The Issue The issue for determination in this proceeding is whether the corridor for the Seminole Plant-Keystone-JEA Firestone 230 kV Transmission Line proposed by the Applicants, Seminole Electric Cooperative, Inc. and Jacksonville Electric Authority, is proper for certification under the Transmission Line Siting Act, Sections 403.52-403.5365, Florida Statutes (1989 and Supp. 1990).
Findings Of Fact Procedural Matters Determination of Need. The determination of need for the SKF Transmission Line was made by the PSC pursuant to Section 403.537, Florida Statutes, by Order No. 22713, dated March 20, 1990, attached as Appendix A to this proposed Recommended Order. The PSC determined that the SKF Transmission Line was needed for several reasons. First, the proposed transmission line will improve the reliability of electrical service to customers of CEC by replacing the radial, or dead-end, 69 kV transmission line that presently serves the Riverview, Florahome and Keystone substations. The proposed transmission line will provide looped service to these existing substations and prevent the occurrence of a single contingency outage. If a single outage occurs at some point along the proposed transmission line, all of the substations can continue receiving power from one direction or the other. Secondly, the proposed SKF Transmission Line will improve the reliability of service to JEA's Firestone Substation by preventing future overloads and low voltage conditions on the JEA system. Finally, the proposed transmission line will improve the transfer capability of the SECI's transmission system by providing an interconnection with the JEA transmission system allowing SECI to purchase more economical generation capacity outside the State of Florida. The estimated economic benefit over the next 20 years to SECI's customers is $48.2 million and to JEA customers is $544,000. The PSC determined that the proposed transmission line was needed in service by 1994. Filing of Application and Notices. On September 7, 1990, the Applicants, SECI and JEA, filed with DER the Seminole Plant-Keystone-JEA Firestone 230 kV Transmission Line Application for Corridor Certification. Notices of the Application and the certification hearing were properly published in the Florida Administrative Weekly and in newspapers of general circulation within the counties to be crossed by the proposed transmission line corridor. No party properly filed an alternate corridor for consideration in this proceeding. Project Design As described in the Application, the Applicants propose a single 230 kV transmission line which will originate at the Seminole Plant in Putnam County and terminate at the JEA Firestone Substation in the City of Jacksonville/Duval County. The total length of the proposed transmission line corridor is approximately 70 miles. Approximately 35 miles of the proposed corridor is located along existing transmission line rights-of-way and the proposed transmission line will replace or be collocated with existing transmission lines within these rights-of-way. The majority of the remaining proposed corridor is located along major linear facilities such as S.R. 100, S.R. 21, and the proposed Branan Field-Chaffee Limited Access Road. A map of the proposed SKF Transmission Line corridor is shown in Appendix B to this Recommended Order. Between the Seminole Plant and the JEA Firestone Substation, the SKF Transmission Line will connect to four existing substations. In Putnam County, the proposed transmission line will connect to the Riverview and Florahome substations. In Clay County, the proposed transmission line will connect to the Keystone and Black Creek substations. SECI will be responsible for the construction, operation and maintenance of the proposed transmission line in Putnam County and Clay County. JEA will be responsible for the construction, operation and maintenance of the proposed transmission line in the City of Jacksonville/Duval County. Location of the Preferred Corridor, Existing Land Use and Cover Seminole Plant to Riverview Substation. The proposed transmission line corridor originates at the Seminole Plant and proceeds west along SECI's existing 230 kV transmission line right-of-way. Approximately two miles west of the Seminole Plant, the corridor turns south toward the Riverview Substation. In this section of the corridor, the developed land uses include the Seminole Plant and the Putnam County Landfill. Agricultural land uses include pasture and planted pine. Natural vegetative areas include some mixed swamp forest along the Moccasin Creek, cypress domes west of the Seminole Plant, and some sandhill. Surface water bodies in this portion of the corridor include Moccasin Creek, an unnamed pond and a tributary leading to the St. Johns River. Riverview to Florahome Substation. From the Riverview Substation, the proposed corridor generally heads west toward the Florahome substation following the existing CEC 69 kV transmission line right-of-way. The corridor widens near Bardin to include an existing SECI 230 kV transmission line right-of-way. Land uses in this portion of the corridor include primarily planted pine, pasture, and some low density residential. Vegetative communities include sandhill, pine plantation, and mixed swamp forest around the Etonia and Simms Creeks. Several small unnamed canals, ditches, ponds and streams are crossed by this portion of the corridor. Named water bodies crossed by the corridor in this area include Simms Creek and Etonia Creek. Florahome to Keystone Substation. The proposed transmission line corridor heads west and north from the Florahome Substation to the Keystone Substation. The corridor continues to follow the existing 69 kV transmission line right-of-way into the City of Keystone Heights. Pursuant to a Stipulation between the City of Keystone Heights and SECI, the proposed transmission line corridor will turn south from the existing 69 kV transmission line right-of-way on the east side of Commercial Circle and proceed to the Keystone Substation along S.R. 100. Developed land uses in the area of the Florahome Substation are sparse and are comprised of mostly pasture and low density residential. As the proposed corridor approaches the City of Keystone Heights, residential areas become more prevalent. Within the City of Keystone Heights the land uses are primarily institutional, and commercial services with sparse residential development. Natural vegetation in this part of the corridor includes sandhill and disturbed oak hammock. Water bodies crossed by the corridor in this area include small unnamed ponds, lakes, streams, and canals. Keystone to Black Creek Substation. From the Keystone Substation, the proposed transmission line corridor follows S.R. 21 north to the intersection of C.R. 215. At this point the corridor continues north and then east following the existing CEC 115 kV transmission line right-of-way to the Black Creek Substation. SECI will locate the SKF Transmission Line within the existing CEC 115 kV transmission line right-of-way. Land uses in this area of the corridor include some commercial/services near the City of Keystone Heights, industrial, such as the Gold Head Mine, Gold Head Branch State Park, the Camp Blanding military reservation along S.R. 21, and some residential areas near the community of Middleburg. The vegetative communities include primarily sandhill and pine plantation, with some mixed swamp forest near the Black Creek and its tributaries, and smaller areas of cypress domes and sand pine scrub. The corridor crosses several named water bodies in this area including a narrow portion of Brooklyn Lake adjacent to S.R. 21, Ates Creek, the South Fork of Black Creek, Bull Creek, Mill Creek, Dillaberry Branch, the North Fork of Black Creek and Grog Branch. Several smaller unnamed streams, ponds, canals, and tributaries associated with these water bodies are also crossed. Black Creek to JEA Firestone Substation. The proposed transmission line corridor proceeds north from the Black Creek Substation centered on the existing Branan Field Road and the proposed Branan Field-Chaffee Limited Access Road to a point directly west of the JEA Firestone Substation where the corridor turns to the east. The corridor heads east and intersects and follows an existing JEA 138 and 230 kV transmission line right-of-way to the JEA Firestone Substation. In this section of the corridor, the land uses include some residential areas to the north of the Black Creek Substation and along the edges of the existing transmission line right-of-way west of the JEA Firestone Substation. The corridor crosses areas of pine flatwoods, pine plantation, and sandhill. Wetland areas include some cypress domes and some mixed swamp forest near the north and south prong of the Double Branch River, and the Ortega River. Water bodies crossed by the corridor in this area include unnamed canals and ponds, the South and North Prong of the Double Branch, the Ortega River and several unnamed tributaries associated with these water bodies. Proposed Design, Construction and Maintenance of the SKF 230 kV Transmission Line SECI Structures. In Putnam County and Clay County, SECI will use one of five typical transmission line structures. In rural areas along the majority of the proposed transmission line corridor, SECI will use an H-frame transmission line structure. In more urbanized areas, either single pole vertical or delta transmission line structures may be used. Where it is feasible to locate distribution lines on the same structure with the transmission line, SECI will use a single pole vertical with distribution underbuilt structure. Where it is feasible to collocate the proposed transmission line with an existing transmission line or where it is necessary to double-circuit the proposed transmission line, SECI will use a single-pole, double-circuit transmission line structure. The span lengths between the transmission line structures will vary between 600 to 1,200 feet. Overhead ground wires will be attached to the top of each structure and may contain a fiber optic cable. The minimum clearance for the SECI portion of the transmission line will be 26 feet. JEA Structures. In the City of Jacksonville/Duval County, JEA will use a single pole vertical structure where new right-of-way is acquired. Where the proposed transmission line is collocated with the existing JEA 138 kV transmission line, the conductors will be located on the existing single pole vertical transmission line structures. The minimum clearance for the JEA portion of the proposed transmission line will be 22.5 feet. Right-of-Way Requirements for SECI and JEA. In Putnam County and Clay County where the proposed transmission line replaces the SECI 69 kV transmission line or is collocated with the CEC 115 kV transmission line, the proposed transmission line will be located in the existing 100-foot-wide right-of-way. Where the SECI portion of the transmission line is located adjacent to an existing road or railroad right-of-way, the right-of-way width may vary between 25 to 100 feet in width. In the City of Jacksonville/Duval County, the transmission line right-of-way may be up to 130 feet wide. Phases of Construction. The primary phases of construction for the SKF Transmission Line include surveying the right-of-way, right-of-way clearing, access road and structure pad construction, and structure erection and conductor stringing. The phases of construction will generally be the same for both the SECI and JEA portions of the proposed transmission line. Surveying. In the first phase of construction, the boundaries for new right-of-way within the proposed corridor will be determined and staked for clearing. The boundaries where new access roads and structure pads are required will also be determined. Right-of-Way Clearing. After surveying is completed, vegetation in the new right-of-way, and where necessary in the existing right-of-way, will be cleared. In upland areas, the right-of-way will be cleared to the ground level, leaving the existing root mat. In wetland areas, restrictive clearing, as defined in DER Condition of Certification S-2.B and SJRWMD Condition of Certification S-23 B.(1), will be used. (A compilation of the Conditions of Certification is attached hereto as Appendix C to this Recommended Order.) Access Road and Structure Pad Construction. Due to the location of the majority of the proposed transmission line along existing transmission line rights-of-way and roads, new access road and structure pad construction will be minimized. New access roads and structure pads will be required in areas where soft soil conditions do not support the weight of the equipment required to construct and maintain the proposed transmission line. Where access roads and structure pads are constructed, fill material will only be used when the existing soil cannot be properly compacted for construction. Structure Erection and Conductor Stringing. The transmission line structures will be erected using cranes and other support vehicles such as bulldozers, tractors and light vehicles. Foundations for the structures may be either native soil, crushed rock or, in the case of heavy line angles, concrete. After the structures have been erected, the conductors will be installed using various tension machines and cable pullers. Duration of Construction Phases. Each phase of construction along a typical mile of the transmission line will last two to five days. The construction time for the entire SKF Transmission Line will be approximately 18 months. Transmission Line Load Design. The SECI portion of the proposed transmission line is designed for a nominal voltage of 230 kV with a maximum current rating (MCR) of 2000 amperes. The JEA portion of the transmission line is also designed for a nominal voltage of 230 kV with a MCR of 1,677. Transmission Line and Right-of-Way Maintenance. Transmission line and right-of-way maintenance is typically the same for both the SECI and JEA portions of the transmission line. The transmission line will be patrolled approximately every two months. Repairs and maintenance to the transmission line, access roads and culverts will be performed at this time, if necessary. The right-of-way will be mowed approximately every two years. Where mowing is not feasible, herbicides will be used in accordance with DER Condition of Certification S-7 as set forth in Appendix C to this Recommended Order. Compliance with Codes and Engineering Standards. The proposed transmission line will be designed and constructed to meet the requirements of the National Electrical Safety Code (Ed. 1990), REA Transmission Line Design Guidelines, the Florida Department of Transportation Utility Accommodation Guide (May 1990), and Chapter 17-274, Florida Administrative Code. Materials used for the construction of the proposed transmission line will comply with the American National Standards Institute (ANSI), American Society of Testing Material (ASTM), and American Concrete Institute (ACI). Stipulations Concerning Transmission Line Design. The Applicants have agreed with various state, regional and local agencies regarding conditions of certification applicable to the construction and location of the proposed transmission line. All of the conditions of certification regarding the design or location of the proposed transmission line are encompassed within the ranges of design and location proposed in the Application. The Conditions of Certification affecting the construction and location of the SKF Transmission Line are included in Appendix C to this Recommended Order. Impacts of the SKF Transmission Line Upon the Public Impacts on Existing Land Uses. The SKF Transmission Line will have a minimal impact on existing land uses. Approximately 35 miles of the 70 mile corridor follows existing transmission line rights-of-way where the SKF Transmission Line will replace or be collocated with the existing transmission lines. Approximately 33 of the remaining 35 miles of the corridor parallel existing or proposed linear facilities; i.e., S.R. 100, S.R. 21, the Georgia Southern and Florida Railroad, Branan Field Road and the proposed Branan Field- Chaffee Limited Access Road. The use of existing transmission line rights-of- way and the paralleling of linear facilities minimizes disruption to existing land uses and minimizes the need for new access road construction. Additionally, other than some residential areas near the City of Keystone Heights and Middleburg, most of the corridor traverses undeveloped land and agricultural land. The Applicants have stipulated with the City of Keystone Heights and Clay County on Conditions of Certification for the location and construction of the transmission line in the City of Keystone Heights and surrounding area, and in the community of Middleburg. These Conditions of Certification are included in Appendix C to this Recommended Order. Construction Noise. Construction activities, such as right-of-way clearing, are minimized by locating the majority of the proposed corridor along existing transmission line rights-of-way. Construction activities will take place in short phases where the total time in any one area will be one to two weeks. Noise associated with construction activities is confined to machinery used intermittently during construction and will occur only during daylight hours. Electric Shock. The National Electrical Safety Code (NESC) sets standards for the installation, operation and maintenance of electric and communication facilities necessary to protect the safety of the public and operators of those facilities. The proposed transmission line will comply with the requirements of the NESC. Lightning. Lightning is generally attracted and diverted to the tallest object on the ground in a particular area. Transmission line structures, often the tallest structures in an area, are frequently struck by lightning. To protect the transmission line against large surges in voltage and current which can cause damage, the Applicants will protect the SKF Transmission Line by placing ground wires above the conductors to interrupt the lightning and safely route it to an extensive grounding system at the base of the structures consistent with the NESC. This structural design should produce no risk to people or residents adjacent to the transmission line and may provide additional safety in the vicinity of the transmission line by diverting lightning to the transmission line grounding system. Transmission Line Noise. During fair weather transmission line noise will be below ambient noise levels. Measurable noise will only be generated by the transmission line during foul weather or when the conductors are saturated with water. During these periods, the maximum noise levels will range between 39 dBA to 48 dBA. In all instances, the noise levels generated by the transmission line will comply with applicable local government noise ordinances. Radio and Television Interference. The proposed transmission line will not interfere with frequency modulated (FM) radio reception. The transmission line may interfere with amplitude modulated (AM) radio reception depending on the frequency level of the transmission, the location of the receiver, and the strength of the radio transmission. No interference from the transmission line is expected to AM radio reception from a Type A station where the receiver is located at least 20-25 feet from the edge of the transmission line right-of-way. Interference from the transmission line to AM radio reception from a Type B station may occur if the receiver is located within 100 feet of the transmission line. Foul weather may increase the level of interference. Interference to AM radio reception from the transmission line can usually be corrected by adjusting the position of the antenna for the radio receiver. The audio portion of television is transmitted using FM frequency and will not experience interference from the transmission line. The video portion of television is transmitted using the AM frequency and therefore may experience interference from the transmission line. This interference should be limited to the weaker Grade B television transmissions, during foul weather, on channels two through six. Pursuant to Condition of Certification S-5 shown in Appendix C to this Recommended Order, the Applicants will investigate complaints regarding radio and television interference and provide appropriate mitigation for all impacts. Interference with Other Communication Systems. The transmission line will not interfere with cable television reception or telephone reception. Pursuant to the Condition of Certification S-10 shown in Appendix C, SECI will perform a base line communication measurement for the Keystone Fire Tower and take any necessary steps to correct any interference the transmission line may cause to the Keystone Fire Tower communications system. Electric and Magnetic Fields. Electric and magnetic fields are produced by virtually all electrical equipment. Transmission lines also produce electric fields, measured in kilovolts per meter (kV/m), and magnetic fields, measured in milligauss (mG). Standards for electric and magnetic fields produced by transmission lines are set forth in Chapter 17-274, Florida Administrative Code. The calculations for electric fields within and at the edge of the right-of-way, and for magnetic fields at the edge of the right-of- way, are made using the Bonneville Power Administration (BPA) Corona and Field Effects Program. Pursuant to Chapter 17-274, calculations for electric and magnetic fields are made under a worst case scenario; e.g. maximum conductor voltage, minimum conductor to ground clearance, and maximum current rating. The calculated electric and magnetic fields for the proposed SKF Transmission Line are shown on Appendix D to this Recommended Order. Depending on the final engineering of the transmission line, the actual electric and magnetic field levels will likely be lower than those shown in Appendix D. Pursuant to Chapter 17-274, Florida Administrative Code, the electric field for a 230 kV transmission line shall not exceed 8 kV/m within the right-of-way and 2.00 kV/m at the edge of the right-of-way, and the magnetic field shall not exceed 150 mG at the edge of the right-of-way. See, Rule 17-274.450(3) F.A.C. The proposed SKF Transmission Line complies with these standards. Further, a review of these standards is being undertaken by DER in deference to the rule's recognition of "a potential for adverse health effects" associated with electrical and magnetic fields emanating from electrical transmission and distribution lines. In accordance with Condition of Certification S-6 of appendix C, applicants agree to comply with presently existing electrical and magnetic field standards as well as any amendments to those standards which may result from DER's review of the state of the science in this area. Impacts of the SKF Transmission Line Upon the Environment: Water Resources, Vegetation and Wildlife Water Resources Flood Levels. The proposed SKF Transmission Line will not adversely impact flood elevations in the area of the preferred corridor. The majority of the preferred corridor is located along existing transmission line rights-of-way and other major linear facilities, such as S.R. 100, S.R. 21, and the Branan Field-Chaffee Limited Access Road, thereby minimizing the amount of fill required for new access roads. Additionally, all the surface water bodies along the corridor can be spanned by the proposed transmission line thus eliminating the need for any fill or structures in open water. Water Quality. The location and construction of the proposed transmission line within the corridor will not adversely affect water quality. The use of existing rights-of-way for the proposed transmission line will minimize disturbances to the ground cover in the area of the preferred corridor thereby reducing the potential for erosion. Where new access roads or structure pads are built the soil will be compacted and erosion control devices such as mulch and fiber fences will be used to control erosion that could affect water quality. Water Quantity. The proposed transmission line will not adversely affect the water quantity in the area of the preferred corridor. The location of the transmission line within existing rights-of-way and along roadways will minimize the need for new access roads. Where new access roads must be built, culverts will be installed where appropriate to maintain existing hydroperiods. Low-lying vegetation in areas not occupied by existing or new access roads and structure pads will be allowed to grow, thereby maintaining the infiltration and runoff rates in the area of the corridor. Ground Water. Limited dewatering may be required for construction of the transmission line and will not exceed the consumptive use permitting thresholds or exemptions adopted by the SJRWMD. Where dewatering is required for the placement of a structure foundation, the water will be discharged on site and allowed to percolate through the ground to recharge the surficial aquifer. Conditions of Certification Regarding Water Resources. The Applicants have agreed with DER and SJRWMD on Conditions of Certification regarding water resources. If constructed in accordance with these Conditions of Certification, the proposed transmission line will comply with the water quality, and water quantity and wetland standards for DER and the SJRWMD. Vegetation Impacts on Vegetation and Clearing. The impacts to vegetation from the location, construction and maintenance of the SKF Transmission Line within the proposed corridor will be minimal. For approximately one-half the length of the corridor, the SKF Transmission Line will be located within existing transmission line rights-of-way. Location of the SKF Transmission Line within existing transmission line rights-of-way virtually eliminates the need for new clearing of vegetation within those portions of the corridor. Approximately 33 of the remaining 35 miles of the proposed corridor follows existing linear facilities such as roads and railroads. The use of existing linear facilities will facilitate access to the SKF Transmission Line thereby reducing the amount of new access road construction and permanent clearing. Vegetation that will be cleared within the corridor is not regionally unique, nor does it provide critical habitat to wildlife species. Moreover, where clearing does occur, low lying vegetation will be allowed to revegetate. In wetland areas, clearing practices will be used to minimize the impacts to those communities. In freshwater marsh areas where access roads and structure pads are not required, no clearing will occur. Pursuant to DER Condition of Certification S-2.B. and SJRWMD Condition of Certification II b.(1), restrictive clearing shall be used in forested wetland areas to minimize impacts to wetland vegetation. Wildlife Wildlife Habitats. Wildlife habitats within the SKF Transmission Line corridor are primarily sandhill communities, various pine communities, pasture land and various freshwater and forested wetland areas where the corridor is crossed by creeks and rivers. Along the majority of the corridor, the proposed transmission line will be located adjacent to or within existing linear facilities thereby minimizing the clearing required in the various wildlife habitats. No federally designated Critical Habitat is crossed by the corridor. Threatened and Endangered Species. The corridor was screened for 51 species of wildlife designated by various federal, state, and regional agencies as Threatened and Endangered, Rare, or Species of Special Concern. Other than the gopher tortoise and associated commensurals, none of the 51 species were found to be dependent upon any of the wildlife habitats within the corridor. In respect to gopher tortoises, a regionally common species throughout the area, structure locations can be varied to minimize impacts to this species. Stipulations with DNR and GFWFC. Prior to the location of the transmission line right-of-way across any portion of the Mike Roess Gold Head Branch State Park, the Applicants will consult with DNR and ensure that the location of the right-of-way complies with the Incompatible Use Policy. (Section 403.531(3), Florida Statutes.) Prior to any clearing activities, the Applicants will conduct a threatened and endangered species survey. The survey will be submitted to the U. S. Fish and Wildlife Service and GFWFC for review and appropriate steps taken to avoid, minimize, or mitigate impacts to any identified species. Nonprocedural Requirements of Agencies The Applicants have expressly accepted the Conditions of Certification attached hereto as Appendix C to insure that the location, construction and maintenance of the SKF Transmission Line within the Applicants' corridor will comply with the nonprocedural requirements of state, regional and local government agencies. Two special exceptions required for the SKF Transmission Line were identified in the Application. A special exception will be needed for the location of the proposed transmission line in any zoning district in Putnam County. In the City of Jacksonville/Duval County, a special exception will be required for the location of the transmission line within the General Floodplain District. Evidence admitted at hearing, including that regarding corridor selection methodology, transmission line design and construction techniques, together with the Conditions of Certification attached as Appendix C, support the issuance of the special exceptions in Putnam County and the City of Jacksonville/Duval County. Compliance with Comprehensive Plans The location of the SKF Transmission Line within the Applicants' corridor will be compatible with existing land uses and consistent with the applicable comprehensive plans of Putnam County, Clay County, City of Jacksonville/Duval County, and the City of Keystone Heights.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Siting Board enter a Final Order approving SECI's and JEA's Seminole Plant-Keystone-JEA-Firestone 230 kV Transmission Line Application for Corridor Certification subject to the Conditions of Certification as set forth in Appendix C to this Recommended Order. RECOMMENDED this 30th day of April, 1991, in Tallahassee, Florida. Don W. Davis, Hearing Officer Division of Administrative Hearings DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1991.
The Issue The issues in this preliminary hearing are whether the South Florida Water Management District (WMD) has jurisdiction and whether Petitioners have standing. In part, the issue of WMD's jurisdiction involves sub-issues as to Petitioners' timeliness in requesting an administrative hearing.
