The Issue The issue to be determined in this case is whether the Governor and Cabinet, sitting as the Siting Board, should grant certification to New Hope for the expansion of the Okeelanta cogeneration facility to a total net steam electrical generating capacity of 140 megawatts (”MW”).
Findings Of Fact The Applicant The Applicant, New Hope Power Partnership, is a Florida partnership that owns the existing Okeelanta cogeneration Facility. Ex. 1 at 1-1, 3-1. New Hope will also own the Project. See id. The Site The Facility is located in an unincorporated area in western Palm Beach County, Florida. Ex. 1 at 2-1; Ex. 4 at 6; T It is approximately six miles south of South Bay and two miles west of U.S. Highway 27. Id. The Facility is located on a site (the ”Site”) that is approximately 82.1 acres in size. Ex. 1 at 2-1; Ex. 4 at 8; T 19. The Site is adjacent to Okeelanta Corporation’s existing sugar mill, sugar refinery, and sugarcane fields. Ex. 1 at 2-1; Ex. 4 at 6; T 17, 20. The Surrounding Area There are large buffer areas around the Site. See Ex. 1 at 2-1, 2-2, 2-4; Ex. 4 at 6; T 17-18. Almost all of the land within five miles of the Site is used for agricultural purposes (sugarcane farming). Id. The community nearest the Site is South Bay. Ex. 1 at 2-2; Ex. 4 at 6; T 17. The nearest home is more than 3.5 miles northeast of the Site. Ex. 1 at 2-4; Ex. 5 at 9; T 17-18. The Facility is adjacent to an existing electrical substation (Florida Power & Light Company’s Okeelanta Substation). See Ex. 1 at 1-2. An existing electrical transmission line connects the Facility to the substation. Ex. 1 at 3-1. The Existing Facility The Facility uses biomass fuels (e.g., bagasse from the sugar mill; clean wood waste) to generate steam and up to 74.9 MW of electricity (net). Ex. 1 at 1-1, 3-1; Ex. 4 at 6-7; T 18. The Facility supplies steam to the sugar mill during the sugarcane harvest (October through March) and it supplies steam to the refinery throughout the year. Ex. 1 at 1-2, 3-1; Ex. 4 at 7; see T 18. Excess steam from the Facility is used to generate electricity, which is sold to utility companies, including Florida Power & Light Company. Ex. 1-3; Ex. 4 at 7; See T 50-51. The existing Facility includes three steam boilers, one steam turbine/electrical generator, a cooling tower, an electrical switchyard, materials handling and storage facilities for biomass fuels, and ancillary equipment. Ex. 1 at 2-1, 3-1; Ex. 4 at 7; T 20-21. The Expansion Project The Expansion Project will increase the Facility’s electrical generating capacity by 65 MW (net), creating a total generating capacity of 140 MW (net). Ex. 1 at 1-1, 1-3, 2-1; Ex. 4 at 7; T 18. The Expansion Project will involve the installation of a new turbine/electrical generator, a cooling tower, and related equipment at the Site. Ex. 1 at 1-3, 2-1; Ex. 4 at 8; T 19. Construction of the Expansion Project Approximately 0.5 acres of the Site will be occupied by the new equipment that will be installed for the Expansion Project. Ex. 1 at 2-1; Ex. 4 at 8; T 19. The construction of the Project will occur in disturbed upland areas that already are used for industrial operations. Ex. 1 at 3-2, 4-1; Ex. 4 at 9; T 20. No construction will take place in any wetland, wildlife habitat, environmentally sensitive area, or 100-year flood plain. Ex. 1 at 2-2, 2-18, 4-1; Ex. 4 at 9; T 20. No new electrical transmission lines will need to be built to accommodate the additional electrical power generated by the Expansion Project. See Ex. 1 at 3-1, 6-1. During construction, there will be a temporary increase in sound levels due to the heavy equipment associated with the construction process. Ex. 1 at 4-9 through 4-10; Ex. 5 at 9; T 42-43. Given the remote location of the Site, the sounds generated by the construction of the Expansion Project will not interfere with human activities or otherwise cause a nuisance at any residential locations. Id. The construction of the Expansion Project will result in a temporary increase in traffic on some roads near the Site, but these roads will continue to operate at acceptable traffic levels. Ex. 1 at 4-8 through 4-9; Ex. 5 at 9; T 42. Operation of the Expansion Project The Facility currently operates at its full capacity during the sugarcane harvest. See Ex. 30, Technical Evaluation at 2. The Expansion Project will enable the Facility to operate at its full capacity year-round. See Ex. 1 at 3-1 through 3-2; Ex. 30, Technical Evaluation at 2. Although the Facility will generate more electricity after the Expansion Project is completed, the basic operation of the Facility will not change. Ex. 4 at 10; Ex. 5 at 6; T 22. The Facility has a water use permit issued by the South Florida Water Management District, which authorizes the Facility to use water from the Miami/North New River Canal System, the surficial aquifer, and the Floridan aquifer. Ex. 1 at 3-11; Ex. 5 at 7; T 40-41. The Okeelanta Corporation also may provide water to the Facility, in accordance with the SFWMD water use permit for the Okeelanta Corporation’s sugar mill. Ex. 5 at 7; T 41. After the Expansion Project is completed, the amount of water used by the Facility will increase, commensurate with the increased use of the Facility. Ex. 5 at 7; DEP Ex. 2, Staff Analysis Report at 3; T 41. The additional water will be obtained from the cooling pond/rock pit located at the adjacent sugar mill. Id. In March 2005, the SFWMD issued a water use permit that allows the Okeelanta Corporation to increase the amount of water provided to the Facility from 0.4 mgd to 2.0 mgd. Ex. 37; see T 41. The Facility’s stormwater and process water are routed to a 600-acre area that is divided into four percolation basins. Ex. 1 at 3-16; Ex. 5 at 8; T 41. Each basin is used on a rotating basis--i.e., the basin is used for percolation for one year and then it is used for growing sugarcane for three years. Ex. 5 at 8; T 41. Each percolation basin is designed to hold all of the Facility’s process water, plus all of the contact and non-contact stormwater runoff from a 100-year, three-day storm event. Id. The Facility does not discharge any stormwater or process water to any surface water. Ex. 1 at 5-9; Ex. 5 at 8; T 41-42. The Facility’s use of the percolation ponds has not caused and is not expected to cause any violations of any ground water quality standards. Ex. 5 at 8. The Facility generates fly ash and bottom ash from the combustion of biomass fuels. Ex. 1 at 3-16, 5-10; Ex. 5 at 9; T 42. These materials are taken to a landfill for disposal. Id. The operation of the Expansion Project will not have any significant impacts on traffic. Ex. 1 at 5-17; Ex. 5 at 9; T 42. The local roads will continue to operate at an acceptable level of service. Id. Air Quality Regulations The Facility must comply with New Source Performance Standards (”NSPS”) and Best Available Control Technology (”BACT”) requirements, both of which impose strict limits on the Facility’s airborne emissions. See Ex. 1 at 3-5; Ex. 30, Technical Evaluation at 3. The Facility also must comply with Ambient Air Quality Standards (”AAQS”) and Prevention of Significant Deterioration (”PSD”) standards, which establish criteria for the protection of ambient air quality. Id. The Facility previously was reviewed and approved under the PSD program. Ex. 1 at 3-5; Ex. 5 at 6; Ex. 30, Technical Evaluation at 2; T 39-40. The DEP has determined that the Expansion Project is not subject to PSD pre-construction review. Ex. 5 at 6; Ex. 30, Technical Evaluation at 5; T 38. The cooling towers will be the only new source of air pollution associated with the Expansion Project. Ex. 1 at 3-5; Ex. 5 at 6; T 38. The water droplets leaving the cooling tower will evaporate, causing small amounts of particulate matter to enter the atmosphere near the Site. Ex. 5 at 6; T 38. However, the emissions from the cooling tower are so small that the cooling tower is exempt from the permitting requirements established by the DEP. Id. Best Available Control Technology A BACT determination is required for each pollutant for which PSD review is required. Ex. 1 at 3-5; Ex. 5 at 7; DEP Ex. 2, Staff Analysis Report at 15. BACT is a pollutant- specific emission limit that provides the maximum degree of emission reduction, after taking into account the energy, environmental, and economic impacts and other costs. Ex. 1 at 3-5; Fla. Admin. Code R. 62-210.200(38). As part of its BACT analyses for the Facility, DEP determined that mechanical cyclone dust collectors and an electrostatic precipitator (”ESP”) will control the Facility’s emissions of particulate matter, a selective non-catalytic reduction system (”SNCR”) will control oxides of nitrogen (”NOx”), use of low-sulfur fuels will control sulfur dioxide emissions, and proper facility design and operating methods will control other pollutants. Ex. 1 at 3-6 through 3-8; Ex. 30, Draft Permit at D-1; T 40. Accordingly, these air pollution control systems and techniques are utilized at the Facility. Id. The Facility also uses an array of continuous emissions monitors to ensure that the Facility is continuously in compliance with the BACT emission limits. Ex. 1 at 5-14; Ex. 30, Draft Permit at E-1 through E-2. Protection of Ambient Air Quality The EPA has adopted ”primary” and ”secondary” National Ambient Air Quality Standards (”NAAQS”). See Ex. 1 at 2-21. The primary NAAQS were promulgated to protect the health of the general public with an adequate margin of safety. See Ex. 1 at 2-21; see also 42 U.S.C.A. § 7409(b) (1997). The secondary NAAQS were promulgated to protect the public welfare, including vegetation, soils, visibility and other factors, from any known or anticipated adverse effects associated with the presence of pollutants in the ambient air. Id. Florida has adopted EPA’s primary and secondary NAAQS, and has adopted some Florida AAQS (”FAAQS”) that are more stringent than EPA’s NAAQS. See id. The Facility’s potential impacts on ambient air quality were evaluated by DEP, based on the continuous operation of the Facility at full load, following completion of the Project. Ex. 30, Technical Evaluation at 4. DEP concluded that the maximum impacts from the Facility will not cause or contribute to any violations of AAQS. Ex. 1 at 5-10 through 5- 14; Ex. 5 at 6-7; Ex. 30, Technical Evaluation at 4; Ex. 5 at 6; T 39. Other PSD Analyses The PSD program provides protection for those areas that have good air quality. See Ex. 1 at 2-22; Ex. 30, Technical Evaluation at 3-4. Different areas of Florida have been designated as PSD ”Class I” or ”Class II” areas, depending upon the level of protection that is to be provided under the PSD program. Id. In this case, the Project is located in a PSD Class II area. Id. The nearest PSD Class I area is the Everglades National Park (”Everglades”), which is approximately 92 kilometers (”km”) south of the Site. Ex. 1 at 2-22. The DEP’s analyses demonstrate that the Facility’s impacts on ambient air quality will not violate any applicable PSD requirement for the Class I and Class II areas. Ex. 1 at 5- 14; Ex. 5 at 6; Ex. 30, Technical Evaluation at 4; DEP Ex. 2, Staff Analysis Report at 16-17; T 39. Compliance With Air Standards New Hope has provided reasonable assurance that the Expansion Project and the Facility will comply with all of the applicable air quality standards and requirements. Ex. 5 at 7; Ex. 30; DEP Ex. 2, Staff Analysis Report at 17; T 38-40. Environmental Benefits of the Project The Expansion Project will provide environmental benefits. Ex. 1 at 7-3 through 7-4; Ex. 5 at 10; T 43-44. For example, the Project will be capable of producing approximately 65 MW (net) of electricity in Southeast Florida, which needs new electrical generating capacity. Ex. 1 at 7-3 through 7-4; Ex. 5 at 10; T 43-44. The Expansion Project will also enhance fuel diversity by using renewable biomass fuels to generate electricity. Id. Over 20 years, the Project may displace the use of approximately 5,600,000 barrels of oil worth nearly $170,000,000 (assuming oil prices of $30 per barrel). Id. In addition, the Expansion Project will beneficially reuse clean wood waste, which otherwise would likely be placed in a landfill for disposal. Ex. 1 at 7-4; Ex. 5 at 10; T 44. The Facility receives wood waste and biomass materials from Miami-Dade County, the Palm Beach County Solid Waste Authority, and approximately 25 private recycling companies, thus assisting them with their solid waste management programs. Ex. 5 at 10; T 44. The Facility also burns melaleuca trees that have been removed pursuant to land clearing programs for the eradication of this nuisance species. Ex. 5 at 10. Socioeconomic Benefits of the Project The Expansion Project will provide jobs for an average of 70 construction workers during the 12-month construction phase of the Project. Ex. 1 at 7-1 through 7-2; Ex. 5 at 10; T 43. Approximately $3.5 million will be paid in wages for construction employees working on the Expansion Project. Id. Consistency with Land Use Plans and Zoning Ordinances The proposed use of the Site is consistent and in compliance with Palm Beach County’s comprehensive land use plan and zoning ordinances. Ex. 1 at 2-2 through 2-4; Ex. 4 at 16; Ex. 23; Ex. 24; Ex. 38; Ex. 39; T 28-29. The Facility and Project have both been reviewed and approved by the Palm Beach County Board of County Commissioners. Ex. 4 at 11-12; Ex. 23; Ex. 24; T 23-25. Compliance with Environmental Standards New Hope has provided reasonable assurance that the Facility and Project will comply with all of the nonprocedural land use and environmental statutes, rules, policies, and requirements that apply to the Project, including but not limited to those requirements governing the Project’s impacts on air quality, water consumption, stormwater, and wetlands. Prehearing Stipulation at 24, paragraph 5.B.3.; Ex. 5 at 11; DEP Ex. 2, Staff Analysis Report at 22; T 44-45, 60. The location, construction and operation of the Facility and Project will have minimal adverse effects on human health, the environment, the ecology of the State’s lands and wildlife, and the ecology of the State’s waters and aquatic life. Ex. 5 at 12; DEP Ex. 2, Staff Analysis Report at 20; T 45-46, 61-62. The Facility and Project will not unduly conflict with any of the goals or other provisions of any applicable local, regional or state comprehensive plan. Ex. 4 at 16; Ex. 23; Ex. 24; Ex. 38; Ex. 39; T 28-29. The Conditions of Certification establish operational safeguards for the Facility and Project that are technically sufficient for the protection of the public health and welfare. Ex. 5 at 13; T 46-47, 61. Agency Positions and Conditions of Certification On November 18, 2004, the PSC issued an Order (No. PSC-04-1105A-FOF-EI) granting New Hope’s petition for determination of need for the Expansion Project. Ex. 22; DEP Ex. 2, Staff Analysis Report at 4-6, 12-13. The PSC determined, consistent with the criteria of Section 403.519, Florida Statutes, that the Expansion Project is needed. Id. The DEP, DOT, DCA, and SFWMD all recommend certification of the Expansion Project, subject to the Conditions of Certification. Prehearing Stipulation at 10-11, 13-16. New Hope has accepted, and has provided reasonable assurance that it will comply with, the Conditions of Certification. Prehearing Stipulation at 24-25, paragraph V.B.4; Ex. 5 at 11-12; T 45, 61-62. Public Notice of the Certification Use Hearing On September 29, 2004, New Hope published a ”Notice of Filing of Application for Electrical Power Plant Site Certification” in the Palm Beach Post, which is a newspaper of general circulation published in Palm Beach County, Florida. Ex. 31; see also Ex. 5 at 16; T 49. On October 1, 2004, the Department published ”Notice of Receipt of Application for Power Plant Certification” in the Florida Administrative Weekly. Ex. 35; see also Ex. 5 at 16; T 49. On February 2, 2005, New Hope published notice of the Certification Hearing in the Palm Beach Post. Ex. 33; see also Ex. 5 at 16; T 49. On February 4 and 11, 2005, the Department published notice of the Certification Hearing in the Florida Administrative Weekly. Ex. 36; see also Ex. 5 at 16; T 49. The public notices for the Certification Hearing satisfy the informational and other requirements set forth in Section 403.5115, Florida Statutes, and Florida Administrative Code Rules 62-17.280 and 62-17.281(4). Prehearing Stipulation at 24, paragraph V.B.2,3; Ex. 5 at 17; T 49, 63-64.
