The Issue The issue for determination is whether either of the proposed transmission line corridors for the proposed Lake Agnes-Gifford 230 kV transmission line comply with the criteria in Section 403.529(4), Florida Statutes, and if so, which of those corridors has the least adverse impacts with respect to the criteria in Section 403.529(4), Florida Statutes, including cost. If one of the corridors proper for certification is determined to have the least adverse impacts, the issue is whether certification of that corridor should be approved in whole, with modifications or conditions, or denied. See § 403.529(4) and (5), Fla. Stat. If the two corridors are found to be substantially equal in adverse impacts regarding the criteria in Section 403.529(4), Florida Statutes, including costs, the Siting Board shall certify the Joint Applicants' Preferred Corridor. See § 403.529(5)(c), Fla. Stat.
Findings Of Fact Based upon all of the evidence the following findings of fact are determined: Parties The TLSA establishes TECO, Progress Energy, and the Department as parties to this proceeding, and the following became parties upon their timely filing of a notice of intent to be a party, which each has done: Florida Department of Transportation (DOT), Department of Community Affairs, and the Southwest Florida Water Management District (SWFWMD). See § 403.527(2), Fla. Stat. The following agencies did not participate in the proceeding and did not file a notice of intent before the thirtieth day prior to the certification hearing and each one is deemed to have waived its right to be a party: the PSC; the Florida Fish and Wildlife Conservation Commission; the Department of Agriculture and Consumer Services, Division of Forestry; Osceola County; Polk County; Reedy Creek Improvement District; Department of Health; Department of State, Bureau of Historic Preservation; East Central Florida Regional Planning Council; and Central Florida Regional Planning Council. See § 403.527(3), Fla. Stat. Orange County, Orlando Utilities Commission (OUC), and the SFWMD (during the public comment portion of the hearing only) appeared at the hearing. Pursuant to Section 403.527(2)(c)3., Florida Statutes, any person whose substantial interests are affected and being determined by the proceeding shall be parties to the proceeding upon the filing of a notice of intent to be a party. By stipulation of the parties, having filed a notice of intent to be a party or a petition to intervene, OIC, OUC, Blackwater Associates, Ltd., and Mountain Funding, LLC, are parties to the proceeding without the need to introduce evidence as to substantial interests affected and being determined by the proceeding. The Corridors Proper for Certification The Applicants' Preferred Corridor exits the existing Lake Agnes substation in northeastern Polk County and extends east-northeast approximately 18.9 miles within, adjacent to, or in proximity to the OUC McIntosh-Taft transmission line right- of-way (ROW), which generally runs parallel to Interstate 4 (I-4), across Polk and Osceola Counties. It then turns north and crosses Loughman Road (Polk County Road 54, now known as Ronald Reagan Boulevard), Old Lake Wilson Road, and I-4, and continues north along the Daniel Webster Western Beltway, also known as State Road 429 (SR 429), co-locating in the SR 429 ROW, for approximately 8.6 miles. The Preferred Corridor then turns west and exits the SR 429 ROW, just north of Western Way and enters into PEF's existing easement, crossing Hartzog Road into the planned Gifford substation in southwestern Orange County. The OIC Alternate Corridor is designed to avoid the western edge of the OIC development in Osceola County and commences at the Applicants' Preferred Corridor 2,000 feet south of Funie Steed Road/Oak Island Road on the west side of SR 429, where it turns northwest and proceeds approximately 2,000 feet, and then turns northeast and proceeds approximately 2,000 feet, in an approximate horseshoe shape, to rejoin the Applicants' Preferred Corridor along SR 429. A series of aerial photographs showing both proposed corridors is found at Applicants' Exhibit 21; a map showing both proposed corridors is also found at Department Exhibit 3, page 2. The Application Project Description An electrical transmission line is designed to transport large amounts of electrical power from a generating facility or substation to one or more substations. At the substation, the electricity voltage can be either increased or reduced for further transport or for distribution directly to end users. The Applicants are seeking certification of their Preferred Corridor between the existing Lake Agnes substation and the planned Gifford substation, within which the Applicants will ultimately construct the transmission line on a narrow ROW. Once all property interests in the ROW are acquired, the boundaries of the certified corridor will shrink to the typical width of the 25 to 100-foot wide ROW. In some cases, the ROW will be co-located with an existing transmission ROW that is 145 feet wide. The Project is a joint venture between the Applicants. Of the approximately 27.5 miles of the proposed Lake Agnes- Gifford Line, approximately 10.5 miles are in TECO's service territory and approximately 17 miles are in PEF's service territory. The objectives for the Project are to provide a 230 kV electrical path that connects the existing Lake Agnes substation to the planned Gifford substation, providing a reliable path for the transmission line and reducing the impacts to the community and the environment while maintaining the integrity of Florida's transmission grid. Need for the Line The PSC determined that a new 230 kV transmission line between the existing Lake Agnes substation and the planned Gifford substation is needed, taking into account the need for electric system reliability and integrity and the need to provide abundant, low cost electrical energy to assure the economic well-being of the citizens of the State. The objectives of the Project are to serve the increasing electrical load in the region, to maintain reliability of electrical service within the region, and to minimize future overhead exposure outages within the regional transmission system. The PSC found that the existing Lake Agnes substation and the planned Gifford substation constitute the starting and ending points for the proposed line. The PSC noted that the additional transmission capacity is needed to be in service by June 2011. The PSC also recognized that the Siting Board will make the final determination concerning the route selection upon consideration of the factors and criteria specified in Section 403.529, Florida Statutes. Transmission Line Design The typical design for the transmission line will be a single-shaft tubular steel or spun concrete structure, with the capability of accommodating an additional 230 kV circuit. The poles are proposed to range in height from 85 feet above grade to 175 feet above grade, with the conductors framed in a vertical configuration. Three conductor phases will be used, and each of the three conductors is anticipated to be a bundled 954 Aluminum Conductor Steel Support/Trapezoidal Wire. The conductor is 1.08 inches in diameter with a weight of approximately 1.23 pounds per foot. There will also be a smaller overhead ground wire to provide lightning protection for the transmission circuit. The maximum electrical current rating is 3,000 amperes. The open span length between structures will typically vary between 500 and 1,000 feet, depending on site-specific conditions. Both pole height and span length may vary to accommodate various site-specific conditions that may be encountered, to take advantage of the terrain, to potentially address community concerns, and to avoid environmentally sensitive areas. Existing roadways, access roads, and structure pads will be used for construction and maintenance access to the transmission line wherever practicable. Access roads and structure pads will be constructed only where necessary to provide access for construction, maintenance, and emergency restoration. Where constructed, the typical road top width will be 16 feet, with a 2-to-1 side slope, and a typical elevation of feet above the seasonal high water line. Structure pads will have variable sizes but are typically 75 feet by 150 feet. The structure pads are designed to provide a dry, stable surface for staging material and for equipment setup. Culverts may be installed beneath access roads and structure pads with the specific design reviewed by the appropriate regulatory agencies. The design will be similar to previously approved designs. The proposed design of the transmission line complies with good engineering practices. It will be designed in compliance with all applicable design codes and standards, including the North American Electrical Reliability Corporation's standards, the National Electrical Safety Code, the noise ordinances of Polk, Orange, and Osceola Counties, the Department's regulations on electric and magnetic fields, the Florida Department of Transportation's Utility Accommodation Manual, the standards of the American Society of Civil Engineers, the Institute of Electrical and Electronics Engineers, the American Society of Testing and Materials, the American Concrete Institute, and the American National Standards Institute, the requirements of applicable regulatory agencies, as well as the Applicants' own numerous transmission design standards. There are no applicable designs or standards with which the transmission line will not comply. Transmission Line Construction The initial phase of construction is to survey and clear the ROW. Because much of the length of the corridor is co-located, that is, grouped or placed side by side, with existing roads and utility facilities, the need for clearing has been minimized. Where existing ROW widths are insufficient for placement of the transmission Line or where the transmission line will go cross-country, additional clearing will be necessary. Upland areas will be cleared to ground level. In forested wetlands, the Applicants have committed to use only restrictive clearing methods. Restrictive clearing will be used in wetlands to clear vegetation from the transmission line centerline to 50 feet on each side of the outer conductors and in work areas approximately 64 feet by 150 feet around structure sites. In wetland areas, low-growing herbaceous vegetation can remain within the ROW; stumps in the area beyond 20 feet on either side of the outer conductors will be left in place to preserve the root mat. During clearing, best management practices will be utilized to control erosion. After the ROW is cleared, any necessary access roads and structure pads will be constructed. The Applicants have committed to use existing access roads and public roads for access to the transmission line to the extent practicable. Where existing access is not available, the Applicants have committed to construct access roads and structure pads in a manner which reduces or eliminates adverse impacts to on-site and adjacent wetlands to the extent practicable. The next phases of construction involve the physical transmission line construction, including material hauling and spotting, pole setting and framing, and conductor stringing activities. The newly-constructed structure pads are used to provide a stable and dry platform for the material staging and equipment. The foundations are constructed. The pole materials and other materials will be hauled to each specific structure site. The pole sections will then be jacked together on the ground. The insulators and hardware will then be framed up on the ground. Next, the top pole section will be lifted by crane and placed on the foundation base that was previously set. Poles will typically be installed 30 to 50 feet below ground. The conductor stringing activities occur next. Reels of wire and wire tensioning equipment will be brought to the job site and set up at dead-end locations. The construction crew will install stringing blocks or pulleys on each structure where the conductor will be pulled through. Once the conductors are pulled in, the conductor will be secured at the dead-end locations, and the wires will be sagged and tensioned appropriately to maintain vertical clearances. Finally, the conductor is secured to the insulator attachment and the pulleys and blocks are removed from each structure. The final stage of construction is the cleanup stage. This involves a final inspection of the area to remove the silt fences and hay bales, to clean up excess spoils from the foundation excavations, to repair or replace fencing, and to replace and secure gates. Throughout construction, in areas where soil is disturbed, sedimentation management techniques, such as the use of silt screens and hay bales, or other best management practices, will be employed as necessary to minimize potential impacts from erosion and sedimentation. While each phase of construction will typically take up to two weeks at each structure location, the construction crew will normally be active for two to four days at a typical structure location. Construction for the entire project is expected to last approximately eighteen months. Methodology for Choosing Applicants' Preferred Corridor The Applicants established a multidisciplinary team to identify a corridor for the transmission line. The role of this team was to select a certifiable corridor based on an evaluation of environmental, land use, socioeconomic, engineering, and cost considerations. The multidisciplinary team was composed of experts in land use, engineering, and environmental disciplines and included representatives of the two utilities, outside legal counsel, and various consultants. Corridor selection methodologies were designed to be integrative of multidisciplinary siting criteria, regional and objective in decision-making, sensitive to social and environmental conditions, responsive to regulatory requirements, reflective of community concerns and issues, and capable of accurate documentation and verification. The team engaged in four major steps: to establish and define the project study area; to conduct regional screening and mapping; to select and evaluate candidate corridors using both quantitative and qualitative analysis; and finally to select the preferred corridor and identify the boundaries of that corridor. The team's work included a number of field studies, data collection, internal meetings, and meetings with the public. In defining the project study area, the multidisciplinary team identified the starting and ending points for the proposed transmission line, the locations of existing and planned substations in the area, the service boundaries of the utilities, and major roads in the area. In regional screening, the multidisciplinary team gathered 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 area. The multidisciplinary team developed a regional screening map, received in evidence as Applicants' Exhibit 24, which was prepared by the team using generally publicly available information including Geographic Information System (GIS) mapping. The map data were collected from various state agencies and local governments; information was gathered from the Florida Geographic Data Library (which distributes GIS data), the Florida Natural Areas Inventory, and most of the agencies involved in this proceeding. Various environmental and land use data were mapped as were existing infrastructure, archaeological/historical sites, and information gathered on roads, railroads, rivers, waterbodies, and the like. These represented primarily potential siting constraints or siting issues within a particular study area. The regional screening map was then used to identify route segments. Using the regional screening information, the multidisciplinary team selected corridor segments for consideration using quantitative analysis of the data gathered in the earlier stages of the process. The team then evaluated the corridor segments using both quantitative and qualitative criteria. The multidisciplinary team gathered data on siting opportunities and constraints within the study area and identified sixty line segments which could be assembled into a total of 1,187 potential candidate corridor combinations. Using a predefined set of quantitative environmental, land use, and engineering criteria, each corridor segment was measured for those resources. Using the weights developed by the team for each criterion, the weights were applied and tabulated for all candidate corridor segments. The candidate corridors were then ranked in order from best to worst based on the quantitative weighted scores. Once the rankings were performed, the five highest- ranked candidate corridors were subjected to further quantitative and qualitative evaluation. These candidate corridors were evaluated using predetermined qualitative criteria which do not lend themselves easily to quantification, such as safety and buildability. At the completion of the evaluation, the multidisciplinary team deliberated and ultimately chose a preferred corridor. Once the preferred corridor was selected, the multidisciplinary team defined the boundaries of the Applicants' Preferred Corridor. The team developed corridor boundaries of varying widths - - narrowing the corridor to avoid siting constraints or widening the corridor to take advantage of siting opportunities. Public Involvement in the Corridor Selection Process The Applicants engaged in an extensive public outreach program, the purpose of which was to inform and educate the public about the project and to invite public input from the public in the corridor selection process. The public outreach program included a series of direct mailings, surveys, open houses, extensive communications with regulatory agency officials and local elected officials, a project web page by both Applicants and the Department, a toll-free telephone number, and newsprint advertisements. There were two direct mailings as a part of the public outreach program. The first mailing went to approximately 7,900 customers with a map of the project area, a fact sheet, and an invitation to one of three open houses to be held. One open house was conducted in Polk County, while two open houses were conducted in Lake County in close proximity to the project area. Following the completion of the open house process, a second mailing was sent to approximately 6,000 customers identifying the preferred corridor chosen during the evaluation process. The names of the mailing recipients were obtained by identifying the properties located within certain distances in both directions from the centerline of the candidate corridors. The Property Appraisers' Offices of Polk, Osceola, Orange, and Lake Counties were a source for this information. The mailings were also sent to the homeowners' associations along the candidate corridors. The Applicants plan additional mailings if a corridor for the transmission line is certified. Additional informational open houses will also be held, and the transmission structures and potential locations will be identified at that time so the public can be informed. As part of the public outreach, the project also ran a series of five advertisements in local newspapers. The first series of advertisements notified the public of the three open houses: a newspaper advertisement was run on August 9, 2007, in The Lakeland Ledger, The Winter Haven News Chief, and The Orlando Sentinel for the first open house, and for the second and third open houses, a newspaper advertisement was run in The Lakeland Ledger, The Hometown Sun, The Winter Haven News Chief, The Report, West Orange Times, South Lake Press, Osceola News- Gazette, and The Orlando Sentinel. The second advertisements notified the public of the filing of the Application in December 2007 in The Tampa Tribune, The Lakeland Ledger, The Winter Haven News Chief, The Osceola- News Gazette, and The Orlando Sentinel. In March 2008, a third series of advertisements was run in The Orlando Sentinel, The Lakeland Ledger, and The Osceola News-Gazette to notify the public of the certification hearing. In June 2008, a fourth series of advertisements was run notifying the public of the rescheduling of the certification hearing; this advertisement was published by OIC in the Osceola County section of The Orlando Sentinel and this advertisement was published by the Applicants in The Lakeland Ledger and the Orange County section of The Orlando Sentinel. Finally, in August 2008, a notice regarding the second week of hearing was published in The Osceola News-Gazette, The Lakeland Ledger, and The Orlando Sentinel. Copies of the Application were maintained for public inspection during the certification process at the TECO offices in Tampa and Winter Haven and at the PEF offices in St. Petersburg, Lake Wales, and Lake Buena Vista. In addition, a copy of the Application was provided to the Hart Memorial Central Library and Ray Shanks Law Library in Kissimmee, the Orlando Public Library in Orlando, the Bartow Public Library in Bartow, and the Auburndale Public Library in Auburndale. The public outreach program was integrated into the corridor selection process. The public's input included information about anticipated road expansions and modifications as well as proposed residential developments in the project area. A few members of the public complained at the public hearing that they were unaware that a new transmission line corridor was being proposed until just before the hearing. However, the evidence shows that long before the certification hearing, information concerning this process was widely disseminated through advertisements, open houses, mass mailings, surveys, and meeting with regulatory agencies and local elected officials. See Findings of Fact 33 and 35-37, supra. Detailed Description of the Applicants' Preferred Corridor The Applicants' Preferred Corridor provides significant opportunities for co-location with other linear facilities such as roads, a natural gas pipeline, and other transmission lines. Co-location is an important benefit from the perspectives of engineering, ecology, and land use because it results in reduced impacts from the new transmission line, reduced ROW needs (or land acquisition needs) for the new line, reduced need for new clearing of land, reduced impacts to wetlands by co-locating with previously-disturbed areas, and reduced incremental impacts by co-locating with an existing linear facility. The Preferred Corridor exits the existing Lake Agnes substation and extends east-northeast approximately 18.9 miles within, adjacent to, or in proximity to the OUC McIntosh-Taft transmission line ROW, which generally runs parallel to I-4, across Polk and Osceola Counties. The Applicants' Preferred Corridor crosses Loughman Road (now known as Ronald Reagan Boulevard) and Old Lake Wilson Road. In this area, the land use includes water utility infrastructure in addition to I-4 and the OUC transmission line. Near the Lake Agnes substation, the land uses include some individual residences, as well as undeveloped land now used as pasture, citrus groves, and the Hilochee Wildlife Management Area. The land uses along I-4 and the OUC transmission line include residential development, undeveloped land north of Ronald Reagan Boulevard and south of Champions Gate and U.S. Highway 27, and the Hilochee Wildlife Management Area. In the area of U.S. Highway 27, there is considerable residential development and mixed-use development to the east and west of the Preferred Corridor. The ecological communities in this area include the Green Swamp Wildlife Management Area (also known as Green Swamp East Tract) north of I-4 and the Hilochee Wildlife Management Area. The ecological communities within the Preferred Corridor include residential areas, improved pastures, forested wetlands, pine flatwoods, and freshwater marsh. At the I-4 and SR 429 interchange, the Preferred Corridor turns and continues north along the Daniel Webster Western Beltway (SR 429), co-locating in the SR 429 ROW for approximately 8.6 miles. The land uses beginning at the I-4 and SR 429 interchange and northward to U.S. Highway 192 include residential communities on both the east and west sides of the Preferred Corridor, a large regional wastewater treatment facility on the west side of the Preferred Corridor, and undeveloped land, as well as resort, residential, and commercial development. Between U.S. Highway 192 and the planned Gifford substation, the land uses include a number of mixed-use and residential developments and golf course communities on the east and west side of the Preferred Corridor, as well as undeveloped land that is used for agricultural purposes and as part of wetland systems. The ecological communities in this area include the large Davenport Creek Swamp to the west of SR 429 and Reedy Creek to the east of SR 429; ecological communities within the Preferred Corridor include citrus, improved pasture, pine and pine oak forest, freshwater wetlands, and forested wetlands. The Applicants have agreed to adjust the eastern corridor boundary in the area south of Funie Steed Road/Oak Island Road and north of the southern boundary of the OIC residential development to be 55 feet east of the edge of the SR 429 ROW, rather than the originally-proposed 100 feet east of the edge of the SR 429 ROW. This adjustment was made at the hearing in response to concerns raised by OIC. By making this adjustment, the impact on the homes in the OIC community will be substantially diminished. The Applicants' Preferred Corridor then turns west and exits the SR 429 ROW just north of Western Way and enters into PEF's existing easement, crossing Hartzog Road into the planned Gifford substation. The land use in this area of the planned Gifford substation is predominantly additional utility infrastructure associated with wastewater treatment facilities. The width of the Preferred Corridor varies along its entire length to provide flexibility within the corridor to avoid or minimize impacts to such areas as large wetland areas, to provide flexibility at large road intersections, and to take advantage of existing land patterns, property boundaries, and linear facilities. OIC's Application for Alternate Corridor Selection of the OIC Alternate Corridor Mr. von Behren indicated in testimony that he and fellow board members of the OIC Community Owners Association selected the OIC Alternate Corridor. Unlike the Applicants' Preferred Corridor, the OIC Alternate Corridor was selected by OIC without any public outreach to obtain input from the community. OIC did, apparently, pay attention to the property interests of OIC. No OIC property is traversed by, or adjacent to, the OIC Alternate Corridor; however, the OIC Alternate Corridor bisects the existing, nearby residential Emerald Island development. Detailed Description of OIC Alternate Corridor The OIC Alternate Corridor is located in the Osceola County portion of the Project and commences at the Applicants' Preferred Corridor 2,000 feet south of Funie Steed Road/Oak Island Road on the west side of SR 429, where it turns northwest and proceeds approximately 2,000 feet, and then turns northeast and proceeds approximately 2,000 feet, in an approximate horseshoe shape, to rejoin the Applicants' Preferred Corridor along SR 429. The land uses and ecological communities within the SR 429 portion of the OIC Alternate Corridor were described above in Finding of Fact 42, supra. The land use of the OIC Alternate Corridor where it deviates from the Applicants' Preferred Corridor is undeveloped lands between two components of the Emerald Island residential development. The undeveloped lands include pasture, shrub and brushland, and undisturbed, undeveloped freshwater marsh and forested wetlands. A portion of these wetlands provide water treatment and storage functions for the Lake Tohokepaliga Water Authority and are held within a conservation easement and subject to a water use permit. Design and Construction of Transmission Line within OIC Alternate Corridor The design and construction techniques described in Findings of Fact 13 through 23 will be the same if the transmission line is constructed, operated, and maintained in the OIC Alternate Corridor. The parties have stipulated that the transmission line can be constructed, operated, and maintained in the OIC Alternate Corridor in compliance with the regulatory and industry standards listed in Finding of Fact 16. Agencies' Review of Corridors Proper for Certification and Resulting Determinations State, regional, and local agencies with regulatory authority over the Project reviewed the Application and submitted to Department reports concerning the impact of the Project on matters within their respective jurisdictions, as required by Section 403.526(2), Florida Statutes. Eleven regulatory agencies reviewed the Application, and nine reviewing agencies submitted reports on the Project, and have proposed Conditions of Certification. None of the agencies involved in the review process recommended that the proposed corridor be denied or modified. On May 30, 2008, the Department issued its Written Analysis on the Project, incorporating the reports of the reviewing agencies and proposing a compiled set of Conditions of Certification. The Department recommended that the Applicants' Preferred Corridor be certified subject to appropriate conditions of certification. Three reviewing agencies submitted supplemental reports on the OIC Alternate Corridor on or before June 20, 2008, again proposing Conditions of Certification. On July 7, 2008, the Department issued its Supplemental Written Analysis on the Project, including the OIC Alternate Corridor, incorporating the supplemental reports of the reviewing agencies and proposing a comprehensive set of Conditions of Certification. The Department did not recommend approval of the OIC Alternate Corridor, although it found the alternate corridor to be certifiable. In its Supplemental Written Analysis, the Department stated: Given the alternate corridor is likely to have a higher impact on the environment as well as additional cost, the Department does not find the alternate corridor to be superior to the preferred corridor, although either corridor is ultimately certifiable. Department Exhibit 3, page 4. Whether and Extent to Which Each Corridor Will Comply with Criteria in Section 403.529(4), Florida Statutes Ensure Electric Power System Reliability and Integrity The PSC decided that there are regional transmission system limitations in the I-4 corridor between Polk County and the greater Orlando area due to projected load growth in the 2008-2011 timeframe. The PSC found that the new 230 kV line is needed by June 2011 to preserve electric system reliability and integrity in order to: provide additional transmission transfer capability along the I-4 corridor to move electricity generated in the Polk County region to load centers in the Greater Orlando area in a reliable manner consistent with the North American Electric Reliability Council (NERC) and the Florida Reliability Coordinating Council (FRCC) and other applicable standards; b) serve the increasing load and customer base in the projected service area; and (c) potentially provide for another electrical feed via a separate Right of Way (ROW) path, thereby reducing the impact of a loss of the existing transmission facilities on a common ROW. The PSC further decided that the transmission line is the most cost-effective and efficient means to both increase the capability of the existing 230 kV network and serve the increasing load and customer base in the Central Florida region. The transmission line can be constructed, operated, and maintained in either the Applicants' Preferred Corridor or the OIC Alternate Corridor to provide electric power system reliability and integrity. Even so, the evidence shows that the Applicants' Preferred Corridor better provides electric power system reliability and integrity than does the OIC Alternate Corridor because the Applicants' Preferred Corridor will involve a shorter length of line and because the Applicants' Preferred Corridor will involve fewer maintenance issues and access issues. The Applicants' Preferred Corridor is shorter by 1,472 feet than the OIC Alternate Corridor. Unnecessary length added to a transmission circuit introduces further exposure to the forces of nature which could impact reliability of a transmission line. The greater the line length, the greater the exposure or risk to reliability. The OIC Alternate Corridor also involves additional maintenance issues and access issues not raised by the Applicants' Preferred Corridor. For example, there is a risk of flooding because some of the areas within the OIC Alternate Corridor are used for overflow for nearby retention ponds. This flooding could cause an access problem if emergency or routine repairs or maintenance were needed. Meet the Electrical Energy Needs of the State in an Orderly, Economical and Timely Fashion The transmission line can be constructed, operated, and maintained in either the Applicants' Preferred Corridor or the OIC Alternate Corridor to meet the electrical energy needs of the State in an orderly, economical, and timely fashion. Nevertheless, the Applicants' Preferred Corridor better meets the State's electrical energy needs in an orderly, economical, and timely fashion than does the OIC Alternate Corridor because the OIC Alternate Corridor adds significant cost to the overall project and long-term costs associated with operation and maintenance. The OIC Alternate Corridor is estimated to cost $4.4 million more for construction than the Applicants' Preferred Corridor. The cost differential is caused by the need for more easement area, more access roads, the nature of the soils, the foundation requirements, the heavy angle requirements, and more wetlands mitigation of the OIC Alternate Corridor. For example, because the OIC Alternate Corridor is primarily located in wetlands, the OIC Alternate Corridor will require larger poles and larger pole foundations, which involve higher costs. In addition to the $4.4 million construction cost differential, the OIC Alternate Corridor will also involve additional maintenance costs throughout the life of the transmission line because there will be a higher cost and effort required for vegetation management and access road maintenance in the OIC Alternate Corridor than will be required for the Applicants' Preferred Corridor. Comply with the Applicable Nonprocedural Requirements of Agencies Construction, operation, and maintenance of the transmission line within either the Applicants' Preferred Corridor or the OIC Alternate Corridor will comply with applicable nonprocedural requirements of agencies. Electrical and Magnetic Fields The transmission line can be constructed, operated, and maintained in either the Applicants' Preferred Corridor or the OIC Alternate Corridor in compliance with the Department's standards for Electric and Magnetic Fields in Florida Administrative Code Rule Chapter 62-814, which limit the electric and magnetic fields associated with new transmission lines. The Applicants propose to use four different configurations for the transmission line depending upon the location. The options include a 230 kV single circuit on a 100- foot ROW, a 230 kV single circuit on the 185-foot ROW including the existing OUC McIntosh-Taft 230 kV line, a 230 kV single circuit roadside, and a 230 kV single circuit roadside with an additional 35-foot easement including the existing Boggy Marsh- Gifford and Four Corners-Gifford 69 kV lines. For each of these configurations, the Department's rule requires that the electric and magnetic fields (or energy forces) within the ROW and at the edge of the ROW be calculated to ensure compliance. The electric field is a field that is generated by voltage of a conductor, expressed as a kilovolt meter (kV/m). The magnetic field is a field produced by the current traveling along the conductor, expressed in milligauss (mG). Those portions of Florida Administrative Code Rule Chapter 62-814 that are applicable to this Project establish maximum values for electric and magnetic fields. Compliance with the electric and magnetic field requirements was calculated for each of the configurations that may be utilized for the Project. The results were then compared to the requirements of Florida Administrative Code Rule 62-814.450(3). The maximum expected values from all configurations for the electric fields and for the magnetic fields are all below the values set forth in the rule. The maximum voltage and current that is anticipated for the line during its life are used in making the calculations. However, it is highly unlikely that this condition would occur. It is anticipated that the maximum condition would occur less than five percent of the time while the transmission line is operating. In order to operate at the maximum condition, the conductor must be operating at its maximum temperature (which requires an extreme weather condition), and there would also need to be some type of system disturbance (such as an outage in the region). Levels for electric fields will be less at the normal operating levels and magnetic fields about fifty percent less. The levels of electric and magnetic fields from the transmission line are similar to the levels that would be expected to result from common household appliances. Noise Transmission lines can generate audible noise as a result of build-up of particles on the conductor. During periods of fair weather dust can collect on the conductor and that may cause low levels of audible noise. When rain is experienced, the dust is washed off but replaced with water droplets on the conductor that create a condition that results in slightly higher levels of audible noise. The noise levels experienced during rainfall events are temporary, and the noise is reduced as soon as the water droplets evaporate from the conductor. The expected levels of noise are generally calculated using an industry-standard software program called the Bonneville Power Administration Field Effects Program. The calculations performed for the transmission line show that the maximum audible noise levels at the edge of the ROW would range up to a high of 37.6 dBA. This noise level is similar to the upper noise level in a library, and less than the living room noise in a suburban area. Also, during rainfall events, when the maximum noise levels are expected, the rain will tend to mask the sound from the transmission line. The calculated noise levels for the transmission line indicate that the noise levels that will be produced will not be a significant issue. Further, the calculated noise levels will comply with all applicable audible noise ordinances in Polk, Osceola, and Orange Counties. Be Consistent with Applicable Local Government Comprehensive Plans, If Any The transmission line can be constructed, operated, and maintained in either the Applicants' Preferred Corridor or the OIC Alternate Corridor to be consistent with applicable provisions of local government comprehensive plans, if any. The Polk County Comprehensive Plan identifies electric transmission and distribution facilities as a permitted use in all land use categories. The Osceola County Comprehensive Plan and the City of Auburndale Comprehensive Plan identify utility and public facilities as allowable uses in all land use categories provided that the TLSA standards and other regulatory standards are met. The Orange County Comprehensive Plan identifies utility and public facilities as allowable uses in all land use categories. The Reedy Creek Improvement District Comprehensive Plan identifies that utility corridors are allowable uses where no other alternatives are feasible. The PSC found that the Applicants considered four alternatives to the Project and none were feasible. Further, the Applicants considered a number of alternatives in the corridor selection process and considered the OIC Alternate Corridor and selected the Applicants' Preferred Corridor as the best choice among the various corridors. See Finding of Fact 102, infra. After certification of this project, the transmission line will be located and constructed entirely within established rights-of-way, including easements acquired after corridor certification. Construction of transmission lines on such established ROWs is excepted from the definition of "development" in Section 163.3164(6), Florida Statutes. Accordingly, the provisions of the local comprehensive plans related to "development" that have been adopted by the local governments crossed by the transmission line are not applicable to this project. No variances or exemptions from applicable state or local standards or ordinances are needed for the project. Effect a Reasonable Balance Between the Need for the Lake Agnes-Gifford Transmission Line as a Means of Providing Abundant Low-Cost Electrical Energy and the Impact Upon the Public and the Environment Resulting from the Location of the Lake Agnes-Gifford Transmission Line and Construction, Operation, and Maintenance of the Transmission Line The Applicants' Preferred Corridor was chosen using a multidisciplinary team of experts to minimize impacts upon the public and the environment. Impacts Upon the Public The land uses found in the area of the Applicants' Preferred Corridor and the OIC Alternate Corridor are compatible with transmission lines; there are many locations throughout Florida where transmission lines similar to the proposed transmission line coexist with these land use patterns. Both the Applicants' Preferred Corridor and the OIC Alternate Corridor are appropriate locations for a transmission line from a land use perspective, but the Applicants' Preferred Corridor is a better location in relation to impacts upon the public. aa. Co-location with Existing Linear Facilities The Applicants' Preferred Corridor is co-located with existing linear facilities for nearly its entire length. In choosing among the candidate corridors considered by the multidisciplinary team, the Applicants' Preferred Corridor was chosen with reference to maximizing co-location with existing linear features, including transmission lines, highways, and natural gas pipelines. Co-location is advantageous because the existing linear facilities often provide existing access, minimizing the need for new access roads, the need for new clearing, and the need for further encumbrance of additional land. By following these existing linear features, the Applicants' Preferred Corridor conforms to existing and future development patterns and minimizes intrusion into surrounding areas. Further, there is less of an incremental difference in impacts from adding a linear facility to an area of existing linear facilities than from adding a linear facility to a presently unencumbered area. In contrast, the OIC Alternate Corridor follows an area of undeveloped land and thus does not offer the advantages of co-location. bb. Impacts upon Residential Development In choosing among the candidate corridors, minimizing the number of homes within the corridor was a significant criterion considered by the multidisciplinary team. It is an advantage for the OIC Alternate Corridor over the Applicants' Preferred Corridor that the OIC Alternate Corridor has fewer homes within the corridor than does the Applicants' Preferred Corridor. However, it is a disadvantage for the OIC Alternate Corridor that it bisects two components of the Emerald Island residential development. The impacts of the Applicants' Preferred Corridor on OIC homes is minimal. The "residents" of the OIC development are predominantly short-term renters or vacationers who will be in proximity to the transmission line for only a few weeks' duration. (Many of the homes are owned by citizens of the United Kingdom who rent the properties to vacationers visiting the area. There are, however, three permanent year-round residents in the development, including Mr. von Behren.) The Applicants have adjusted the eastern corridor boundary to no more than 55 feet from the edge of the SR 429 ROW in the vicinity of the OIC development. Further, the Applicants have committed that, if the Applicants' Preferred Corridor is certified, there will be no existing homes within the eventual transmission line ROW. PEF's engineering expert testified that the Applicants' preferred location for the transmission line within the Applicants' Preferred Corridor in the vicinity of the OIC development is to be on the west side of SR 429, which would not impact any OIC homes. If that location is not feasible, the Applicants' preferred location for the transmission line within the Applicants' Preferred Corridor in the vicinity of the OIC development is to be on the east side of SR 429, with poles located 15 feet inside the DOT's ROW for SR 429, in which case the only property rights that the Applicants would need outside the DOT ROW would be no more than 30 feet for an overhanging aerial easement and access rights. These commitments by the Applicants mean that there are only three or four properties within OIC where the Applicants might need an aerial and access easement for the transmission line; the pole would be no nearer to those homes than approximately thirty feet. This evidence demonstrates that there will be very little impacts on the OIC residential development. Further, OIC raised concerns about existing vegetation with the OIC residential development. Those concerns are misplaced because PEF's engineering expert explained that the Applicants would avoid any vegetation that exists outside the SR 429 ROW, and that any vegetation that would be replaced would be within the SR 429 ROW. cc. Minimizing the Length of Transmission Lines in the Landscape The length of a transmission line in the landscape is important because it is a land use consideration to minimize the amount and length of linear facilities in the landscape. The shorter the linear facility, the less potential effects of the linear facility. This is an advantage for the Applicants' Preferred Corridor because it is shorter than the OIC Alternate Corridor. dd. Impacts to Conservation Lands The Applicants' Preferred Corridor has the advantage of avoiding conservation lands while the OIC Alternate Corridor in contrast crosses lands held for conservation purposes. The conservation lands include a parcel held for use by Osceola County as a stormwater retention and conveyance system, a parcel held by Emerald Island Resort as a conservation area, a parcel owned by the Lake Tohopekaliga Water Authority held in a conservation easement by SFWMD, and a parcel subject to a water use permit. The conservation easement expressly prohibits the construction of utility infrastructure within its boundaries. Although SFWMD's conservation easement could be amended by the underlying property owner to allow for crossing by the OIC Alternate Corridor, SFWMD prefers the Applicants' Preferred Corridor because it better avoids and minimizes impacts to wetlands. ee. Impact on Property Values At the public portion of the certification hearing, several members of the public testified in opposition to the Applicants' Preferred Corridor. A number of those testifying, including Mr. von Behren, expressed concern about the impact of the Project on property values, and the desire to have the Applicants seek another route. Although these concerns are genuine, the impact on property values is not a subject for consideration at this hearing. Impacts Upon the Environment The transmission line, whether