Findings Of Fact Issuance of FPL's Permit and Waivers On May 2, 2000, WMD received an application from FPL for ROW Standard Permit to construct a parallel run of transmission lines (Parkland Transmission Line) in Sections 26, 27, 28, 29 and 35, Township 47, Range 41 East, located in Palm Beach and Broward Counties, inside the south ROW of the Hillsboro Canal. The Parkland Transmission Line was planned to carry 230 kilovolts (kV) of electricity to FPL's Parkland substation. FPL applied to place the 91-foot high poles for the transmission lines 14 feet from the top of the canal bank, on the south side of the canal, which is at least 80 feet wide. On May 5, 2000, WMD received from FPL a Petition for Waiver of Rule 40E-6.011(4), (5) and (6), which governs the placement of permanent and semi-permanent encroachments within forty feet of the top of canal bank within Works and Lands of WMD. Although not identified in the style of the Petition for Waiver, FPL also sought a "waiver from the Basis of Review Rule (L)(4)(Transmission Lines, p. 113 of Sept. 1999, Volume V, Criteria Manual for Use of Works of the District.)"3 The Petition for Waiver sought permanent waivers. The District published notice of receipt of the petition for waiver from FPL in the Florida Administrative Weekly (FAW), Volume 26, Number 21, dated May 26, 2000. However, instead of giving notice that FPL was requesting permanent waivers, the notice stated that FPL only sought "temporary relief from the Rule 40E-6.011(4), (5) and (6) . . . and the Basis of Review." In addition, while the notice described Rule 40E-6.011(4), (5) and (6) as requiring a "minimum 40 foot setback requirement from the top of bank," it did not describe the criteria in the Basis of Review, which states in pertinent part: The use of the District's Works or Lands for the construction, operation, and maintenance of transmission lines has the potential to interfere with the District's operation, maintenance and allied purposes. Applicants should acquire their own right of way and should not look to the District to utilize District-controlled Works or Lands, which were acquired for water management and other allied purposes. This policy should not be construed as a prohibition against the construction of distribution or transmission line crossings, nor is it a prohibition against use of short segments of District's right of way for the construction of local distribution facilities when such facilities will not interfere with operations and maintenance and are otherwise acceptable to the District. Finally, WMD's notice did not describe FPL's project. As a result, it could not have been ascertained from WMD's notice what FPL's Petition for Waiver was for (installation of a 230 kV overhead transmission line) or what the Basis of Review provided on transmission lines. Instead, as worded, the notice implied that both Rule 40E-6.011(4)-(6) and the Basis of Review required a "minimum 40 foot setback . . . from the top of bank." The District published notice of the July 13, 2000, Governing Board meeting (in Fort Myers, Florida) in the FAW, Volume 26, Number 25, dated June 23, 2000. This notice simply stated that the agenda of the meeting was available upon written request or via WMD's website. The meeting agenda fully described both FPL's Permit application and Petition for Waiver. It also noted WMD staff's recommendation that the both be approved. WMD's Governing Board granted both FPL's Permit application and Petition for Waiver at its meeting on July 13, 2000. An Order Granting Waiver was reduced to writing and filed on July 26, 2000, effectively nunc pro tunc July 13, 2000. The Order Granting Waiver also granted FPL's Permit application and included a Notice of Rights, which advised affected persons how to seek an administrative hearing by filing "a petition for hearing pursuant to Sections 120.569 and 120.57(1)." WMD published in the FAW, Volume 26, Number 36, dated September 8, 2000, notice of the disposition of FPL's Petition for Waiver under Section 120.542, Florida Statutes. Unlike the notice of filing the Petition for Waiver, the notice of disposition described the project as "installation of 3.7 miles of overheads parallel transmission pole line inside the south right of way of the Hillsboro Canal, Palm Beach and Broward Counties." The notice of disposition did not contain a Notice of Rights or other "point of entry" to request an administrative hearing. Except as set out in Findings 3-6, supra, neither WMD nor FPL gave Petitioners any other kind of notice of FPL's Permit application or Petition for Waiver proceedings. WMD did not determine that FPL's project was of heightened public concern, or that there was the likelihood of a request for an administrative hearing, so as to require additional notice in accordance with WMD rules. First Notice to Petitioners (Except Leserra and Smith) Petitioners all own residences in the vicinity of FPL's transmission line project. While Jeff Leserra lives south of the Hillsboro Canal and across Loxahatchee Road in Broward County, the other Petitioners all live north of the Hillsboro Canal in Boca Winds, a group of related residential developments in Palm Beach County, west of Boca Raton. Some of the Boca Winds residents--Terwilliger, Tennant, Pam Danko, Larry Rosenman, Teresa Badillo, and Mike Sturm--live in homes on property adjacent to WMD's north ROW along the Hillsboro Canal. These homes are approximately between 230 and 250 from the nearest Parkland Transmission Line pole. Moreover, in late 1999, each of these Petitioners applied to WMD for a Noticed General Permit (NGP) to extend their backyard fence enclosures between 20 and 25 feet into WMD's north ROW along the Hillsboro Canal--closer to the poles. Their applications were processed primarily by Badillo and another homeowner, Gary Fishman, who is not one of Petitioners. The applications were granted and NGPs were issued to them on May 8, 2000, just after FPL's Permit application and Petition for Waiver were filed. The homes of the other Petitioners--Jose and Amalia Gutman, Frank Longo, David Weinstein, and Ballard Smith--are not adjacent to the Hillsboro Canal. The homes of the Gutmans and Smith are approximately 370 and 390 feet from the nearest pole; Weinstein's home is approximately twice as far away; Longo's home is approximately 1,100 feet away from the nearest pole. All Petitioners use their homes as their permanent residence except for Ballard Smith, whose principal residence is in Bradenton, Florida. Prior to November 2000, Petitioners had no notice or knowledge of FPL's Permit application or Petition for Waiver proceedings. FPL began installing 90-foot high poles for the Parkland Transmission Line along the Hillsboro Canal ROW on or about November 1, 2000. By mid-November 2000, all Petitioners except Leserra and Smith has seen the poles, made inquiry of various kinds, and learned of FPL's plans to construct the Parkland Transmission Line. Leserra and Smith did not see any poles and had no knowledge about the Parkland Transmission Line until later. See Findings 49-53 and 58, infra. Initial Reaction to Transmission Poles The Boca Winds homeowners who became aware of the installation of the poles just south of the Hillsboro Canal reacted in different ways. Some instantly suspected both the ultimate use of the poles for electrical transmission and that the poles were on WMD ROW. Others suspected the former but not the latter. Several made telephone inquiries of different kinds-some to FPL, some to their homeowner association. Quickly, word spread, and these homeowners, including all Petitioners except Smith and Leserra, began organizing to oppose FPL's Permit. Meetings were held, and many members of the loosely-organized opposition were involved initially, but the group soon turned to and relied heavily on a handful of its members--primarily the Gutmans, Badillo, and Gary Fishman- -to gather information and contact FPL and WMD on behalf of the group. While none of the group was particularly knowledgeable about the legal technicalities of WMD procedures, Jose Gutman was a Florida-licensed lawyer (albeit practicing in patent law), and Fishman had handled the applications of Terwilliger, Tennant, Pam Danko, Rosenman, Badillo, Sturm, and others for WMD NGPs to extend their backyard fence enclosures into WMD's north ROW along the Hillsboro Canal. Although most members of the group did not view Jose Gutman technically as their attorney during this time, Gutman asserted attorney-client privilege as to communications between himself and members of the group beginning in November 2000, and Petitioners' objections to disclosure of these communications were sustained. A meeting between Jose Gutman, Fishman, Badillo, and other Boca Winds residents and various FPL representatives was held on November 8, 2000. During this meeting, the residents essentially complained that they had no notice and asked FPL to relocate the transmission line. FPL responded that the required notice was given and said it would respond to the request to relocate the lines. The next day the homeowners put their requests to FPL in writing. They asked for proposals for relocating the transmission line, for the projected cost of putting the line underground for the 1.3 miles in the vicinity of their homes, for EMF testing of their homes, and for a statement of safety. The Gutmans then began the process of drafting a petition for circulation to residents for signature. Entitled "Petition to Halt Construction of FPL High Power Transmission Lines on the Land Adjacent to Our Homes," the petition stated that the homeowners "hereby petition our government and [FPL] to halt construction . . . [and] relocate the lines away from our communities." The petition stated that the homeowners had no notice until November 1, 2000, and did not consent to the project. It complained about "a significant loss in property value along with the additional serious concern of health risks [namely, leukemia and cancer] to our children that will be playing within the electric and magnetic fields (EMFs) emitted." The petition requested "that our government representatives and FPL engineers promptly halt construction . . . and provide in writing proposed alternative plans for moving these transmission lines away from our communities." The petition was dated November 18, 2000, but signatures were collected after that date. Meanwhile, Jose Gutman and Fishman arranged to meet with WMD representatives at WMD's main offices in West Palm Beach on November 28, 2000. Since they had a follow-up meeting with FPL scheduled for the following day, they were surprised on their arrival to find Daniel Hronec, FPL Principal Engineer on the Parkland Transmission Line project, in attendance, apparently having been notified and invited by WMD. Gutman and Fishman essentially reiterated their complaint of lack of notice and their request to have the transmission line relocated. Discussion ensued on the permitting process used by FPL and WMD. WMD's Laura Lythgoe explained that WMD rules provide for different review criteria and notice requirements depending on the nature of the request.4 She stated that no notice to affected parties is required for ROW use permits, such as the one FPL got for the Parkland Transmission Line. She went on to explain that the procedure for requesting a variance is set out in Section 120.542, Florida Statutes, which only requires notice in the FAW. Fishman complained that the FAW notice was not specific enough. Thomas L. Fratz, WMD ROW Division Director, responded that the notice was legally sufficient. Lythgoe also pointed out that the agenda item gave specifics and was available on WMD's internet web site. In testimony at the preliminary hearing, Fishman recalled a statement being made during the course of discussion that the homeowners had 21 days to petition for a hearing and that the time had expired. Gutman did not recall such a statement being made specifically, but he conceded that the thrust of the discussion was that the proper notice was given and that the homeowners were too late. During the discussion of WMD procedures, Gutman asked for copies of certain documentation being discussed. Gutman also expressed the homeowners' need for legal advice on the subject and asked for a referral to an attorney knowledgeable in the area. WMD agreed to respond to these requests in writing. Towards the end of the meeting on November 28, 2000, Gutman asked how the homeowners could proceed with their grievance. Fratz responded that the homeowners' issue was with FPL, not WMD. Gutman replied that the homeowners could only negotiate with FPL (which they already were doing) but could petition WMD, as their government, to take action to rectify the situation. Gutman indicated that he had a petition with approximately 150 signatures for that purpose. It is not clear whether the petition and signatures were physically presented to WMD at that time, but it is clear that WMD did not direct Gutman to WMD's Clerk's office, which was just down the hall from where they were meeting, to file the petition. The next day, FPL hosted a meeting with the homeowners to respond to their requests made at the meeting on November 8, 2000, and in their letter dated November 9, 2000. FPL confirmed its response in a letter dated November 30, 2000. FPL told the homeowners that there were options for relocating the transmission line but that implementing the options would cost the homeowners between $900,000 and $1.5 million, depending on the option chosen and that a $20,000 engineering deposit would be required up-front. The option of replacing the planned overhead transmission lines with underground lines would be much more expensive--approximately $15 million--and "unquestionably prohibitive." The homeowners considered FPL's proposals to be financially infeasible and unacceptable. By letter dated December 1, 2000, WMD provided Jose Gutman and Fishman documentation in response to their request during the meeting on November 28, 2000. Included were copies of the agenda for the Governing Board's meeting on July 13, 2000, and Section 120.542, Florida Statutes (2000). The letter stated that Section 120.542 applied, not Section 403.201 (applicable to the Department of Environmental Protection), which Gutman and Fishman apparently cited at the meeting. The letter also stated that there was no requirement for publishing or other notification to affected parties for issuance of a ROW permit. Attorney Walker and the Board Meeting December 14, 2000 After the meetings and letters, the homeowners decided that it would be necessary to appeal directly to WMD Governing Board. They also decided that they needed competent legal representation to assist them. Amy Gutman contacted Governing Board member Nicholas J. Gutierrez, Jr., who advised the homeowners to bring their grievances to the next Board meeting on December 14, 2000. Gutierrez put Amy Gutman in contact with the Board's meeting coordinator, Sandra Gomez, who scheduled the homeowners to participate in the public comment portion of the upcoming Board meeting on December 14, 2000. Meanwhile, Jose Gutman took steps on behalf of the homeowners to retain counsel. After considering several candidates, Gutman eventually settled on Stephen A. Walker and his law firm of Lewis, Longman & Walker, P.A. to represent the group of homeowners (including all Petitioners except Leserra and Smith). Walker served as General Counsel of WMD from 1985 to 1991, and was a frequent practitioner before the SFWMD Governing Board. He also has appeared in cases before the Division of Administrative Hearings. It is not clear from the evidence what documentation Walker obtained from WMD's permit files before appearing on behalf of the homeowners at the Governing Board's meeting on December 14, 2001. However, it is reasonable to infer that, as former WMD General Counsel and an attorney specializing in WMD permitting with extensive experience in that field, Walker was aware of the generally applicable 21-day time limitation for seeking an administrative hearing regarding proposed agency action. Walker also was aware of the difference between petitioning to intervene in a proceeding for the issuance of a permit and asking an administrative agency to initiate proceedings to revoke a permit that has already been issued. Whether Walker communicated this knowledge is not clear from the evidence because Petitioners objected to questions seeking disclosure of attorney-client communications, and the objections were sustained. However, it can be inferred from all of the evidence that such communications probably took place. Walker and the homeowners not only appeared for the public comment portion of the Governing Board's agenda for December 14, 2001, they also conducted a protest demonstration that caused a disturbance in the hallway outside the meeting room during an earlier part of the agenda. Attempting to ascertaining the reason for the disturbance, the Chairman of the Governing Board, Michael Collins, asked WMD Ombudsman, Richard E. Williams, to attempt to gain some understanding of the reason for the demonstration and to suggest possible solutions. When it was made known that Fratz and other WMD staff already had met with the homeowners and FPL, Collins asked that Fratz be included. Williams then met with the homeowners, FPL, and some WMD staff in the nearby WMD cafeteria. When the situation was explained to Williams, he suggested that all parties agree to give him time to gather additional facts and try to mediate an "acceptable agreement" to report back to the Governing Board at its meeting in January 2001. In the meantime, it was agreed that FPL would postpone construction in the vicinity of the homeowners and that the homeowners would postpone pursuit of their grievance. This was acceptable and agreed by all involved. When FPL and the homeowners returned to the Governing Board meeting for the public comment portion, Walker appeared on behalf of the homeowners. Walker summarized the history of FPL's Permit and waivers. He asked the WMD Governing Board to do three things: (1) have staff investigate the appropriateness of the issuance of the Permit in the first instance; (2) based upon that investigation, partially revoke FPL's Permit; and (3) have Williams continue to work with the homeowners and FPL in an effort to find a solution. The Gutmans, Tennant, Terwilliger, and Badillo also addressed the Governing Board to ask that FPL's Permit be revoked. Jose Gutman advised the Governing Board that the homeowners had a petition (by then with 256 signatures) with a cover letter that would provide the Board a summary of the issues. He offered to provide the Board with copies and was directed to hand them to Darrell Bell, a member of the staff of WMD's Clerk's office, who would make sure all Board members got a copy. The other speakers expressed their concerns about EMF, aesthetics, and property values. Collins then asked the WMD's General Counsel, John Fumero, to identify the Board's options. Fumero advised that the Board could modify, revoke or suspend FPL's Permit but that, before taking such action, the Board would want to know the facts and understand the consequences of each option. Without taking a formal vote, the Board asked staff to investigate the facts and report back at the next meeting. Walker advised the Board, and Dan Hronec on behalf of FPL concurred, that FPL had temporarily stopped construction near where his clients lived while it continued work on other portions of the transmission line. Smith's First, Incomplete Knowledge Smith saw a tall concrete structure off to the left of the main entrance to Little Palm Lane when he visited his home for approximately four days in late December 2000. He denied seeing any other poles (although all of the poles behind the Boca Winds homes were installed by then). Smith explained that he spent most of his time during this visit in the house or in the backyard where the poles would be less visible. Although Smith admitted that he was outside in front of his house, where the poles would have been more visible, at times during his visit in December and that he can now see the poles and lines from inside his house through any front window on either the first or second story, Smith's testimony as to what he saw in December 2000 is accepted and credited. Likewise, Smith's testimony that he did not realize the purpose of the pole he saw or its location on WMD ROW is accepted and credited. Walker's Review of WMD Documents As part of his representation of the homeowners, Walker or one of his subordinates obtained copies of at least parts of WMD's official agency file on FPL's Permit. Walker's files contained several partial copies of FPL's Permit; there also was a Notice of Rights form (the kind attached to the Order Granting Waiver). Walker's file also contained other materials that are found in the WMD's file on FPL's Permit, such as the standard form letter that accompanies each permit transmittal. Fishman understood that Jose Gutman had asked Walker or one of his subordinates to go to WMD and undertake an investigation regarding the issuance of FPL's Permit. Gutman did not confirm Fishman's understanding, and Walker denied that he or anyone from his staff went to WMD's main office in West Palm Beach to investigate the issuance of FPL's Permit and obtain the documentation in his file. It is possible that Walker was given the documents by one or more of the homeowners. Walker also testified at hearing that he could not recall when he obtained the documentation that was in his file. However, based on the record evidence, it is reasonable to infer that this occurred prior to January 8, 2001, as Walker sent a letter to WMD on that date which described the Permit in detail and to which he attached copies of FPL's Permit, FPL's permit and waiver applications, and several items of WMD correspondence from the permit file. Failure of Mediation; Board's Meeting February 14, 2001 After the Governing Board's December 2000 meeting, Ombudsman Williams undertook to schedule separate meetings with the homeowners and with FPL, to be followed by a joint meeting with all involved. It soon became apparent that it would not be possible to conduct all the meetings and be ready to report back to the Governing Board at its January 2001 meeting. In a letter from FPL to Fratz dated January 5, 2001, FPL confirmed that FPL would continue to postpone construction in the vicinity of the homeowners until after the February 2001 meeting of the Governing Board and that, "in return for this concession, the concerned residents have agreed to hold any further action, including comment to the Board, until the February Board meeting." Williams met separately with the homeowners and with FPL, as planned. When Williams contacted Amy Gutman to schedule a joint meeting, she asked whether anything new was being proposed. When Williams said, no, Gutman told him she did not think another meeting would be productive and declined on behalf of the homeowners to participate in one. Apparently, FPL representatives met with WMD staff, and they discussed landscaping to help mitigate the aesthetic concerns of the homeowners. Having declined to participate, the homeowners were not aware of the landscaping proposals (essentially, planting cabbage palms in the ROW.) FPL's Permit and waivers made up an agenda item at the WMD Governing Board's meeting on February 14, 2001. Fratz introduced the item with a presentation. The Board then received public comment from Walker on behalf of the homeowners and from a number of homeowners. Walker, on behalf of all Petitioners except Smith and Leserra, identified three concerns of the homeowners, one of which was the lack of notice. Specifically, Walker stated that the Administrative Procedure Act was involved, that the model rules provide for a point of entry for people wanting to object to a permit, and that his clients did not get the required point of entry. At the conclusion of his presentation, Walker asked the Board to revoke FPL's Permit. When asked by one of the Board members whether there were other options available, Walker stated that he was not aware of an available alternative other than revocation. Petitioners Tennant, Frank Longo, Terwilliger, Jose Gutman, Larry Rosenman, and Badillo also addressed the Board and provided reasons why they believed FPL's Permit should be revoked. FPL then made a presentation, after which the Board discussed the issue and entertained several motions. During the Board's discussion, staff was asked about possible interference with WMD's operation and maintenance of the Hillsborough Canal as a result of the transmission line and about the safety of WMD's workers. These questions were addressed by Fratz, by WMD's Executive Deputy Director, Joe Taylor, and by WMD's Director of Field Operations (South), John Adams. They advised the Board that WMD could adequately operate and maintain the canal with the transmission lines in place and that the safety of WMD's workers would not be compromised. Fratz noted that WMD frequently received requests for waiver of the 40-foot setback from the top of canal banks, and Adams pointed out that WMD does not operate any of its equipment, including cranes with booms, along WMD ROW in winds above 35 miles per hour. After these questions were answered, Board Chair Michael Collins again asked General Counsel, John Fumero, to list the Board's options. Fumero outlined three possible courses of action: (1) to take action relative to the Permit such as revocation, modification or suspension; (2) to take no action with respect to the Permit; or (3) to direct staff to publish notice of the Permit to create a point of entry for an administrative challenge. After some questions from the Board were answered, Board member Dr. Patrick J. Gleason moved to give the homeowners a point of entry, and the motion was seconded. After further discussion, the motion was amended in two respects: (1) the Board would delegate to the executive director the authority to initiate a proceeding to suspend FPL's Permit while the administrative challenge was ongoing; and (2) the Board's action would be based upon information received during the meeting indicating that certain WMD criteria may not be met. The motion, as amended, was defeated by a 7 to 1 vote. A subsequent motion was made for FPL to install and maintain certain landscaping over a portion of the ROW to provide a visual buffer between the homes and the transmission line. That motion passed, 7 to 1. Petitioners (except Smith and Leserra, who still had no knowledge of events taking place and did not participate in the meeting on February 14, 2001) understood that the Governing Board had refused to initiate revocation proceedings at the meeting. Although some Petitioners expressed willingness to hear more about the landscaping proposal, which was new to them, Petitioners also already knew that the landscaping alternative proposed would not be acceptable to them and that they still wanted FPL's Permit revoked. After the Board's vote, several Petitioners, including Jose Gutman, Badillo, and Rosenman (as well as Fishman) talked to Walker about other avenues to pursue in their continued opposition to FPL's Permit. This discussion included advice on seeking a formal administrative hearing. It is highly likely that, even if Walker did not have all his documentation from WMD's file on FPL's Permit by January 8, 2001, he had them by the Governing Board's meeting on February 14, 2001. During the meeting, Walker introduced exhibits that he indicated were retrieved from WMD's file on FPL's permit. These included a copy of the Notice of Rights attached to the Order Granting Waiver. Walker advised the homeowners for the last time after the meeting on February 14, 2001, before his clients left the meeting. His representation was terminated shortly thereafter. Petitioners have invoked attorney-client privilege to preclude discovery of the precise substance of the discussion with Walker after the meeting on February 14, 2001- -in particular whether the various jurisdictional time limitations were discussed. However, it is reasonable to infer that Walker shared this information with the homeowners, including the information contained in the Notice of Rights attached to the Order Granting Waiver, before terminating his representation. Leserra's Knowledge and the Petition Petitioner Leserra first learned of the installation of high-voltage transmission line poles in the vicinity of his home in approximately February 2001. The closest pole was just 69 feet away from his home, across Loxahatchee Road. Leserra contacted State Representative Stacy Ritter to complain, and his office contacted WMD and obtained information concerning the project in mid to late-February 2001. A letter sent by Representative Ritter's office to Leserra on February 28, 2001, and received by Leserra shortly after March 2, 2001, stated that the line in question was located on property determined to be owned by WMD. Leserra testified that, even after receiving this information, he did not know how WMD's ownership was determined and still did not know for certain of WMD's involvement at the time. In early March 2001, a friend informed Leserra that homeowners in Boca Winds in Palm Beach County were having a similar problem with installation of high-voltage transmission lines near their homes and gave him Teresa Badillo's name and telephone number. Leserra telephoned her and was told that there was a meeting about it at WMD in February 2001. Badillo gave Leserra Jose Gutman's name and number for additional information. Badillo testified that she also told Leserra about FPL's Permit to use WMD's ROW. Leserra does not recall her saying that. Even if she did, Leserra did not even know where Boca Winds was at the time and did not know that Boca Winds was being affected by the same transmission line project that was affecting him. On March 12, 2001, Leserra wrote to FPL and WMD and threatened that he would hold WMD responsible for any adverse impact from the FPL facilities on the Hillsborough Canal. At the time he sent the letter, he had not yet been able to speak to Jose Gutman. At some point during the next four days, Leserra was able to contact Jose Gutman by telephone. Gutman explained the Boca Winds situation in detail, including the homeowners' intention to request an administrative hearing, and Leserra agreed to be a co-petitioner. Since Petitioners objected to disclosure of communication with Gutman on grounds of attorney-client privilege, it is not clear that Gutman imparted to Leserra information as to the Notice of Rights attached to the Order Granting Waiver to FPL or the deadline for petitioning for an administrative hearing. But it can be inferred that the former was communicated and that the latter was discussed. On March 16, 2001, Amy Gutman contacted Ombudsman Williams to tell him that the homeowners no longer were represented by Attorney Walker but, along with Leserra now, wanted to petition for an administrative hearing, wanted to know their rights, and wanted assistance in understanding the process to avail themselves of their rights. On March 20, 2001, Williams relayed this information to Deputy Executive Director Taylor and General Counsel Fumero for handling. The office of WMD General Counsel responded to Williams' request by sending a letter dated March 22, 2001, to Amy Gutman, on behalf of the homeowners, enclosing a copy of the Order Granting Waiver, with Notice of Rights, which "explains the various remedies that are available to anyone substantially affected by a decision of the District." After receipt of the letter with copy of the Order Granting Waiver with Notice of Rights, Amy Gutman and some of the homeowners (including all Petitioners except Ballard Smith) decided to file a petition for administrative hearing. Suzanne Terwilliger telephoned WMD office of General Counsel to get sample petitions, which were faxed to her on April 3, 2001. Terwilliger drafted a Petition for Formal Administrative Hearing (Petition) and telephoned WMD to see if it could be filed by fax. She was told Sandra Gomez would call her back. Terwilliger called again on April 6, 2001, angry that she had gotten no response from Gomez and that FPL was energizing the transmission line which had been completely installed since February 14, 2001. Told that it could be filed by fax, the Petition was filed in that manner on April 6, 2001. The Petition was filed by Terwilliger, Amy Gutman, and Leserra purportedly on behalf of unnamed residents of several residential areas in southwest Palm Beach County. On April 11, 2001, FPL filed a Motion to Dismiss asserting that the Petition was untimely, that WMD had no jurisdiction over the matters raised in the Petition, and that Petitioners had no standing. Smith's Knowledge and Joinder; Amended Petition There was no evidence that Ballard Smith knew anything at all about what transpired between the homeowners, FPL, and WMD from December 2000 through April 13, 2001. Smith visited his home in Boca Winds again during Easter weekend 2001. When he arrived, he was shocked to see the transmission line in place. On April 14, 2001, he talked to his neighbors, the Gutmans, who informed him of some of what had transpired between the homeowners, FPL, and WMD from December 2000 through April 13, 2001, including FPL's Motion to Dismiss the Petition. He agreed to give Gutman an affidavit to help oppose the Motion to Dismiss and to join the Petition. As set out in the Preliminary Statement, on May 3, 2001, the original Petitioners filed the Affidavit of Ballard Smith as part of their opposition to FPL's Motion to Dismiss. In it, Smith swore that he lived in Bradenton and was not aware of WMD's actions until April 14, 2001; he also swore that he "substantially agrees" with the Petition and "joins with the Petitioners in this Case No. 01-1504." While not clear from the Affidavit itself, Smith clarified in his testimony that he intended by the Affidavit to join in the Petition. On May 18, 2001, Petitioners filed an Amended Petition. The Amended Petition listed 13 individual Petitioners--those included in the above-caption (including Smith), plus one other who later voluntarily dismissed and was dropped. The Amended Petition states that Petitioners' interests