Findings Of Fact Petitioner is a corporation which has as its purpose the preservation of air quality in Pinellas County and in the State of Florida. Petitioner has approximately twenty members. The Department of Environmental Regulation has published notice that it is proposing to repeal its Rule 17-2.05(8), Florida Administrative Code. This rule is known as the "Complex Source Rule". It requires that permits be obtained from the Department before a facility which can reasonably be expected to cause an increase in concentrations of air pollutants is constructed. Petitioner is a party in a proceeding in which another party has submitted an application for a complex source permit. Administrative appeals of final agency action adverse to the Petitioner are being pursued. If the "Complex Source Rule" is repealed, the proceeding would be subject to dismissal. The primary focus of the "Complex Source Rule" is to regulate concentrations of pollutants that are generated by automobiles that would use a facility for which a permit is sought. There are other methods for controlling this sort of pollution. These include the Federal Motor Vehicle Control Program, which is designed to decrease the pollutants in automobile emissions; non-attainment plans designed to bring an area where pollutants exist at levels in excess of Respondent's rules into compliance; various federal monitoring programs; and mechanical alteration of motor vehicles, including installation of catalytic converters and greater fuel efficiency. Arguably, the "Complex Source Rule" would augment the desirable impacts of these other means of dealing with automobile related pollution. Petitioner has failed to establish, however, that these other methods and programs are not adequate to deal with the problems.
Findings Of Fact From August 15, 1967, until his retirement on April 1, 1991, Jackson continued to serve as a game management specialist and a laboratory technician (Petitioner's Exhibit No. 9). As part of his duties, Mr. Jackson would perform controlled burns and post wildlife areas. However, Col. Robert Brantly, the Executive Director of the Commission since 1977 and an employee of the Commission since 1957, stated that those duties were not law enforcement duties and were commonly done by biologists and other non-law enforcement personnel. James A. Carpenter testified that Mr. Jackson worked on controlled hunts and was responsible for the check stations. However, the Commission hired civilians to perform that job, and Col. Brantly stated that the operation of a check station was not a law enforcement function. Mr. Jackson's Commission ID card contained the statement as contained in the Recommended Order, Findings of Fact No. 9. The ID card shows that Mr. Jackson was an "employee" of the Commission and not a "law enforcement Officer". Col. Brantly, was and is a certified law enforcement officer, testified that he had two (2) identification cards (Respondent's Composite Exhibit 2). The first card stated as follows: This card identifies: Robert M. Brantly as a Certified Florida Law Enforcement Officer who has complied with Section 943.14(1) (2), Florida Statutes, and Section 11B-7, relating to Standards and Training Col. Brantly's second ID card contained the following statement: Certificate of Appointment Pursuant to Section 372.07 Florida Statutes State of Florida at Large Be it known that Colonel Robert M. Brantly is a regularly constituted officer of the Florida Game and Fresh Water Fish Commission with full arrest powers to bear arms and to execute and fulfill the duties of said office. This appointment is in full effect until revoked. Dated this 1st day of March, 1990 Col. Brantly's ID card states he is an "officer" with full police powers while the ID cards of Jackson and Carlton Chappel, a biologist employed by the Commission, state that they are "employees" with full authority to enforce the laws relating to protection of the environment and wildlife resources. In fact, the ID cards of Mr. Jackson and Mr. Chappel are identical. (Compare Petitioner's Exhibit No. 7 with Respondent's Exhibit No. 6) Col. Robert Brantly, Executive Director of the Commission, testified concerning Mr. Jackson's claim. Col. Brantly began his career with the Commission in 1957 as a wildlife officer, became the Deputy Director in 1974 and Director in 1977. He has been and is currently a law enforcement officer and has had special risk membership in FRS. He stated that Mr. Jackson and several others classified as game management specialists had been given law enforcement powers in the mid-1960's and had certain limited duties with respect to enforcement of the state fish and game laws. When the Police Standards Commission was established in 1972, Mr. Jackson and the others were "grandfathered" by Police Standards as law enforcement officers. He testified that the Commission had two (2) classes of law enforcement officers in the 1960's and 1970's. Wildlife officers were full time law enforcement officers whose primary duties were law enforcement. Game management specialists were not considered to be law enforcement officers and had no duties in law enforcement. As an exception to that rule were Mr. Jackson and some other game management specialists who had been "grandfathered" in as law enforcement officers by the Police Standards Commission in 1972. These individuals had law enforcement authority but were considered by the Commission to be part-time law enforcement officers. Col. Brantly stated that law enforcement was not a part of their primary or essential duties. The amount of law enforcement that each of the game management specialists performed was up to each individual, but law enforcement was not a duty required of any of them. For example, one of the above specialists could perform no law enforcement activities if he did not want to. Col. Brantly testified that controlled burning was a wildlife management practice and not a law enforcement activity. He stated that the operation of hunt check stations was not a law enforcement activity, and the check stations were manned by citizens of the area. Likewise, posting of the management areas was not a law enforcement activity. Jackson introduced Exhibit No. 10 from the Commission clarifying the Police Standards Board ruling. Field personnel other than those in the Law Enforcement Bureau were "auxiliary officers" who were to call a wildlife officer to the scene of the violation for the arrest, if possible. Petitioner's Exhibit No. 11 makes it even clearer and also explains the policy and the attachment thereto. The attachment, Administrative Directive No. 25, clearly states that "(w)ildlife management duties will remain the first priority job for Division personnel", with clear guidelines for open and closed hunting seasons. The work week was 40 hours with no deviation permitted. Thus, the primary duty of Jackson was game management and not law enforcement. In September, 1979, a number of problems concerning the law enforcement powers of the game management specialists forced Col. Brantly as the agency head to remove the certification (law enforcement powers) from the game management specialists with such power such as Mr. Jackson. The removal of the certification was effective September 6, 1979 (Respondent's Exhibit No. 1, letter to Don Dowling). In Petitioner's Exhibit No. 14, the memorandum from Col. Brantly of September 27, 1979, he made it abundantly clear that the wildlife (game) management specialists were part-time law enforcement personnel. Toby Harris, the personnel officer for the Commission since December, 1979, also testified on both State and Commission personnel practices. He had previous service with the Pay and Classification Section of the Department of Administration and had worked in pay and classification for a state agency for 25 years. He was admitted as an expert in the area of state pay and personnel classification. Mr. Harris stated that at the time Jackson's position questionnaires or descriptions were prepared, it was a requirement that the employee himself prepare the section on "duties and responsibilities" and assign the percentages of time on the form. These forms were not mass produced by the agency but were individually crafted for each job and for each employee. Mr. Harris stated quite emphatically that the position description is (and was for the period in question) the most important document in a state employee's personnel file. It is only on the basis of that position description that the employee knew what his duties were and knew the criteria upon which he would be evaluated. He identified the letter of October 10, 1975, from Brantley Goodson, Director, Division of Law Enforcement, concerning Jackson's status as a grandfathered law enforcement officer in a part-time position. Harris also stated that the evaluations for Jackson up to the early 1970's were above average and that after that date, they were average. The Florida Department of Law Enforcement, Police Standards Commission, kept the files for the Police Standards Commission for all state agencies with law enforcement officers. The records showed whether or not a law enforcement officer was considered full-time, part-time or an auxiliary officer. According to the records of the Commission , Mr. Jackson was considered a full- time law enforcement officer from March 1, 1965, until August 15, 1967, and a part-time law enforcement officer from August 15, 1967, until September 27, 1979, when he was removed from any law enforcement activities by the Commission. Carlton Chappel, an employee of the Commission, testified that in the late 1960's and during the 1970's, he and all field personnel of the Commission, including game management specialists, were issued the same uniforms, badges and identification cards as wildlife officers. On an "as needed basis", the field personnel would be assigned to field duty and had the power to make arrests and enforce the game and fish laws of the State; however, during this time, he did not consider himself to be a law enforcement officer and never had applied for such status. His identification card was identical to the ID card of Mr. Jackson. He further stated that all game management specialists had to prepare work plans for each management area to explain the work that was to be done during the upcoming fiscal year. These work plans included both State and federal projects. (Respondent's Exhibit No. 7) The work plans for the fiscal years 1969-70 and 1970-71 for Mr. Jackson were introduced (Respondent's Exhibit No. 7) and show for FY 1969-70 that Mr. Jackson spent his time in the following projects: PROJECT NO. OF PAY PERIODS Wildlife Research Project 2 No. W-48-4 No. W-35 Mgt. Area Develop. 18 Apalachee Mgt. Area 10 Robert Brent Mgt. Area 4 Point Washington Mgt. Area 2 The work plans for the 1970-71 fiscal year show that Mr. Jackson spent his time on the following projects: PROJECT NO. OF PAY PERIODS Fed. Statistical Harvest & Inventory 1 Fed. Statewide Mgt. Area Development 10 State Hunts 8 State-General Game Management 7 TOTAL PAY PERIODS 26 SPECIFIC PROJECTS NO. OF PAY PERIODS Wildlife Inventory, Harvest & Economic Survey (Project No. W-33-21) 1 Development and Operations (Project No. W-35-20) 10 State-Apalachee Wildlife Mgt. Area 10 Carolyn McGlamery, an employee of the Division, testified that Jackson had transferred from SCOERS to the FRS during the initial transfer period effective December 1, 1970. She further testified about the statutes and the various changes over the years and the administrative rules that concerned high hazard membership under SCOERS and then special risk membership under FRS.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for high hazard or special risk membership in either SCORES or FRS. DONE and ENTERED this 31st day of March, 1992, at Tallahassee, Florida. DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of April 1992.
The Issue Did the Respondent, Florida Department of Law Enforcement ("FDLE"), properly follow the criteria for operational assessment? Did FDLE's operational assessment test all the stated criteria in the Request for Proposal ("RFP")? If FDLE's assessment did not test all the stated criteria, must the RFP be reissued? If FDLE should reissue the RFP, must the issue of whether FDLE properly followed the criteria for operational assessment be determined?