constructed, operated, and maintained in the Applicants' Preferred Corridor or the OIC Alternate Corridor, will comply with all applicable state, regional, and local nonprocedural regulations, including the wetland regulatory standards applicable to such projects. The Applicants have committed to a variety of Conditions of Certification that require extensive measures to eliminate or minimize the potential environmental impacts. For example, within forested wetlands, the Applicants have committed to using restrictive clearing practices, removing only tall- growing trees and leaving understory (the lower layer of plants growing under a higher layer of plants) and root mats in place within the ROW. The Applicants have also committed to the use of existing access roads through wetland areas to the greatest extent practicable, and the construction of at-grade access roads where conditions allow. In addition, the Applicants have committed to compensatory mitigation to offset the loss of wetland functions, if any. Further, if the transmission line is constructed in either the Applicants' Preferred Corridor or the OIC Alternate Corridor, the transmission line design will allow for variable span length to avoid wetland impacts by spanning those areas upland-to-upland. Both the Applicants' Preferred Corridor and the OIC Alternate Corridor are appropriate locations for a transmission line from an environmental perspective, but the Applicants' Preferred Corridor is a better location in relation to impacts upon the environment. aa. Impacts to Vegetative Communities, Including Wetlands The Applicants' Preferred Corridor will have minimal environmental impact. Construction of the line within the Applicants' Preferred Corridor will cause minimal adverse ecological impacts for several reasons: regional screening was conducted to minimize inclusion of areas of ecological constraints, such as eagles' nests, undisturbed wetland habitat, protected species habitat, and forested areas; the width of the corridor provides flexibility when the final ROW is selected to avoid ecological resources within the corridor; because of the corridor's co-location with existing rights-of-way, there is a prevalence of developed areas within the Applicants' Preferred Corridor; where the Preferred Corridor traverses areas of natural vegetation, it does so largely in previously-disturbed areas, minimizing the amount of needed clearing and new access roads; and wetlands will be avoided by spanning them to the extent practicable. With respect to the Green Swamp, an area of 870 square miles, the Applicants' Preferred Corridor minimizes impacts by co-locating with the OUC transmission line ROW. Other candidate corridors considered by the multidisciplinary team would have involved clearing of undisturbed forested wetlands, including areas of mature cypress domes. In contrast, the transmission line will have more adverse environmental impacts if constructed, operated, and maintained in the OIC Alternate Corridor than the Applicants' Preferred Corridor because of the prevalence of undisturbed wetland habitat within the OIC Alternate Corridor as compared to the previously-disturbed habitat along SR 429 within the Applicants' Preferred Corridor. Construction of the transmission line within the OIC Alternate Corridor would result in greater forested and herbaceous wetland impacts and require greater alteration to previously-undisturbed areas. bb. Protected Species The Applicants have committed to a number of conditions of certification protecting species whether the Applicants' Preferred Corridor or the OIC Alternate Corridor is certified. For example, the Applicants have agreed to conduct pre-clearing surveys of the final ROW for protected species, and to consult with the Florida Fish and Wildlife Conservation Commission, the United States Fish and Wildlife Service, and the Department if any species are located within the ROW to address avoidance and mitigation measures. Impacts to listed plant and animal species from construction of the transmission line within the Applicants' Preferred Corridor are expected to be minimal because the corridor includes primarily previously-impacted areas which have limited suitability as protected species habitat and because of the Applicants' commitment to conduct pre-clearing species surveys. The Applicants' Preferred Corridor avoids or minimizes intrusion into the undisturbed wildlife habitats due to its co- location with existing linear facilities for almost its entire length. The current condition and relative value of function of the habitat within the Applicants' Preferred Corridor is generally minimal from a wildlife ecology and protected species perspective because it has been previously-disturbed through construction of major roadways. In the areas of undisturbed lands, the Applicants' Preferred Corridor is co-located with existing utility rights-of-way including a transmission line and natural gas pipeline that already disturb the area. The gopher tortoise is a protected species that has been documented to be located within the Applicants' Preferred Corridor and the OIC Alternate Corridor. Gopher tortoise habitat typically is not compromised by construction of transmission lines due to the relatively small ground footprint of disturbance and the maintenance of low vegetation within the ROW, which is suitable habitat for gopher tortoises. Thus, the transmission line is not expected to have significant impact on gopher tortoises. The impacts to protected species will be greater in the OIC Alternate Corridor than the Applicants' Preferred Corridor. The Applicants' Preferred Corridor includes two known locations of protected species; transmission lines are compatible with the habitat for these species. In addition, the habitat within the Preferred Corridor is not suitable for most protected species because it is previously disturbed where vegetation communities have already been cleared and converted to roadside ROW. In contrast, the OIC Alternate Corridor consists predominantly of undisturbed wetlands, which is habitat that is highly suitable for a number of protected species. Although there are no Florida Natural Areas Inventory-documented locations of protected species within the OIC Alternate Corridor, there are four field-documented protected species within the OIC Alternate Corridor. Further, the habitat is highly suitable for protected species because it is largely undisturbed, much is held in conservation easement, and it includes forested and herbaceous wetlands. cc. Floodplains The 100-year floodplain is an area, regulated by the Department and the water management districts, that demarks the area that would be inundated in severe flood events. The Applicants are required to provide compensating floodplain storage to offset the loss, if any, of floodplain storage caused by fill needed for the transmission line; this requirement is designed to avoid any flooding of adjacent properties that might be caused by the Project. Because of this requirement, one of the goals in corridor selection was to minimize impacts to the 100-year floodplain. Only a small portion of the Applicants' Preferred Corridor is located within the 100-year floodplain, while a large portion of the OIC Alternate Corridor is located within the 100-year floodplain. Further, the portions of the Applicants' Preferred Corridor that are located within the 100- year floodplain are located in areas that have been previously disturbed by the construction of SR 429 and would likely not involve significant further impacts to the 100-year floodplain. dd. Archaeological and Historical Resources The Applicants utilized information from the Department of State, Division of Historical Resources (DHR), to identify potential archeological and historical resources within the Applicants' Preferred Corridor. A number of locations were identified as a result of the information and the Applicants have committed, through the Conditions of Certification, to perform a cultural resources survey when the actual ROW is located. If any artifacts are discovered, the Applicants will notify the Department and DHR and consult with DHR to determine appropriate action. There is no difference between the impacts to cultural resources of the Applicants' Preferred Corridor and the OIC Alternate Corridor. The Need for the Lake Agnes-Gifford Line as a Means of Providing Abundant Low-Cost Electrical Energy The transmission line can be constructed, operated, and maintained in either the Applicants' Preferred Corridor or the OIC Alternate Corridor to meet the need for the transmission line as a means of providing reliable, economically efficient electric energy as determined by the PSC. The PSC determined that the proposed line is needed taking into account the factors set forth in Section 403.537, Florida Statutes. The PSC found that the Applicants evaluated four alternatives to the proposed transmission line. All of the alternatives were transmission modifications to the proposed ROW that used a portion of, or the entire existing, common ROW. The PSC accepted the Applicants' rejection of the alternatives primarily because of economic and reliability concerns. The PSC found that the proposed line will assure the economic well-being of Florida's citizens by serving projected new electric load in the region and improving the region's electric reliability by minimizing the region's exposure to single contingency events. Reasonable Balance Between the Need for the Lake Agnes- Gifford Line and the Impacts of the Line upon the Public and the Environment Expert witnesses in the fields of land use, engineering, and ecology with specializations in transmission line siting, permitting, design, and reliability have compared the corridors proper for certification and all concluded that the Applicants' Preferred Corridor effects a better balance between the need for the transmission line and the impacts of the line on the public and the environment from the perspective of their expertise than does the OIC Alternate Corridor. Conditions of Certification The transmission line can and will be constructed, operated, and maintained in either the Applicants' Preferred Corridor or the OIC Alternate Corridor in compliance with the Conditions of Certification, which are found in the Department's Exhibit 3. The Conditions of Certification establish a post- certification review process through which the final right-of- way, access road, and structure locations will be reviewed by agencies with regulatory authority over the project. The Applicants have agreed to the Conditions of Certification to minimize land use and environmental impacts of the construction, operation, and maintenance of the transmission line. The parties agree that the Conditions of Certification are consistent with applicable non-procedural requirements of the state, regional, and local agencies with regulatory jurisdiction over the transmission line, and that such conditions should be imposed on the certification, if granted, for either of the corridors under consideration in this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Siting Board enter a Final Order approving Tampa Electric Company and Progress Energy Florida's Lake Agnes-Gifford 230 kV Transmission Line Application for Certification subject to the Conditions of Certification set forth in Department Exhibit 3. DONE AND ENTERED this 22nd day of October, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2008. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Thomas M. Beason, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Lawrence N. Curtin, Esquire Holland & Knight LLP Post Office Box 810 Tallahassee, Florida 32302-0810 Carolyn S. Raepple, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314-6526 Toni L. Sturtevant, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Gary von Behren, President Oak Island Cove Community Owners Association 2872 Blooming Alamanda Loop Kissimmee, Florida 34747-2252 Kelly A. Martinson, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Allen G. Erickson, Esquire Assistant County Attorney Post Office Box 1393 Orlando, Florida 32802-1393 Tasha A. Buford, Esquire Young Van Assenderp, P.A. Post Office Box 1833 Tallahassee, Florida 32302-1833 Martha A. Moore, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 Ray Maxwell, District Administrator Reedy Creek Improvement District 1900 Hotel Plaza Boulevard Lake Buena Vista, Florida 32830-8438 Jo O. Thacker, Esquire Osceola County Attorney One Courthouse Square, Suite 4200 Kissimmee, Florida 34741-5440 Emily J. Norton, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Mitchell B. Kirschner, Esquire Mitchell B. Kirschner, P.A. 1515 North Federal Highway Suite 314 Boca Raton, Florida 33432-1953 Steven I. Silverman, Esquire Kluger, Peretz, Kaplan & Berlin, P.L. 201 South Biscayne Boulevard, Suite 1700 Miami, Florida 33131-4332 Ruth A. Holmes, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 Phil Laurien, Executive Director East Central Florida Regional Planning Council 631 North Wymore Road, Suite 100 Maitland, Florida 32751-4229 Patricia M. Steed, Executive Director Central Florida Regional Planning Council 555 East Church Street Bartow, Florida 33830-3931 Jennifer S. Brubaker, Esquire Florida Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Shaw P. Stiller, General Counsel Department of Community Affairs 2470 Centerview Drive Tallahassee, Florida 32399-2100 Laura Kammerer Bureau of Historic Preservation 500 South Bronough Street Tallahassee, Florida 32399-0250 Michael E. Duclos, Esquire Assistant County Attorney Post Office Box 9005, Drawer AT 01 Bartow, Florida 33830-9005 Kimberly C. Menchion, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458
The Issue The issues for determination are whether either of the properly proposed corridors (the FPL Corridor or the Alternate Corridor) for the Collier-Orange River #3 230-kV transmission line (the COR #3 Line) comply with the criteria in Section 403.529(4)(a)-(e), Florida Statutes (2003); and, if so, which of the corridors have the least adverse impacts with respect to the criteria in Section 403.529(4)(a)-(e), Florida Statutes, including cost. (All citations are to the 2002 version of the Florida Statutes unless otherwise indicated.) If the Florida Power & Light Company (FPL) Preferred Corridor (FPL Corridor) is determined to have the least adverse impacts, or if the two corridors are determined to be substantially equal in adverse impacts, the Siting Board must determine whether the FPL application for corridor certification should be approved in whole, with modifications or conditions, or denied. § 403.529(4) & (5)(c), Fla. Stat. If it is determined that the Alternate Corridor proposed by Collier Enterprises, Ltd. (CE) and Barron Collier Companies (BCC) has the least adverse impacts, including costs, since this corridor was rejected by FPL for consideration pursuant to Section 403.5271(1)(b), Florida Statutes, certification shall be denied or FPL shall be allowed to submit an amended application to include such corridor. § 403.529(5)(b), Fla. Stat.
Findings Of Fact THE PARTIES The TLSA establishes FPL and the DEP as parties to this proceeding, as well as the following upon their filing of a notice of intent to be a party, which each has done: Florida Department of Transportation, SFWMD, Lee County, City of Fort Myers, and the City of Bonita Springs. The following agencies did not participate in the proceeding and did not file a notice of intent before the 30th day prior to the certification hearing and each one is therefore deemed to have waived its right to be a party: PSC, Department of Community Affairs, Florida Fish and Wildlife Conservation Commission, Southwest Florida Regional Planning Council, and Collier County. § 403.527(4), Fla. Stat. Approximately five linear miles of FPL’s Corridor is located on real property owned by BCC. One section, i.e., 640 acres, is located along SR 82 adjoining FPL’s Corridor, one section north and east of Lake Trafford to the east of the FPL Corridor, and four sections along the north side of Immokalee Road, CR 846. Virtually all of those lands along Immokalee Road on the north side are stewardship-receiving areas, which means they can receive a density of up to four dwelling units per acre. See Findings of Fact 90 and 102. Locating the proposed transmission line on real property owned by BCC may result in adverse environmental impacts to BCC’s real property if not subject to appropriate conditions of certification. Such impacts could include, but may not be limited to, impacts to wetlands. Additional buffering may be required for BCC’s property. BCC’s substantial interests are affected by and subject to determination in this proceeding. Approximately 5.5 linear miles of FPL’s Corridor is located on real property owned by CE in Collier County. Material here, CE owns land just north (and west) of the intersection of Immokalee Road (CR 846) and south of the Lee County Electrical Cooperative (LCEC) 138-kV ROW that turns to the east. CE land proceeds south of Oil Well Road, with the southernmost tip adjacent to I-75. (BCC also owns adjacent land east of this location.) See Findings of Fact 93-94 and 99. These lands are among a large group of landholdings designated as the Rural Land Stewardship Area that is designated in comprehensive plan amendments. The allowed density as noted above is up to four dwelling units per acre in a variety of forms, including compact rural development, village, towns, and hamlets that could provide for a range of mixed uses on these lands. These lands can be classified as either sending or receiving lands. See Finding of fact 99. Locating the proposed transmission line on real property owned by CE may result in adverse environmental impacts to CE’s real property if not subject to appropriate conditions of certification. Such impacts could include, but may not be limited to, impacts to wetlands. CE may also need to undertake additional landscaping and buffering in order to conceal the view of the transmission line. The view of the Camp Kaeis slough (located approximately one mile west of the intersection described in Finding of Fact 4) from CE property may be impacted in the future. See Finding of Fact 94. CE’s substantial interests are affected by and subject to determination in this proceeding. Intervenor, Parklands Development, L.P. (Parklands), is the owner of the east one-half (1/2) of Section 4, Township 48 South, Range 26 East in Lee County, Florida, less approximately 83 acres in the northeastern portion of the east one-half of Section 4 which is owned by DiVosta and Company, Inc. Parklands has also developed the western one-half of Section 4 and still owns portions of that one-half section that have not been sold to individual lot owners. These parcels are within the City of Bonita Springs. In addition, Parklands is the owner of substantially all of Section 9, Township 48 South, Range 26 East in Collier County, Florida. Parklands further has a contract to purchase 180+ acres in the northwest corner of Section 3, Township 48 South, Range 26 East in Lee County, Florida, from Corkscrew Growers, Inc. Parklands’ substantial interests will be affected by action of the Transmission Line Siting Board because construction of the Alternate Corridor could affect Parklands’ use and development of its property. In addition, Parklands has an interest in assuring the availability of a reliable source of power for its developments. Accordingly, Parklands’ substantial interests are affected by and subject to determination in this proceeding. Intervenor, DiVosta Homes L.P., successor by merger with DiVosta and Company, Inc. (DiVosta), is the owner of approximately 468 acres of real property in the City of Bonita Springs, Lee County, Florida, as identified in the Warranty Deed attached to its Petition to Intervene. In addition, DiVosta owns approximately 83.61 acres in the Northeast Quarter of Section 4, Township 48 South, Range 26 East; approximately 109.05 acres in the Southwest Quarter of Section 3, Township 48 South, Range 26 East in Lee County; approximately 214 acres in Section 26, Township 50 South, Range 26 East and approximately 6 acres in Section 34, Township 50 South, Range 26 East, both in Collier County, Florida. DiVosta’s substantial interests will be affected by the action of the Transmission Line Siting Board because construction of the Alternate Corridor could affect DiVosta’s use and development of its property. In addition, DiVosta has an interest in assuring the availability of a reliable source of power for its developments. Accordingly, DiVosta’s substantial interests are affected by and subject to determination in this proceeding. The City of Bonita Springs is a municipality in Lee County, Florida. The City of Ft. Myers, a municipality, appeared at the final hearing. Pursuant to Section 403.527(4)(c)2., Florida Statutes, domestic non-profit corporations formed, in whole or in part, to promote the conservation and protection of the environment or to promote comprehensive planning or orderly development of the area in which the proposed transmission line or corridor is located are parties to the proceeding upon the filing of a notice of intent to be a party. Having complied with these statutory requirements the following are parties to this proceeding: Collier County Audubon Society, Inc., Conservancy of Southwest Florida, Florida Audubon Society, Florida Wildlife Federation, and Responsible Growth Management Coalition. Kenneth E. Smith’s substantial interests are affected by and subject to determination in this proceeding because FPL’s Preferred Corridor includes real property owned by Mr. Smith east of Green Meadows Road. See Findings of Fact 80 and 243. STIPULATIONS ENTERED INTO BY THE PARTIES The following parties signed stipulations with FPL in which they adopted the position and witnesses of FPL at the certification hearing: DiVosta Homes, L.P., Parklands Development Limited Partnership, Florida Wildlife Federation, Collier County Audubon Society, Florida Audubon Society, Conservancy of Southwest Florida, and Responsible Growth Management Coalition. FPL, BCC, and CE also entered into a stipulation that the location, construction and maintenance of the COR #3 230 kV transmission line (COR #3 Line) in either the FPL Corridor or the portion of the Alternate Corridor within the existing Common ROW between the Orange River and Collier substations could both be consistent with applicable local government comprehensive plans and would comply with all non-procedural requirements of agencies. The stipulation reserved the right of BCC and CE to argue as to the extent to which locating, constructing and maintaining the COR #3 Line in either corridor would be consistent with applicable comprehensive plans and non- procedural requirements of agencies. FPL reserved the right to argue as to the inapplicability of any provisions of local government comprehensive plans to the location, construction and maintenance of electric transmission lines within established ROWs. The stipulation was entered into the record as Joint Exhibit 9. The parties also stipulated that the COR #3 Line could be constructed on either the FPL Corridor or the Alternate Corridor in compliance with the electric and magnetic field standards of Florida Administrative Code Chapter 62-814. FPL APPLICATION General FPL submitted the application to the DEP on April 30, 2003. The DEP determined that the application was complete on May 13, 2003, and sufficient on August 21, 2003. On October 10, 2003, the DEP issued its Written Analysis, incorporating the reports of the reviewing agencies and including proposed conditions of certification. Project Description An electrical transmission line’s purpose is to transport large amounts of electricity from a generating facility to one or more substations. At the substation, the electricity can be either increased or reduced in voltage through transformers and other electrical equipment for further transportation or for distribution at lower voltages directly to customers. Florida has a highly integrated electric transmission line system. High voltage transmission lines connect the various electric generating utilities to one another. The interconnected electric grid provides benefits to the state because it allows electric utilities to share generation capacity, resulting in lower electrical rates, and to back up one another in emergencies. FPL’s service area generally covers the eastern half of the Florida peninsula and Southwest Florida. FPL is seeking certification of a corridor between the Orange River substation (east of Ft. Myers, Lee County) and the Collier substation (near Naples, in Collier County) within which it will ultimately construct the COR #3 Line on a narrow ROW. Once all property interests in the ROW are acquired, the boundaries of the corridor will shrink to the width of the 15- foot to 60 foot ROW. (A ROW consists of the actual property rights that FPL will acquire to construct the transmission line. A corridor is a much larger area that includes the boundaries of the ROW within it. Once a ROW is established, the boundaries of the corridor become moot. See generally § 403.522(10), Fla. Stat.) The service area for the proposed COR #3 Line (the “Project Service Area”) is southern Lee County and Collier County. The Project Service Area is bounded on the north by the Fort Myers Power Plant switchyard and the Orange River substation, on the east by a line that follows the boundary between Lee and Hendry Counties, on the west by the Gulf of Mexico, and on the south by FPL’s southernmost customer in Collier County.1 (FPL’s Ft. Myers Power Plant is north of and nearby the Orange River substation and is interconnected with that substation with transmission lines.) The proposed FPL Corridor is approximately 53.9 miles in length. If approved, FPL expects to incorporate an approximately 14-mile 230-kV transmission line into the new line between the Orangetree substation, located (south) on Immokalee Road (CR 846), and the intersection of FPL’s existing Collier- Orange #1 and #2 transmission Common ROW and Livingston Road. (See FPL Exhibit 4 for the location of the proposed FPL Corridor, the FPL Common ROW, and other landmarks.) There are three 138-kV lines flowing south out of the Ft. Myers Power Plant and a fourth radial line that is not included in the Project Service Area. There are four existing 230-kV lines flowing southeast out of the Ft. Myers Power Plant to the Orange River substation. (See FPL Exhibit 10.) There are three 230-kV lines that flow south out of the Orange River substation and eventually terminate at the Collier substation to the south. One phase is known as Collier- Orange River #1 and the other is Collier-Orange River #2. A third 230-kV line runs from the Orange River substation south along the Common ROW then west to the Alico substation and then from Alico (loops back to the east) and south along the Common ROW to the Collier substation. (See FPL Exhibit 10.) One 500-kV line flows south out of the Orange River substation along the Common ROW and then, east of the Southwest Florida International Airport, flows east to Andytown. Id. The Project Service Area is an electrical “peninsula,” that is, all electricity is brought into the area and flows from the north to the south from the Fort Myers Power Plant or the Orange River substation and then south. (See FPL Exhibits 9 and 10.) The Project Service Area is dependent on the transmission line system to import electricity from the north. (The Florida Public Service Commission (PSC) found, in part, that “[t]he principal bulk transmission link into the region south of Ft. Myers is an existing 230-kV connection between the Orange River substation, just east of Ft. Myers, and the Collier substation adjacent to Naples. Thus, the area south of Ft. Myers, including Naples, is considered an electrical peninsula.”) The primary path for transmission lines bringing electricity into the Project Service Area is on the existing Common ROW between the Orange River substation east of Fort Myers in Lee County and the Collier substation east of Naples in Collier County. This single Common ROW contains all three of the 230-kV transmission lines, as well as some other 138-kV and a 500-kV transmission line segments, that collectively bring about 70-75 percent of the electricity into the Project Service Area. See also Findings of Fact 22-24. The three objectives of the COR #3 Line project are: (1) to address the need, as confirmed by the PSC, to provide FPL’s existing and future customers in the Project Service Area with additional electricity; (2) to enhance the reliability of electric service to the customers in the Project Service Area by locating the new line on a geographically separate route from the existing lines on the Common ROW; and (3) to provide a secondary feed, known as “looping,” to the new Orangetree distribution substation in eastern Collier County. Need for the COR #3 Line The PSC determined a new 230-kV transmission line between the Orange River substation and the Collier substation is needed, taking into account the need for electric system reliability and integrity in Southwest Florida and the need to provide abundant, low-cost electrical energy to assure the economic well-being of the citizens of the State, particularly those in Southwest Florida. The PSC noted that FPL’s planning studies indicate this additional transmission capacity will be needed by December 2005 to alleviate potential overloads and low voltage conditions that could result from a single contingency event.2 The PSC found that construction of the COR #3 Line on a route that is geographically separate from the Common ROW will enhance system reliability, integrity, and restoration of service more than locating the line on the existing Common ROW. The PSC also found that placement of the COR #3 Line on the existing Common ROW is “not optimal” due to concerns with serving the Project Service Area via a “single corridor”3 and the “inability for future expansion of FPL’s transmission system to the east of the existing corridor” or Common ROW. The PSC recognized, however, that any party to the site certification hearing may propose an alternate corridor and that the Siting Board will make the final corridor selection upon consideration of the factors and criteria specified in Section 403.529, Florida Statutes. Transmission Line Design The typical design for the COR #3 Line will be a single-pole unguyed concrete structure, 90 feet above grade in height, with the conductors framed in a vertical configuration. Each of the three conductors is anticipated to be a 1,431 thousand circular mils (kcmil), aluminum conductor, steel reinforced alumoweld core (ACSR/AW). There will also be a smaller overhead ground wire to provide shielding and lightning protection for the conductors. The maximum current rating (MCR) for the line will be 1,905 amperes.4 In some locations, electric distribution lines and communication cables may also be attached to the structures beneath the conductors. The span length between structures will typically vary between 250 feet and 700 feet, depending on site-specific ROW widths and other design considerations. Both pole height and span length may vary to accommodate such things as locating poles to coincide with property boundaries or existing collocated utility facility poles, to minimize or avoid wetland impacts, to cross other utility lines, and to facilitate wide crossings of water bodies and roadways. Shorter structures may be required in proximity to an airstrip to comply with applicable clear zones. Where the transmission line turns angles in excess of 10-15 degrees, the structures may be guyed to support the differential tension. Access roads and structure pads will be constructed only where necessary to provide access for construction, maintenance, and emergency restoration. Pads may be installed in low or wet areas. Access roads may be built in some areas where linear features, such as an existing line or road, do not exist. Where constructed, the typical road top width will be about 14 feet, with a 2:1 side slope, and a minimum elevation of 6 inches over mean or seasonal high water. Structure pads will have variable sizes (e.g., 45’X50’, 34’X50’, and 35’X60’), depending on site-specific requirements, but will be of sufficient size to provide access to structure locations for the large construction equipment. Access roads and structure pads will not be paved. Culverts will be installed beneath access roads and structure pads with spacing, diameter, and length to maintain pre-construction flows. The design of the COR #3 Line complies with good engineering practices. Transmission Line Construction The transmission line will be constructed in seven phases: surveying; ROW clearing; construction of access roads and structure pads; line construction; pole framing; line stringing; and ROW restoration. Surveying the ROW to facilitate acquisition of the necessary property interests is a first step towards construction. Since 95 percent of the FPL Corridor is collocated with existing roads and utility facilities, the need for acquisition of private property has been minimized. After property rights have been acquired, the initial phase of construction is to clear the ROW. Collocation of the FPL Corridor with existing roads and utility facilities will enable required clearing to be minimized. Clearing will consist mainly of tree trimming and the occasional removal of trees that exceed or are capable of exceeding 14 feet in height. In wetlands, trees capable of exceeding 14 feet in height that could come in conflict with the line will be removed by hand-clearing or use of very low ground pressure equipment. Low-growing herbaceous vegetation will not be cleared from wetlands. After the ROW is cleared, any necessary access roads and structure pads will be constructed. Typically, access road and pads are only required in wet and low areas. This enables all subsequent construction activity in those wet areas to remain on the newly constructed access road and pad. The next phases of construction involve the physical transmission line construction. Initially, materials are brought to the jobsite. Next, holes are augered at each pole location and the poles are then erected using cranes or other heavy equipment. The hole is then backfilled with the excavated material or, if that material is unsuitable, with suitable fill from offsite. Typically, the pole is embedded into the ground approximately 16 feet to 20 feet. After the poles are set, the poles are framed; that is, the insulators and hardware are installed on the pole.5 Then through a wire pulling operation the conductors and overhead ground wires are installed. The conductors are then properly sagged and tensioned to provide the proper vertical clearances. Next, the conductors are “clipped in” to the insulator assemblies. The final stage of construction is ROW restoration or clean up. During all stages of construction, FPL will maintain traffic on any adjacent county, state or federal roadways in compliance with applicable Management of Traffic (MOT) regulations or plans. Throughout construction, sedimentation management techniques, such as the use of silt screens and hay bales, will be employed as necessary to minimize potential impacts from erosion and sedimentation. Turbidity testing is also performed. While each phase of construction will typically take only one to seven days in an area, the entire COR #3 Line construction process will last approximately 13 months. The COR #3 Line will be constructed in compliance with all applicable design codes, including the National Electrical Safety Code, the DEP’s regulations on electric and magnetic fields,6 the Florida DOT Utility Accommodation Manual, the Lee County and Collier County noise ordinances, and standards of the American Society of Civil Engineers (ASCE), the Institute of Electronic & Electrical Engineers (IEEE), American Society of Testing Materials (ASTM) and American National Standards Institute (ANSI), as well as FPL’s own design standards. See Findings of Fact 226 and 252. Methodology for Choosing the FPL Corridor Importance of Geographic Separation On project initiation, FPL management instructed its multi-disciplinary corridor selection team to identify, if it could (“to the greatest extent practicable”), a corridor for the COR #3 Line that is geographically separate from the existing Common ROW. This instruction was based on the importance of maintaining some geographic separation between the existing Common ROW and the new COR #3 Line to enhance reliability of electric service in the electrical peninsula to be served by the new line. It is not prudent utility planning or practice to carry excessive amounts of power on any one line, substation, transformer or transmission ROW. While FPL has approximately 15 common ROWs on its system with power transfer capability equivalent to four 230-kV transmission lines or more, no common ROW, other than the one between the Orange River and Collier substations, is an electrical peninsula that lacks a power generation source at one end. In other words, the existing Common ROW between the Orange River and Collier substations is the only Common ROW on the FPL system that serves an electrical “peninsula.” Since all other FPL common ROWs have a generation source at both ends, the historical outages, resulting when all of the transmission lines on those ROWs were taken out of service, have generally been on the order of hours or minutes. This may be because FPL has the ability to respond quickly, if by no other means, by restarting those power plants on either end of the common ROW to get electricity back to its customers. This strategy is not a reasonable option in the Project Service Area because there are no electric generating plants connected to the transmission system within the Project Service Area south of the Orange River substation. The planning standards of the North American Electric Reliability Council (NERC) provide that there are situations when it is appropriate for a utility to decide to do more than is required by those standards. In determining whether to go beyond NERC standards, the consequences of a situation occurring may be considered even if the frequency of such a situation causing an electrical outage would be rare. In this case, FPL decided that a worst case scenario loss of up to 80 percent of the electric capacity (all transmission lines on the Common ROW including the COR #3) in the Project Service Area potentially for as long as six days, which could affect about 600,000 people (less the population of the Project Service Area that may be served via the 138-kV transmission lines), was a severe enough consequence to warrant identifying a geographically separate ROW to the extent possible.7 See also Findings of Fact 185 and 297. Corridor Selection and Public Involvement FPL established a multi-disciplinary team to identify and evaluate routing alternatives within the Project Study Area. This multi-disciplinary team was comprised of a transmission line engineer, a land use planner, and an ecologist. As noted herein, FPL management provided the team with the major premise that FPL wanted a geographically separate corridor for the COR # Line. During the route evaluation study, the multi-disciplinary team did not identify or evaluate the Common ROW as a route option, nor did they seek input from the public on use of the Common ROW for the COR #3 Line. However, the team responded to public inquiry on this subject and explained to the public the basis for FPL’s desire for a geographically separate corridor. FPL’s multi-disciplinary team gathered data on siting opportunities and constraints within the study area,8 and identified dozens of line segments which could be assembled into more than 3,700 alternate routes for the COR #3 Line. FPL also engaged in an extensive public participation program to gather input for its route evaluation study. This public participation program included several open houses, establishment of a Community Advisory Panel, mass mailings, a community survey, a toll-free telephone number, a website, and numerous meetings with regulatory agencies, community associations, homeowner groups, and individual homeowners and property owners. The public participation program provided substantive input to the route evaluation study in terms of a study area boundary, siting opportunities and constraints in the area, identification of route segments to be evaluated, and weights to be assigned to the route evaluation criteria. For example, the study area is dominated by a very large area of environmentally- sensitive lands, wetlands, and lands acquired or proposed for acquisition under several land acquisition programs for conservation purposes, generally referred to as the Corkscrew Swamp System. Due to input from the community during the public participation program, the multi-disciplinary team expanded the study area to the east to include route alignments suggested by the public/agency participants that could avoid the environmentally sensitive Corkscrew Swamp System. FPL’s multi-disciplinary team evaluated the 3,700+ routes quantitatively, using ten weighted criteria, and then evaluated in more detail, using both quantitative and qualitative criteria, the top three distinct routes. The Gencore (literally generates corridors) computer software was used to help the team identify highly ranked distinct alternatives (combinations of segments), which were then subject to further, more detailed evaluation. (The FPL Corridor was ranked using the Gencore computer analysis and it became number 16 out of 3,784 alternatives studied.) Ultimately, FPL’s multi-disciplinary team identified the route of the FPL Corridor as providing the most appropriate minimization and balance of factors to address the project objectives. At the public hearing held on February 11, 2004, a representative of the CREW Land and Water Trust, a non-profit public/private partnership organization formed in 1989 to protect the Corkscrew Regional Ecosystem Watershed expressed appreciation for FPL’s public participation work with other interests in the area to identify its FPL Corridor. Collier County Commissioner Tom Henning also noted FPL’s impressive public involvement efforts in selecting its FPL Corridor. Once the preferred alignment was identified, the multi-disciplinary team delineated the boundaries (width) of the FPL Corridor to provide flexibility, including efforts to avoid or minimize impacts, for locating the eventual ROW within that corridor. The southernmost 1.8-mile segment of the FPL Corridor uses the existing Common ROW. After FPL’s multi-disciplinary team met significant community opposition to the geographically separate alternative routes identified by FPL in this area, FPL determined that the risk of using the Common ROW for this short segment was acceptable because: the Common ROW is significantly wider in this segment than to the north and allows for some physical separation between the COR #3 Line and the existing 230-kV lines; if a multiple outage of all lines on the Common ROW occurred in this 1.8-mile segment, fewer people would be affected than if the outage occurred further to the north because power could still be provided to several substations located to the north of this 1.8 mile segment; and the likelihood of a multiple outage of all lines in this 1.8-mile segment is lower than anywhere else along the Common ROW because there is extensive development on either side of the ROW and a major roadway on the east, lessening the likelihood of a wildfire, vandalism, sabotage or terrorism. Agencies’ Review of FPL’s Application and Resulting Determinations Each state, regional, and local agency with regulatory authority over the project reviewed FPL’s Application and submitted to the DEP a report as to the impact of the proposed COR #3 Line on matters within the agency’s jurisdiction, as required by Section 403.526(2), Florida Statutes. The DEP then compiled these reports and made a recommendation that the COR #3 Line be granted approval, subject to appropriate conditions, which have been amended. See Preliminary Statement, p. 5. DESCRIPTION OF THE FPL CORRIDOR Approximately 95 percent of the FPL Corridor is collocated with existing linear features, such as roads and transmission lines. This collocation will minimize impacts of the new COR #3 Line. Approximately three miles of the total line length of the FPL Corridor is not immediately adjacent to either a dedicated road ROW and/or an existing transmission line ROW. The width of the FPL Corridor varies along the route to provide flexibility within the corridor to minimize or avoid impacts to such areas as existing developments and large wetland areas. A large portion of the FPL Corridor is within the territory of the LCEC. From the Orange River Substation to State Road (SR) 82 The FPL Corridor begins at the north at the Orange River substation, which is east of Fort Myers. From the Orange River substation, the FPL Corridor proceeds west for about one mile along the north side of, and generally paralleling, Homestead Lane/Tice Street. In this area, the corridor is 2,600 feet wide to provide flexibility in meeting the FAA and Lee County tall structure ordinance clearance requirements from the Strayhorn airstrip south of Homestead Lane. Approximately one mile west of the substation, the corridor turns south and is located on an existing FPL 138-kV 100 and 160 foot-wide transmission line ROW for about three miles to SR 82. The land uses around the substation are primarily agricultural and some low-density residential. Along the existing FPL ROW in this segment, the land uses are primarily agricultural, with some low-density development to the west of the FPL Corridor. This segment of the FPL Corridor includes development, lands undergoing development, and agricultural lands that have very little or no value from a vegetation and wildlife perspective. The few isolated natural habitats in this segment have already been affected by man’s activities. At the public hearing, two residents who live on Tice Street expressed concern for the COR #3 Line being placed close to their homes and asked that the line be placed on the existing Common ROW or in the far northern section of the FPL Corridor. FPL has agreed to a condition of certification that requires it to locate the COR #3 Line north of Tice Lane (and Homestead Road) in order to minimize potential impacts to the existing residential areas. (See Joint Exhibit 5A, p.11-Condition of Certification XVIII.D. See also March 17, 2004, draft of conditions, p. 11, filed at DOAH with the Proposed Recommended Order submitted by FPL and other parties and April 19, 2004, Notice of Filing Corrected Conditions of Certification, paragraph D, “FPL agrees to locate the transmission line north of Homestead Road and Tice Lane in order to minimize potential impacts to the existing residential areas subject to the preferred corridor.” This latter set of draft conditions were not admitted into evidence and should be considered by the Siting Board with all parties given an opportunity to comment thereon.) Notwithstanding, the residents were concerned that the precise location of the line was unknown. Along SR 82 to Sunshine Boulevard (Including “Line Swap”) At SR 82, the FPL Corridor turns east and follows SR 82 in a southeasterly direction for about 7.5 miles to the intersection with Sunshine Boulevard and Green Meadows Road. In this area, the corridor is 500 feet wide, centered on SR 