in this proceeding are based on the following concerns: (i) the effects of electromagnetic fields (EMF); (ii) impact on Petitioners' property values; (iii) aesthetics and loss of quiet enjoyment; (iv) structural safety; and (v) interference with radio and television. Several Petitioners testified to concerns that the transmission line would interfere with the operation of the Hillsborough Canal and cause their properties and roads to flood, and Tennant testified that the transmission line interfered with her husband's fishing in the canal. The Amended Petition did not allege that these things affected Petitioners in particular, as opposed to the community in general. But they were heard without objection and by implied consent. Likewise, Tennant's testimony about her family's canoeing and kite-flying being impacted by the transmission line were heard without objection and by implied consent. EMF Petitioners Badillo, Smith, Rosenman, Weinstein, Tennant, and the Gutmans expressed concerns about EMF generated by transmission lines (although Smith disclaimed any personal interest in the issue.) The remaining Petitioners did not express EMF concerns. The only competent, substantial evidence in the record on Petitioners' medical concerns about EMF were two booklets--one produced in 1995 by the National Institute of Environmental Health Sciences and the United States Department of Energy, and another produced by the Department of Engineering and Public Policy of the Carnegie Mellon University--which FPL provides to those asking for information about EMF. These booklets did not prove that medical or health impacts on Petitioners are likely as a result of the Parkland Transmission Line. Far from proving immediate injury, these booklets at most were only enough to generate some speculation about possible medical or health impacts. Property Values and Aesthetics The Amended Petition states that the presence of the Parkland Transmission Line will adversely impact Petitioners' property values, decreasing values by 20-30 percent. This claim is coupled with claims regarding the aesthetics of the facilities. As to property values, there was no competent, substantial evidence in the record to support Petitioners' contentions. Petitioners made no attempt to substantiate their expressed concern of a drop in property values. They presented no expert evidence regarding property values, none that sales of homes in the area have been or will impacted, and none that the sale price of any home has been lower than it would have been without installation of the transmission line. As for aesthetics, the only evidence was the opinions of several Petitioners who testified that the transmission lines are unsightly. Even if this was enough to prove diminished aesthetics, at least for Petitioners closest to the transmission line, there was no evidence to causally connect diminished aesthetics to a reduction in property value, so as to be actionable in this proceeding. Structural Safety Petitioners presented no competent, substantial evidence that the Parkland Transmission Line is structurally unsound or in any reasonable danger of failure. FPL presented ample evidence to the contrary. The Parkland Transmission Line is designed to meet FPL's internal standards. FPL's internal standards are more stringent (i.e., designed to withstand heavier loads) than the present regulatory requirements for wind-loading and structural safety. FPL's internal standards are also more stringent than the voluntary standards for electric transmission facilities developed by the American Society of Civil Engineers (ASCE). The structural strength of FPL's transmission line also exceeds the requirements of both the Broward and Palm Beach County building codes. Based largely on FPL's stringent internal standards, the National Electrical Safety Code (NESC) is being revised to improve the wind-loading standards for electric transmission poles. Because the new standards are based on FPL's existing internal standards, the Parkland Transmission Line structures are designed to comply with the new NESC that is currently in the final stages of development. FPL's stringent design standards make the possibility for Petitioners to be affected by a failed transmission pole or conductor extremely remote and speculative. Petitioners have expressed a concern over the effects of hurricanes on FPL's concrete transmission poles. However, it is highly unlikely that any portion of the transmission line would fail in a hurricane. FPL's experience reveals that no concrete transmission pole has ever been lost to a Category 3 hurricane, which is a 1-in-100 storm event. Hurricane Andrew, which was a 1-in-400 year storm event, was the only hurricane known to have affected such poles. Even then, 92 percent of FPL's poles stood up. The likelihood of a storm of that magnitude hitting the area where Petitioners' homes are located is very remote. Additionally, the poles along the Parkland Transmission Line are built to FPL's post- Andrew standards and have more load-bearing capacity than the poles in place during Andrew. Petitioners questioned the credibility of FPL's evidence on the structural integrity of FPL's transmission poles and lines, contending that FPL's design calculations for wind-loading failed to increase the basic design wind speed by the terrain factor for exposure category "D." According to the "Guidelines for Electrical Transmission Line Structural Loading," ASCE Manual No. 74, Exposure D is "described as unobstructed coastal areas directly exposed to wind flowing over large bodies of water." Petitioners contend that Exposure D applies because the Hillsboro Canal "runs for miles along the transmission line." But FPL Structural Engineer, C. Jerry Wong, Ph.D., P.E., testified clearly and persuasively that the presence of the Hillsboro Canal does not place the Parkland Transmission Line in an Exposure D setting. Even if failure of a pole were to occur during a hurricane, the chance that a pole would fall and hit one of Petitioners' homes still would be remote. For all Petitioners except Leserra, the poles are too far away for that to happen. The poles, which weigh 45,000 pounds apiece, are too heavy to become airborne. Petitioners presented no competent, substantial evidence suggesting that either a pole or electric conductor could somehow become airborne and reach the property of any Petitioner except Leserra. The only record evidence on this point established that, when there is a structural failure, the pole and the conductor fall down approximately right below where the transmission line is located. The odds of one of these homes being hit by a pole or transmission line due to high winds are almost zero. Even in the case of Leserra, who is the closest to the transmission line at approximately 69 feet away, the odds of his house being hit by a pole due to high winds is less than two-tenths of one percent. Because the transmission line is designed to have higher structural capacity than required by local building codes, it is likely that any winds strong enough to have the potential to damage the line would also destroy surrounding homes. It is far more likely that Petitioners' homes would be destroyed and strike the transmission line than the other way around. In any event, if a hurricane was strong enough to topple one of FPL's transmission line poles or blow down lines, it also would be strong enough already to have destroyed Petitioners' homes. So even if by some bizarre and remote chance a pole or wires blew into one or more of Petitioners' homes, the homes probably already would have been destroyed by such a storm. Petitioners next expressed concern regarding one of the poles being struck by a vehicle, such as a fully-loaded commercial truck. For most Petitioners, even if a truck could knock down a pole, the pole would not reach their property. Only Leserra's home is close enough for there to be any possibility of this happening. Even in Leserra's case, it is next to impossible for a truck to cause one of the poles to fall. The only truck traffic near the poles is on Loxahatchee Road, which runs parallel to the pole line. The poles are separated from the road by a guard rail designed to withstand a 50 mile per hour (mph) collision. The maximum weight of a truck allowed on the road is 80,000 pounds. Such a truck would have to hit a pole at a near right angle and at over 100 mph to have any chance of causing a failure. Because the trucks travel parallel to the pole line, and there is a guardrail in the way, the chance of failure from a collision is extremely remote and speculative. In essence the truck would need to make a 90- degree turn near the pole, break through the 50-mph guard rail a few feet away, and still be traveling at over 100 mph at the time it struck the pole. Then, the pole would have to fall in the opposite direction from the impact to hit Leserra's home. The odds of something this bizarre happening are extremely remote. Finally, it is noted that FPL's Permit has an indemnity clause, which "requires that FPL hold and save the South Florida Water Management District and its successors harmless from any and all damages, claims or liabilities which may arise by reason of the construction maintenance or use of the work or structure involved in the permit." Since this makes it clear that any liability resulting from the presence of the transmission line must be borne by FPL alone, any claim that a structural failure could lead to liability for WMD is speculative at best. Flooding Concerns Several Petitioners testified to concerns about flooding in the Boca Winds subdivision by blocking of subdivision drainage culverts that flow into the Hillsborough Canal or by interference with WMD's routine maintenance of the canal. But Petitioners presented no competent, substantial evidence that flooding for these reasons would be likely. There are two box culverts leading from Boca Winds into the Hillsborough Canal. But, as required by WMD rules, the Boca Winds storm water system is designed to accommodate a 3-day long, 1-in-100 year storm event, with no external outflow. In other words, the system is designed to function without the drainage culverts in even this extreme rainfall condition. There is only a one-percent chance that a 1-in-100- year rainfall event would hit Boca Winds in any given year. In any storm of this magnitude or less, the onsite system would be sufficient to accommodate the rainfall with no flooding of the floor elevation of Petitioners' homes. The possibility that any one storm event would even require drainage into the Hillsborough Canal to prevent flooding in Boca Winds is therefore remote. The culverts leading to the Hillsboro Canal essentially provide additional drainage capacity to the internal storm water management system of Boca Winds. In addition, by slowly draining ("bleeding") water from the Boca Winds subdivision to the canal, they allow the system to recover capacity for subsequent rain events. It is highly unlikely that a transmission pole, even if it was to shear off and fall toward the canal-which is in itself an extremely remote possibility--could in any way impede the functions of either the drainage structures or the canal. Even if a pole were to fall and directly strike and crush one of the two drainage structures, it probably would not appreciably affect the culvert's ability to bleed water into the canal. The drainage into the structures is controlled initially by a weir at the inflow point, not by the pipe diameter at the outflow. Even if a pole were to somehow crush the outflow pipe, water would continue to flow into the canal at roughly the same rate. A pole falling into the canal itself would not affect the ability of the canal to provide drainage. If a pole were to fall into the canal, it would most likely do so top first. Because the pole is tapered, only a small cross section would enter the canal, which would have almost no effect on the flow of water. Even assuming that a pole were to enter the canal in its entirety, it would affect only a minimal portion of the canal cross section and would not significantly affect the flowage capacity of the canal. Even multiple poles falling completely in the canal--an extremely unlikely event--would not significantly affect the function of the canal, due to the small cross-section taken up and the distance between the poles. Most maintenance of the Hillsborough Canal is done with herbicides and from boats in the canal itself. There is rarely a need to use heavy land-based equipment to maintain a drainage canal. The Parkland Transmission Line is on the south bank of the canal, and the Permit provides for the poles to be set approximately 450 feet apart and more than 14 feet from the top of the canal bank. (In many instances the poles are much more than 14 feet from the top of the canal bank). The Permit provides that the poles are to be installed with turn structures that allow at least a 14-foot passing zone around each pole. This is sufficient for the types of vehicles used by WMD to pass around the poles, assuming there was a need to drive along the south bank of the canal. Most heavy equipment can operate from the passing pad and from the space between poles. When heavy equipment is needed, a backhoe or grade- all is typically used. Both of these types of equipment can operate unimpeded from the south side of the canal. A grade- all operating from the south bank has sufficient reach to dredge the bottom of the canal should that be necessary and is the optimal piece of equipment for such an operation. The transmission line would not affect the operation of a grade- all from the southern bank of the canal. Because of the higher elevation, a grade-all would not be used from the north bank, and a crane would be used if there were a need to conduct dredging from that direction. However, because of its location, the transmission line would not impede any equipment use on the north bank. Moreover, if any extensive dredging were done, the routine method would be to operate from a barge on the canal itself, which would also not be affected by the transmission line. There also is no way that the presence of the transmission line could affect the maintenance of the outfall structures from Boca Winds. Any maintenance of those structures would be performed from the north bank of the canal-the side opposite to the transmission line-or from boats or barges operating in the canal. Petitioners introduced evidence to prove that, in some instances, the poles may not have been installed as provided in the permit, with not enough room between the poles and the top of the bank on one side or Loxahatchee Road on the other. It was not clear from their evidence whether this may have occurred in more than two instances, or in any instance other than where the transmission line intersected the canal and changed direction near a culvert. Even if proven, these would have amounted to compliance enforcement issues, not permitting issues. It was not proven that the installation design at these locations was improper; if installation was designed properly but implemented improperly, it was not proven that installation as designed was impossible at these locations. Finally, it was not proven that the installation hampered canal maintenance. Leserra also expressed concerns about flooding of his property from a north-south drainage ditch along his property line, which conveys water from the south to a box culvert under Loxahatchee Road to the Hillsboro Canal, draining a significant area in the vicinity of Parkland. There was little evidence on the operation of Leserra's drainage ditch. The little evidence presented was insufficient to prove the likelihood of flooding of Leserra's property due to the existence of the transmission line. The evidence presented about the Hillsboro Canal in general suggests that flooding of Leserra's property due to the existence of the transmission line is highly unlikely. Indeed, there was no testimony that water in the Hillsborough Canal has ever risen above its banks, even in major rain events. Recreational Use of Canal Tennant testified that her husband regularly used the Hillsboro Canal for fishing and canoeing before the transmission line was installed. The transmission line does not physically obstruct canoeing or fishing in the canal, but her husband chooses not to canoe or fish in the canal any longer due to medical and health concerns and for aesthetic reasons. He does not enjoy those activities as much any more due to the transmission line being there both visibly and audibly. (It makes a noise described as "buzzing" or "humming.") Tennant also testified that her family used to fly kites from the dirt road in the ROW along the north side of the canal behind their home. Due to the proximity of the transmission line, this activity no longer is safe and has been discontinued.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order dismissing the Amended Petition for lack of standing. DONE AND ENTERED this 27th day of February, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2002.
The Issue The issue is whether Respondent properly denied payment of certain charges related to out-of-network surgical procedures pursuant to the State Employees’ PPO Group Health Insurance Plan.
Findings Of Fact At all times pertinent to this proceeding, Petitioner, who is now 29 years old, was an employee of the University of West Florida, and was enrolled as a member of the State Employees PPO Plan (Plan). She started employment with the University on December 1, 2007, and became enrolled in the Plan. Respondent was provided with the State Employees’ PPO Plan Group Health Insurance Plan Booklet and Benefits Document, effective January 1, 2007 (Plan Booklet). The Department of Management Services is responsible for all aspects of the purchase of health care for state employees, including those services provided under the Plan. Respondent is responsible for the administration of the state group insurance program. As authorized by law, Respondent has contracted with Blue Cross & Blue Shield of Florida (now known as Florida Blue) as its third-party medical claim administrator of employee health insurance benefits. The Plan Booklet contains the terms and conditions of the state group insurance program applicable to this proceeding. The booklet provides, as part of its Summary of Benefits, that: When you go to non-network providers, this Plan pays benefits based on the non-network allowance. If your provider charges more than the non-network allowance, you are responsible for any amounts above the non- network allowance. In addition, because the Plan pays a lower benefit level for non- network care, you pay more out-of-pocket for non-network care. In selecting BCBSF as the Medical Claim Administrator for the state Employees’ PPO Plan, DSGI agreed to accept the non-network allowance schedule used by BCBSF to make payment for specific healthcare services submitted by non-network providers. Keep in mind that you will receive benefits at the non-network level whenever you use non-network providers, even if a network provider is unavailable. (Emphasis added). The booklet provides, in section 6, entitled About the Provider Network, that: In an effort to contain healthcare costs and keep premiums down, BCBSF has negotiated with PPCSM network healthcare providers to provide services to health Plan participants at reduced amounts. PPCSM network providers have agreed to accept as payment a set amount for covered services . . . . Non-network providers will bill you their regular charges. You will be responsible for a larger coinsurance and/or copayment, and you will be responsible for paying the difference between the provider’s charges and the amount established as the non- network allowance for the service. The non- network allowance may be considerably less than the amount the non-network provider charges. * * * An Important Note About Using Non-Network Providers To make sure you receive the highest level of benefits from the Plan, it’s important to understand when non-network benefits are paid. When you use non-network providers, you receive non-network benefits. Here are some examples. In some situations, your network provider may use, or recommend that you receive care from, a non-network provider. For example, your network family doctor says you need to see another doctor and recommends a non-network doctor. It is your choice; you decide whether to go to the recommended non-network doctor or to ask your doctor for another recommendation to a network doctor. In this example, even though your family doctor is a network doctor, you will receive non-network benefits if you go to the recommended non- network doctor. Sometimes the health care professional you need to see is not in the network. You receive non-network benefits when you use non-network providers, even if no network provider is available. From an early age, Petitioner was plagued with symptoms of temporomandibular joint (TMJ) disorder. When she was seven or eight years old, Petitioner began to experience clicking in her jaw, and her jaw would occasionally lock. The symptoms soon abated. While she was in sixth grade, Petitioner was fitted for orthodontic braces. The braces were removed when she was 12 or 13 years old. When Petitioner was in her early teens, the clicking in her jaw reappeared. The clicking was now accompanied by pain in her jaw muscles, which was likened to that experienced from a migraine headache. Petitioner was referred to an oral surgeon regarding her jaw symptoms. The surgeon recommended a course of physical therapy for her jaw, and placed her on a diet that eliminated foods that were “chewy.” Despite those measures, Petitioner’s jaw began to periodically lock open. At the age of 16, Petitioner had her wisdom teeth removed. While that procedure resulted in a cessation of the locking, Petitioner could only open her mouth about one-quarter of the way. She was also prescribed Tylenol #3, which contained codeine, for pain. At the age of 16 or 17, Petitioner was given splints to keep her jaw in alignment. Petitioner was clenching her teeth so hard in response to the pain, that she broke several splints during the first year that she had them. By the time she was 19 years old, Petitioner’s headaches were “out of control.” She was referred to the facial pain center at the University of Florida, where she was fitted with custom-made splints. She was provided with a course of physical therapy, and was prescribed muscle relaxers. When she returned home from college for the summer, she did the recommended physical therapy, which was effective in relieving her symptoms for a few months. Petitioner was subsequently referred to Dr. Widmer, a physician at the University of Florida. Dr. Widmer performed an arthrocentesis, by which a steroid solution was injected into Petitioner’s temporomandibular joints. The procedure was ineffective. By 2006, when Petitioner was 23 years old, the opening of her mouth began to be accompanied by a “squishing” noise. Dr. Widmer referred Petitioner to Dr. Margaret Dennis. Dr. Dennis ordered an MRI of Petitioner’s jaw to determine if there was any bone damage. The MRI revealed that the bones of the temporomandibular joint were degraded, and that the disk material was calcified. Dr. Dennis increased the dosage of Petitioner’s pain medications to handle the pain associated with her condition. After a period of time, and with Petitioner having little relief from her symptoms, Dr. Dennis referred her to Dr. Mark Piper, a physician who is board-certified in oral and maxillo-facial surgery. Dr. Piper maintains his office in Tampa, Florida. Petitioner had her first appointment with Dr. Piper in August 2009. Dr. Piper ordered a level 3 MRI, which produced a clearer picture than her earlier MRI, as well as a CAT scan. He took imprints of Petitioner’s teeth, and performed a physical examination of the bones of Petitioner’s jaw. The results of the imaging and the physical exam showed severe and active degeneration of Petitioner’s temporomandibular joints, especially the right joint. To remedy Petitioner’s physical condition, Dr. Piper recommended a bilateral arthroplasty of Petitioner’s jaw, consisting of a fat graft to the right temporomandibular joint, and a procedure involving the disk tissue to the left temporomandibular joint. Given the exhaustion of more conservative forms of treatment, arthroplasty was, by this point, appropriate and medically necessary for the resolution of Petitioner’s condition. On August 25, 2009, Dr. Piper provided Petitioner with a statement summarizing his diagnosis, and providing an explanation of his recommended course of action. Petitioner provided Dr. Piper’s statement to BCBSF to explain the necessity for her proposed out-of-network treatment. The evidence suggests that Petitioner provided the CPT codes for the recommended procedures at issue. CPT codes are a system by which medical services are assigned numbers to describe those services, and are used by insurers to establish a uniform schedule of reimbursement. On a case-by-case basis, the numbers are provided by medical service providers to describe the services they have rendered. Respondent maintains a business record of all communications between it and its customers. On August 27, 2009, those records reflect that a telephonic request for information was received either from or regarding Petitioner. The notation regarding the request for information stated, in pertinent part: PRICING FOR PROC CODES 21240 AND 69990 RELATED TO TREATMENT OF TMJ NEEDED, PROV IS 62468....ALLOWANCES ARE 1168.09 AND 252.53 Petitioner acknowledged that she received the information regarding the rates, but understood the rates to be estimated amounts, and not official because the person with whom she spoke could not give final figures over the telephone. Later on August 27, 2009, Respondent’s records reflect that a second telephonic request for information was received either from or regarding Petitioner. The notation regarding the request for information stated, in pertinent part: MEMBER S REQUESTING TO SPK WITH THE VPCR [Voluntary Pre-coverage Review] AREA AS SHE WANTS PRIOR APPROVAL OF CODES 21240 AND 69990 FOR THE TREATMENT OF TMJ....I ADVISED HER OF THE PROCESS AND TO GO AHEAD AND SUBMIT THE LMN [Letter of Medical Necessity] AND SUPPORTING DOCS IF THE NON PAR PROV IS UNWILLING TO CALL OUR OFFICE..I EXPLAINED THAT THE DET WOULD BE MADE AND IF ADDTLS DOCS ARE REQD, THIS WOULD BE ADVISED ALSO, ADV MEMBER SHE CAN WITH FAX OR MAIL TO AD ON THE BACK OF INS CARD. Respondent’s records reflect no further telephonic inquiries regarding Petitioner until October 19, 2009. Petitioner scheduled her surgery with Dr. Piper for September 16, 2009. Petitioner testified that approximately one week prior to the scheduled surgery, BCBSF sent an e-mail to Petitioner providing her with the name of a network provider in Jacksonville who could perform the surgery necessary to resolve her TMJ issues. She further testified that she contacted the network provider’s office, and was advised by a Dr. Milton that the medical group could not perform the surgery. Petitioner testified that she advised BCBSF of that information, and advised BCBSF that there was no one in-network that could perform the surgery. A copy of the e-mail was not provided, nor was there evidence to otherwise corroborate the described events. Therefore, no finding can be made as to that alleged series of communications. Respondent maintains a list of network health care providers by specialty type and location. The list is available on-line. The list includes a number of oral and maxillofacial surgeons located in the Jacksonville area. However, one cannot determine from the list whether a provider is capable of performing a particular procedure under the specialty. The evidence demonstrates that Dr. Piper is an accomplished oral and maxillofacial surgeon, with particular expertise in disc removal and fat graft placement surgery for the temporomandibular joint. However, even if Dr. Piper is the surgeon most qualified to perform the procedure, that does not mean he is the surgeon singularly qualified to perform the procedure. Dr. Imray testified that he has referred patients for bilateral arthroplastic procedures on many occasions. His referrals were generally to oral and maxillofacial surgeons practicing at teaching centers in Jacksonville and Gainesville. Although he could not testify whether such surgeons were in the State Employees’ PPO network without consulting his PPO reference book, he could recall no instance of having had to refer a patient to an out-of-network provider, “because most of the teaching centers take most of the plans.” The evidence in this case failed to demonstrate that there were no network providers capable of performing the procedures medically necessary for the resolution of Petitioner’s TMJ issues. Having concluded that Dr. Piper afforded her with the greatest likelihood for a successful outcome, Petitioner proceeded with the surgery as scheduled. After a recovery period of two years, which included braces to adjust her teeth to fit her repaired and aligned temporomandibular joints, the surgery has proven to be a complete success. Petitioner testified convincingly that the surgery was a life-changing event. The total cost to Petitioner for the surgical and immediate post-operative procedures was $30,005.00. In November, 2009, Petitioner began the process of filing her claim with BCBSF. After some difficulties, the submission of the claim was completed in January, 2010. The amount billed to BCBSF was $29,976.00. The bulk of the charge, in the amount of $24,650.00, was for the procedure identified by Dr. Piper as CPT Code 21240. The documentation submitted clearly indicated -- both by the description of the CPT Code 21240 procedure as “Bilateral TMJ Arthroplasty” and by the listing of the modifier code “50”, which was the code assigned for procedures that were bilateral -- that the arthroplasty procedure was bilateral. On March 11, 2010, BCBSF notified Petitioner that it would reimburse her medical expenses related to the surgery in the amount of $1,526.57. That amount included $1,168.09 for the arthroplasty (CPT Code 21240), and $358.48 for the surgical splint (CPT Code 21085). BCBSF indicated that it would not pay the $1,650.00 charge for the operating microscope (CPT Code 69990) on the basis that the charge was incidental to the primary arthroplasty procedure, and therefore included in the $1,168.09 allowance for that procedure. BCBSF also denied payment for a ZZ Therabite (CPT Code 99070). The reimbursement amount was calculated by applying the CPT Codes provided by Dr. Piper to the BCBSF fee schedule. The amount was then further adjusted by the non-network payment allowance to reach the final reimbursable amount. The process is mechanical, and involves no exercise of discretion. In that regard, the reimbursement for the arthroplasty was identical to the estimate provided to Petitioner on August 27, 2009. The evidence demonstrates that the amounts paid to Petitioner for CPT Code 21240 procedures and the CPT Code 21085 surgical splint were accurately derived through application of the BCBSF fee schedule allowance to the procedure codes provided by Dr. Piper. However, as to the arthroplasty procedure, the evidence further demonstrates that the amount paid was based on a single procedure. The arthroplasty performed by Dr. Piper was a bilateral procedure, which was clearly disclosed on the claim form. According to Kevin Tincher, BCBSF’s senior manager of coding and professional payment, Petitioner is entitled to reimbursement for both procedures, with the reason given for not paying for both being Dr. Piper’s failure to bill each part of the bilateral procedure on separate lines of the claim form. Given the lack of any instruction requiring that the two sides of a single bilateral procedure be billed on separate lines, especially given the application of the modifier code “50” to indicate a bilateral procedure, the information provided on the claim form was neither deficient nor in error. When two procedures of the same type are performed on the same day, the BCBSF fee schedule calls for reimbursement for the second procedure at a rate of 50 percent of the allowance for the first procedure. Under that schedule, Petitioner should have been reimbursed an additional $584.05, i.e., 50 percent of the $1,168.09 allowance for the first CPT Code 21240 procedure. The evidence demonstrates that the Therabite device (CPT Code 99070) was “appropriate and acceptable” in Petitioner’s case. Thus, the device was medically necessary under the circumstances. Petitioner should have been reimbursed, at the non-network rate, for that device. During the hearing, Jessica Bonin, BCBSF’s Critical Inquiry Analyst, admitted that the post-operative CT scan -- CPT Code 70486 -- in the amount of $301.93, should have been paid, but that the claim had not been reprocessed by BCBSF. Respondent further admitted in its Proposed Recommended Order that payment in the amount of $301.93 should be made for the post-operative CT scan. It is so found. Petitioner initiated a Level I appeal with BCBSF. She provided BCBSF with as much of her medical history as she could locate, a list of medications, and all of the records, photographs, and X-rays that she could access. She also provided a letter from Dr. Piper, dated March 18, 2010, in which he detailed the services provided to Petitioner. Dr. Piper’s description suggests that the services provided to Petitioner were extensive, but did not suggest that the procedure itself varied from the procedure described in CPT Code 21240. However, Dr. Piper did reaffirm that the surgery was a bilateral procedure involving both of Petitioner’s temporomandibular joints. BCBSF did not change its decision as a result of the Level I Appeal. On May 14, 2010, Petitioner filed a Level II Appeal with Respondent. On June 16, 2010, the Level II Appeal was denied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Management Services enter a final order finding that Petitioner is entitled to additional reimbursement for her medical expenses as set forth herein.1/ DONE AND ENTERED this 23rd day of August, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 2012.