Findings Of Fact 1-12. Adopted. Rejected as contrary to best and most credible evidence. Adopted. Rejected as contrary to best and most credible evidence relating to "Benchmarks". Adopted. True but irrelevant. 18-21. Adopted. 22-25. Irrelevant. 26-28. Adopted. 29. Irrelevant. 30-33. Adopted. 34-39. Irrelevant. Adopted. Irrelevant. 42-44. Adopted. Irrelevant. Adopted. 47-48. Irrelevant. 49-61. Adopted. COPIES FURNISHED: James T. Moore, Commissioner Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 Rodney E. Gaddy, Esq. Judith D. Landis, Esq. Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 W. Robert Vezina, Esq. Mary M. Piccard, Esq. CUMMINGS, LAWRENCE & VEZINA, P.A. P.O. Box 589 Tallahassee, FL 32302 Paul J. Martin, Esq. Department of Legal Affairs The Capitol-Suite 1501 Tallahassee, FL 32399-1050 Terrell C. Madigan, Esq. PAPY, WEISSENBORN & PAPY P.O. Box 1761 Tallahassee, FL 32302 Robert S. Cohen, Esq. HABEN, CULPEPPER, ET AL. Box 10095 Tallahassee, FL 32302
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the award of DEC be rejected and the process return to phase one to relet the bids. DONE AND ENTERED this 1st day of November, 1991, in Tallahassee, Leon County, Florida. STEVEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1991.
The Issue Should the Department of Corrections' (the Department) decision to award a contract to Architectural Openings, Inc. (Architectural Openings) in Bid No. 02-Martin-7475 (the Project) for security windows be upheld?
Findings Of Fact STIPULATED FACTS In November of 2002, or approximately thereof, the Department issued an Invitation to Bid (ITB) requesting that qualified contractors submit bids to sell to the Department stainless steel windows for Martin Correctional Institution. On or about November 19, 2002, the Department received bids from three vendors, namely, Architectural Openings, Inc., C.M. Security Group, Inc., and Cornerstone Detention Products, Inc. The bids were as follows: Architectural Openings $175,885.92 C.M. Security $273,325.92 Cornerstone Detention Products, Inc. $301,392.00 Among the three bids received by the Department, only Cornerstone's bid was found not responsive. On or about November 19, 2002, the Department issued its Notice of Intent to award to AOI, the lowest bidder. Petitioner, as the second lowest bidder, filed its Notice of Intent to protest on November 21, 2002. Petitioner's formal protest was submitted to the Department on November 26, 2002, and received on December 2, 2002. STATED GROUNDS FOR PROTEST Per form PUR 7028 Rev. 6/1/98 item 4, c, "Mistakes" it may be possible there was a mistake in the extension of unit price. Per ITB 3.1.2, A. "Manufacturer shall be experienced in the manufacture of stainless steel detention windows of this type and quality". To our knowledge the lowest bidder has no experience with this type of window. Per ITB 3.1.2, B. "Source quality control" Does the manufacturer have independent test on hand for the type of window required? This includes ASTM E 283, ASTM E 331, ASTM A 627 and ASTM A 629. DISCUSSION OF PERTINENT PROVISIONS WITHIN THE PROJECT ITB Under Section 2.1 Background of the ITB it is stated: The Department of Corrections is seeking a qualified vendor to furnish security vendors to furnish security windows for Martin Correctional Institution. Under Section 2.2 Statement of Purpose of the ITB it is stated: The purpose of this Invitation To Bid is to secure competitive bids from qualified vendors to furnish security windows for Martin Correctional Institution, 1150 Southwest Allapattah Road, Indiantown, Florida 34956-4397. There are three (3) buildings included in this project, each requiring 112 windows. The windows are to be installed by inmate labor crews into existing masonry openings measuring approximately 2'-9" wide by 2'-9" high on the interior and 2'-4" wide by 2'-4" high on the exterior. The successful bidder shall only furnish the product specified or an approved equivalent. Installation is not required. Under the ITB 1.11, Vendor, Offeror and Bidder are synonymous terms to describe those firms that would have the opportunity to bid on the project where it is stated: A legally qualified corporation, partnership or other entity submitting a bid to the Department pursuant to this ITB. The winner or successful bidder is defined at Section 1.12 in the ITB as: The business or entity submitting the lowest responsive bid, meeting all requirements of the Department's ITB. The opportunities to do business with the Department under the ITB are referred to at Section 4.3.12 State Licensing Requirements, where it is stated: All entities defined under Chapters 607, 617 or 620, Florida Statutes, seeking to do business with the Department shall be on file and in good standing with the Florida Department of State. The general conditions, Form PUR 7028, revised 6/1/98 at Paragraph 4.(c) states: PRICES, TERMS AND PAYMENT: Firm prices shall be bid and include all packing, handling, shipping charges and delivery to any point within the State of Florida. * * * MISTAKES: Bidders are expected to examine the specifications, delivery schedule, bid prices, and all instructions pertaining to supplies and services. Failure to do so will be at bidders risk. In case of mistake in extension the unit price will govern. The ITB at Section 5.5 refers to Cost Proposals. In particular Section 5.5.1 Cost Proposal Submission Requirements states: The Bidder shall submit the Cost Information Sheet(s) (Table 1). By submitting a bid or bids under this ITB, each Bidder warrants its agreement to the prices submitted. Any qualifications, counter-offers, deviations, or challenges shall render the bid non- responsive. Consistent with the ITB expectations C.M. Security and Architectural Openings executed Table 1-Cost Information and submitted those tables with their respective responses to the ITB. Contrary to the claim by C.M. Security concerning a possible mistake in relation to the unit price by Architectural Openings, no proof was advanced to establish that allegation. Moreover, Section 6.2 to the ITB, Incomplete Cost Information Sheet, contemplates the opportunity for the Department to proceed in its award of a contract even in the event of some inconsistencies or inaccuracies in price extensions where it states: Any cost information sheet that is incomplete or in which there are significant inconsistencies or inaccuracies may be rejected by the Department. No deviations, qualifications, or counter offers will be accepted. The Department reserves the right to reject any and all bids. All calculations will be reviewed and verified. The Department may correct mathematical errors; however, in the event of any miscalculations, unit prices shall prevail. This exercise of discretion in addressing the matter of unit cost and total cost is supported in the definition at Section 1.5 Desirable Conditions which states: The use of the words 'should' or 'may' in this ITB indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature, will not in itself cause rejection of a proposal. Treatment of unit costs and total costs by the Department does not fall within the expectations of Section 1.6 Mandatory Responsiveness Requirements which states: Terms, conditions or requirements that must be met by the bidder to be responsive to this ITB. These responsiveness requirements are mandatory. Failure to meet these responsiveness requirements will cause rejection of a bid. Any bid rejected for failure to meet mandatory responsiveness requirements will not be further reviewed. The manner in which the Department addresses unit cost and total cost is not perceived under Section 1.7 Material Deviations to constitute a material deviation within the meaning of that definition which states: The Department has established certain requirements with respect to bids to be submitted by bidders. The use of shall, must or will (except to indicate simple futurity) in this ITB indicates a requirement or condition from which a material deviation may not be waived by the Department. A deviation is material if, in the Department's sole discretion, the deficient response is not in substantial accord with this ITB's require-ments, provides an advantage to one bidder over other bidders, has a potentially significant effect on the quantity or quality of items bid, or on the cost to the Department. Material deviations cannot be waived. Taken in the context of provisions within the ITB any problems perceived concerning unit price or total cost can be addressed under Section 1.8 as a Minor Irregularity wherein it is stated: A variation from the ITB terms and conditions which does not affect the price of the bid or give the bidder an advantage or benefit not enjoyed by the other bidders or does not adversely impact the interest of the Department. At Section 4.3.6.1 Mandatory Responsiveness Requirements are further discussed. At Section 4.3.6.2 Material Deviations are described again. At Section 4.3.6.3 Minor Irregularities are referred to for a second time. In essence, these discussions at Section 4 mirror the definitional statements in Section 1 on those topics. The statement of unit cost controls in ranking the bidders for purposes of cost of the project, in the event that unit cost extension in arriving at total cost is an error. Most importantly, by a simple mathematical exercise it can be seen that 336 units called for, multiplied by a unit cost of $523.47, leads to a total cost of $175,885.92 as represented in Table 1 to the Architectural Openings' submission. Section 3 to the ITB contains product information that further describes the nature of the windows being purchased. Section 3.1.1 under Specifications summarizes the nature of the product where it is stated: Type of security windows on project is a stainless steel unit with fixed vision glass and operable ventilation dampers protected from vandalism by security screens. Glazing: Window units shall be glazed with 1/2" clear translucent polycarbonate. Section 3.1.2 to the ITB describes the need for quality assurance as: Manufacturer shall be experienced in the manufacture of stainless steel detention windows of this type and quality. Source quality control: Air infiltration test ASTM E 283 Maximum air infiltration .5 cfm per ft. of crack length with pressure differential across the window unit of 1.56 PSF. Water penetration test ASTM E 331 No water penetration for 15 minutes when the window is subjected to a rate of flow of 5 gal./hr./sq. ft. with differential pressure across the window of 2.86 PSF. Upon request, the window manufacturer shall provide a test report from a qualified independent testing laboratory regularly engaged in testing windows. Tool-Resistant Steel (when specified) Submit test reports from a qualified independent testing laboratory showing that the tool-resistant steel used in the windows conforms with ASTM A 627 and A 629. Design Criteria: Drawings indicate size and profiles of the existing mason opening only. Shop drawings for the security windows and trim are to be based on the dimensions indicated. The design of the ventilators, security screen, and insect screen shall be such that at least 90 sq. in. of free area for ventilation is provided. Contrary to the allegations by C.M. Security, the provision at 3.1.2 A. taken in the context of the overall ITB does not require that Architectural Openings be a manufacturer of the form of stainless detention windows of the type and quality sought, it is only necessary that Architectural Openings as a successful bidder furnish