82, to allow the possibility of placing the COR #3 Line on either side of the roadway. Where this segment crosses the existing Common ROW, FPL will use a “line swap” configuration to maintain a separation of about one-half mile between the new COR #3 Line and the existing transmission lines on the Common ROW.9 See FPL Exhibits 6-7.) Thus, the FPL Corridor includes a lateral 400- foot-wide segment in this area that follows Buckingham Road for about 2,500 feet to the east of the Common ROW and then traverses south along the west side of the section line to SR 82. The land use along the north side of SR 82 is the Lehigh Acres residential subdivision. On the south side of SR 82, the land uses are largely agricultural. In the vicinity of the “line swap,” on the north side of Buckingham Road, is Lee County’s resource recovery facility. See Finding of Fact 75. Due to the presence of a major roadway, Lehigh Acres, a large subdivision north of SR 82, and developing lands and farmlands south of SR 82, there are some natural habitats, but in this segment of the FPL Corridor, the natural habitats have been somewhat diminished. The approximately one-mile portion of this segment that is not collocated with existing roads or transmission lines crosses pine flatwoods and mixed forest habitat in an area that is already disturbed by the east-west crossing of Colonial Boulevard. Lee County’s resource recovery (or “waste-to-energy”) facility, including an incinerator and recycling facility, is located on the north side of Buckingham Road. Lee County plans to expand the recycling facility by extending it about 140 feet- 150 feet to the south, towards Buckingham Road. The recycling facility’s rezoning approval requires a 200-foot setback from Buckingham Road, including a significant vegetative buffer. These requirements will continue to be met with the expansion of the recycling facility, even though some of the vegetative buffer that exists between the recycling facility and Buckingham Road will have to be removed. Lee County is concerned that even more vegetation in that buffer will have to be removed if the COR #3 Line is placed on the north side of Buckingham Road. FPL has agreed to locate the COR #3 Line south of the northern ROW line of Buckingham Road in Lee County, if possible. If FPL is unable to obtain the necessary property interests to place the transmission line ROW within this area, FPL will locate the transmission line adjacent to the northern edge of the road ROW, such that there is no intervening land between the transmission line and the Buckingham Road ROW. Any trees or shrubs disturbed by FPL north of the centerline of Buckingham Road ROW will be replaced on adjacent Lee County property at FPL's expense. (See Joint Exhibit 5A, p. 12, Condition of Certification XVIII.G. See also March 17, 2004, draft of conditions, p. 11.) From the Intersection of SR 82 and Sunshine Boulevard/Green Meadows Road to FPL’s 500-kV Transmission Line ROW At the intersection of SR 82 and Sunshine Boulevard and Green Meadows Road, the FPL Corridor turns south and follows Green Meadows Road, a private road, for about two miles to the existing FPL 500-kV transmission line ROW. A new ROW will be required here. In this area, the corridor is 200 feet wide, is centered on Green Meadows Road, and includes the roadbed of Green Meadows Road within its boundaries. The land uses on the west side of Green Meadows Road are primarily agricultural. On the east side, there is some vacant land, some agricultural land, and some low-density residential land use, perhaps with a density of five residential units per acre. (During the public hearing, there was testimony that there are approximately five residences on Green Meadows Road.) Other than the isolated freshwater marsh along the southwest side of Green Meadows Road, the agricultural and residential areas along Green Meadows Road are of little or no ecological value. Intervenor, Kenneth E. Smith, owns a home on the east side of Green Meadows Road. Mr. Smith expressed concern about the aesthetics of the transmission line, property values, the potential proximity of the line to his home and potential health risks associated with the line being nearby his home, and emergency evacuation if an extreme event brought down one or more transmission structures. Mr. Smith suggested that the FPL line be “co-located to existing facilities” and not along Green Meadows Road. Lines of similar design to the COR #3 Line exist in all types of land uses throughout Florida. The National Electrical Safety Code (NESC) governs the proximity of transmission lines to structures, and FPL has committed to comply with that Code. In emergency situations where there is a concern that evacuation could be hampered, residents have the option to go to a shelter established within the County for such purposes. Moreover, FPL has agreed to a condition of certification that requires it to finalize a route that minimizes potential adverse impacts to the existing residences on the east side of Green Meadows Road by locating the transmission line on the west side of the road to the extent practicable. (Joint Exhibit 5A, p. 11, Condition of Certification XVIII.E. See also March 17, 2004, draft of conditions, p. 11 and April 19, 2004, corrected conditions, paragraph E- “To the extent practicable, FPL must finalize a route that minimizes potential adverse impacts to the existing residential areas on Green Meadows Road by locating the transmission line on the west side of Green Meadows Road.”) At the public hearing, a property owner with mining interests on both sides of Green Meadows Road expressed support for placement of the COR #3 Line on the existing Common ROW. The same person is president of the Corkscrew Island Neighborhood Association, which is located in a rectangular area at the south bend in Immokalee Road, near Corkscrew Swamp and Bird Rookery Swamp to the west. See Finding of Fact 98. (See FPL Exhibit 4.) Along the FPL 500-kV Transmission Line ROW At the intersection of Green Meadows Road and the FPL Andytown-Orange River 500-kV 330 foot-wide transmission line ROW, the FPL Corridor turns southeast and runs along the 500-kV ROW for approximately 13 miles. In this segment, the FPL Corridor is 400 feet wide to include the existing FPL 500-kV ROW plus 70 feet to the north of that ROW. The land uses along this segment are primarily agricultural and some vacant land. The western portion of this segment (Lee County) of the FPL Corridor includes many natural areas; however, the wildlife habitats that actually occur on the FPL 500-kV ROW are shrub and brushland and some freshwater marshes. The eastern portion (Collier County) of this segment of the FPL Corridor is mostly citrus lands, which have very little or no value to wildlife. From the FPL 500-kV Transmission Line ROW to Immokalee Road At a point approximately two miles west of the intersection of SR 82 and SR 29, the FPL Corridor turns south and follows section lines and an existing LCEC 138-kV transmission line ROW for approximately six miles. In this six- mile segment, the corridor is 300 feet wide, centered on the LCEC transmission ROW, except in an area of development near Lake Trafford Road where the corridor is reduced to 200 feet to avoid intrusion into existing residential development to the west. About two miles north of Immokalee Road, the LCEC line turns to the east, but the FPL Corridor continues south to Immokalee Road. In this two-mile segment, the corridor is 500 feet wide. The land uses in this segment are primarily agricultural and vacant land, except in the vicinity of Lake Trafford, where there is residential development on the west side of the FPL Corridor around Lake Trafford Road. On the east side of the FPL Corridor, just north of Lake Trafford Road, there is a proposed Habitat for Humanity subdivision. See Finding of Fact 91. The portion of this segment north of Lake Trafford Road is largely citrus and residential lands, which have very little or no value to wildlife. South of Lake Trafford Road, the FPL Corridor crosses two small wetland systems that are a part of the Corkscrew Swamp System. The first of these is crossed in a location where the FPL Corridor is collocated with the LCEC 138-kV transmission line and access road. This prior disturbance has created a shrub swamp habitat in this wetland. (The “unnamed flowway” is located east of Lake Trafford.) Farther to the south along this segment, the FPL Corridor crosses agricultural lands and a narrow section of Baucomb Strand, which is primarily forested and somewhat undisturbed. (See FPL Exhibit 4.) BCC owns four sections of land along the north side of Immokalee Road, west of the intersection of Immokalee Road and the LCEC ROW in this segment. This property is within the Immokalee urban area, which allows for a more intense future residential use. See also Finding of Fact 2. At the public hearing, an officer of Habitat for Humanity of Collier County, Inc., expressed concern that placement of the COR #3 Line in this segment would preclude use of five lots within a proposed adjacent 165-lot Habitat for Humanity development. However, in this location FPL will collocate the COR #3 Line entirely within the LCEC easement, and there is not likely to be an impact on any of the proposed Habitat building lots. This segment of the FPL Corridor is within the territory of the LCEC. Currently, LCEC receives its electricity from FPL’s Buckingham substation, from which it serves about 29,000 of its customers on a radial line.10 If the COR #3 Line is located in this segment of the FPL Corridor, LCEC plans to construct a 230- to 138-kV substation in Collier County near the LCEC’s Immokalee substation to provide reliability looping to three of its four existing substations and two proposed substations in this portion of its territory. The proposed interconnection between the COR #3 Line and the LCEC system will also improve the reliability to its fourth existing substation by taking 20-30 miles off its single source line. Without looping of LCEC’s substations, if the source of power is lost at the FPL Buckingham substation or if LCEC’s radial line is taken out of service at any location, it would cause a blackout to the residents served downstream from that loss of service. Currently, there is no alternative source of power for LCEC’s substations. Along Immokalee Road to Orangetree Substation The FPL Corridor follows the Immokalee Road (County Road (CR) 846) alignment, turning west, south, and west again for approximately 15 miles to the Orangetree substation, which is located on the south side of Immokalee Road, just west of Wilson Boulevard in eastern Collier County. For most of this 15-mile segment, the corridor is 400 feet wide, centered on Immokalee Road, allowing collocation along either side of the road ROW. For the last two miles northeast of the Orangetree substation, while the corridor continues to include both sides of Immokalee Road, it is narrowed on the east side to exclude existing residential development and is 300 feet wide. This segment of the FPL Corridor traverses largely agricultural land, some low-density residential areas, and vacant land, some of which is a portion of the Corkscrew Swamp System proposed for acquisition as conservation lands. This crossing of Camp Keais Strand (a Cypress and freshwater marsh system) is designated as Save Our Rivers lands, and occurs where Camp Keais Strand is already impacted by the crossing of Immokalee Road. (See FPL Exhibit 4.) Along this segment of the FPL Corridor, there is little existing residential development. There is one planned residential area, the Orangetree and Waterways of Naples community, and the low-density development of the Golden Gate Estates subdivision that is a very large residential subdivision. The gross densities of these developments are .77 units per acre for Orangetree/Waterways of Naples, and .44 units per acre for Golden Gate Estates. Farther to the west, after Immokalee Road has turned to the south, the FPL Corridor crosses the eastern edge of Bird Rookery Swamp. It is in this location that a Cardinal Air Plant was observed on the west side of Immokalee Road. See Finding of Fact 269. FPL has agreed to Condition of Certification XVIII. that requires FPL to use all available means to locate the transmission line ROW to the east of Immokalee Road in this area. (Joint Exhibit 5A, Condition of Certification XVIII. F., p. 11.) To the east of Immokalee Road lie predominantly agricultural and developing lands, which have very little or no value to wildlife. Transmission Lines in Rural Areas CE offered testimony expressing concern for placement of the COR #3 Line in this rural area. However, transmission lines are common in such rural areas since these lines are used to: provide connections between urban areas, as would the COR #3 Line; interconnect systems of different electric utilities; transport power from power plants, which are often in rural areas, to where the electricity is used; bring electricity to processing facilities, such as phosphate and juice processing plants, which are also often in rural areas. In rural areas, transmission lines are commonly sited along rural roadways. At the public hearing, the president of the Corkscrew Island Neighborhood Association expressed support for placement of the COR #3 Line on the existing Common ROW. His concern with the FPL Corridor in this segment was the aesthetic impact on the rural area and the increased cost of using the FPL Corridor. See also Finding of Fact 82. Plans for Future Development Adjacent to the eastern area of this segment of the FPL Corridor, CE owns approximately 1,920 acres north of Immokalee Road and approximately 19,000 acres to the south of the road. See Finding of Fact 4. CE’s property, which is already bisected by Immokalee Road, is not subject to urban development, such as commercial, residential, industrial, or recreational development, except some lands are used for recreational hunting. The property is used for agriculture, water management and environmental uses. These lands are part of the Collier County Rural Lands Stewardship Area, within which a property owner may designate agricultural lands and sensitive habitats as sending areas to transfer development rights to other property, called receiving areas. (Mr. Conrecode identified land north and south of Immokalee Road until Oil Well Road, as holdings or parcels of concern. The uses are “primarily cattle grazing, vegetation grow crop production and environmental.”) CE is in the process of designating these lands, but has not yet decided which of this property to designate as sending or receiving areas. The rural character of this area may be short-lived, as CE plans to develop its property adjacent to this segment of the FPL Corridor within the next 5 to 10 years. Such development could include residential, commercial, industrial, agricultural, ecological, and mining and minerals extraction. One of CE’s goals is to maximize the potential return on its properties. CE is concerned placement of the COR #3 Line adjacent to its property would impact the viewscape of the Camp Keais flowway area, the access to its property from Immokalee Road, and its ability to use the 20+ mile-long Camp Keais natural environmental system as a visual amenity to other properties. (See FPL Exhibit 4 for the location of Camp Keais.) CE is also concerned that when it develops its land adjacent to the COR #3 Line it will have to spend money to buffer and offset the visual and perceived impacts to residents and other business uses in the area by installing berming and landscaping. In the eastern area of this segment, west of the lands referenced above that are owned by CE, BCC owns four square miles of property on the north side of Immokalee Road. See Finding of Fact 2. As noted herein, most of the BCC lands that border Immokalee Road are Stewardship Receiving Areas under the Collier County Comprehensive Plan. This land could receive future residential development up to a density of four dwelling units per acre. BCC anticipates this land will be developed (residential with commercial within the community) within the next 10-15 years. Incorporation of Existing 230-kV Line from Orangetree Substation to FPL Common ROW (Not To Be Certified) The COR #3 Line will incorporate an existing 230-kV transmission line from the Orangetree substation west along the north side of the Immokalee Road ROW, south along Collier Boulevard or CR 951, and then west following an existing FPL transmission ROW (with a single 138-kV transmission line within the ROW) to a point along the existing Common ROW at its intersection with Livingston Road, approximately 1.8 miles north of the Collier substation. Certification is not being sought for this segment of the line. Southernmost 1.8 Miles of Existing Common ROW The final segment of the FPL Corridor follows the easternmost 250 feet of the existing 405 foot-wide Common ROW from the western end of the Orangetree 230-kv transmission line, south to Collier substation. The corridor follows the west side of Livingston Road. The land uses in this area are primarily existing planned residential development. The urbanized character of this segment precludes the presence of any significant wildlife habitat in this area. DETAILED DESCRIPTION OF THE ALTERNATE CORRIDOR The Alternate Corridor is approximately 36.8 miles long and is proposed to lie generally in or adjacent to FPL’s Common ROW transmission corridor that runs between the Orange River and Collier substations. As described in more detail above, the Alternate Corridor will leave the Common ROW at the intersection of the Common ROW and Immokalee Road and proceed east along Immokalee Road across CR 951 to the Orangetree substation. Like the FPL Corridor, the Alternate Corridor will connect at the Orangetree substation to incorporate FPL’s new 14-mile long 230-kV line (currently under construction) to accomplish completion of the new 230-kV circuit from FPL’s Orange River substation to the Collier substation. Unlike the FPL Corridor, the Alternate Corridor was selected by the CE/BCC consultants without any public outreach to obtain input from the community.11 The consultants gathered information about the location of properties owned by CE and BCC. Other than the Grey Oaks Development adjacent to the existing Common ROW, which ROW is incorporated into the southernmost 1.8 miles of both the FPL Corridor and the Alternate Corridor, there is no CE or BCC property adjacent to or traversed by the Alternate Corridor. See Findings of Fact 2-5. During the public hearing, Collier County Commissioner Tom Henning stated, in part, that he “would have hoped” that CE and BCC would have had a public meeting in the community prior to selecting the Alternate Corridor like FPL had done when selecting its FPL Corridor. Utilization of the Existing Common ROW The BCC and CE Alternate Corridor exits the Orange River substation on the existing Common ROW and proceeds south approximately 30 miles to Immokalee Road. (See FPL Exhibit 4 and CE Exhibit 61.) The existing Common ROW within the Alternate Corridor is wide enough to accommodate at least two additional 230-kV circuits. This segment of the Alternate Corridor within the Common ROW traverses over nine miles of wetlands. See Finding of Fact 286. The specific number of acres of wetlands that may be impacted by placing the COR #3 Line in the Alternate Corridor is unknown. On-site wetland delineations would be performed, if the Alternate Corridor were chosen, to locate the jurisdictional limits of the wetlands. Specific pole locations and pad locations and sizing would need to be determined. Thereafter, impacts to wetlands would be determined. From a review of aerial photography it appears that the Common ROW has not been cleared from edge to edge and certainly not maintained routinely edge-to-edge. Some wetland vegetation clearing may be required in order to construct a new line on the opposite side of the existing poles if those are selected. Immokalee Road From Existing Common ROW to Orangetree Substation At the intersection of the Common ROW and Immokalee Road, the Alternate Corridor turns east and follows Immokalee Road approximately 8.5 miles to the Orangetree substation. (See FPL Exhibit 4 and CE Exhibit 61.) To provide for making the eastward turn at the intersection, the proposed Alternate Corridor is extended to 500 feet on either side of the centerline of the existing Common ROW from a point 1,000 feet north of the intersection of the Common ROW and Immokalee Road to the same intersection. From that intersection, the Alternate Corridor extends east to the Orangetree substation, along Immokalee road, at a width of 500 feet, north and south from the centerline of Immokalee Road (for a total of 1,000 feet in width). (See CE Exhibit 29, p. 2.) There are 20 planned residential communities and one section of the Golden Gate Estates subdivision along the Immokalee Road portion of the Alternate Corridor. The gross densities of these residential developments range from .51 to 12 units per acre on the north side of Immokalee Road, and from 2.11 to 12.84 units per acre on the south side of the road. On the north side of Immokalee Road, all but one of the residential developments has gross densities greater than one unit per acre. On the south side of Immokalee Road all but one of the residential developments have gross densities greater than three units per acre. There is one planned residential community that is actually developed into two communities, Orangetree (Orangetree and Waterways of Naples), and eight units of Golden Gate Estates residential subdivision located along the north or west and south or east sides of the Immokalee Road portion of the FPL Corridor. The gross density for the Orangetree planned community is .77 units per acre and .44 units per acre for Golden Gates Estates. See Finding of Fact 94. The land segment west of CR 951 is more urban and developed, as opposed to the land segment east of CR 951, which is more rural. Siting Constraints within Immokalee Road ROW There was diverging evidence on whether the COR #3 Line could be located and constructed within the Immokalee Road ROW along the ROW segment from the FPL Common ROW running east along Immokalee Road to the intersection of CR 951. During the public hearing, Donald Scott, the director of Collier County's Transportation Planning Department, testified and appeared in this capacity. He stated that Collier County is going to widen to six lanes, the portion of Immokalee Road from Livingston Road (the FPL Common ROW) to CR 951, i.e., a portion of the Alternate Corridor. (See FPL Exhibit 4 for the location of the road-widening project.) He also stated that the County has “some concerns with where the poles might possibly be placed in regards to utilities and other issues we’re dealing with within the corridor.” He wanted “to be on the record to raise our concerns - - and need for more work. [He understood] it can be within a wide corridor and it might not affect the road, but we have concerns with our widening, and would like to work with F.P.L. more and see if it’s even feasible.” Mr. Scott further explained: “The section from Livingston to I-75 will start construction by the end of this year. It’s about 90 percent design plans right now. The section from I-75 to County Road 951 is due to start 2006 with a design build.” Mr. Scott also stated: “We’re having a lot of problems particularly between Livingston and I-75.” During their case-in-chief, BCC and CE’s experts, Dr. Glover and Ms. Day, opined that the COR #3 Line could be located within the Alternate Corridor along Immokalee Road from the FPL Common ROW east to the intersection at CR 951. Dr. Glover opined, in part, that the COR #3 Line could be built on the north side of Immokalee Road, between the road and the SFWMD canal with good engineering practices. He based his opinion, in part, on the placement of an existing 230 kV line on concrete, single pole structures that start at the Orangetree substation and run westerly to Collier Boulevard (CR 951), located on the north side of Immokalee Road and south of the canal. Ms. Day thought that there may be room for the line within the 1,000-foot corridor. She was uncertain as to a specific location for the line within the corridor, but suggested that it would be the subject of more detailed studies. During rebuttal and in response to the testimony of Dr. Glover and Ms. Day that the COR #3 Line can be built in the Alternate Corridor segment as described above, FPL’s transmission line engineer, Mr. Hronec testified over objection that he was doubtful that the COR #3 Line could be built within the Immokalee Road ROW in this segment due to road widening plans and the presence of multiple underground utilities. (As discussed in more detail below, Mr. Hronec also opined that a line could not be located within the SFWMD canal north of Immokalee road.) His opinion testimony was based upon conversations with the Collier County Transportation Planning and Engineering Departments, a review of the County’s proposed road projects and plans to widen the segment, and personal observations of the segment. (As of FPL’s case-in-chief when Mr. Hronec testified initially, he had not studied the ROW to the west of CR 951 in the same detail as he had to the east of CR 951.) There are numerous utility facilities in place within Immokalee Road ROW in this segment of the Alternate Corridor, both north and south of the road pavement. There is also a generally continuous guardrail adjacent to the north side of the roadway. There appear to be guardrails on the south side of the road, but not continuous. By agreement of the parties, memorialized in the Order dated February 24, 2004, page 2, CE was authorized to file transcripts of deposition(s) in response to Mr. Hronec’s rebuttal testimony. On March 19, 2004, CE timely filed the transcript of the deposition of Mr. Conrecode. Mr. Conrecode, a Florida-registered Professional Engineer, was formerly the capital projects director for Collier County and the public works administrator for Collier County. In both positions, he had responsibility to design and plan the road network in Collier County as well as the construction of existing road facilities and new road corridors. He is also involved with other transportation-related entities. Mr. Conrecode reviewed Collier County’s plans for the widening of Immokalee Road within the Alternate Corridor. He also spoke with Clarence Tears, the director of the Big Cypress Basin, regarding the concerns of SFWMD. Mr. Conrecode opined that there was “substantial amount of space between the guardrail at the north side of the road and the top bank of the canal” to place the transmission line poles. (He also took into consideration the location of existing underground utilities.) He also stated, “the configuration on the north side of Immokalee Road is very similar to what FP&L encountered on [CR] 951 as they ran the connection from the Collier substation to the [n]ew Orange Street [sic] substation, the proximity from the top of the bank to the edge of the road.” Mr. Conrecode also opined that the transmission line could be located within the canal ROW north of the canal and on the south side of the canal. He felt that the area north of the canal had the best and most abundant access east of I-75, but that it was not the only engineering solution. He also opined that the transmission line could be placed within the SFWMD ROW, i.e., placed longitudinally in the SFWMD ROW, notwithstanding, Mr. Hronec’s testimony to the contrary. No persuasive evidence was offered regarding the specific setbacks required from the existing utilities, guardrails or pavement to establish the COR #3 Line in this area. DOT road-design standards would need to be consulted. Siting Constraints to the North of Immokalee Road ROW To the north of the Immokalee Road ROW between Livingston Road and CR 951, there is a SFWMD canal. Mr. Hronec opined that SFWMD prohibits construction of electric transmission lines longitudinally within their ROW (“works of the district,” here the canal). Florida Administrative Code Chapter 40E-6 pertains to the “works of the [SFWMD].” Florida Administrative Code Rule 40E-6.011(4) provides: “The District has determined that an unencumbered 40 foot wide strip of right of way, measured from the top of the bank landward, is required in order for the District to perform the required routine and emergency operations and maintenance activities necessary to insure flood protection to the entire community. In this 40 foot right of way, subject only to limited exceptions provided in this rule, the district shall not authorize any aboveground facilities or other encroachments.” (See Fla. Admin. Code R. 40E-6.121(2) and (6) and 40E-6.221(2); CE Exhibit 18.). The SFWMD published Volume V, “Permit Information Manual,” pertaining to “Criteria for Use of Works of the District,” September 15, 1999 (Manual). Regarding “Transmission Lines,” the a portion of the Manual provides: “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.” The SFWMD also provides for five operational zones described in the Manual at page 28 and Florida Administrative Code Rule 40E-6.011(7), Figure 1, pertaining to Zones 1 through 5 and providing distances from the canal channel and the top of the bank outward. (Zone one is the canal channel from the top of the bank to the opposite top of the bank; Zone two is the point on the ROW from a point five feet landward from the top of the bank; Zone three is between five and 20 feet landward from the top of the bank; Zone four is from 20 to 40 feet landward from the top of the bank; and Zone five is any ROW located further than than 40 feet landward from the top of the bank.) (See CE Rebuttal Exhibit 2.) Mr. Conrecode offered testimony regarding the potential placement of the COR #3 Line within the “Zones.” He observed that FPL, in its existing Orangetree line, has located the poles along CR 951 of the existing canal. No representative from the SFWMD testified in this proceeding. However, the Governing Board of the SFWMD adopted Resolution No. 2003-1207, and concluded that the Alternate Corridor “would not adversely impact the water resources and other matters with the [SFWMD’s] jurisdiction.” (CE Exhibit 18.) Also, several ROW conditions are attached to this Resolution, including the requirement that the permittee submit drawings “showing the proposed facilities for a determination of compliance with the requirements of Chapter 40E-6, F.A.C.” Id. at 8 of 19. (See also CE Exhibit 18, pp. 18 and 19 of 19, Land Management Footnotes (1)-(8).) Aside from the brief public hearing testimony of Mr. Scott, no representative from Collier County Transportation Planning Department, testified regarding the possible placement of the COR #3 Line north or south of Immokalee Road in the location of the Alternate Corridor. As noted, Mr. Conrecode opined, based upon conversations with Mr. Tears, in conjunction with his reading of the SFWMD rules and Manual provisions and Collier County plans for the area, that the COR #3 Line could be placed within the SFWMD canal ROW. Locating and constructing the line in this area would depend on locating the line with precision and then consulting with SFWMD staff. (See CE Exhibit 18.) In the areas north of the SFWMD canal, there are a number of places where development has already filled in up to and abutting the canal which may not leave room for placement of the COR #3 Line. It would be possible to construct portions of the COR #3 Line north of the SFWMD canal in the other areas where development has not yet filled in immediately adjacent to the canal. Several residents who live north of the canal in this segment of the Alternate Corridor, including the president of the Longshore Lake Homeowners Association (this subdivision is located a half of a mile east of the I-75 interchange on Immokalee Road (see FPL Exhibit 4), testified at the public hearing and expressed concern that the proposed transmission line might be placed adjacent to their existing development rather than in the largely undeveloped segment of the FPL Corridor along Immokalee Road. Siting Constraints to the South of Immokalee Road ROW The COR #3 Line might be able to be built on private easements adjoining the south side of Immokalee Road ROW, if private easements could be acquired. FPL’s transmission line engineer is concerned about the ability to acquire a private easement adjacent to the Immokalee Road ROW within the Alternate Corridor because a showing would be required in eminent domain proceedings that this is the best available route. Mr. Conrecode agreed that placing the transmission on the south side of Immokalee Road could be a problem in practice because of the locations of the existing ROW. He believes FPL would have to acquire additional ROW for the location of the poles. But, because of the adequacy of the ROW to the north side of the road, Mr. Conrecode believed that it would not be necessary to consider the south side of the road. Placement of the COR #3 Line on the south side of Immokalee Road would likely negatively impact many existing buffers and visual amenities as follows: The live oaks that presently buffer the Windsong Club Apartment townhomes from the road and existing distribution line, which goes along the south side of Immokalee Road in this area, would have to be removed or severely pruned. These townhomes face Immokalee Road and are set back only 20 to 30 feet from the sidewalk. Most of the trees and palms that presently buffer the Ibis Cove homes from Immokalee Road and adjacent distribution line would have to be removed. The backs of these homes are about 30 to 40 feet from the sidewalk. The Hong Kong orchid and sable palms that buffer the Pebblebrook Lakes homes from Immokalee Road and the existing distribution line would have to be removed. These homes are set back approximately 10 to 15 feet from the back of the property line. The developer of Saturnia Lakes previously paid to have the existing overhead distribution line on the south side of Immokalee Road buried for several hundred feet in front of its development. In addition to adding an overhead power line in this area, the vegetative area that presently buffers the Saturnia Lakes homes from Immokalee Road would also probably need to be greatly reduced. The Washingtonia palms and the large oak at the entrance to Heritage Greens would conflict with the COR #3 Line and would need to be removed. The pine trees in front of the Laurel Oaks Elementary School and Gulf Coast High School would be in conflict with the COR #3 Line if it were placed on the south side of Immokalee Road in this area. The street trees in front of two of the churches would probably have to be removed if the COR #3 Line were constructed on the south side of the road. Other Land Use Issues This segment of the Alternate Corridor conflicts with the two highest-ranking criteria for corridor selection identified in the results of the community survey conducted by FPL’s multi-disciplinary team during its route selection study-- avoidance of homes and schools. There are two schools, Laurel Oaks Elementary School and adjacent Gulf Coast High School, and three churches on the south side of Immokalee Road between the Common ROW and the Orangetree substation. (One parcel is being purchased for another school east of CR 951.) There is already a 230-kV transmission line on the north side of Immokalee Road from CR 951 east to the Orangetree substation. The structures for that line are not of sufficient strength to also support the COR #3 Line. If the COR #3 Line were built on the south side of Immokalee Road for this four- mile segment, there would be a transmission line on both sides of Immokalee Road. FPL’s experience has been that placement of a transmission line on both sides of a road is not supported by the community. Other Engineering Considerations Between the Common ROW and CR 951, it may be theoretically possible to cross back and forth across Immokalee Road in an attempt to avoid the proximate homes, churches and school sites on the south side, but such multiple crossings of the road may require taller structures to maintain required vertical clearances while crossing both the road ROW and the 100-foot-wide SFWMD ROW. If the crossings were not right angles, this configuration would require long expanses of conductor cables going over both the Immokalee Road ROW and the SFWMD canal, which would be undesirable. Such a zigzag configuration would also require approvals from SFWMD for multiple crossings of its canal in a short area. No credible evidence was offered to show whether approval could be obtained. Mr. Hronec did not believe this configuration would violate any local laws or ordinances of Collier County. A zigzag configuration may also require either guying or use of more substantial foundations to support the differential tension for structures where the conductors turned large angles, typically exceeding 10-15 degrees. This configuration is likely to create visual clutter, accentuating the visual impact of the line. The minimization of the number of crossings of a roadway or canal would be good engineering practice. This segment of the Alternate Corridor also presents the engineering challenge of crossing I-75 at an interchange in excess of 1,200 feet in width. DOT restricts the ability to place structures within the confines of such an interchange. Therefore, this crossing may require multiple elevated structures, the tallest of which could exceed 120 to 130 feet in height, to achieve the required vertical clearances of about 24 feet above the pavement. However, there is no rule that would prohibit the construction of the COR #3 Line in and adjacent to the interstate interchange. See Finding of Fact 253. Can the Alternate Corridor between the Common ROW and CR 951 accommodate the COR #3 Line? CE offered the testimony of Mr. Conrecode, and others, suggesting possible alternatives for the placement of the COR #3 Line in this segment of the Alternate Corridor. FPL offered credible rebuttal evidence. This segment of the Alternate Corridor may accommodate the COR #3 Line. However, the actual location and construction of the COR #3 Line within this segment of the Alternate Corridor presents significant engineering design and construction constraints and potential impacts upon the public for the reasons stated herein. See also Findings of Fact 226, 230, 252, and Endnote 17. Orangetree Substation to Collier Substation The southernmost portion of the Alternate Corridor between the Orangetree and Collier substations is identical to the FPL Corridor. WHETHER AND THE EXTENT TO WHICH EACH CORRIDOR WILL COMPLY WITH SECTION 403.529(4), FLORIDA STATUTES, CRITERIA Ensure Electric Power System Reliability and Integrity The Project Service Area is presently served by (a) three 230-kV transmission lines (a fourth 230-kV line runs from the Ft. Myers Power Plant to the Orange River substation) that run from the Orange River substation into the Project Service Area, two of which run directly to the Collier substation, and the third runs (loops) to FPL’s Alico substation and continues to the Collier substation; (b) three 138-kV lines that run from Ft. Myers Power Plant to the Project Service Area, generally in the western portion of the Project Service Area. See Findings of Fact 20-26. Whether the COR #3 Line is built in FPL’s Corridor or the Alternate Corridor will not change the electrical peninsula character of the Project Service Area because the area will still be fed from the north only. FPL has a responsibility to provide safe and reliable service to its customers. The provision of reliable electric service to its customers is important to FPL. In the past, FPL has consistently demonstrated the ability to plan a reliable electric system consistent with NERC and FRCC planning standards. Electric system reliability involves both the “adequacy” of the system to serve load (demand), and the “security” of the system to continue serving load, even after one system component is taken out of service. Electric system integrity requires having all elements of the electric system in service, protected from overloads or abuse. System integrity is closely related to system reliability. The NERC is a national organization that adopts standards for electric system planning and reliability that are used nationwide. The FRCC, which represents all of the investor-owned utilities, cooperative systems, municipal electric utilities, independent power producers and power marketers that operate in peninsular Florida east of the Apalachicola River, participates in the development of, and has adopted the national planning standards established by NERC for the reliability of electrical transmission lines. NERC’s planning standards, which are relied upon in the entire electric utility industry nationwide for the planning of new electrical transmission line facilities, address four transmission systems standards – normal and contingency conditions: Category A – all facilities in service and operating normally (voltages are appropriate) and no loss of load (customer electric demand or supply); Category B – a single element of the transmission system is out of service (also referred to as a “single contingency,” transmission system is stable, and no loss of load to customers; Category C – two or more elements of the transmission system are simultaneously taken out of service, transmission system required to achieve a stable operating state without overloaded transmission lines and with appropriate voltages and without cascading outages and with a variable loss of some customer load; and Category D – an extreme event resulting in two or more (multiple) elements being removed or cascading out of service. (FPL Exhibit 12, Table I.) Construction of the COR #3 Line in either the FPL Corridor or the Alternate Corridor would be consistent with the NERC planning standards. Similarly, whether the proposed COR #3 Line is located on the FPL Corridor or the Alternate Corridor, it will provide looping to the Orangetree substation.12 Looping of this substation will improve the reliability of electric service to customers served by the Orangetree substation because it will provide an alternate source of electricity that can sustain the substation in the event one source is taken out of service. The loss of the Common ROW has not been studied by FRCC as a Category D event. FRCC has studied extreme events, such as the loss of generating plants, e.g., Crystal River, St. Lucie, Turkey Point, and Martin, and the loss of 500-kV lines in Common ROWs. According to Dr. Glover, under NERC standards, a utility has the discretion to address a Category D event that does not result in cascading outages. But he was not aware of another utility applying a Category D event to other than cascading system-wide outages. FPL plans its system to withstand any single contingency without loss of load (loss of service) to any of its customers, consistent with the NERC planning standards. Category D events (extreme events) include the loss of multiple generating units at a single site, loss of a substation, loss of a transmission line with three or four circuits on it, and loss of all transmission lines on a common ROW. (FPL Exhibit 12, Table I.D.) Following a Category D extreme event, one would expect at least some of a utility’s customers to experience loss of electric service for some period of time. A utility is required by the NERC planning standards to ensure that a Category D event on their system does not result in cascading outages, where the outage spreads in a domino fashion and impacts other utilities’ systems. A “cascading outage” is an outage event that begins in one area but spreads to another area, causing outages in the second area. For example, an outage starting in another state and causing outages in Florida, or an outage starting in one Florida utility’s service area and causing an outage in other Florida utilities service area, is considered to be a “cascading outage.” The Project Service Area is an electrical peninsula and cascading of an outage to other areas is not likely. A loss of a substantial electrical load in a large area caused by a single event taking multiple electric system elements out of service, even if it does not result in cascading outages, is also classified as a Category D event. Under the NERC planning standards, although a utility is not required to evaluate all Category D extreme events, a utility must exercise its judgment as to which extreme events it will evaluate and which non-cascading Category D events it will institute actions to mitigate. (See FPL Exhibit 12, Footnote e to Table I.D. of the NERC Planning Standards which states: “A number of extreme contingencies that are listed under Category D and judged to be critical by the transmission planning entity(ies) will be selected for evaluation. It is not expected that all possible facility outages under each listed contingency of Category D will be evaluated.”) Allowing some customers to temporarily lose their electric service (referred to as “load shedding”) is an acceptable practice when needed to preserve reliability to the remainder of a utility’s customers. Electrical Vulnerability of Project Service Area There are types of extreme single events that can take all of the transmission lines out of the service on the Common ROW including hurricanes, tornadoes, wind-blown debris, plane crashes, wildfires, vandalism, sabotage and terrorism. The Common ROW in the Project Service Area is vulnerable to several extreme events that could take out of service all the transmission lines within that ROW. For example, there are five airports (including the Southwest Florida International Airport, approximately one mile from the FPL Common ROW) in the vicinity of the Common ROW, resulting in a potential for plane crashes. Portions of the Common ROW go through undeveloped areas where wildfires could cause an outage, as has happened on other FPL common ROWs. While no outages of the lines on the Common ROW have been caused by tornadoes or hurricanes since 1989, these types of weather events occur in the Project Service Area.13 These weather events and associated large wind-blown debris can also result in a complete outage of lines on a common ROW. While FPL cannot control the frequency of Category D events that can result in a common ROW outage, it has some control over the duration and consequences of the outage. Due to the electrical peninsula nature of the Project Service Area, an electrical outage caused by an extreme event affecting the Common ROW would last as long as it took to repair the damaged lines because there is no other way to deliver electricity to FPL’s customers in the south end of the “peninsula.” If a transmission line is damaged by an extreme event like a plane crash, hurricane, tornado or sabotage, depending on the severity of the event, all of the phases of construction required for a new transmission line, other than possibly surveying, may be required to reconstruct the damaged line. Depending on the severity of the damage, an extreme event damaging all of the transmission lines on the Common ROW could result in hundreds of thousands of FPL customers being out of service for approximately two to six days.14 See Finding of Fact 297. (Mr. Armand testified, in part, that FPL’s assertion of an outage lasting up to six days is “totally unrealistic.” He believed that there is a very small probability of a corridor outage in the Common ROW with the COR #3 Line located