Conclusions For Petitioner New Hope Power Partnership (”New Hope”): David S. Dee, Esquire Landers & Parsons 310 West College Avenue Tallahassee, Florida 32301 For the Florida Department of Environmental Protection: Scott A. Goorland, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order granting certification for the expansion of the Okeelanta Cogeneration Facility to a total capacity of 140 MW (net), in accordance with the Conditions of Certification, DEP Exhibit 3. DONE AND ENTERED this 31st day of March, 2005, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2005. COPIES FURNISHED: David S. Dee, Esquire Landers & Parsons 310 West College Avenue Tallahassee, Florida 32301 Scott Goorland, Esquire Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 James V. Antista, General Counsel Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Roger Saberson, General Counsel Treasure Coast Regional Planning Council 70 Southeast 4th Avenue Delray Beach, Florida 33483 Jennifer Brubaker, Esquire Public Service Commission Division of Legal Services 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0863 Leslie Bryson, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399 Sheauching Yu, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 Sarah Nall, Esquire 9341 Southeast Mystic Cove Terrace Hobe Sound, Florida 33455 Denise M. Nieman, Esquire Palm Beach County Attorney's Office 302 North Olive Avenue, Suite 601 West Palm Beach, Florida 33401-4705 Raquel A. Rodriguez, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-1001 Kathy C. Carter, Agency Clerk Department of Environmental Protection Office of General Counsel Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue in this case is whether Respondent's intended decision to reject Petitioner's bid for University of Central Florida (UCF) Invitation to Bid No. 1030LCSAR (ITB) was arbitrary, unreasonable, or capricious.
Findings Of Fact UCF received a grant for $10,000,000.00 through the United States Department of Energy pursuant to the American Recovery and Reinvestment Act (ARRA) for, among other things, the construction and installation of turnkey 10kW PV systems with battery backup at schools located in Florida and designated as emergency shelters. Part of the grant money was to be used for administration and for education of Florida school children concerning renewable energy sources and energy efficiency. In order to procure the construction and installation of the PV systems, UCF issued the ITB. This was the second invitation to bid issued for PV systems. The first invitation to bid was issued during the summer of 2010, and all the bids received were over budget. The introduction in the ITB provides: As part of the Florida SunSmart Schools Emergency Shelter Program, the University of Central Florida intends to purchase at least ninety (90) turnkey installations of 10 kWdc (minimum) grid-tied photovoltaic (PV) systems with battery backup for specified Florida schools designated as EHPA (Enhanced Hurricane Protection Area) emergency shelters. This program provides for emergency electrical power for critical loads and provides ongoing educational programs for students. UCF/Florida Solar Energy Center will select the schools at which the PV systems will be installed. It is expected that at least one system will be installed in each County in the State of Florida. It is anticipated that multiple Bidders will be selected for participation in this program. One bidder will be selected for each Region, as defined in the Bid Document. A Bidder may be awarded more than one Region. All PV modules and systems must be certified by the Florida Solar Energy Center as specified in the bid document. The Florida Solar Energy Center (FSEC) is a statutory affiliate of UCF which "develop[s] and promulgate[s] standards for solar energy systems manufactured or sold in this state based on the best currently available information and shall consult with scientists, engineers, or persons in research centers who are engaged in the construction of, experimentation with, and research of solar energy systems to properly identify the most reliable designs and types of solar energy systems." § 377.705(4)(a), Fla. Stat. (2010).1/ All solar equipment that is sold or manufactured in the State of Florida must be certified by FSEC. § 377.705(4)(d). BlueChip was among the 19 bidders, which submitted bids in response to the ITB. On November 19, 2010, UCF posted the intent to award the contract for all regions to Vergona-Bowersox Electric, Incorporated (Vergona-Bowersox). By letter dated November 19, 2010, UCF notified BlueChip that its bid was rejected for a number of deficiencies. The Sunny Island inverter, which BlueChip included in the system it bid, is not made in America, and, therefore, does not comply with the Buy America provision of the ITB. Sunny Boy inverters, which BlueChip included in the system it bid, are undersized and do not meet the specifications of the ITB. The batteries used in BlueChip's bid do not meet the specifications of the ITB. FSEC did not receive a PV System Certification Application from BlueChip as required by the ITB. BlueChip does not hold a solar contractor license, nor does it hold an electrical contractor license as required by the ITB. By letter dated November 20, 2010, Dimitri Nikitin (Dr. Nikitin), president of BlueChip, wrote to UCF concerning the rejection of BlueChip's bid. The letter stated in part: On behalf of BlueChip Energy, LLC, which submitted a bid for the SunSmart Emergency Shelters project on November 8, I would like to express my concerns and ask for clarification regarding the Intent to Award notice for UCF Bid 1030lcsar posted on the UCF Purchasing website on November 19. First, we would like a written explanation why UCF rejected BlueChip Energy's bid. Our bid followed the requirements of the ITB to the letter, including compliance with the Buy America Act and ability to provide a payment and performance bond. * * * We would like to receive a clear explanation of why the only solar panel manufacturing, engineering and Installation Company in Florida with first hand PV module manufacturing experience and multi-Megawatt international install base was simply rejected as a bidder. To find out the reasons for your decision we will initiate a media investigation and congressional and Florida Energy Commission inquiry into the administration of UCF bid 1030LCSAR, and the possible conflict of interests of UCF employees and related parties. Your timely response to our questions and concerns is very much appreciated. The BlueChip letter dated November 20, 2010, did not state that it was intended to be a Notice of Protest. By letter dated November 24, 2010, BlueChip responded to each of the deficiencies listed in UCF's letter to BlueChip dated November 19, 2010. BlueChip's letter dated November 24, 2010, did not state that the letter was supposed to be a formal protest, but did state: Due to the spurious and baseless nature of the issues raised by your November 19 letter we insist UCF immediately reinstate and reconsider our bid. In the absence of that we will have no choice but to initiate a media investigation and congressional and Florida Energy Commission inquiry into the administration of ECF [sic] bid 1030LCSAR and the possible conflict of interest of UCF employees and related parties. Additionally, the November 24, 2010, letter did not include a protest bond. Appendix II, section 13, of the ITB provides: 13. Compliance with the Buy America Recovery Act Provisions (Section 1605 of Title XVI)-- By accepting funds under this Agreement [State of Florida Grant Assistance Pursuant to American Recovery and Reinvestment Act], the Grantee [UCF] agrees to comply with sections [sic] Section 1605 of the American Recovery and Reinvestment Act (ARRA)." The Grantee should review the provisions of the Act to ensure that expenditures made under this Agreement are in accordance with it. The Buy American provision in the American Recovery and Reinvestment Act of 2009 (section 1605 of title XVI), provides that, unless one of the three listed exceptions applies (nonavailability, unreasonable cost, and inconsistent with the public interest), and a waiver is granted, none of the funds appropriated or otherwise made available by the Act may be used for a project for the construction, alteration, maintenance, or repair of a public building or public work unless all the iron, steel, and manufactured goods are produced in the United States. On September 30, 2010, the United States Department of Energy granted a limited waiver of the Buy America provision of ARRA with respect to certain PV equipment. The waiver provided: This amended public interest determination waives the Buy American requirements of EERE-funded Recovery Act projects for the purchase of the following solar PV equipment: (1) Domestically-manufactured modules containing foreign-manufactured cells, (2) foreign-manufactured modules, when completely comprised of domestically- manufactured cells, and (3) any ancillary items and equipment (including but not limited to, charge controllers, combiners, and disconnect boxes, breakers, fuses, racks, lugs, wires, cables and all otherwise incidental equipment with the exception of inverters and batteries) when utilized in a solar installation involving a U.S. manufactured PV module or a module manufactured abroad but comprised exclusively of domestically-manufactured cells. (emphasis added). BlueChip's bid specifies inverters manufactured by SMA America Solar Technologies, Inc. (SMA), specifically SMA's Sunny Boy 4000US inverter and Sunny Island 5048US inverter. SMA's Sunny Island 5048US inverter is made in Germany, not the United States. The United States Office of Management and Budget (OMB) has issued interim final guidance, directing that the Buy American provision shall not be applied where the iron, steel, or manufactured goods used in the project are subject to an international agreement. The recipient of ARRA funds is to treat the goods subject to an international agreement the same as domestic goods and services. In Florida, only executive branch agencies may invoke the United States' international trade agreements. State of Florida universities may not participate in the international trade agreements. The total bid of BlueChip was $6,383,811.00. The value of the contract awarded to Vergona-Bowersox pursuant to the ITB was $6,720,896.70. Appendix 1, section 2(C)(8), of the ITB states: "The battery bank shall have a minimum usable capacity (at C/100) of 25kWh." BlueChip's bid specifies a battery bank capable of producing and delivering a maximum energy output of 24 volts to its specified Sunny Island 5048US inverter. In order to turn on and function, the Sunny Island 5048US inverter requires a minimum energy input of 41 volts from the battery bank. The 24 volts produced by the battery bank specified by BlueChip is insufficient to turn on the inverter. Therefore, the PV system bid by BlueChip would not be functional and would not meet the minimum usable capacity required by the ITB, because the inverter could not be activated by the battery bank. Appendix 1, section 2(C)(8), of the ITB provides the following requirements: PV systems must be capable of parallel operation with the utility supplied electrical service to the facility. The entire PV system must also be capable of stand-alone operation, providing backup power to a critical load panel when the utility supplied electrical service is unavailable. Systems will be grid- interactive, providing power to a collection of pre-determined critical loads. BlueChip's electrical schematic is non-conforming to the ITB, because it does not properly allow for the required operation with the utility supplied electrical service to the facility and is not capable of a stand-alone operation, providing backup power to a critical load panel when the utility supplied electrical service is unavailable. BlueChip's bid specifies a PV array capable of producing and delivering a maximum energy output of approximately 90 volts to its specified Sunny Boy 4000US inverter. In order to turn on and function, the Sunny Boy 4000US inverter requires a minimum energy input of 295 volts from the PV array. Therefore, the system bid by BlueChip cannot turn on the Sunny Boy 4000US inverter included in BlueChips's system, which makes the system nonfunctional. BlueChip's bid contains a schematic showing a Sunny Boy 4000US inverter with two DC inputs and two AC outputs. Sunny Boy 4000US inverters have only one DC input connection and one AC output connection. Based on the schematic submitted by BlueChip, the system is nonfunctional. The ITB provides that UCF may waive "any minor irregularity." BlueChip contends that any technical issues with the system bid could be corrected by FSEC during the certification process after the bids were opened and the intended award was announced. Appendix 1, section 1(C)(1), of the ITB provides: Bidders will serve as the prime contractor and must be licensed to install photovoltaic systems in the State of Florida. Bidder must hold a valid license as a certified solar contractor or electrical contractor, per Chapter 489, Florida Statutes. General Contractors may not serve as a prime contractor for the installation of a photovoltaic system due to the limitations provided in Section 489.113(3), Florida Statutes. Bidders may include subcontractors as deemed necessary, but subcontractors must be identified in the bid response, with a description of the work to be performed by each subcontractor. A successful Bidder will be solely responsible for fulfilling the terms of award. BlueChip submitted the bid and identified itself as the prime contractor in its bid. In its bid, BlueChip identified Advanced Solar Photonics and Complete Electrical Contractors as wholly-owned subsidiaries of BlueChip. BlueChip purchased Complete Electric Contractors, Inc., and the name was changed to Complete Electric Contractors, LLC. On January 5, 2010, Complete Electric Contractors, LLC, registered to do business under the fictitious name of BlueChip Energy. No evidence was presented at the final hearing that BlueChip was a certified solar contractor or that BlueChip was registered or certified pursuant to section 489.521, Florida Statutes. BlueChip contends that BlueChip meets the requirement as an electrical contractor, because Complete Electrical Contractors, Inc., was registered as a business performing electrical contracting with Andrew White (Mr. White) as the qualifying agent and is a wholly-owned subsidiary of BlueChip. Complete Electrical Contractors, LLC, is the wholly-owned subsidiary of BlueChip and is a separate legal entity from BlueChip. The bid was not submitted by Complete Electrical Contractors, LLC, or by Complete Electrical Contractors, Inc. Additionally, Mr. White is the qualifying agent for Complete Electrical Contractors, Inc., not Complete Electrical Contractors, LLC. BlueChip did not list Complete Electrical Contractors, LLC, as a subcontractor in its bid. Appendix 1, section 1(D), of the ITB provides that, if a bidder chooses not to use a PV system that is not already certified by FSEC, the bidder is responsible for submitting an application for system certification. There is a special application process in FSEC for applications that are being made as part of a bid solicitation process. The applications are submitted, but the processing fee is not required at the time of the submittal of the application, and only the applications for bidders selected for a contract will be certified. The directions for submittal of the applications for certification are contained in Appendix 1, section 1(4), of the ITB, which provides: IMPORTANT: The Florida Solar Energy Center has established a modified application process for certifying PV systems for this program only. The following process should be followed carefully to qualify for this offer. On or before the deadline date of the ITB, Bidder must complete and electronically submit (see ii below) the Photovoltaic System Certification--SunSmart E-Shelter Program Application form available at: http://www.fsec.ucf.edu/en/education/ sunsmart/e-shelters/documents/ EShelterApplication.pdf. Applications submitted under previous solicitations will not be considered under this program. Only certification applications submitted through the current bid process will be considered. Only fully completed applications will be accepted for consideration under this program. The application must include all required documentation to be considered complete. All materials must be submitted electronically to FSEC in a single email. FSEC will not accept partial submissions. All email attachments must be in PDF format. All certification applications must be sent to pvshelter@fsec.ucf.edu. A complete electrical schematic that includes the following information is required as part of the system certification package. (This list is provided for guidance and assistance only and is not the only information required in the certification application.) Modules labeled and shown in correct array configuration (source circuits) Size, type, and location of all conductors (+dc, -dc, L1, L2, L3, N, G, etc.) in the system Complete circuit paths shown Size, current rating, voltage rating, and location of all over-current protection devices Inverter/Charger/Controller equipment correctly identified Data acquisition system (DAS) [monitoring equipment] identified Battery wiring and cables labeled and shown in correct bank configuration Complete details of the system grounding in compliance with NEC 690 V. Grounding Point of interconnection specified and in compliance with NEC 690.64(B)(7) Ratings and locations of all disconnects Incomplete applications will be rejected and the applicant's system and bid may be ineligible for an award under this program. The applicant will be so notified but application materials will not be returned to the applicant. The system bid by BlueChip had not been certified by FSEC. BlueChip was required to submit an application to FSEC as part of the bid process. BlueChip had submitted applications to FSEC as part of the previous solicitation for PV systems for emergency systems, which had been cancelled in October 2010. At the final hearing, Dr. Nikitin testified that he had submitted other applications for the ITB; however, the only receipt that he could produce was for an email delivery dated August 23, 2010, which was before the ITB was issued. The totality of the evidence does not establish that BlueChip sent an application by email to FSEC for the ITB. BlueChip did include with its bid two applications submitted in response to the previous invitation to bid. One application was dated July 28, 2010, and one was dated August 19, 2010. Because BlueChip submitted no application to FSEC for the ITB by email, FSEC evaluated the technical aspect of BlueChip's bid based on the application submitted with the bid. BlueChip asserted in its letters to UCF, dated November 20, 2010, and November 24, 2010, that there had been a conflict of interest concerning a member of the Policy Advisory Board of FSEC and Vergona-Bowersox. However, no evidence was presented to support this assertion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that BlueChip failed to submit a notice of protest in accordance with UCF Regulation 7.130; finding that the rejection of BlueChip's bid is not arbitrary, unreasonable, or capricious; and rejecting BlueChip's bid. DONE AND ENTERED this 8th day of April, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 8th day of April, 2011.