the kind of product specified or an approved equivalent. Section 2.2. To that end the manufacturer of the product would have to be experienced in manufacturing stainless steel detention windows of the type and quality specified or an equivalent. Section 3.1.2 A. The windows when provided would then be installed by inmate labor crews. Section 3.1.2 B. reminds the bidder of the degree of quality control necessary in manufacturing the windows as to the air infiltration test and water penetration test and the prospect that upon request the window manufacturer might be called upon to provide a test report from an independent testing laboratory. There is also the discussion in the instance where there would be tool-resistant steel of further test reports from a qualified independent testing laboratory. Nothing in the quality assurance statement at 3.1.2 D. requires that this supporting test information be made available with the responses to the ITB. Neither responsive bidder, C.M. Security or Architectural Openings, provided this information with the responses, not being called upon to do so. What is intended by the ITB is that the product be capable of withstanding the test regime for air infiltration and water penetration and the prospect of additional testing if requested or specified. The mandatory information to be provided with the responses to the ITB is identified at Section 5.1 Mandatory Responsiveness Requirements where it is stated: The following terms, conditions, or requirements must be met by the bidder to be responsive to this ITB. There responsiveness requirements are mandatory. Failure to meet these responsiveness requirements will cause rejection of a bid. It is mandatory that the bidder supply one (1) original, signed bid. The envelope shall be clearly marked "ITB-#02-MARTIN-7475." It is mandatory that the bidder complete, sign and return PUR Form 7028, State of Florida ITB/Bidder Acknowledgement, which is the front cover of this ITB document. The bidder must return either the original or a copy (front & back) with an original signature. It is mandatory that the bidder complete, sign and return TABLE I -- Cost Information, which consists of page No. 31. The bidder must return the entire TABLE I -- Cost Information section dated and with an original signature. Source quality control information under 3.1.2B. is not among the items mandated to be provided with the bid response so that it may be verified in determining responsiveness for purposes of then comparing the bids of the competitors. The determinations concerning quality control are left for another occasion when the winner in the competition has been chosen. When the winner is chosen, the nature of the process is further described at Section 3.1.3 Submittals where it is stated: Shop Drawings: Within two weeks after receipt of purchase order, submit five (5) sets of shop drawings, including wall elevations at 1/4" scale, typical unit elevations at 3/4" scale, and full size detail sections of every typical composite member. Show anchors, hardware, operators, and other components not included in manufacturer's standard data. Include glazing details. Submit shop drawings to: Bob Rogers Fort Lauderdale Service Center Second Floor 1400 West Commercial Blvd. Fort Lauderdale, Fl. 3309-3752 Phone (954) 202-3819 Samples, Submit one complete unit of type required, prior to job production, for review of construction and finish. After approval, sample may be used in actual construction. The owner reserves the right to require additional samples which show fabrication techniques and workmanship of component parts, and design of hardware and other exposed auxiliary items. Certification: Where manufacturer's standard window units comply with requirements and have been tested in accordance with specified tests, provide certification by manufacturer showing compliance with such tests; otherwise, perform required tests through a recognized testing laboratory or agency and provided certified test results. The nature of the materials to be used are described in Section 3.1.5. The act of fabrication is described in Section 3.1.8 to the ITB. In association with the allegations in the formal written protest, to the extent that C.M. Security misapprehended any of the instructions in the ITB concerning matters that needed to be submitted with the responses to the ITB and other requirements, it was instructed on those subjects at Section 4.3.7 Bid Inquiries, in particular at 4.3.7.2, 4.3.7.3 and 4.3.7.4 where in it is stated: The bidder shall examine this ITB to determine if the Department's requirements are clearly stated. If there are any requirements which restrict competition, bidder may request, in writing, to the Department, that the specifications be changed. The bidder who requests changes to the Department's specifications must identify and describe the bidder's difficulty in meeting the Department's specifications, must provide detailed justification for a change, and must recommend changes to the specifications. Requests for changes to this ITB must be received by the Department no later than the date shown for written inquiries in the "Calendar of Events." A bidder's failure to request changes by the date described above shall be considered to constitute bidder's acceptance of Department's specifications. The Department shall determine what changes to this ITB shall be acceptable to the Department. If required, the Department shall issue an addendum reflecting the acceptable changes to this ITB, which shall be sent to all bidders in order that all bidders shall be given the opportunity of proposing to the same specifications. Any inquiries from bidders concerning this ITB shall be submitted in writing, identifying the submitter, to the individual identified in Section 4.1 of this ITB and must be received no later than the date and time specified in Section 4.2 of the Calendar of Events. (E-mail inquiries are preferred with the bidder following up by mailing or faxing a hard copy.) It is the responsibility of the bidder to confirm receipt of e-mailed and faxed inquiries. Failure to file a protest of the bid specifications within the time prescribed in Section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. The record does not reflect any attempt by C.M. Security or other bidders to avail themselves of the opportunity for clarification. This meant that the ITB must be interpreted and applied as originally written.
Recommendation Upon consideration, it is RECOMMENDED: That a final order be entered which dismisses the formal written protest and upholds the proposed agency action finding Architectural Openings to be the lowest responsive bidder by price and entitled to an award on the project described in Bid No. 02-Martin-7475. DONE AND ENTERED this 26th day of February, 2003, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 26th day of February, 2003. COPIES FURNISHED: Obed Dorceus, Esquire Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 B. Forest Hamilton, Esquire Rumberger, Kirk & Caldwell, P.A. 108 South Monroe Street Tallahassee, Florida 32301 James W. Markel, Esquire Graham, Builder, Jones, Pratt & Marks, LLP 369 North New York Avenue Winter Park, Florida 32790 Gerald Spenard, C.A. Qualified Representative C.M. Security Group, Inc. 19400 Cruickshank Baie D'Urfe Montreal, Quebec, Canada H9X 3P1 James Crosby, Jr., Secretary Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500
The Issue The issue is whether Petitioner's Petition for Relief should be dismissed as untimely pursuant to Section 760.11(7), Florida Statutes (2003).
Findings Of Fact Petitioner filed a Charge of Discrimination with FCHR on June 30, 2003. Petitioner alleged that Respondent discriminated against her based on her sex and retaliated against her when she complained that her supervisor was sexually harassing her. Finding no reasonable cause to believe that Respondent had committed an unlawful employment practice, FCHR issued a Determination: No Cause on March 24, 2004. That same day, FCHR issued a Notice of Determination: No Cause, advising Petitioner that she had 35 days from the date of the notice in which to request an administrative hearing. The notice clearly stated that Petitioner's claim would be dismissed pursuant to Section 760.11, Florida Statutes, if she failed to request a hearing in a timely manner. The 35th day was April 28, 2004. Petitioner sent her Petition for Relief to FCHR by facsimile transmission on April 28, 2004, at 4:26 p.m. C.S.T. FCHR received the Petition on April 28, 2004, at 5:35 p.m. E.S.T. or 35 minutes after FCHR's normal business hours. Therefore, the Petition was not filed until April 29, 2004, one day after expiration of the 35-day period.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 25th day of June, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 25th day of June, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Mark Simpson, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399 Debra Dawn Cooper, Esquire 1008 West Garden Street Pensacola, Florida 32501 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, Respondent has been employed by the City of Clearwater in permanent civil service status as an equipment operator I. From February 25, 1985 to May 27, 1985 Respondent was paid as an equipment operator II, and was considered an "acting equipment operator II." Respondent was given this additional pay and "acting" classification since he had passed the test for equipment operator II and had a chauffeur's license. On September 16, 1985 while operating a heavy piece of equipment known as a Bob-cat, Respondent backed the vehicle over a person who was lying in a lounge chair on a public beach, killing the individual. Respondent testified he backed the vehicle up an incline on the beach approximately fifteen feet, but that he did not look behind him or over the incline to see what was there prior to backing the vehicle. At the time of this incident, Respondent was qualified to operate the Bob-cat since he had passed the equipment operator II exam, had a chauffeur's license and also had extensive experience operating this vehicle. The City of Clearwater allows an equipment operator I to operate a Bob-cat, which generally can only be operated by an operator II, if he has passed the operator II exam, has demonstrated practical experience, possesses a chauffeur's license, and an operator II is not available at the time to move the Bob-cat. On September 16, 1985, an operator II was not available and Respondent's supervisor therefore ordered him to move the vehicle. Respondent was involved in two other accidents while operating City vehicles prior to the incident on September 16, 1985. On May 18, 1983, Respondent struck a private vehicle and was issued a traffic citation for the violation of the right-of-way. He plead guilty to this charge. On March 15, 1984, Respondent struck the back of a private vehicle and was charged with careless driving. He also plead guilty to this charge and paid a traffic fine. Respondent received warnings from his supervisors following these previous incidents. On or about March 11, 1986, Respondent was served with a Demotion Notice based upon the three traffic incidents noted above. The Notice sets forth the City's intent to demote Respondent from equipment operator I to maintenance worker I due to carelessness that affects the safety of city personnel or the public, as well as endangering City property and equipment. Respondent timely requested this hearing on the Demotion Notice.