The Issue The issue for determination is whether and the extent to which the proposed corridor by Tampa Electric Company (TECO) contained in its Application for Corridor Certification (Application) should be approved in whole, with modifications or conditions, or denied.
Findings Of Fact Based upon all of the evidence the following findings of fact are determined: Parties The TLSA establishes TECO and the Department as parties to this proceeding, and the following became parties upon their timely filing of a notice of intent to be a party, which each has done: Florida Department of Transportation (DOT), Department of Community Affairs (DCA), Southwest Florida Water Management District (SWRWMD), and Hillsborough County. See § 403.527(2), Fla. Stat. Although the Florida Fish and Wildlife Conservation Commission (FFWCC) did not become a party, the Department accepted its comments and recommended conditions in the agency report. On February 21, 2008, the City of Temple Terrace was accepted as a party without objection after the deadline for filing the notice of intent. § 403.527(2)(b), Fla. Stat. On February 25, 2008, Tom and Susan Watson filed a Petition to Intervene. Although this was after the deadline established in the prehearing schedule for becoming a party, TECO did not object based upon an agreement to conditions relating to the presentation of witnesses by the Watsons. Intervenors agreed to those conditions. Finally, Polk County did not file a notice of intent to be a party, but appeared without objection at the certification hearing. The Application Project Description Generally, an electrical transmission line's purpose is to transport large amounts of electricity from a generating facility to one or more substations. At the substation, the electricity can be either increased or reduced in voltage through transformers and other electrical equipment for further safe and practical transportation, or distribution directly to customers. TECO is seeking certification of a corridor between the planned Willow Oak substation located at the intersection of State Road 60 and Turner Road just northwest of Mulberry in Polk County, the existing Wheeler substation in Valrico, and the planned Davis substation in Temple Terrace, a span of approximately thirty miles, within which it will ultimately construct the line on a narrow right-of-way (ROW).2 Once all property interests in the ROW are acquired, the boundaries of the corridor will shrink to the typical width of the 25 to 100- foot ROW. In some cases, the ROW will be 300 feet wide. The objectives of the Project are to address: (a) the need, as confirmed by the PSC, to provide additional transmission reinforcement to the existing 230 kV transmission network north of State Road 60, west of the planned Willow Oak substation, and east of the existing River substation in a reliable manner consistent with the North America Electric Reliability Council (NAERC) and the Florida Reliability Coordinating Council (FRCC) and other applicable standards; (b) the need to serve the increasing load and customer base in the Project service area; and (c) the need to provide for another electrical feed via a separate ROW path, thereby reducing the impact of a loss of existing transmission facilities on a common ROW. Need for the Line In earlier proceedings before the PSC, it determined a new 230 kV transmission line between the planned Willow Oak, the existing Wheeler, and the planned Davis substations is needed, taking into account the need for electric system reliability and integrity and the need to provide abundant, low cost electrical energy to assure the economic well-being of the citizens of the State. The PSC found that the planned Willow Oak substation and the planned Davis substation constitute the appropriate starting and ending points for the proposed line. The PSC noted that the additional transmission capacity will be needed by 2012 and recognized that the Siting Board will make the final determination concerning the route selection upon consideration of the factors and criteria specified in Section 403.529, Florida Statutes. Transmission Line Design The typical design for the transmission line will be a single-circuit unguyed concrete pole structure using concrete or crushed stone back fill. The poles are proposed to range in height from 80 feet above grade to 125 feet above grade, with the conductors framed in a vertical configuration. Three conductors will be used, and each of the three conductors is anticipated to be a 1,590 aluminum conductor steel supported wire, with 45 strands of annealed aluminum that lay over seven steel strands. The conductor is 1.504 inches in diameter with a weight of approximately 1.7 pounds per foot. There will also be a smaller overhead ground wire to provide shielding and lightening protection for the conductors. The maximum current rating is 2,560 amperes. In some locations there could be a 69 kV and a distribution underbuild. Additionally, the vertical configuration will be adjusted to a horizontal configuration in the vicinity of the South Lakeland Airport to enable the height to be lowered to approximately 46 feet above grade to account for the air traffic. The open span length between structures will typically vary between 300 and 800 feet, depending on site-specific conditions. Both pole height and span length may vary to accommodate various conditions that may be encountered. Access roads and structure pads will be constructed only where necessary to provide access for construction, maintenance, and emergency restoration. Where constructed, the typical road top width will be 14 feet, with a 2-to-1 side slope, and a minimum elevation of between six inches and two feet. Structure pads will have variable sizes but are typically 75 feet by 75 feet. These are designed to support the equipment needed to install and maintain the transmission line. Culverts will be installed beneath access roads and structure pads with the specific design reviewed by the appropriate regulatory agencies. The design will be similar to previously approved designs. The design of the transmission line complies with good engineering practices. The transmission line will be designed in compliance with all applicable design codes, including the National Electrical Safety Code, the Department's regulations on electric and magnetic fields, the DOT Utility Accommodation Manual, the requirements of applicable regulatory agencies including the Department, SWFWMD, and PSC, as well as TECO's own design standards. The Project assures the citizens of Florida that operation safeguards are technically sufficient for their welfare and protection. Transmission Line Construction The initial phase of construction is to clear the ROW. Since much of the length of the corridor is collocated, that is, grouped or placed side by side, with existing roads and utility facilities, the need for clearing has been minimized. Clearing will consist mainly of tree trimming and the selective removal of trees. In areas owned by TECO clearing will range from a width of 25 to 100 feet. In forested areas in which a new line will be located, clearing will also be limited to 25 to 100 feet in width. In wetlands, trees capable of exceeding 14 feet in height that could come in conflict with the line will be removed by hand clearing or use of very low ground pressure equipment. Low growing herbaceous vegetation will not be cleared from wetlands. After the ROW is cleared, any necessary access roads and structure pads will be constructed. Typically, access roads and pads are not required in all areas. The next phases of construction involve the physical transmission line construction. Initially, the materials are assembled on the jobsite. Next, holes are augered at each pole location. The structures are framed with insulators and hardware that may be installed prior to the setting of the structure. After all appropriate operations relative to the assembly and framing have been performed on the ground, the top section of the structure is lifted with a crane and set on the previously installed base section. The two sections are then jacked together. Typically, the pole is embedded into the ground approximately 25 to 35 feet deep. After the poles have been installed and the hardware and equipment on the pole, including the insulators, have been installed, a wire pulling operation is conducted. In this phase, reels of wire, wire tensioning, and retarding equipment all will be mobilized. The locations generally include the dead end structures, but the length of the wire that can be placed on a reel may dictate the location of some of the equipment. Each structure must be equipped with hanging blocks or pulleys so the conductors may be pulled through smoothly for the entire length of the reel. Once the conductors are pulled in and secured at the dead end structures, the wires are sagged and tensioned appropriately to maintain vertical clearances. Finally, the pulleys are removed from each structure and the conductor is secured to the insulator attachment. The final stage of construction is the cleanup stage. This involves inspection of the entire project to ensure that all material has been cleaned up, removal of all silt fences, hay bales, excess spoils, or dirt from the foundation excavation, and ensuring that the gates and fences have been properly restored or installed. Throughout construction, sedimentation management techniques, such as the use of silt screens and hay bales, or other best management practices, will be employed as necessary to minimize potential impacts from erosion and sedimentation. While each phase of construction will typically take up to two weeks in a particular location, the construction crew will normally be active for two to four days at a typical structure location after the necessary pads have been installed. Construction for the entire project is expected to last from twelve to eighteen months. Methodology for Choosing TECO Corridor TECO established a multi-disciplinary team to identify and evaluate routing alternatives within the Project Study Area. This multi-disciplinary team was comprised of experts in land use, engineering, and environmental disciplines. The team, which included both TECO representatives and outside consultants from ECT, engaged in a number of activities including data collection, preparation of a regional screening map, the identification of alternative route segments, the development of criteria to evaluate the route segments, the actual evaluation both quantitatively and qualitatively of these routes, and the ultimate selection of the preferred route which was accepted by TECO. Members of the public assisted in this effort throughout the development of the proposed corridor. The objective of the corridor selection study was to select a corridor that could be certified balancing land use, socioeconomic, environmental, engineering, and cost considerations. Corridor selection methodologies were designed to be integrative of multidisciplinary siting criteria, regional and objective in decision-making, sensitive to social and environmental conditions, responsive to regulatory requirements, reflective of community concerns and issues, and capable of accurate documentation and verification. The selection process consisted of three tasks including (a) project and study area definition; (b) resource mapping and alternative route delineation; and (c) evaluation of alternative routes and selection of the proposed corridor. Due to the dense and urban nature of the TECO service area, it was difficult to find areas with no population or development for a corridor. The multidisciplinary team developed a regional screening map, received in evidence as TECO Exhibit 14, which was prepared by the team using generally publicly available information including Geographic Information System (GIS) mapping. The map data were collected from various state agencies and local governments. Information was gathered from the Florida Geographic Data Library (which distributes GIS data), the Florida Natural Areas Inventory, and most of the agencies involved in this proceeding. Various environmental and land use data were mapped as were existing infrastructure, and information gathered on roads, railroads, rivers, waterbodies, and the like. These represented primarily siting constraints or siting issues within a particular study area. The regional screening map was then used to identify route segments. The licensing team used the regional screening map as the first step in identifying the various route segments that connected the three substation locations at Davis, Wheeler, and Willow Oak. TECO's multi-disciplinary team gathered data on siting opportunities and constraints within the study area and identified forty-one line segments which could be assembled into a total of four hundred twenty-three potential route combinations. Using a predefined set of ten environmental, land use, and engineering criteria, each route segment was measured for those resources. Using a software program developed by ECT, the data was entered and totaled for each route combination. Using the weights developed by the licensing team for each criterion, the weights were applied and tabulated for all routes. The routes were then ranked in order from best to worst based on the weighted scores. Once the rankings were performed, the top ranked routes were subjected to further evaluation. These routes were high in scoring but somewhat different in the path that they took between the three substation locations. They were then evaluated using predetermined qualitative criteria, which included such things as homes in proximity to the route. The analysis included an examination of where the homes were located along the route, whether they are scattered and easily avoided with the placement of a corridor, or whether they are clustered together in a fashion making it difficult to avoid them in placement of the corridor. Numerous driving surveys of the various routes were performed during this phase where the routes were publicly accessible, and a helicopter flyover was also completed. At the completion of the evaluation, a recommendation was made for a proposed route, which was accepted by TECO. Once the proposed corridor location was selected, the team examined various siting issues within and along the route and developed corridor boundaries of varying widths. In some areas a much wider width was needed to provide flexibility for siting, while a more narrow width was needed in areas where siting issues were less and where there was a reasonable certainty concerning where the ROW could be located. TECO also engaged in an extensive public outreach program. The public participation program included open houses, mass mailings, surveys, a toll-free telephone number, newsprint advertisements, a website, and meetings with regulatory agencies and local elected officials. There were three direct mailings as a part of the public outreach program. The first mailing was a notification of four open houses that were to be held. One open house was conducted in Polk County, while three (Seffner, Plant City, and Temple Terrace) were conducted in Hillsborough County. Following the completion of the open house process, a second mailing was sent providing a summary of the survey results. The third mailing notified recipients that the Application was filed on October 12, 2007. Approximately 4,500 recipients were identified for these mailings. The names of the recipients were obtained by identifying the properties located within 500 feet in both directions from the centerline of the routes. The Hillsborough and Polk County Property Appraisers' offices were a source for this information as well as the TECO customer database. The Hillsborough County Office of Neighborhood Relations was consulted for a list of registered homeowners' associations. For the homeowners' associations, which numbered around two hundred, those that were within one mile in both directions from the centerline of the route were notified. The recipients of the notifications included property owners and tenants or lessees. The Hillsborough County Large Facilities Ordinance was used as a guide to identify the area of the notifications, although that Ordinance mandates a 250-foot notification distance from the centerline of the routes, and TECO actually used 500 feet on both sides of the centerline. The same distances were not used for recipients of each of the mailings. The distances described in Finding of Fact 27 were used for the first two mailings. For the third mailing, the proposed corridor had been selected. As a result, the distance was measured not from the centerline of the route, but from the edge of the corridor. This was done because in some areas the corridor was extended beyond the 500-foot limit and potential recipients would have been missed had the area of inclusion not been extended. Additional mailings are planned if the corridor is certified. Additional informational open houses will also be held, and the transmission structures and potential locations will be identified at that time so the public can be informed. As part of the public outreach, TECO also ran a series of four advertisements in local newspapers. The first newspaper advertisement was run on February 20, 2007, in The Tampa Tribune, Lakeland Ledger, Mulberry Press, Temple Terrace News, and Brandon News. Two more advertisements were run on February 28 and March 1, 2007, in The Tampa Tribune and Lakeland Ledger. These advertisements were in addition to the required public notices of the application being filed, the certification hearing being scheduled, and the public hearing being scheduled that were run on October 30 and December 27, 2007, and February 18, 2008. The required advertisements were run in The Tampa Tribune, Lakeland Ledger, and The Winter Haven News Chief. The February 18 notice of public hearing was also run in The Polk County Press. Copies of the Application were maintained for public inspection during the certification process at the TECO offices in Tampa and Winter Haven. In addition, a copy of the Application was provided to the John Germany Public Library in downtown Tampa, the Polk County Library in Bartow, and the Temple Terrace Library in Temple Terrace. All of the applications available for public inspection were updated as additional information was submitted to the Department. The public participation program provided substantive input to the route evaluation study in terms of study area boundary, siting opportunities, and constraints in the area, identification of route segments to be evaluated, and weights to be assigned to the route evaluation criteria. The cumulative responses of the public's ranking of the weights to apply to TECO's siting criteria were very comparable to the team's weighting indicating little significant difference in route ranking. Once the proposed alignment was identified, the multi- disciplinary team delineated the boundaries or width of the corridor to provide flexibility for locating the eventual ROW within that corridor. State, regional, and local agencies with regulatory authority of the Project reviewed the Application and submitted to the Department a report concerning the impact of the Project on matters within their respective jurisdictions, as required by Section 403.526(2), Florida Statutes. The Department compiled the reports and made a recommendation that the Project be granted approval subject to appropriate conditions. See Department Exhibit 2. The Department, SWFWMD, and DOT stipulated as to the certification of the Project subject to conditions of certification proposed by the Department. On April 16, 2008, the City of Temple Terrace and TECO entered into a separate stipulation for certification. None of the agencies involved in the review process recommended that the proposed corridor be denied or modified. No alternate corridors were filed for consideration by any of the parties. Further, no additional conditions of certification were proposed by any party at the certification hearing. Detailed Description of the TECO Corridor The proposed corridor provides significant opportunities for collocation with other linear facilities such as roads and transmission lines which provide the opportunity to reduce the amount of new access road construction, impacts to wildlife habitat, and other impacts. The width of the proposed corridor varies along the route to provide flexibility within the corridor to avoid impacts to such areas as existing developments, large wetland areas, and a bald eagle's nest. From the Planned Davis Substation to the Existing Wheeler Substation The western end of the corridor begins at the planned Davis substation site in Temple Terrace which is a large parcel owned by TECO. There is an existing substation there called the River substation and the planned Davis substation will be located in proximity to that existing substation. Land use is generally open land. This portion of the corridor is bordered on the west by the Hillsborough River and has a large area of pasture land on the east side with mixed hardwood swamp and cypress swamp on the western portion. Leaving the TECO substation property, the corridor travels east across Interstate 75 (I-75) and the width of the corridor in this area narrows to approximately 300 feet. This is also TECO property. As the corridor passes I-75 it approaches the Tampa Bypass Canal, which is owned by the SWFWMD. The corridor is expanded in this area to minimize the impacts on the SWFWMD operations along the Bypass Canal and on the recreational facilities located in the southwestern portion of the parcel used by Temple Terrace. Land is low density residential with a cemetery and a recreational facility. The property has pine/oak woods along the northwestern corner and a mixed hardwood swamp on the northeastern corner. The property is bisected north and south by the Tampa Bypass Canal. Once the SWFWMD property is exited the corridor turns due east for approximately 5.4 miles until south of Lake Thonotosassa, where it turns south. This portion is owned by TECO. The corridor is 300 feet wide. The western portion is primarily developing and developed lands surrounding the corridor and, as it proceeds east, it crosses more rural lands, pasture, strawberry fields, row crops, various agricultural operations, cattle grazing, and some citrus groves. A portion of the corridor contains a natural gas pipeline within TECO's property. In addition to the agricultural vegetation, there is a pine/oak area, some marsh, and some emergent aquatic vegetation, along with some ponds. The corridor crosses Baker Creek, a tributary to Lake Thonotosassa, which is north of the corridor. A mixed hardwood swamp and a cypress swamp are found here. The proposed corridor then turns south and approaches areas of developing or developed lands. TECO's fee ownership extends to the south. The corridor crosses Interstate 4 and, at the beginning of its intersection with U.S. Highway 92, the corridor has been expanded from approximately 3,100 feet up to 5,100 feet in width to avoid a bald eagle's nest and the scattered residences in the area. The widened corridor proceeds south to State Road 574 or Martin Luther King Boulevard. Land use is agricultural, low density residential, and undeveloped property. This area of the corridor contains some pine/oak woods, large areas of marsh, some crop land, some mixed hardwood swamp, and scattered residential development. Once the corridor crosses State Road 574 it narrows again to approximately 300 feet in width and is located on TECO property. The corridor then proceeds south to the existing Wheeler substation located off of Wheeler Road in Valrico. There is a large amount of development to the west of the corridor and developing lands to the east of the corridor. From the Existing Wheeler Substation to the Planned Willow Oak Substation From the existing Wheeler substation near Wheeler Road the corridor proceeds south slightly more than one mile and then turns east for approximately one mile before turning south to State Road 60. In this portion of the corridor the width is approximately 300 feet and it is located on TECO property. There are residential properties in the vicinity of the corridor, including the Diamond Hills and Sommerset subdivisions. The land use is generally medium density residential surrounding the corridor and also some agricultural lands. Land uses in this area include pasture land, pine/oak woods, crop land, marsh, open land, ponds, mixed hardwood conifer swamp, and pine flat woods. The corridor proceeds east along State Road 60, which is a major transportation corridor. The corridor is expanded to approximately 2,000 to 3,000 feet in this area to allow opportunities to follow other linear facilities that are located south of State Road 60, such as other transmission lines or roads. There are scattered residential properties with agricultural uses, strawberry fields, pastures, and some citrus in the area. Phosphate lands are located to the south of this segment of the corridor. The corridor proceeds along to the east. The majority of this area is reclaimed phosphate mining lands. The final segment of the proposed corridor has again been expanded to approximately 4,000 feet wide as it continues along both sides of State Road 60 and both sides of Old Hopewell Road. As the roads converge, the corridor is narrowed to approximately 500 feet. From there it proceeds to the planned Willow Oak substation in western Polk County. In this area there is existing development surrounding the substation site and proposed development along State Road 60. The South Lakeland Airport is in this area. Along State Road 60 there is a mix of commercial, residential, and some industrial properties. The Willow Oak substation site is located within open land. Compliance With Section 403.529(4) Criteria Ensure Electric Power System Reliability and Integrity The PSC found that there are regional transmission system limitations in northeast Hillsborough County. By 2012, the existing 230 kV transmission network will not have sufficient capability to provide reliable electric service to the existing and proposed substations. The PSC also found that some of the projected load to be served by the planned future distribution substations will be located further east and north of the existing 230 kV transmission network. The PSC determined that the proposed transmission line is needed by March 2012 to (a) provide additional transmission reinforcement to the existing 230 kV transmission network north of State Road 60, west of Willow Oak substation, and to the east of the existing River substation in a reliable manner consistent with the NERC, FRCC, and other applicable standards; (b) serve the increasing load and customer base in the projected service areas; and (c) provide for another electrical feed via a separate ROW