The Issue The principal issue to be resolved in this proceeding concerns whether certification should be issued to Florida Power Corporation (FPC) for approval to operate a nominal 269 megawatt (MW) combined-cycle generating unit located at FPC's Tiger Bay Cogeneration Facility west of Ft. Meade, Florida, in accordance with the provisions of Section 403.501(2), Florida Statutes. The second issue to be resolved in this consolidated proceeding is whether the site of the Tiger Bay Cogeneration Facility is in compliance and consistent with the applicable land use plans and zoning ordinances of Polk County, pursuant to Section 403.508(2), Florida Statutes.
Findings Of Fact Florida Power Corporation is an investor-owned utility that provides electric service to more than 1.2 million customers in its Florida service area. Tiger Bay Limited Partnership completed the construction of the Tiger Bay Cogeneration Facility in late 1994. FPC entered into a power purchase agreement to purchase the power provided by the Tiger Bay Facility. On January 20, 1997, FPC agreed to purchase the Tiger Bay Facility from the Tiger Bay Limited Partnership. FPC now operates the Tiger Bay Plant as one of its electric generating facilities. The Tiger Bay Cogeneration Facility is an existing combined-cycle electrical generating plant which has been in operation since January 1995. The Facility consists of a combustion turbine (CT) and a steam turbine generator, that is currently limited to generating no more than 74.9 megawatts (MW) of electricity. The steam turbine has been specifically operated to produce no more than 74.9 MW. Therefore, the Plant was not subject to the Power Plant Siting Act. However, FPC has determined that the generating capacity of the steam turbine is nominally 10-15 MW greater than the capacity currently being used at the Plant. The Tiger Bay Facility is currently operating under separate environmental and other permits and approvals issued by FDEP, the Southwest Florida Water Management District (SWFWMD), Polk County and other agencies. The Tiger Bay Facility has been operated in compliance with those permits and approval, and no violations of those permits have occurred since the Plant began operation. By this certification application, FPC is seeking to consolidate the current permits and approvals for the Tiger Bay Facility into a single PPSA certification to authorize the use of the Plant's incremental steam-electric generating capacity. FPC proposes to utilize the additional steam-electric generating capacity in the steam turbine which would increase the generating capacity above the 75 MW threshold of the Power Plant Siting Act. Therefore, certification under the PPSA is required before FPC can obtain the additional electricity from the Plant. No physical changes to the facility or new construction are required to obtain the additional electricity. Only a minor operational change in the steam turbine controls is required to produce the incremental electricity through more efficient utilization of the steam. The Tiger Bay Facility is located on a 6.2 acre tract of land that is leased from the U. S. Agri-Chemical (USAC), Ft. Meade Chemical Complex. The lease extends until 2025 and may be renewed for an additional 25 years. The project's site boundaries will not be expanded to obtain the additional electrical generation. The site is located in southwest Polk County, Florida, approximately 3 miles west of Ft. Meade. The site is bounded on the north by S. R. 630. The project site is in the unincorporated area of Polk County. Ft. Meade is the only local government within a 5-mile radius of the Facility. The area surrounding the Tiger Bay Facility has been dominated by phosphate mining operations. Most of the land within a 5-mile radius of the Plant consists of active phosphate mining, reclaimed mine land, and lands in various stages of reclamation. Other land uses in the area include pasture land and citrus groves, along with limited residential, commercial and industrial uses. The nearest residence is over one mile from the project site. Land use in this area of Polk County is in transition as the phosphate industry completes mining phosphate deposits in the County. The Tiger Bay Plant site contains no significant environmental features. No wetlands, trees, shrubs or listed species or habitats exist within the site. Site vegetation consisted of ruderal and grassy communities prior to development for this project. No jurisdictional natural wetlands exist on the project site. No archaeological or historical sites were found on the project site when developed for this facility. The Tiger Bay Cogeneration Facility consists of one combustion turbine and electric generating unit, and one heat recovery steam generator (HRSG) and one steam turbine generator. In the CT, compressed air and fuel are ignited to provide energy to the air as it passes through the expansion section of the CT. The CT drives an electrical generator which has a nominal electrical output of 184 MS. Exhaust gases from the combustion turbine are then routed to the HRSG where water is boiled into steam. The steam from the HRSG powers a steam turbine which drives a second electrical generator, which will now generate 85.5 MW (nominal) of electricity. As a Cogeneration facility, the Tiger Bay Plant also exports up to 75,000 pounds per hour of low-pressure steam to the adjacent USAC Plant for use in its processes. This steam is extracted from the steam turbine part way through the steam electric generation process. The combined cycle facility is fired primarily with natural gas, with fuel oil as a backup fuel. Natural gas is supplied by a pipeline connected to the Florida Gas Transmission System. Oil will be stored in an onsite tank. The increase in steam generating capacity will be obtained by more efficient use of the steam that is already being produced in the HRSG. Currently, the steam is not fully utilized because its pressure is throttled by an internal control valve. To obtain the additional steam-generated electricity, the controls on this valve will be adjusted to increase the volume and pressure of the steam passing through the steam turbine. This increased steam pressure will generate additional electricity in the steam turbine generator. However, no physical modifications to the Tiger Bay Facility are required to obtain this additional steam generating capacity. Further, no increase in fuel use is required to obtain this additional capacity, and no increase in air emissions will result. All of the air emissions form the Facility are associated with the operation of the combustion turbine, which operates independently from the heat recovery steam generator. The main plant cooling-system begins with a steam condenser which cools the steam exhausted from the steam turbine. Heated cooling water is circulated to the on-site cooling tower where it is sprayed within the cooling tower to release the heat to the atmosphere. Fans at the top of the tower pull air into the tower in the opposite direction to the falling water. Cooled water collects in the bottom of the cooling tower and its returned back to the steam condenser. Approximately five percent of the cooling-water is lost in the cooling tower through evaporation and through drift, or water entrained in the air flowing through the tower. Two deep wells on site supply the makeup water for the cooling-water system. The other on-site water use is the potable water system, permitted for up to 1,000 gallons per day. Water is piped from an on-site well, filtered, and treated in a chlorinator before being distributed for use in the Plant. Wastewaters from the Plant consist of blowdown, or water withdrawn from the cooling tower and the heat recovery steam generator. This blowdown is necessary to prevent a buildup of dissolved solids in the waters from scaling in the circulating water system. Process wastewater and stormwater that contacts industrial processes are collected and recycled or routed to the adjacent USAC Plant where the wastewater is used in the phosphate production process. The Tiger Bay Facility has no off-site discharges of wastewater to either surface water or groundwater. The Facility also includes a back-up zero liquid discharge unit, which treats cooling-tower blowdown and process waters to remove the solids. The recovered high-quality water is recycled back into the Plant's process water stream. Domestic wastewater is treated and disposed on site through a septic tank system. Solid wastes that are generated at the Plant are typical of those associated with a light industrial facility. These wastes are re-cycled or re-used as much as possible. Solid wastes not re-cycled are picked up and disposed of in the Polk County landfill. The back-up zero liquid discharge system, when operational, produces a filter cake as result of drying the wastewater discharge. The non-hazardous material is also sent to the Polk County landfill for disposal. Electricity generated at the Plant is distributed from an on-site switchyard into the Florida Power Corporation transmission system. No changes to this transmission system are required for the additional electricity to be produced. Project Impacts: The Tiger Bay site is located in an area classified by FDEP as in "attainment" of all criteria air pollutants. The area is designated as Class II from a "prevention of significant deterioration" standpoint. The nearest Class I air-quality area is over 100 km to the northwest of the project site. The Tiger Bay Cogeneration Facility operates under an existing FDEP-issued Prevention of Significant Deterioration (PSD) permit. Nitrogen oxide (NOX) emissions are controlled with the use of low NOX burners when using natural gas, and with steam or water injection when firing oil. Particulate matter (PM) emissions are controlled through the use of clean fuels and combustion controls. Carbon monoxide and volatile organic compound emissions are also controlled through good combustion practices. Emissions of sulfur dioxide and metals, such as lead, mercury, beryllium and arsenic, are controlled through the use of clean fuels. PSD increments and ambient air-quality standards will be protected when the facility is being operated. The operation of the Plant at its increased steam generating capacity of 85.5 MW will not require any changes or additions to the facility. No increase in environmental impacts will result from the 10-15 MW (nominal) increase in steam generating capacity. The Plant will continue to operate within the currently permitted quantities of water for the facility, under the existing SWFWMD consumptive use permit. The project will not result in an increase in project- related traffic. The project also will not result in an increase in noise levels at the Plant site. The benefits of the project are that additional electricity is obtained without increasing either fuel use or environmental impacts from the Tiger Bay Plant. These "free megawatts" result from enhancing the efficiency of the Tiger Bay Plant, resulting in savings to FPC's customers. The project also conserves energy by using the additional existing generating capacity without increasing fuel use in the Plant. Consistency with Local Land-Use Plans and Zoning Ordinances: The Tiger Bay Cogeneration Facility is located in a future land-use classification of "PM" or phosphate mining on the Polk County future land-use map. Electrical power plants like the Tiger Bay Cogeneration Facility are permitted in that land- use category. The project site is zoned by Polk County as "RC" or rural conservation, which allows electric power generating facilities as a conditional use in that zoning district. Polk County issued a conditional use permit and site approval for the Tiger Bay Cogeneration Facility on November 20, 1992. The continued operation of the Tiger Bay Plant with its increased electrical output under site certification will be consistent with the land-use and zoning designations for the project site as well as the conditional use permit since there will be no physical changes made to the facility. The Polk County development approvals for the Tiger Bay Facility were consistent with the Comprehensive Plan in effect at the time the approvals were granted. Further amendments to the Polk County Comprehensive Plan are not retroactively applied to projects once they have received necessary development approvals. Agency Positions and Stipulations: The DEP, the Florida Department of Community Affairs (DCA), the Florida Game and Freshwater Fish Commission (FG&FWFC), the Southwest Florida Water Management District (SWFWMD), the Florida Department of Transportation (FDOT), and Polk County each prepared written reports on the Project, and all recommended approval of the Tiger Bay Cogeneration Project. The DCA determined the project, if certified, would be consistent and on balance with the state comprehensive plan. In its report, Polk County indicated that no changes to zoning at the project site were required as a result of certification of the project. Polk County also determined that the Facility would still meet the conditions of the County's original conditional use permit for the project and no further actions would be required by the Applicant. The Central Florida Regional Planning Council did not submit a report to the Department of Environmental Protection as part of its review of the project. No state, regional or local agency has recommended denial of certification. The recommended Conditions of Certification incorporate the existing permits for the Facility.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the Evidence of Record, and the pleadings and argument of the parties, it is, RECOMMENDED that: Florida Power Corporation be granted final certification, pursuant to Chapter 403, Part II, Florida Statutes, for the location and continued operation of the existing Tiger Bay Cogeneration Facility and its increased steam- electric generation capacity, as proposed in the Site Certification Application, and subject to the Conditions of Certification attached hereto; and The Siting Board find that the site of the Tiger Bay Cogeneration Facility, as described in the Site Certification Application, is consistent and in compliance with the existing land-use plans and zoning ordinances of Polk County, as they apply to the site, pursuant to Section 403.508(2), Florida Statutes. DONE AND ENTERED this 30th day of April, 1998, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1998. COPIES FURNISHED: Scott A. Goorland, Esquire Department of Environmental Protection Twin Tower Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Doug Roberts, Esquire Hopping, Green, Sams and Smith, P.A. Post Office Box 6526 Tallahassee, Florida 32314-6526 Charles T. Collette, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Robert V. Elias, Esquire Division of Legal Services Florida Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 James V. Antista, Esquire Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Andrew S. Grayson, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Suite 315 Tallahassee, Florida 32399-2100 Earl Peterson, Director Division of Forestry Department of Agriculture and Consumer Services 3125 Conner Boulevard, C-19 Tallahassee, Florida 32399-1650 Hamilton Oven, Administrator Office of Siting Coordination Department of Environmental Protection 2600 Blair Stone Boulevard Mail Station 48 Tallahassee, Florida 32399-2400 Brian Sodt Central Florida Regional Planning Council 555 East Church Street Bartow, Florida 33830 Mary Miller, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 George W. Perry, Director Director of Historical Resources Archives and History R. A. Gray Building 500 South Bronough Street Tallahassee, Florida 32399 Pepe Menendez, P.E. Department of Health Environmental Health Services 1317 Winewood Boulevard Tallahassee, Florida 32399-0070 Rich Tshantz, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Merle Bishop Polk County Florida Post Office Box 60 Bartow, Florida 33830 W. Jeffrey Pardue Florida Power Corporation Post Office Box 14042 MAC H2G St. Petersburg, Florida 33733 Doug Roberts, Esquire Hopping, Green, Sams and Smith, P.A. Post Office Box 6526 Tallahassee, Florida 32314-6526
The Issue The issue in this case is whether the Siting Board should grant a site certification to Gainesville Regional Energy Center, LLC (GREC) for the construction and operation of a 100-megawatt (MW) biomass-fired electrical power plant in Gainesville, Florida, pursuant to Sections 403.501 through 403.518, Florida Statutes.