in it, and that if there were to be such an outage, it would be less than 12 hours in duration, i.e., to get one line operational. See Finding of Fact 296.) Even though FPL is recognized as an industry leader in service restoration efforts, and it has in place an emergency response plan to restore structurally damaged transmission facilities in the Common ROW, it may take a minimum of two days to get the first damaged circuit back in service, depending on the extent of the damage. Reliability Enhancement from Geographic Separation Placement of the COR #3 Line on a geographically separate ROW like the FPL Corridor spreads the risk and lowers the likelihood that all 230-kV lines serving the Project Service Area would be taken out of service by a single event. While outages of all transmission lines on common ROWs (Category D events) are a relatively rare occurrence, they do occasionally occur. (FPL Exhibit 11.) It is difficult to establish with any degree of certainty a mathematical probability of such a Category D event occurring. Since 1985, FPL has experienced 12 events where all transmission lines on a common ROW on its system have been taken out of service due to hurricane, tornado, birds, plane crash or wildfire.15 (FPL Exhibit 11.) (In 1977, FPL experienced an outage on the Andytown line.) See Findings of Fact 295-297. The typical corridor outage is of relatively brief duration. Of the 13 corridor outages reported in FPL Exhibit 11 and BCC Exhibit 7, several were 16 or fewer minutes in duration. The Turkey Point Corridor suffered a 120-hour outage as a result of Hurricane Andrew and, as a result of the hurricane, FPL experienced transmission line “outages in a large area of Dade and Broward Counties.” While not accounting for all reported corridor outages, other corridor outages lasted approximately 11 hours (Volusia-Smyrna #’s 1 and 2 115-kV (plane)) and approximately 17 and 10 hours (Duval-Thalmann 500-kV and Duval- Hatch 500-kV, respectively (plane)). Except for the outage occurring in the Turkey Point Corridor that has seven 230-kV lines, there have been no transmission line corridor outages involving four or more transmission lines. There have been no reported common corridor outages in the Common ROW or the Project Service Area. There are many reported single-transmission line outages within the Collier-Orange River Corridor, but none attributable to a plane crash, hurricane, or tornado. Many of the reported transmission line outages in the Collier-Orange River Corridor have been attributed to unknown causes, equipment failures, foreign interference, lightning, birds, and human elements (other than vandalism). In the Collier-Orange River Corridor, there have been eight line outages on six different days caused by fire and one outage due to vandalism. (BCC Exhibit 5-(1989-2003).) When planning a transmission line system in Florida, the loss of all transmission lines in a common ROW is one of the probable extreme events that should be evaluated. The loss of an entire generating plant is another. All of the 230-kV transmission lines on the Common ROW are on two structures for much of its length. In these places, an extreme event would only have to destroy two structures to take all of the 230-kV lines on the Common ROW out of service. Guide G6 in NERC’s planning standards, which represents a good planning practice, provides that the transmission system should be planned to avoid excessive dependence on any one transmission circuit, structure, ROW or substation. Guide G6 is a reasonable basis to plan a new ROW geographically separate from an existing ROW that already contains multiple transmission line circuits. Similarly, the FRCC crisis response plan identifies physical security measures for which utilities should plan to enhance the reliability of Florida’s transmission system. These physical security measures were adopted following September 11, 2001. That plan recommends that utilities consider not placing too many transmission lines on a common ROW because of terrorist-type threats, sabotage, or disgruntled employees. Minimizing risk to infrastructure is also consistent with the planning philosophies of homeland security. Deterministic vs. Probabilistic Contingency Assessment In the context of contingency assessments for transmission lines, two types of evaluations are possible: deterministic and probabilistic. When using a deterministic evaluation, a utility determines whether an event can occur and, if so, the consequences of that event. If the consequences are severe, the utility evaluates the steps it could take to mitigate the adverse effects. When using a probabilistic evaluation, a mathematical computation is used, based on historical data. This method is used when, for example, calculating the probability that all generators in Florida might not meet future loads in the future. NERC’s planning standards do not require a probabilistic evaluation when assessing Category D contingencies. The president of FRCC, Mr. Wiley, is not aware of any utility using a probabilistic evaluation for transmission line planning in his forty years of experience. In planning the COR #3 Line on a geographically separate ROW, FPL used a deterministic evaluation. FPL determined that an extreme event could cause an outage of all lines on the Common ROW, and that the consequences of such an outage were severe enough to warrant looking for a geographically separate ROW. If an extreme event like a plane crash takes out of service all of the transmission lines on the existing Common ROW, leaving the COR #3 Line undamaged on a geographically separate ROW within the FPL Corridor would allow FPL to restore service to about 60 percent of the demand in the Project Service Area in the worst case. With the available electricity, FPL could direct power to circuits with critical facilities within the Project Service Area, such as hospitals, police stations and fire stations, and rotate the blackout among many of its other customers until the damaged lines were reconstructed. Alternatively, if the COR #3 Line were placed on the existing Common ROW and all of the transmission lines on the ROW were taken out of service by an extreme event, FPL would only be able to serve about 25-30 percent of the load in the Project Service Area through the 138-kV transmission network until the damaged lines were rebuilt. In such an event, there may not be enough electricity to energize all of the feeders that serve critical facilities in the Project Service Area. Further Justification for Geographic Separation The “not-in-my-backyard” approach of many landowners is a well-known impediment to transmission line construction, and obtaining property rights for new transmission lines is becoming increasingly difficult. Getting land for a new transmission line ROW is more difficult when development has already occurred than when land is still relatively undeveloped. The population and demand for electricity in the Project Service Area are both growing rapidly. FPL projects there will be a need to add more transmission lines to bring power into the Project Service Area within the next 10 to 15 years. Even though there is room on the existing common ROW to accommodate the addition of at least two new transmission circuits (one on the existing COR #2 structures and one on new structures), it is prudent for FPL to establish a geographically separate transmission line ROW in the Project Service Area for the COR #3 Line before future development makes it more difficult to do so. The Common ROW between the Orange River and Collier substations is the only common ROW on FPL’s system with no generating plant connected on each end. For all the other FPL common ROWs, if there is an extreme event that takes out of service all the lines on that ROW, the resulting outage will last only as long as it takes to redirect power from FPL’s fleet of generators. In the Project Service Area, there is currently no way other than the Common ROW to adequately feed the significant electrical demand in the Naples area. Thus, an outage in the Project Service Area caused by an extreme event on the Common ROW would last as long as it took to repair the damaged lines, which could take several days. Collier County’s Director of Emergency Management testified that, in his opinion, it is simple common sense planning to provide as much separation as possible between the COR #3 Line and the other 230-kV lines on the Common ROW. It is highly unlikely that an extreme event would affect both the Common ROW and the COR #3 Line on a geographically separate route. Thus, the geographic separation would enhance the ability to restore electric service to the community. The FPL Corridor also facilitates the timely provision of reliability looping to LCEC’s existing and future substations. If the COR #3 Line is not built in the FPL Corridor, this reliability looping would be farther in the future and it would cost substantially more to achieve because of the increased distance between the LCEC system and the closest point on the Alternate Corridor. Other Projects that Might Improve Reliability of Electric Service in the Project Service Area Rejected BCC offered testimony suggesting FPL has the option of upgrading its 138-kV transmission system located to the west of the Common ROW to 230-kV facilities in the Project Service Area rather than building a new 230-kV line. In making this suggestion, however, BCC’s witness assumed, and concluded, that there would be physical space to accomplish such an upgrade. (He had not inspected all of the existing 138-kV facilities in this area.) FPL’s transmission line engineer noted that a number of the existing 138-kV substations on that system have insufficient physical space to allow for the conversion, although he did not recall which substations are physically incapable of expansion to accommodate the conversion. No persuasive evidence was offered by BCC to explain how the electrical demands in the area could be met while the lines were being reconstructed. As another alternative for eliminating the peninsula effect, BCC suggested that FPL could have resolved its reliability concern and eliminated the electrical peninsula nature of the Project Service Area by installing generation capacity in that Area.16 But this option was one of the alternative projects considered by the PSC in the need proceeding for this project, and it was rejected. FPL has not pursued a suggested option to relocate the transmission lines off of common ROWs to increase reliability on its common ROWS outside the Project Service Area because they all have generation on both ends, allowing FPL to feed demand using generation facilities even if all the lines on a common ROW are out of service. Here, while FPL is not proposing to “relocate” a line off the Common ROW, it is proposing to take advantage of the fact that a new line is needed by constructing it off the Common ROW, achieving the same result suggested by this option. BCC appears to be concerned that use of either the FPL Corridor or the Alternate Corridor for the COR #3 Line will increase the percentage of transmission capacity in the Project Service Area that comes through the Orange River substation. Although BCC offered testimony that loss of the Orange River substation would result in similar numbers of customers being out of service as a Common ROW outage, FPL’s decision to not duplicate that substation facility is reasonable. Duplication of the Orange River substation would probably be too expensive, although the specific amount is uncertain. Also, while a transmission line is a linear facility, a substation is a finite location, resulting in much less exposure to an extreme event. Moreover, substations are very robust facilities that are able to withstand higher wind and mechanical forces, and are less vulnerable to wildfires than transmission lines. For all these reasons, a complete outage of the Orange River substation is less likely than an outage of all the lines on the Common ROW. FPL’s Judgment to Seek a Geographically Separate ROW Consistent with Prior Action This is not the first time FPL has decided to seek a geographically separate route for a new transmission line even though space was available on a common ROW. On one other occasion, FPL chose to locate a transmission line on a geographically separate route from an existing common ROW where there was room to accommodate the new line. FPL made that decision for geographic separation for many of the same reasons it is seeking a geographically separate route for the COR #3 Line. FPL lost all three lines in the common corridor that resulted in a complete blackout and no amount of load shedding could arrest the frequency decline and prevent the blackout. In that instance, after a 500-kV common ROW outage caused an electrical outage in South Florida for over three hours, FPL chose to put its next 500-kV transmission line on a geographically separate route. FPL’s service area generally covers the eastern half of the Florida peninsula and southwest Florida. FPL has approximately 15 common transmission line corridors of varying lengths that have at least the transmission line capacity of four 230-kV lines. The total transmission line capacity of these corridors ranges from four 230-kV lines to as many as nine 230-kV lines, as well as (a) two 500-kV lines and three 230-kV lines; (b) three 500-kV lines; and (c) one 500-kV line and seven 230-kV lines. FPL has installed new 230-kV transmission lines in common corridors since 1992. FPL is planning to add additional generating capacity at its Martin generating station and an additional 1,100 MW of capacity at its Turkey Point station. It does not appear that FPL has relocated any of the 230-kV lines out of the Turkey Point corridor in order to achieve geographic diversity. CE and BCC suggest that the current state of FPL’s corridors and generating plants described above is inconsistent with FPL’s Corridor. All of the reasons for FPL’s decisions to plan and construct and add to the facilities noted above are not apparent in this record. However, the unique nature of the Project Service Area, in part, distinguishes FPL’s plans to locate the COR #3 Line in FPL’s Corridor from other projects. Geographic Separation Appropriate for COR #3 Line The contingencies that FPL addressed in its evaluation of the reliability of the proposed COR #3 Line Project were reasonable and appropriate under the NERC planning standards. Given the electrical peninsula nature of the Project Service Area, it is prudent to locate the new COR #3 Line on a route that is geographically separate from the existing Common ROW to enhance reliability for the customer. Construction of the COR #3 Line in the FPL Corridor would provide greater system reliability and integrity for FPL’s customers. Use of this geographically separate ROW would mitigate the possibility of all transmission lines on the Common ROW being taken out of service simultaneously and leaving a substantial percentage of FPL’s customers in the Project Service Area without power for an extended period of time. Construction of the COR #3 Line on a geographically separate ROW, such as the FPL Corridor, is prudent and will ensure electric system reliability, integrity and service restoration. Meet the Electrical Energy Needs of the State in an Orderly and Timely Fashion The PSC recognized that FPL’s planning studies indicate that the COR #3 Line is needed by December 2005 to alleviate potential overloads and low voltage conditions from a single contingency event. The COR # 3 Line can be constructed in either the FPL Corridor or the Alternate Corridor and meet the requirements set forth in Finding of Fact 47, except as otherwise noted herein regarding the potential significant constraints to locate and construct the COR #3 Line within the Alternate Corridor between the Common ROW and CR 951 along Immokalee Road. Location of the COR #3 Line on either the FPL Corridor or the Alternate Corridor would meet the electrical energy needs of the state in a timely fashion in that the single-contingency planning criteria established by NERC will be met. However, the FPL Corridor would meet the electrical energy needs of the state in a more orderly fashion than the Alternate Corridor because: The Project Service Area is a fast growing area of the state and new distribution substations will likely be required in the eastern portions of Lee and Collier County. Those future substations can be fed more efficiently from the FPL Corridor than if the COR #3 Line is placed on the existing Common ROW and long east- west transmission lines (similar to the Immokalee Road segment of the Alternate Corridor) are required to feed those substations. In transmission line siting, it is easier to locate a new transmission line in an area before it becomes developed. The Alternate Corridor incorporates a 4-mile stretch of Immokalee Road that is already densely developed. In contrast, much of the FPL Corridor’s route is presently undeveloped or agricultural in nature. Both CE and BCC acknowledge plans to develop their lands adjacent to Immokalee Road along the FPL Corridor within the next 10 to 15 years. While there is space on the Common ROW for placement of additional 230-kV transmission lines that may accommodate electric demand for another 29 to 44 years, it is not prudent to wait that long to establish a geographically separate ROW. By that time, CE and BCC plan to have developed their lands and it is not unreasonable to expect that the then-existing residents and businesses on that eastern stretch of Immokalee Road will be in the same position as those currently located along the western stretch of Immokalee Road within the Alternate Corridor. These residents will be occupying development in place that has not been planned to accommodate an adjacent transmission line. Comply with the Nonprocedural Requirements of Agencies The location, construction, operation, and maintenance of the COR #3 Line in either the FPL Corridor or the Alternate Corridor could comply with all applicable nonprocedural requirements of agencies. The segment of the Alternate Corridor between the Common ROW and CR 951 may accommodate the location and construction of the COR #3 Line, subject to the significant engineering design and construction constraints discussed herein. See Findings of Fact 120-156, 226. Be Consistent with Applicable Local Government Comprehensive Plans The location, construction, and maintenance of the COR #3 Line in either the FPL Corridor or the Alternate Corridor will be consistent with all applicable provisions of local government comprehensive plans. The COR #3 Line ROW will be established through the grant of approval from an existing ROW owner or FPL’s acquisition of an easement or fee simple interest in property. These acquisitions can be through purchase, eminent domain, or by grant. No segment of the COR #3 Line will be constructed until the ROW for that segment has been established. The Lee County Comprehensive Plan is essentially silent on transmission lines as a land use. There are two potentially applicable policies in the Comprehensive Plan of the City of Fort Myers. One indicates that land should be provided for utilities, and the other explicitly provides that the City’s land development regulations shall only permit, among other identified uses, utility lines, poles, and/or pipes in wetland areas. In the Collier County Comprehensive Plan, essential services (which include transmission lines) are permitted uses in all future land use designations crossed by the FPL Corridor or the Alternate Corridor. Similarly, Section 2.6.9.3 of the Collier County’s Land Development Code exempts “structures supporting lines or cables” from the regulations. Effect a Reasonable Balance Between the Need for the Transmission Line as a Means of Providing Abundant Low-Cost Electrical Energy and the Impact Upon the Public and the Environment Resulting from the Location of the Transmission Line Corridor and Maintenance of the Transmission Lines In determining whether it is practicable to locate the COR #3 Line on a route that is geographically separated from the existing Common ROW, three relevant factors to consider are the costs of the geographically separate route, the benefits of that route, and the technical ability to construct the COR #3 Line on the alternative route. The need for the COR #3 Line is not disputed. All parties agree that reliable electric service is desirable. The type of transmission line design proposed for the COR #3 Line occurs in all types of land uses throughout Florida. By collocating the new line with existing linear features, such as roads, property boundaries and other transmission line ROWs, both the FPL Corridor and the Alternate Corridor conform to the existing patterns of land development, and will consolidate land use/environmental impacts to a single area, as opposed to locating the new line in a non-collocated alignment. Collocation also reduces the amount of new ROW needed. For example, next to a road, the new line will only need a ROW that is up to 15 feet in width, whereas up to a 60-foot ROW is required where the line is not collocated with an existing linear feature. Impact Upon the Public Two priorities expressed by the community in the Project Service Area during the public outreach activities were the minimization of impacts to homes and schools. The FPL Corridor minimizes impacts to existing homes by following a route where there is little residential development and where planned residential development is low density. There do not appear to be any schools within or adjacent to the FPL Corridor, although the Collier County School Board is in the process of acquiring land on the south side of Immokalee Road approximately three miles east of CR 951 and west of the Orangetree substation. (See FPL Exhibit 6-5, proposed site designated with a circle.) Intervenor, Kenneth E. Smith, whose residence is located on Green Meadows Road along the FPL Corridor, expressed concern about the potential for health effects from electric and magnetic fields. See also Findings of Fact 11 and 80. BCC’s representative, Thomas W. Sansbury, is employed by the Grey Oaks Development Corporation as its president; Grey Oaks Realty Corporation as its president and broker of record; and Grey Oaks Community Services. The Grey Oaks community is on the west side of Livingston Road and near the Collier substation. (FPL Exhibit 4.) (A member of the board of BCC owns Grey Oaks Development Corporation and Grey Oaks Community Services.) Mr. Sansbury has extensive experience in the sales, management, and operations of developments. He also advised that there is sales resistance when developments are close to or adjacent to transmission lines. He advised of the need and cost for buffering of properties that are nearby transmission lines. Mr. Sansbury also believed that BCC has the ability to plan and develop other commercially successful developments (like Grey Oaks, for example) that are adjacent to other transmission lines. He also expressed concern about the public’s perception of effects from electric and magnetic fields and sales resistance he has received from being close to or adjacent to transmission lines. Mr. Sansbury, who served on the Environmental Regulation Commission when the DEP’s rule limiting the electric and magnetic fields associated with electric transmission lines and substations were adopted, agreed that the experts who testified at the Commission’s hearings around the state supported a determination that there is no conclusive evidence that there is any danger or hazard to public health at the 60 Hertz electric and magnetic fields found in Florida, although he stated that typical buyers do not support such a determination. The COR #3 Line will comply with the standards adopted by the DEP, limiting the electric and magnetic fields associated with transmission lines in all areas of the FPL Corridor. The Alternate Corridor along Immokalee Road (from the Common ROW to CR 951) is adjacent to high-density residential development and two existing schools. See Finding of Fact 242. Yet, avoiding homes and schools are high priorities in this community. There are several techniques that can be used to lessen the potential impact of an adjacent transmission line on development. They include the installation of an earth berm and/or landscaping to buffer the development from the transmission line; alignment of residential units so the living space at the rear of the homes are faced away from the line; and the placement of lesser-valued or non-residential units, like golf courses and commercial uses, closest to the line. It is easier to implement these mitigation techniques prior to development taking place or prior to development being planned and approved, than after the development is complete or approved. From a land use perspective, the Common ROW portion of the Alternate Corridor is suitable for the placement of the COR #3 Line. Also, from a land use perspective, the FPL Corridor from the Orange River substation south to its intersection with Immokalee Road is similar in land use impacts to the portion of the Alternate Corridor on the existing Common ROW north of the intersection with Immokalee Road. In these areas, both corridors follow existing linear facilities and are suitable for location of the COR #3 Line from a land use perspective. (See, e.g., FPL Exhibit 4.) Aside from some environmental area issues discussed herein, the main difference in land use impacts between the FPL Corridor and the Alternate Corridor occurs along their two different Immokalee Road segments. There is little existing development in the FPL Corridor along Immokalee Road (east of CR 951), whereas the existing residential and commercial development in the Alternate Corridor between the Common ROW and CR 951 is quite extensive. Placement of the COR #3 Line in the Alternate Corridor along Immokalee Road between Livingston Road (which is just east of the Common ROW) and CR 951 would have more significant impacts on residential areas than placement of the line within the FPL Corridor. The existing residential development within the Alternate Corridor in this area is much higher density, and the FPL Corridor provides greater opportunity for future development to accommodate or plan around the line as an existing feature. In addition to the existing residential development along Immokalee Road within the Alternate Corridor, several other developments are already planned and have received at least some of their approvals. Also, to place the COR #3 Line in the Alternate Corridor along Immokalee Road between Livingston Road and CR 951, a zigzag configuration may be required. See Findings of Fact 150-153. This zigzagging would create visual clutter, whereas placement of the line in the FPL Corridor parallel to a road would allow the line to blend into the other linear elements and not predominate. While construction of the COR #3 Line in the Alternate Corridor could comply with applicable standards as listed in Finding of Fact 47, compliance with good engineering practices may be difficult to achieve along the segment of Immokalee Road within the Alternate Corridor because of the uncertainty of where the COR #3 Line can be located and the constraints discussed herein. See Finding of Fact 156. The crossing of I-75/Immokalee Road interchange within the Alternate Corridor without placement of structures within the DOT I-75 interchange, may require the use of multiple elevated structures, some of which might exceed 120 feet or 130 feet in height to achieve the appropriate vertical clearances over the elevated roadway. See also Finding of Fact 154. CE offered testimony that the COR #3 Line could have a negative impact on the quality of a car trip to the vehicle’s occupants. Yet there are between two and three times the number of vehicles each day on the segment of Immokalee Road traversed by the Alternate Corridor, compared to the segment in the FPL Corridor. Along Immokalee Road, the FPL Corridor is a better choice than the Alternate Corridor from a land use planning perspective. In planning future development land holdings of CE and BCC, CE and BCC would have the flexibility to install berms and landscape materials to buffer future development from the COR #3 Line and Immokalee Road. Both CE and BCC have experience buffering development from transmission lines and achieving a commercial success with such development. Evidence presented by BCC of the potential for the COR #3 Line to impact the “sales velocity” (speed with which a residential lot or home sells) and property value impact to its lands along the FPL Corridor has some merit but is not persuasive. When selling homes in Collier County, the preferred orientations that affect values of homes in Collier County are to have the living space facing west, toward a golf course or water. The two villa properties used for comparison in this testimony are not comparable to one another from a landscape architecture perspective. The Muse villa properties are on the eastern portion of the Grey Oaks community and are buffered from the FPL ROW by a buffer area, landscape berm, and roadway. The units are faced away from the ROW. The Muse contains approximately 26 residential units of 2,600 to 3,000 square feet. The Santiva community has similarly sized and number of units and is on the east side of Airport-Pulling Road (western border of the property) and buffered from this road by a canal, a berm, and a road. The Santiva units sold out are essentially one year and six months while the Muse units, which buffered the power lines sold out in approximately three years. While the villas (The Muse) that sold more slowly face west and are adjacent and west of Livingston Road along the Common ROW, the view from the living space is over a single golf hole, whereas the villas (Santiva) that sold more quickly have a view of both a lake and several golf holes. Accordingly, the villas that sold more quickly are more desirable from a landscape architecture perspective because of the lot layout. Also, the villas that sold more quickly were in a later phase of the development that occurred after the development had already achieved a good reputation in the community. Nevertheless, the units that do not border on a transmission line are more desirable and valuable than those that are adjacent to a transmission line in this area. Also, utilizing golf holes as a buffer increases the cost of the development. Evidence was also presented regarding property value impacts and sales velocity regarding the estate homes section (on Dalia Way) lots on two sides of the street. The homes that face east on the right side of the street, and were buffered from multiple transmission lines on the existing Common ROW by a golf hole, sold for less and more slowly than the homes that faced west on the other side of the street. Part of the differential between the lots was because of the favorable western view. Mr. Stansbury observed that the prices of the lots facing the transmission lines were approximately 15 percent lower than the others. In any event, there was no persuasive evidence presented that the impact to property value or sales velocity from the multiple transmission lines on a wide ROW in view of the eastern-facing estate lots is comparable to any impact from a single pole transmission line such as the proposed COR #3 Line. Immokalee Road is adjacent to the properties owned by CE and BCC and is an arterial roadway that is planned for future expansion to four or possibly six lanes. Even without a transmission line, both CE and BCC use earth berms and landscaping to buffer development from adjacent arterial roadways. Any impact to CE and BCC there that may result from their desire to buffer the COR #3 Line adjacent to Immokalee Road from their future development along the FPL Corridor is likely to be incremental in that CE and BCC would already be planning to buffer that future development from the arterial roadway. During the public hearing, several people inquired why the COR #3 Line would not be placed underground. The evidence shows that an underground configuration for the COR #3 Line is not cost-effective, and that repair times could increase from hours for an overhead line to days or weeks for an underground line. Impact Upon the Environment From an environmental perspective, the objective of the corridor selection process was to minimize crossings of the various land use and environmental siting constraints, as well as to maximize any collocation opportunities with existing linear facilities. As a result, the FPL Corridor is collocated with existing linear facilities for approximately 95 percent of its length. A new north-south transmission line corridor in this area of Florida cannot be established without crossing a significant wetland system. One major siting constraint in selecting a corridor from Orange River substation to the Orange Tree substation is the Corkscrew Swamp System. Avoidance of potential impacts to the Corkscrew Swamp System is the primary reason why the FPL Corridor extends so far to the east. Even the Alternate Corridor that uses the existing Common ROW crosses more than two miles of wetlands associated with the Corkscrew Swamp System. The Corkscrew Swamp System is a large ecosystem dominated by wetlands, primarily consisting of cypress wetlands. It also includes large expanses of pine flatwoods and other natural systems. Throughout the Corkscrew Swamp System, there are numerous endangered and threatened species. It is the home to some of the high-profile endangered species in the State of Florida, including the Florida panther, bald eagle, and black bear. (The Corkscrew Swamp Ecosystem is estimated to encompass approximately 64,500 acres.) The Corkscrew Swamp Sanctuary, a large Audubon-owned and managed wildlife sanctuary, and also a major tourist attraction in the area, is located in the area north of Immokalee Road and east of the big turn to the south. The FPL Corridor essentially avoids the Corkscrew Swamp System by going around it to the east of the System along the north-south section of Immokalee Road, touching it only on the edges where disturbances already exist, such as existing roadways and transmission lines. Since 95 percent of the FPL Corridor is collocated with existing linear facilities, already-existing access should be sufficient for construction and maintenance of the COR #3 Line in many areas. Where existing access is available, in some areas finger roads to the new structure locations may be required. This ability to use existing access in many areas will minimize the amount of filling required for this project. There are two locations within the FPL Corridor where the Sleeping Beauty Water Lily, a listed plant species, is known to exist. One of these locations occurs just west of the Orange River substation along the eastern edge of an existing citrus grove in an agricultural ditch, and the other location occurs in a roadside ditch along the south side of SR 82. In addition, the listed Cardinal Air Plant was observed to occur along the eastern edge of Bird Rookery Swamp and on the west side of Immokalee Road. (See FPL Exhibit 4.) They also could occur in other areas including other cypress trees along and outside the FPL Corridor. They are locally abundant. FPL has generally agreed to avoid the removal of listed plant species that occur on public lands and waters where practicable. Where such removal is unavoidable, FPL has agreed to abide by the mitigation or other requirements of regulatory agencies with jurisdiction over listed plants. In addition, FPL has specifically agreed to avoid through all available means, including the exercise of the power of eminent domain, placing the COR #3 Line on the west side of Immokalee Road where the land has been designated as Rural Fringe Mixed Use District Sending Lands by Collier County. (Joint Exhibit 5A Conditions of Certification, Section XVIII.F, p.11, Attachment 4.) This is the same area where the Cardinal Air Plant was observed to exist. As noted, the Corkscrew Swamp System is also home to endangered and threatened animal species, including the Florida panther. The Florida panther is one of the most endangered species in the State of Florida. The entire study area for the COR #3 Line is located in Florida panther habitat. The Florida Panther utilizes large expansive pine flatwoods and swamp systems and drainages to travel. Radio-telemetry has indicated the presence of the panther along Immokalee Road to the south of the Corkscrew Swamp System. By collocating along Immokalee Road in these areas, the FPL Corridor will not result in the removal of significant additional habitat that could be used by the Florida Panther, and will not increase the animal’s exposure to more human presence or vehicular traffic. The wood stork, the bald eagle, and the Florida Black Bear are also found in the vicinity of the FPL Corridor. The FPL Corridor avoids known wading bird breeding colonies, including wood stork breeding colonies. In addition, because it is collocated with existing linear facilities for approximately 95 percent of its length, the FPL Corridor is not likely to result in the removal of significant additional habitat that could be used by the wood stork. The construction and operation of the COR #3 Line in the FPL Corridor will have minimal adverse impacts on the wood stork. There are no known active bald eagle nests within one half mile of the FPL Corridor, although they could be observed throughout the study area and are likely to occur along the FPL Corridor. In addition, as with the wood stork, only minimal habitat that the bald eagle might use will be removed. The construction and operation of the COR #3 Transmission Line in the FPL Corridor will have minimal adverse impacts on the bald eagle. There have been black bear observations along Immokalee Road in the vicinity of the FPL Corridor, including, unfortunately, black bear mortalities. The black bear, much like the Florida Panther, utilizes large thickets and swamp systems and move several miles in a day. As with the Florida panther, by collocating along Immokalee Road in these areas, the FPL Corridor will not result in the removal of significant additional habitat that could be used by the black bear, and will not increase the animal’s exposure to more human presence or vehicular traffic. The construction and operation of the COR #3 Line in the FPL Corridor will not adversely affect the black bear. The FPL Corridor avoids and minimizes impacts to wildlife and wildlife habitats because the existing habitats along much of the FPL Corridor are already disturbed. In addition, by avoiding known locations of endangered or threatened species, and by collocating with existing linear facilities for approximately 95 percent of its length, the amount of additional clearing that will be required is minimized. Consequently, the construction of the COR #3 Line in the FPL Corridor will not adversely affect fish and wildlife resources and will not adversely affect endangered or threatened species and their habitats. There will be some fill required in wetlands for the construction and operation of the COR #3 Line in the FPL Corridor. Where the line must cross wetlands, FPL may have to construct access roads and pole pads in the wetlands to facilitate construction and maintenance of the new transmission line. FPL has agreed to follow a number of procedures to avoid and minimize the impacts from such fill in wetlands. First and foremost, the location selected for the FPL Corridor avoids numerous wetlands. Within the wetlands crossed by the FPL Corridor, wetland impacts will be minimized in the following ways: by careful alignment of the ROW, such as by taking advantage of upland islands located within these wetlands for pole locations where practicable, thus avoiding placing a fill pole pad in the wetlands; by incorporating the number and size of culverts necessary to maintain existing surface water hydrology and flow; and by minimizing the size of pole pads placed in wetlands based on site-specific conditions. In addition, FPL has agreed to remove existing exotic vegetation from the wetlands within the FPL Corridor. This will provide a benefit to those wetlands from which exotic vegetation is removed. CE offered testimony estimating that construction of the COR #3 Line in the entire length of the FPL Corridor would require the placement of 2.05 acres of fill in wetlands, with .75 acres through the construction of an access road to the Baucom Strand portion of the FPL Corridor (less than a mile north of the portion of Immokalee Road which turns north toward the LCEC 138-kV ROW) and another 1.3 acres by the placement of 25-fill pads in the remaining areas, e.g., four fill pads for the wetlands at the “unnamed flowway” located east of Lake Trafford on the LCEC 138-kV ROW; four structure pads for the entire length of Baucom Strand (assuming a continuous access road of 2,300 feet); seven fill pads at the Camp Keais Strand located over a mile west of the segment of Immokalee Road which turns west after leaving the LCEC 138-kV ROW; one fill pad at the “freshwater swamp” located on Green Meadows Road; and nine fill pads in the Bird Rookery Swamp area. (See FPL Exhibit 4.) Ms. Johnson (for CE) assumed that the power lines would be placed to minimize impacts to wetlands; the approximate spacing of the poles would be 700-foot maximum and that the pads would be 45 feet by 50 feet. Ms. Johnson stated that while the water management district employed her, permits were issued for projects with that amount or more of wetland impact, and agreed that it is possible for a project to include 2.05 acres of impacts to wetlands and still meet the permitting requirements. FPL offered rebuttal evidence regarding CE’s wetland impact analysis. Mr. Simpson opined, in part, that there might be approximately 1.23 acres of impacts to the areas described by Ms. Johnson. See Finding of Fact 281. FPL has agreed to appropriately mitigate for wetland impacts that cannot be avoided or minimized. CE also offered testimony that construction of the COR #3 Line on the Alternate Corridor would not cause any significant impacts to wetlands. Based on the National Wetland Inventory Data Base, there are over nine miles of non-continuous wetlands along the Alternate Corridor. However, there was no precise quantification of adverse impacts to wetland areas within the Alternate Corridor. Also, the evidence is inconclusive where the actual boundary of the CREW Trust Lands is in relation to the Alternate Corridor. It is difficult to determine at this stage of the siting process what the exact acreage of wetland impacts will be if the COR #3 Line is constructed in either the FPL Corridor or in the Alternate Corridor. Before wetland impact amounts can be calculated, site-specific wetland determinations would have to be made and site-specific pole placement and pad designs would have to be completed. The construction of the COR #3 Line in either the FPL Corridor or the Alternate Corridor will be consistent with the wetland regulatory standards applicable to such projects. (See also Joint Exhibit 9.) The Need for the COR #3 Line as a Means of Providing Abundant Low-Cost Electrical Energy The PSC determined that the COR #3 Line is needed, taking into account the factors set forth in Section 403.537(1)(b), Florida Statutes. In the need proceeding, the PSC considered several alternative projects, including four alternative transmission projects in the Fort Myers-Naples region and the construction of new generation facility near Naples. The PSC determined that “[t]he present value cost of the project proposed by FPL in a new right-of-way is estimated at between $32 million and $57 million, subject to final right- of-way routing and conditions of certification by the” Siting Board. According to the PSC, placement of the COR #3 Line in the existing Common ROW, “was the least cost alternative with an estimated net present value cost of $25 million,” or potentially costing up to $32 million less than a geographically separate route. However, the PSC found that “this alternative is not optimal due to concerns with serving an electrical peninsula via a single corridor and the inability for future expansion of FPL’s transmission system to the east of the existing corridor.” Stated otherwise, the cost to construct the COR #3 Line in the Alternate Corridor will be approximately $11 to $12 million less than in the FPL Corridor without consideration of placing the COR #3 Line on a separate pole line along the Common ROW with an estimated incremental cost of approximately $6.5 million above the previous estimate.17 The PSC also determined that “[t]he other four alternatives were either more costly (estimated net present value costs between $101 million and $138 million) or did not meet undervoltage and thermal overload conditions under all single contingency events.” (See Joint Exhibit 1, App. A pp.5-6.) The value of system line losses (lost energy) if the COR #3 Line is placed in the FPL Corridor would be between approximately $120,000 to $250,000 per year higher than if the Alternate Corridor is used. The benefits of placing the COR #3 Line in the geographically separate FPL Corridor are best understood in terms of the consequences to be mitigated or avoided in the event of an extreme event taking out of service all transmission lines on the Common ROW. While loss of all the transmission lines on a common ROW due to an extreme event (such as plane crash, wildfire, hurricane, tornado, wind-blown debris, vandalism, sabotage, or terrorism) is an unlikely event, it has happened at least 12 times on FPL’s transmission system since 1985, even though some of the total corridor outages have been of relatively short duration. See Findings of Fact 188-190. (See also FPL Exhibit 11; BCC Exhibit 7.) CE and BCC, through Dr. Glover and Mr. Armand, strongly contested the relative likelihood of such an extreme event and the extent of any outage, if the event occurred in the Common ROW. Dr. Glover concluded that the probability of a hurricane with sufficient force to disable all of the lines in the Common ROW would actually do so while not disabling another line located within a few miles of that ROW must be regarded as approximately zero, and the probability greater than zero regarding the impact of tornadoes, but still very, very small. He regarded the probability of a Common ROW outage due to a plane crash as very, very small or low, and due to terrorism as far-fetched and unrealistic at best. He further opined that transmission lines located in remote areas are more vulnerable to outages due to vandalism or sabotage as are the risks associated with wildfire. Mr. Armand opined that there would be a very small probability of a corridor outage on the Common ROW with the COR #3 Line located within it, and if there was, it would last less than twelve hours. He also stated that FPL’s assertion that an outage on the Common ROW could last up to six days was “totally unrealistic,” based, in part, on the devastation caused by Hurricane Andrew to the transmission lines at Turkey Point that took five days to restore. FPL’s experts opined that if the COR #3 Line were added to the Common ROW, and an extreme event occurred there, it could result in a 30-minute to five to six-day blackout affecting between approximately 376,000 and 600,000 people (less the population of the Project Service Area that may be served via the 138-kV transmission lines), as a worst-case scenario. (It appears that the population of the Project Service Area as of January 2003 was 594,900 with population growth expected to be 18,800 per year.) When an electrical outage occurs there are numerous adverse predicable consequences to the community. Traffic lights do not function and traffic accidents increase. Elevators get stuck. Fire alarm systems may become inoperable or may not operate properly. Response time for emergency vehicles is increased due to increased call volume and the emergency vehicles’ loss of preemptive control of traffic signals. Fire hazard is increased due to use of candles, fuel- powered lanterns, barbecue grills and improper fueling of gasoline-powered generators. Community wellness services, like Meals on Wheels and dialysis centers, are impacted. Medical emergencies increase due to injuries that occur during attempts to make emergency repairs, and the lack of light that results in more household accidents and affects the ability to mix and administer medications at home. Emergency management communications with the community regarding shelter locations, available retail operations for water, ice, emergency repair supplies, medicines, etc., are hampered due to many people not having adequate battery-powered receivers. Telephone communications are compromised due to many cordless phones not operating and cell phone batteries not being recharged due to the lack of electricity. There is no vertical water storage in Collier County; the pumping of potable water is mechanical and electrical. Pumps on private drinking water wells, most of which do not have back-up generators, do not function. Very few sewage lift stations have back-up power capability. Once those stations’ capacities are exceeded, effluent can spill outside the station into creeks and roadways, and backup into homes. Moreover, the Southwest Florida economy is dominated by hospitality and tourism-related organizations as part of its economic structure. These companies require continuous and reliable electric power in order to meet the needs of their clients and customers in the marketplace. Failure to have reliable electric power in the community, even for a brief period of time has significant impacts to business. By affecting traffic flow, a power outage hampers the ability of employees to get to and from work. During an electrical outage, a business is not able to operate and be productive as an enterprise because sales do not take place and services are not delivered. Typically, businesses affected by an electrical outage cannot operate. This, of course, affects the ability of that company to generate taxable sales and thereby erodes productivity in the community. FPL decided the consequences to the community in the Project Service Area of a widespread multi-day electrical outage would be too severe and, therefore, chose to seek a geographically separate route for the COR #3 Line to mitigate the impacts of such an outage. FPL’s decision is reasonable and is supported by the weight of the evidence. When the severity (length) and magnitude (number of people affected) of an electrical outage are relatively high, it does not matter that the risk is relatively low. From an emergency management perspective, it is worth providing redundancy to the transmission system and spreading the risk. Putting the COR #3 Line on the geographically separate FPL Corridor is somewhat analogous to a homeowner buying homeowner’s insurance. While the likelihood of any one home suffering a loss from fire, tornado, hurricane, or vandalism is also very low, a homeowner may decide it is prudent to spend money to purchase insurance if the potential loss they could suffer would be catastrophic. In that type of decision, as in the one here, it is important to consider the consequences of the event even though the event is very unlikely to occur. There would be no significant difference between the cost to maintain the COR #3 Line in either the FPL Corridor or the Alternate Corridor. CONDITIONS OF CERTIFICATION The design, construction, and operation of the COR #3 line in the FPL Corridor will comply with the Conditions of Certification. (Joint Exhibit 5A.) See also Preliminary Statement, p. 5 and Findings of Fact 71 and 81 for recent amendments and corrections. (All parties should be given an opportunity to comment on all of the Conditions of Certification, including the amended and corrected Conditions of Certification filed post-final hearing. Id. ) The Conditions of Certification establish a post- certification review process through which the final right-of- way, access road and structure locations will be reviewed by agencies with regulatory authority over the project. While the FPL Corridor has few homes in close proximity to it and limited wetland crossings, FPL has agreed to conditions of certification that further minimize land use and environmental impacts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Siting Board enter a Final Order approving FPL’s Collier-Orange River #3 230-kV Transmission Line Application for Certification subject to the Conditions of Certification set forth in Joint Exhibit 5A as may be amended. DONE AND ENTERED this 3rd day of May, 2004, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 2004.
