his employment with the Company, and prior to the final infraction resulting in his discharge, Petitioner was subject to disciplinary actions by the Company on five separate occasions. Each disciplinary action was evidenced by an Employee Warning Record completed by the Petitioner's foreman at, or near, the time of the infractions. The first three disciplinary infractions occurred on July 8, 1974, January 14, 1976, and May 20, 1977. Each infraction involved defective work performance by Petitioner, or his failure to follow proper work and safety procedures. In each case, the Company action consisted of reprimanding the Petitioner, and warning him that further occurrences of such nature could result in stronger or more serious disciplinary action. (R.E.2) The next disciplinary infraction by Petitioner occurred during May, 1977. Petitioner had been counseled on four separate occasions during the work week beginning May 22, 1977, for being absent fro his area of responsibility, and not answering his calls. On May 27, 1977, he was again reminded of the importance of being in his assigned work area so that he could hear calls and immediately respond. Later that day, Petitioner was told to go to the fourth floor and stand by for a call to start the load burners. When he was later called from the control room, Petitioner did not respond. Upon checking, the shift foreman found him sitting on the fourth floor porch. The pertinent Employee Warning Record concluded: "Communication is a critical part of the Power Plant, and it has been reemphasized to Smith that he must be in the area where he can hear his calls and respond. He understands that a recurrence of this nature will result in more severe disciplinary action." (R.E. 2) On July 7, 1978, Petitioner, without authorization, used a company telephone to make personal long-distance calls at Company expense. In lieu of discharge, the Petitioner was lid off for fourteen working days, and required to reimburse the Company for the telephone charges connected with his calls. The Company expressly informed Petitioner that "further acts of neglect of duty and/or improper use of telephones will be considered as cause for discharge". (R.E. 2) Petitioner's Discharge for Repeated Acts of Neglect of Duty Since 1973, the Petitioner performed various jobs working in the company power plant which furnishes essential power to its Panama City pulp and paper mill. The mill is dependent upon the power plant for its electrical power - a ten minute interruption of power would require the mill to shut down production. Because of the sustained steam pressure, high temperature conditions, and the possibility of ruptured valves and pipes, work at the power plant can be both dangerous and difficult. Power plant workers must be able to respond immediately and effectively to the exigencies associated with operating the plant, and take remedial action. (Testimony of Weathers, Daniels, P.E. 8 and 9) On August 16, 1978, Petitioner worked as a power tender at the mill power plant during the 11:00 P.M. - 7:00 A.M. shift. He became overheated while working in the cinder pit area and asked for and received permission to take a break to "cool-off." Ten to fifteen minute breaks for such purposes were normally authorized at the plant, since no regular lunch hour or breaks were specified during the production workers' eight hour shift. Production workers, such as Petitioner, were required, however, to be on duty, i.e., within the work area or responsive to calls, at all times during their eight hour shifts. (Testimony of Weathers, Daniels, Petitioner) Upon receiving permission to take a break, Petitioner proceeded to the porch and then to the No. 5 men's bathroom. After Petitioner remained absent for twenty - twenty-five minutes, his lead worker, E. J. Weathers became concerned and sought to locate him by calling the control room, and repeatedly paging him on the house loudspeaker system. That system has loudspeakers located throughout the work area, including the bathrooms. (Testimony of Petitioner, Weathers) After Petitioner failed to respond to Weathers' efforts to locate him, Weathers called and reported the Petitioner's absence to his shift supervisor, Marion Daniels. Daniels told him to search for and locate the Petitioner. Five minutes later, Weathers located the Petitioner asleep, seated on the toilet, located in the first stall in the men's bathroom. Weathers, then, reported the incident to Daniels, without waking Petitioner, because Weathers had previously told him not to wake Petitioner if he were found sleeping. Daniels came immediately to the bathroom, where Petitioner remained seated on the toilet, asleep, with his head down, eyes closed, and pants down around his ankles. Daniels called out Petitioner's name, and shined a flashlight in his face - but Petitioner did not respond. Finally, Daniels turned up the squelch volume on his radio, and Petitioner awoke. Petitioner denied he had been sleeping. Approximately thirty - thirty-five minutes elapsed between the commencement of Petitioner's "cooling-off" break, and the awakening of him from his sleep. (Testimony of Weathers, Daniels and Petitioner) Daniels, then, filed a report on the incident with the power plant supervisor. The next day, the superintendent told Petitioner that he would be discharged and informed him of his appeal rights. On August 19, 1978, a meeting was held between the mill manager, union representatives, and Petitioner to discuss the incident. At the close of the meeting, the Petitioner was advised by the mill manager that he was "layed [sic] off until further investigation." On August 25, 1978, Petitioner was informed, in writing, by the mill manager that he was discharged from employment, effective August 22, 1978, for "repeated acts of neglect of duty." (Testimony of Petitioner, P.E. 12) Grounds for Discharge Under Labor Agreement Petitioner's discharge from employment was subject to a Labor Agreement between the Company and two labor unions represented at the Panama City mill. The Agreement lists fifteen specific grounds for the discharge of mill employees. The grounds are not necessarily mutually exclusive, and include, without further elaboration, "neglect of duty," and "deliberate sleeping on duty." An employee's previous disciplinary record may be considered in determining the appropriate disciplinary action, but; "[w]hen an Employee has received no disciplinary action for a period of one year, prior disciplinary warnings for minor offenses will not be used against him." (P.E. 1) (Testimony of Daniels) Several of the more specific grounds listed for discharge, such as "deliberate sleeping on duty," are interpreted by the Company's management as falling within the more general ground for discharge - "neglect of duty." An employee can be discharged for one or more of the grounds