Findings Of Fact Introduction On November 30, 2009, GREC filed with DEP an Application for the construction and operation of a net 100 MW (gross 116 MW), biomass-fired electrical power plant at GRU's Deerhaven power plant complex. GREC seeks to place the biomass plant in service on or before December 31, 2013, which is the deadline for eligibility for a federal renewable-energy grant under the American Recovery and Reinvestment Act of 2009. GREC is a subsidiary of American Renewables, LLC, which develops, builds, and operates renewable-energy facilities. American Renewables, LLC, is jointly owned by affiliates of three corporations that develop, operate, invest, and manage various types of energy projects. American Renewables, LLC, recently obtained permits for a similar biomass plant, also of 100 MW net, in Nacogdoches, Texas. This plant, which is expected to begin commercial operation in late 2012, has a power purchasing agreement with Austin Energy, a municipal utility owned by the City of Austin. American Renewables, LLC, recently sold the Nacogdoches plant to a subsidiary of Southern Company. GRU is a municipal utility of the City of Gainesville. GRU owns and operates a power generation, transmission, and distribution system to serve its 93,000 customers and its wholesale customers, which include the City of Alachua and Clay Electrical Cooperative, Inc. In addition to owning a 1.4- percent share of the Progress Energy Florida Crystal River Unit Three, GRU owns three power supply facilities, which generate a summer net capacity of 608 MW. Of these, the largest is Deerhaven, which generates 440 MW net. A former mayor of the City of Gainesville, Intervenor served on the utility committee of the City Commission and participated in utility planning for GRU. Intervenor lives less than 10 miles from the Deerhaven site and regularly walks outdoors, works in his yard, and bicycles in the area. He enjoys canoeing on local waterways and observing wildlife, such as eagles, hawks, and owls. Identifying himself as a "locavore," Intervenor favors locally grown food. Application According to the Application, the GREC site consists of 131 acres within the Deerhaven site in northwest Gainesville and north central Alachua County--eight miles from downtown Gainesville to the southeast and seven miles from downtown Alachua to the northwest. The Deerhaven site is within a 1146- acre parcel owned by the City of Gainesville. The Deerhaven site includes several units. Unit 1 generates 88 MW by way of a natural gas or oil-fired steam unit. Unit 2, which was certified in 1978, generates 235 MW (sometimes described as 250 MW) by way of a pulverized coal-fired unit. Unit 3 generates 76 MW by way of a natural gas or oil-fired, simple-cycle combustion turbine unit. Deerhaven also includes two 19-MW, simple-cycle combustion turbine units. If the Siting Board issues a certificate for the GREC site, GRU would not be required to decertify any part of its site; instead, GRU's certificate would be modified to reflect the certification issued to GREC. The GREC site abuts the northwest boundary of the GRU's existing generating facilities at Deerhaven. The GRU facilities immediately east of the GREC site are an ash landfill, brine landfill, and large stormwater management pond. Abutting these facilities to the east are ash settling ponds and a wastewater treatment sludge disposal cell, and, abutting these facilities farther to the east, is a large coal pile. A spur of the CSX rail line, which is used for coal deliveries to Deerhaven Unit 2, terminates just south of the GREC site. Except for secondary access roads and unpaved trails, no Deerhaven facilities occupy the GREC site. Immediately west of the GREC site is a site used by the Alachua County Public Works Department for an office and other facilities. Also west of the GREC site is a radio tower and undeveloped land. The southernmost extent of the GREC site fronts on U.S. Route 441, which is lined by intermittent commercial and retail uses in this area. Across U.S. Route 441, over one-half mile from the GREC site, is the nearest residential subdivision, which is called Turkey Creek. The Application reports that, in the early 2000s, the City of Gainesville purchased an additional 2328 acres of timberland north and east of the Deerhaven site for buffer and potential expansion. The entire area, including the GREC site, was historically devoted to agriculture and pine silviculture, but the GREC site is now occupied by ditches, swales, some forested communities, and the roads and trails previously mentioned. According to the Application, the GREC facility will feature a bubbling fluidized bed boiler (BFBB) and conventional steam turbine generator. Except during startup, when the boiler will consume natural gas until it reaches operating temperatures, the BFBB will burn a wide range of clean, woody biomass fuels in a dense, fluidized sand bed at the bottom of the furnace and also in the area above the bed. The biomass fuel will be derived from logging residue, mill residue, and urban wood waste derived from tree trimming. The BFBB will combust one million tons per year (tpy) of biomass. To obtain the fuel, GREC will enter into contracts with suppliers within 75 miles of the site. GREC will incorporate in supplier contracts requirements of sustainability and incentives for good stewardship in silvicultural practices. Suppliers will chip or grind the wood at offsite locations and then truck the woody materials to the GREC site. Each truck arriving at the site will be weighed and unloaded, so that the woody biomass can be placed in a fuel storage area until it is needed. The high combustion temperatures reached by the BFBB and the implementation of the requirement for clean woody fuel will, the Application reports, limit the generation of pollutants. As described in the Application, GREC will employ three additional pollution-control measures: 1) a selective catalytic reduction (SCR) system to reduce emissions of nitrogen dioxide (NO2); 2) a fabric filter baghouse to reduce emissions of particulate matter (PM); and 3) dry sorbent injection (DSI) to reduce emissions of sulfuric acid mist (SAM), hydrogen chloride (HCl), and hydrogen fluoride (HF). The Application states that GREC will not emit any industrial wastewater from the site. By recycling and reusing water, GREC expects that its water use, primarily to replace water lost to evaporation in its mechanical cooling tower, will be 1.4 million gallons per day, which will be taken from the Upper Floridan Aquifer. GRU has agreed to reduce its water withdrawals by the same amount prior to commencement of operations by GREC. The GREC site will also include an administration building, a warehouse, several stormwater detention ponds, water and wastewater treatment facilities, storage facilities for the fly ash and sand from the BFBB, two emergency diesel engines, and a switchyard. Linear facilities, several of which extend slightly off of the GREC property, include roads, sanitary sewer and natural gas pipelines, and a 138-kV transmission line and switchyard. The Application describes various alternatives considered by GRU to the GREC biomass plant. The no-action alternative is implicitly considered and dismissed in a discussion of the age of GRU's other power-generation equipment- 25 years; prevailing power demand during the summer peak season- -441 MW; and the year of projected capacity shortfall--2023. Among other alternatives, GRU considered renewable sources-- geothermal, solar, biogas from landfills, waste-to-energy, wind, and biomass--and conventional sources--natural gas, coal, coal combusted in a fluidized bed, coal gasification, and nuclear. In 2007, the City of Gainesville decided not to pursue coal due to climate-change concerns. Governor Crist's executive order on climate change also discouraged the submittal of coal- based applications to the Siting Board. In January 2008, after having solicited and received a round of nonbinding proposals identifying various options, the City of Gainesville invited three vendors, including the predecessor of American Renewables, to submit binding proposals. The resulting proposals discussed eight options--all of which used biomass as the exclusive fuel source. At a meeting in May 2008, the City Commission unanimously voted to accept the American Renewables proposal. The City of Gainesville has identified numerous benefits from the GREC project. These include enhancing the integrity and reliability of the generating system, reducing the average age of the generating system, producing reasonably priced electricity, diversifying fuel sources, avoiding the price fluctuations of fossil fuels, hedging the risks of anticipated carbon-constraint legislation (if biomass is treated preferentially under such legislation), reducing construction and operation risks, reducing open burning of biomass products in forestry operations, reducing landfilling of woody biomass, and supporting the silviculture industry. The site plan depicts the location of all of the components of the GREC facility. By groupings from west to east, the GREC components are the fuel-storage area, which consists of separate wood piles that are described in detail below; parking, offices, a warehouse, a control room, fire pumps, a water treatment facility, and water tanks; a 50-foot wide band of unoccupied land; a switchyard with transmission line running to a new GRU switchyard at U.S. Route 441, the switchyard control room, the steam turbine, fuel day bins connected to the storage area by a conveyor, the boiler, a baghouse, and an aqueous ammonia storage area; and a cooling tower. These components are concentrated on the north side of the site, farthest from U.S. Route 441, and toward the east side of the site, nearest GRU's Deerhaven operations. The boiler, steam turbine, emissions-control equipment, boiler stack, and cooling tower are 3200 feet northwest of U.S. Route 441 and 2200 feet east of the public works department. The GREC switchyard will transform the power to 138-kV. The transmission lines run along the access road to the new GRU switchyard, which is on U.S. 441 in a small outparcel from the GRU parcel. The GRU switchyard will transmit the power to the existing GRU 138-kV transmission lines along U.S. Route 441. GREC will construct the new GRU switchyard and the 300 feet of new 138-kV transmission to the existing transmission lines. The Application depicts two areas of 100-year floodplain. The northern of these areas is at the northmost part of the GREC parcel. The east end of this floodplain will be converted to three stormwater ponds, and the west end will remain an undisturbed wetland. The southern of the two floodplains is in the area of the new GRU switchyard. The only encroachments on this floodplain will be the access road and transmission line; otherwise, the southern floodplain is left undeveloped. The Application states that the nearest fire station is 3.4 miles to the south, and the nearest hospitals are 6.3 and 8.3 miles to the south. Solid waste will be transferred ultimately to the New River regional landfill in Raiford, which has a projected life of more than 50 years at current filling rates. The City of Gainesville lies at a peninsular divide. To the east, water drains to the Atlantic Ocean by way of the Ocklawaha River and St. Johns River. At the site, water drains into the Gulf of Mexico by way of Turkey Creek, the Santa Fe River, and the Suwannee River. Drainage from a small part of the northern end of the site reaches the Santa Fe River by way of the Rocky Creek drainage basin. The surface waters around the GREC site are Class III waters. About 72 percent of the GREC site is vegetated by hardwood-conifer mixed and coniferous plantation. The former classification reflects selective thinning of timber, and the latter category reflects a human-altered community. Another ten percent of the onsite vegetation is wetland forested mixed. No naturally occurring aquatic communities occupy the GREC site. The swales are seasonally wet, but not hydrologically connected to other surface waters, at least up to the design storm. Silviculture has heavily influenced the terrestrial flora communities. Two biologists, one of whom specializes in wildlife, conducted a wildlife survey on the mornings of May 27 and 28, 2009. Among listed animal species, the biologists saw, heard, or found evidence of no listed species on the site, which is presently and will continue to be fenced for security reasons. As to listed species, the biologists found only an abandoned burrow that had probably been used by a gopher tortoise and offsite use by alligators and listed bird species. The biologists found no listed plant species at the GREC site. Five important plant species occur within five miles of the GREC site, but these are found in the San Felasco Hammock Preserve State Park, which is 1.5 miles west of the site, immediately west of the Turkey Creek residential subdivision. As for the potential use of the GREC site by listed wildlife species, the wildlife biologist found moderate potential for only the Eastern Indigo snake, snowy egret, tricolored heron, Southeastern American kestrel, and Florida sandhill crane. The nearby presence of the American alligator, little blue heron, white ibis, and wood stork (roosting only) would also suggest moderately likely use of the GREC site by these listed species. Longstanding onsite silvicultural practices, including drainage, clearing, and road-building, have disrupted the upland natural plant communities and facilitated their displacement by such nuisance exotics as cogongrass, torpedo grass, and Chinese tallow. The wetlands communities have also been stressed, as evidenced by the presence of dead cypress trees, gaps in natural wetlands vegetation, and opportunistic wetlands vegetation, such as duckweed and various vines. Suggestive of the post-developed state of the GREC site, the Deerhaven operations also stress the fauna, but the stormwater ponds attract a large number of wetland- and water-dependent species. The Application states that the predominant winds are from the northeast and west-southwest. The average wind speed is 2.6 meters per second. Calm winds occur 26 percent of the time, primarily in the summer. Situated 55 miles from the Gulf of Mexico and 70 miles from the Atlantic Ocean, the GREC site is shielded by enough land mass to reduce or eliminate the destructive effects of most tropical storms. The Application states that ambient air quality is a product of meteorology, atmospheric chemistry, and pollution emissions. Meteorology controls the distribution, dilution, and removal of pollutants. Atmospheric chemistry controls the transformation of primary pollutants into secondary pollutants. Primary pollutants are discharged directly from the source and, for GREC, will include nitrogen oxides (NOx), sulfur dioxide (SO2), carbon monoxide (CO), and particulate matter (PM), or, traditionally, soot, although, as a fugitive emission, PM is better considered as dust from the biomass fuel, except when the source is ash residue. For GREC, the most important secondary pollutant is ozone, which forms from the combination of NOx and volatile organic compounds (VOCs) in sunlight. The Application states that the U.S. Environmental Protection Agency (EPA) has established national ambient air quality standards (AAQS) for six pollutants: SO2, NO2, CO, lead, ozone, and PM, which comprises PM10 and PM2.5. Title I, Part A, Clean Air Act. The latter two pollutants are, respectively, PM not greater than 10 microns and PM not greater than 2.5 microns. Primary air quality standards for these criteria protect human health, and secondary air quality standards for these criteria protect the environment and physical property. For all six AAQS criteria, the EPA has not designated the relevant area a nonattainment area. The record does not suggest that the EPA has designated any part of Florida a nonattainment area for any of the AAQS pollutants. For the AAQS pollutants, then, the relevant area has acceptable air quality in terms of air impacts on human health. Unlike the Clean Air Act programs involved in this case, the AAQS program focuses exclusively on human health and does not balance impacts to human health or the environment against issues of economic productivity. EPA has developed an air quality index that describes air quality in relative terms. Good is the highest rating and means that air pollution poses little or no risk. Moderate means that air pollution may be a moderate health concern to a very small number of persons. Unhealthy for sensitive groups means just that, and healthy groups are unlikely to be affected. Unhealthy means that air pollution may cause everyone to begin to experience health effects, and sensitive groups may experience more serious health effects. The two remaining classifications are very unhealthy and hazardous. For 2007, the EPA classified the air quality in Alachua County as 315 days of good, 44 days of moderate, and 6 days of unhealthy for sensitive groups. For 2008, the EPA classified the number of good days as only 258. In general, the EPA classifies the air quality of Alachua County as good with the main pollutant adversely affecting air quality as ozone. For Alachua County, stationary fuel combustion generates about 91 percent of the SO2, about 28 percent of the NOx, about 14 percent of the PM2.5, about six percent of the PM10, and nearly none of the CO and VOCs. Another Clean Air Act program of interest in this case is the National Emission Standards for Hazardous Air Pollutants (NESHAP), which is Title I, Part A, § 112, of the Clean Air Act. The NESHAP regulatory scheme focuses on enumerated hazardous air pollutants (HAPs). For Alachua County, HAPS are not attributable primarily to stationary fuel combustion. The Application states that 86 percent of these pollutants were emitted from mobile and area small sources, such as dry cleaners and gas stations. The main feature of the GREC facility is, of course, the boiler. Emitting 95 percent of the total emissions of the GREC facility, the BFBB consists of sieved natural sand, which is maintained in suspension by a fluidizing air system. The fluidization yields an expanded combustion zone within the boiler with high turbulence, intimate solids-to-gas contact, and a high heat transfer rate. While combusting biomass fuels, the bed temperatures range from 1350 to 1700 degrees. (All temperatures are Fahrenheit.) Overfire air, usually 200 degrees hotter, is introduced to complete the combustion of volatile gases, such as CO. Flue gas leaving the 179-foot-high boiler passes through emission control equipment before discharging through a single 230-foot-high stack. The fabric filter baghouse will capture PM. As described in the Application, the baghouse comprises 12 filter compartments, each containing 250-350 bags that are six inches in