The Issue Pursuant to Section 403.508(2), Florida Statutes, the sole issue for determination in this case is whether the proposed site for the Petitioner’s electrical power plant “is consistent and in compliance with existing land use plans and zoning ordinances.” (All statutory references are to the 2001 codification of the Florida Statutes.)
Findings Of Fact The Petitioner Calpine intends to license, construct, own, and operate a new electrical power plant in unincorporated Indian River County, Florida. Calpine filed an application with DEP under the PPSA for the proposed electrical power plant, which is known as the Blue Heron Energy Center ("the Project"). The Site for the Blue Heron Energy Center The site (“Site”) for the Blue Heron Energy Center is located in southeastern Indian River County, approximately 5 miles southwest of the City of Vero Beach. The Site is approximately 50.5 acres in size and is currently undeveloped. The primary vegetation on the Site is pine flatwoods. The Site contains two small wetlands that will be preserved. The general area surrounding the Site is a mixture of agricultural, industrial, institutional, utility and residential land uses. The Interstate 95 ("I-95") corridor is adjacent to the west side of the Site. Just west of the I-95 corridor are two existing electrical transmission line corridors operated by Florida Power & Light Company ("FPL"). There is an existing natural gas pipeline owned by Florida Gas Transmission Company located between the two electrical transmission line corridors. The Indian River County Correctional Institution is located directly northwest of the Site. Farther to the north are Indian River County's landfill and several industrial (citrus processing) facilities. There also is one single-family residence located north of the Site. The eastern boundary of the Site is adjacent to 74th Avenue, which is adjacent to a drainage ditch known as the Lateral C Canal. A citrus grove and an industrial wastewater sprayfield are located on the east side of the Lateral C Canal. The southern boundary of the Site abuts the border between Indian River County and St. Lucie County. The I-95 corridor and undeveloped lands lie south of the Site in St. Lucie County. Southeast of the Site, in St. Lucie County, is a residential development known as Spanish Lakes Fairways. The Site is separated from this residential development by a drainage ditch, a berm, and an existing buffer of mature trees and dense vegetation. Description of the Proposed Blue Heron Project The Blue Heron Energy Center will involve the construction and operation of a combined cycle, natural gas- fired, electrical power plant that will generate approximately 1080 MW (nominal). The Blue Heron Project will be built in two phases, each generating approximately 540 MW (nominal). The first phase of the Project will include two combustion turbines, two heat recovery steam generators, a steam turbine, exhaust stacks, cooling towers, a treatment and storage system for process water, a treatment system and detention basin for storm water, an operations control center, transformers and related switching gear, and other ancillary structures and features. The second phase of the Project will be similar to the first phase. The Blue Heron Energy Center will connect to Florida's electrical grid with two overhead transmission lines that will extend west from the Site approximately 1400 feet (over I-95) to the existing FPL transmission lines. The Project will obtain natural gas by installing an underground pipe that will extend from the Site approximately 1400 feet to the west (under I-95) to where the Project will interconnect with the natural gas pipeline systems operated by Gulfstream and Florida Gas Transmission Company. Calpine has obtained options to purchase the land west of the Site where Calpine's gas pipeline corridor and electrical transmission line corridor will be located. The primary source of cooling and process water for the Blue Heron Energy Center will be surface water (storm water), which will be obtained from the Lateral C Canal or the County's proposed stormwater park. Potable water and domestic wastewater services will be provided by Indian River County. No groundwater will be used by the Project. The Blue Heron Project will not discharge any industrial or domestic wastewater to any surface water or groundwater. Existing Land Use Plans and Zoning Ordinances The Site is designated Agricultural (AG-1) in Indian River County's Comprehensive Plan. Under the Comprehensive Plan, the AG-1 designation allows for the construction of electrical power plants, like the Project, as "public facilities." Indian River County has adopted land development regulations and zoning districts that implement the intent of the County’s Comprehensive Plan. Under the zoning code, like the Comprehensive Plan, the Site is located in an Agricultural (A-1) district. The County’s zoning code expressly allows the construction of "public and private utilities, heavy" as a special exception use in A-1 zoning districts. The County's zoning code defines "utilities, public or private, heavy" to include "all major electrical generation plants (generating fifty (50) megawatts or more)." Thus, the A-1 zoning designation for the Site allows the development of the Project as a special exception use. Special Exception Use Section 971.05 of the County Code sets forth the procedures and criteria for obtaining the County's approval of a special exception use. Among other things, Section 971.05(9) of the County Code requires an applicant for a special exception use to demonstrate that the proposed project is consistent with the County's Comprehensive Plan and zoning code. Calpine has worked with the County to ensure that every aspect of the Blue Heron Energy Center will comply with the County's criteria. Consistent with the requirements of Section 971.05 of the County Code, Calpine filed an application with the County for approval of a special exception use and conceptual site plan for the Blue Heron Project. The Special Use Exception Application ("SUEA") fully described the Project, including the corridors for the proposed transmission lines and natural gas pipeline. The County’s staff reviewed Calpine’s SUEA and recommended approval, subject to certain conditions. On August 9, 2001, the County's Planning and Zoning Commission held a duly noticed public hearing and then recommended approval of Calpine’s SUEA, with conditions. On September 18, 2001, the Indian River County Board of County Commissioners ("County Commission") held a duly noticed public hearing and then approved Calpine’s SUEA, with conditions. It is "typical" for the County to include conditions as part of the County's approval for a special exception use. If Calpine complies with the County's conditions for its special exception use, the County will "automatically approve the final site plan" for the Blue Heron Project. No one appealed the County Commission's approval of Calpine’s SUEA and the deadline for filing an appeal has passed. Consistency With Land Use Plans and Zoning Ordinances The County staff, the Planning and Zoning Commission, and the County Commission considered whether the Project is consistent and in compliance with the County's Comprehensive Plan and zoning ordinances, pursuant to Section 971.05 of the County Code, and then they approved the Project, with conditions. The evidence presented in the Land Use Hearing demonstrated that the Site is consistent and in compliance with Indian River County’s Comprehensive Plan. The evidence also demonstrated that the Site is consistent and in compliance with Indian River County’s zoning ordinances. In the Prehearing Stipulation, Indian River County, St. Lucie County, the Florida Department of Community Affairs, the Treasure Coast Regional Planning Council, the Florida Department of Environmental Protection, the Florida Department of Transportation, the Florida Public Service Commission, the Florida Fish and Wildlife Conservation Commission and the St. Johns River Water Management District either agreed with or did not dispute Calpine’s assertion that the Site is consistent and in compliance with existing land use plans and zoning ordinances. Indian River County also stipulated that it supports Calpine’s plan to construct and operate the Blue Heron Project on the Site. Public Notice of the Land Use Hearing On December 11, 2000, Calpine published a “Notice of Filing of Application for Electrical Power Plant Site Certification” in the Vero Beach Press-Journal, which is a newspaper of general circulation published in Indian River County, Florida. On October 9, 2001, the Administrative Law Judge issued an “Order Granting Continuance and Re-Scheduling Land Use Hearing” and served a copy of his Order on all of the parties to this proceeding. The Judge’s Order stated that the Land Use Hearing would be conducted on February 6, 2002. On December 14, 2001, Calpine published a “Notice of Land Use and Zoning Hearing on Proposed Power Plant Facility” in the Vero Beach Press-Journal. On December 14, 2001, the Department published notice of the Land Use Hearing in the Florida Administrative Weekly. The public notices for the Land Use Hearing satisfy the informational and other requirements set forth in Section 403.5115, and Rules 62-17.280 and 62-17.281(4), Florida Administrative Code.
Conclusions For Petitioner Calpine Construction Finance Company, L.P.: David S. Dee, Esquire Landers & Parsons 310 West College Avenue Tallahassee, Florida 32301 For the Florida Department of Environmental Protection: Scott A. Goorland, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399 For Audubon of Florida and the Pelican Island Audubon Society: Kevin S. Doty, Esquire Hatch & Doty, P.A. 1701 A1A, Suite 220 Vero Beach, Florida 32963
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Land Use Final Order in this case finding that the Site of the Blue Heron Energy Center is consistent and in compliance with the existing land use plans and zoning ordinances. DONE AND ORDERED this 5th day of March, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2002. COPIES FURNISHED: James V. Antista, General Counsel Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Ross Stafford Burnaman, Esquire Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Paul Bangel, Esquire County Attorney's Office 1840 25th Street Vero Beach, Florida 32960 Kathy Beddell, Esquire Harold Mclean, General Counsel Florida Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 David S. Dee, Esquire Landers & Parsons 310 West College Avenue Tallahassee, Florida 32301 Kevin S. Doty, Esquire Hatch & Doty, P.A. 1701 Highway A1A, Suite 220 Vero Beach, Florida 32963-2206 Scott A. Goorland, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Charles Lee, Sr., Vice President Florida Audubon Society 1331 Palmetto Avenue Suite 110 Winter Park, Florida 32789 Terry E. Lewis, Esquire Lewis, Longman & Walker, P.A. 1700 Palm Beach Lakes Boulevard Suite 1000 West Palm Beach, Florida 33401 Daniel S. McIntyre, Esquire St. Lucie County 2300 Virginia Avenue 3rd Floor Administrative Annex Fort Pierce, Florida 34952 Cari L. Roth, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Roger G. Saberson, Esquire 70 Southeast Fourth Avenue Delray Beach, Florida 33483 Colin M. Roopnarine, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Jennifer B. Springfield, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Sheauching Yu, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issue is whether Palm Beach County's application for a permit to construct a domestic wastewater collection/transmission system in Palm Beach County should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Parties The County is a political subdivision of the State of Florida and is the permittee in this matter. The County Water Utilities Department currently serves approximately 425,000 persons, making it the largest utility provider in Palm Beach County and the third largest in the State of Florida. ITID is an independent water control special district created by special act of the legislature in 1957 and whose boundaries lie within the County. Portions of the transmission line to be constructed by the County will cross easements and roads, and pass under canals, owned by ITID. Petitioners Joseph Acqualotta, Michael D'Ordine, Ann Hawkins, and Lisa Lander all live in areas in close proximity to the proposed transmission line. Lander lives adjacent to the proposed route of the line along 40th Street North, while Acqualotta, D'Ordine, and Hawkins live adjacent to the proposed route along 140th Avenue North. Acqualotta, Hawkins (but not D'Ordine, who resides with Hawkins), and Lander own the property where they reside. Petitioners Troy and Tracey Lee (Case No. 05-2979), Lisa Gabler (Case No. 05- 2980), and Anthony and Veronica Daly (Case No. 05-2982) did not appear at the final hearing. The Department is an agency of the State of Florida authorized to administer the provisions of Part I of Chapter 403, Florida Statutes, and is the state agency charged with the responsibility of issuing domestic wastewater collection/ transmission permits under Section 403.087, Florida Statutes (2004).1 Background On December 15, 2004, the County filed its application with the Department for an individual permit to construct a domestic wastewater collection/transmission system (Transmission Line). The Transmission Line is one element of the County's Northern Region Utilities Improvement Project (Project) and will be approximately 41,050 feet long and comprised of approximately 32,350 linear feet of 20-inch force main and 18,700 linear feet of 30-inch force main (or nearly ten miles in length). A primary purpose of the Project is to provide water and wastewater service to the Village, a 1,900 acre parcel located in the unincorporated part of the County several miles west of the Florida Turnpike, south of State Road 710, and north of the Villages of Wellington and Royal Palm Beach. The Village will be the home of the Scripps Project and Campus. The Transmission Line will run from the southeastern corner of the Village south to Northlake Boulevard, then east to 140th Avenue North, then south along that roadway to 40th Street North, where it turns east until it interconnects with existing facilities. The wastewater will be collected in a regional pump station on the Scripps Project site, where it will be pumped through the Transmission Line to the East Central Plant, which will be the primary treatment facility. The East Central Plant is owned and operated by the City of West Palm Beach (City), but the County owns between forty and forty-five percent of the treatment capacity. Because the wastewater system is interconnected, the wastewater could also be treated at the County's Southern Regional Plant. Ultimately, the flow from the Scripps Project will be one or two million gallons per day. The Transmission Line is the only way that wastewater can be handled at the Scripps Project. A preliminary analysis by the Department and the South Florida Water Management District determined that on-site treatment was not feasible because of the environmentally sensitive nature of the area. The Scripps Project will include residential units, commercial entities, and institutional uses, such as medical clinics. Besides serving these customers, the Transmission Line will also serve other customers in the area. The County has already signed agreements with the Beeline Community Development District (which lies a few miles northwest of the Village) and the Village of Royal Palm Beach (which lies several miles south-southeast of the Village). At the time of the hearing, the County anticipated that it would also sign an agreement with Seacoast Utility Authority (whose service area is located just southeast of the Village) to transport wastewater through the Transmission Line. All of the treatment facilities have sufficient existing capacity to treat the estimated amount of domestic wastewater that will be generated by the Scripps Project and the other users that will discharge to the Line. The County commenced construction of the Transmission Line in May 2005 when the Department issued the Permit. On August 2, 2005, the County published the Department's Notice to issue the Permit, and once the Petitions were filed, the County stopped construction pending the outcome of this hearing. Approximately seventy percent of the Transmission Line is now completed. The Permit does not allow the Transmission Line to be used until it is pressure tested and certified complete. Upon completion, the County must receive an Approval to Place a Domestic Wastewater Collection/Transmission System into Operation from the Department. Such approval is given only after the County has given reasonable assurance that adequate transmission, treatment, and disposal is available in accordance with Department standards. See Fla. Admin. Code R. 62-604.700. On August 15, 2005, Petitions challenging the issuance of the Permit were filed by ITID and the individual Petitioners. ITID contends that the Transmission Line will convey not only domestic wastewater, but also industrial waste; that the County did not comply with all applicable technical standards and criteria required under the Department's rules; that the Project will be located on ITID's right-of-way, on which the County has no right to occupy; that the Project will be located within seventy-five feet from private drinking wells and does not provide an equivalent level of reliability and public health protection; and that the pipe material and pressure design is inappropriate for the Transmission Line's requirements. The individual Petitioners (who filed identical Petitions) are mainly concerned about the location of the Transmission Line in relation to their private drinking wells and property, the possibility of the pipe bursting or leaking once it becomes operational, and the restoration of their property to its original condition after construction is completed. As to the property claims by all Petitioners, the County plans to place the Transmission Line in property that it either owns or has an easement, in property that it is in the process of condemning, or in a public right of way. While the County acknowledges that it has already placed, and intends to place other portions of, the Transmission Line in easements that ITID says it has the exclusive right to use and for which a permit from ITID is required, the County alleges that it also has the right to use those easements without an ITID permit. The dispute between the County and ITID is the subject of a circuit court proceeding in Palm Beach County, and neither the Department nor DOAH has the authority to decide property interests. Petitioners' Objections Domestic wastewater and pretreatment The wastewater that will be generated by the Scripps Project is considered domestic wastewater; it will not include industrial wastewater. Waste that is industrial or non- domestic must be pretreated to protect the wastewater plant, collection system, and the health of system workers and the general public. The Department administers a pretreatment program through which it requires a public wastewater utility to police the entities that discharge to their wastewater plants. A central part of the pretreatment program is the local ordinance that gives legal authority to the utility to permit, inspect, and take enforcement action against industrial users who are part of the pretreatment program. The utility files an annual report with an industrial user survey, and the Department periodically inspects and audits local pretreatment programs to ensure they are being operated as intended. The system is not failsafe but is designed to ensure that potentially harmful wastes are rendered harmless before discharge. For example, the utility has the authority to immediately shut water off if a harmful discharge is occurring. Both the County and the City have pretreatment programs approved by the Department. The City has an ordinance that allows it to enforce the pretreatment standards for all entities that discharge to its wastewater system. The County Water Utilities Department has a written pretreatment manual, and the County has zoning restrictions on the discharge of harmful material to the wastewater system. It has also entered into an interlocal agreement under which it agrees to enforce the City ordinance. The County provides wastewater treatment to industrial, educational, and medical facilities, and it has never experienced a discharge from any of these facilities that has caused adverse health or environmental impacts. The County pretreatment program for the Southern Regional Facility was approved in 1997. The City pretreatment program for the East Central Regional Facility was approved in 1980. The Scripps Project must apply for a permit from the County and provide a baseline monitoring report, data on its flow, and information on the flow frequency and raw materials. Medical waste from the Scripps Project will be pretreated to render it safe before it is discharged into the Transmission Line. Transmission Line Design The Transmission Line was designed in accordance with the technical standards and criteria for wastewater transmission lines in Florida Administrative Code Rule 62- 604.300(5). That rule incorporates by reference a set of standards commonly known as the Ten State Standards, which contain several of the standards used in the design of this project. These standards are recommended, but are not mandatory, and a professional engineer should exercise his or her professional judgment in applying them in any particular case. The Transmission Line also meets the design standards promulgated by the America Water Works Association (AWWA). Specifically, the County used the AWWA C-905 design standard for sizing the polyvinyl chloride, or PVC, pipe used in the project. The County has received written certification from the manufacturer that the PVC pipe meets the standards in AWWA C-905. The Transmission Line is designed with stub-outs, which will allow for future connections without an interruption of service, and inline isolation valves, which allow the line to be shut down for maintenance. The Use of PVC Pipe There is no standard regulating the selection of PVC pipe material in the Department's rules. Instead, the Department relies on the certification of the applicant and the engineer's seal that the force main will be constructed to accepted engineering standards. The only specification applicable to the Transmission Line is the Ten State Standard, adopted and incorporated by reference in Florida Administrative Code Rule 62-604.300(5)(g). That document contains a general requirement that the material selected have a pressure rating sufficient to handle anticipated pressures in wastewater transmission lines. The Transmission Line will be constructed with PVC piping with a thickness of Dimension Ratio (DR) 32.5, which is the ratio of the outside diameter of the pipe to its thickness. Higher ratios mean thinner-walled pipes. This is not the first time the County has used 32.5 PVC piping for one of its projects, and other local governments in the State have used 32.5 or thinner pipe. The County is typically conservative in requiring thicker-walled pipe, because most transmission lines are built by developers, and the County is unable to design the entire line or control or inspect its installation. The specifications for wastewater transmission lines built in the County call for the use of DR 25 pipe. On this project, however, the County determined that thicker- walled pipe would have been an over-design of the system because the County controls the pump stations and oversees the installation; therefore, the Director of the Water Utilities Department has waived that requirement. The County considers the use of DR 32.5 PVC to be conservative. Although this pipe will be thinner than what is typically used in the County, it satisfies the Department's requirements. The Department has permitted many miles of similar PVC force mains in South Florida, and none have failed. PVC has benefits over other transmission line material, such as ductile iron. For example, PVC is more corrosion resistant. Wastewater generates hydrogen sulfide as it decomposes, which can form highly corrosive sulfuric acid. Some of the older transmission lines in the County that were made of ductile iron have corroded. PVC also has a superior ability to absorb surges, such as cyclical surges, than ductile iron. It is easier to install, and its interior flow characteristics are smoother than ductile iron or pre-stressed concrete pipe. Mr. Farabee, a professional engineer who testified on behalf of ITID, recommended a DR 14 pipe, which is thicker- walled than the DR 32.5 pipe used by the County. While he opined that the DR 32.5 pipe was too thin for the project, he could not definitively state that it would not pass the 150 per square inch (psi) pressure test. He also opined that the pipe is undersized because it will be unable to withstand the surge pressures during cleaning. The witness further testified that the pipe would be subject to much higher pressures than 150 psi, and therefore it was impossible to know whether the pipe would fail. In his opinion, this means the Department did not have reasonable assurance for the project. The County consulted with the Unibell PVC Pipe Association (Unibell) in the planning of this project. Unibell is a trade association that provides technical support for PVC pipe manufacturers. Robert Walker, a registered professional engineer and Unibell's executive director who testified on behalf of the County, disagreed with Mr. Farabee's conclusions concerning the adequacy of the PVC pipe in this project. The AWWA C-905 standard uses a safety factor of two, which means the pipes are tested at pressures that are at least twice their stated design strength. Mr. Walker explained the different standards that apply to PVC pipe. DR 32.5 pipe, which is used in this project, has a minimum interior pressure rating of 125 pounds per square psi. Each pipe section is tested before it is shipped at 250 psi, and the minimum burst pressure for the material is in excess of 400 psi. The pipe also meets a 1000- hour test at 270 psi. In light of these standards and testing, the pipe will pass the two-hour 150 psi test required by the Department. Mr. Farabee expressed some concern that the PVC pipe would be more prone to breakage than ductile iron or thicker PVC. However, the PVC pipe standards provide that the pipe can be flattened at sixty percent without splitting, cracking, or breaking. At shallow depths on dirt roads, ovalation, which occurs when PVC is flattened through pressure, will initially occur, but over time the soil around the pipe will become compacted and result in re-rounding of the pipe. The joints are three times stiffer than the body of the pipe, which will protect the joint from excessive ovalation and leaking, and the use of mechanical restrained joints will further strengthen the joints. There has been no joint leakage in Florida due to deflection of the joints. Finally, there have been no failures of PVC pipe caused by three-feet of fill, which is the depth to which the Transmission Line pipe will be buried. To further protect the pipe, the County optimized its pumping system to avoid cyclical surges by using variable frequency drive pumps that gradually increase and decrease speed rather than just turning on or off. In addition, the pump stations are fed by two power lines that come from different directions and emergency generators, which should lessen the chances of harmful surging. Testing the Installation The anticipated pressures in the Transmission Line will likely be about 50 psi. After installation, the Line will be pressure tested at 150 psi for two hours, which is sufficient to provide the Department with reasonable assurance that the Line will hold pressure and will not leak. Also, the County contract inspectors are on the construction site daily. If problems with the installation arise later, the County has committed to promptly fix the problem, even if it means digging up the line. During the hearing, ITID asserted that the Uniform Policies and Procedure Manual standards, which the County has adopted for use by developers when constructing wastewater transmission lines, should be applied to the County as well. This standard, which requires pressure testing to 200 psi for PVC pipes larger than 24 inches, has not been adopted by the Department and is not an applicable Department permitting standard. Even if it did apply, the Transmission Line would meet this criterion because it is designed to withstand 270 psi for at least 1,000 hours. Mr. Farabee believed that the entire Transmission Line would be pressure tested after the construction was complete, which would require digging up sections of the pipe to install bulkheads. However, this assessment of the County's testing program is incorrect. Leisha Pica, Deputy Director of the Water Utilities Department, developed the schedule for the project, helped develop the phasing of the work and budget, and oversaw the technical aspects. She stated that the County has successfully tested approximately fifty percent of the line that was already installed at 150 psi for two hours and not a single section of the line failed the test. Compaction The County has stringent backfilling and compaction requirements, which are sufficient to ensure the pipe will be properly installed and that there will be adequate compaction of the fill material. The County plans and specifications provide that compaction must be to ninety-five percent of the American Association of State Highway and Transportation Officials (AASHTO) standards for non-paved surfaces and one hundred percent of AASHTO standards for paved surfaces. Even ITID's expert agreed that the compaction specifications are sufficient. Mr. Farabee contended, however, that even though the standards are stringent, the County cannot properly test the installation for compliance with the standards. Mr. Farabee believed that testing of the backfill would be done after all of the construction was complete. In that case, he did not see how the testing could be done without digging many holes to check for the density of the backfill. These assumptions, however, are incorrect. The evidence shows that a total of two hundred sixty-four compaction tests have already been done on the portion of the Transmission Line that was completed. No part of the installation failed the tests. The County has an inspector who observes the installation and pressure tests. The compaction was tested at every driveway and major roadway, as well as every five hundred feet along the route. While Lander and D'Ordine pointed out at hearing that no compaction tests have been performed on the dirt roads which run adjacent to their property and on which construction has taken place, the Department requires that, before the work is certified as complete, non-paved roads must be compacted in accordance with AASHTO standards in order to assure that there is adequate compaction of the fill material. The Sufficiency of the Application When an application for an individual transmission/ collection line permit is filed with the Department, the applicant certifies that the design of the pipeline complies with the Department's standards. However, not all of the details of the construction will be included in the permit application. The Department relies on the design engineer to certify that the materials used are appropriate. The application form is also signed and sealed by a professional engineer registered in the State of Florida. All plans submitted by the County, including the original, modifications, and final version, were certified by professional engineers registered in the State of Florida. After receiving the application, the Department requested additional information before issuing the permit, and the County provided all requested information. The original construction plans that were submitted with the application were changed in response to the Department's requests for additional information. The Permit issued by the Department indicates the Transmission Line would be constructed with ductile iron pipe, but this was a typographical error. ITID maintains that all of the technical specifications for the project must be included in the application, and because no separate engineering report was prepared by the County with the application, the County did not meet that standard. While the County did not submit an engineering report, it did submit sufficient data to provide reasonable assurance that the project will comply will all applicable rules of the Department. As a part of its application package, the County submitted construction plans, which contain the specifications required by the Department. Also, the general notes included in the construction drawings specify the use of restrained joints where appropriate, the selection of pipe material, the pressure testing of the Transmission Line, and other engineering requirements. In addition, the plans contain numerous other conditions, which are also specifications sufficient to fulfill the Department's requirements. Finally, further explanation and clarification of the technical aspects of the application was given by the County at the final hearing. At the same time, the Department engineer who oversaw the permitting of this project, testified that a detailed engineering report was not necessary. This engineer has extensive experience in permitting transmission lines for the Department and has worked on over five hundred permits for wastewater transmission and collection systems. The undersigned has accepted his testimony that in a relatively straightforward permit such as this, the application and attachments themselves can function as a sufficient engineering evaluation. This is especially true here since the County is seeking only approval of a pipeline project, which would not authorize the receipt of wastewater flow unless other wastewater facilities are permitted. Impacts on Public and Private Drinking Water Wells As part of the design of the Transmission Line, the County located public and private drinking water wells in the area of the line. County personnel walked the route of the Transmission Line and looked for private wells and researched the site plans for all of the properties along the route. No public wells were found within one-hundred feet of the Transmission Line route, but they did find seventeen private wells that are within seventy-five feet of the line. None of the Petitioners have private wells that are within seventy- five feet of the line. While Petitioners D'Ordine and Hawkins initially contended that the well on Hawkins' property was within seventy-five feet of the Transmission Line, at hearing Mr. D'Ordine admitted that he "misread the plans and referred to the wrong property." In order to protect the private drinking water wells, Florida Administrative Code Rule 62-604.400(1)(b) requires that the County provide an extra level of protection for the wells that are within seventy-five feet of the Transmission Line. The County will provide that extra level of protection by installing restrained joints that will restrain the joints between the pipe sections. The restrained joints are epoxy-coated mechanical devices that reduce the tendency for the pipes to separate under pressure. The County has used these restrained joints on its potable water and wastewater lines in other areas of the County and has never experienced problems with the devices. The restrained joints will provide reliable protection of the private wells within seventy-five feet of the Transmission Line. The Department is unaware of any instances where restrained joints have failed in South Florida. If more wells are discovered that are within seventy-five feet of the Transmission Line, then the County will excavate the Line and install restrained joints. Minimum Separation Distances The County has complied with all applicable pipe separation requirements in the installation of the Transmission Line. More specifically, it is not closer than six feet horizontally from any water main and does not intersect or cross any reclaimed water lines. See Fla. Admin. Code R. 62-555.314(1)(a). It will be at least twelve inches below any water main or culvert that it crosses. See Fla. Admin. Code R. 62-555.314(2)(a). Finally, it will be a minimum of twelve inches below any culverts that it crosses. (However, the Department has no separation requirement for culverts crossed by the Transmission Line.) h. The M-Canal Crossing The Transmission Line must cross the M-canal, which runs in an east-west direction approximately midway between 40th Street North and Northlake Boulevard. The original design called for the Transmission Line to cross above the water, but the City and the Department suggested that it be located below the canal to eliminate the chance that the pipe could leak wastewater into the canal. In response to that suggestion, the County redesigned the crossing so that a 24- inch high density polyethylene pipe in a 48-inch casing will be installed fifteen feet below the design bottom of the canal. The polyethylene is fusion-welded, which eliminates joints, and is isolated with a valve on either side of the canal. Appropriate warning signs will be installed. See Fla. Admin. Code R. 62-604.400(2)(k)2.-5. The depth of the subaqueous line and the use of the slip line, or casing, exceeds the Department's minimum standards. See Fla. Admin. Code R. 62-604.400(2)(k)1. i. Flushing Protocol Section 48.1 of the Ten State Standard recommends that wastewater transmission lines maintain a velocity of two feet per second. When the Transmission Line becomes operational, it will not have sufficient flow to flush (or clean) accumulated solids from the lines at the recommended two feet per second velocities. (Sufficient flow will not occur until other customers connect to the Transmission Line during the first one to three years of operation.) Accumulated solids produce gases and odors that could create a problem at the treatment plant and might leak out of the manhole covers. To address this potential problem, Specific Condition 9 of the Permit requires the County to flush the lines periodically. Pursuant to that Condition, the County plans to flush the Transmission Line with additional water which will raise the velocity to three or four feet per second, so that the accumulated solids will be flushed. The water will be supplied by large portable tanks that will be temporarily set up at several locations along the Line. During the purging of the Line, sewage will collect in the pump stations until the purge is finished. There is sufficient capacity in the pump stations to contain the wastewater. In addition, the County will use a cleansing tool known as a pig, which is like a foam bullet that scrapes the sides of the pipe as it is pushed through the line. This protocol will be sufficient to keep the Line clean. ITID asserts that the County's plan for flushing is inadequate, because it does not provide enough water for long enough to flush both the 20-inch and 30-inch lines. Mr. Farabee calculated that the County would need almost twice the proposed volume, or almost six million gallons, to adequately flush the lines. ITID's analysis of the flushing protocol is flawed, however, because it assumes a constant flow in all segments of the pipe, which is not practical. In order to maintain the flushing velocity of three feet per second, the County will introduce water into the Transmission Line at three separate locations, resulting in a more constant flow velocity throughout the Transmission Line. In this way, it can maintain the proper velocity as the lines transition from a 20-inch to 30-inch to 36-inch pipe. The County has flushed other lines in the past using this protocol and has had no problems. This flushing protocol would only be in effect from one to three years. The County estimates that the necessary volumes to maintain a two-feet-per-second velocity in the 20- inch line would be reached in about one year. The 30-inch line should have sufficient flows sometime in 2008. These estimates are based on the signed agreements the County has with other utilities in the area to take their flows into the Transmission Line. Because of these safeguards, the Transmission Line will not accumulate solids that will cause undesirable impacts while flow is less than two feet per second. Other Requirements The construction and operation of the Transmission Line will not result in the release or disposal of sewage or residuals without providing proper treatment. It will not violate the odor prohibition in Florida Administrative Code Rule 62-600.400(2)(a). It will not result in a cross- connection as defined in Florida Administrative Code Rule 62- 550.200. The construction or operation of the Transmission Line will not result in the introduction of stormwater into the Line, and its operation will not result in the acceptance of non-domestic wastewater that has not been properly pretreated. If constructed and permitted, the Transmission Line will be operated so as to provide uninterrupted service and will be maintained so as to function as intended. The record drawings will be available at the Department's district office and to the County operation and maintenance personnel. Finally, concerns by the individual Petitioners that the County may not restore their property to its original condition after construction is completed are beyond the scope of this proceeding. At the hearing, however, the Deputy Director of the Water Utilities Department represented that the County would cooperate with the individual property owners to assure that these concerns are fully addressed. Reasonable Assurance The County has provided the Department with reasonable assurance, based on plans, test results, installation of equipment, and other information that the construction and installation of the Transmission Line will not discharge, emit, or cause pollution in contravention of the Department's standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying all Petitions and issuing Permit No. 0048923-017-DWC. DONE AND ENTERED this 18th day of October, 2005, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2005.