which apply to a given factual situation. (Testimony of Daniels) Company's Disciplinary Action Against Caucasian Mill Workers On July 7, 1978, Michael Dewberry, a white male employee, improperly used Company telephones to make long-distance personal calls at the Company's expense. As with Petitioner, he was laid off for fourteen days, required to reimburse the Company, and warned that further acts of neglect of duty or improper use of telephones would be grounds for discharge. He did not subsequently neglect his duty or improperly use the telephones. (Testimony of Petitioner, P.E. 17) Bill O'Neal, a white male employee, was laid off on June 24, 1976, for being under the influence of alcohol. He was given a thirty-day leave of absence with the understanding that he would make a good faith effort at rehabilitation, and expressly warned that future misconduct of such nature would be considered as grounds for discharge. On September 9, 1976, O'Neal was, again, disciplined for reporting to work under the influence of alcohol. Instead of being discharged, O'Neal was suspended from work, and advised that reinstatement would be considered only after he provided proof of having received professional assistance. (P.E. 20) Edward Demers, a white male employee, was disciplined for numerous infractions. On January 1, 1978, Demers was reprimanded for pulling a knife in an argument with another employee; on March 14, 1978, and June 16, 1978, he was reprimanded for reporting late to work, and not reporting prior to the start of his shift, respectively; on June 27, 1978, he was reprimanded for being uncooperative with fellow workers, inattentive to instructions, slow in performing his duties, and making personal telephone calls; and, on August 25, 1978, he was suspended from work for seven working days for defective work, and warned that neglect of such magnitude would not be tolerated and recurrence would result in "the most severe disciplinary action." Occasionally, however, Demers performed his work in a good, and above average, manner. (P.E. 22) From January 1, 1976, to December 31, 1978, eight Company employees were disciplined for sleeping on duty - three were white and five black. Each employee, irrespective of color, received the identical punishment - a seven day suspension. Company disciplinary records referred to these as "sleeping on job" rather than "neglect of duty" offenses. (P.E. 26) From January 1, 1976, to December 31, 1978, ten Company employees (five black, five white) were discharged from employment for disciplinary reasons. Six of these employees were discharged after having received prior Company warnings that another infraction would be grounds for, or result in, discharge. (P.E. 26) The Company has promulgated Absentee Control Guidelines which allow three or four unauthorized absences within a twelve month period before discharge can be considered. (R.E. 1)
Conclusions Conclusions: The company established that Petitioner was found sleeping on duty after receiving a prior warning that further neglect of duty would be grounds for his discharge. Such conduct by Petitioner constituted neglect of duty and provided a legitimate, nondiscriminatory reason for his discharge. Petitioner failed to prove, by statistical or comparative evidence, that this stated reason for his discharge was a pretext, or mask for a discriminatory motive. Since Petitioner did not show that he was discharged because of his race or color, the Company's action did not constitute an unlawful employment practice in violation of the Human Rights Act of 1977. [Section 23.167(1), Florida Statutes] Recommendation: That the Petition for Relief filed by Petitioner, and supported by Intervenor, be DISMISSED. Background: On October 11, 1978, Petitioner, a black male, filed with the Florida Commission on Human Relations (hereinafter "Commission"), a discrimination complaint charging Respondent, International Paper Company (hereinafter "Company"), with unlawfully discharging him from his employment because of his race or color. On June 6, 1979, after investigating the charges, the Commission entered a "Determination" that there was reasonable cause to believe that an unlawful employment practice had occurred. On August 15, 1979, after unsuccessful efforts to conciliate Petitioner's complaint, Petitioner filed a Petition for Relief from the Company's alleged unlawful employment practice. On October 25, 1979, the Commission forwarded the Petition for Relief to the Division of Administrative Hearings for assignment of a Hearing Officer and the conducting of a Section 120.57(1), Florida Statute (1979), hearing. The Commission's subsequent Motion to Intervene in the proceedings was granted. On November 28, 1979, the Company filed a Motion to Dismiss the Petition for Relief on several grounds. The motion was denied. The Company also filed its Answer to the Petition, denying that it had engaged in the alleged unlawful employment practice. On February 27, 1980, Petitioner filed a Motion for Summary Judgment, which was denied. By Notice of Hearing, dated November 9, 1979, final hearing was set for February 4, 1980. The Petitioner's subsequent motion to continue the hearing was granted and hearing was reset for March 5, 1980. On March 4, 1980, the Company moved to continue the hearing, which motion was granted and final hearing was rescheduled for April 8, 1980. At final hearing, Petitioner testified in his own behalf, and offered Petitioner's Exhibits Nos. 1 through 26, 1/ inclusive, each of which was received into evidence. The Company called E. J. Weathers and Marion Daniels as its witnesses, and offered Respondent's Exhibits Nos. 1 through 6, inclusive, each of which was received in evidence. At the close of hearing, the parties requested into evidence. At the close of hearing, the parties requested the opportunity to file proposed findings of fact and conclusions of law by April 21, 1980. On April 18, 1980, due to an automobile accident involving her husband, counsel for the Company requested additional time within which to submit proposed findings of fact and conclusions of law. After hearing arguments of the parties, the time for filing was extended to May 2, 1980, with the Petitioner and the Commission granted the additional right to file reply memoranda within five working days from the Company's filing. The parties agreed that the thirty-day period for submittal of the Recommended Order to the Commission would begin to run upon receipt of the proposed findings of fact and conclusions of law, or the reply memoranda, whichever was later.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petition for Relief filed by Petitioner, and supported by Intervenor, be DISMISSED. DONE and ENTERED this 5th day of June, 1980, in Tallahassee, Florida. R.L. CALEEN, JR., Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