Recommendation Based upon the foregoing, it is recommended that Respondent's appeal be DISMISSED and a Final Order be issued by the City of Clearwater confirming the disciplinary action of a demotion from equipment operator I to maintenance worker I. DONE AND ENTERED this 21st day of July, 1986 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1175 Rulings on the City of Clearwater's Proposed Findings of Fact: 1 Adopted in Finding of Fact 5. 2,3 Adopted in Finding of Fact 4. 4 Adopted in Findings of Fact 2,3. COPIES FURNISHED: Miles A. Lance, Esquire Assistant City Attorney P.O. Box 4748 Clearwater, Florida 33518 Ray H. Brock Public Service Division City of Clearwater Clearwater, Florida 33518
Findings Of Fact Petitioner, Jerry's Oil, prepared Early Detection Incentive Program Notification Applications for two of its gas stations in Florida on August 13, 1987. One application was for a station located in Okeechobee, Florida, registered as DER Facility No. 478732808. The other application was for a station located in Tarpon Springs, Florida, registered as DER Facility No. 528732810. The application form had two purposes. The first purpose of the form was to notify the Department of Environmental Regulation of petroleum contamination problems. The second purpose was to provide information to the agency that could be used to determine the applicant's eligibility for the Early Detection Incentive (EDI) Program. The EDI Program provides funding and other state assistance with environmental cleanup of petroleum contamination problems to tank owners for a limited period of time. To be eligible for participation in the EDI Program, an applicant had to complete the application form provided by DER and submit it to the agency during the reporting period from July 1, 1986 through December 31, 1988. The application for the Okeechobee gas station reports that a discharge of unleaded gasoline was discovered at the site on July 8, 1987. The dispenser, which is part of the storage system, leaked because of a loose connection. The estimated number of gallons lost was unknown, but the system was repaired before the report was made to DER on August 13, 1987. The application for the Tarpon Springs gas station reports that a discharge of vehicular diesel was discovered at this site on July 12, 1987. There was a loose connection between a pipe and the dispenser. In addition, the pump hose leaked. The amount of gallons lost as a result of these equipment problems was unknown. The gasket on the pump was replaced, and the system was otherwise repaired prior to the report to DER. Petitioner completed these applications to report the discharges and to have the company's eligibility for the EDI program determined by DER. As part of his usual business practice, the owner of Jerry's Oil completed the applications and gave them to Delores M. Quinette. Ms. Quinette then made copies of the front page of each application for Petitioner's files. Ms. Quinette placed the applications together in one envelope addressed to the Department of Environmental Regulation at 2600 Blairstone Road, Tallahassee, Florida. The envelope indicated that this correspondence was directed to the attention of Laurie Ginger. The proper return address was also placed on the stamped envelope. On the same day, the envelope containing the applications was placed in the residential mailbox belonging to Delores M. Quinette at 1110 Pine Lake Drive South, Tampa, Florida 33612. The red flag on the mailbox was raised to alert the mailman that the mailbox contained outgoing mail. This mailing procedure was used by the Petitioner in the ordinary course of business as Ms. Quinette is an independent contractor who handles the paperwork for Petitioner from her home. On August 14, 1987, Ms. Quinette checked the mailbox to remove incoming mail. The envelope addressed to the DER was no longer in the mailbox. It was assumed that the mailman had taken the outgoing mail for delivery to the addresses indicated on the correspondence. The envelope containing the applications was never returned to Ms. Quinette by the U.S. Postal Service. Petitioner relied on this mailing procedure to notify DER of the petroleum discharges and its intention to apply for eligibility into the EDI program. DER's records relating to EDI Program applications do not reflect that these two applications were received within the designated reporting period or within a reasonable time thereafter. DER first become aware that the original applications had been sent in August 1987 during the month of September of 1991. This was over two and a half years after the reporting period had closed. Petitioner discovered that the original applications were never received by DER when inquiry was made by Petitioner's contractor about the company's EDI Program eligibility during site rehabilitation in September 1991. Copies of the front page of each application retained by Petitioner were then mailed to DER, along with an affidavit stating the original applications had been mailed on August 14, 1987. Upon receipt of these copies, DER advised Petitioner it was ineligible to receive EDI Program benefits because these applications were not timely filed. Petitioner takes the position that DER should look to the date the original applications were entrusted to the U.S. Postal Service instead of the date the copies were received by DER as the reporting date for the eligibility determination. Petitioner also contends that it is possible that DER might have lost applications actually received. Neither the receipt of the original applications by DER nor the agency's loss of the applications was proved at hearing.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the applications for eligibility in the EDI Program submitted by Petitioner for DER Facility Nos. 528732810 and 478732808 be denied as they were not timely filed with the Department. That the doctrine of equitable tolling should not be applied to the reporting period deadline on Petitioner's behalf because the responsibility to make sure the applications were received by DER remained with Petitioner throughout the application process. DONE and ENTERED this 1st day of May, 1992, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1 - #12. Accepted. See HO #1 - #12, and #15. Accepted. See HO #14. Accepted. See HO #13, #14, #15 and #16. Accepted. See HO #17. First sentence accepted. Second and third sentences accepted. Fourth sentence rejected. Speculative, assumes facts not in evidence and without proper foundation. Respondent's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO #1. 3. Accepted. See HO #1. 4. Accepted. See HO #2. 5. Accepted. 6. Accepted. See HO #2. 7. Accepted. 8. Accepted. 9. Accepted. See HO #14. 10. Accepted. See HO #15. 11. Accepted. 12. Accepted. 13. Accepted. 14. Accepted. See HO #13. 15. Accepted. See HO #15. 16. Accepted. Rejected. Irrelevant. Hearing Officer relied on testimony at hearing. Also, misrepresentation of testimony and events, contrary to fact. Accepted. See HO #16. Accepted. See HO #16. COPIES FURNISHED: WILLIAM B TAYLOR IV ESQ MacFARLANE FERGUSON ALLISON & KELLY PO BOX 1531 TAMPA FL 3 3601 BRIGETTE A FFOLKES ESQ ASST GENERAL COUNSEL DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 CAROL BROWNER, SECRETARY DEPT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BLDG 2600 BLAIRSTONE RD TALLAHASSEE FL 32399 2400 DANIEL H THOMPSON ESQ GENERAL COUNSEL DEPT OF ENVIRONMENTAL REGULATION 2600 BLAIRSTONE ROAD TALLAHASSEE FL 32399 2400
Findings Of Fact In their prehearing stipulation, filed August 5, 1994, the parties stipulate to these facts: Petitioner, Florida United Businesses Association, Inc. (FUBA), is a Florida nonprofit corporation with offices at 200 West College Avenue, Suite 210, Tallahassee, Florida, 32301. The affected state agency is the Department of Labor and Employment Security, Division of Safety (Division), with offices located at 2002 Old Saint Augustine Road, Suite 45, Building E, Tallahassee, Florida, 32399- 0663. The Division is the agency charged with the duty to implement and enforce provisions of Chapter 442 (Laws of Florida, Ch. 93-415), the Florida Occupational Safety and Health Act. The Division published a Notice of Public Workshop concerning proposed rule chapter 38I-74 that appeared in volume 20, number 12, Florida Administrative Weekly at 1801-02 (Mar. 25, 1994). The Division held a public workshop in Tallahassee on April 8, 1994. FUBA did not appear at nor submit comments for consideration at the public workshop. The Division held a public hearing in Tallahassee on May 31, 1994. FUBA, its representatives, or both, appeared and participated in the public hearing. The proposed rule 38I-74, was published on May 6, 1994, in the Florida Administrative Weekly, Volume 20, Number 18. The parties agree that Petitioner, Florida United Businesses Association, Inc., has standing in these proceedings. On May 27, 1994, FUBA requested the Division to prepare an economic impact statement. Economic Impact Statement FUBA alleges that the proposed rules are invalid because the agency did not consider their impact on many small businesses and the agency did not attempt to reduce disproportionate impacts on small businesses. There is no evidence that FUBA made the agency aware of specific concerns regarding the proposed rules' economic impact in the public workshop, public hearing, or written comments. Beverly Karmanos, a small-business owner whose testimony was presented by deposition in this proceeding, conjectures that the rules will cost approximately $3,000. per year. She bases that cost on two assumptions that are not supported by the text or logical implications of the rules: that the safety committee must be comprised of three or more employees; and that those employees will be required to work overtime in order to accomplish the tasks of the committee. The proposed rules allow the employer to determine the total number of members on the committee and their tenure, provided that the number of employer representatives shall not exceed the number of employee representatives. See proposed rule 38I-74.003(1)(a). The rules require that the committees meet at least once each calendar year quarter, but no other frequency, duration or time is specified. See proposed rule 38I-74.003(1)(c). Identifying the Affected Employer Sections 442.003 and .012, adopted by the Legislature in the 1993 special "C" Session (Ch. 93-415, Laws of Fla.), provide: 442.003. Legislative intent It is the intent of the Legislature to enhance occupational safety and health in this state through the implementation and maintenance of policies, procedures, practices, rules, and standards that reduce the incidence of employee accidents, occupational diseases, and fatalities compensable under chapter 440. The Legislature further intends that the Division of Safety of the Department of Labor and Employment Security develop a means by which it can identify individual employers with a high frequency or severity of work-related injuries; conduct safety inspections of those employers; and assist those employers in the development and implementation of employee safety and health programs. In addition, it is the intent of the Legislature that the Division of Safety of the Department of Labor and Employment Security administer the provisions of this chapter; provide assistance to employers, employees, and insurance caregivers; and enforce the policies, rules, and standards set forth in this chapter. 442.012. Workplace safety committees In order to promote health and safety in places of employment in this state: Each public or private employer of more than 10 employees shall establish and administer a workplace safety committee in accordance with rules adopted under this section. Each public or private employer of 10 or fewer employees which is identified by the division as having high frequency or severity of work-related injuries shall establish and administer a workplace safety committee in accordance with rules adopted under this section. The division shall adopt rules: Prescribing the membership of the workplace safety committees so as to ensure an equal number of employee representatives, who are volunteers or are elected by their peers, and of employee representatives, and specifying the frequency of meetings. Requiring employers to make adequate records of each meeting and to file and to maintain the records subject to inspection by the division. Prescribing the duties and functions of the workplace safety inspections by the committee. Establishing procedures for workplace safety inspections by the committee. Establishing procedures investigating all workplace accidents, safety-related incidents, illnesses, and deaths. Evaluating accident-prevention and illness- prevention programs. Prescribing guidelines for the training of safety committee members. Employers that operate under a collective- bargaining agreement that contains provisions regulating the formation and operation of work- place safety committees that meet or exceed the minimum requirements contained in this section, or employers who otherwise have existing workplace safety committees that meet or exceed the minimum requirements established by this section are in compliance with this section. Employees must be compensated their regular hourly wage while engaged in workplace safety committee training, meetings, or other duties prescribed under this section. (Emphasis added) The proposed rules include these relevant definitions: (3) "Compensable injury" means any injury or illness arising out of or in the course of employment which requires the injured worker to lose more than seven days from work. (9) "High frequency employer" means an employer identified by the division of having three or more compensable injuries in the period of three calendar years immediately preceding adoption of the rule chapter, and thereafter in the most recent period of three calendar years. (Proposed rule 38I-74.002) FUBA argues that the definition of "high frequency employer" is overbroad, as it will include substantially all Florida employers in the requirement for a safety committee. Moreover, Petitioner claims that the rules are arbitrary and unreasonable. Specifically, Petitioner contests the "three in three" rule (three compensable