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 Whether the Governor and Cabinet sitting as the Siting Board should approve (on appropriate conditions) or deny petitioners' application for a certificate authorizing construction and operation of the proposed Cedar Bay Cogeneration Project, an electrical power plant?
Findings Of Fact As far as the evidence showed, petitioners never analyzed the costs of a natural gas facility as compared to those of a coal-fired facility. According to uncontroverted testimony, however, natural gas is not commercially available in the quantities necessary to fire the plant. If fueled by natural gas, instead of by coal as proposed, the Cedar Bay Cogeneration Project would require 50 million cubic feet of natural gas per day, on a firm basis. Natural Gas Availability The Florida Gas Transmission system, a branch of which (the "Brooker lateral") serves People's Gas System, the only local distribution company in Jacksonville, (RT.60) has no transmission capacity not already fully allocated to existing users. Among Florida Gas Transmission Company's customers are other power plants, including some operated by Jacksonville Electric Authority. Florida has "roughly 6,000 megawatts of power [generating capacity] that is primarily gas fired . . . [and] another 5,000 megawatts of power [generating capacity] that uses natural gas as a secondary fuel." RT.62. It would take more than "the entire capacity of the Florida Gas Transmission system to move . . . the fuel required to generate . . . 6,000 megawatts." Id. Jacksonville Electric Authority buys natural gas on an interruptible basis, because it has been unable to obtain a commitment to a constant or "firm" supply. The Florida Gas Transmission Company has plans to expand its transmission capacity by 100 million cubic feet a day to a total of 925 million cubic feet a day in 1991 or early 1992. But allocation of the increase -- an issue in obtaining approval from the FERC -- has already been accomplished, and the expansion will make no firm capacity available to new users. Talk of another expansion has already begun, but so far the company has done little more than collect questionnaires (which suggest demand for double the existing service.) At one time, liquefied natural gas came from Algeria to Elba Island near Savannah, Georgia, by ship. A 20- inch pipeline connects the terminal with the Sonat system on the mainland. But no Sonat pipeline comes within some 150 miles of Jacksonville, and shipments of liquefied natural gas to Elba Island ceased with the decline of oil prices after the mid-l970s. At present, the Florida Gas Transmission Company has a monopoly in Jacksonville and peninsular Florida. But `a system. in southern Georgia "called Mobile Bay" (RT.77) has plans to extend a 12-inch pipeline from an existing line near Live Oak to Jacksonville. With respect to some or all of this planned capacity, "certain commitments have been made." RT.59. Under pressure, the proposed 12-inch pipeline could transmit over 40 million cubic feet of natural gas a day, but only if that much gas reached Live Oak, and "the South Georgia system is constrained during certain parts of the year," RT.59, as it is. From the fact that a pipeline is to be constructed to bring less natural gas to Jacksonville than would be required to fuel the Cedar Bay project it might be inferred that the project itself would justify construction of a pipeline. But the opinion of petitioners' expert, Mr. Van Meter that natural gas is not an available or reasonable fuel for the Cedar Bay Cogeneration Project (RT.65, 74, 79) -- and would not have been even if natural gas had been planned for earlier -- went unrebutted. Likewise unrebutted was the testimony of another of petitioners' experts that, from an economic standpoint, "Base load power plants['] most desirable fuels would be coal and nuclear." RT. 103. Construction Dewatering The applicants have modified their dewatering plan, and now propose new construction techniques for the railcar unloading facility; sequential installation of underground pipes; sequential excavation of pump pits; and an advanced effluent treatment system. (RT. 147, 149-52, 171-76, 178, 185-92; AES Ex. 4R) A cofferdam or groundwater barrier encircling the railcar unloading area would drastically reduce the amount of groundwater seeping into the excavation during construction. (RT. 173; AES Ex. 4R, 7R). Sheet piling is to be driven into perimeter trenches filled with bentonite cement. (RT. 174-75; AES Ex. 4R, 7R, 8R). Using a jet grouting technique, a five- to ten-foot thick seal would be created underneath the planned excavation. (RT. 175-76; AES Ex. 4R, 7R, 9R). Steel tie-back rods would strengthen the cofferdam, and a pump would move seepage to the surface from a sump designed to collect groundwater seeping through the cofferdam and up through the grout into the excavation. (RT. 176-77; AES Ex. 4R, 7R) The modified construction techniques now proposed would reduce maximum groundwater drawdown outside the cofferdam from approximately the 30 feet below grade originally contemplated to a currently anticipated level of approximately 5.5 feet below grade. (RT. 279; AES Ex. 10R). Excavations to install circulating water piping and to create pits to house runoff pumps would be scheduled to keep down the volume of dewatering effluent at any given time. (RT. 178-79, AES Ex. 4R) Installing a cofferdam, jetting in grauting, and sequencing construction, as now proposed, would reduce dewatering effluent flows from the 1000 to 2000 gallons per minute originally contemplated to no more than 200 gallons per minute. (RT. 180, 185; AES Ex. 4R, pp. 1 and 2) In another modification, the applicants now propose an advanced treatment system to improve the quality of (a diminished quantity of) dewatering effluent, prior to its introduction into Seminole Kraft's cooling water system. The proposed treatment system would employ as many as five treatment technologies, if needed, to ensure that cooling water system discharges to the St. Johns River containing dewatering effluent would meet Class III water quality standards. Equipment necessary to bring each technology to bear would be on site and available for use before dewatering began. (RT. 151, 185, 193, 196; AES Ex. 4R) Mixing dewatering effluent with lime would remove dissolved metals from solution. Then a clarifier would precipitate and separate solids. These first two stages of the treatment process now proposed comprise the whole of the treatment process originally proposed. (RT. 149-50, 185-68; AES Ex. 4R) Additional treatment, as needed, would include sand filtering, to eliminate the need for any turbidity mixing zone (RT. 151, 190, 198, 201; AES Ex. 4R); using a carbon filter to remove organic compounds (and some heavy metals), obviating the need for a phenol mixing zone (RT. 190-191, 198, 201; AES Ex. 4R); and, finally, selective ion exchange, to provide additional metals removal, if needed. (RT. 151, 191, 201-02; AES Ex. 4R) The applicants are to ascertain and report the quality of effluent as long as dewatering takes place. They must use a composite sampling method once a week for the first month. Thereafter they may use a single "grab" sample, but must continue assessing effluent quality once a week until dewatering ceases. The proposed monitoring program must be capable of detecting whether water quality standards are being met. (RT. 166, 195, 321-22; AES Ex. 4R). The applicants' modified dewatering plan is an environmental improvement over the previous plan and would ensure compliance with water quality standards. (RT. 193, 196, 261) DER has recommended and the applicants have agreed to accept modified Conditions III.A.12. (Construction dewatering), III.A.13 (Mixing Zones), and III.A.14. (Variances to Water Quality Standards). (RT. 152; AES Ex. SR as modified by the Joint Recommended Order filed November 1990). Based upon the applicants' modified dewatering plan, a reasonable allocation of water for construction dewatering is a maximum daily withdrawal not to exceed .288 million gallons. Modified Condition V.D. is reasonable and the applicants accept its terms. (RT. 254, 294-295; SJRWMD Ex. IR) Water for Cooling Purposes The applicants now propose to use either reclaimed water or river water for cooling, to the extent practicable, in an effort to avoid using groundwater as the permanent, primary source of cooling water. September drought conditions caused record low readings for the Floridan aquifer at 23 monitoring wells in the northern part of the St. Johns River Water Management "District, including wells in Duval County." RT. 248. The original proposal called for withdrawing four million gallons of water a day from the Floridan aquifer for cooling, when power generation begins. Under the modified proposal, groundwater would still be used as makeup for the steam or power generation system, as service water, and for potable purposes, but (except in emergencies) not for cooling, assuming the applicants obtain the regulatory approval they would be obliged to seek. The applicants have agreed to accept modified Condition XXV (Use of Water for Cooling Purposes). (RT. 155-158, 204-208; AES Ex. 6R, 12R, 13R) Condition IV.C. has been modified to reflect the reduced withdrawal of groundwater that would be necessary if groundwater is not used for cooling. For the next seven years, a maximum annual withdrawal from the Floridan aquifer for non- cooling uses of no more than 530.7 million gallons and a maximum daily withdrawal of no more than 1.45 million gallons represent amounts that are considered reasonably necessary and efficient. Unless the City of Jacksonville has agreed, on or before December 1, 1990, to supply reclaimed water for cooling, the applicants will redesign the cooling system so that river water can be used for cooling. Salt in the Broward and St. Johns rivers requires the use of highly corrosion-resistant materials for certain system components. Constructing these system components with such materials would enable the cooling system to use river water, reclaimed water from the City, or Seminole Kraft wastewater. (RT. 155-56, 159-60, 216-17; AES Ex. 6R). If river water is used, existing Seminole Kraft intake and discharge structures would be utilized. In order to reduce ill effects on aquatic organisms, the applicants would install screening and filter systems upstream of the pumps. Brackish river water must be changed or "cycled" more often than groundwater, lest evaporation cause scaling that would clog the system. The volume of river water required for cooling tower makeup is estimated at approximately 14 million gallons per day. Because cooling with river water would require more water, the applicants propose to increase piping and valve sizes for the cooling system. (RT. 155-57, 168, 215-16, 219-20; AES Ex. 6R) Modified Condition XXV specifies a procedure for amending site certification to require use of one of two primary cooling water sources: reclaimed water from the City or surface water from the Broward or St. Johns rivers. The applicants have agreed to apply within six months for modifications concerning design and operation of the plant cooling system. The application must contain information necessary to demonstrate that operation of the cooling system without using groundwater as the primary cooling water source would comply with all relevant non-procedural agency standards or qualify for a variance. The application must also detail the reasons for selection of one requested source over other possible sources. There would be no delegation to DER's Secretary for determinations under Condition XXV. Final authority to render determinations under Condition XXV would remain with the Siting Board. (RT. 207, 269; SJRWMD Ex. 2R) As drafted by the parties, modified proposed Condition xxv provides that groundwater may be utilized for cooling only in the event that neither river water nor reclaimed water from the City of Jacksonville obtains necessary environmental approvals of the preferred primary cooling sources are denied on the grounds of unavailability, or environmental or economic impracticability, as set forth in the condition. (RT. 207, 228-30; AES Ex. 12R) The applicants modified cooling system plans and modified Condition XXV, as drafted by the parties, are designed to ensure that the cooling system will use either river water or reclaimed water, to the extent it is economically and environmentally practicable. Use of either of these sources for this proposed cooling facility is viewed by the SJRWMD as equally appropriate to fulfill its conservation and reuse standards and the state water policy, which require consumptive users to utilize, to the extent practicable, the lowest quality water suitable for the proposed use. (RT. 242-43, 299-300) The applicants have stipulated that it is economically feasible and practicable for them to pay $.18-1/2 per thousand gallons for reclaimed water without phosphorous treatment or $.22 per thousand gallons for treated reclaimed water, unless expenditures have already been made to construct the cooling system to utilize river water. They also stipulated that the river water cooling option is economically feasible and practicable, if the facility is authorized to operate with the same type of cooling tower discharge operation variances granted to the St. Johns River Power Park. (RT. 206, 218, 245, 295j AES Ex. 12R) The St. Johns River Power Park, a power plant in Duval County which was certified under the Florida Electrical Power Plant Siting Act, utilizes river water for cooling tower makeup and discharges its cooling tower blowdown into the St. Johns River. When river water is used for cooling, evaporation increases concentrations of pollutants already in the river. The St. Johns River Power Park's certification conditions include variances from Class III water quality standards which allow the facility to operate its cooling system with river water. These variances have been granted for two-year periods, with the permittee being required to obtain variance renewals every two years in order to continue operation of the cooling system. (RT. 206, 218-19, 288-89). Salt drift as well as concentrations of pollutants in the blowdown are being assessed. RT. 284. Use of Seminole Kraft's current wastewater is not mentioned in modified Condition XXV, as drafted by the parties. By the time the Cedar Bay cogeneration facility needs cooling water, the Seminole Kraft plant may have become a cardboard recycling facility, which would discharge a different and potentially more useful wastewater than is currently being discharged by Seminole Kraft. The precise quality of any such future effluent cannot be predicted with a high degree of certainty at this time. (RT. 222-23, 238-43) But the applicants should "evaluate the practicability under [SJRWMD] rules of utilizing Seminole Kraft wastewater . . . [using] the best information . . . available," (RT. 243) during the post- certification proceeding new Condition XXV calls for, at least if reclaimed water is unavailable from the City of Jacksonville. If a primary source of cooling water other than groundwater proves unavailable or environmentally or economically impractical, as set out in modified Condition XXV, a maximum annual withdrawal from the Floridan aquifer for all facility uses not to exceed 1,990 million gallons and a maximum daily withdrawal not to exceed seven million gallons are reasonable for a period of seven years. (RT. 211,12, 296-97; AES Ex. 14R) In the event groundwater became the primary cooling source, proposed Condition xxv would require the applicants to implement their groundwater mitigation plan. (RT. 207, 229-30; AES Ex. 12R). Under this plan, the applicants would fund a free- flowing well inventory in Duval County. Additionally, they would provide a contribution of $380,000 per year for plugging free- flowing wells to reduce discharges from these wells by seven million gallons a day, if discharges of such magnitude are found. Thereafter, the applicants' annual contributions, which are to continue as long as groundwater is used for cooling, would fund a water conservation and reuse grants program in Duval County. The plan represents not only a water conservation measure but also serves as an economic incentive to the applicants to pursue necessary approvals for use of another primary cooling water source. Overall Evaluation Hamilton S. Oven, Jr. testified without contradiction that the project as now proposed "would produce minimal adverse effects on human health . . . the environment the ecology of the land and its wildlife . . . [and] the ecology of state waters and their aquatic life." RT.277. He also testified that the applicants' proposal would comply "with relevant agency standards." (RT.273) (although the evidence showed variances would be needed for cooling tower blowdown, at least if reclaimed water is not used.) Mr. Oven explained that he used permitting agencies' "criteria as a measuring stick to show compliance and to try to produce the minimal adverse impacts as allowed by regulatory policy." RT.274. Like Mr. Oven, Stephen Smallwood, Director of DER's Division of Air Resources Management interprets "minimal" as used in the Florida Electric Power Plant Siting Act to mean "minimal with respect to the standards of the agencies." DER's Exhibit No. 2R, P. 11. Otherwise, he explained, "[Y]ou'd have to perhaps conclude . . . that you couldn't license any coal-fired units [. T]hey'd either all have to be natural-gas fired or . . . nuclear or . . . solar." Id. DER staff concluded that the proposed Cedar Bay Cogeneration Project effects a reasonable balance between the need for the project and the environmental impacts associated with the project. On this basis, DER recommended that the project be certified subject to recommended conditions of certification.
Recommendation It is, accordingly, RECOMMENDED: That the Siting Board grant the site certification application filed by AES Cedar Bay, Inc. and Seminole Kraft Corporation, as amended, subject to the agreed conditions of certification attached to the recommended order as an appendix, and on condition that the facility use reclaimed wastewater as cooling tower make-up within seven years of beginning operation. DONE and ENTERED this 29th day of May, 1990, in Tallahassee, Leon County, Florida. ROBERT T. BENTON, II 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 29th day of May, 1990. APPENDIX CONDITIONS OF CERTIFICATION When a condition is intended to refer to both AES Cedar Bay, Inc. and Seminole Kraft Corp., the term "Cedar Bay Cogeneration Project or the abbreviation "CBCP" or the term "permittees" will be used. Where a condition applies only to AES Cedar Bay, Inc. the term "AES Cedar Bay, Inc." or the abbreviation "AESCB" or the term "permittee," where it is clear that AESCB is the intended responsible party, will be used. Similarly, where a condition applies only to Seminole Kraft Corp., the term "Seminole Kraft Corp." or the abbreviation "SK" or the term "permittee," where it is clear that SK is the intended responsible party, will be used. The Department of Environmental Regulation may be referred to as DER or the Department. BESD represents the City of Jacksonville, Bio-Environmental Services Division. SJRWMD represents the St. Johns River Water Management District. GENERAL The construction and operation of CBCP shall be in accordance with all applicable provisions of at least the following regulations of the Department Chapters 17-2, 17-3, 17-4, 17-5, 17-6, 17-7, 17-12, 17-21, 17-22, 17-25 and 17-610, Florida Administrative Code (F.A.C.) or their successors as they are renumbered. AIR The construction and operation of AESCB shall be in accordance with all applicable provisions of Chapters 17-2, F.A.C. In addition to the foregoing, AESCB shall comply with the following condition of certification as indicated. Emission Limitations for AES Boilers Fluidized Bed Coal Fired Boilers (CFB) The maximum coal charging rate of each CFB shall neither exceed 104,000 lbs/hr, 39,000 tons per month (30 consecutive days, nor 390,000 tons per year (TPY). This reflects a combined total of 312,000 lbs/hr, 117,000 tons per month, and 1,170,000 TPY for all three CFBs. The maximum wood waste (primarily bark) charging rate to the No. 1 and No. 2 CFBs each shall neither exceed 15,653 lbs/hr, nor 63,760 TPY. This reflects a combined total of 31,306 lbs/hr, and 127,521 TPY for the No. 1 and No. 2 CFBs. The No. 3 CFB will not utilize woodwaste, nor will it be equipped with wood waste handling and firing equipment. The maximum heat input to each CFB shall not exceed 1063 MMBtu/hr. This reflects a combined total of 3189 MMBtu/hr for all three units. The sulfur content of the coal shall not exceed 1.7% by weight on an annual basis. The sulfur content shall not exceed 3.3% by weight on a shipment (train load) basis. Auxiliary fuel burners shall be fueled only with natural gas or No. 2 fuel oil with a maximum sulfur content of 0.3% by weight. The fuel oil with a maximum sulfur content of 0.3% by weight. The fuel oil or natural gas shall be used only for startups. The maximum annual oil usage shall not exceed 160,000 gals/year, nor shall the maximum annual natural gas usage exceed 22.4 MMCF per year. The maximum heat input from the fuel oil or gas shall not exceed 1120 MMBtu/hr for the CFBs. The CFBs shall be fueled only with the fuels permitted in Conditions 1a., 1b and 1e above. Other fuels or wastes shall not be burned without prior specific written approval of the Secretary of DER pursuant to condition XXI, Modification of Conditions. The CFBs may operate continuously, i.e. 8760 hrs/yr. Coal Fired Boiler Controls The emissions from each CFB shall be controlled using the following systems: Limestone injection, for control of sulfur dioxide. Baghouse, for control of particulate. Flue gas emissions from each CFB shall not exceed the following: Pollutant lbs/MMBtu Emission lbs/hr Limitations TPY TPY for 3 CFBs CO 0.19 202 823 2468 NOx 0.29 308.3 1256 3767 SO2 0.60(3-hr avg.) 637.8 -- -- 0.31(12 MRA) 329.5 1338 4015 VOC 0.016 17.0 69 208 PM 0.020 21.3 87 260 PM10 0.020 21.3 86 257 H2SO4mist 0.024 25.5 103 308 Fluorides 0.086 91.4 374 1122 Lead 0.007 7.4 30 91 Mercury 0.00026 0.276 1.13 3.4 Beryllium 0.00011 0.117 0.5 1.5 Note: TPY represents a 93% capacity factor. MRA refers to a twelve month rolling average. Visible emissions (VE) shall not exceed 20% capacity (6 min. average), except for one 6 minute period per hour when VE shall not exceed 27% capacity. Compliance with the emission limits shall be determined by EPA reference method tests included in the July 1, 1988 version of 40 CFR Parts 60 and 61 and listed in Condition No. 7 of this permit or be equivalent methods after prior DER approval. The CFBs are subject to 40 CFR Part 60, Subpart Da; except that where requirements within this certification are more restrictive, the requirements of this certification shall apply. Compliance Tests for each CFB Initial compliance tests for PM/PM10, SO2, NOx, CO, VOC, lead, fluorides, mercury, beryllium and H2SO4 mist shall be conducted in accordance with 40 CFR 60.8 (a), (b), (d), (e), and (f). Annual compliance tests shall be performed for PM. SO2, NOx, commencing no later than 12 months from the initial test. Initial and annual visible emissions compliance tests shall be determined in accordance with 40 CFR 60.11(b) and (e). The compliance tests shall be conducted between 90-100% of the maximum licensed capacity and firing rate of each permitted fuel. The following test methods and procedures of 40 CFR Parts 60 and 61 or other DER approved methods with prior DER approval shall be used for compliance testing: Method 1 for selection of sample site and sample traverses. Method 2 for determining stack gas flow rate. Method 3 or 3A for gas analysis for calculation of percent O2 and CO2. Method 4 for determining stack gas moisture content to convert the flow rate from actual standard cubic feet to dry standard cubic feet. Method 5 or Method 17 for particulate matter. Method 6, 6C, or 8 for SO2. Method 7, 7A, 7B, 7C, 7D, or 7E for nitrogen oxides. Method 8 for sulfuric acid mist. Method 9 for visible emissions, in accordance with 40 CFR 60.11. Method 10 for CO. Method 12 for lead. Method 13B for fluorides. Method 25A for VOCs. Method 101A for mercury. Method 104 for beryllium. Continuous Emission Monitoring for each CFB AESCB shall use Continuous Emission Monitors (CEMS) to determine compliance. CEMS for opacity, SO2, NOx, CO, and O2 or CO2, shall be installed, calibrated, maintained and operated for each unit, in accordance with 40 CFR 60.47a and 40 CFR 60 Appendix F. Each continuous emission monitoring system (CEMS) shall meet performance specifications of 40 CFR 60, Appendix B. CEMS data shall be recorded and reported in accordance with F.A.C. Chapter 17-2, F.A.C., and 40 CFR 60. A record shall be kept for periods of startup, shutdown and malfunction. A malfunction means any sudden and unavoidable failure of air pollution control equipment or process equipment to operate in a normal or usual manner. Failures that are caused entirely or in part by poor maintenance, careless operation or any other preventable upset condition or preventable equipment breakdown shall not be considered malfunctions. The procedures under 40 CFR 60.13 shall be followed for installation, evaluation and operation of all CEMS Opacity monitoring system data shall be reduced to 6-minute averages, based on 36 or more data points, and gaseous CEMS data shall be reduced to 1-hour averages, based on 4 or more data points, in accordance with 40 CFR 60.13(h). For purposes of reports required under this certification, excess emissions are defined as any calculated average emission concentration, as determined pursuant to Condition No. 10 herein, which exceeds the applicable emission limit in Condition No. 3. Operations Monitoring for each CFB Devices shall be installed to continuously monitor and record steam production, and flue gas temperature at the exit of the control equipment. The furnace heat load shall be maintained between 70% and 100% of the design rated capacity during normal operations. The coal, bark, natural gas and No. 2 fuel oil usage shall be recorded on a 24-hr (daily) basis for each CFB. Reporting for each CFB A minimum of thirty (30) days prior notification of compliance test shall be given to DER's N.E. District office and to the BESD (Bio-Environmental Services Division) office, in accordance with 40 CFR 60. The results of compliance test shall be submitted to the BESD office within 45 days after completion of the test. The owner or operator shall submit excess emission reports to BESD, in accordance with 40 CFR 60. The report shall include the following: The magnitude of excess emissions computed in accordance with 40 CFR 60.13(h), any conversion factors used, and the date and time of commencement and completion of each period of excess emissions (60.7(c)(1)). Specific identification of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the furnace boiler system. The nature and cause of any malfunction (if known) and the corrective action taken or preventive measured adopted (60.7(c)(2)). The date and time identifying each period during which the continuous monitoring system was inoperative except for zero and span checks, and the nature of the system repairs of adjustments (60.7(c)(3)). When no excess emissions have occurred or the continuous monitoring system has not been inoperative, repaired, or adjusted, such information shall be stated in the report (60.7(c)(4)). The owner or operator shall maintain a file of all measurements, including continuous monitoring systems performance evaluations; monitoring systems or monitoring device calibration; checks; adjustments and maintenance performed on these systems or devices; and all other information required by this permit recorded in a permanent form suitable for inspection (60.7(d)). Annual and quarterly reports shall be submitted to BESD as per F.A.C. Rule 17-2.700(7). Any change in the method of operation, fuels utilized, equipment, or operating hours or any other changes pursuant to F.A.C. Rule 17-2.100, defining modification, shall be submitted for approval to DER's Bureau of Air Regulation. AES - Material Handling and Treatment The material handling and treatment operations may be continuous, i.e. 8760 hrs/yr. The material handling/usage rates shall not exceed the following: Handling/Usage Rate Material TPM TPY Coal 117,000 1,170,000 Limestone 27,000 320,000 Fly Ash 28,000 336,000 Bed Ash 8,000 88,000 Note: TPM is tons per month based on 30 consecutive days, TPY is tons per year. The VOC emissions from the maximum No. 2 fuel oil utilization rate of 240 gals/hr, 2,100,000 gals/year for the limestone dryers; and 8000 gals/hr, 160,000 gals/year for the three boilers are not expected to be significant. The maximum emissions from the material handling and treatment area, where baghouses are used as controls for specific sources, shall not exceed those listed below (based on AP-42 factors): Particulate Emissions Source lbs/hr TPY Coal Rail Unloading Coal Belt Feeder neg neg neg neg Coal Crusher 0.41 1.78 Coal Belt Transfer neg neg Coal Silo neg neg Limestone Crusher 0.06 0.28 Limestone Hopper 0.01 0.03 Fly Ash Bin 0.02 0.10 Bed Ash Hopper 0.06 0.25 Ash Silo 0.06 0.25 Common Feed Hopper 0.03 0.13 Ash Unloader 0.01 0.06 The emissions from the above listed sources and the limestone dryers are subject to the particulate emission limitation requirement of 0.03 gr/dscf. However, neither DER nor BESD will require particulate tests in accordance with EPA Method 5 unless the VE limit of 5% opacity is exceeded for a given source, or unless DER or BESD, based on other information, has reason to believe the particulate emission limits are being violated. Visible Emissions (VE) shall not exceed 5% opacity from any source in the material handling and treatment area, in accordance with F.A.C. Chapter 17-2. The maximum emissions from each of the limestone dryers while using oil shall not exceed the following (based on AP-42 factors, Table 1, 3-1, Industrial Distillate, 10/86): Pollutant lbs/hr Estimated TPY Limitations TPY for 2 dryers PM/PM10 0.25 1.1 2.2 SO2 5.00 21.9 43.8 CO 0.60 2.6 5.2 NOx 2.40 10.5 21.0 VOC 0.05 0.2 0.4 Visible emissions from the dryers shall not exceed 5% opacity. If natural gas is used, emissions limits shall be determined by factors contained in AP-42 Table 1. 4-1, Industrial 10/86. The maximum No. 2 fuel oil firing rate for each limestone dryer shall not exceed 120 gals/hr, or 1,050,000 gals/year. This reflects a combined total fuel oil firing rate of 240 gals/hr, and 2,100,000 gals/year, for the two dryers. The maximum natural gas firing rate for each limestone dryer shall not exceed 16,800 CF per hour, or 147 MMCF per year. Initial and annual Visible Emission compliance tests for all the emission points in the material handling and treatment area, including but not limited to the sources specified in this permit, shall be conducted in accordance with the July 1, 1988 version of 40 CFR 60, using EPA Method 9. Compliance test reports shall be submitted to BESD within 45 days of test completion in accordance with Chapter 17- 2.700(7) of the Florida Administrative Code. Any changes in the method of operation, raw materials processed, equipment, or operating hours or any other changes pursuant to F.A.C. Rule 17-2.100, defining modification, shall be submitted for approval to DER's Bureau of Air Regulation (BAR). Requirements for the Permittees Beginning one month after certification, AESCB shall submit to BESD and DER's BAR, a quarterly status report briefly outlining progress made on engineering design and purchase of major equipment, including copies of technical data pertaining to the selected emission control devices. These data should include, but not be limited to, guaranteed efficiency and emission rates, and major design parameters such as air/cloth ratio and flow rate. The Department may, upon review of these data, disapprove the use of any such device. Such disapproval shall be issued within 30 days of receipt of the technical data. The permittees shall report any delays in construction and completion of the project which would delay commercial operation by more than 90 days to the BESD office. Reasonable precautions to prevent fugitive particulate emissions during construction, such as coating of roads and construction sites used by contractors, regrassing or watering areas of disturbed soils, will be taken by the permittees. Fuel shall not be burned in any unit unless the control devices are operating properly, pursuant to 40 CFR Part 60 Subpart Da. The maximum sulfur content of the No. 2 fuel oil utilized in the CFBs and the two unit limestone dryers shall not exceed 0.3 percent by weight. Samples shall be taken of each fuel oil shipment received and shall be analyzed for sulfur content and heating value. Records of the analysis shall be kept a minimum of two years to be available for DER and BESD inspection. Coal fired in the CFBs shall have a sulfur content not to exceed 3.3 percent by weight. Coal sulfur content shall be determined and recorded in accordance with 40 CFR 60.47a. AESCB shall maintain a daily log of the amounts and types of fuel used and copies of fuel analysis containing information on sulfur content and heating values. The permittees shall provide stack sampling facilities as required by Rule 17-2.700(4) F.A.C. Prior to commercial operation of each source, the permittees shall each submit to the BAR a standardized plan or procedure that will allow that permittee to monitor emission control equipment efficiency and enable the permittee to return malfunctioning equipment to proper operation as expeditiously as possible. Contemporaneous Emission Reductions This certification and any individual air permits issued subsequent to the final order of the Board certifying the power plant site under 403.509, F.S., shall require, that the following Seminole Kraft Corporation sources be permanently shut down and made incapable of operation, and shall turn in their operation permits to the Division of Air Resources Management's Bureau of Air Regulation, at the time of submittal of performance test results for AES's CFBs: the No. 1 PB (power boiler), the No. 2 PB, shall be specifically informed in writing within thirty days after each individual shut down of the above reference equipment. This requirement shall operate as a joint and individual requirement to assure common control for purpose of ensuring that all commitments relied on are in fact fulfilled. WATER DISCHARGES Any discharges into any waters of the State during construction and operation of AESCB shall be in accordance with all applicable provisions of Chapters 17-3, and 17-6, Florida Administrative Code, and 40 CFR, Part 423, Effluent Guidelines and Standards for Steam Electric Power Generating Point Source Category, except as provided herein. Also, AESCB shall comply with the following conditions of certification: Plant Effluents and Receiving Body of Water For discharges made from the AESCB power plant the following conditions shall apply: Receiving Body of Water (RBW) - The receiving body of water has been determined by the Department to be those waters of the St. Johns River or Broward River and any other waters affected which are considered to be waters of the State within the definition of Chapter 403, Florida Statutes. Point of Discharge (POD) - The point of discharge has been determined by the Department to be where the effluent physically enters the waters of the State in the St. Johns River via the SKC discharge outfall 001, which is the existing main outfall from the paper mill emergency overflow to the Broward River. Thermal Mixing Zones - The instantaneous zone of thermal mixing for the AESCB cooling system shall not exceed an area of 0.25 acres. The temperature at the point of discharge into the St. Johns River shall not be greater than 95 degrees F. The temperature of the water at the edge of the mixing zone shall not exceed the limitations of Section 17-3.05(1)(d), F.A.C. Cooling tower blowdown shall not exceed 95 degrees F as a 24-hour average, nor 96 degrees F as an instantaneous maximum. Chemical Wastes from AESCB - All discharges of low volume wastes (demineralizer regeneration, floor drainage, labs drains, and similar wastes) and chemical metal cleaning wastes shall comply with Chapter 17-6, F.A.C. at OSN 006 and 007 respectively. If violations of Chapter 17-6 F.A.C. occur, corrective action shall be taken by AESCB. These wastewaters shall be directed to an adequately sized and constructed treatment facility. pH - The pH of the combined discharges shall be such that the pH will fall within the range of 6.0 to 9.0 at the POD to the St. Johns River and shall not exceed 6.5 to 8.5 at the boundary of a 0.25 acre mixing zone. Polychlorinated Bipheny Compounds - There shall be no discharge of polychlorinated bipheny compounds. Cooling Tower Blowdown - AESCB's discharge from Outfall Serial Number 002 - Cooling Tower Blowdown shall be limited and monitored as specified below: a. Parameter Discharge Limit Monitoring Frequency Requirement Type Discharge Flow (mgd) Report 1/day Totalizer Discharge Temp (F) Instantaneous Maximum Continuous Recorder Total Residual Instantaneous Continuous Recorder Oxidants Maximum-.05 mg/l Time of Total 120 minutes Continuous Recorder Residual Oxidant per day Discharge (TR) Iron Instantaneous 1/week grab Maximum-0.5 mg/l pH 6-9 1/week grab There shall be no detectable discharge of the 125 priority pollutants contained in chemicals added for cooling tower maintenance. Notice of any proposed use of compounds containing priority pollutants shall be made to the DER Northeast District Office not later than 180 days prior to proposed use. Samples taken in compliance with the monitoring requirements specified above shall be taken at OSN 002 prior to mixing with any other waste stream. Seminole Kraft Corporation (SKC) shall shut down the mill's once thru cooling system upon completion of the initial compliance tests on the AESCB boilers conducted pursuant to Condition II.A.7. SKC shall inform the DER NE District Office of the shutdown and surrender all applicable operating permits for that facility. Combined Low Volume Wastes shall be monitored at OSN 006 with weekly grab samples. Discharge limitations are as follows: Daily Max Daily Avg Oil and Grease 20.0 mg/l 15.0 Copper-dissolved 1.0 mg/l* N/A Iron-dissolved 1.0 mg/l* N/A Flow Report N/A Heavy Metals Report (See Below) The pH of the discharge shall not be less than 7.0* standard units and shall be monitored once per shift, unless more frequent monitoring is necessary to quantify types of nonchemical metal cleaning waste discharged. Serial number assigned for identification and monitoring purposes. Heavy metal analysis shall include total copper, iron, nickel, selenium, and zinc. *Limits applicable only to periods in which nonchemical metal cleaning waste is being discharged via this OSN. Length of composite samples shall be during the periods (s) of nonchemical metal cleaning waste generation and discharge and shall be adequate to quantify differences in sources of waste generated (air preheater vs. boiler fireside, etc.). Chemical Metal Cleaning AESCB's discharge from outfall serial number 007 - metal cleaning wastes discharged to the Seminole Kraft treatment system. Such discharges shall be limited and monitored by the permittee as specified below: a. Effluent Characteristic Discharge Limits Monitoring Requirements Instantaneous Max Measurement Frequency Sample Type Flow - m3/day (MGD) - 1/batch Pump log Copper, Total 1.0 mg/l 1/ grab Iron, Total Batches 1.0 mg/l Report 1/ 1/batch grab logs Chemical metal-cleaning wastes shall mean process equipment cleaning including, but not limited to, boiler tubes cleaning. Waste treated and discharged via this OSN shall not include any stream for which an effluent guideline has not been established (40 CFR Part 423) for total copper and total iron at the above levels. Samples taken in compliance with the monitoring requirement specified above shall be taken at the discharge from the metal-cleaning waste treatment facility(s) prior to mixing with any other waste stream. Storm Water Runoff - During construction and operation discharge from the storm water runoff collection system from a storm event less than the once in ten year twenty-four hour storm shall meet the following limits and shall be monitored at OSN 003 by a grab sample once per discharge, but not more often than once per week:* Discharge Limits Effluent Characteristic Instantaneous Maximum Flow (MGD) Report TSS (mg/l) 50 pH 6.0-9.0 During plant operation, necessary measures shall be used to settle, filter, treat or absorb silT.containing or pollutanT.laden storm water runoff to limit the suspended solids to 50 mg/l or less at OSN 003 during rainfall periods less than the 10-year, 24-hour rainfall. Any underdrains must be checked annually and measures must be taken to insure that the underdrain operates as designed. Permittees will have to modify the underdrain system should maintenance measures be insufficient to achieve operation of the underdrains as designed. AES Cedar Bay must back flush the exfiltration/underdrain system at least once during the first six months of calendar each year. These backflushings must occur no closer than four calendar months from each other. In advance of backflushing the exfiltration/underdrain systems, the permittees must notify BESD and SJRWMD of the date and time of the backflushing. Control measures shall consist at the minimum of filters, sediment, traps, barriers, berms or vegetative planting. Exposed or disturbed soil shall be protected as soon as possible to minimize silt, and sedimenT.laden