diameter and 14- to 26-feet long. At the bottom of the baghouse is a hopper to collect ash. As PM forms on the bags, it forms a filter cake that increases the filtration efficiency of the bags. But once the air pressure drops to specified limits, high-pressure air pulses are directed, automatically, into each bag, loosening the caked fly ash and depositing it in the hopper below. Downstream of the baghouse, the SCR will reduce NOx from the flue gas stream by using a catalyst and a reactant (ammonia gas) to dissociate NOx into nitrogen gas and water vapor. The BFBB technology--especially the DSI--combined with low sulfur biomass fuel and the naturally occurring calcium in the wood ash, will control SO2, SAM, HCl, and HF emissions. Each business day, 130-150 trucks with wood chips will arrive at the GREC facility. They will proceed to a drive- through structure, which contains three truck dumpers and three receiving hoppers. From the hoppers, the fuel will be conveyed to a fuel processing system, where a metal detector and magnetic separator will remove metals, a disc screen will remove oversized chips, and a hammer hog will reduce the oversized chips to the design size of three inches or less. This equipment is located in an enclosed building with a dust- collection system. The processed fuel is conveyed outside to the fuel storage area. One wood pile will have an automatic stacker/reclaimer that will be able to deposit, churn, mix, and remove nearly the entire pile. Another wood pile, conical in shape, has a fixed stacker, and the material will be moved by bulldozers and front-end loaders. This rolling stock will transfer some of the wood chips to a smaller, manual-reclaim pile that will also be contoured by bulldozers and front-end loaders. A fourth, much smaller pile will be maintained for the delivery of presized material, mainly sawdust. As originally sized, the wood piles are intended to store sufficient fuel for 15-20 days of operations. In the Application, the automatic stacker/reclaimer pile is specified to be 85 feet high, but, after consultation with the Gainesville Fire Department, as detailed below, GREC agreed to reduce the height of this pile to 60 feet. The fixed stacker pile is 60 feet high, and the manual-reclaim pile is 35 feet high. The automatic stacker/reclaimer pile is 400 feet by 400 feet, and the manual-reclaim pile is 400 feet by 465 feet. GREC will manage the separate wood piles to maintain the design moisture content in the fuel, which is about 50 percent, but also to ensure that no portion of the stored wood remains in the pile for too long. In general, GREC intends to use fuel on the basis of first-fuel-in, first-fuel-out, to avoid problems of odor and spontaneous combustion, the latter of which is discussed in detail below. Fly ash from the boiler and baghouse filter will be collected dry and transported pneumatically to an onsite storage silo. From there--if needed, after stabilization with water-- the ash will be transported--enclosed, if still in dry form--for use as a soil supplement or, if such use is unavailable, to an approved offsite landfill. Another means of controlling emissions is ensuring that the biomass is suitably clean. The design biomass is forest residue, mill residue, precommercial tree thinnings, used pallets, and urban wood waste, which is predominantly the trimmings of landscape contractors. Supplementary fuels may include herbaceous matter and agricultural residues (such as rice hulls and straw, but not animal matter or manure). The GREC facility will not accept painted, treated, or coated wood, construction and demolition debris, or municipal solid waste. Relying on four investigations of the adequacy of the supply of available biomass resources, GRU determined that ample supplies exist within a 75-mile radius of the GREC site. Within 75 miles of the GREC site lie 6.44 million acres of timberland, of which 81 percent is privately owned. To discourage practices among its biomass suppliers that would reduce ecosystem biodiversity, GREC will impose upon them sustainability requirements that will mandate that they comply with the Division of Forestry's best management practices (BMPs) for timber operations and will prohibit the delivery of stumps (to avoid erosion in the source area) and biomass generated from the conversion of natural forests to plantation forests or from nonnative species, unless the nonnative-species biomass is generated from a forest restoration project. To enforce these sustainability requirements, the power purchase agreement between GRU and GREC requires GREC to obtain annual audits by an independent forestry consultant to assess supplier compliance, incorporate the sustainability requirements into its supplier contracts, require that suppliers identify each load with information sufficient to disclose the source of the fuel and the crew that obtained it, inspect at least 10 percent of all incoming fuels to ensure compliance with the sustainability requirements, require that suppliers maintain documentation for each load for three years, conduct semiannual inspections of all suppliers to investigate operations and recordkeeping, require suppliers to attend annual training seminars conducted by GREC, and suspend deliveries for at least one year from any supplier found to be noncompliant three times in a single year. To encourage practices among its supplies that will maintain or increase ecosystem biodiversity, GREC will pay premiums of $0.50 or $1.00 per delivered ton of biomass to suppliers that adhere to an approved forest certification program that is more demanding than the Division of Forestry's best management practices. The Application analyzes boiler and facility emissions in terms of New Source Review (NSR) for Prevention of Significant Deterioration (PSD), which is Title I, Part C, of the U.S. Clean Air Act, 42 U.S.C. §§ 7401, et seq. (Clean Air Act). Although this regulatory program is the subject of the air construction permit case, PSD analysis provides a useful framework for addressing the air impacts from the GREC facility. Among other things, NSR requires, for pollutants subject to PSD review, that the facility control emissions by the best available control technology (BACT), which is the maximum degree of reduction for each PSD-regulated pollutant, using available and feasible technology and taking into account energy, environmental, and economic impacts and other costs. The Application states that the BFBB will emit NOx, SO2, lead, mercury, CO, VOCs, PM/PM10, and SAM. Except for the lead, mercury, and SAM, the emissions exceed the PSD emissions rate and trigger PSD review. The annual emissions for the BFBB are: NOx--416.4 tpy; SO2--243.9 tpy; CO--713.8 tpy; VOCs--77.3 tpy; total PM--249.8 tpy; and SAM--5.9 tpy. The diesel emergency generator and firewater pump add small increments to these emissions. The other sources of pollution at the facility emit PM of various sizes. Four sources of material handling present the opportunity for fugitive emissions of PM. Fugitive emissions are nonpoint-source emissions that, although inadvertent, may be projected and modeled. These four sources are transfer points, material processing areas, wood piles, and fuel bins. To the extent practicable, all transfer points will be enclosed. The vents in storage silos will be equipped with appropriately sized air filters. Water will be used to control dust on the wood piles. The primary roads will be paved, and GREC will sweep and water them to control dust. GREC will water any unpaved trails. After applying all practicable controls, the Application projects material-handling annual fugitive PM emissions to be 11.6 tpy of PM, 2.3 tpy of PM10, and 0.34 tpy of PM2.5. These PM fugitive emissions compare to annual point-source PM emissions-- all assumed to be PM2.5--of 28 tpy. For the pollutants subject to PSD review--NOx, SO2, CO, VOCs, PM, and PM10--the Application states that GREC's employment of BACT will be directed primarily toward the BFBB. The Application assures: "The proposed configuration of the BFB combustor, DSI, baghouse, and SCR is considered the most stringent emission control technology train available for biomass-fired boilers and to represent BACT for the GREC BFB boiler." Application, Chapter 4, p. 4-49. (GREC's later agreement, as detailed below, to provide even more stringent pollution control technology does not necessarily undermine the force of this assurance in the Application; it would appear instead that the newer technology represents the most most stringent emission control technology train available for biomass-fired boilers.) NOx emissions will be limited by staging the combustion in the bed and lower furnace area. Combustion staging and flue gas recirculation reduce the flame temperatures, so as to reduce the formation of thermally generated NOx. By providing more than three seconds residence time at temperatures above 1500 degrees, the BFBB will minimize VOC and CO emissions. SO2 emissions will be limited by several means, starting with the bubbling bed furnace where sufficient amounts of calcium, sodium, and potassium will be available from the biomass ash to capture SO2 in the boiler. The DSI will further control SO2 emissions. PM/PM10 emissions will be limited by the baghouse's fabric filters, which, after exposure to the alkaline sorbent added by the DSI, will also remove SAM, HCl, and HF. CO and VOCs, which are formed by incomplete combustion of organic compounds contained in the biomass fuel, will be controlled by the duration of residence time, furnace temperatures, and good air mixing in the furnace. Through dispersion modeling of air impacts, GREC determined that the facility would not violate any PSD increment, although the GREC facility will emit, under the PSD program, significant emission rates of NOx, SO2, CO, PM, PM10, and ozone/VOCs. These matters are discussed in detail below. The Application states that wood contains trace amounts of mercury. Combustion at 1500 degrees vaporizes the mercury into gaseous elemental mercury. Subsequent cooling may produce elemental mercury, particle-bound mercury, and oxidized mercury compounds, which is also known as reactive gaseous divalent mercury (RGM). The baghouse filters might capture some of these mercury emissions, although GREC's analysis conservatively assumed that they would not. Of the 16.7 pounds per year of all forms of mercury projected to be emitted by the GREC biomass plant, about 70 percent of it, according to GREC's conservative assumptions, will be elemental mercury and 30 percent of it will be RGM. The former has long residence time in the atmosphere and travels long distances, and the latter deposits locally and regionally. By comparison, annual anthropogenic emissions of mercury in the United States were 145 tons in 2005, including 48 tons from power plant emissions. In 1999, mercury emissions from Florida coal-fired plants were 1923 pounds. Worldwide, anthropogenic emissions of mercury account for two-thirds of total mercury emissions, the remainder being from natural causes, such as volcanic eruptions and oceans. The Application considered wet and dry deposition rates of mercury in the Santa Fe River basin. After calculating an average areal wet deposition rate from the GREC facility, the Application concludes that it is 6000 times less than the average areal wet deposition at the nearest location for which such data are available. The Application also concludes that the wet plus dry deposition rate of mercury from the GREC facility will be 400 times less than the wet-only rate at the comparison location. Among the socio-economic benefits of the GREC facility, construction will generate $48 million of payroll, largely for local and regional labor, and $160 million in nonengineered construction equipment purchases. Operation will result in the employment at the facility of 44 fulltime employees, initially earning $4 million annually. NonGREC employment will include truck drivers and operators of wood- processing equipment. Incompleteness Determination and GREC Response On January 11, 2010, after consulting with affected agencies, DEP determined that the Application was incomplete. Among the issues in DEP's determination were several raised by the Florida Fish and Wildlife Conservation Commission (FWC): GREC relied inappropriately on the Florida Land Use and Cover Forms Classification System (FLUCFCS) for identification of plant communities that provide wildlife habitat; 2) GREC failed to identify the survey methodology (e.g., time of year and types of observed activities) and to perform a desktop review prior to "appropriate surveys," which "should be conducted during the [reproductive] season particular to each species"; 3) for the three isolated wetlands to be impacted by construction, GREC failed to conduct an amphibian breeding season survey targeting at least the gopher frog and consider the flatwoods salamander, due to the dominance of flatwoods soils on the site, when designing the survey; and 4) GREC failed to detail the maintenance conditions for wetland buffers to address wildlife functions, not merely stormwater functions. FWC concluded that it could not determine potential impacts to wildlife from the Application or conditions that should attach to certification. By Completeness Responses and Amendment to [Application] dated February 2010, GREC responded to the incompleteness determination. Responding to the issues raised by the FWC, GREC stated: 1) DEP forms and rules approved the use of the FLUCFCS system; 2) GREC had already performed the requested desktop review and detailed the survey methodology, but GREC agreed to a preclearing survey using FWC-approved methodologies and at times likely to maximize the observation of the subject species and further agreed to coordinate with FWC any mitigation methodologies for listed species impacted by construction; 3) the three isolated wetlands, which did not contain standing water, even during the wet season, were of no significant breeding or foraging habitat value and GREC declined to include methods for the flatwoods salamander because of extensive alteration of the land and the absence of such salamanders within five miles of the site, but GREC agreed to include in the preclearing survey methods for the gopher frog; and 4) GREC agreed to maintain wetland buffers in their current vegetative state. By letter dated March 4, 2010, DEP determined that the Application was complete. DEP Report By Electrical Power Plant Site Certification Project Analysis Report dated July 12, 2010 (DEP Report), DEP analyzed the proposed GREC facility in light of the Application and the applicable requirements of law. In terms of wetlands impacts, the DEP Report notes that GREC had proposed to mitigate for the destruction of 0.44 acres of low-functioning wetlands by placing in a conservation easement 10.25 acres of higher-functioning onsite wetlands and 12.33 acres of uplands buffer. The DEP Report stated that DEP's Wetlands Section did not object to this proposal. The DEP Report states that the studies that GREC had commissioned supported a finding that, annually, the supply of biomass exceeded GREC's need by at least five times. The DEP Report reports that Agriculture Commissioner Charles Bronson had recently concluded that biomass energy production encourages the sustainability of Florida's forests by discouraging their conversion into other uses through the creation of a market for low-value biomass materials, such as forest residues and premarket thinnings. The DEP Report states that fluidized bed combustion technology has been used since the 1970s and burns a wide variety of fuels "cleaner and more efficiently" than do other forms of combustion. According to the DEP Report, the Jacksonville Electric Authority uses two circulating fluidized bed boilers at its Northside Generating Station for burning coal, and this technology has reduced emissions by ten percent. According to the DEP Report, the BFBB is better at burning fuel with higher moisture content and lower heating values, so it is more suitable for burning biomass. The DEP Report approves the Application's BACT analysis. The DEP Report notes that GREC will increase the emissions of three (or four if the PMs are counted separately) PSD-regulated pollutants above significant emission rates: PM, PM10, CO, and VOCs. Among the more important determinations in the DEP Report is that GREC's NOx and SO2 emissions will be offset with emissions reductions achieved by new air pollution control technology installed by GRU at Deerhaven in 2009. The DEP Report notes that the DEP Division of Air Resource Management had determined that the Application complies with all applicable federal and state air pollution regulations, and the final air construction permit will be incorporated into the conditions of certification (COC). The DEP Report reviews the comments of the various reviewing agencies. The agencies approving the Application without condition were the PSC, North Central Florida Regional Planning Council, Department of Community Affairs, Division of Historical Resources of the Department of State, City of Gainesville, and Division of Forestry. The agencies approving the Application with conditions were the Suwannee River Water Management District, which required a condition that the GREC facility's groundwater withdrawals of 1.4 million gallons per day be offset by a reduction of 1.4 million gallons per day of groundwater withdrawals by GRU at Deerhaven before GREC operation may commence; the FWC; and the Department of Transportation, whose conditions are irrelevant to this case. In a letter dated June 10, 2010, FWC recommended five COCs. First, if the site plan is modified to impact listed species, GREC must coordinate with FWC and the U.S. Fish and Wildlife Service to identify necessary conservation measures. Second, GREC must evaluate impacted wetlands on a case-by-case basis and establish compatible-use buffer zones and wetland protection buffers around all wetlands, appropriate to the site's wildlife inventory, in accordance with the U.S. Fish and Wildlife Service's guidelines for wetlands buffers. Third, for gopher tortoises, GREC must investigate the need to obtain from FWC a conservation permit or temporary exclusion permit, if the project will impact gopher tortoises, their burrows, or their habitat. Fourth, GREC must avoid impacts to bald eagle nests, where possible. Where impacts are unavoidable, GREC must obtain from FWC the information necessary for an FWC eagle-nest-removal permit and must implement the minimization and conservation measures identified in the FWC Bald Eagle Management Plan. If nests occur prior to or during construction, GREC must make efforts to avoid construction activities during nesting season or when eagles are present at other times. Fifth, whenever practical, GREC must avoid land-clearing and construction during