injuries in three calendar years). The Division proposes to identify individual employers by using a data base maintained by the Division of Workers' Compensation. The data base identifies approximately 450,000 Florida employers in the workers' compensation system and includes information on 1.9 million workers' compensation claims, which information is derived from the first report of injury submitted by employers and from the periodic status report submitted by carriers. The Division downloads into its computer the entire data base from the Division of Workers' Compensation. Thereafter, the Division refines the data by eliminating claims for which injured employees do not satisfy the lost-time requirement of eight days or more, employers with less than three injuries in three calendar years, and employers no longer in business. The workers' compensation data base affords the Division certain utility. The data base is maintained within the Department and is readily accessible to the Division. Moreover, the data base allows the Division to identify employers by the frequency of claims, to determine trends and patterns that reflect recurrence of injuries, and to differentiate between claims that resulted in lost time greater than seven days and lost time of seven days or less. The Division experimented with various methodologies for identifying "high frequency employer" and ultimately decided on the three compensable injuries in a period of three calendar years (three-and-three) codified in the proposed rule for several reasons. The three-and-three method offers administrative simplicity. It is immediately obvious to small employers whether they experienced three compensable injuries in three calendar years and are required to establish a safety committee. The methodology identifies a level of employers that is within the enforcement ability of the Division. The Division employs 198 persons, approximately sixty of whom are enforcement specialists. The number of specialists available to conduct inspections was a key factor in the Division's decision. The methodology produced a list of 10,561 employers who experienced three compensable claims in three years. The three-and-three methodology comports with the statutory requirement that the Division identify employers on the basis of high frequency or severity of work-related injuries. The three-and-three methodology reflects the element of frequency, and indirectly embraces the concept of severity. Severity is reflected in the definition of compensable injury, which includes only injuries that result in an employee's absence from work more than seven days. FUBA, through its competent and credible experts, contends that a more sophisticated and fair process would measure "frequency" based on numbers of employees and would measure "severity" based on costs of the claims. The disregard of inherent risks in given industries, according to FUBA, makes the "three for three" methodology statistically arbitrary. The Division, however, rejected those alternatives for good reason. The workers' compensation data base provides aggregate injury data on employers, such as size of workforce by employer classification or group, but it does not permit the Division to identify the number of employees at the establishment level. The Division must independently corroborate the number of employees with known information contained in the data base on the frequency of injuries. The Division must verify the number of employees in a particular establishment by telephone call or on-site visit after it receives a complaint or schedules a random inspection. The Division will proceed with an investigation of an employer with more than ten employees. Likewise, the Division will proceed with an investigation of an employer with ten or less employees if that employer appears on the high frequency list. Establishment level information would be useful to the Division in identifying high frequency employers. For this reason, the Division considered merging independent data sources, which contained information on the number of employees per establishment, with the workers' compensation data base. For example, the Division considered using labor market information available through the Bureau of Labor and Employment Training. However, confidentiality restrictions prevent use of that information for enforcement purposes. Also, the Division considered using Dunn & Bradstreet. However, technical limitations made its use unfeasible, since the Division achieved a correlation of less than a 30 percent match with employers in the workers' compensation data base. The Division considered using other data fields available outside the workers' compensation data base, such as financial loss, average payroll, and rates of injury. Use of those fields was rejected, in part, because the Legislature did not specifically require the Division to consider their use as a means of identifying high frequency employers. The unstable nature of financial loss information makes its use of little benefit to the Division. Experience has shown that the annualized cost of claims reflected in the workers' compensation data base is extremely unstable month-to-month and is subject to variability. Only after three years does the cost of claims, considered from a statewide perspective, become stable and suitable as a benchmark of program success. National Labor Relations Act FUBA alleges that proposed rules 38I-74.002 and .003 "may" violate the National Labor Relations Act in the manner in which the rules require employers to form safety committees. (Paragraph 12, Petition to Determine Invalidity of Proposed Rule) This allegation is presumably based on Ms. Karmanos' perception that the safety committees must work overtime. As found above, the rules do not on their face require overtime, nor is such logically implied by any of the proposed rules in Chapter 38I-74. Employer Evaluation FUBA contends that proposed rule 38I-74.006 fails to establish adequate standards for its application. The rule provides as follows: 38I-74.006 Employer Evaluation by the Division. The division shall conduct an evaluation of an employer to assure compliance with the provisions of this rule chapter. Employers subject to an evaluation by the division shall: Meet with a representative of the division; Assign a contact person to work with the division representative; and Provide requested information pertaining to employer responsibilities specified in this rule chapter. The evaluation of an employer shall be conducted at the employer's place of business. FUBA introduced no evidence or argument in support of its contention, other than Ms. Karmanos' shrugging comment that she thought the provision was "vague". Penalty Finally, FUBA asserts that proposed rule 38I-74.099 arbitrarily establishes a $500 fine for all violations. This rule provides as follows: 38I-74.099 Penalties. An employer who violates this rule chapter shall be subject to penalties authorized by the Act or division rule, provided that an employer who violates rule 38I-74.003 (employer requirements) shall be assessed $500 for each day the employer fails to comply with any section of that rule, not to exceed $50,000 for a continu- ing violation. The Division intends that proposed rule 38I-74.099 be read in conjunction with rule chapter 38I-60, F.A.C., which prescribes compliance procedures that must occur before the Division assesses a penalty. The Division must issue a notice of violation; the employer must fail to abate the violation; and the Division must issue a notice of penalty. That chapter also permits an employer to introduce evidence in mitigation of a penalty.
Findings Of Fact Lee County's Proposed Resource Recovery Facility Lee County has been investigating alternate methods of solid waste disposal since 1979. In 1989, Lee County adopted a Solid Waste Master Plan to guide the County's solid waste management and disposal activities for the next 40 years. The County Commission, consultants and staff concluded that the County's long term needs would be best served by an integrated solid waste management system, which would include an aggressive recycling and materials recovery program, plus composting, landfilling, and the use of a resource recovery (waste-to- energy) facility. In June 1990, Lee County filed an application for site certification with the Florida Department of Environmental Regulation (DER) for the proposed resource recovery facility (Facility). The County also filed an application with DER for a Prevention of Significant Deterioration (PSD) permit for the Facility. Lee County's Facility will produce electricity from municipal solid waste that otherwise would be discarded in a landfill. Solid waste will be brought into the Facility by truck and deposited in a large concrete pit. The refuse will be thoroughly mixed in the pit and then placed by crane in a charging hopper, which will lead into a furnace. The combustion of refuse in the furnace will create heat, which will be used to produce steam, which will be used in a steam turbine to generate electricity. The County's Facility will include the energy recovery system, a scale house, cooling tower, a stack, a 138 kV transmission line, and a stormwater management system. The Facility will have two combustion units with a combined processing capacity of approximately 1200 tons per day (tpd). Theoretically, the Facility could be expanded in the future with a third 600 tpd combustion unit to reach an ultimate site capacity of 1800 tpd. The Facility will generate approximately 40 megawatts (MW) of electricity at 1200 tpd and approximately 60 MW if expanded to 1800 tpd. The Facility will generate more than 4.28 billion kilowatt hours of electricity during its minimum 20 year life. By using solid waste to produce electricity, the County will save nonrenewable resources such as oil or coal that otherwise would be needed for power production. The energy produced from garbage will offset the need for more than 7,000,000 barrels of oil. Assuming oil is worth $20 per barrel, approximately $140 million worth of oil will be saved. The Facility will help Lee County address its solid waste disposal crisis. The Facility will reduce the volume of waste materials up to 90%. With less waste, less landfill space will be required and less land will be used for landfills. The threat of groundwater contamination also will be reduced because the ash from the Facility will be much less toxic than municipal solid waste (MSW). The leachate from ash will be much less toxic than leachate from MSW. The Facility will compliment Lee County's aggressive recycling and materials recovery programs. The Facility will only process those waste materials that are left after recycling is completed. Moreover, ferrous metals will be recovered at the Facility and recycled. The Facility will provide regional benefits. It will serve the residents of both Lee County and Hendry County pursuant to an interlocal agreement between the two counties. It will serve a combined population of approximately 400,000 people initially, which is projected to grow to approximately one million people within 20 years. The Facility will have positive economic impacts. Over 325 people will be employed during the Facility's construction. The Facility will provide jobs for 54 full-time employees during normal operations. The annual payroll of $2.5 million will contribute more than $33 million to the local economy over 20 years. The construction costs of approximately $130 million will result in a positive regional economic impact of approximately $398 million. The site is undeveloped. It has been heavily impacted by past logging and agricultural activities, including ditching and cattle grazing. The site has been extensively invaded by exotic tree species such as melaleuca and Brazilian pepper. Vegetative diversity is low, offering few habitat niches for feeding or reproduction by wildlife. As a result, the numbers and diversity of wildlife on the site are extremely low due to the poor habitat conditions. There are no DER jurisdictional wetland areas on the site. There are isolated wetlands within the jurisdiction of SFWMD. No jurisdictional wetlands will be affected by the construction of the resource recovery facility structure, which will be constructed in a previously disturbed sector of the site which is vegetated with wax myrtle. No more than 2.7 acres of wetlands will be affected by the construction of the new 138 kV transmission line, which is necessary to connect the Facility to FPL's adjacent Buckingham substation. The proposed location of the new transmission line next to an existing dirt road minimizes potential wetland impacts from the transmission line. The County will provide several forms of mitigation for wetland impacts. Under the agreed conditions of certification, the County will create new wetlands at whatever mitigation ratio SFWMD deems appropriate. In addition, the County will restore the historic hydroperiod to a stressed 9.9 acre wetland tract located on the southeast portion of the site. Finally, the County will eradicate nuisance plant specimens now found on the site and continue removal of new specimens as part of an ongoing program of habitat enhancement. These mitigation activities will improve wetlands and wildlife habitat on the site compared to current conditions. These activities will increase habitat diversity, which should result in an increase in wildlife numbers and diversity on the site. The county plans to construct the Facility approximately 1500 feet from Buckingham Road, maintaining an existing wooded area as a visual buffer between the road and the Facility. Approximately 88% (137 acres) of the site will remain as undeveloped buffer zones. All of the primary activities at the Facility will occur inside a fully enclosed building, which will be maintained under negative air pressure for control of noise, dust, and odors. Based upon experience at similar fully-enclosed resource recovery facilities, it is not likely that noise, dust, or odor levels at the site will be elevated by operation of the Facility. The planned surface water management system for the site includes a wet detention area for stormwater which is eight times larger than that required under the application