runoff. The pH shall be kept within the range of 6.0 to 9.0 in the discharge to the St. Johns River and 6.5 to 8.5 in the Broward River. Special consideration must be given to the control of sediment laden runoff resulting from storm events during the construction phase. Best management practices erosion controls should be installed early during the construction period so as to prevent the transport of sediment into surface waters which could result in water quality violations and Departmental enforcement action. Revegetation and stabilization of disturbed areas should be accomplished as soon as possible to reduce the potential for further soil erosion. Should construction phase runoff pose a threat to the water quality of state waters, additional measures such as treatment of impounded runoff of the use of turbidity curtains (screens) in on-site impoundments shall be immediately implented with any releases to state waters to be controlled. It is necessary that there be an entity responsible for maintenance of the system pursuant to Section 17- 25.027, F.A.C. Correctional action or modification of the system will be necessary should mosquito problems occur. AES Cedar Bay shall submit to DER with copy to BESD, erosion control plans for the entire construction project (or discrete phrases of the project) detailing measures to be taken to prevent the offsite discharge of turbid waters during construction. These plans must also be provided to the construction contractor prior to the initiation of construction. All swale and retention basin side slopes shall be seeded and mulched within thirty days following their completion and a substantial vegetative cover must be established within ninety days of seeding. Boiler Blowdown Discharge from boiler blowdown to the cooling tower from outfall serial Number 004 shall be limited and monitored as specified below: Effluent Discharge Limits Monitoring Characteristic Requirements Daily Sample Measurement Maximum Type Frequency TSS 30.0 grab 1/Quarter Oil and Grease 15.0 grab 1/Quarter Flow - Calculation 1/Quarter Construction Dewatering Discharge of construction dewatering to the SKC once-through cooling system from outfall serial number 005 shall be limited and monitored as specified below: Effluent Characteristic Discharge Limits Monitoring Requirements Instantaneous Maximum Measurement Frequency Sample Type Flow - m3/day (MGD) - daily Totalizer Turbidity (NTU) 164 1/week grab Aluminium mg/l 1.5 1/week grab Copper mg/l 0.046 daily composite Iron mg/l 0.3 1/week grab Lead mg/l 0.5 1/week grab Mercury mg/l 0.002 1/week grab Phenol ug/l 35.7 daily grab TSS mg/l 50.0 1/week grab pH 6.0-9.0 1/week grab Variance - In accordance with the provisions of Section 403.201 and 403.511(2), F.S., AES Cedar Bay is hereby granted a variance to water quality standards of Chapter 17- 3.121, F.A.C. for copper subject to the following conditions. AES Cedar Bay shall treat the construction dewatering discharge so as not to exceed 0.046 milligrams per liter for copper in the effluent from the dewatering treatment system. AES Cedar Bay shall do sufficient bench testing to demonstrate that it can meet the above limit for copper. AES Cedar Bay shall notify DER and BESD of the bench testing, and allow DER and BESD to be present if they so desire to observe the bench testing. In addition, AES Cedar Bay shall determine the amount of treatment and removal provided for iron, aluminum and lead by the method of treatment selected for copper. A report shall be submitted to DER and BESD summarizing the results of the bench testing of the proposed treatment technique. The variance shall be valid beginning with the start of dewatering and lasting until the end of construction dewatering but not to exceed a period of two years (not including periods of interruption in the construction dewatering). The Secretary has been delegated the authority to grant additional variances or mixing zones from water quality standards should AES Cedar Bay demonstrate any to be necessary after consideration of comments from the parties, public notice and an opportunity for hearing, pursuant to section 120.57 F.S., with final action by the Siting Board if a hearing is requested. In the absence of such final action by the Secretary, compliance with water quality standards shall be measured at the designated POD to the St. John River unless a zone of mixing is granted. Project discharge descriptions - Dewatering water, outfall 005, includes all surficial groundwater extracted during all excavation construction on site for the purpose of installing structures, equipment, etc. Discharges to the SKC once through cooling water system at a location to be depicted on an appropriate engineering drawing to be submitted to DER and BESD. Final discharge after treatment is to the St. Johns River. The permittee shall report to BESD the date that construction dewatering is expected to begin at least one week prior to the commencement of dewatering. Mixing zones - The discharge of the following pollutants shall not violate the Water Quality Standards of Chapter 17-3, F.A.C., beyond the edge of the designated instantaneous mixing zones as described herein. Such mixing zones shall apply when the St. Johns River is in compliance with the applicable water quality standard. Plant Dewatering Operations for two years from the date construction dewatering commences: Parameter Mixing Zone Aluminum 125,600 m2 31 acres Copper " 31 " Iron " 31 " Lead " 31 " Turbidity 12,868 m2 3.2 " Phenol 12,868 " 3.2 " The permittee shall report the date construction dewatering commences to the BESD. During operation of CBCP for the life of the facility: Iron 125,600 m2 (31 acre) mixing zone Chlorine 0 - not measurable in river Temp 1,013 m2 (0.25 acre) pH 1,013 m2 (0.25 acre) Variances to Water Quality Standards - In accordance with the provisions of Sections 403.201 and 403.511(2), F.S., permittees are hereby granted variances to the water Quality Standards of Chapter 17-3.121, F.A.C. for the following: During construction dewatering for a period not to exceed two years -- copper. The Secretary of DER may authorize variances for aluminum, iron, and lead upon a showing that treatment for copper can not bring these metals into compliance, however, any variance granted shall not cause or allow an exceedance of acute toxicity standards. During Operation -- iron. Such variances shall apply only as the natural background levels of the St. Johns River approach or exceed those standards. In any event, the discharge from the CBCP shall comply with the effluent limitations set forth in Paragraph III.A.12. At least 90 days prior to start of construction, AES shall submit a bioassay program to assess the toxicity of construction dewatering effluent to the DER for approval. Such program shall be approved prior to start of construction dewatering. Sanitary wastes from AESCB shall be collected and discharged for treatment to the SKC domestic wastewater treatment plant. Water Monitoring Programs Necessity and extent of continuation, and may be modified in accordance with Condition No. XXI, Modification of Conditions. Chemical Monitoring - The parameters described in Condition III.A. shall be monitored during discharge as described in condition III A. commencing with the start of construction or operation of the CFBs and reported quarterly to the Northeast District Office: Coal, Ash, and Limestone Storage Areas - runoff from the coal pile, ash and lime stone storage areas shall be directed to the SK waste-water treatment facility for discharge under its existing waste-water permit. Monitoring of metals, such as iron, copper, zinc, mercury silver, and aluminum, shall be done once a month during any month when a discharge occurs at OSC 008 or once per month from the collection pond. The ground water levels shall be monitored continuously at selected wells as approved by the SJRWMD. Chemical analysis shall be made on samples from all monitored wells identified in Condition III.F. below. The location, frequency and selected chemical analysis shall be as given in Condition IV.F. The ground water monitoring program shall be implemented at least one year prior to operation of the CFBs. The chemical analysis shall be in accord with the latest edition of Standard Methods for the Analysis of Water and Waistwater. The data shall be submitted within 30 days of collection/analysis to the SJRWMD. GROUND WATER Prior to the construction, modification, or abandonment of a production well for the SK paper mill, the Seminole Kraft must obtain a Water Well Construction Permit from the SJRWMD pursuant to Chapter 40C-3, Florida Administrative Code. Construction, modification, or abandonment of a production well will require modification of the SK consumptive use permit when such construction, modification or abandonment is other than that specified and described on SK's consumptive use permit application form. The construction, modification, or abandonment of a monitor well specified in condition IV.H. will require the prior approval of the Department. All monitor wells intended for use over thirty days must be noticed to BESD prior to construction or change of status from temporary to permanent. Well Criteria, Tagging and Wellfield Operating Plan Leaking or inoperative well casings, valves, or controls must be repaired or replaced as required to put the system back in an operative condition acceptable to the SJRWMD. Failure to make such repairs will be cause for deeming the well abandoned in accordance with Chapter 17.21.02(5), Florida Administrative Code, Chapter 373.309, Florida Statutes and Chapter 366.301(b), and .307(a), Jacksonville ordinance code. Wells deemed abandoned will require plugging according to state and local regulations. A SJRWMD issued identification tag must be prominently displayed at each withdrawal site by permanently affixing such tag to the pump, headgate, valve or other withdrawal facility as provided by Section 40C-2.401, Florida Administrative Code. The SK must notify the SJRWMD in the event that a replacement tag is needed. The permittees must develop and implement a Wellfield Operating Program within six (6) months of certification. This program must describe which wells are primary, secondary, and standby (reserve); the order of preference for using the wells; criteria for shutting down and restarting wells; describe AES Cedar Bay and SKC responsibilities in the operation of the well field, and any other aspects of well field management operation, such as who the well field operator is and any other aspects of wellfield management operation. This program must be submitted to the SJRWMD and a copy to BESD within six (6) months of certification and receive District approval before the wells may be used to supply water for the AES Cedar Bay Cogeneration plant. Maximum Annual Withdrawals Maximum annual withdrawals for AESCB from the Floridan aquifer must not exceed 1.99 billion gallons. Maximum daily withdrawals from the Florida aquifer for the AESCB must not exceed 7.0 million gallons. The use of the Floridan aquifer potable water for control of fugitive dust emissions is prohibited when alternatives are available, such as treated discharges, shallow aquifer wells, or stormwater. The use of Floridan aquifer potable water for the sole purpose of waste stream dilution is prohibited. Water Use Transfer The SJRWMD must be notified, in writing, within 90 days of the transfer of this certification. All transfers are subject to the provisions of Section 40C-2.351, Florida Administrative Code, which state that all terms and conditions of the permit shall be binding of the transferee. Emergency Shortages Nothing in this certification is to be construed to limit the authority of the SJRWMD to declare a water shortage and issue orders pursuant to Section 373.175, Florida Statutes, or to formulate a plan for implementation during periods of water shortage, pursuant to Section 373.246, Florida Statutes. In the event of a water shortage, as declared by the District Governing Board, the AESCB shall adhere to reductions in water withdrawals as specified by the SJRWMD. Monitoring and Reporting The permittee shall maintain records of total daily withdrawals for the AESCB on a monthly basis for each year ending on December 31st. These records shall be submitted to the SJRWMD on Form EN-3 by January 31st of each year. Water quality samples shall be taken in May and October of each year from each production well. The samples shall be analyzed by an HRS certified laboratory for the following parameters: Magnesium Sulfate Sodium Carbonate Potassium Bi-Carbonate (or alkalinity if pH is 6.9 or lower) Chloride Calcium All major ion analysis shall be checked for anion-cation balance and must balance within 5 percent prior to submission. It is recommended that duplicates be taken to allow for laboratory problems or loss. The sample analysis shall be submitted to the SJRWMD by May 30 and October 30 of each year. AESCB shall mitigate any adverse impact caused by withdrawals permitted hereinon legal uses of water existing at the time of permit application. The SJRWMD has the right to curtail permitted withdrawal rates or water allocations if the withdrawals of water cause an adverse impact on legal uses of water which existed at the time of permit application. Adverse impacts are exemplified but not limited to: Reduction of well water levels resulting in a reduction of 10 percent in the ability of an adjacent well to produce water; Reduction of water levels in an adjacent surface water body resulting in a significant impairment of the use of water in that water body; Saline water intrusion or introduction of pollutants into the water supply of an adjacent water use resulting in a significant reduction of water quality; or Change in water quality resulting in either impairment or loss of use of a well or water body. The AESCB shall mitigate any adverse impact cause by withdrawals permitted herein on adjacent land uses which existed at the time of permit application. The SJRWMD had the right to curtail permitted withdrawal rates of water allocations if withdrawals of water cause any adverse impact on adjacent land use which existed at the time of permit application. Adverse impacts are exemplified by but not limited to: Significant reduction in water levels in an adjacent surface water body; Land collapse or subsidence caused by a reduction in water levels; or Damage to crops and other types of vegetation. Significant increases in Chloride levels such that it is likely that wells from the plant or those being impacted from the plant, will exceed 250 mg/l. Ground Water Monitoring Requirements After consultation with the DER, BESD, and SJRWMD, AESCB shall install a monitoring well network to monitor ground water quality horizontally and vertically through the aquifer above the Hawthorm Formation. Ground water quantity and flow directions will be determined seasonally at the site through the preparation of seasonal water table contour maps, based upon water level data obtained during the applicant's preoperational monitoring program. From these maps and the results of the detailed subsurface investigation of site stratigraphy, the water quality monitoring well network will be located. A ground water monitoring plan that meets the requirements of Section 17-28.700(d), F.A.C., shall be submitted to the Department's Northeast District Office for review. Approval or disapproval of the ground water monitoring plan shall be given within 60 days of receipt. Ground water monitoring shall be required at AESCB's pelletized ash storage area, each sedimentation pond, the lime mud storage area, and each coal pile storage area. Insofar as possible, the monitoring wells may be selected from the existing wells and piezometers used in the permittees preoperational monitoring program, provided that the wells construction will not preclude their use. Existing wells will be properly sealed in accordance with Chapter 17-21, F.A.C., whenever they are abandoned due to construction of facilities. The water samples collected from each of the monitor wells shall be collected immediately after removal by pumping of a quantity of water equal to at least three casing volumes. The water quality analysis shall be performed monthly during the year prior to commercial operation and quarterly thereafter. No sampling or analysis is to be initiated until receipt of written approval of a site-specific quality assurance project plant (QAPP) by the Department. Results shall be submitted to the BESD by the fifteenth (15th) day of the month following the month during which such analysis were performed. Testing for the following constituents is required around unlined ponds or storage areas: TDS Cadmium Conductance Zinc pH Copper Redox Nickel Sulfate Selenium Sulfite Chromium Color Arsenic Chloride Beryllium Iron Mercury Aluminum Lead Gross Alpha Conductivity shall be monitored in wells around all lined solid waste disposal sites, coal piles, and wastewater treatment and sedimentation ponds. Leachate Zone of Discharge Leachate from AESCB's coal storage piles, lime mud storage area or sedimentation ponds shall not cause or contribute to contamination of waters of the State (including both surface and ground waters) in excess of the limitations of Chapter 17-3, F.A.C., beyond the boundary of a zone of discharge extending to the top of the Hawthorne Formation below the wastelandfill cell or pond rising to a depth of 50 feet at a horizontal distance of 200 feet from the edge of the landfill or ponds. Corrective Action When the ground water monitoring system shows a potential for this facility to cause or contribute to a violation of the ground water quality standards of Chapter 17-3, F.A.C., at the boundary of the zone of discharge, the appropriate ponds or coal pile shall be bottom sealed, relocated, or the operation of the affected facility shall be altered in such a manner as to assure the Department that no violation of the ground water standards will occur beyond the boundary of the zone of discharge. CONTROL MEASURES DURING CONSTRUCTION Storm Water Runoff During construction, appropriate measures shall be used to settle, filter, treat or absorb silT.containing or pollutanT.laden storm water runoff to limit the total suspended solids to 50 mg/1 or less and pH to 6.0 to 9.0 at OSN 003 during rainfall events that are lesser in intensity than the 10-year, 24-hour rainfall, and to prevent an increase in turbidity of more than 29 NTU above background in waters of the State. Control measures shall consist at the minimum of sediment traps, barriers, berms or vegetative planting. Exposed or disturbed soil shall be protected as soon as possible to minimize silT. and sedimenT.laden runoff. The pH shall be kept within the range of 6.0 to 9.0 at OSN 003. Stormwater drainage to the Broward River or St. Johns River shall be monitored as indicated below: Monitoring Point Parameters Frequency Sample Type *Storm water drainage BOD5, TOC, sus- ** ** to the Broward River pended solids, from the runoff turbidity, dis- treatment pond solved oxygen, pH, TKN, Total phosphorus, Fecal Coliform, Total Coliform Oil and grease ** ** *Monitoring shall be conducted at suitable points for allowing a comparison of the characteristics of preconstruction and construction phase drainage and receiving waters. **The frequency and sample type shall be as outlined in a sampling program prepared by the applicant and submitted at least ninety days prior to start of construction for review and approval by the DER Northeast District Office. The District Office will furnish copies of the sampling program to the BESD and SJRWMD and shall indicate approval or disapproval within 60 days of submittal. Sanitary Wastes Disposal of sanitary wastes from construction toilet facilities shall be in accordance with applicable regulations of the Department and the BESD. Environmental Control Program Each permittee shall establish an environmental control program under the supervision of a qualified person to assure that all construction activities conform to good environmental practices and the applicable conditions of certification. A written plan for controlling pollution during construction shall be submitted to DER and BESD within sixty days of issuance of the Certification. The plan shall identify and describe all pollutants and waste generagted during construction and the methods for control, treatment and disposal. Each permittee shall notify the Department's Northeast District Office and BESD by telephone within 24 hours if possible if unexpected harmful effects or evidence of irreversible environmental damage are detected by it during construction, shall immediately report in writing to the Department, and shall within two weeks provide an analysis of the problem and a plan to eliminate or significantly reduce the harmful effects or damage and a plan to prevent reoccurrence. Construction Dewatering Effluent Maximum daily withdrawals for dewatering for the construction of the railcar unloading facility must not exceed 1.44 million gallons, except during the first 30 days of dewatering. Dewatering for the construction of the railcar unloading facility shall terminate no later than nine months from the start of dewatering. Should the permittee's dewatering operation create shoaling in adjacent water bodies, the permittee is responsible for removing such shoaling. All offsite discharges resulting from dewatering activities must be in compliance with water quality standards required by DER Chapters 17-3 and 17-4, F.A.C., or such standards as issued through a variance by DER. SAFETY The overall design, layout, and operation of the facilities shall be such as to minimize hazards to humans and the environment. Security control measures shall be utilized to prevent exposure of the public to hazardous conditions. The Federal Occupational Safety and Health Standards will be complied with during construction and operation. The Safety Standards specified under Section 440.56, F.S., by the Industrial Safety Section of the Florida Department of Commerce will also be complied with. CHANGE IN DISCHARGE All discharges or emissions authorized herein to AESCB shall be consistent with the terms and conditions of this certification. The discharge of any pollutant not identified in the application or any discharge more frequent than, or at a level in excess of, that authorized herein shall constitute a violation of this certification. Any anticipated facility expansions, production increases, or process modification which will result in new, different or increased discharges or expansion in steam generating capacity will require a submission of new or supplemental application to DER's Siting Coordination Office pursuant to Chapter 403, F.S. NONCOMPLIANCE NOTIFICATION If, for any reason, either permittee does not comply with or will be unable to comply with any limitation specified in this certification, the permittee shall notify the Deputy Assistant Secretary of DER's Northeast District and BESD office by telephone as soon as possible but not later than the first DER working day after the permittee becomes aware of said noncompliance, and shall confirm the reported situation in writing within seventy-two (72) hours supplying the following information: A description and cause of noncompliance; and The period of noncompliance, including exact dates and times; or, if not corrected, the anticipated time the noncompliance is expected to continue, and steps being taken to reduce, eliminate, and prevent recurrence of the noncomplying event. FACILITIES OPERATION Each permittee shall at all times maintain good working order and operate as efficiently as possible all of its treatment or control facilities or systems installed or used by the permittee to achieve compliance with the terms and conditions of this certification. Such systems are not to be bypassed without prior Department (Northeast District) after approval and after notice to BESD except where otherwise authorized by applicable regulations. ADVERSE IMPACT The permittees shall take all reasonable steps to minimize any adverse impact resulting from noncompliance with any limitation specified in this certification, including, but not limited to, such accelerated or additional monitoring as necessary to determine the nature and impact of the noncomplying event. RIGHT OF ENTRY The permittees shall allow the Secretary of the Florida Department of Environmental Regulation and/or authorized DER representatives, and representatives of the BESD and SJRWMD, upon the presentation of credentials: To enter upon the permittee's premises where an effluent source is located or in which records are required to be kept under the terms and conditions of this permit; and To have access to and copy all records required to be kept under the conditions of this certification; and To inspect and test any monitoring equipment or monitoring method required in this certification and to sample any discharge or emissional pollutants; and To assess any damage to the environment or violation of ambient standards. SJRWMD authorized staff, upon proper identification, will have permission to enter, inspect, and observe permitted and related CUP facilities in order to determine compliance with the approved plans, specifications, and conditions of this certification. BESD authorized staff, upon proper identification, will have permission to enter, inspect, sample any discharge, and observe permitted and related facilities in order to determine compliance with the approved plans, specifications, and conditions of this certification. REVOCATION OR SUSPENSION This certification may be suspended, or revoked pursuant to Section 403.512, Florida Statutes, or for violations of any Condition of Certification. CIVIL AND CRIMINAL LIABILITY This certification does not relieve either permittee from civil or criminal responsibility or liability for noncompliance with any conditions of this certification, applicable rules or regulations of the Department, or Chapter 403, Florida Statutes, or regulations thereunder. Subject to Section 403.511, Florida Statutes, this certification shall not preclude the institution of any legal action or relieve either permittee from any responsibilities or penalties established pursuant to any other applicable State Statutes or regulations. PROPERTY RIGHTS The issuance of this certification does not convey any property rights in either real or personal property, tangible or intangible, nor any exclusive privileges, nor does it authorize any injury to public or private property or any invasion of personal rights, nor any infringement of Federal, State or local laws or regulations. The permittees shall obtain title, lease or right of use to any sovereign submerged lands occupied by the plant, transmission line structures, or appurtenant facilities from the State of Florida. SEVERABILITY The provisions of this certification are severable, and, if any provision of this certification or the application of any provision of this certification to any circumstances is held invalid, the application of such provision to other circumstances and the remainder of the certification shall not be affected thereby. DEFINITIONS The meaning of terms used herein shall be governed by the definitions contained in Chapter 403, Florida Statutes, and any regulation adopted pursuant thereto. In the event of any dispute over the meaning of a term used in these general or special conditions which is not defined in such statutes or regulations, such dispute shall be resolved by reference to the most relevant definitions contained in any other state or federal statute or regulation or, in the alternative, by the use of the commonly accepted meaning as determined by the Department. REVIEW OF SITE CERTIFICATION The certification shall be final unless revised, revoked, or suspended pursuant to law. At least every five years from the date of issuance of this certification or any National Pollutant Discharge Elimination Control Act Amendments of 1972 for the plant units, the Department shall review all monitoring data that has been submitted to it or it's agent(s) during the preceding five- year period for the purpose of determining the extent of the permittee's compliance with the conditions of this certification of the environmental impact of this facility. The Department shall submit the results of it's review and recommendations to the permittees. Such review will be repeated at least every five years thereafter. MODIFICATION OF CONDITIONS The conditions of this certification may be modified in the following manner: The Board hereby delegates to the Secretary the authority to modify, after notice and opportunity for hearing, any conditions pertaining to consumptive use of water, reclaimed water, monitoring, sampling, ground water, surface water, mixing zones, or variances to water quality standards, zones of discharge, leachate control programs, effluent limitations, air emission limitations, fuel, or solid waste disposal, right of entry, railroad spur, transmission line, access road, pipelines, or designation of agents for the purpose of enforcing the conditions of this certification. All other modifications shall be made in accordance with Section 403.516, Florida Statutes. FLOOD CONTROL PROTECTION The plant and associated facilities shall be construed in such a manner as to comply with the Duval County flood protection requirements. EFFECT OF CERTIFICATION Certification and conditions of certification are predicated upon design and performance criteria indicated in the application. Thus, conformance to those criteria, unless specifically amended, modified, or as the Department and parties are otherwise notified, is binding upon the applicants in the preparation, construction, and maintenance of the certified project. In those instances where a conflict occurs between the application's design criteria and the conditions of certification, the conditions shall prevail. NOISE To mitigate the effects of noise produced by the steam blowout of steam boiler tubes, the permittees shall conduct public awareness campaigns prior to such activities to forewarn the public of the estimated time and duration of the noise. The permittees shall comply with the applicable noise limitations specified in Environmental Protection Board Rules or The City of Jacksonville Noise Ordinance. USE OF RECLAIMED WATER AESCB The AESCB shall design the Cogeneration Facility so as to be capable of using reclaimed and treated domestic wastewater from the City of Jacksonville for use as cooling tower makeup water. Reclaimed water shall be utilized as soon as it becomes available. Ground water may be used only as a backup to the reclaimed water after that time. Before use of reclaimed water from the City by the permittee, it will be treated to a level suitable for use as cooling tower makeup water. Reclaimed water used in the AESCB cooling tower shall be disinfected prior to use. Disinfectant levels in the cooling tower makeup water shall be continuously monitored, prior to insertion in the cooling tower. The reclaimed water shall be treated so as to obtain no less than a 1.0 mg/liter free chlorine residual after fifteen (15) minutes contact time or its equivalent. Chlorination shall occur at a turbidity of 5 Nephlometric Turbidity Units (NTU) or less, unless a lesser degree of disinfection is approved by the Department upon demonstration of successful viral kill. Within 120 days following issuance of a modification to the City of Jacksonville's DER wastewater discharge permit allowing Jacksonville, as part of its comprehensive reuse plan, to supply reclaimed water to the Cedar Bay Cogeneration Project, AES Cedar Bay, Inc. shall submit a request for modification to DER for use of reclaimed water for cooling purposes, seeking to make any necessary modifications to their facility and the conditions of certification as may be necessary to allow use of reclaimed water. Its request shall include plans, technical analyses, and modelling needed to evaluate the environmental effects of the proposed modifications. Its request for modification shall also include a financial analysis of the costs of any necessary modifications to its facility, additional operating costs, and the financial impact of these additional costs on AES Cedar Bay, Inc. If DER requires data or analyses concerning the cogeneration facility or its operation, or its discharges or emissions in order to evaluate Jacksonville's application to modify its domestic wastewater discharge permit, AES will supply the necessary information in a timely fashion. The Secretary, as prescribed in Condition XXI, Modification of Conditions, may modify the conditions of certification contained herein as may be necessary to implement the use of reclaimed water. The use of reclaimed water shall be contingent upon a determination of it being financially practicable, and it meeting applicable environmental standards. Prior to any such action by the Secretary, the Secretary shall request and consider a report by the SJRWMD as to the request for modification for the use of reclaimed water by AES Cedar Bay, Inc. Possible Use of Reclaimed Water The use of reclaimed water as described above shall not be limited to cooling tower makeup. Reuse water, if available may be used for fugitive particulate emission control, washdown, and any other feasible use for non-potable water which would not require additional treatment. ENFORCEMENT The Secretary may take any and all lawful actions as he or she deems appropriate to enforce any condition of this certification. Any participating agency (federal, state, local) may take any and all lawful actions to enforce any condition of this certification that is based on the rules of that agency. Prior to initiating such action the agency head shall notify the Secretary of that agency's proposed action. BESD may initiate any and all lawful actions to enforce the conditions of this certification that are based on the Department's rules, after obtaining the Secretary's written permission to so process on behalf of the Department. ENDANGERED AND THREATENED SPECIES Prior to start of construction, AESCB shall survey the site for endangered and threatened species of animal and plant life. Plant species on the endangered or threatened list shall be transplanted to an appropriate area if practicable. Gopher Tortoises and any commensals on the rare or endangered species list shall be relocated after consultation with the Florida Game and Fresh Water Fish Commission. A relocation program, as approved by the FGFWFC, shall be followed. PETROLEUM STORAGE TANKS AES Cedar Bay shall provide clean-up of the #1 underground diesel fuel storage tank site, which is listed under the EDI program, in accordance with F.A.C. Chapter 17-770. AES shall complete an Initial Remedial Action (IRA) in accordance with Rule 17-770.300, F.A.C., prior to construction dewatering. DER and BESD will receive written notification ten working days prior to initiation of the IRA. AES shall determine the extent of contamination. AES Cedar Bay shall then design and install a pump and treatment system at the site, which will create a reverse hydraulic gradient that will prevent the further spread of the contamination by the dewatering operation. This plan shall be submitted to DER and BESD for approval, thirty days prior to the start of construction dewatering, and shall be implemented prior to commencement of the dewatering operation. Furthermore, AES Cedar Bay shall submit a Quality Assurance Report (CAR) and a Remedial Action plan (RAP), in accordance with a F.A.C. Chapter 17-770 to DER for approval with copies to BESD thirty days prior to the start of construction dewatering. AES Cedar Bay shall provide complete site rehabilitation in accordance with F.A.C Chapter 17-770. AES Cedar Bay shall develop a QAPP, CAR, and RAP as required and in accordance with Chapter 17-700, F.A.C. for the site listed in XXVIII, C and D below, and submit these plans to DER for approval with copies to BESD thirty days prior to the start of construction dewatering. Prior to construction dewatering, at the underground diesel fuel storage tank #2 site, AES Cedar Bay shall: Perform an IRA with F.A.C. Rule 17-770.300. Determine the extent of down gradient contamination and submit that information to BESD, and DER prior to installation of the well described in paragraph C.4 below. Establish a series of groundwater level monitoring wells at intervals of approximately 250 feet from the coal unloading site to the #2 tank for determination of the groundwater dewatering cone of influence. Daily groundwater levels shall be recorded for each of these wells during construction dewatering. A background well with a continuous water level recorder shall be installed, at a site that would not be influenced by the dewatering operations, to determine ambient conditions at the site. Install a monitoring well with a continuous water level recorder which will be used to trigger implementation of the RAP. The well will be located 150 feet down gradient from the boundary of the plume of contamination determined above in XXVII C.2. If the epiezometric head in the trigger well drops 6 inches below ambient conditions as compared to the background well, then AES Cedar Bay shall notify DER and BESD of a verified drop of 6 inches or more in the trigger well within three working days and the appropriate portion of the RAP shall be implemented by AES Cedar Bay. AES Cedar Bay shall submit a plan for the location and construction of the monitoring wells described above in paragraph C.3 and C.4 to DER and BESD for approval. AES Cedar Bay shall submit monthly reports of the groundwater level recordings to DER and BESD. Prior to construction dewatering, at each of the following tank sites: underground diesel fuel storage tank #3; underground #6 fuel oil shortage tank #5; above-ground #6 fuel oil storage tank #2: "pitch tank" located North of the lime kilns; AES Cedar Bay shall: Install 2 down gradient monitoring wells. AES Cedar Bay shall submit a plan for location and construction of these 8 wells to DER and BESD for approval. BESD shall have the opportunity to observe the construction of these wells. Sample the above reference wells for parameters listed in 17-770.600(8), F.A.C. In addition, AES Cedar Bay shall sample the monitoring wells at the above-ground tank sites for acetone and carbon disulfide. AES Cedar Bay shall split samples with BESD if BESD so requests and submit a report of the analytical results to DER and BESD within ten days of receipt of analysis by AES Cedar Bay. If contamination is found in the above reference wells in excess of the clean-up criteria referenced in 17- 770.730(5)(a)2., F.A.C., a QAPP, CAR and an RAP will be development and, DER and BESD shall be provide with that information prior to the installation of the well described in paragraph D.4 below. Install a trigger well with a continuous water level recorder which will be located 150 feet down gradient from the boundary of the plume of contamination determined above in XXVIII.D.3. If the piezometric head in the trigger well drops 6 inches below ambient conditions as compared to the background well then AES Cedar Bay shall notify DER and BESD of a verified drop of 6 inches or more in the trigger well within three working days and the appropriate portion of the RAP shall be implemented by AES Cedar Bay. AES Cedar Bay shall submit a plan for the location and construction of the monitoring wells described above in paragraph D.4, to DER and BESD for approval. AES Cedar bay shall submit monthly reports of the groundwater level recordings to DER and BESD. Implementation of the appropriate portion of the RAP shall commence within 14 days of the determination that the construction dewatering cone of depression will reach any of contaminated sites. AES Cedar Bay shall monitor the construction dewatering effluent from their treatment system, once a week during dewatering, for the following criteria: Benzene 1 ugle; Total VOA 40 ug/l Total Naphthalenes (Total-naphthalenes = methyl napthalenes) 100 ugle; and Total Residual Hydrcarbons 5 mg/l. If the concentrations of contaminants in the effluent rise above those in the above list, AES Cedar Bay shall take corrective actions to return concentrations to acceptable levels. If any disagreement arises regarding this condition, the parties agree to submit the matter for an expedited hearing to the DOAH and shall request assignment of the hearing officer who has heard the case, if possible, pursuant to 403.5064, F.S. The informal dispute resolution process shall be used. COPIES FURNISHED: Terry Cole, Esquire Scott Shirley, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. 2700 Blairstone Road Suite C Tallahassee, FL 32301 Betsy Hewitt, Esquire Department of Environmental Regulation 2600 Blairstone Road Tallahassee, FL 32399-2400 Kathryn Mennella, Esquire St. Johns River Water Management District P.O. Box 1429 Palatka, FL 32178-1429 Richard L. Maguire, Esquire Towncentre, Suite 715 421 West Church Street Jacksonville, FL 32202 Katherine L. Funchess, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 William C. Bostwick, Esquire 1550-2 Hendricks Avenue Jacksonville, FL 32201 Daniel H. Thompson General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 =================================================================
The Issue The issues for determination are whether and the extent to which the properly proposed corridor (the FPL Corridor) for the St. Johns-Pellicer-Pringle 230-kV transmission line (the SJPP Line) complies with the criteria in Section 403.529(4)(a)-(e), Florida Statutes (2005)1, and whether Florida Power & Light's (FPL's) application for corridor certification should be approved in whole, with modifications or conditions, or denied.