the active breeding season for the wading and crane-like birds protected by Florida Administrative Code Rules 68A-27.003, 68A- 27.004, and 68A-27.005, and, if nesting activities are detected, GREC must monitor the nesting activities during clearing and construction, except, for sandhill cranes, GREC must cease clearing and construction until the nestlings have fledged. Based on the Application, the approvals by reviewing agencies, and all other relevant material, the DEP Report recommends that the Siting Board certify the GREC facility, subject to the attached COCs. Conditions of Certification Dated July 12, 2010, the COCs are general and specific conditions for the construction and operation of the GREC facility. COC General Condition A.VII. provides that certification is "predicated upon preliminary designs, concepts, and performance criteria described in the [Application] or in support of certification." This provision effectively incorporates the Application into the COCs. COC General Condition A.VI.A. incorporates the air permits that GREC must obtain under Title I, Part C, and Title V of the Clean Air Act. This condition provides that a violation of either of these permits, the former of which is a construction permit and the latter of which is an operation permit, is a violation of the site certificate. COC General Condition A.XXIV.A. provides that modifications, amendments, or renewals of the air construction permit or Title V operating permit modify the site certificate, and, in case of conflict, the more stringent provisions control. COC Specific Condition B.I.D. provides that fly ash may be used as a soil supplement, after initial testing and DEP approval, or transported offsite and disposed of in a permitted landfill. COC Specific Condition B.I.D.6. requires reasonable precautions when loading, unloading, and transporting fly ash to control fugitive emissions. COC Specific Condition B.III incorporates the five items addressed by the FWC in June 10, 2010, letter, which is detailed above. COC Specific Condition B.III.C. requires: Prior to clearing and construction, the licensee shall conduct species-specific surveys for all listed species that may occur within the certified area The results of those detailed surveys shall be provided to the FWC and coordination shall occur with the FWC and appropriate permitting agency on proposed impact mitigation methodologies. COC Specific Condition B.IV. incorporates all but one of the items addressed by the Suwannee River Water Management District. COC Specific Condition B.IV.A. allows GREC to withdraw 1.4 million gallons per day when the plant is fully operational, but there is no provision conditioning this withdrawal on an equal reduction in withdrawals by GRU. The materiality of this omission is revealed by the water management district's staff report, which is attached to the COCs. The staff report anticipates that a COC that "will reduce allocated quantities for Deerhaven . . . by 1.4 [million gallons per day]." If the GREC site certificate is not conditioned upon an offsetting reduction in groundwater withdrawals by GRU, the water management district's approval cannot be assumed. Other Findings Wildlife Phillip W. Simpson, wildlife ecologist and chief scientist of Environmental Consulting and Technology, Inc., performed wildlife surveys on the GREC site in Spring 2009 and late Summer/early Fall 2009, using standard FWC methodology, including a desktop review of the literature in advance of a survey. Mr. Simpson found one abandoned burrow, formerly occupied by a gopher tortoise. He found five listed, wetlands- dependent species elsewhere on the GRU site: alligator, little blue heron, snowy egret, white ibis, and wood stork. The GREC site is largely unavailable for wildlife use and has little potential for future wildlife use. Anthropogenic alterations to onsite natural systems have been extensive and persistent, as long-term silviculture was replaced by the uses associated with the construction and operation of a large power- plant complex featuring a coal-powered generator. At this stage, GREC, its consultant, and FWC have adequately identified actual and potential wildlife that may use the site and actual and potential wildlife habitat. Intervenor's major objection is to the post- certification, preclearing wildlife survey required by FWC and the COCs. This objection is misplaced. The post-certification survey is not taking the place of pre-certification surveys of a scope reasonable to the conditions prevailing at the site. A post-certification, preclearing survey for this fenced site adjacent to the intense uses associated with a power plant complex is a sensible precaution for the gone-today, here- tomorrow quality of wildlife utilization, primarily by birds. Other FWC-derived COCs amply address the unlikely contingency of a late discovery of probable impacts to wildlife by requiring coordination with FWC and adding specific provisions for gopher tortoises, eagles, wading birds, and crane-like birds. GREC has provided reasonable assurance that the construction or operation of the facility will not cause adverse impacts to any listed wildlife species or their habitat. Fire The wood piles present a risk of fire from spontaneous combustion. Microbial metabolic action within the pile can generate sufficient heat to cause the wood pile to combust. The primary safeguard against this risk is proper fuel management to minimize the heat buildup within the pile. One way to manage the fuel for fire safety is to mix the wood piles to aerate the piles and prevent hot spots. Another way to manage the fuel is to ensure that the fuel is not allowed to remain in the pile too long. GREC's first-fuel-in, first-fuel-out policy limits the age of any part of the wood pile. The implementation of this policy is further assured by the fact that the fuel loses heat value over time, so GREC will gain more burn for the dollar by combusting the fuel sooner, rather than later. The ratio of stored fuel to combustion rates suggests that all fuel will be turned over within 20 days--probably sooner, after the late revision lowering the automatic stacker/reclaimer pile by 25 feet, which is described immediately below. Anecdotal evidence suggests that 20 days' residence in the wood pile is well short of the age of fuel that has spontaneously combusted in piles in the past. The stormwater management system will also enhance fire safety by draining rainwater and runoff from the piles and discouraging the ongoing saturation of the fuel piles. Excessive, intermittent saturation of the pile may encourage the microbial activity that can lead to combustion. As part of the local review that took place for the GREC facility, Gainesville Fire Department representatives met three times with GREC representatives to address fire safety, as the Development Review Board of the City of Gainesville reviewed the GREC proposal. As a result of these meetings, GREC agreed to a number of changes to assure substantial compliance with the National Fire Protection Association (NFPA) standards for the management of wood storage areas. As noted above, one change after consultations with the fire department was to reduce the automatic stacker/reclaimer pile from 85 feet to 60 feet. This reduces the risk of fire by making it easier to mix the entire pile and reduces the volume of fuel stored onsite and, thus, the time that that the fuel may remain unused in the wood pile. Secondarily, this change also reduces the volume of fuel available to burn in an unintended fire. To conform to NFPA standards, GREC also agreed to place low barrier walls between the fuel piles; to drive stakes around the perimeter of the piles, so inspectors could more easily check that the piles are not migrating or expanding; and to insert temperature probes into the piles to allow timely detection and elimination of hot spots that might otherwise develop into fires. A revised site plan, as reflected in Exhibits 50A, 50B, and 50C, incorporates the barrier walls and perimeter stakes identified above, as well as the layout of the fire main and fire hydrants that loop the fuel storage area and some access issues for firefighting equipment, which may weigh as much as 30 tons. Subject to the addition of COCs incorporating these fire-safety changes that followed consultation with the Gainesville Fire Department, GREC has provided reasonable assurance that the operation of the facility will not cause adverse impacts from the risk of fire in the wood piles. Air Impacts NOx and SO2 NOx and SO2 emissions are regulated for a number of reasons. NOx combines with VOCs to form ozone, so regulatory efforts to limit ozone focus on NOx, and SO2, itself a threat to human health, is regulated as a precursor to PM2.5. NOx and SO2 also combine to form acid rain. The BFBB is responsible for all of the SO2 produced at the GREC facility, which is 171 tpy. The BFBB is responsible for nearly all of the NOx produced at the GREC facility--416 tpy. An emergency generator and fire pump engine add another 1.72 tpy of NOx, for a total of 418 tpy of NOx. On July 12, 2010, DEP issued a permit to GRU imposing enforceable and permanent reductions on Deerhaven Unit 2's emissions of NOx and SO2--418 tpy of the former and 171 tpy of the latter. These reductions were achieved by GRU's installation of more effective pollution control technology. Under NSR/PSD, GREC may net out its emissions of NOx and SO2 by taking into account these offsetting GRU reductions because GREC and GRU constitute one major stationary source, under NSR/PSD permitting. Offsetting the increased emissions of GREC with the decreased emissions of GRU is authorized by the proximity of the two operations and their common operational control. Specifically, GRU controls GREC's operations through their power purchasing agreement, which gives GRU the authority to dispatch the power generated by the GREC facility, to determine when the biomass plant will start up and shut down, to control the amount of electricity that the GREC biomass plant will produce while operating, and the voltage of such electricity. GRU will also supply the switchyard and transmission lines by which GREC-produced power will enter the power grid and will distribute GREC-produced power among GRU customers. GRU will also supply the natural gas that GREC requires for start up and the electricity that GREC requires for start-up and stand-by operations. GRU even agreed to reduce its groundwater withdrawals by 1.4 million gallons per day, so GREC could withdraw an equal amount of groundwater for its operations. Contrary to Intervenor's contention, this aggregate treatment of GRU and GREC is not a legal fiction designed to circumvent BACT under the NSR/PSD program. On these facts, it would be much easier to prove that the independence of GREC is a legal fiction and that GREC serves as GRU's contractor, ushering the biomass plant through certification, permitting, the acquisition of supplier contracts, and start up, perhaps then to sell it to GRU at the same late stage that GREC sold the Nacogdoches plant. But whatever the precise relationship between the two entities is, or proves to be, at this stage, without doubt, GRU controls GREC. Contrary to Intervenor's contention, the emissions reduction achieved by GRU at Deerhaven cannot somehow be disregarded in this case and "banked" as a gain in achieving cleaner air. From all appearances, GRU pursued this emissions reduction--and certainly the permit modification enforcing the emissions reduction against GRU permanently--for the same reason that it agreed to reduce its groundwater withdrawals. The reason is not an abundance of good will among corporate partners working shoulder to shoulder in providing America's power needs or a gestalt moment of environmental awareness. GRU effected this emissions reduction as a strategic decision to enable GREC to come online sooner and provide GRU with a reliable source of power from a plant much newer than any that it has in place at Deerhaven. This is the economic reality of the closer-than- armslength relationship that exists between GRU and GREC. The netting of NOx and SO2 emissions means that GREC effectively emits no such pollutants. But to put GREC's offset emissions into context, Deerhaven Unit 2 produces roughly 2.5 times the power that the GREC plant will produce. Even after the July 2010 emission reductions, Deerhaven Unit 2 is permitted to emit 3381 tpy of NOx emissions and 8005 tpy of SO2 emissions. If the GREC plant were scaled up to Deerhaven Unit 2's capacity, the GREC biomass plant would produce about one-third as much NOx and one-twentieth as much SO2. Nothing in the record suggests that GREC's relatively low emissions of NOx and SO2--even without regarding to netting--presents a significant risk to human health or the environment. GREC has provided reasonable assurance that the operation of the GREC facility will not cause adverse air impacts in the form of NOx and SO2 emissions. 2. Hazardous Air Pollutants Hazardous air pollutants (HAPs) are identified and regulated under NESHAP. The EPA has designed numerous compounds as hazardous air pollutants, including HCl, HF, certain metals, and various organic compounds, including dioxins, which Intervenor has elected to treat separately and are considered in the next subsection. Based on the information contained in the Application, the potential emissions by the GREC facility's emissions of HCl and HF, as well as total HAPs, were sufficiently high to trigger MACT case-by-case review. In Appendix A of the Application, the HCl and HF emissions were projected to be 36 tpy and 71 tpy, respectively, and total HAPs were 114 tpy. However, after DEP representatives advised GREC representatives that their HCl and HF projections seemed very high, based on their experience with comparable facilities, GREC representatives met with representatives of the boiler manufacturer, Metso, to determine if they could implement more stringent emission control technology to reduce HAPs emissions sufficiently to avoid triggering MACT case-by-case review, which would have added several months to the review process. On February 2010, GREC presented to DEP a revised set of projections of HAPs emissions that were just beneath the thresholds calling for MACT case-by-case review, which are 10 tpy for any single HAP and 25 tpy of all HAPS. The revised projections called for 9.72 tpy of HCl and HF, each, and 24.7 tpy of all HAPs. GREC justified these revised projections by several means. First, Metso reconsidered the chlorine and fluorine concentrations in the clean woody biomass to be received by the GREC facility, reevaluated the chemical reactions, and reduced its earlier assumptions. Second, Metso and GREC selected a more effective sorbent, trona, which reduces the emissions of HF and HCl. Third, Metso and GREC increased the amount of sorbent to be injected into the flue gas system, which will further reduce emissions of HF, HCl, and SO2. Fourth, Metso and GREC changed the catalyst in the SCR, which will remove HAPs more effectively. Fifth, Metso and GREC increased the size and optimized the design of the fabric filter baghouse, which will further reduce stack emissions of PM, but also HAPs to a lesser degree. These are not paper adjustments, but are actual investments in technology that will cost GREC millions of dollars. Intervenor is skeptical, partly due to the proximity of the revised projections to the regulatory thresholds. Interestingly, the actual projection for HF is much less than 9.72 tpy. Metso and GREC selected 9.72 tpy for HF to allow them some margin of error in the projections. GREC's motivation was obviously to a avoid a sub-threshold breach of a projected emissions limit and the resulting regulatory intervention of DEP. Metso's motivation probably arises from the fact that, to induce GREC to purchase its boiler, Metso provided GREC a guarantee that, at least initially, the boiler will meet these revised HAPs emissions limitations. So, the proximity to regulatory thresholds, at least for HF, is not a ground for suspicion, as Intervenor implies. As revised, the pollution control systems controlled HAPs, and other pollutants, as follows: 1) good combustion practices in the BFBB control PM, CO, VOCs, and HAPs generally; the fabric filter baghouse controls emissions of PM10, PM2.5, and HAPs; 3) clean biomass fuel, reaction with alkaline fly ash, and the DSI control SO2 and SAM; 4) the ammonia-based SCR controls NOx, VOCs, and HAPs generally; and 5) high-efficiency drift eliminators in the cooling tower control PM. The last factor supporting the revised HAPs projections is that the GREC facility will monitor a wide range of HAPs, as well as PSD pollutants, in accordance with the following program: 24-hour, 30-day, and 12-month continuous emission monitors (CEMS) for SO2 and NOx; an initial and annual stack test for SAM; a 30-day CEMS for CO; an initial stack test and 12-month CEMS for HCl and HF; an initial and annual stack test and 12-month CEMS for the HAPs projected to total 24.7 tpy; an initial and annual stack test for PM/PM10; and an initial and annual stack test for visible emissions and VOCs. Finally, the GREC facility's HAPs emissions are offset by decreases in emissions of HCl and HF, as well as SAM and mercury, as a result of the enhanced pollution control technology adopted by GRU at Deerhaven. Although these reductions, which are all greater than the emissions of these pollutants by the GREC facility, are not enforceable, for the certification case, they are relevant in assessing the air impacts from the GREC facility. Subject to the addition of COCs incorporating these revisions in pollution control technology, including the above- described CEMS, GREC has provided reasonable assurance that the operation of the GREC facility will not cause adverse air impacts in the form of HAPs, including HF, HCl, and total HAPs. 3. Dioxins Dioxins are compounds that result from the combustion of chlorine-containing materials, including wood. The family of "dioxins" includes furans and polychlorinated biphenyls (more commonly known as PCBs), which all are within the family of persistent organic pollutants. Common sources of dioxins include boilers, electrical power plants, municipal and medical waste incinerators, crematoriums, cement kilns, forest fires, household fireplaces, cigarette smoking, pulp production, and open burning. Dioxins have been associated with cancer and disorders of the immune, skin, digestive, and reproductive systems, where dioxins may act as endocrine disruptors. Work with rats suggests that a major effect of excessive dioxin exposure in utero is upon the reproductive system of the fetus. Dioxins are persistent. Their half lives in the environment range from 30 to 40 years. Because they are hydrophobic and accumulate in fatty tissue, dioxins enjoy half lives of 7-12 years in humans. Humans acquire