path, thereby reducing the impact of a loss of the existing transmission facilities on a common ROW. The PSC concluded that the Project is needed to preserve electric system reliability and integrity. Meet the Electrical Energy Needs of the State in an Orderly and Timely Fashion The PSC recognized that TECO's planning studies indicate that the proposed line is needed by March 2012 to provide sufficient capability to provide reliable service to existing and proposed substations. The location of the proposed transmission line on the proposed corridor would meet the electrical energy needs of the state in a timely fashion. Comply with the Nonprocedural Requirements of Agencies Construction, operation, and maintenance of the proposed corridor will comply with applicable nonprocedural requirements of agencies. The Department has concluded that the Project as proposed will comply with all applicable Department statutes, rules, policies, and procedures. Be Consistent with Applicable Local Government Comprehensive Plans The Polk County Comprehensive Plan identified electric transmission and distribution facilities as a permitted use in all land use categories. In the Future Land Use Element of the Hillsborough County Comprehensive Plan, there are an objective and several policies that address bulk transmission lines. The policies address the locational criteria and public input. The policies will be met by the proposed transmission line. The City of Temple Terrace's Comprehensive Plan does not address bulk transmission lines. After certification of this project, TECO will acquire the necessary property interests in a ROW within the certified corridor for placement of the line. Construction of transmission lines on such established ROWs is excepted from the definition of "development" in Section 163.3164(5), Florida Statutes. Accordingly, the provisions of the local comprehensive plans related to "development" that have been adopted by the local governments crossed by the line are not applicable to this project. No variances or exemptions from applicable state or local standards or ordinances are needed for the project. Implementation of Legislative Intent in Section 403.521 The Need for the Line as a Means of Providing Abundant Low-Cost Electrical Energy The PSC determined that the proposed line is needed taking into account the factors set forth in Section 403.537, Florida Statutes. The PSC found that TECO evaluated three alternatives to the Project. All three were transmission modifications to the proposed ROW that used a portion of, or the entire existing, common ROW. The PSC accepted TECO's rejection of the alternatives primarily because of economics and reliability concerns. The PSC found that the proposed line will assure the economic well-being of the citizens of the state by serving projected new electric load in the region and improving the region's electric reliability by minimizing the region's exposure to single contingency events. Impact Upon the Public The proposed line is appropriate from a land use perspective. The Project takes advantage of the opportunity to be collocated with other transmission lines, roadways, and ROWs. By following these existing linear features, the corridor conforms to existing and future development patterns and minimizes intrusion into residential areas. As a result, the proposed line is in proximity to relatively few residences. The line as proposed will comply with all applicable nonprocedural agency standards, including the Department standards in Florida Administrative Code Rule Chapter 62-814 limiting the electric and magnetic fields associated with new transmission lines. TECO proposes to use five different configurations for the transmission line, depending upon the location. The options include a 230 kV single circuit roadside, a 230 kV single circuit roadside with a 69 kV underbuild, a 230 kV single circuit roadside with 69 kV and 13 kV distribution underbuild, a 230 kV single circuit for the South Lakeland Airport, and a 230 kV single circuit for use in the 300-foot existing TECO ROW. For each of these configurations the Department's rule requires that the electric and magnetic fields (or energy forces) be calculated to ensure compliance. The electric field is what is created underneath and outside of a transmission line as a result of placing voltage on the conductor. It is a byproduct of placing voltage on the conductor. The magnetic field is created as a result of the current traveling along the conductor. It is generally a magnetic flux field that surrounds the conductors and the transmission lines. Those portions of Florida Administrative Code Rule Chapter 62-814 that are applicable to this Project establish maximum values for electric and magnetic fields. The electric field is expressed as a kilovolt meter (kV/m) and compliance is required both within the ROW and at the edge of the right-of-way for the transmission line. The magnetic field is expressed as milliGauss (mG) and compliance is determined at the edge of the ROW. Compliance with the electric and magnetic field requirements was calculated for each of the configurations that may be utilized for the Project. The results were then compared to the requirements of Florida Administrative Code Rule 62- 814.450(3). See TECO Exhibit 21. The maximum expected values from all configurations for the electric fields within the ROW and at the edge of the ROW and for the magnetic fields at the edge of the ROW are all below the values set forth in the rule. The maximum voltage and current that is ever anticipated for the line during its life are used in making the calculations. However, it is highly unlikely that this condition would occur. It is anticipated that the maximum condition would occur less than five percent of the time while the transmission line is operating. In order to operate at the maximum level the conductor must be operating at its maximum temperature and the conductor would be at its lowest point in the span to create that condition. There would also need to be some type of system disturbance that would cause a maximum condition to occur. This would be a worst case scenario. Levels for electric fields will be less at the normal operating levels and magnetic fields about fifty percent less. Intervenors own property and live within the area of the expanded corridor between U.S. Highway 92 and State Road 574 in Dover. In this area TECO owns a 300-foot ROW originally considered for the corridor, which contains an eagle's nest. While this area is near the Intervenors' property, the proposed corridor is the entire area up to 5,100 feet in width, and the actual ROW location for the line has not yet been determined. Intervenors are primarily concerned about the potential health effects to their son caused by exposure to electric and magnetic fields from the transmission line in the vicinity of their property. In support of these concerns, they presented the prefiled, written testimony of Dr. Hanoch Talmor, a medical doctor in Gainesville, Florida, who has treated their son for over fifteen years. Doctor Talmor is a board-certified pediatrician who now specializes in the area of general holistic medicine. In his written statement Dr. Talmor states that Intervenors' son is at present nonambulatory and nonverbal. He also testified that he displays severe chemical sensitivities and is listed on the state chemically sensitive lists. Although he is not a neurologist, Dr. Talmor opined that because of the son's neurological involvement and his extensive medical history, he would be adversely affected by high voltage power lines near his home. He further testified that the son has seizures which can be affected by smells, sounds, visual stimuli, sleep patterns, and allergic reactions. During cross-examination, Dr. Talmor acknowledged that he is not familiar with the levels of electric and magnetic fields expected to result from this transmission line in the vicinity of Intervenors' property. Even so, he opined that the only safe levels of electric and magnetic fields with regard to human exposure would be at levels of zero. He admitted, however, that electric devices typically found in the household such as clocks, ovens, refrigerators, televisions, electric blankets, and the like, as well as electric wiring in the house, would be expected to produce electric and magnetic fields to which a person living in the house would be exposed. At the certification hearing, Dr. Talmor also discussed various research articles concerning this subject. In formulating his opinions, however, Dr. Talmor had reviewed only summaries and excerpts of the studies, rather than the complete studies. TECO presented the testimony of Dr. Laura S. Erdreich, an epidemiologist, who is familiar with the configuration for the transmission ROW that is proposed to be used in the vicinity of Intervenors' residence. Doctor Erdreich testified that she is familiar with the levels expected to be produced from the transmission line at the edge of the ROW. With regard to electric fields, Dr. Erdreich testified that the lowest level that has ever been proposed as being necessary for the protection of human health is 4.2 kV/m. This was by an organization called the International Commission for Non- Ionizing Radiation Protection (ICNIRP). The organization is based in Europe and is sponsored by the World Health Organization. The level that organization recommended is more than twice the maximum level of 2.0 kV/m found in Florida Administrative Code Rule 62-814.450(3)(a). The maximum expected electric fields at the edge of the ROW for the Project in the vicinity of Intervenors' residence is 0.1 kV/m. For magnetic fields, Dr. Erdreich testified that the ICNIRP proposed a level of 833 mG as being protective of human health based on exposure. This is the lowest level that has been proposed by any regulatory authority or similar body based on potential health effects. In contrast, Florida Administrative Code Rule 62-814.450(3)(d) provides in relevant part that the "maximum magnetic field at the edge of a 230 kV or smaller transmission ROW . . . shall not exceed 150 mG." This value is much greater than the 13.6 mG maximum level expected at the edge of the TECO ROW and in the vicinity of Intervenors' home. Under typical operational conditions, the expected magnetic field would be approximately 7 mG, which is less than one percent of the health-based exposure limit recommended by the ICNIRP. Doctor Erdreich also testified that she is familiar with the research that has been conducted concerning health effects from environmental exposure to electric and magnetic fields. The research includes epidemiological studies of humans in the natural environment, laboratory studies which typically expose all animals to high levels often for nearly their entire lifetime, and studies of cells and tissues in laboratories to try to isolate the mechanism that may affect humans. The amount of research being performed has been reduced over the last few years because, despite considerable research, an adverse effect from exposure to humans at environmental levels has not been substantiated. Additionally, causal associations between exposure and health effects have not been found when the data and research have been reviewed by committees of scientists of various disciplines. Doctor Erdreich testified that she is aware of the studies that were referred to by Dr. Talmor as well as other studies on the subject. Although the subject of exposure to low levels, even on a long-term basis, such as levels less than 10 mG, has been studied extensively, she noted that the findings have been that magnetic fields have no known effect on the human body until exposure to levels well above 1,000 mG. The United States Government does not regulate electric and magnetic exposure except in occupational settings. There are no requirements for regulation of transmission lines in these areas. The State of Florida is one of only a few states that have such requirements. There is no existing body of research demonstrating that adverse health consequences result from exposure to electric and magnetic fields at the levels expected to result from the 300-foot ROW single pole configuration that is proposed for the vicinity of Intervenors' property. Doctor Erdreich opined that these levels do not pose a threat of adverse health effects to the population near the edge of the ROW. She further opined that in the unlikely circumstance that the edge of the ROW for the transmission line would be placed at the edge of the residence of the property, the levels of electric and magnetic fields from the transmission line would still not create a health concern. She also stated that her opinion would be the same if one of the residents were shown to have an illness that resulted in a chemical sensitivity. She based her opinions on the fact that there is no evidence demonstrating any correlation between this exposure and adverse health effects. Finally, Dr. Erdreich testified that no group has ever suggested that there is a need for lower levels near hospitals or convalescent facilities or other places where physical therapy occurs. The levels of electric and magnetic fields from the transmission line will decrease as one moves further from the edge of the ROW. The levels expected from the transmission line, which are already well below the State requirements and a small fraction of the lowest levels that have ever been suggested as being required for the protection of human health, are similar to the levels that would be expected to result from common household appliances. Mrs. Watson testified that her residence has electricity and electric household appliances such as air- conditioning, television, refrigerator, and a vacuum cleaner. All of these devices produce electric and magnetic fields at levels in the range of what would be expected from the TECO transmission line. Additionally, there is natural exposure to magnetic fields and electric and magnetic fields from electrical devices that are encountered in everyday life. Transmission lines can generate audible noise as a result of irregularities that collect on the conductor. During periods of fair weather dust can collect on the conductor and that may cause low levels of audible noise. When rain is experienced, the dust is washed off but replaced with water droplets on the conductor that create a condition that results in slightly higher levels of audible noise. The noise levels experienced during rainfall events are temporary, and the noise is reduced as soon as the water droplets evaporate from the conductor. The expected levels of noise are generally calculated using a program called the Bonneville Power Administration Field Effects Program. The information utilized to make the calculations includes the conductor size, the configuration of the transmission line, and the voltage expected. The calculations performed for the transmission line show that the audible noise levels at the edge of the ROW during fair weather would range from 16.1 dBA, which is decibels of noise in a range that can be heard, to a high of 22.5 dBA. During periods of rainfall the expected audible noise at the edge of the ROW ranges from a low of 41.1 dBA to a high of 47.5 dBA. For the ROW configuration that is proposed for the area including the Watson property, the expected levels during fair weather are a maximum of 16.1 dBA and during foul weather a maximum of 41.1 dBA at the edge of the ROW. The noise levels will decrease as one moves away from the edge of the ROW. Also, during rainfall events, when the maximum noise levels are expected, the rain will tend to mask the sound from the transmission line. Studies that have been prepared on this issue indicate that complaints concerning noise are primarily related to interference with sleep. The studies indicate that to minimize the potential of interference with sleep, the noise level outside of the home should not exceed 50 dBA. The maximum expected noise level from the Project will not exceed 50 dBA. Mr. Brooks, TECO's expert who testified on this issue, stated that he had never had an occasion to deal with a noise level complaint during his thirty-seven years of experience with transmission lines. TECO Exhibit 22 contains a summary of the audible noise expected from the transmission line for the various configurations. It also contains a chart with the noise levels expected from common activities for comparative purposes. The maximum fair weather audible noise from any of the five configurations would be comparable to the levels that one would encounter in a bedroom at night. The maximum levels for the same configurations during foul weather would be comparable to what one might experience in a quiet office or a living room. The levels for the configuration to be utilized in the area of the Watson property are below the maximums for the Project and significantly less than levels expected at a quiet office or bedroom at night. At the public portion of the certification hearing, thirty-five members of the public uniformly testified in opposition to the Project, as proposed. A number of those testifying expressed concern about the impact of the Project on property values, the possible effects of the electric and magnetic fields expected from the transmission line once the ROW has been selected and the line constructed, and the desire to have TECO seek another route. Although these concerns are genuine, impacts on property values is not a subject for consideration at this hearing. As discussed above in greater detail, the evidence demonstrates that adverse impacts from the low levels of electric and magnetic fields projected from the Project are not expected. No alternate corridors have been proposed for consideration by any party to this proceeding. Finally, some members of the public complained that they were unaware that a new transmission line corridor was being proposed until just before the hearing. However, the evidence shows that long before the certification hearing, information concerning this process was widely disseminated through advertisements, open houses, mass mailings, surveys, and meeting with regulatory agencies and local elected officials. Impact Upon the Environment The Project as proposed will have minimal environmental impact. Construction of the line within the proposed corridor will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The proposed corridor avoids or minimizes intrusion into the undisturbed wildlife habitats due to its collocation with existing linear facilities for almost its entire length. The current condition and relative value of function of the habitat in the proposed corridor is generally minimal from a wildlife ecology and protected species perspective. There are some areas with higher quality habitat. One is in the area south of Lake Thonotosassa. In that location, there is a natural gas pipeline corridor that already disturbs the area in the proposed corridor. In the area of the bald eagle's nest, clearing in the ROW would be limited to 25 to 100 feet in width. Also, the Conditions of Certification require extensive surveys and plans for wildlife protection. The area has experienced clearing and tree removal to accommodate development. Care was taken in routing the proposed corridor to avoid or minimize proximity of the corridor to known listed species locations, including routing inputs from wildlife agencies such as the FFWCC and the U.S. Fish and Wildlife Service (USFWS). Clearing of additional natural habitats and potential wetland impacts will be minimized. During the regional screening route selection process the known locations of bald eagle nests were identified and mapped. Members of the public pointed out at the open houses that there existed a previously unreported bald eagle nest in the area north of Jess Baldwin Road. This was subsequently verified and identified as a correct location of an eagle nest that had been previously unknown to the FFWCC and USFWS. When the nest was identified and located, the corridor was expanded up to 5,100 feet in this area to give TECO maximum flexibility in avoiding potential impacts to the nest as well as to existing homes in the area. TECO has begun a long-term monitoring program for this particular nest and this will be continued until such time as the applicant and the agencies deem it sufficient. The program is designed to monitor the activity of the eagles in the area with respect to successful breeding, successful rearing of the young, and the habitat usage and flight patterns from that nest. This information will be utilized in the selection of the ultimate ROW in this area to avoid any impacts to the nesting area. The USFWS and FFWCC establish buffers for limiting activity in proximity to an eagle's nest. The buffers are either 330 feet or 660 feet in diameter, depending on the level of construction activity that is to be carried out. In cases in which a more minimal level of construction is to be performed, a 660-foot buffer must be maintained if there is not visual buffer between the nest and the construction activity. A 330-foot buffer must be maintained at all times. If a visual buffer can be maintained in the area of this eagle's nest, the buffer size could be reduced below 660 feet, providing additional flexibility for the location of the ROW. This determination will be made by the USFWS and FFWCC. Construction of the line within the proposed corridor will not cause a significant adverse impact to the current condition and relative value of functions of the vegetative communities within the corridor. Much of the length of the corridor allows placement of the transmission line within or adjacent to existing linear features to take advantage of previous disturbances to vegetation. TECO will also minimize impacts to forested wetland vegetation through the use of restrictive clearing practices during both construction and maintenance. In the forested wetland portions of the ROW, trees and shrubs that have an expected mature height greater than fourteen feet and "danger trees," which are trees that could fall into the conductors and cause an outage, will be removed. Other vegetation will generally not be disturbed. In these areas, vegetation will be removed by hand, usually with chain saws or with low-ground-pressure equipment to reduce soil compaction and damage to ground cover. The removal of vegetation in forested wetlands will not significantly affect the vegetative root mat or soil surface conditions. The non- forested wetlands should not require any clearing. There will be some filling in wetlands associated with the placement of pole pads and access roads. However, TECO will minimize these impacts through a careful alignment of the ROW and the varying of span distances between poles. TECO will also install an appropriate number and size of culverts to properly maintain existing wetland hydroperiods along areas of fill in wetlands. Also, any unavoidable wetland impacts associated with the project will be mitigated in accordance with the Conditions of Certification. TECO has utilized information from the Hillsborough and Polk County Comprehensive Plans and the Department of State, Division of Historical Resources (DHR), to identify potential archeological and historical resources within the proposed corridor. A number of locations were identified as a result of the information and the Conditions of Certification require that a survey be performed when the actual ROW is located. If any artifacts are found the information will be submitted to the DHR for analysis and decisions will be made as to how to proceed. The proposed corridor contains the least potential impacts to known sites and the corridor allows ample opportunity for siting the ROW to avoid potential historic and archeological sites. In addition to comments from the public described in Finding of Fact 74, a number of members of the public expressed concern over the environmental impacts from the construction and maintenance of the transmission line. Some of those expressing concerns have residences or property in the area of the expanded corridor surrounding the eagle's nest. Although some of these individuals are within the corridor, it is not clear at this point that they will be near or adjacent to the ROW which is ultimately selected. The ROW is proposed to be within the expanded corridor in this area. The eagle's nest presents a constraint with a 330 or 660-foot buffer. Evaluations will be performed considering impacts to the community and homes, impacts to the environment, and costs. If the buffer is reduced to 330 feet this will assist in the routing of the ROW. As detailed above, TECO engaged in extensive public outreach, made efforts to avoid populated areas with the corridor location, and the Conditions of Certification require extensive measures to eliminate or minimize the potential impacts on wildlife and habitat. TECO will minimize any necessary cutting of trees in areas that do not already have an established ROW. The area of clearing will be limited to from 25 to 100 feet in width. The Project will comply with all applicable state, regional, and local nonprocedural regulations, including the wetland regulatory standards applicable to such projects. Balance of Need versus Impacts The Project effects a reasonable balance between the need for a transmission line as a means for providing abundant low cost energy and the impact upon the public and the environment resulting from the location of the transmission line corridor and the construction and maintenance of the transmission line. Conditions of Certification The design, construction, and operation of the line in the proposed corridor will comply with the Conditions of Certification set forth in Department Exhibit 4. The Conditions of Certification establish a post- certification review process through which the final ROW, access road, and structure locations will be reviewed by agencies with regulatory authority over the project for the purpose of monitoring for compliance with the Conditions of Certification. While the proposed corridor has few homes in close proximity to it and very limited wetland crossings, TECO has agreed to conditions of certification that further minimize land use and environmental impacts. For example, TECO has agreed that to the extent practicable it will locate its ROW to avoid the taking of homes, to collocate the ROW within or adjacent to existing ROWs, and to vary the length of the span between poles as appropriate to eliminate or reduce wetland impacts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Siting Board enter a Final Order approving Tampa Electric Company's Willow Oak-Wheeler-Davis 230 kV Transmission Line Application for Certification subject to the Conditions of Certification set forth in Department Exhibit 4. DONE AND ENTERED this 13th day of May, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 2008.