rules of SFWMD. This wet detention area is supplemented by a dry pretreatment system approximately 4.5 times larger than required. After treatment, stormwater will be discharged into a currently stressed wetland area for additional treatment; the discharge will assist in restoring the original hydroperiod of the area. The primary source of water to be used in the Facility will be the City of Fort Myers' domestic wastewater treatment plant, which currently discharges advanced-treated wastewater to the Caloosahatchee River. The Facility's cooling tower will use approximately 1.1 million gallons per day (mgd) of treated wastewater. DER and SFWMD strongly encourage reuse of wastewater in this fashion, and the use will reduce the levels of nutrients which would otherwise be discharged into the Caloosahatchee by the City of Fort Myers treatment plant. The Facility will use approximately 15,000 gallons per day (gpd) of potable water for boiler makeup and household-type uses. This water will be drawn from two wells located on site, which can also supply backup water for use during emergencies. Use of potable water as backup for cooling is limited to ten days per year. The Facility will not discharge any wastewater into groundwater or surface waters. Wastewater generated at the Facility will be recycled to the extent practicable and then routed by pipeline to the City of Fort Myers' wastewater treatment plant. The Facility is not expected to cause or contribute to groundwater contamination. A groundwater monitoring system will ensure that the Facility does not impact groundwater. Likewise, a surface water monitoring program will ensure that surface water quality is not affected. The Facility will not be authorized to burn hazardous waste, biohazardous waste, medical waste, or sewage sludge. County franchise agreements with waste haulers, the only persons authorized to bring waste to the Facility, prohibit the disposal of such wastes at the Facility. Spotters stationed at the scale house, tipping floor, and charging hopper will inspect the waste stream to ensure that proscribed wastes are not burned. Proscribed wastes will be segregated upon discovery and removed by a licensed hazardous waste hauler. The municipal waste stream contains a number of substances, such as nail polish, paints, pesticides and solvents, which are denominated as "household hazardous waste." It is anticipated that such products will be found in the MSW entering the Facility. The County intends to minimize the volume of such wastes by operating a household hazardous waste collection center open to all of the County's residents. Ash is produced as the by-product of MSW incineration. Ash produced by the Facility will be wetted in a water-filled tank, then taken by conveyor within the building to an enclosed ash-handling area to be hauled away by enclosed truck to a licensed landfill for disposal. The Facility will not be allowed to commence operation until the County identifies a licensed landfill able and willing to accept ash from the Facility. Ash from the Facility is not considered a hazardous waste for regulatory purposes. Status of the Project Lee County will own the Facility. Ogden-Martin (Ogden) will build and operate the Facility for 20 years pursuant to a contract Ogden executed with the County in 1990. Ogden was selected because it submitted the lowest and best bid for these services in a competitive bidding process. Ogden is one of the largest and best vendors of resource recovery facilities in the United States. Ogden currently operates three resource recovery facilities in Florida and twelve in the United States. Ogden uses the Martin technology which has been used successfully at more than 140 facilities around the world. Lee County already has secured $197 million in escrow financing for the construction of the Facility, which will take approximately 27 months to complete. The County hopes to have the Facility in operation in the spring of 1994. EPA's 1991 New Source Performance Standards In February 1991, the United States Environmental Protection Agency (EPA) promulgated New Source Performance Standards which established stringent minimum requirements for the construction and operation of new resource recovery facilities, including Lee County's Facility. Among other things, EPA's 1991 New Source Performance Standards (NSPS): (a) establish specific emission limits for a wide array of pollutants, including dioxin; (b) require facility operators to be trained and certified; and (c) require resource recovery facilities to install, calibrate and maintain continuous emission monitors that monitor the facility's operations around the clock. The 1991 NSPS are applicable to the Facility. Best Available Control Technology In accordance with DER and EPA procedures, Lee County conducted a detailed evaluation of the Best Available Control Technology (BACT) for the control of the Facility's airborne emissions. The BACT analysis included an evaluation of all feasible and available air pollution control technologies at existing and proposed resource recovery facilities in the United States and overseas. The energy, economic, and environmental impacts of each technology were quantified and compared on a pollutant-by-pollutant basis. The analysis resulted in a determination of the BACT and appropriate emission limit for each pollutant. The County's analysis demonstrated that the Best Available Control Technology for the Facility is: (a) a spray dryer scrubber; (b) a fabric filter; (c) a selective non-catalytic reduction (SNCR) system; and (d) good combustion practices. This BACT determination is consistent with EPA's 1991 NSPS, which were established on the basis that spray dryer scrubbers, fabric filters, and SNCR were the best demonstrated technology for resource recovery facilities. The dry scrubber system is used to control sulfur dioxide (SO2) emissions as well as those of other acid gases such as hydrogen chloride and hydrogen fluoride. The system involves the injection of slaked lime to neutralize acid gases in the exhaust gas stream. Because the lime injection process effectively cools the gas stream, the scrubber system also effectively removes heavy metals except mercury; these metals adsorb to particulate matter which is removed by the fabric filter baghouse. Nitrogen oxides (NOx) are controlled by SNCR, which involves the injection of ammonia or urea into the post- combustion zone of the boiler to dissociate NOx, which is formed at high combustion temperatures, into nitrogen and water vapor. Good combustion practices minimize emissions of substances produced by incomplete combustion of solid waste, including carbon monoxide (CO), unburned hydrocarbons, soot, and toxic organic compounds such as dioxins, furans, and polycyclic organic matter (POM). The adherence to good combustion practices will assure that emissions of total dioxins and furans will not exceed the NSPS standard. Lee County considered the possibility of using a wet scrubber system, but the wet scrubber was rejected because it suffers from a variety of problems. Wet scrubbers have never been selected as BACT for any resource recovery facility in the United States. Wet scrubbers are not BACT in this case. Control Technology for Mercury The mercury emissions from the Facility will be minimized by at least four factors. First, many sources of mercury in municipal solid waste have been or soon will be eliminated. EPA has banned the use of mercury in paints and pesticides. In addition, there has been a significant national effort to reformulate consumer products and thereby eliminate mercury in the waste stream. For example, battery manufacturers nationwide have substantially reduced the mercury content of household batteries and it is expected that household batteries will be virtually mercury-free by 1995 (i.e., one year after the Facility becomes operational). This development is particularly important because as much as 90% of the mercury in municipal solid waste is contained in household batteries. Second, Lee County has implemented a battery collection program to reduce the number of household batteries in the waste stream and thereby further reduce the amount of mercury that might enter the Facility. The County has 46 drop-off stations at retail stores for the collection of button cell batteries. The County has worked with the School Board to educate students about the need to collect household batteries. The County currently is working on a curbside program for the collection of household batteries. As a result of these efforts, Lee County collected more than 40,000 batteries in just three months in 1991. Third, if there is mercury in the refuse entering the Facility, it will be controlled in part by the Facility's spray dryer scrubber and fabric filter, which may reduce mercury emissions by as much as 70%. Indeed, in a November 1990 case EPA stated that a spray dryer scrubber and fabric filter represented the most stringent control mechanisms for mercury. Fourth, Lee County will utilize an additional pollution control device to control mercury emissions. Specifically, Lee County will use a reagent injection system which will inject activated carbon, sodium sulfide, or other reagent into the flue gases. The mercury will adhere to the reagent and then be removed from the flue gases by the fabric filter. The reagent injection system should be very effective at capturing mercury and it also should reduce some other emissions (e.g., dioxins). The reagent injection system has been used in Europe, but it has never been used on a full-time basis on any resource recovery facility in the United States. This technology is not required under any state or federal regulatory program. The Facility's reagent injection system for mercury will provide the highest degree of mercury control that is technologically possible at this time. As a result of the County's extraordinary efforts to control mercury, the mercury emissions from the facility will be among the lowest in the world. Emission Limits For Mercury In August 1991, EPA completed a series of experiments with a reagent injection system at a resource recovery facility in Stanislaus, California. EPA will use its new test data from Stanislaus and its existing mercury data base to establish numerical limits for mercury emissions from new resource recovery facilities. EPA's new emission limits for mercury must be promulgated by November 15, 1991, pursuant to the 1990 amendments to the Clean Air Act. The new emission limits will be based on Maximum Achievable Control Technology (MACT), which will be even more stringent than BACT. EPA's mercury emission limits for "new facilities" are not applicable to Lee County's Facility, but Lee County has stipulated that it will comply with the new EPA emission limits for mercury when they are promulgated. DER's proposed conditions of certification provide that the Facility's maximum mercury emission rate "shall not exceed" 6.0 x 10-4 lbs/MMBtu or the new EPA limit, whichever is more stringent. The conditions of certification also expressly provide that DER can reduce the County's emission limit for mercury if a reduction is shown to be necessary in the future. The mercury emission limit in the conditions of certification is equivalent to approximately 560 micrograms per dry standard cubic meter (ug/dscm). To ensure consistent compliance with DER's "not to exceed" emission limit, Lee County's contract with Ogden-Martin requires Ogden to meet an emission limit of 150 ug/dscm. The County wanted Ogden to guarantee a lower emission limit to ensure that the Facility would never violate the conditions of certification. The County also wanted to ensure that Ogden would use its best efforts to reduce mercury emissions to the maximum extent possible. EPA's new test data from Stanislaus will provide a scientific basis for a new mercury emission limit that can be reasonably achieved with MACT. Until EPA's data are published, however, it would be imprudent and inappropriate to establish a mercury emission limit for the Facility that is lower than the level proposed by DER in the conditions of certification. The proposed mercury emission limit for the Facility represents a reasonable upper limit, given the available test data, and it rests on sound engineering judgment. Mercury emission rates of 130 ug/dscm or 80% removal recently were proposed in two pending cases in New York, but there are no reliable data available at this time to confirm that such levels can be consistently achieved. SFCARE contends that the BACT analysis should have set the Facility's mercury emission limit at 50 ug/dscm or 90% removal, however this limit is not supported by the evidence of record. SFCARE's proposed emission limits have never been established as BACT for any resource recovery facility in the United States. SFCARE's witness (Craig Volland) admitted that vendors for air pollution control equipment tend to exaggerate about the capabilities of their products, but no vendor in the world would guarantee that its equipment would meet his proposed emission limit of 50 ug/dscm. No vendor in the United States would guarantee the 90% removal limit. Another SFCARE witness (Richard Cook) conceded that he was unaware of any resource recovery facility that could achieve SFCARE's proposed emission limits for mercury. Nonetheless, SFCARE believes the County's mercury control system can reduce mercury emissions by 90% and limit them to 50 ug/dscm. To the extent that SFCARE is correct, the State of Florida can be reasonably assured that the mercury emissions from the Facility will be far below the levels established in the conditions of certification. Lee County's Air Quality Analyses The County's analyses of the Facility's impacts on air quality were performed in accordance with all of the applicable air quality regulations. Further, the County's analyses demonstrate that the Facility will operate in compliance with those regulations. Lee County's analyses were based on a series of "worst case" assumptions that intentionally maximized and over-predicted the Facility's potential impacts on air quality. For example, Lee County analyzed the air quality impacts associated with an 1800 tpd facility, even though the County only plans to build a 1200 tpd