dioxins by breathing, skin contact, consuming water, consuming food, breastfeeding, and transplacental movement while in utero. The last three means are the principal routes of human exposure. The virtually safe dose, or reference dose, for dioxins is low: one picogram per kilogram per day. One picogram is one-trillionth of one gram, although an EPA work in progress may lower this reference dose to 0.7 picograms per kilogram per day. For the late 1990s, the EPA estimated that the average American acquired 6-10 picograms per kilogram per day, later reducing this estimate to 6-8 picograms per kilogram per day. The EPA estimate for children, including breast-fed infants, is five to seven times higher, around 40 picograms per kilogram per day. This is about 60 times higher than the virtually safe dose. The trends for dioxin levels are good. In its 2006 reassessment of dioxin, the EPA reported that dioxin levels in the environment had decreased by over 90 percent since the late 1980s. Over roughly the same period, the Centers for Disease Control reported that dioxin concentrations in human blood had decreased 80 percent, although decreases in dioxin concentrations in human fatty tissue over the same period of time are likely less. To some extent, the pollution control equipment will limit dioxin emissions, especially the redesigned fabric baghouse and SCR catalyst. Also, the temperature of the air leaving the stack will be about 310 degrees--90 degrees below the temperature at which dioxins form. But dioxin emissions are not explicitly addressed in the certificate and air construction permit. Although the 24.7 tpy limit on HAPs applies to dioxins, which are HAPs, this limit would provide little in the way of assurance as to most dioxins. The reason for the failure to address dioxins for the GREC facility is that it will not emit them in significant amounts. ECT principal engineer, Thomas Davis, who has considerable experience in air pollution control technology, analyzed the potential for dioxin emissions from the GREC boiler. Mr. Davis found five fluidized bed boilers for which relevant data were available on the rate of dioxin emissions. He then applied the emissions rate to the GREC boiler. Mr. Davis determined that the GREC boiler will likely emit .11 grams per year of all dioxins and about .012 grams per year of 2,3,7,8 TCDD, the most potent dioxin. Expressed in another way, the .11 grams per year of total dioxins emitted by the GREC boiler is 110,000,000,000 picograms per year or 301,369,860 picograms per day. If the average person--young and old--weighs 50 kilograms, this emission rate translates to about 6 million picograms per kilogram per day. If the population of Alachua County were 250,000 persons, then the daily exposure, without regard to dispersion patterns, would be 24 picograms per day. For many reasons, 24 picograms of dioxins per kilogram per day of exposure represents only a starting point in the calculations necessary to grasp the limited extent of the dioxin exposure posed by the GREC boiler. An adjustment of one order of magnitude is suggested by the fact that Mr. Davis calculated the emissions rate of most toxic 2,3,7,8 TCDD at one- tenth the rate of the dioxins family. This means that the most toxic dioxin is produced at the rate of only 2.4 picograms per kilogram per day. An even larger adjustment is required because the GREC biomass plant will displace substantial open burning that presently takes place in North Florida. The result will be a large net reduction in dioxin emissions. How much and over what area is hard to say, partly due to the replacement of dispersed burning with point-source combustion. The record supports an estimate that about half of the biomass to be combusted by GREC would have been open burned. Using this estimate, the open burning of this biomass would have produced dioxin emissions of 3-8 grams per year. GREC has effectively replaced these dioxin emissions with .11 gram per year. The record does not support another adjustment for dioxin exposures based on dispersed emissions of 3-8 grams per year and a point-source emission of .11 grams per year. However, if the dispersed emissions are closer to agricultural areas, due to food consumption as the primary means of consumption, as opposed to inhalation, this adjustment would probably inure to the benefit of GREC. Calculations by two witnesses confirm the insubstantial impact posed by the GREC boiler in terms of dioxins. Mr. Davis also calculated dioxin dispersal patterns for air and deposition and found that the average annual maximum concentration was .000000000149 micrograms per liter of air per and the average annual wet and dry deposition rate was .0000000000206 grams per square meter. These are reassuringly low numbers. Making more elaborate dioxin calculations, Dr. Christopher Teaf, an expert in environmental chemistry, toxicology, and human health risk assessment, performed a large number of calculations in the most conservative manner possible, such as by assuming that all dioxins were 2,3,7,8 TCDD and treating the emissions from the GREC boiler as new emissions (i.e., disregarding the fact that GREC's dioxin emissions displace far greater dioxin emissions from open burning). Dr. Teaf showed that air concentrations and wet and dry deposition rates were well below--usually, by one or more orders of magnitude--recently published EPA regional screening levels for air, water, and soil. Intervenor's argument for COCs to limit dioxin emissions and require a CEMS to detect their presence misses a couple of points. The GREC boiler will result in a net reduction in dioxin emissions, and its netted dioxin emissions are not, themselves, significant. GREC has provided reasonable assurance that the operation of the GREC facility will not cause adverse air impacts in the form of dioxins. 4. Fugitive Emissions Fugitive, non-stack emissions of PM refer to emissions that escape the GREC facility, not emissions that are discharged through the stack. Fugitive PM emissions may escape the facility from the roads, the wood piles, and anywhere that sufficiently fine particles are capable of suspension into the air column and transport offsite. Most of the fugitive PM emissions may be regarded as wood dust, although the fugitive emissions from ash may be regarded as soot. But the risks from fugitive emissions of PM appear to be associated more with their size, than their composition. Inhaled, PM causes respiratory and cardiovascular events, including stroke and heart attack. In the relatively large segment of the population with respiratory distress or asthma- like conditions, inhaled PM exacerbates these background conditions. Recent research is investigating whether PM can cause oxidative stress to human DNA. Not all PM has the same effect on human health. The finer the particle, the greater the risk to human health. Or, as Dr. Teaf prefers to characterize it, the larger the particle, the less the risk to human health. There is no reference dose for PM2.5, and EPA will be requiring Florida to add NSR/PSD review for PM2.5 by May 2011, but this will impose limits on stack emissions, not fugitive emissions. According to Appendix A of the Application and DEP's technical evaluation for the air construction permit, the GREC facility is expected to emit 130.4 tpy of filterable PM and 281.2 tpy of PM10. According to Appendix A, the GREC facility is expected to emit 278.3 tpy of PM2.5. According to Appendix A, these totals include PM fugitive emissions--all from material handling--of 11.6 tpy, 2.3 tpy, and 0.34 tpy. As noted above, material handling encompasses the four means by which fugitive emissions will escape the GREC facility. In contrast to stack PM emissions, fugitive PM emissions do not appear especially responsive to attempts to control them through advanced pollution control technology. For the most part, then, GREC must deal with fugitive PM emissions with operational elements, usually in the form of best management practices (BMPs). The air construction permit section 2, specific condition 11 prohibits any person from allowing the emissions of unconfined PM from any activity "without taking reasonable precautions to prevent such emissions." The air construction permit technical evaluation includes Tables 16 and 17, which are BMPs adopted by GREC for wood pile management and fugitive dust emissions, respectively. GREC must update these BMPs prior to start up and include them in the Title V operating permit that it must later obtain. Table 16 requires GREC to manage the wood piles to avoid excessive wind erosion, such as by wetting the pile as necessary and avoiding contouring the pile on windy days. Table 17 requires the covering or partial enclosing of fuel conveyor systems and drop points, as well as the enclosure of the hoppers where trucks dump their loads. All enclosed areas will have local ventilation and fabric filter dust collectors. All major roads at the facility must be paved and swept and wetted, as necessary to minimize fugitive dust emissions. GREC also controls fugitive PM emissions by ensuring that the fly ash and bottom ash are handled in a way that minimizes the release of dust. If trucks dump extra fine woody material, screens will separate such fines because they have a higher value as potting medium. Given the projected moisture content of 50 percent and the size of the chips, the potential for fugitive dust from the wood piles may not be great. Much of the fugitive emissions from the GREC facility will be captured by existing vegetation, on the south, west, and north of the GREC site. To the east is the GRU Deerhaven plant complex. Most of the dust will fall on the surrounding GRU site, especially along the south fenceline, according to dispersal modeling done by Mr. Davis. Some will fall on the county public works site to the west. Relatively little of the dust will make it south to U.S. 441 or further south to the nearest residential area. By way of comparison, Mr. Davis estimated that forest wildfires produced one order of magnitude more PM and PM2.5 than GREC will emit. Subject to the addition of COCs incorporating these BMPs and operational elements for the control of fugitive PM emissions, GREC has provided reasonable assurance that the operation of the GREC facility will not cause adverse air impacts in the form of fugitive PM emissions. Need for Facility Balanced Against Environmental Consequences As explained in the Conclusions of Law, the PSC has established the need for the GREC facility, and its determination is an irrebuttable fact in this case. As noted in the Conclusions of Law, the only need analysis in this case is provided by the PSC, pursuant to Section 403.519, but the statutory certification criterion of the broad interests of the public covers the considerations immediately below. Because the certification statute requires balancing and reasonableness, these considerations of broad interests of the public are framed as needs to be balanced against environmental consequences. The construction and operation of this relatively large project will serve regional needs for new employment and business opportunities and thus stimulate the regional and local economies. Biomass suppliers and their vendors and contractors will hire new employees to produce the trimmings and thinnings, process them into wood chips, and transport the chips to the GREC facility. The ripple effect of this economic activity will be felt throughout north Florida as these suppliers purchase new equipment for the production, processing, and transporting of the massive amounts of biomass that the GREC facility will require. The GREC facility will support the large and important pulp industry in north Florida. Leading the world in the production of pulp, the United States produces 30 percent of the world's pulp products. If a country, the southern United States would be the world leader in the production of pulp products. The addition of an important new biomass market will strengthen the alliance of industry, landowners, and markets that helps to secure America's preeminent position in the production of pulp. At the same time, the pricing of biomass material, as compared to traditional timber products, ensures that the newly developed market for biomass will not distort sound silvicultural practices. The highest value timber resources are for poles and veneer, and, in north Florida, suitable timber prices out at about $70-90 per ton. Pulpwood brings about $50 per ton. As boiler fuel, woody resources yield only about $20 per ton. The relative value of timber as biomass fuel is thus sufficiently low to deter the conversion of standing timber for this purpose. Instead of undermining sound silvicultural practices, the new market for biomass materials will enhance the viability of forestry resources and thus serve regional environmental needs. By requiring sustainable silviculture and rewarding good stewardship among its biomass suppliers, GREC promotes the health of north Florida's vast timber resources and increases the natural functions served by these resources, when compared to silvicultural practices that do not conform to these standards. The creation of a large biomass market will serve the broad public interest by slowing or reversing recent losses of timberland. Less than half of the timber plantation harvested in the past ten years has been replanted. The conversion of even short-rotation timberland to urban uses is a serious problem, even in north Florida, in terms of impacts to natural resources, such as groundwater and wildlife habitat. The GREC facility provides new incentives for replanting. On a smaller scale, the GREC facility will provide incentives to landowners who selflessly replant more valuable timber products, in terms of natural functions, such as longleaf pine, that may offer less economic return than other products that provide the opportunity for quicker harvest. One such person, Virgil Allison of Crescent City, testified that he recognized that he would not live to see the economic benefit of his recent replanting of longleaf and loblolly pine, but he would have benefitted, if the GREC facility were already in operation, from the creation of a market for the nearly 100 acres of underbrush that he recently cleared in order to create better growing conditions for his forest. Not only does the clearing of underbrush produce better growing conditions, it also removes the fuel for catastrophic, unnaturally intense forest fires. Together with thinning, clearing of underbrush reduces the risk of, and damage from, invasive pests. Also among the broad public interest served by the GREC facility is reduced consumption of valuable landfill space that will result from burning biomass, rather than landfilling it. Other needs, such as the diversification of fuel supplies are within the matters addressed by the PSC. The sole environmental consequence that requires a revision of the COCs arises from an apparent oversight by DEP. In the attached COCs derived from the Suwannee River Water Management District, DEP has incorporated the water management district's permission for GREC to withdraw 1.4 million gallons per day of groundwater, but has neglected to incorporate the water management district's requirement, discussed above, that GRU reduce its groundwater withdrawals by an equal amount. This omission converts the one-stop permitting of site certification to no-stop permitting, as least as to groundwater withdrawals, and, uncorrected, would allow GREC to withdraw a large volume of groundwater, essentially over the objection of the water management district and without analysis by DEP or the Siting Board. Subject to the addition of a COC conditioning GREC's right to withdraw 1.4 million gallons per day of groundwater on an enforceable revision of a GRU certificate or permit to reduce its right to withdraw an equal amount of groundwater, GREC has provided reasonable assurance that the need for the GREC facility, considering the broad public interests that will be served by the facility, outweighs any adverse environmental consequences of the facility.
Recommendation It is RECOMMENDED that, subject to the conditions set forth in the preceding paragraph, the Siting Board enter a final order granting the site certificate for the construction and operation of the GREC facility. DONE AND ENTERED this 1st day of November, 2010, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 1st day of November, 2010. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Mimi Drew, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 David S. Dee, Esquire Young Van Assenderp, P.A. 225 South Adams Street Suite 200 Tallahassee, Florida 32301-1700 Toni Sturtevant, Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Thomas W. Brown, Esquire Brannon, Brown, Haley & Bullock, P.A. Post Office Box 1029 Lake City, Florida 32056-2029 Jennifer Brubaker, Esquire Florida Public Service Commission 2450 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Matthew G. Davis, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Kimberly Clark Menchion, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399 Scott Koons North Central Florida Regional Planning Council 2009 Northwest 67th Place, Suite A Gainesville, Florida 32653 David L. Wagner, Esquire 12 Southeast First Street Gainesville, Florida 32601 Jonathan F. Wershow, Esquire 204 Southeast First Street Post Office Box 1260 Gainesville, Florida 32602 Laura Kammerer Bureau of Historic Preservation R. A. Gray Building 500 South Bronough Tallahassee, Florida 32399 Marian B. Rush, Esquire Rush & Glassman 11 Southeast 2nd Avenue Gainesville, Florida 32601 Forrest Watson Department of Agriculture & Consumer Services Division of Forestry 3125 Conner Boulevard Tallahassee, Florida 32399-1650 Patricia Anderson Department of Health Environmental Engineering 4042 Bald Cypress Way Tallahassee, Florida 32399-1742 Marion Joseph Radson, Esquire Office of the City Attorney Post Office Box 1110 Gainesville, Florida 32602-1110 Kelly K. Samek, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Road Tallahassee, Florida 32399 Thomas Bussing 1832 Northwest 11th Road Gainesville, Florida 32605 Mick G. Harrison, Esquire 205 North College Avenue, Suite 311 Bloomington, Indiana 47404
The Issue In this proceeding, Florida Power Corporation (FPC) seeks approval to construct and operate 470 MW of natural gas-fired advanced design combined cycle (NGCC) generating capacity at its proposed Polk County Site. Additionally, FPC seeks a determination that the Polk County Site has the environmental resources necessary to support an ultimate capacity of 3,000 MW of combined cycle generating capacity fueled by a combination of natural gas, coal-derived gas and distillate fuel oil. Such an ultimate site capacity certification may be granted pursuant to Section 403.517, Florida Statutes and Rule 17-17.231, Florida Administrative Code.