Findings Of Fact The Respondent, Florida Department of Health and Rehabilitative Services, is an agency of the State of Florida charged with the responsibility, inter alia, for setting and enforcing health and safety standards for hospitals located within the state. In furtherance of this function, the Department has adopted rules set out Chapter 10D-28, Florida Administrative Code. Among these rules are provisions which set standards for hospital construction which are designed to assure the fire and electrical safety of patients, staff and visitors to hospitals. The Department enforces its rules by licensing or certifying hospitals which comply with them, and by refusing licensure or certification to those which do not. The Department's Rule 10D-28.79, Florida Administrative Code, relates to codes and standards for the physical plant of new and existing hospitals. The rule does not set out code provisions, but rather adopts various construction and life safety codes by reference. Rule 10D-28.79(5) provides in pertinent part: The following codes and regulations are herein adopted by the licensing agency [the Department], and it shall be the responsibility of the sponsor [licensed hospitals] to consult such codes for compliance with all matters not specifically set forth in this chapter. Standard Building Code, 1976 edition, Group I, Institutional Occupancy. National Fire Protection Association No. 101, Life Safety Code 1973 Edition; Appendix B of this Code adopts several other NFPA standards, which shall be met . . . This rule became effective on January 1, 1977. Copies of the codes that were adopted by reference did not accompany the rules as the were filed with the Office of the Secretary of State. The Life Safety Code is a publication of the National Fire Protection Association (NFPA). Appendix B to the Code, which is referenced in the Department's Rule 10D-28.79(5)(b) is titled "Referenced Publications" and provides in part as 7 follows: The following publications are referenced by this Life Safety Code and thereby comprise a part of the requirements or recommendations to the extent called for by the Code or Appendix A, respectively. The Appendix goes on to list more than fifty publications, including the 1971 National Electric Code, which is another publication of the National Fire Protection Association. The crux of this proceeding is a single paragraph of this publication. Paragraph 517-51(a) sets an electrical performance standard to be met in hospital areas where "electrically susceptible patients" are housed. The paragraph provides: In electrically susceptible patient areas the maximum 60-hertz alternating-current potential difference between any two conducting surfaces within thee reach of a patient, or those persons touching the patient, shall not exceed five millivolts measured across 500 ohms under normal operating conditions or in case of any probable failure. The Department has interpreted its Rule 10D-28.79(5)(b) as adopting as performance standards the provisions of all of the codes set out in Appendix B of the 1973 Life Safety Code, including the 1971 National Electric Code, and paragraph 517-51 thereof. There are conflicting provisions in the various Life Safety and Electrical Codes that the Department has adopted, and contends that it has adopted through its adoption of Appendix B of the 1973 Life Safety Code. The Department resolves these conflicts by requiring hospitals to develop solutions which will meet the provisions of all of the codes. The provisions of paragraph 517-51(a) of the 1971 National Electric Code are considerably more strict than similar provisions set out in later editions of the National Electric Code, including the 1975, 1978 and 1981 Codes. The Department contends that hospitals must comport with the most strict of these requirements, i.e. the ones set out in paragraph 517-51(a) of the 1971 Code. The Petitioner Memorial Hospital of Jacksonville is an accredited, licensed hospital in the State of Florida. Memorial Hospital is presently in the process of constructing a three million dollar renovation, including a renovation to its critical care unit. In order to comply with the provisions of paragraph 517-51(a) of the 1971 National Electric Code, Memorial Hospital would need to expend approximately $55,000 that would not need to be expended in order to comply with provisions of other codes. Memorial Hospital has requested a variance from the Department from the requirement of complying with this provision. The Petitioner St. Vincent's Medical Center is an accredited, licensed hospital located in Jacksonville, Florida. St. Vincent's Medical Center is currently involved in a project to renovate and add space to its existing facilities, including a thirty-two bed critical care unit. In order to comply with the provisions of paragraph 517-51(a) of the 1971 National Electric Code, St. Vincent's would be forced to expend from $75,000 to $80,000 which would not be necessary in order to comply with the provisions of other codes. St. Vincent's Medical Center has requested a variance from the requirements of that provision from the Department. Halifax Hospital Medical Center is an accredited, licensed hospital located in Daytona Beach, Florida. Halifax Hospital has been advised that it would be required to comply with the provisions of paragraph 517-51(a) of the 1971 National Electric Code in renovating and expanding its critical care unit. While the precise cost of complying with the provision cannot be determined, it is evident that Halifax Hospital would be required to expend more money to comply with the provision than would be required to comply with other provisions. The Petitioner Shands Teaching Hospital and Clinics, Inc., is an accredited, licensed hospital located in Gainesville, Florida. Shands Hospital is presently in the process of expanding and renovating its facility, including its critical care unit. Shands Hospital has been advised by the Department that it would need to comply with the provisions of paragraph 517-51(a) of the 1971 National Electric Code in connection with the critical care unit. The cost of complying with this provision would be approximately $140,000 over the cost of complying with other provisions. No evidence was presented with respect to the Petitioner Variety Children's Hospital. The Department's interpretation of its Rule 10D-28.79 as having adopted by reference the performance standard set out at paragraph 517-51(a) of the 1971 National Electric Code is in error. While the Department's rule references Appendix B to the 1973 Life Safety Code, it provides only that that Appendix adopts several other standards which must be met. While the Appendix references the 1971 National Electric Code, it adopts only the provisions of the 1971 National Electric Code and the other referenced publications to the extent that they are otherwise adopted in the 1973 Code or Appendix A thereto. Paragraph 517-51(a) of the 1971 Code is not referenced in Appendix A to the 1973 Life Safety Code, nor in any other pertinent place. The Department has, albeit erroneously, interpreted its rules as adopting paragraph 517-51(a) of the 1971 National Electric Code. This interpretation is being uniformly applied by the Department, and therefore itself constitutes a rule. The interpretation has not itself been adopted as a rule other than through the provisions of Rule 10D-28.79. The 1971 National Electric Code was not filed with the Office of the Secretary of State when Rule 10D-28.79 was filed, and is not generally available. It has been replaced by subsequent editions of the National Electric Code and is no longer generally available to members of the public at large. The effect of the Department's interpretation of its rules as adopting the standard set out in paragraph 517-51(a) is to require hospitals to install "isolated power sources" in critical care units. The standard by its terms applies to areas of a hospital where electrically susceptible patients are housed. Such patients are housed in operating rooms, rooms where highly flammable anesthetics are used, and in critical care units. Other standards adopted by the Department expressly require installation of isolated power sources in operating rooms and in rooms where flammable anesthetics are used. The fact that these are "wet" areas and areas where flammable materials are kept justifies those requirements. These conditions do not apply to critical care units. The electrically susceptible patients who are housed in critical care units are patients who have catheters inserted into their bodies, and extensions from the catheters protruding outside their bodies. The most common such patient is a patient with a pacemaker attached to his or her heart. With such patients an electrical device outside the body is connected through a catheter into a vein, and eventually to an area close to or actually at the heart. These patients are electrically susceptible because low levels of electrical current that might flow through the catheter could kill the patient. A power source of less than 100 millivolts if attached to the catheter in such a way that current could flow through the catheter could have the effect of fibrillating a patient's heart and killing him. This is much less power than would do any damage to a person under normal conditions, and considerably less voltage than would commonly result from short circuits or other malfunctions in equipment powered by conventionally grounded power sources. The amount of voltage that would be available given a fault or short circuit condition can be reduced through use of isolated power systems. Such a system includes a transformer which provides a demarcation between the incoming or primary power line, which is conventionally grounded, and the outgoing or secondary line. The secondary line is isolated from ground, neither wire being connected to ground. The secondary line runs into circuit breakers then to receptacles about the room. All of this equipment is installed in an electrical box. A monitor or gauge is installed on the face of the box. The monitor visually displays the extent of degradation of the secondary line, i.e. , whether the secondary line has become grounded. By observing the monitor, it is possible to avoid grounding a patient so that electrical currents cannot pass through the patient. The Department maintains that the 1971 Code standard can be met only through installation of isolated power sources. Under some fault circumstances this is correct, and, no other practical technology exists to meet the standard under any fault circumstances. Imposition of the standard set out at paragraph 517-51(a) of the 1971 National Electric Code is arbitrary and unreasonable. In the first place, no known technology can meet the standard. Even an isolated power system will meet the standard only in the case of line-to-ground faults. In cases where ground is lost, the isolated power system will not stay within the standard. The Department's action in requiring hospitals to install line isolation monitors thus meets the standard only under one fault circumstance, and it is not the one that most commonly occurs. Even as to those faults for which the line isolation monitor will accomplish the meeting of the 1971 standard, there is no valid reason for requiring their installation. The goal of protecting an electrically susceptible patient from electrocution can be easily and reliably accomplished by protecting the catheter from contact with electrical power sources. Basically, in order to create an electrical incident, or a shock, one part of a person's body has to touch some metal, another part has to touch some metal, and some current has to flow. This can be broken down into eight steps that would need to occur for a patient to be shocked: First, a power source or power line has to run close to the patient. Second, the line has to be exposed and touch metal. Third, the metal has to become live. Fourth, the metal must become ungrounded. Fifth, the patient has to touch the metal directly or through some conductive path. Sixth, a second conductive surface (more metal) has to be available. Seventh, the patient has to touch it. Eighth, the current has to be at a level that will cause harm. If any of these things does not happen, there will not be a shock. During the 1960's and early 1970's, the fact that very low levels of electrical current could cause fibrillation of the heart was not understood. This fact has been understood now for some time, and hospitals have looked to avoid placing patients in circumstances where the eight steps can occur. Looking at the problem in this manner allows hospitals to focus on what factors can easily be eliminated. Current practice is not to ground things which do not have to be grounded. It had previously been the practice to ground all of the metal around the patient, creating a "bathtub" effect. The line isolation monitor serves to eliminate the eighth of these steps by, in at least one fault circumstance, allowing only very low levels of current to flow. The other steps can be more easily eliminated. One means of accomplishing that is to isolate the power source to the catheter. Thus, battery powered equipment is now typically used, rather than equipment that attaches directly to the main power source. Furthermore, catheters protruding from a patient's body are now insulated, and critical care unit personnel are instructed not to touch them unless they are wearing rubber gloves. The taking of these steps eliminates the possibility for electrocution of an electrically susceptible patient through low voltage currents (microshock). There have been no documented deaths of patients through such microshock anywhere in the world since 1972. Even in that instance, which occurred in the United Kingdom, the accident did not happen in a critical care unit, but rather in an operating unit. The circumstances of the incident were that a hospital had been callously negligent in allowing its equipment to be modified so that inadequate switches were attached to an operating table and open current lines were exposed. Blood from a patient flowed to the open lines, and electrocution resulted. This incident bears no relevance to the instant rule. In the first place, it occurred in an operating room, where isolated power systems are properly required. In the second place, the hospital staff was incredibly negligent about its procedures and equipment. In addition to the fact that isolated power systems no longer accomplish any valid purpose in preventing microshock, there are disadvantages to their use. These disadvantages include: (1) Line isolation monitors limit the amount of power that is available at bedside in critical care units. There is a need for considerable available power at bedside, and line isolation monitors limit available power, and can contribute to power interruptions. (2) A component is added to the power distribution system so that an additional point of failure exists. (3) The isolation system is installed at the head of beds in a critical care unit, thus interfering with the possibility of putting other equipment in that place. (4) Isolated power systems with their transformers and monitors can produce an annoying hum. (5) Isolated power systems give off heat. (6) Line isolation monitors which go with isolated power systems can cause interference with other devices, such as electroencephalograms and electrocardiograms. (7) Several models of isolated power systems, including those required under the 1971 National Electric Code, require special electrical receptacles, thus limiting the use of various appliances in a critical care unit. (8) Personnel have to be trained as to the nuances of isolated power systems, and as to the meaning of readings on the monitor. (9) Isolated power systems can give personnel a false security and cause carelessness in preventing the factors which could cause and electrical current to flow through a catheter. Except for electrically susceptible patients as described herein, there is no reason to require installation of isolated power sources in critical care units. Petitioners have contended that other regulations of the Department which relate to the setting of fire protection standards in hospitals constitute invalid exercises of delegated legislative authority. No evidence was presented as to how these standards specifically affect any of the Petitioners. No evidence was presented to establish that any of the Petitioners are in any way injured or adversely affected by the rules.
The Issue The issue for determination is whether either of the proposed transmission line corridors for the proposed Lake Agnes-Gifford 230 kV transmission line comply with the criteria in Section 403.529(4), Florida Statutes, and if so, which of those corridors has the least adverse impacts with respect to the criteria in Section 403.529(4), Florida Statutes, including cost. If one of the corridors proper for certification is determined to have the least adverse impacts, the issue is whether certification of that corridor should be approved in whole, with modifications or conditions, or denied. See § 403.529(4) and (5), Fla. Stat. If the two corridors are found to be substantially equal in adverse impacts regarding the criteria in Section 403.529(4), Florida Statutes, including costs, the Siting Board shall certify the Joint Applicants' Preferred Corridor. See § 403.529(5)(c), Fla. Stat.
Findings Of Fact Based upon all of the evidence the following findings of fact are determined: Parties The TLSA establishes TECO, Progress Energy, and the Department as parties to this proceeding, and the following became parties upon their timely filing of a notice of intent to be a party, which each has done: Florida Department of Transportation (DOT), Department of Community Affairs, and the Southwest Florida Water Management District (SWFWMD). See § 403.527(2), Fla. Stat. The following agencies did not participate in the proceeding and did not file a notice of intent before the thirtieth day prior to the certification hearing and each one is deemed to have waived its right to be a party: the PSC; the Florida Fish and Wildlife Conservation Commission; the Department of Agriculture and Consumer Services, Division of Forestry; Osceola County; Polk County; Reedy Creek Improvement District; Department of Health; Department of State, Bureau of Historic Preservation; East Central Florida Regional Planning Council; and Central Florida Regional Planning Council. See § 403.527(3), Fla. Stat. Orange County, Orlando Utilities Commission (OUC), and the SFWMD (during the public comment portion of the hearing only) appeared at the hearing. Pursuant to Section 403.527(2)(c)3., Florida Statutes, any person whose substantial interests are affected and being determined by the proceeding shall be parties to the proceeding upon the filing of a notice of intent to be a party. By stipulation of the parties, having filed a notice of intent to be a party or a petition to intervene, OIC, OUC, Blackwater Associates, Ltd., and Mountain Funding, LLC, are parties to the proceeding without the need to introduce evidence as to substantial interests affected and being determined by the proceeding. The Corridors Proper for Certification The Applicants' Preferred Corridor exits the existing Lake Agnes substation in northeastern Polk County and extends east-northeast approximately 18.9 miles within, adjacent to, or in proximity to the OUC McIntosh-Taft transmission line right- of-way (ROW), which generally runs parallel to Interstate 4 (I-4), across Polk and Osceola Counties. It then turns north and crosses Loughman Road (Polk County Road 54, now known as Ronald Reagan Boulevard), Old Lake Wilson Road, and I-4, and continues north along the Daniel Webster Western Beltway, also known as State Road 429 (SR 429), co-locating in the SR 429 ROW, for approximately 8.6 miles. The Preferred Corridor then turns west and exits the SR 429 ROW, just north of Western Way and enters into PEF's existing easement, crossing Hartzog Road into the planned Gifford substation in southwestern Orange County. The OIC Alternate Corridor is designed to avoid the western edge of the OIC development in Osceola County and commences at the Applicants' Preferred Corridor 2,000 feet south of Funie Steed Road/Oak Island Road on the west side of SR 429, where it turns northwest and proceeds approximately 2,000 feet, and then turns northeast and proceeds approximately 2,000 feet, in an approximate horseshoe shape, to rejoin the Applicants' Preferred Corridor along SR 429. A series of aerial photographs showing both proposed corridors is found at Applicants' Exhibit 21; a map showing both proposed corridors is also found at Department Exhibit 3, page 2. The Application Project Description An electrical transmission line is designed to transport large amounts of electrical power from a generating facility or substation to one or more substations. At the substation, the electricity voltage can be either increased or reduced for further transport or for distribution directly to end users. The Applicants are seeking certification of their Preferred Corridor between the existing Lake Agnes substation and the planned Gifford substation, within which the Applicants will ultimately construct the transmission line on a narrow ROW. Once all property interests in the ROW are acquired, the boundaries of the certified corridor will shrink to the typical width of the 25 to 100-foot wide ROW. In some cases, the ROW will be co-located with an existing transmission ROW that is 145 feet wide. The Project is a joint venture between the Applicants. Of the approximately 27.5 miles of the proposed Lake Agnes- Gifford Line, approximately 10.5 miles are in TECO's service territory and approximately 17 miles are in PEF's service territory. The objectives for the Project are to provide a 230 kV electrical path that connects the existing Lake Agnes substation to the planned Gifford substation, providing a reliable path for the transmission line and reducing the impacts to the community and the environment while maintaining the integrity of Florida's transmission grid. Need for the Line The PSC determined that a new 230 kV transmission line between the existing Lake Agnes substation and the planned Gifford substation is needed, taking into account the need for electric system reliability and integrity and the need to provide abundant, low cost electrical energy to assure the economic well-being of the citizens of the State. The objectives of the Project are to serve the increasing electrical load in the region, to maintain reliability of electrical service within the region, and to minimize future overhead exposure outages within the regional transmission system. The PSC found that the existing Lake Agnes substation and the planned Gifford substation constitute the starting and ending points for the proposed line. The PSC noted that the additional transmission capacity is needed to be in service by June 2011. The PSC also recognized that the Siting Board will make the final determination concerning the route selection upon consideration of the factors and criteria specified in Section 403.529, Florida Statutes. Transmission Line Design The typical design for the transmission line will be a single-shaft tubular steel or spun concrete structure, with the capability of accommodating an additional 230 kV circuit. The poles are proposed to range in height from 85 feet above grade to 175 feet above grade, with the conductors framed in a vertical configuration. Three conductor phases will be used, and each of the three conductors is anticipated to be a bundled 954 Aluminum Conductor Steel Support/Trapezoidal Wire. The conductor is 1.08 inches in diameter with a weight of approximately 1.23 pounds per foot. There will also be a smaller overhead ground wire to provide lightning protection for the transmission circuit. The maximum electrical current rating is 3,000 amperes. The open span length between structures will typically vary between 500 and 1,000 feet, depending on site-specific conditions. Both pole height and span length may vary to accommodate various site-specific conditions that may be encountered, to take advantage of the terrain, to potentially address community concerns, and to avoid environmentally sensitive areas. Existing roadways, access roads, and structure pads will be used for construction and maintenance access to the transmission line wherever practicable. Access roads and structure pads will be constructed only where necessary to provide access for construction, maintenance, and emergency restoration. Where constructed, the typical road top width will be 16 feet, with a 2-to-1 side slope, and a typical elevation of feet above the seasonal high water line. Structure pads will have variable sizes but are typically 75 feet by 150 feet. The structure pads are designed to provide a dry, stable surface for staging material and for equipment setup. Culverts may be installed beneath access roads and structure pads with the specific design reviewed by the appropriate regulatory agencies. The design will be similar to previously approved designs. The proposed design of the transmission line complies with good engineering practices. It will be designed in compliance with all applicable design codes and standards, including the North American Electrical Reliability Corporation's standards, the National Electrical Safety Code, the noise ordinances of Polk, Orange, and Osceola Counties, the Department's regulations on electric and magnetic fields, the Florida Department of Transportation's Utility Accommodation Manual, the standards of the American Society of Civil Engineers, the Institute of Electrical and Electronics Engineers, the American Society of Testing and Materials, the American Concrete Institute, and the American National Standards Institute, the requirements of applicable regulatory agencies, as well as the Applicants' own numerous transmission design standards. There are no applicable designs or standards with which the transmission line will not comply. Transmission Line Construction The initial phase of construction is to survey and clear the ROW. Because much of the length of the corridor is co-located, that is, grouped or placed side by side, with existing roads and utility facilities, the need for clearing has been minimized. Where existing ROW widths are insufficient for placement of the transmission Line or where the transmission line will go cross-country, additional clearing will be necessary. Upland areas will be cleared to ground level. In forested wetlands, the Applicants have committed to use only restrictive clearing methods. Restrictive clearing will be used in wetlands to clear vegetation from the transmission line centerline to 50 feet on each side of the outer conductors and in work areas approximately 64 feet by 150 feet around structure sites. In wetland areas, low-growing herbaceous vegetation can remain within the ROW; stumps in the area beyond 20 feet on either side of the outer conductors will be left in place to preserve the root mat. During clearing, best management practices will be utilized to control erosion. After the ROW is cleared, any necessary access roads and structure pads will be constructed. The Applicants have committed to use existing access roads and public roads for access to the transmission line to the extent practicable. Where existing access is not available, the Applicants have committed to construct access roads and structure pads in a manner which reduces or eliminates adverse impacts to on-site and adjacent wetlands to the extent practicable. The next phases of construction involve the physical transmission line construction, including material hauling and spotting, pole setting and framing, and conductor stringing activities. The newly-constructed structure pads are used to provide a stable and dry platform for the material staging and equipment. The foundations are constructed. The pole materials and other materials will be hauled to each specific structure site. The pole sections will then be jacked together on the ground. The insulators and hardware will then be framed up on the ground. Next, the top pole section will be lifted by crane and placed on the foundation base that was previously set. Poles will typically be installed 30 to 50 feet below ground. The conductor stringing activities occur next. Reels of wire and wire tensioning equipment will be brought to the job site and set up at dead-end locations. The construction crew will install stringing blocks or pulleys on each structure where the conductor will be pulled through. Once the conductors are pulled in, the conductor will be secured at the dead-end locations, and the wires will be sagged and tensioned appropriately to maintain vertical clearances. Finally, the conductor is secured to the insulator attachment and the pulleys and blocks are removed from each structure. The final stage of construction is the cleanup stage. This involves a final inspection of the area to remove the silt fences and hay bales, to clean up excess spoils from the foundation excavations, to repair or replace fencing, and to replace and secure gates. Throughout construction, in areas where soil is disturbed, sedimentation management techniques, such as the use of silt screens and hay bales, or other best management practices, will be employed as necessary to minimize potential impacts from erosion and sedimentation. While each phase of construction will typically take up to two weeks at each structure location, the construction crew will normally be active for two to four days at a typical structure location. Construction for the entire project is expected to last approximately eighteen months. Methodology for Choosing Applicants' Preferred Corridor The Applicants established a multidisciplinary team to identify a corridor for the transmission line. The role of this team was to select a certifiable corridor based on an evaluation of environmental, land use, socioeconomic, engineering, and cost considerations. The multidisciplinary team was composed of experts in land use, engineering, and environmental disciplines and included representatives of the two utilities, outside legal counsel, and various consultants. Corridor selection methodologies were designed to be integrative of multidisciplinary siting criteria, regional and objective in decision-making, sensitive to social and environmental conditions, responsive to regulatory requirements, reflective of community concerns and issues, and capable of accurate documentation and verification. The team engaged in four major steps: to establish and define the project study area; to conduct regional screening and mapping; to select and evaluate candidate corridors using both quantitative and qualitative analysis; and finally to select the preferred corridor and identify the boundaries of that corridor. The team's work included a number of field studies, data collection, internal meetings, and meetings with the public. In defining the project study area, the multidisciplinary team identified the starting and ending points for the proposed transmission line, the locations of existing and planned substations in the area, the service boundaries of the utilities, and major roads in the area. In regional screening, the multidisciplinary team gathered data from a variety of sources to identify the different types of opportunities and potential constraints for siting a transmission line in the project study area. The multidisciplinary team developed a regional screening map, received in evidence as Applicants' Exhibit 24, which was prepared by the team using generally publicly available information including Geographic Information System (GIS) mapping. The map data were collected from various state agencies and local governments; information was gathered from the Florida Geographic Data Library (which distributes GIS data), the Florida Natural Areas Inventory, and most of the agencies involved in this proceeding. Various environmental and land use data were mapped as were existing infrastructure, archaeological/historical sites, and information gathered on roads, railroads, rivers, waterbodies, and the like. These represented primarily potential siting constraints or siting issues within a particular study area. The regional screening map was then used to identify route segments. Using the regional screening information, the multidisciplinary team selected corridor segments for consideration