facility. The County also assumed that the Facility would operate 100% of the time, even though resource recovery facilities normally operate only 85 to 95% of the time. The County assumed that the Facility would emit every pollutant at the maximum permitted emission rate, continuously throughout the year, even though it would be impossible for this to occur. The County used a screening analysis to identify the operating conditions (e.g., loading rates, refuse Btu values) that would cause the maximum ground level impacts and then the County used those "worst case" operating conditions in all subsequent air quality analyses. Lee County also utilized a conservative approach (i.e, one designed to over-predict actual impacts) when determining the ambient air quality at the Site. The County used ambient air quality data from areas of heavy urban or industrial growth, which reflect levels of air pollution that are much greater than the levels expected at the County's Site. The County used EPA and DER approved computer models to evaluate the Facility's air quality impacts. These computer models have been tested extensively in the field to confirm that the models will over-predict a facility's maximum impacts. In accordance with DER's recommendation, the computer models used five years of consecutive hourly meteorological data from Fort Myers to calculate the Facility's impacts on air quality. As a result, the models will over-predict the Facility's maximum potential impacts at any time under any meteorological conditions. Ambient Air Quality Standards Primary ambient air quality standards are established by EPA to protect public health "with an adequate margin of safety." Primary standards are designed to protect the health of the most susceptible groups of the population, including children, the elderly, asthmatics and those with respiratory problems. Secondary ambient air quality standards are designed to protect the public welfare against "any known or anticipated adverse effects" from air pollution. Florida has adopted the national ambient air quality standards, except in some instances where Florida has adopted standards that are more protective. The Facility's maximum impacts are extremely small when compared to the national ambient air quality standards (NAAQS) and Florida ambient air quality standards (FAAQS). The Facility's maximum impacts are less than one percent of any NAAQS or FAAQS. For example, the maximum impact from an 1800 tpd Facility would be only 0.8% of the health-based standard for lead. The County analyzed the Facility's maximum predicted impacts together with the maximum background levels for the ambient air, which take into account the impacts of all existing sources of air pollution. In the worst case, the combined impact of the Facility and all existing sources is only 60% of the standard for particulate matter, and only 0.05% of the impact results from the Facility's emissions. In all other instances, the combined impact of the Facility and all existing sources ranges from 7% to 46% of the NAAQS and FAAQS. Non-Criteria Pollutants Non-criteria pollutants are those substances for which EPA has not adopted ambient air quality standards. Non-criteria pollutants include mercury and dioxin. DER has identified certain levels (i.e., "no threat" thresholds) below which no adverse impacts are anticipated from non- criteria pollutants. In this case, the Facility's maximum impacts for non-criteria pollutants are 10 to 100 times less than DER's no-threat thresholds. The Facility's maximum impacts were compared to health-based standards and guidelines adopted by New York, North Carolina, Kentucky, and the American Conference of Governmental and Industrial Hygienists. The Facility's maximum impacts for non-criteria pollutants were far below all of the applicable criteria. The dioxin emissions from the Facility will be well below all of the health-based standards and guidelines that have been established by DER, EPA, the World Health Organization, and the European Community. The Facility's maximum impacts will be about 1,000 times less than the ambient air quality standard for dioxin that was established by Connecticut, the first state to adopt an ambient air quality standard for dioxin. Prevention of Significant Deterioration EPA and DER enforce the Prevention of Significant Deterioration (PSD) program, which is designed to protect existing air quality. The PSD program limits airborne emissions by establishing maximum allowable increments that can be consumed in Class I, II, and III areas by potential sources of air pollution. Lee County and all adjacent areas are designated as PSD Class II areas, except for the Everglades National Park, which is a Class I area. The Facility will consume no more than 2.8% of any of the applicable PSD Class II increments. It will consume between 0.02 and 3.2% of the PSD Class I increments at the nearest location in the Everglades National Park, which is approximately 88 kilometers (55 miles) south-southeast of the Site. At the request of the National Park Service, Lee County evaluated the Facility's impacts on the closest border of the Big Cypress National Preserve, which is 61 kilometers (38 miles) southeast of the Site. The Facility's maximum impacts in the Big Cypress area will range from 0.02 to 4.4% of the Class I increments. Health Risk Analyses The environmental and human health effects of resource recovery facilities have been studied extensively. In 1987, EPA evaluated the data from resource recovery facilities around the world and then submitted a nine volume report to Congress, including a one volume health risk assessment. EPA conducted another comprehensive evaluation of resource recovery facilities when preparing the 1991 New Source Performance Standards. Based on these studies, EPA has concluded that well-designed, well-constructed and well-operated resource recovery facilities pose no unacceptable levels of risk to human health or the environment. The World Health Organization has reached the same conclusion. Similarly, the Florida Department of Environmental Regulation and the California Air Resources Board funded an extensive "worst case" health risk assessment of Pinellas County's 3000 tpd resource recovery facility. They concluded that the impacts from the Pinellas County facility were "minimal." In light of this extensive data base, EPA and DER do not require applicants to conduct health risk assessments for proposed resource recovery facilities. Nonetheless, Lee County analyzed the potential health impacts of the Facility's emissions. The County's analyses demonstrated that the maximum predicted impacts from the Facility will be far below any level that might cause any human health problems. Lee County evaluated the Facility's effects on human health and the environment by using standard health risk assessment techniques that were developed by EPA and other agencies. The evaluation was performed by Dr. Paul Chrostowski, a nationally recognized expert who teaches courses concerning health risk assessments for EPA and state regulatory agencies. Lee County's evaluation was based on a series of very conservative assumptions about the project that were intentionally designed to greatly over-predict the potential risks associated with the Facility's emissions. For example, the County's evaluation was based on the assumption that the Facility will operate at 1800 tpd, 100% of the time, for 70 years, even though Lee County only intends to build a 1200 tpd facility, which will operate approximately 85-95% of the time, over a useful life of approximately 30 years. The Facility's maximum impacts will occur relatively close to the Site in an undeveloped agricultural area, but the County assumed that hypothetical people would be located at the point of maximum impact for 24 hours a day, 365 days a year, for 70 years. The County assumed that these hypothetical individuals would never leave the area of maximum impact or even go indoors, where air conditioning would reduce the Facility's impacts. The County also used EPA's potency factor for dioxin when evaluating the Facility's potential impacts, even though EPA's value is too high and is approximately 200 times greater than the potency factor used by the Florida Department of Health and Rehabilitative Services. Health risk assessments result in a statistical probability that a hypothetical person might get some form of cancer (not a fatal cancer). For regulatory purposes, EPA considers acceptable risks to range from 1 in 10,000 up to 1 in 1,000,000. Even after using all of its conservative assumptions, the County found that the probability of a person getting any type of cancer from dioxin inhalation was only 3 in 100,000,000. The health risk would be reduced by a factor of up to 100 if the County used more reasonable exposure assumptions. The calculated risk would be reduced by an additional factor of 200 if the County used the potency factor for dioxin that is used by the Florida Department of Health and Rehabilitative Services. In any event, a risk of 3 in 100,000,000 indicates that the Facility will not cause any cases of cancer from dioxin inhalation. In general, there is a 10:1 ratio between all potential exposure pathways and the inhalation pathway for dioxin. Accordingly, the risk from all exposure pathways for dioxin would be 3 in 10,000,000. This risk is well below any level of concern for regulatory purposes. To put these risks in perspective, it should be recognized that a 1 in 1,000,000 risk would be experienced if a person smoked two cigarettes at any time during his or her life. A risk of 1 in 1,000,000 also would be encountered if a person drank one liter of wine during his or her entire lifetime. Hence, the risk from drinking one liter of wine or smoking two cigarettes during a person's lifetime is approximately 10 times greater than the risk that would be experienced if a person located at the point of maximum impact received 70 years of uninterrupted exposure to the maximum predicted dioxin emissions from an 1800 tpd facility. When the risks are considered in this context, it is clear that the Facility's dioxin emissions will pose no meaningful risk to human health. Similarly, the Facility's mercury emissions pose no threat to human health. The Center for Disease Control (CDC) has developed "minimal risk levels" for short term and long term exposure to mercury. If a person's exposure is below the minimal risk level, the CDC does not anticipate any adverse health effects. In this case, the maximum short-term impact from the Facility's mercury emissions at 1800 tpd will be about 1,000 times less than the CDC's minimal risk level for short term exposure. The Facility's maximum annual impact will be many thousands of times lower than the CDC's minimal risk level for long- term exposure. Environmental Impacts of Mercury Emissions The County also conducted a very conservative "worst case" analysis of the Facility's maximum impacts on Florida's ecosystems. Using standard EPA approved techniques, the County identified two environmentally sensitive areas where the Facility's impacts might have the greatest effects: (a) Lake Tarpon in the Ding Darling Refuge on Sanibel Island; and (b) the northern reaches of the Caloosahatchee River in Lee County. Since the Everglades National Park (Everglades) and Big Cypress Refuge (Big Cypress) are much further away from the Site, the potential impacts on the Everglades and Big Cypress will be much smaller than the impacts on the areas selected for study. The Facility's potential impacts on the Everglades and Big Cypress also will be minimized because the prevailing winds normally will blow the Facility's emissions away from those areas. The County identified the wildlife species of greatest concern to be the Florida panther, the bald eagle, the wood stork, and the snail kite. The County selected the snail kite and wood stork for the closest scrutiny because they are the species that are the most likely to be affected by the Facility's emissions. Here, too, Lee County's analyses were based on very conservative assumptions. Among other things, the County assumed that: the Facility will operate continuously at 1800 tpd for 70 years; Lake Tarpon and the Caloosahatchee River will receive the Facility's maximum impacts; (c) virtually all of the Facility's emissions will be deposited on the soil and then washed into the water bodies under investigation; (d) the snail kite and wood stork will only feed in the two areas that are under investigation; (e) the birds' food (i.e., snails for the snail kite; fish for the wood stork) will stay in one location where it will receive maximum exposure; and (f) the fish and snails will live 70 years and accumulate mercury over that period. The County also used the lowest sensitivity levels that could be found for any bird species and then applied a toxicological safety factor of 20. The County's analyses demonstrated that after 70 years of Facility operations at 1800 tpd, the mercury concentration in snails would be three times less than any levels that might cause an impact on the snail kite. Wood storks would be exposed to even less risk than snail kites because the bioaccumulation of mercury in fish would be less than the bioaccumulation of mercury in snails. Since eagles also eat fish, this same conclusion is true for eagles. Bald eagles and panthers would be at even less risk than snail kites or wood storks because they feed over a larger range than snail kites or wood storks. Panthers and eagles would not get all of their food from the area of maximum impact near the Site. Panthers and eagles are very mobile and they would not remain for a long period of time in the areas where the Facility's maximum impacts would occur. Panthers can range over hundreds of square miles of land. Indeed, one young panther once moved through the general area near the Site, but since then it has spent most of its time roaming through Hendry County and Collier County. The panther's activities have taken it approximately 20 miles northeast and 50 miles southeast of the Site. Since the Facility's impacts will be lowest to the southeast and east, the Facility's impacts will be much smaller in those areas where the panther is located than in the areas that were studied by Lee