Findings Of Fact Based upon all of the evidence the following findings of fact are determined: Parties The TLSA establishes FPL and the Department as parties to this proceeding, and the following became parties upon their timely filing of a notice of intent to be a party, which each has done: Florida Department of Transportation (DOT), Department of Community Affairs (DCA), St. Johns River Water Management District (SJRWMD), St. Johns County, and the City of Palm Coast. See § 403.527(4), Fla. Stat. The Application Project Description Generally, an electrical transmission line's purpose is to transport large amounts of electricity from a generating facility to one or more substations. At the substation, the electricity can be either increased or reduced in voltage through transformers and other electrical equipment for further safe and practical transportation, or distribution directly to customers. FPL is seeking certification of a corridor between the existing St. Johns substation and the proposed Pringle substation within which it will ultimately construct the SJPP Line on a narrow right-of-way (ROW). Once all property interests in the ROW are acquired, the boundaries of the corridor will shrink to the typical width of the 15 to 60-foot ROW. The service area for the proposed SJPP Line (the Project Service Area) is St. Johns County and Flagler County. The SJPP Line will follow Interstate 95 (I-95) in a north-south direction and will connect to the proposed intermediate Deerwood, Vermont, Anastasia, and Pellicer substations. The Project Service Area includes an area of increasing load and customer base in the area south of St. Johns and north of Pringle substations and to the west of the existing Bunnell- St. Johns 115-kV transmission line. The three objectives of the SJPP Line project are: (1) to address the need, as confirmed by the PSC, to serve FPL's increasing load and customer base in the area south of St. Johns and north of Pringle substations in a reliable manner; (2) to provide additional transmission reinforcement to the existing 115-kV transmission line between the Bunnell and St. Johns substations; and (3) to efficiently and effectively integrate and serve new distribution substations that are needed to serve projected load growth within Flagler and St. Johns Counties. The primary path for the SJPP transmission line bringing electricity into the Project Service Area will be aligned within or adjacent to existing linear features, such as existing road, transmission line and railroad ROWs. The only exception is a distance of less than half a mile in length between the proposed Vermont substation in the St. Augustine Industrial Park and I-95, where the corridor largely follows property lines. The primary path for the SJPP transmission line bringing electricity into the Project Service Area will be aligned within or adjacent to existing linear features, such as existing road, transmission line, and railroad ROWs. The only exception is a distance of less than half a mile in length between the proposed Vermont substation in the St. Augustine Industrial Park and I-95, where the corridor largely follows the property line. Need for the SJPP Line The PSC determined a new 230-kV transmission line between the St. Johns substation and the proposed Pringle substation is needed, taking into account the need for electric system reliability and integrity in northeast Florida and the need to provide abundant, low-cost electrical energy to assure the economic well-being of the citizens of the State, particularly those in northeast Florida. The PSC noted that FPL's planning studies indicate this additional transmission capacity will be needed by December 2008 to alleviate potential overloads and low voltage conditions that could result from a single contingency event. Without the addition of this transmission capability by 2008, the PSC found that up to 8,300 electric customers could experience service interruptions. The PSC recognized that the Siting Board will make the final corridor selection upon consideration of the factors and criteria specified in Section 403.529, Florida Statutes. Transmission Line Design The typical design for the SJPP Line will be a single- circuit unguyed concrete pole structure, 90 feet above grade in height, with the conductors framed in a vertical configuration. Each of the three conductors is anticipated to be a 1,431 thousand circular mils, aluminum conductor, steel reinforced alumoweld core. There will also be a smaller overhead ground wire to provide shielding and lightning protection for the conductors and provide communications capability. The maximum current rating for the line will be 1,905 amperes. In some locations, electric distribution lines and communication cables may also be attached to the structures beneath the conductors. In some locations, such as along FPL's St. Johns-Tocoi transmission line right-of-way and along Tocoi Road, a double- circuit configuration, with or without distribution underbuild, may be used. The span length between structures will typically vary between 250 and 750 feet, depending on site-specific conditions, ROW widths, and other design considerations. Both pole height and span length may vary to accommodate such things as locating poles to coincide with property boundaries or existing collocated utility facility poles, to avoid or minimize wetland impacts, to cross other utility lines, and to facilitate wide crossings of water bodies and roadways. Where the transmission line turns large angles or crosses other major linear facilities, the structures may be guyed or anchored to support the differential tension. Access roads and structure pads will be constructed only where necessary to provide access for construction, maintenance, and emergency restoration. Where constructed, the typical road top width will be about 14 feet, with a 2-to-1 side slope, and a minimum elevation of 6 inches over mean or seasonal high water. Structure pads will have variable sizes, depending on site specific requirements, but will be of sufficient size to provide access to structure locations for the large construction equipment. Access roads and structure pads will not be paved. Culverts will be installed beneath access roads and structure pads with spacing, diameter, and length to maintain preconstruction flows. The design of the SJPP Line complies with good engineering practices. The SJPP Line will be designed in compliance with all applicable design codes, including the National Electrical Safety Code (NESC), the Department's regulations on electric and magnetic fields, the DOT Utility Accommodation Manual, the St. Johns County and City of Palm Coast noise ordinances, and standards of the American Society of Civil Engineers (ASCE), the Institute of Electrical and Electronics Engineers, American Society of Testing Materials, American National Standards Institute, and American Concrete Institute, as well as FPL's own design standards. The Project assures the citizens of Florida that operation safeguards are technically sufficient for their welfare and protection. Transmission Line Construction Surveying the ROW to facilitate acquisition of the necessary property interests is a first step towards construction. After property rights for the ROW have been acquired, the initial phase of construction is to clear the ROW. Since nearly the entire length of the FPL Corridor is collocated with existing roads and utility facilities, the need for acquisition of private property and the need for clearing have been minimized. Clearing will consist mainly of tree trimming and the removal of trees that exceed or are capable of exceeding 14 feet in height. In wetlands, trees capable of exceeding 14 feet in height that could come in conflict with the line will be removed by hand-clearing or use of very low ground pressure equipment. Low-growing herbaceous vegetation will not be cleared from wetlands. After the ROW is cleared, any necessary access roads and structure pads will be constructed. Typically, access roads and pads are only required in wet and low areas. This enables all subsequent construction activity in those wet areas to remain on the newly constructed access road and pad. The next phases of construction involve the physical transmission line construction. Initially, materials are brought to the jobsite. Next, holes are augered at each pole location and the poles are then erected using cranes or other heavy equipment. The hole is then backfilled with suitable fill. Typically, the pole is embedded into the ground approximately 16 to 20 feet. After the poles are set, the poles are framed, that is, the insulators and hardware are installed on the pole. Then through a wire pulling operation the conductors and overhead ground wires are installed. The conductors are then properly sagged and tensioned to provide the proper vertical clearances. Next, the conductors are "lipped in" to the insulator assemblies. The final stage of construction is ROW clean-up. During all stages of construction, FPL will maintain traffic on any adjacent county, state, or federal roadways in compliance with applicable DOT and St. Johns County regulations. Throughout construction, sedimentation management techniques, such as the use of silt screens and hay bales, will be employed as necessary to minimize potential impacts from erosion and sedimentation. While each phase of construction will typically take only 1 to 7 days in an area, the entire SJPP Line construction process will last approximately 13 months. Methodology for Choosing FPL Corridor On project initiation, FPL management instructed its multi-disciplinary corridor selection team to identify, if it could, a corridor for the SJPP Line that connects the St. Johns and Pringle substations and allows connections to the proposed intermediate substations. Corridor Selection and Public Involvement FPL established a multi-disciplinary team to identify and evaluate routing alternatives within the Project Study Area. This multi-disciplinary team was comprised of a transmission line engineer, a land use planner, and an ecologist. FPL's multi-disciplinary team gathered data on siting opportunities and constraints within the study area and identified 45 line segments which could be assembled into approximately 630 alternate routes for the SJPP Line. FPL also engaged in an extensive public participation program to gather input for its route evaluation study. This public participation program included an open house, mass mailings, a community survey, a toll-free telephone number and an e-mail address, a website, and meetings with regulatory agencies, community associations, homeowner groups, and individual homeowners and property owners. The public participation program provided substantive input to the route evaluation study in terms of study area boundary, siting opportunities and constraints in the area, identification of route segments to be evaluated, and weights to be assigned to the route evaluation criteria. FPL's multi-disciplinary team evaluated the 630 routes quantitatively, using 11 weighted factors, and then evaluated in more detail, using both quantitative and qualitative criteria, a few distinct routes identified from among the highest-ranking routes. Through this process, FPL's multi-disciplinary team was able to identify a route of the FPL Corridor that, on balance, is the most appropriate considering environmental, land use, engineering, and cost considerations. Once the preferred alignment was identified, the multi-disciplinary team delineated the boundaries or width of the FPL Corridor to provide flexibility for locating the eventual ROW within that corridor. Agencies' Review of FPL's Application and Resulting Determinations State, regional, and local agencies with regulatory authority over the project reviewed FPL's Application and submitted to the Department a report as to the impact of the proposed SJPP Line on matters within the agency's jurisdiction, as required by Section 403.526(2), Florida Statutes. The Department then compiled these reports and made a recommendation that the SJPP Line be granted approval subject to appropriate conditions. Stipulations Entered Into by Parties All agency parties filed stipulations with FPL in which these parties and FPL agreed to the Conditions of Certification for the SJPP line and the entry into the record of the pre-filed written testimony and exhibits of FPL's witnesses. Detailed Description of the FPL Corridor Almost the entire length of the FPL Corridor is collocated with existing linear features, such as roads and transmission lines. This collocation will minimize impacts of the new SJPP Line. The width of the FPL Corridor varies along the route to provide flexibility within the corridor to minimize or avoid impacts to such areas as existing developments and large wetland areas. From the St. Johns Substation to the Deerwood Substation The SJPP line will exit the existing St. Johns substation at SR 207 near Lightsey Boulevard and utilize the existing 110-foot-wide St. Johns-Tocoi 230-kV ROW. The FPL Corridor will be collocated within this existing ROW north and west until the intersection with I-95. Along the existing ROW and in the vicinity of the St. Johns substation, the land use is residential or vacant. At I-95, the preferred corridor will follow the eastern ROW line of the highway south to the intersection with Tocoi Road. The corridor in this stretch is 500 feet wide. Within the corridor in this stretch, the land use is vacant. There is some residential development outside the corridor to the east. At the I-95/Tocoi Road intersection, the FPL Corridor is expanded in all four quadrants following property lines to allow FPL flexibility in traversing the short distance to Deerwood substation and crossing I-95 to proceed south from Deerwood. The FPL Corridor follows Tocoi Road to enter and exit the proposed Deerwood substation, encompassing 100 feet or less in width on both the north and south sides of the road. The line will be built either on the south or north side of the road. A FPL distribution line currently exists on the south side of Tocoi Road. From the Deerwood Substation to the Vermont Substation The FPL Corridor will leave the Tocoi Road alignment at the I-95 intersection. The FPL Corridor then follows the western ROW edge of I-95 south to the FEC Railroad, where the corridor turns to the southwest for a short distance. In this section, the corridor is 500 feet wide. At the north end of the St. Augustine Industrial Park, the corridor follows property lines to the access road (Deerpark Boulevard) into the industrial park. The corridor is 200 feet wide in this section. From the north end of the access road, the FPL Corridor follows the east edge of the road south to the Vermont substation site, is 100 feet wide in this section, and includes an existing FPL distribution line. From the Vermont Substation to the Anastasia Substation The FPL Corridor exits the Vermont substation heading northeast toward I-95. In this area, the corridor will be of variable width and will include both sides of State Road 207 (SR 207). An existing 115-kV FPL transmission line already occupies the north side of the SR 207, and a distribution line is located on the south side. An existing FPL distribution line traverses north-south in this area and is also included in the corridor. In the area between the Vermont substation and I-95, the corridor is north and east of existing residential subdivisions. The corridor between the Vermont substation and I-95 is widened to allow flexibility in accommodating a number of land use and engineering considerations. These considerations include the crossing of SR 207, the existing transmission line and distribution lines, existing residential development south of SR 207, existing commercial development north of SR 207, and a large borrow pond west of I-95. The corridor will reach I-95 south of SR 207, at which point it will then follow I-95's western boundary southward. The corridor is 500 feet wide in this area where it parallels I-95 south to SR 206. The predominant land use in the area between the Vermont and Anastasia substations is silviculture. From the Anastasia Substation to the Pellicer Substation At the intersection of SR 206 and I-95, the corridor is again widened variably to include the properties on the northwest and southwest quadrants of the interchange to provide flexibility in finalizing the Anastasia substation plans and providing ingress and egress to that substation. The FPL Corridor will exit the Anastasia substation and follow the western boundary of I-95 southward. The corridor is 500 feet wide in this stretch with the exception of the location of a rest area on the west side of I-95, approximately 2.5 miles south of Anastasia substation. The corridor is of variable width around the rest area, but generally 1,000 feet wide to allow flexibility in traversing either the front or rear of the rest area. In this area, the predominant land use is silviculture. Where I-95 intersects the FEC Railroad north of County Road 204 (CR 204), the FPL Corridor turns and follows the railroad southward. The corridor is located along the east side of the railroad and is 500 feet wide. North of CR 204, the corridor is expanded along the road to allow ingress to the Pellicer substation site located south of CR 204 and east of the railroad. Land uses in this area are primarily silviculture. From the Pellicer Substation to the Pringle Substation The FPL Corridor includes the entire Pellicer site, which is already owned by FPL, along the east side of the FEC Railroad south to Pellicer Creek. The corridor in this area crosses lands owned or proposed to be purchased by the SJRWMD for conservation purposes for approximately one mile. From Pellicer Creek south to the Pringle substation, the corridor will follow the east side of the railroad bed and will be variable in width, generally 150 to 300 feet wide. At the Pringle substation site, which is already owned by FPL, the corridor includes the entire substation site. The FPL Corridor for the stretch south of Pellicer Creek falls in a currently undeveloped portion of the Palm Coast Park Development of Regional Impact (DRI) within the City of Palm Coast's jurisdiction. The development order for the Palm Coast Park DRI provides for an easement for the SJPP transmission line within the FPL Corridor. Compliance With Section 403.529(4) Criteria Ensure Electric Power System Reliability and Integrity The PSC found that there are regional transmission system limitations in St. Johns and Flagler Counties. By 2008, the existing 115kV transmission network between the Bunnell substation in Flagler County and the St. Johns substation in St. Johns County will not have sufficient capacity to provide reliable electric service to the existing and proposed substations in the area. The SJPP Line would be built to alleviate potential overloads and low voltage conditions from a single contingency event, which occurs when a single element such as a generator, transmission circuit or transformer is eliminated from the system. If the SJPP Line is not built, service interruptions affecting up to 8,300 customers could occur. In addition, the PSC found that the FPL North Region (extending from Indian River County to Nassau County) has grown by a compound annual average growth rate of 3.7 percent over the past five years. The SJPP Line is also needed to serve the increasing load and customer base in the area. Operation of the SJPP Line would be consistent with the North American Electric Reliability Council and Florida Reliability Coordinating Council transmission system standards. FPL has a responsibility to provide safe and reliable service to its customers. See § 366.03, Fla. Stat. The provision of reliable electric service is important to FPL and its customers. In the past, FPL has demonstrated the ability to plan a reliable electric system consistent with the NESC and ASCE standards. Meet the Electrical Energy Needs of the State in an Orderly and Timely Fashion The PSC recognized that FPL's planning studies indicate that the SJPP Line is needed by December 2008 to alleviate potential overloads and low voltage conditions from a single contingency event. Location of the SJPP Line on the FPL Corridor would meet the electrical energy needs of the state in a timely fashion. Comply with the Nonprocedural Requirements of Agencies Construction, operation, and maintenance of the SJPP Line in the FPL Corridor will comply with applicable non- procedural requirements of agencies. The Department has concluded that the project as proposed will comply with all applicable Department statutes, rules, policies, and procedures. Be Consistent with Applicable Local Government Comprehensive Plans The Department has concluded that the SJPP Line as proposed would produce a minimal adverse impact on the environment and public health, safety, and welfare without unduly conflicting with local statutes and local comprehensive plans. After certification of this project, FPL will acquire the necessary property interests in a ROW within the certified corridor for placement of the SJPP Line. Construction of transmission lines on such established ROWs is excepted from the definition of "development" in Section 163.3164(5), Florida Statutes. Accordingly, the provisions of the local comprehensive plans related to "development" that have been adopted by the local governments crossed by the SJPP Line are not applicable to this project. To the extent the comprehensive plans of the local governments crossed by the SJPP Line include provisions applicable to non-development activities, the proposed transmission line in the FPL Corridor would be consistent with them. The City of Palm Coast Comprehensive Plan is essentially silent on transmission lines as a land use, which is consistent with such lines being excepted from the definition of "development" regulated by the Plan. Policy A.1.8.3 of the St. Johns County Comprehensive Plan provides that "future utility facilities shall be located to promote the efficient provision of services, minimize the cost of construction and maintenance, and minimize the impact on the natural environment." Because of the thoroughness of the corridor selection process and criteria, and the appropriateness of the corridor from a land use perspective, the proposed SJPP Line is consistent with that policy. No variances or exemptions from applicable state or local standards or ordinances are needed for the project. Implementation of Legislative Intent in Section 403.521 The Need for the SJPP Line as a Means of Providing Abundant Low-Cost Electrical Energy The PSC determined that the SJPP Line is needed taking into account the factors set forth in Section 403.537, Florida Statutes. In the need proceeding, the PSC considered two alternatives, including transmission modifications to the existing 115-kV system. The PSC accepted FPL's rejection of the two alternatives "due to economics and concerns with the ability to serve additional future customers west of the I-95/US-1 corridor." The PSC found that the proposed transmission line would "assure the economic well-being of the citizens of the state by serving projected new electric load in the region, and improving the region's electric reliability by minimizing the region's exposure to single contingency events." The PSC has determined that the estimated cost of the Project is reasonable, and that the SJPP Line will assure the economic well-being of the citizens of the state by serving projected new electric load in the region and improving the region's electric reliability by minimizing the region's exposure to single contingency events. Impact Upon the Public The SJPP Line is appropriate from a land use perspective because this type of transmission line currently exists in all types of land uses in Florida, including residential, commercial, industrial, agricultural, and vacant land. The SJPP Line takes advantage of the opportunity to be collocated with other transmission lines, roadways, and railroad ROWs for almost the entire distance. By following these existing linear features, the FPL Corridor conforms to existing and future development patterns, and minimizes intrusion into residential areas and conservation lands. As a result, the proposed SJPP Line is in proximity to relatively few residences and only one crossing of lands either purchased or proposed for purchase under federal, state, or local land acquisition programs. Further, by collocating with other public and utility ROWs, the amount of land that will be required for the SJPP line is less than if it were not collocated. The FPL Corridor minimizes impacts to existing homes by following a route where there is very little residential development and where planned residential development is very low density. The SJPP Line as proposed will comply with all applicable non-procedural standards, including the noise ordinances of St. Johns County and the City of Palm Coast, and the standards adopted by the Department limiting the electric and magnetic fields associated with transmission lines. Impact Upon the Environment The SJPP Line Project as proposed will have minimal environmental impact. Construction of the SJPP Line within the FPL Corridor will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The FPL Corridor avoids or minimizes intrusion into the undisturbed wildlife habitats due to its collocation with existing linear facilities for almost its entire length. The current condition and relative value of function of the habitat in the FPL Corridor is minimal from a wildlife ecology and protected species perspective. Great care was taken in routing the FPL Corridor to avoid or minimize proximity of the corridor to known listed species locations, including routing inputs from wildlife agencies such as the Florida Fish and Wildlife Conservation Commission (FFWCC) and the U.S. Fish and Wildlife Service. Further, due to the presence of existing linear features along much of the route, clearing of additional natural habitats and potential wetland impacts will be minimized. Construction of the SJPP Line within the FPL Corridor will not cause a significant adverse impact to the current condition and relative value of functions of the vegetative communities within the FPL Corridor. First, nearly the entire length of the FPL Corridor allows placement of the transmission line within or adjacent to existing linear features to take advantage of previous disturbances to vegetation. FPL will also minimize impacts to forested wetland vegetation through the use of restrictive clearing practices during both construction and maintenance. In the forested wetland portions of the ROW, FPL will only take out trees and shrubs that have an expected mature height greater than 14 feet and "danger trees," which are trees that could fall into the conductors and cause an outage. In these areas, vegetation will be removed by hand, usually with chain saws, or with low-ground-pressure shear or rotary machines to reduce soil compaction and damage to ground cover. The removal of vegetation in forested wetlands will not affect the vegetative root mat or soil surface conditions. The non- forested wetlands should not require any clearing. There will be some filling in wetlands associated with the placement of pole pads and access roads. However, FPL will minimize impacts on wetlands vegetation through a careful alignment of the ROW and the varying of span distances between poles. FPL will also install an appropriate number and size of culverts to properly maintain existing wetland hydroperiods along areas of fill in wetlands. Also, any unavoidable wetland impacts associated with the project will be mitigated in accordance with the Conditions of Certification. FPL has agreed to avoid the removal of listed plant species on public lands and waters, wherever practicable. When removal is necessary on public lands/waters, FPL will consult with the Department, FFWCC, and the Department of Agriculture and Consumer Services to determine the appropriate steps to minimize, mitigate, or otherwise appropriately address potential project related impacts to listed plant species. FPL's commitment to avoid, minimize and/or mitigate potential impacts to listed plant species within public lands and waters will promote the conservation of endangered and threatened plant species populations and their habitats. The SJPP Line Project will comply with all applicable state, regional, and local non-procedural regulations, including the wetland regulatory standards applicable to such projects. Balance of Need versus Impacts The SJPP Line would effect a reasonable balance between the need for a transmission line as a means for providing abundant low cost energy and the impact upon the public and the environment resulting from the location of the transmission line corridor and the construction and maintenance of the transmission line. Conditions of Certification The design, construction, and operation of the SJPP Line as proposed in the FPL Corridor will comply with the conditions of certification set forth in Department Exhibit 1. The conditions of certification establish a post- certification review process through which the final right-of- way, access road, and structure locations will be reviewed by agencies with regulatory authority over the project for the purpose of monitoring for compliance with the conditions of certification. While the FPL Corridor has few homes in close proximity to it and very limited wetland crossings, FPL has agreed to conditions of certification that further minimize land use and environmental impacts. For example, FPL has agreed that to the extent practicable it will locate its ROW to avoid the taking of homes, to collocate the ROW within or adjacent to existing ROWs, and to vary the length of the span between poles as appropriate to eliminate or reduce wetland impacts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Siting Board enter a Final Order approving FPL's St. Johns-Pellicer-Pringle 230-kV Transmission Line Application for Certification subject to the Conditions of Certification set forth in Department Exhibit 1. DONE AND ENTERED this 6th day of March, 2006, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 2006.
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation (Department), is a state agency charged with the duty and responsibility of regulating the practice of electrical contracting pursuant to Chapters 20, 455, and 489, Florida Statutes. At no time material hereto has Respondent been certified or licensed as an electrical contractor pursuant to Chapter 489, Part II, Florida Statutes. In September 1997, Respondent contracted with William and Carol Pike of McAlpin, Florida, for the installation of a room addition to the Pike's mobile home. The addition was not new, but had been used by a previous customer. The addition was to be connected to the main part of the house. The installation of the addition was completed in October 1997. The Pikes paid the full contract price of $8,636.00 to Respondent for the installation of the addition. The installation of the room addition required certain electrical work including: the addition had to be wired to the existing mobile home; electrical outlets and lights were wired into the addition; and a new outside light was added at the back door. The Pikes did not have any problems with the wiring of the room addition until April 6, 2001, when a power outage occurred in the area resulting in the Pike's losing electrical power. When the electricity was restored, the Pikes still had no electricity in the room addition. The Pikes contacted the local power company and upon checking, the Pikes were informed that the problem was inside their home. The morning after the power outage, the Pikes called Corbett's Mobile Home Center in an effort to get someone out to their home that day for the needed repairs. Robert Corbett was out of town and they were unable to reach anyone there who could come out to the Pike's home that day which was a Saturday. The Pike's then called Steve Frazier at Santa Fe Electrical Services, to check out the problem. Upon examination, Mr. Frazier found several problems with the electrical wiring under the house including open splices, wires spliced together, hot and ground wires reversed and no junction boxes on the wire junctions. Mr. Frazier recommended that the Pikes contact the original contractor to fix the problem and to leave the breaker off for their safety. The Pikes contacted Respondent and Respondent sent "Billy" to the Pike's residence on Tuesday, April 10, 2001. Billy was unable to correct the problem. The Pikes requested that Respondent send out the original permit with the repairmen. Respondent sent Billy and another person out to attempt to fix the problem but they were unsuccessful in doing so and did not bring any permit. The Pikes were not comfortable with what they perceived to be the level of competency of these employees of Respondent and they asked the men to leave. The Pikes then hired Steve Frazier to correct the wiring problems with the room addition. The electrical work performed by Frazier to correct the wiring problems included: re-wiring and running new wire to outlets; installation of several junction boxes; and repairing open splices in the walls and ceiling. Mr. Frazier obtained the appropriate permit, completed the work of rewiring and obtained a final inspection which was approved. The Pikes paid $855.00 to Santa Fe Electrical Services for this repair work. The Pikes filed a complaint with the Suwannee County Licensing Board. According to Pat Sura, a building inspector with the Suwannee County Building Department, the installation of the room addition is akin to the construction of an addition at a site and requires an electrical license and a permit. This differs from wiring a double-wide mobile home together, as that does not require a permit. The Department incurred investigative costs in the amount of $659.48 in this case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Business and Professional Regulation enter a final order finding that Respondent violated Section 489.531(1), Florida Statutes, that an administrative penalty of $1,000.00 be imposed, and that Respondent pay Petitioner's costs of investigation in the amount of $659.48. DONE AND ENTERED this 14th day of December, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 14th day of December, 2001.