using quantitative analysis of the data gathered in the earlier stages of the process. The team then evaluated the corridor segments using both quantitative and qualitative criteria. The multidisciplinary team gathered data on siting opportunities and constraints within the study area and identified sixty line segments which could be assembled into a total of 1,187 potential candidate corridor combinations. Using a predefined set of quantitative environmental, land use, and engineering criteria, each corridor segment was measured for those resources. Using the weights developed by the team for each criterion, the weights were applied and tabulated for all candidate corridor segments. The candidate corridors were then ranked in order from best to worst based on the quantitative weighted scores. Once the rankings were performed, the five highest- ranked candidate corridors were subjected to further quantitative and qualitative evaluation. These candidate corridors were evaluated using predetermined qualitative criteria which do not lend themselves easily to quantification, such as safety and buildability. At the completion of the evaluation, the multidisciplinary team deliberated and ultimately chose a preferred corridor. Once the preferred corridor was selected, the multidisciplinary team defined the boundaries of the Applicants' Preferred Corridor. The team developed corridor boundaries of varying widths - - narrowing the corridor to avoid siting constraints or widening the corridor to take advantage of siting opportunities. Public Involvement in the Corridor Selection Process The Applicants engaged in an extensive public outreach program, the purpose of which was to inform and educate the public about the project and to invite public input from the public in the corridor selection process. The public outreach program included a series of direct mailings, surveys, open houses, extensive communications with regulatory agency officials and local elected officials, a project web page by both Applicants and the Department, a toll-free telephone number, and newsprint advertisements. There were two direct mailings as a part of the public outreach program. The first mailing went to approximately 7,900 customers with a map of the project area, a fact sheet, and an invitation to one of three open houses to be held. One open house was conducted in Polk County, while two open houses were conducted in Lake County in close proximity to the project area. Following the completion of the open house process, a second mailing was sent to approximately 6,000 customers identifying the preferred corridor chosen during the evaluation process. The names of the mailing recipients were obtained by identifying the properties located within certain distances in both directions from the centerline of the candidate corridors. The Property Appraisers' Offices of Polk, Osceola, Orange, and Lake Counties were a source for this information. The mailings were also sent to the homeowners' associations along the candidate corridors. The Applicants plan additional mailings if a corridor for the transmission line is certified. Additional informational open houses will also be held, and the transmission structures and potential locations will be identified at that time so the public can be informed. As part of the public outreach, the project also ran a series of five advertisements in local newspapers. The first series of advertisements notified the public of the three open houses: a newspaper advertisement was run on August 9, 2007, in The Lakeland Ledger, The Winter Haven News Chief, and The Orlando Sentinel for the first open house, and for the second and third open houses, a newspaper advertisement was run in The Lakeland Ledger, The Hometown Sun, The Winter Haven News Chief, The Report, West Orange Times, South Lake Press, Osceola News- Gazette, and The Orlando Sentinel. The second advertisements notified the public of the filing of the Application in December 2007 in The Tampa Tribune, The Lakeland Ledger, The Winter Haven News Chief, The Osceola- News Gazette, and The Orlando Sentinel. In March 2008, a third series of advertisements was run in The Orlando Sentinel, The Lakeland Ledger, and The Osceola News-Gazette to notify the public of the certification hearing. In June 2008, a fourth series of advertisements was run notifying the public of the rescheduling of the certification hearing; this advertisement was published by OIC in the Osceola County section of The Orlando Sentinel and this advertisement was published by the Applicants in The Lakeland Ledger and the Orange County section of The Orlando Sentinel. Finally, in August 2008, a notice regarding the second week of hearing was published in The Osceola News-Gazette, The Lakeland Ledger, and The Orlando Sentinel. Copies of the Application were maintained for public inspection during the certification process at the TECO offices in Tampa and Winter Haven and at the PEF offices in St. Petersburg, Lake Wales, and Lake Buena Vista. In addition, a copy of the Application was provided to the Hart Memorial Central Library and Ray Shanks Law Library in Kissimmee, the Orlando Public Library in Orlando, the Bartow Public Library in Bartow, and the Auburndale Public Library in Auburndale. The public outreach program was integrated into the corridor selection process. The public's input included information about anticipated road expansions and modifications as well as proposed residential developments in the project area. A few members of the public complained at the public hearing that they were unaware that a new transmission line corridor was being proposed until just before the hearing. However, the evidence shows that long before the certification hearing, information concerning this process was widely disseminated through advertisements, open houses, mass mailings, surveys, and meeting with regulatory agencies and local elected officials. See Findings of Fact 33 and 35-37, supra. Detailed Description of the Applicants' Preferred Corridor The Applicants' Preferred Corridor provides significant opportunities for co-location with other linear facilities such as roads, a natural gas pipeline, and other transmission lines. Co-location is an important benefit from the perspectives of engineering, ecology, and land use because it results in reduced impacts from the new transmission line, reduced ROW needs (or land acquisition needs) for the new line, reduced need for new clearing of land, reduced impacts to wetlands by co-locating with previously-disturbed areas, and reduced incremental impacts by co-locating with an existing linear facility. The Preferred Corridor exits the existing Lake Agnes substation and extends east-northeast approximately 18.9 miles within, adjacent to, or in proximity to the OUC McIntosh-Taft transmission line ROW, which generally runs parallel to I-4, across Polk and Osceola Counties. The Applicants' Preferred Corridor crosses Loughman Road (now known as Ronald Reagan Boulevard) and Old Lake Wilson Road. In this area, the land use includes water utility infrastructure in addition to I-4 and the OUC transmission line. Near the Lake Agnes substation, the land uses include some individual residences, as well as undeveloped land now used as pasture, citrus groves, and the Hilochee Wildlife Management Area. The land uses along I-4 and the OUC transmission line include residential development, undeveloped land north of Ronald Reagan Boulevard and south of Champions Gate and U.S. Highway 27, and the Hilochee Wildlife Management Area. In the area of U.S. Highway 27, there is considerable residential development and mixed-use development to the east and west of the Preferred Corridor. The ecological communities in this area include the Green Swamp Wildlife Management Area (also known as Green Swamp East Tract) north of I-4 and the Hilochee Wildlife Management Area. The ecological communities within the Preferred Corridor include residential areas, improved pastures, forested wetlands, pine flatwoods, and freshwater marsh. At the I-4 and SR 429 interchange, the Preferred Corridor turns and continues north along the Daniel Webster Western Beltway (SR 429), co-locating in the SR 429 ROW for approximately 8.6 miles. The land uses beginning at the I-4 and SR 429 interchange and northward to U.S. Highway 192 include residential communities on both the east and west sides of the Preferred Corridor, a large regional wastewater treatment facility on the west side of the Preferred Corridor, and undeveloped land, as well as resort, residential, and commercial development. Between U.S. Highway 192 and the planned Gifford substation, the land uses include a number of mixed-use and residential developments and golf course communities on the east and west side of the Preferred Corridor, as well as undeveloped land that is used for agricultural purposes and as part of wetland systems. The ecological communities in this area include the large Davenport Creek Swamp to the west of SR 429 and Reedy Creek to the east of SR 429; ecological communities within the Preferred Corridor include citrus, improved pasture, pine and pine oak forest, freshwater wetlands, and forested wetlands. The Applicants have agreed to adjust the eastern corridor boundary in the area south of Funie Steed Road/Oak Island Road and north of the southern boundary of the OIC residential development to be 55 feet east of the edge of the SR 429 ROW, rather than the originally-proposed 100 feet east of the edge of the SR 429 ROW. This adjustment was made at the hearing in response to concerns raised by OIC. By making this adjustment, the impact on the homes in the OIC community will be substantially diminished. The Applicants' Preferred Corridor then turns west and exits the SR 429 ROW just north of Western Way and enters into PEF's existing easement, crossing Hartzog Road into the planned Gifford substation. The land use in this area of the planned Gifford substation is predominantly additional utility infrastructure associated with wastewater treatment facilities. The width of the Preferred Corridor varies along its entire length to provide flexibility within the corridor to avoid or minimize impacts to such areas as large wetland areas, to provide flexibility at large road intersections, and to take advantage of existing land patterns, property boundaries, and linear facilities. OIC's Application for Alternate Corridor Selection of the OIC Alternate Corridor Mr. von Behren indicated in testimony that he and fellow board members of the OIC Community Owners Association selected the OIC Alternate Corridor. Unlike the Applicants' Preferred Corridor, the OIC Alternate Corridor was selected by OIC without any public outreach to obtain input from the community. OIC did, apparently, pay attention to the property interests of OIC. No OIC property is traversed by, or adjacent to, the OIC Alternate Corridor; however, the OIC Alternate Corridor bisects the existing, nearby residential Emerald Island development. Detailed Description of OIC Alternate Corridor The OIC Alternate Corridor is located in the Osceola County portion of the Project and commences at the Applicants' Preferred Corridor 2,000 feet south of Funie Steed Road/Oak Island Road on the west side of SR 429, where it turns northwest and proceeds approximately 2,000 feet, and then turns northeast and proceeds approximately 2,000 feet, in an approximate horseshoe shape, to rejoin the Applicants' Preferred Corridor along SR 429. The land uses and ecological communities within the SR 429 portion of the OIC Alternate Corridor were described above in Finding of Fact 42, supra. The land use of the OIC Alternate Corridor where it deviates from the Applicants' Preferred Corridor is undeveloped lands between two components of the Emerald Island residential development. The undeveloped lands include pasture, shrub and brushland, and undisturbed, undeveloped freshwater marsh and forested wetlands. A portion of these wetlands provide water treatment and storage functions for the Lake Tohokepaliga Water Authority and are held within a conservation easement and subject to a water use permit. Design and Construction of Transmission Line within OIC Alternate Corridor The design and construction techniques described in Findings of Fact 13 through 23 will be the same if the transmission line is constructed, operated, and maintained in the OIC Alternate Corridor. The parties have stipulated that the transmission line can be constructed, operated, and maintained in the OIC Alternate Corridor in compliance with the regulatory and industry standards listed in Finding of Fact 16. Agencies' Review of Corridors Proper for Certification and Resulting Determinations State, regional, and local agencies with regulatory authority over the Project reviewed the Application and submitted to Department reports concerning the impact of the Project on matters within their respective jurisdictions, as required by Section 403.526(2), Florida Statutes. Eleven regulatory agencies reviewed the Application, and nine reviewing agencies submitted reports on the Project, and have proposed Conditions of Certification. None of the agencies involved in the review process recommended that the proposed corridor be denied or modified. On May 30, 2008, the Department issued its Written Analysis on the Project, incorporating the reports of the reviewing agencies and proposing a compiled set of Conditions of Certification. The Department recommended that the Applicants' Preferred Corridor be certified subject to appropriate conditions of certification. Three reviewing agencies submitted supplemental reports on the OIC Alternate Corridor on or before June 20, 2008, again proposing Conditions of Certification. On July 7, 2008, the Department issued its Supplemental Written Analysis on the Project, including the OIC Alternate Corridor, incorporating the supplemental reports of the reviewing agencies and proposing a comprehensive set of Conditions of Certification. The Department did not recommend approval of the OIC Alternate Corridor, although it found the alternate corridor to be certifiable. In its Supplemental Written Analysis, the Department stated: Given the alternate corridor is likely to have a higher impact on the environment as well as additional cost, the Department does not find the alternate corridor to be superior to the preferred corridor, although either corridor is ultimately certifiable. Department Exhibit 3, page 4. Whether and Extent to Which Each Corridor Will Comply with Criteria in Section 403.529(4), Florida Statutes Ensure Electric Power System Reliability and Integrity The PSC decided that there are regional transmission system limitations in the I-4 corridor between Polk County and the greater Orlando area due to projected load growth in the 2008-2011 timeframe. The PSC found that the new 230 kV line is needed by June 2011 to preserve electric system reliability and integrity in order to: provide additional transmission transfer capability along the I-4 corridor to move electricity generated in the Polk County region to load centers in the Greater Orlando area in a reliable manner consistent with the North American Electric Reliability Council (NERC) and the Florida Reliability Coordinating Council (FRCC) and other applicable standards; b) serve the increasing load and customer base in the projected service area; and (c) potentially provide for another electrical feed via a separate Right of Way (ROW) path, thereby reducing the impact of a loss of the existing transmission facilities on a common ROW. The PSC further decided that the transmission line is the most cost-effective and efficient means to both increase the capability of the existing 230 kV network and serve the increasing load and customer base in the Central Florida region. The transmission line can be constructed, operated, and maintained in either the Applicants' Preferred Corridor or the OIC Alternate Corridor to provide electric power system reliability and integrity. Even so, the evidence shows that the Applicants' Preferred Corridor better provides electric power system reliability and integrity than does the OIC Alternate Corridor because the Applicants' Preferred Corridor will involve a shorter length of line and because the Applicants' Preferred Corridor will involve fewer maintenance issues and access issues. The Applicants' Preferred Corridor is shorter by 1,472 feet than the OIC Alternate Corridor. Unnecessary length added to a transmission circuit introduces further exposure to the forces of nature which could impact reliability of a transmission line. The greater the line length, the greater the exposure or risk to reliability. The OIC Alternate Corridor also involves additional maintenance issues and access issues not raised by the Applicants' Preferred Corridor. For example, there is a risk of flooding because some of the areas within the OIC Alternate Corridor are used for overflow for nearby retention ponds. This flooding could cause an access problem if emergency or routine repairs or maintenance were needed. Meet the Electrical Energy Needs of the State in an Orderly, Economical and Timely Fashion The transmission line can be constructed, operated, and maintained in either the Applicants' Preferred Corridor or the OIC Alternate Corridor to meet the electrical energy needs of the State in an orderly, economical, and timely fashion. Nevertheless, the Applicants' Preferred Corridor better meets the State's electrical energy needs in an orderly, economical, and timely fashion than does the OIC Alternate Corridor because the OIC Alternate Corridor adds significant cost to the overall project and long-term costs associated with operation and maintenance. The OIC Alternate Corridor is estimated to cost $4.4 million more for construction than the Applicants' Preferred Corridor. The cost differential is caused by the need for more easement area, more access roads, the nature of the soils, the foundation requirements, the heavy angle requirements, and more wetlands mitigation of the OIC Alternate Corridor. For example, because the OIC Alternate Corridor is primarily located in wetlands, the OIC Alternate Corridor will require larger poles and larger pole foundations, which involve higher costs. In addition to the $4.4 million construction cost differential, the OIC Alternate Corridor will also involve additional maintenance costs throughout the life of the transmission line because there will be a higher cost and effort required for vegetation management and access road maintenance in the OIC Alternate Corridor than will be required for the Applicants' Preferred Corridor. Comply with the Applicable Nonprocedural Requirements of Agencies Construction, operation, and maintenance of the transmission line within either the Applicants' Preferred Corridor or the OIC Alternate Corridor will comply with applicable nonprocedural requirements of agencies. Electrical and Magnetic Fields The transmission line can be constructed, operated, and maintained in either the Applicants' Preferred Corridor or the OIC Alternate Corridor in compliance with the Department's standards for Electric and Magnetic Fields in Florida Administrative Code Rule Chapter 62-814, which limit the electric and magnetic fields associated with new transmission lines. The Applicants propose to use four different configurations for the transmission line depending upon the location. The options include a 230 kV single circuit on a 100- foot ROW, a 230 kV single circuit on the 185-foot ROW including the existing OUC McIntosh-Taft 230 kV line, a 230 kV single circuit roadside, and a 230 kV single circuit roadside with an additional 35-foot easement including the existing Boggy Marsh- Gifford and Four Corners-Gifford 69 kV lines. For each of these configurations, the Department's rule requires that the electric and magnetic fields (or energy forces) within the ROW and at the edge of the ROW be calculated to ensure compliance. The electric field is a field that is generated by voltage of a conductor, expressed as a kilovolt meter (kV/m). The magnetic field is a field produced by the current traveling along the conductor, expressed in milligauss (mG). Those portions of Florida Administrative Code Rule Chapter 62-814 that are applicable to this Project establish maximum values for electric and magnetic fields. Compliance with the electric and magnetic field requirements was calculated for each of the configurations that may be utilized for the Project. The results were then compared to the requirements of Florida Administrative Code Rule 62-814.450(3). The maximum expected values from all configurations for the electric fields and for the magnetic fields are all below the values set forth in the rule. The maximum voltage and current that is anticipated for the line during its life are used in making the calculations. However, it is highly unlikely that this condition would occur. It is anticipated that the maximum condition would occur less than five percent of the time while the transmission line is operating. In order to operate at the maximum condition, the conductor must be operating at its maximum temperature (which requires an extreme weather condition), and there would also need to be some type of system disturbance (such as an outage in the region). Levels for electric fields will be less at the normal operating levels and magnetic fields about fifty percent less. The levels of electric and magnetic fields from the transmission line are similar to the levels that would be expected to result from common household appliances. Noise Transmission lines can generate audible noise as a result of build-up of particles on the conductor. During periods of fair weather dust can collect on the conductor and that may cause low levels of audible noise. When rain is experienced, the dust is washed off but replaced with water droplets on the conductor that create a condition that results in slightly higher levels of audible noise. The noise levels experienced during rainfall events are temporary, and the noise is reduced as soon as the water droplets evaporate from the conductor. The expected levels of noise are generally calculated using an industry-standard software program called the Bonneville Power Administration Field Effects Program. The calculations performed for the transmission line show that the maximum audible noise levels at the edge of the ROW would range up to a high of 37.6 dBA. This noise level is similar to the upper noise level in a library, and less than the living room noise in a suburban area. Also, during rainfall events, when the maximum noise levels are expected, the rain will tend to mask the sound from the transmission line. The calculated noise levels for the transmission line indicate that the noise levels that will be produced will not be a significant issue. Further, the calculated noise levels will comply with all applicable audible noise ordinances in Polk, Osceola, and Orange Counties. Be Consistent with Applicable Local Government Comprehensive Plans, If Any The transmission line can be constructed, operated, and maintained in either the Applicants' Preferred Corridor or the OIC Alternate Corridor to be consistent with applicable provisions of local government comprehensive plans, if any. The Polk County Comprehensive Plan identifies electric transmission and distribution facilities as a permitted use in all land use categories. The Osceola County Comprehensive Plan and the City of Auburndale Comprehensive Plan identify utility and public facilities as allowable uses in all land use categories provided that the TLSA standards and other regulatory standards are met. The Orange County Comprehensive Plan identifies utility and public facilities as allowable uses in all land use categories. The Reedy Creek Improvement District Comprehensive Plan identifies that utility corridors are allowable uses where no other alternatives are feasible. The PSC found that the Applicants considered four alternatives to the Project and none were feasible. Further, the Applicants considered a number of alternatives in the corridor selection process and considered the OIC Alternate Corridor and selected the Applicants' Preferred Corridor as the best choice among the various corridors. See Finding of Fact 102, infra. After certification of this project, the transmission line will be located and constructed entirely within established rights-of-way, including easements acquired after corridor certification. Construction of transmission lines on such established ROWs is excepted from the definition of "development" in Section 163.3164(6), Florida Statutes. Accordingly, the provisions of the local comprehensive plans related to "development" that have been adopted by the local governments crossed by the transmission line are not applicable to this project. No variances or exemptions from applicable state or local standards or ordinances are needed for the project. Effect a Reasonable Balance Between the Need for the Lake Agnes-Gifford Transmission Line as a Means of Providing Abundant Low-Cost Electrical Energy and the Impact Upon the Public and the Environment Resulting from the Location of the Lake Agnes-Gifford Transmission Line and Construction, Operation, and Maintenance of the Transmission Line The Applicants' Preferred Corridor was chosen using a multidisciplinary team of experts to minimize impacts upon the public and the environment. Impacts Upon the Public The land uses found in the area of the Applicants' Preferred Corridor and the OIC Alternate Corridor are compatible with transmission lines; there are many locations throughout Florida where transmission lines similar to the proposed transmission line coexist with these land use patterns. Both the Applicants' Preferred Corridor and the OIC Alternate Corridor are appropriate locations for a transmission line from a land use perspective, but the Applicants' Preferred Corridor is a better location in relation to impacts upon the public. aa. Co-location with Existing Linear Facilities The Applicants' Preferred Corridor is co-located with existing linear facilities for nearly its entire length. In choosing among the candidate corridors considered by the multidisciplinary team, the Applicants' Preferred Corridor was chosen with reference to maximizing co-location with existing linear features, including transmission lines, highways, and natural gas pipelines. Co-location is advantageous because the existing linear facilities often provide existing access, minimizing the need for new access roads, the need for new clearing, and the need for further encumbrance of additional land. By following these existing linear features, the Applicants' Preferred Corridor conforms to existing and future development patterns and minimizes intrusion into surrounding areas. Further, there is less of an incremental difference in impacts from adding a linear facility to an area of existing linear facilities than from adding a linear facility to a presently unencumbered area. In contrast, the OIC Alternate Corridor follows an area of undeveloped land and thus does not offer the advantages of co-location. bb. Impacts upon Residential Development In choosing among the candidate corridors, minimizing the number of homes within the corridor was a significant criterion considered by the multidisciplinary team. It is an advantage for the OIC Alternate Corridor over the Applicants' Preferred Corridor that the OIC Alternate Corridor has fewer homes within the corridor than does the Applicants' Preferred Corridor. However, it is a disadvantage for the OIC Alternate Corridor that it bisects two components of the Emerald Island residential development. The impacts of the Applicants' Preferred Corridor on OIC homes is minimal. The "residents" of the OIC development are predominantly short-term renters or vacationers who will be in proximity to the transmission line for only a few weeks' duration. (Many of the homes are owned by citizens of the United Kingdom who rent the properties to vacationers visiting the area. There are, however, three permanent year-round residents in the development, including Mr. von Behren.) The Applicants have adjusted the eastern corridor boundary to no more than 55 feet from the edge of the SR 429 ROW in the vicinity of the OIC development. Further, the Applicants have committed that, if the Applicants' Preferred Corridor is certified, there will be no existing homes within the eventual transmission line ROW. PEF's engineering expert testified that the Applicants' preferred location for the transmission line within the Applicants' Preferred Corridor in the vicinity of the OIC development is to be on the west side of SR 429, which would not impact any OIC homes. If that location is not feasible, the Applicants' preferred location for the transmission line within the Applicants' Preferred Corridor in the vicinity of the OIC development is to be on the east side of SR 429, with poles located 15 feet inside the DOT's ROW for SR 429, in which case the only property rights that the Applicants would need outside the DOT ROW would be no more than 30 feet for an overhanging aerial easement and access rights. These commitments by the Applicants mean that there are only three or four properties within OIC where the Applicants might need an aerial and access easement for the transmission line; the pole would be no nearer to those homes than approximately thirty feet. This evidence demonstrates that there will be very little impacts on the OIC residential development. Further, OIC raised concerns about existing vegetation with the OIC residential development. Those concerns are misplaced because PEF's engineering expert explained that the Applicants would avoid any vegetation that exists outside the SR 429 ROW, and that any vegetation that would be replaced would be within the SR 429 ROW. cc. Minimizing the Length of Transmission Lines in the Landscape The length of a transmission line in the landscape is important because it is a land use consideration to minimize the amount and length of linear facilities in the landscape. The shorter the linear facility, the less potential effects of the linear facility. This is an advantage for the Applicants' Preferred Corridor because it is shorter than the OIC Alternate Corridor. dd. Impacts to Conservation Lands The Applicants' Preferred Corridor has the advantage of avoiding conservation lands while the OIC Alternate Corridor in contrast crosses lands held for conservation purposes. The conservation lands include a parcel held for use by Osceola County as a stormwater retention and conveyance system, a parcel held by Emerald Island Resort as a conservation area, a parcel owned by the Lake Tohopekaliga Water Authority held in a conservation easement by SFWMD, and a parcel subject to a water use permit. The conservation easement expressly prohibits the construction of utility infrastructure within its boundaries. Although SFWMD's conservation easement could be amended by the underlying property owner to allow for crossing by the OIC Alternate Corridor, SFWMD prefers the Applicants' Preferred Corridor because it better avoids and minimizes impacts to wetlands. ee. Impact on Property Values At the public portion of the certification hearing, several members of the public testified in opposition to the Applicants' Preferred Corridor. A number of those testifying, including Mr. von Behren, expressed concern about the impact of the Project on property values, and the desire to have the Applicants seek another route. Although these concerns are genuine, the impact on property values is not a subject for consideration at this hearing. Impacts Upon the Environment The transmission line, whether constructed, operated, and maintained in the Applicants' Preferred Corridor or the OIC Alternate Corridor, will comply with all applicable state, regional, and local nonprocedural regulations, including the wetland regulatory standards applicable to such projects. The Applicants have committed to a variety of Conditions of Certification that require extensive measures to eliminate or minimize the potential environmental impacts. For example, within forested wetlands, the Applicants have committed to using restrictive clearing practices, removing only tall- growing trees and leaving understory (the lower layer of plants growing under a higher layer of plants) and root mats in place within the ROW. The Applicants have also committed to the use of existing access roads through wetland areas to the greatest extent