County. Parenthetically, dioxin concentrations resulting from the Facility's emissions would be up to one billion times less than the levels of concern for dioxin in snails, fish, or their predator species. The County's analyses demonstrate that the Facility, when considered individually or when combined with other existing sources of mercury, will not have any adverse impacts on threatened or endangered species in southwest Florida. There is a very wide margin of safety for these species because the Facility's emissions will be extremely small. Soil Deposition Lee County evaluated the possibility that the Facility's emissions would be deposited on the soil and accumulate over time. To evaluate this issue, the County assumed that there would be 70 years of soil deposition resulting from the Facility's maximum emissions at 1800 tpd. The Facility's maximum impact on lead concentrations in the soil after 70 years would be 2 x 10-4 parts per million (ppm). In the southeastern United States, lead occurs naturally in the soils at levels up to 40 ppm. Children do not experience any effects from lead until soil concentrations reach at least 200 ppm. EPA sets a safe level of 500 ppm. Similarly, after 70 years of worst case impacts, the Facility's contribution to arsenic concentrations in the soil would be 3 x 10-6 ppm. Naturally occurring levels of arsenic in Florida's soil range up to 15 ppm. The Facility's maximum contribution to beryllium concentrations in the soil would be about 1,000,000 times less than the levels that naturally occur in Florida soils. The Facility's maximum contribution to mercury levels in the soil would be 2 x 10-4 ppm. By comparison, sugar cane contains approximately 1.2 ppm of mercury. In all of these worst case analyses, the 1800 tpd Facility's maximum contribution to soil concentrations would be at least 100 times below any level that the EPA or CDC has associated with health impacts. Indeed, the Facility's contributions to these soil concentrations could not be measured with any known analytical technique. Air Quality Monitoring Lee County will utilize sophisticated operational safeguards to ensure that the Facility is operated properly. The Facility will have continuous emission monitors (CEM) to continuously measure the levels of carbon monoxide, nitrogen oxide, sulfur dioxide, and oxygen in the Facility's emissions. Opacity and other parameters also will be monitored with CEMs. These monitors will be connected to visible and audible alarms in the Facility's main control room, which will alert the Facility operators to potential problems. The data collected by the CEMs will be reported regularly to DER. Shortly after the Facility completes construction, Lee County will conduct an initial stack test to demonstrate compliance with the various emission limits established in the conditions of certification. Lee County will conduct annual stack tests thereafter, even though annual stack tests are not required at most resource recovery facilities. The Southwest Florida Regional Planning Council suggested that Lee County should monitor mercury emissions on a monthly "or other appropriate basis." There are several reasons why annual, not monthly, stack tests for mercury will be most appropriate for the Facility. First, monthly stack tests at the Facility would cost a minimum of $300,000 each year. Second, there are no resource recovery facilities in the United States that are required to conduct monthly or even quarterly stack tests for mercury. Third, there will be a substantially larger data base for mercury compiled prior to the commencement of operations at the Facility in 1994. Fourth, DER has recommended annual stack tests. Fifth, DER could require more frequent testing in the future if DER concluded that additional tests were necessary. SFCARE contends that ambient air quality monitoring should be conducted on or around the Site. This proposal is rejected because ambient air monitoring would be of no scientific value. The Facility's maximum impacts at 1800 tpd will be so small that they could not be measured with an EPA approved ambient air monitoring system located at the point of maximum impact or anywhere else in Lee County. For this reason, state and federal regulations will not require ambient air quality monitoring at or near the Site. Facility operations can be better evaluated by using CEMs and stack tests to measure the Facility's emissions, rather than ambient air monitors. Lee County's Recycling Programs Lee County has a very aggressive and innovative recycling program. Lee County expects to achieve the state recycling goal of 30% by 1994. Moreover, the County Commission established a county recycling goal of 40% and the County is doing everything practicable to achieve its 40% goal. Lee County's residential curbside recycling program will serve 100% of the County by the end of 1991. The County expects to have 50% of the County's commercial businesses in its recycling program by 1992 and 100% of the businesses by 1994. The County already collects used oil, automobile batteries, and telephone books. The County is implementing a mulching program for horticultural wastes. The County's recycling rates are among the best in the State of Florida. The County's overall recycling program is among the best in the nation. The County received an award from EPA for its innovative approach to recycling. Among other things, the County has a contract with Goodwill Industries that allows Goodwill to process and market all of the recyclable materials collected in the County's curbside program. The County recently awarded $1,200,000 to Goodwill for an automated materials separation facility for recyclables. The County also awarded $600,000 to Goodwill for an intrusion molding plant that will utilize PET and HDPE plastics to create plastic lumber. The County recently used a $100,000 DER grant to construct a facility for the collection and disposal of household hazardous wastes. The County recently received a DER recycling grant for $619,000 and a DER tire recycling grant for $209,000. Although the County has an innovative recycling and materials recovery program, the County only wants to use demonstrated technologies. The County does not want to gamble its public funds on experimental technologies that might not work. The County does not want to invest in a program like the Agripost composting facility in Miami, which was a "dismal failure" and cost more than $25 million. Some citizens suggested that Lee County should recycle 60% or more of the waste stream, but such proposals are not feasible. Some materials cannot be recycled. Other materials are not marketable and cannot be reused. Facility Sizing When the County filed its PSD and PPSA applications in June 1990, the County wanted authorization to construct an 1800 tpd facility that could be expanded to 2400 tpd. On May 1, 1991, the County Commission decided to reduce the size of the Facility to 1200 tpd, with expansion capabilities to 1800 tpd. The County Commission reduced the size of the Facility because the County wanted to maximize its recycling programs and minimize its reliance on the Facility. As a result of the County's decision, it will be very expensive to expand the Facility. The County has created a strong financial disincentive against expansion of the Facility. Resource recovery facilities normally are designed with excess capacity to provide for future growth. In this case, however, the Facility will be full when it begins commercial operations, unless the County achieves a 30% recycling rate. Even if the County achieves a 30% recycling rate, the Facility will be full within two years after it commences operation. Source Separation As BACT SFCARE contends that the BACT determination in this case should require additional recycling or source separation (i.e., the removal of certain materials from the waste stream prior to their disposal at the resource recovery facility). SFCARE's proposal is rejected. Recycling and source separation programs do not significantly affect the emissions from resource recovery facilities, with two exceptions. Removing household batteries from the waste can reduce mercury emissions. Removing lead-acid batteries, as required by Florida law, can reduce lead emissions. In this case, Lee County already has taken steps to remove these two types of batteries from the waste stream. In general, however, recycling and source separation programs have not been demonstrated to reduce emissions from resource recovery facilities and, therefore, such programs do not constitute Best Available Control Technology. In a 1989 case involving a resource recovery facility in Spokane, Washington, EPA concluded that source separation had not been demonstrated to be BACT. In the 1991 NSPS for resource recovery facilities, EPA stated that there are no reliable data to demonstrate that recycling or source separation requirements should be imposed as part of the NSPS. Consequently, recycling, source separation, and similar requirements have never been imposed as part of a BACT determination by EPA or any state agency in the United States. The available data indicate that additional source separation programs (i.e., over and above what the County already proposes) would not be cost effective and would not produce any meaningful reductions in the Facility's emissions. For example, several studies have shown that the removal of plastics from the waste will not reduce dioxin or other emissions. BACT determinations require a quantitative analysis of the energy, economic and environmental impacts associated with any proposed BACT technology. In this case, SFCARE did not perform any analyses of the energy, economic, or environmental impacts of its proposals concerning recycling or source separation. Indeed, SFCARE has not specifically explained what additional recycling or source separation should be done in this case, what these activities would cost, or what environmental benefits (if any) would result. Thus, SFCARE's proposal is fatally defective. SFCARE SFCARE has approximately 600 people on its mailing list, but the actual number of SFCARE members is unknown. The members of SFCARE fish, jog, and otherwise enjoy the natural resources of Lee County; however, SFCARE's President readily admitted that SFCARE's members are just like all of the other citizens in Lee County in this regard. The Facility will be approximately five miles from the nearest home of any SFCARE member. The evidence demonstrated that the Facility's impacts on the public will be negligible. The Facility's impacts on the members of SFCARE will be no different than its impacts on other members of the community. Several members of SFCARE complained of personal illnesses or physical infirmities, but here, too, the members of SFCARE are like any other typical cross-section of the community. The evidence did not demonstrate that any member of SFCARE would be affected in any manner that would be different than the public at large. Notice of Certification Hearing On July 27, 1990, Lee County published a large notice in the Fort Myers News-Press to announce that Lee County had filed its application for site certification. On July 23, 1991, Lee County published a full page notice in the Fort Myers News-Press concerning the Facility and the certification hearing. Notice of the certification hearing was published by DER in the Florida Administrative Weekly on August 2, 1991--37 days before the hearing started. DER issued a news release concerning the certification hearing on August 9, 1991. Substantial public notice of the certification hearing also was provided by the press and media coverage in the area. Notice of the certification hearing and copies of the DER report about the Facility were provided to EPA, the Federal Lands Manager, and other appropriate officials in compliance with DER rules. Notice of the certification hearing and the copies of the DER report were available for public inspection at several locations in Lee County 30 days prior to the public comment portion of the certification hearing. Ultimate Findings of Fact Lee County has utilized all reasonable and available methods to ensure that the location, construction, and operation of its proposed Facility will produce minimal impacts on human health, the environment, the ecology of the land and its wildlife, and the ecology of state waters and their aquatic life. The evidence establishes that the proposed Facility will comply with all of the applicable and substantive environmental regulations of all of the local, regional, and state agencies involved in the PPSA process. The operational safeguards proposed by Lee County, together with the conditions of certification proposed by the regulatory agencies, are more than sufficient to protect Florida's citizens and its environment. The Facility will create electrical power while providing a regional solution to the solid waste needs of Lee County and Hendry County. The beneficial impacts of the Facility are substantial, while the environmental impacts resulting from the Facility's construction and operation are negligible. Indeed, the Facility will not have any meaningful impacts on Florida's air, water, soil, or wildlife. The conditions of certification attached hereto as Appendix A are reasonable and appropriate to ensure that the construction and operation of the Facility will have minimal impacts on the environment and natural resources of the state and on the welfare of the citizens of Florida. Additionally, the County has agreed to comply with these conditions of certification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Siting Board enter a Final Order and therein: Grant site certification for the Lee County Solid Waste Resource Recovery Facility, subject to the conditions of certification attached hereto as Appendix A; Order that the Department of Environmental Regulation issue PSD construction permit authorizing construction of the Lee County Solid Waste Resource Recovery Facility in accordance with the DER BACT determination and subject to the conditions of certification attached hereto as Appendix A; and Deny and dismiss the Motion to Intervene filed by SFCARE. RECOMMENDED this 9th day of December, 1991, at Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1991.