practicable, and the construction of at-grade access roads where conditions allow. In addition, the Applicants have committed to compensatory mitigation to offset the loss of wetland functions, if any. Further, if the transmission line is constructed in either the Applicants' Preferred Corridor or the OIC Alternate Corridor, the transmission line design will allow for variable span length to avoid wetland impacts by spanning those areas upland-to-upland. Both the Applicants' Preferred Corridor and the OIC Alternate Corridor are appropriate locations for a transmission line from an environmental perspective, but the Applicants' Preferred Corridor is a better location in relation to impacts upon the environment. aa. Impacts to Vegetative Communities, Including Wetlands The Applicants' Preferred Corridor will have minimal environmental impact. Construction of the line within the Applicants' Preferred Corridor will cause minimal adverse ecological impacts for several reasons: regional screening was conducted to minimize inclusion of areas of ecological constraints, such as eagles' nests, undisturbed wetland habitat, protected species habitat, and forested areas; the width of the corridor provides flexibility when the final ROW is selected to avoid ecological resources within the corridor; because of the corridor's co-location with existing rights-of-way, there is a prevalence of developed areas within the Applicants' Preferred Corridor; where the Preferred Corridor traverses areas of natural vegetation, it does so largely in previously-disturbed areas, minimizing the amount of needed clearing and new access roads; and wetlands will be avoided by spanning them to the extent practicable. With respect to the Green Swamp, an area of 870 square miles, the Applicants' Preferred Corridor minimizes impacts by co-locating with the OUC transmission line ROW. Other candidate corridors considered by the multidisciplinary team would have involved clearing of undisturbed forested wetlands, including areas of mature cypress domes. In contrast, the transmission line will have more adverse environmental impacts if constructed, operated, and maintained in the OIC Alternate Corridor than the Applicants' Preferred Corridor because of the prevalence of undisturbed wetland habitat within the OIC Alternate Corridor as compared to the previously-disturbed habitat along SR 429 within the Applicants' Preferred Corridor. Construction of the transmission line within the OIC Alternate Corridor would result in greater forested and herbaceous wetland impacts and require greater alteration to previously-undisturbed areas. bb. Protected Species The Applicants have committed to a number of conditions of certification protecting species whether the Applicants' Preferred Corridor or the OIC Alternate Corridor is certified. For example, the Applicants have agreed to conduct pre-clearing surveys of the final ROW for protected species, and to consult with the Florida Fish and Wildlife Conservation Commission, the United States Fish and Wildlife Service, and the Department if any species are located within the ROW to address avoidance and mitigation measures. Impacts to listed plant and animal species from construction of the transmission line within the Applicants' Preferred Corridor are expected to be minimal because the corridor includes primarily previously-impacted areas which have limited suitability as protected species habitat and because of the Applicants' commitment to conduct pre-clearing species surveys. The Applicants' Preferred Corridor avoids or minimizes intrusion into the undisturbed wildlife habitats due to its co- location with existing linear facilities for almost its entire length. The current condition and relative value of function of the habitat within the Applicants' Preferred Corridor is generally minimal from a wildlife ecology and protected species perspective because it has been previously-disturbed through construction of major roadways. In the areas of undisturbed lands, the Applicants' Preferred Corridor is co-located with existing utility rights-of-way including a transmission line and natural gas pipeline that already disturb the area. The gopher tortoise is a protected species that has been documented to be located within the Applicants' Preferred Corridor and the OIC Alternate Corridor. Gopher tortoise habitat typically is not compromised by construction of transmission lines due to the relatively small ground footprint of disturbance and the maintenance of low vegetation within the ROW, which is suitable habitat for gopher tortoises. Thus, the transmission line is not expected to have significant impact on gopher tortoises. The impacts to protected species will be greater in the OIC Alternate Corridor than the Applicants' Preferred Corridor. The Applicants' Preferred Corridor includes two known locations of protected species; transmission lines are compatible with the habitat for these species. In addition, the habitat within the Preferred Corridor is not suitable for most protected species because it is previously disturbed where vegetation communities have already been cleared and converted to roadside ROW. In contrast, the OIC Alternate Corridor consists predominantly of undisturbed wetlands, which is habitat that is highly suitable for a number of protected species. Although there are no Florida Natural Areas Inventory-documented locations of protected species within the OIC Alternate Corridor, there are four field-documented protected species within the OIC Alternate Corridor. Further, the habitat is highly suitable for protected species because it is largely undisturbed, much is held in conservation easement, and it includes forested and herbaceous wetlands. cc. Floodplains The 100-year floodplain is an area, regulated by the Department and the water management districts, that demarks the area that would be inundated in severe flood events. The Applicants are required to provide compensating floodplain storage to offset the loss, if any, of floodplain storage caused by fill needed for the transmission line; this requirement is designed to avoid any flooding of adjacent properties that might be caused by the Project. Because of this requirement, one of the goals in corridor selection was to minimize impacts to the 100-year floodplain. Only a small portion of the Applicants' Preferred Corridor is located within the 100-year floodplain, while a large portion of the OIC Alternate Corridor is located within the 100-year floodplain. Further, the portions of the Applicants' Preferred Corridor that are located within the 100- year floodplain are located in areas that have been previously disturbed by the construction of SR 429 and would likely not involve significant further impacts to the 100-year floodplain. dd. Archaeological and Historical Resources The Applicants utilized information from the Department of State, Division of Historical Resources (DHR), to identify potential archeological and historical resources within the Applicants' Preferred Corridor. A number of locations were identified as a result of the information and the Applicants have committed, through the Conditions of Certification, to perform a cultural resources survey when the actual ROW is located. If any artifacts are discovered, the Applicants will notify the Department and DHR and consult with DHR to determine appropriate action. There is no difference between the impacts to cultural resources of the Applicants' Preferred Corridor and the OIC Alternate Corridor. The Need for the Lake Agnes-Gifford Line as a Means of Providing Abundant Low-Cost Electrical Energy The transmission line can be constructed, operated, and maintained in either the Applicants' Preferred Corridor or the OIC Alternate Corridor to meet the need for the transmission line as a means of providing reliable, economically efficient electric energy as determined by the PSC. The PSC determined that the proposed line is needed taking into account the factors set forth in Section 403.537, Florida Statutes. The PSC found that the Applicants evaluated four alternatives to the proposed transmission line. All of the alternatives were transmission modifications to the proposed ROW that used a portion of, or the entire existing, common ROW. The PSC accepted the Applicants' rejection of the alternatives primarily because of economic and reliability concerns. The PSC found that the proposed line will assure the economic well-being of Florida's citizens by serving projected new electric load in the region and improving the region's electric reliability by minimizing the region's exposure to single contingency events. Reasonable Balance Between the Need for the Lake Agnes- Gifford Line and the Impacts of the Line upon the Public and the Environment Expert witnesses in the fields of land use, engineering, and ecology with specializations in transmission line siting, permitting, design, and reliability have compared the corridors proper for certification and all concluded that the Applicants' Preferred Corridor effects a better balance between the need for the transmission line and the impacts of the line on the public and the environment from the perspective of their expertise than does the OIC Alternate Corridor. Conditions of Certification The transmission line can and will be constructed, operated, and maintained in either the Applicants' Preferred Corridor or the OIC Alternate Corridor in compliance with the Conditions of Certification, which are found in the Department's Exhibit 3. The Conditions of Certification establish a post- certification review process through which the final right-of- way, access road, and structure locations will be reviewed by agencies with regulatory authority over the project. The Applicants have agreed to the Conditions of Certification to minimize land use and environmental impacts of the construction, operation, and maintenance of the transmission line. The parties agree that the Conditions of Certification are consistent with applicable non-procedural requirements of the state, regional, and local agencies with regulatory jurisdiction over the transmission line, and that such conditions should be imposed on the certification, if granted, for either of the corridors under consideration in this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Siting Board enter a Final Order approving Tampa Electric Company and Progress Energy Florida's Lake Agnes-Gifford 230 kV Transmission Line Application for Certification subject to the Conditions of Certification set forth in Department Exhibit 3. DONE AND ENTERED this 22nd day of October, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2008. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Thomas M. Beason, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Lawrence N. Curtin, Esquire Holland & Knight LLP Post Office Box 810 Tallahassee, Florida 32302-0810 Carolyn S. Raepple, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314-6526 Toni L. Sturtevant, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Gary von Behren, President Oak Island Cove Community Owners Association 2872 Blooming Alamanda Loop Kissimmee, Florida 34747-2252 Kelly A. Martinson, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Allen G. Erickson, Esquire Assistant County Attorney Post Office Box 1393 Orlando, Florida 32802-1393 Tasha A. Buford, Esquire Young Van Assenderp, P.A. Post Office Box 1833 Tallahassee, Florida 32302-1833 Martha A. Moore, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 Ray Maxwell, District Administrator Reedy Creek Improvement District 1900 Hotel Plaza Boulevard Lake Buena Vista, Florida 32830-8438 Jo O. Thacker, Esquire Osceola County Attorney One Courthouse Square, Suite 4200 Kissimmee, Florida 34741-5440 Emily J. Norton, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Mitchell B. Kirschner, Esquire Mitchell B. Kirschner, P.A. 1515 North Federal Highway Suite 314 Boca Raton, Florida 33432-1953 Steven I. Silverman, Esquire Kluger, Peretz, Kaplan & Berlin, P.L. 201 South Biscayne Boulevard, Suite 1700 Miami, Florida 33131-4332 Ruth A. Holmes, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3007 Phil Laurien, Executive Director East Central Florida Regional Planning Council 631 North Wymore Road, Suite 100 Maitland, Florida 32751-4229 Patricia M. Steed, Executive Director Central Florida Regional Planning Council 555 East Church Street Bartow, Florida 33830-3931 Jennifer S. Brubaker, Esquire Florida Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Shaw P. Stiller, General Counsel Department of Community Affairs 2470 Centerview Drive Tallahassee, Florida 32399-2100 Laura Kammerer Bureau of Historic Preservation 500 South Bronough Street Tallahassee, Florida 32399-0250 Michael E. Duclos, Esquire Assistant County Attorney Post Office Box 9005, Drawer AT 01 Bartow, Florida 33830-9005 Kimberly C. Menchion, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458
The Issue The issue for determination is whether Petitioners should be placed on the State of Florida’s Convicted Vendor List.
Findings Of Fact On January 5, 2005, in the United States District Court for the Northern District Court of California, Technologies entered a plea of guilty to the commission of two crimes: an antitrust violation, involving the submission of fraudulent and non-competitive bids, and a mail fraud violation. Technologies’ conviction arose out of its participation in the E-Rate Program — a federal program designed to provide funding to public schools and public libraries for telecommunication services, including local and long-distance telephone service, internet access, and internal connections. The E-Rate Program is operated under the offices of the Federal Communications Commission, hereinafter FCC, and is administered by the Universal Services Administrative Company, hereinafter USAC. On January 28, 2005, by Notice of Public Entity Crime, Inter-Tel provided notice of this conviction to DMS. On March 9, 2005, Inter-Tel provided DMS a supplement to its (Inter-Tel’s) notice of January 28, 2005. On August 29, 2006, by Notice of Intent to Place Person or Affiliate on Convicted Vendor List, DMS issued a notice of intent to place Technologies on the convicted vendor list. Technologies received DMS’ notice of August 29, 2006, on August 31, 2006. On September 18, 2006, Inter-Tel timely filed a petition for formal administrative hearing to determine whether it is in the public interest for Technologies to be placed on the State of Florida Convicted Vendor List. The nature and details of the public entity crime for which Technologies was convicted are fully set forth in the criminal information filed in the U.S. District Court for the Northern District Court of California. As specified in the criminal information, Technologies’ public entity crime implicated specific employees working on specific transactions in Michigan and California only. In addition, the conduct was isolated to one of fifty-nine branch offices of Technologies and one related operating unit. As part of its plea agreement, Technologies agreed to pay $1,721,000.00 in criminal fines. In addition to these fines, Technologies agreed to pay to the United States $7,000,000.00 as part of a civil settlement between it an the United States. The $7,000,000.00 was comprised of a cash payment in the amount of $6,740,458.12 and the release of the United States from invoices in the amount of $259,541.88 for work Technologies and other affiliated subsidiaries had performed under the E-Rate Program but had not yet been compensated for. On January 6, 2005, one day after the plea agreement and civil settlement agreement were accepted by the Court, Technologies made cash payments to the United States in the amounts of $1,721,000.00 and $6,740,458.12. In doing so, Technologies paid all fines, penalties, and damages owed in connection with its conviction. Confirmation of the wire transfers to the United States was provided. As confirmed by the Department of Justice, hereinafter DOJ, Inter-Tel cooperated with the federal investigation by voluntarily supplying a wide array of information and documents to DOJ and by encouraging current and former employees to cooperate with DOJ’s investigators. DOJ characterized this cooperation by Inter-Tel as enabling it “to expand [its] knowledge base to criminal behavior at school districts not previously covered in other pleas” and noted that “the nature, speed, and extent of Inter-Tel’s cooperation has been very helpful in developing [its] investigation to date.” Inter-Tel has fully cooperated with DMS in connection with its investigation under Section 287.133, Florida Statutes. Inter-Tel promptly provided information as requested by DMS and made its attorneys available to DMS to facilitate collection of records and information vital to DMS’ investigation. The employees who were identified as being responsible for the conduct leading to the public entity crime to which Technologies pled guilty were Jason King, Bill Boehm, Jim O’Hare, Earl Nelson, and Tim Scarafiotti. Jason King resigned from Technologies on August 14, 2003. Bill Boehm resigned from Technologies on September 24, 2004. Jim O’Hare was terminated from Technologies on August 14, 2002. Earl Nelson retired from Technologies on April 30, 2002. Tim Scarafiotti resigned from Technologies on October 30, 2002. No business or employment relationships currently exist between Technologies and Jason King, Bill Boehm, Jim O’Hare, Earl Nelson, or Tim Scarafiotti. Inter-Tel has implemented an intensive, multi-year program of monitoring, training, and auditing with respect to government procurement contracts, including a comprehensive anti-fraud and antitrust compliance plan. On February 15, 2005, Inter-Tel formally adopted a compliance program that includes: (1) an Antitrust and Anti- Fraud policy; (2) a government sales policy; (3) and E-Rate code of conduct; and (4) detailed description of the procedures for administering these policies, including employee training, reporting of suspected violations, disciplinary action, internal monitoring, external reporting, and the responsibilities of Inter-Tel’s compliance officer. In January 2005, Inter-Tel hired a full-time compliance officer, whose job it is to ensure that Inter-Tel conducts its activities involving public entities in accordance with applicable laws and the compliance program. The compliance officer’s responsibilities include at least monthly meetings with key executives in Inter-Tel’s accounting, finance, installations, legal, marketing, and sales departments to ensure compliance. The current compliance officer has over ten years of legal experience specializing in public procurement. While the settlement agreement with the United States only requires training for employees who deal in public procurement, Inter-Tel’s management has mandated that all employees of Inter-Tel, and its subsidiaries, including Technologies, receive extensive training on the E-Rate program, antitrust, fraud, government procurement ,and ethics. To accomplish this, Inter-Tel developed internal training programs and, in addition, retained a private company that specializes in developing compliance training. To date, all employees of Inter-Tel and its subsidiaries, including Technologies, have received the above-mentioned trainings, and new hires receive the training shortly after beginning employment with Inter-Tel, or any of the affiliated subsidiaries, including Technologies. In 2004, Inter-Tel established an ethics hotline to permit employees and other third parties to report suspected violations of Inter-Tel’s Code of Business Conduct anonymously by telephone and the internet. In response to the fraudulent conduct, on June 30, 2006, the FCC issued its Notice of Debarment debarring Technologies from the E-Rate Program for one year, effective June 30, 2006 to June 30, 2007. The standard FCC debarment period is three years. The FCC debarment is limited in scope and does not affect Inter-Tel’s ability to continue contracting with other federal agencies. During the period of 2002 to 2004, Technologies transacted business with over twenty public entities within the State of Florida. Technologies is one of three companies that have been approved by DMS’ Division of State Purchasing to provide Key System telecommunication equipment to public entities in Florida. Since 2000, Inter-Tel has organized yearly company- wide United Way fundraisers, through which Inter-Tel has raised in excess of $100,000.00. After Hurricane Katrina, Inter-Tel conducted a one-month internal company-wide fundraising campaign and raised over $43,000.00 in donations from employees. Inter-Tel matched funds donated by employees for a total of over $85,000.00 raised for Hurricane Katrina victims. Following the terrorism events of September 11, 2001, employees raised over $117,000.00 for the American Red Cross. Inter-Tel matched the employee-donated funds for a total of over $241,000.00 donated by Inter-Tel to the 9/11 relief effort. A table reflecting all the charitable and civic campaigns participate in, or organized by, Inter-Tel since 2000 was provided.
Findings Of Fact Based on the testimony of the witnesses adduced at the hearing and the entire record compiled herein, I make the following: The Beker-Manatee transmission line was planned and given budget approval by Petitioner in 1974. This action was taken by Petitioner as a result of a documented request by Beker Phosphate Corporation to provide high-voltage service to the proposed Beker Phosphate Corporation mine in Manatee County, Florida. Right-of-way acquisition was begun in June, 1975, and more than one- half of the right-of-way has now been acquired by Petitioner. The original projected in-service date for the transmission line was July 1, 1976, however, completion was delayed due to, inter alia, alleged environmental problems encountered by Beker Phosphate Corporation in bringing its phosphate mine into production. Presently, Petitioner plans to complete construction and have the Beker-Manatee transmission line energized by the Spring of 1980. Additionally, Petitioner plans to construct an electrical transmission line between the proposed Keentown substation in Manatee County, and a proposed substation in DeSoto County near Arcadia, Florida, which is called the Whidden Substation. (Herein, sometimes called the Keentown-Whidden transmission line). The Keentown-Whidden transmission line was planned and budgeted by Petitioner during late 1975 as the most appropriate means of satisfying Petitioner's needs including providing reliable and adequate service to the Arcadia area; to provide service for specific customers (future) near the Keentown-Whidden transmission line and utilization of its existing facilities including existing transmission lines; to provide bulk power transfer capacity from Manatee into other parts of Petitioner's service area and to improve all transfer capacity between Tampa Bay and the lower west coast of Florida for mutual load supporting generation for emergency and economic reasons. According to its present plans, Petitioner plans to complete construction and have the Keentown-Whidden transmission energized by the summer of 1981, that is more than one year after the Beker-Manatee line is built and energized. On October 14, 1977, Respondent issued a binding letter of interpretation concluding that the Beker-Manatee transmission line is a development of regional impact within the guides of Chapter 380, Florida Statutes, and pertinent regulations since it formed a part of the Keentown-Whidden transmission line. However, in support of this position, Respondent introduced testimony and statements during the hearing indicating that its decision that the subject line is a development of regional inpact is based on five factors as follows: The Beker-Manatee transmission line is a 240 KV line, That the Beker-Manatee Line connects to the Keentown-Whidden transmission line, One of the functions of the Keentown-Whidden transmission line is to transfer bulk power, That the subject line is "the" source of power to energize the Keentown-Whidden transmission line and The Beker-Manatee and Keentown-Whidden lines are inseparable because without the Beker-Manatee transmission line the Keentown-Whidden transmission come not be energized. An examination of these factors revealed that the first three factors are applicable to all 240 KV lines of Petitioner as well as all other power companies. Specifically, testimony was introduced without rebuttal that all other 240 KV transmission lines connect with the subject line as well as the Keentown-Whidden line and form a statewide transmission system in what is commonly referred to as the "Grid". And of course, a primary function of all 240 KV transmission lines is to transmit bulk power. The remaining two factors, when examined, indicate that the Respondent relied on erroneous factors and/or conclusions in reaching its determination that the subject line is a development of regional impact. In this regard, testimony was introduced to the effect that the Beker-Manatee transmission line could be energized through any transmission line within the electrical grid provided the right switching devices were activated. It was also noted that the Keentown-Whidden transmission line could be energized without the Beker-Manatee transmission line provided again that the appropriate switching devices were activated. Throughout the engineering profession, transmission lines are customarily defined by the electric utility industry and by federal and state governmental agencies involved in the regulation of transmission lines, as a line extending from an electric generating power plant to the nearest substation or from a substation to the nearest substation. For example, the Federal Power Commission and the Institute of Electrical and Electronic Engineers' Standard Dictionary of Electrical Terms (1971) define transmission lines in this manner. With this in mind, it was noted that the Beker-Manatee transmission line is a line which extends from a substation to the nearest substation and it does not cross a county line. Respondent failed to demonstrate why the subject transmission line should not be reviewed as similar lines have been throughout the electric utility industry. Consideration was given to Respondent's argument that the subject line must be viewed as an integral electrical transmission line which when completed will connect and cross portions of DeSoto, Hardee and Manatee counties. However, evidence was introduced that when the subject line is completed, it like all other 240 KV lines form a contiguous segment of the entire electrical grid throughout the United States, and in that respect, such a consideration is not a distinguishing factor for this or any other 240 KV transmission line.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Division of State Planning issue a binding letter of interpretation to Florida Power and Light Company holding that the proposed Beker-Manatee line does not meet the criteria of Chapter 380, Florida Statutes, and Section 22F-2.03, Florida Administrative Code and therefore is not a development of regional impact. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 14th day of February, 1978. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675
The Issue The issue is whether Respondents committed the acts alleged in the Administrative Complaint, and if so, what discipline should be imposed.
Findings Of Fact Richard and Clara Marron have an in-ground, fiberglass pool at their home in Zephyrhills. The pool is approximately 25 years old. In December 2005, the Marrons' pool service company told them that the pool had a leak. The pool service company referred the Marrons to Coral Isle Pools and Spas (Coral Isle) in Zephyrhills. Coral Isle was owned and operated by Richard Delafield--the father of Respondent Scott Delafield--until his death on January 31, 2006. Richard Delafield was a registered building contractor, registered pool/spa contractor, registered plumbing contactor, and the qualifying agent for Coral Isle. On or about March 29, 2006, the Marrons went into Coral Isle's store and talked to Scott Delafield about fixing the leak in their pool.2 Mr. Delafield determined that the pool was leaking around the underwater light fixture and that the light needed to be replaced. He agreed to perform the necessary repairs for $858.55. The invoice prepared by Mr. Delafield described the work to be performed as follows: "dig under deck redue [sic] electrical conduit" and "labor to install light and do diagnostic on transformer." On May 6, 2006, the Marrons made an initial payment of $250.00 to Coral Isle. On May 15, 2006, Mr. Delafield performed the work on the Marrons' pool. Mr. Delafield did not obtain a permit from Pasco County before commencing the work on the Marrons' pool.3 The work was done in four stages. First, a trench was dug under the pool deck to provide access to the back of the light fixture. Second, the existing light was removed and replaced with a new light. Third, the wire for the new light was routed through PVC conduit pipe Mr. Delafield laid in the trench. Fourth, Mr. Delafield connected the wire to the "junction box"4 adjacent to the pool deck. The trench under the pool deck was dug by Carl Lind or Mark Pickett, not Mr. Delafield. Mr. Lind and Mr. Pickett were subcontractors of Coral Isle. Mr. Delafield removed the existing light by removing the screws on the front of the light fixture. He then installed the new light and ran the wire for the light through new PVC conduit pipe to the junction box. On May 17, 2006, the Marrons paid the balance of the invoice, $608.55. Mr. Delafield did not perform any work on the higher voltage electrical wires between the junction box and the breaker box at the house. Mr. Delafield did not drain the pool to replace the light. He was able to access the light fixture from the front because the water level in the pool was below the fixture as a result of the leak in the pool. At some point after Mr. Delafield completed his work on the pool light, Mr. Lind and/or Mr. Pickett drained the Marrons' pool in order to "patch" the fiberglass bottom of the pool.5 The light installed by Mr. Delafield works, and the pool no longer leaks. Indeed, the Marrons acknowledged in their testimony at the final hearing that the work done by Mr. Delafield fixed the leak and that the pool now "holds water." Mr. Delafield and Coral Isle were not licensed, registered, or certified to perform electrical contracting work at the time Mr. Delafield performed the work on the Marrons' pool light. In April 2006, the Department issued temporary emergency certifications to Mr. Delafield as a registered building contractor, registered pool/spa contractor, and registered plumbing contractor. The certifications authorized Mr. Delafield to complete Coral Isle's "projects in progress" at the time of Richard Delafield's death. The certifications did not authorize Mr. Delafield to enter into new contracts, nor did they authorize him to perform electrical contracting work. The Marrons' project was not in progress at the time of Richard Delafield's death. The agreement to perform the work was not entered into until several months after his death. In June 2006, the Marrons filed an unlicensed activity complaint against Mr. Delafield and Coral Isle. The Department incurred costs of $206.69 in its investigation of the complaint, not including costs associated with an attorney's time. In February 2007, the Marrons made a claim for $150,000 against Richard Delafield's estate in which they alleged that their pool and deck were "rendered useless" due to the negligence of Coral Isle. They also filed a civil suit against Mr. Delafield and others for damage to their pool. The Marrons did not pursue the claim against the estate, but the civil action is still pending. Coral Isle is no longer in business. Mr. Delafield testified that he planned to pursue licensure so that he could keep the business operating after his father's death, but that he never did so. Mr. Delafield was unemployed at the time of the final hearing.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order that: Finds Mr. Delafield guilty of unlicensed electrical contracting in violation of Sections 455.228 and 489.531, Florida Statutes; Imposes an administrative fine of $1,000 on Mr. Delafield; and Requires Mr. Delafield to pay the Department's investigative costs of $206.69. DONE AND ENTERED this 25th day of February, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 February, 2008.