Findings Of Fact Project Site and Vicinity FPC's proposed Polk County Site is located on approximately 8,200 acres in southwest Polk County, Florida, in an area dominated by phosphate mining activities. The Polk County Site is approximately 40 miles east of Tampa, 3 miles south of Bartow and 3.5 miles northwest of Fort Meade. Homeland, the nearest unincorporated community, lies about one mile to the northeast of the site boundary. The Polk County Site is bounded on the north by County Road (CR) 640 and along the southeast and south by a U.S. Agri-Chemical Corporation (USAC) mine. CR 555 runs north-south through the site. The Polk County Site is comprised of land in four different phases of mining activity: mine pits, clay settling ponds associated with phosphate mining, land which has been mined and reclaimed, and land which has yet to be mined. Approximately one-half of the Polk County Site is subject to mandatory reclamation. Land uses adjacent to the Polk County Site consist almost entirely of phosphate mining activities. One mobile home is located at the intersection of CR 640 and CR 555 approximately 2 miles from the proposed location of the principal generating facilities. General Project Description The initial generating capacity at the Polk County Site will be NGCC units. Under what has been designated as the Case A' scenario, ultimate site development will consist of 1,000 MW of NGCC and 2,000 MW of CGCC generating capacity, for a total of 3,000 MW. Under the alternative Case C scenario, the ultimate site capacity would consist of 3,000 MW of all NGCC capacity. The Case C scenario was initially developed as the worst case scenario for the socioeconomic impact analysis (i.e., the one that would produce the least amount of economic benefit.) The combined cycle units which initially burn natural gas can be modified to burn coal gas if necessary to meet changes in fuel supply or pricing. However, under the proposed ultimate site capacity, CGCC generating capacity will be limited to a maximum of 2,000 MW out of the total of 3,000 MW. At ultimate buildout the major facilities at the Polk County Site will include the plant island, cooling pond, solid waste disposal areas, and brine pond. The plant island will be located on mining parcels SA-11, SA-13 and the northerly portion of SA-12. The plant island ultimately will contain the combined cycle power block, oil storage tanks, water and sewage treatment facilities, coal gasification facilities, coal pile and rail loop, and coal handling facilities. The cooling pond at ultimate buildout will be located in mining parcels N-16, N-15 and N-11B, with a channel through N-11C. Mining parcels N-11C, P-3, Phosphoria, Triangle Lakes and P-2, if not used as a solid waste disposal area, will be used as water crop areas to collect rainfall for supplying the cooling pond. The brine pond will receive wastewater reject from the reverse osmosis (RO) water treatment system and will be located on mining parcel SA-9. Two solid waste disposal areas (SWDA) are planned for ultimate development of the Polk County Site. The SWDAs will be mining parcel SA-8 initially and mining parcel P-2 in later phases, if necessary. Coal gasification slag will be the predominant solid waste to be disposed of in the SWDAs. Other areas included within the Polk County Site are mine parcels N- 11A, N-13, N-9B, Tiger Bay East, Tiger Bay, the northerly 80 acres of N-9, SA-10 and the southerly 225 acres of SA-12. Along with providing a buffer for the Polk County Site facilities, these parcels also will provide drainage to Camp Branch and McCullough Creek. Linear facilities associated with the initial 470 MW of generating capacity at the Polk County Site will include a 230 kilovolt (kV) transmission line upgrade, a reclaimed water pipeline, and a backup natural gas pipeline. Site Selection A comprehensive process was used to select the Polk County Site. The goal of that process was to identify a site which could accommodate 3,000 MW of generating capacity and offer characteristics including: (1) multi-unit and clean coal capability; (2) technology and fuel flexibility; (3) cost effectiveness; (4) compatibility with FPC's commitment to environmental protection; (5) ability to comply with all government regulations; and (6) consistency with state land use objectives. The site selection process included the entire State of Florida. Participants in the site selection process included a variety of FPC departments, environmental and engineering consultants, and an eight-member Environmental Advisory Group (EAG) composed of environmental, educational, and community leaders. In October, 1990, with the concurrence of the EAG, the Polk County Site was selected. The ultimate basis for the selection of the Polk County Site was the disturbed nature of the site as a result of extensive phosphate mining activities. The Polk County Site also is compatible with FPC's load center and transmission line network, and is accessible to rail and highway transportation systems. PSC Need Determination On February 25, 1992, the PSC issued Order No. 25805 determining the need for the first 470 MW of generating capacity at the Polk County Site. The PSC concluded in its order that the first two combined cycle units (470 MW) at the Polk County Site will contribute to FPC's electric system reliability and integrity. It also concluded that the first two units would enable FPC to meet winter reserve margin criteria and to withstand an outage of its largest unit at the time of system peak demand. The PSC stated that it was important for FPC to secure a site to meet future needs and that the first two units would contribute toward this goal. Basis for Ultimate Site Capacity The Site Certification Application (SCA), including the Sufficiency Responses, addressed the impacts associated with 3,000 to 3,200 MW of generating capacity under several scenarios. FPC eliminated or modified several of the scenarios by filing a Notice of Limitations which addressed the capacity and environmental effects of 1,000 MW of NGCC and 2,000 MW of CGCC generating capacity at the Polk County Site. Throughout the SCA, Sufficiency Responses and Notice of Limitations, the capacity constraints and environmental effects were analyzed under a worst case scenario, i.e., the maximum environmental effects that could be expected at ultimate site capacity. An ultimate site capacity determination will significantly reduce the time and expense associated with processing supplemental applications for future units at the Polk County Site under the expedited statutory procedures of the Power Plant Siting Act. This will allow FPC to respond more quickly to changes in growth and demand. An ultimate site capacity determination also provides FPC the assurance that the Polk County Site has the land, air and water resources to support future coal gas-fired generating capacity. Project Schedule and Costs Construction of the initial 470 MW of NGCC generating capacity is scheduled to begin in 1994. These units will go into operation in 1998 and 1999. Based on current load forecasts, it is expected that approximately one 250 MW unit will be added every other year to the Polk County Site. Under this schedule, ultimate site development of 3,000 MW would occur about 2018. Capital investment for the Polk County Site is expected to be approximately $3.4 billion for the 1,000 MW NGCC/2000 MW CGCC Case A' scenario and approximately $1.7 billion for the all NGCC Case C scenario. Project Design Generating units for the Polk County Site will be advanced design combined cycle units firing natural gas and/or coal gas, with low sulfur fuel oil as backup. Each combined cycle unit will consist of one or two combustion turbines (CT), a heat recovery steam generator (HRSG) for each CT and one or two steam turbines (ST). The first 470 MW of generating capacity will consist of two CTs firing natural gas, two HRSGs and one or two STs. At ultimate site capacity, the Polk County Site will consist of 12 CTs, 12 HRSGs, and 6 to 12 STs. A combined cycle unit is a generating system that consists of two sequential generating stages. In the first stage, the natural gas, coal gas or fuel oil is burned to operate the CT. Hot exhaust gas from the CT is passed through the HRSG to produce steam to operate the ST. The CT and steam from the HRSG can be arranged to drive individual generators or a single generator. In later phases of the Polk County Site, up to 2,000 MW of combined cycle generation may be fired on coal gas. The combined cycle units that were initially constructed to operate on natural gas can be modified to operate on coal gas. Under the Case A' scenario, two coal gasification plants would be built to produce coal gas for the combined cycle units. Associated with the coal gasification phase of the project will be the expansion of the plant island to accommodate the storage and handling of coal. Coal will be transported onsite by railroad. A rail loop for coal trains will be constructed on the plant island. It will be sized to accommodate a 100-car coal train. The coal storage area and limestone stockout will be located within the coal loop. Limestone is used in the coal gasification process as a fluxing agent to improve the viscosity of the coal slag, a by-product of the coal gasification process. The coal storage area, including the coal piles and emergency coal stockout system, will be lined with an impervious liner, and runoff from the coal storage area will be recycled to the coal gasification plants. The cooling pond for the Polk County Site will be located north and east of the plant island. Water from the cooling pond will be used for producing steam and condenser cooling. The cooling pond will be constructed initially in mining parcel N-16 and then in parcels N-15 and N-11B for later phases. These areas are mined-out pits which are surrounded by earthen dams. These dams will be upgraded where required to provide stability equivalent to the requirements of Chapter 17-672, Florida Administrative Code, for phosphate dams. Soil and Foundation Stability To evaluate the existing soil conditions at the Polk County Site, more than 165 test borings were made. The plant island is an existing mine pit which has been partially filled with sand tailings from phosphate mining operations. Underlying the sand is the Hawthorn formation which is often used as the base for deep load bearing foundations. Foundations for the heavier loads of power plant facilities will require pile foundations or similar types of deep foundations that will extend into the Hawthorn formation. The potential for sinkhole development at the Polk County Site was investigated by reviewing historic sinkhole records, aerial photographs, well drillers' logs, and by drilling three deep borings at the site. The investigation demonstrated that the potential for sinkhole development at the Polk County Site is low and acceptable for this type of construction. Construction Activities Construction of the Polk County Site will be phased over an approximately 25-year period beginning in 1994. The development of the Polk County Site is expected to take place in seven phases. Changes in the scope or sequence of the individual phases may occur depending on capacity needs over time. During Phase I, the initial earthwork and dewatering activities required for the construction of the plant island and cooling pond will take place. The initial cooling pond and plant island area will be dewatered and fill will be placed in SA-11 and SA-13 for the initial power plant construction. Water from the dewatering activities will be conserved by storage in mining parcels SA-8, SA-9, SA-10, N-15 and the northerly part of SA-12, except for quantities used in IMC's recirculation system. Clay consolidation will commence for other parcels, such as N-11A, N-11B, N-11C, N-13 and N-9B. Phosphate mining and related operations will still function in parcels P-2, P-3, Phosphoria, Triangle Lakes, and N-9. The initial vertical power plant construction for the first 470 MW of generating capacity will take place in Phase II. Water stored in Phase I, along with reclaimed water from the City of Bartow, will be used to fill the cooling pond in parcel N-16. Any excess reclaimed water from the City of Bartow, if necessary, will be stored in the eastern portion of N-16. Mining parcels SA-10, the southerly part of SA-12, and a portion of the offsite Estech Silver City plant site will be configured for drainage enhancement to McCullough Creek. Mining parcel SA-8 will be prepared to receive solid waste and parcel SA-9 will be prepared to receive wastewater from the RO system and neutralization basin. Wildlife habitat creation and enhancement will begin in parcels N-9B and N-13. Phase III of the Polk County Site represents the operation of the power plant from 235 MW to 1,500 MW, currently projected as NGCC capacity. The plant island, which will contain the generating units, will be located on mining parcels SA-11 and SA-13. The cooling pond will be located in N-16 and will receive reclaimed water from the City of Bartow and water crop from mining parcels P-3, Phosphoria, P-2, Triangle Lakes, N-15, N-11B, N-11C, the northerly end of SA-12 and the east end of N-16. Phase IV will encompass the development of the Polk County Site from 1,500 MW to 2,000 MW, currently projected as NGCC capacity. In conjunction with the additional generating units onsite, the cooling pond in N-16 will be enlarged to 1,219 acres. Other portions of the Polk County Site would remain the same as in Phase III. During Phase V, coal gasification is projected to be introduced to the Polk County Site. Generating capacity will be increased to 2,250 MW of which 1,000 MW are projected to be NGCC and the remaining 1,250 MW will be CGCC. To accommodate the coal gasification facilities, the northerly portion of SA-12 would be filled. The balance of the site would remain as described in Phase IV. During Phase VI, the generating capacity at the Polk County Site is projected to increase from 2,250 MW to 3,000 MW. This generating capacity will be a combination of 1,000 MW on NGCC and 2,000 MW on CGCC. During this phase, the cooling pond will be enlarged to 2,260 acres and will include parcels N-16, N-15 and N-11B, and a channel through N-11C. Earthwork will be required in N-15 and N-11B to repair and improve dams, and add slope protection on the dam inner faces and seeding on the exterior faces. Phase VII will be the final phase of the Polk County Site. During this phase, if the solid waste disposal area in mining parcel SA-8 were to become full it would be closed and mining parcel P-2 would be prepared to receive solid waste from the power plant operations. Parcels P-3 and Phosphoria will be available for mitigation, if necessary, as a result of activities in parcel P-2. This phase might not occur if coal slag is successfully recycled. Fuel Supply Fuel for the initial 470 MW of combined cycle generation will consist primarily of natural gas, with light distillate fuel oil as backup. Natural gas will be delivered by pipeline to the Polk County Site at a rate of 3.75 million cubic feet per hour. FPC currently plans to receive natural gas from the proposed Sunshine Pipeline for which certification is being sought in a separate proceeding. The Application for the Sunshine Pipeline was filed with DEP in August 1993. The other source for natural gas will be the backup natural gas pipeline which is being certified in this proceeding as an associated linear facility. Fuel oil will be delivered to the site by tanker truck, and enough fuel oil will be stored onsite for three days of operation for each combined cycle unit. At ultimate development, three 4-million gallon oil tanks will be located on the Polk County Site. All fuel handling and storage facilities, including unloading areas, pump areas, piping system, storage tanks, and tank containment areas will meet the requirements of DEP Chapter 17-762, Florida Administrative Code, and applicable National Fire Prevention Association Codes. At ultimate site development, the combined cycle units would use both natural gas and coal gas as primary fuels, and fuel oil as a backup fuel. As with the initial phase of operation, natural gas will be supplied by pipeline. At 1,000 MW of NGCC capacity, six to eight million cubic feet per hour of natural gas will be required. Coal for the coal gasification units will be delivered by railroad. For 2,000 MW of CGCC generating capacity, approximately 15,000 to 20,000 tons of coal a day will be required. Linear Facilities The initial 470 MW of NGCC generation includes three associated linear facilities: a 230-kV transmission line upgrade, a reclaimed water pipeline, and a backup natural gas pipeline. 230-kV Transmission Line The 230-kV transmission line will be routed from the existing FPC Barcola Substation within the Polk County Site to the FPC Ft. Meade Substation adjacent to CR 630. The transmission line corridor is approximately 1,000 feet wide within the Polk County Site boundary and narrows to 500 feet as the corridor leaves the site. The transmission line corridor follows several linear facilities including an existing transmission line right-of-way, CR 555 and CR 630. Land uses along the corridor are primarily phosphate mining, agricultural and industrial. Wetlands within the transmission line corridor are minimal and are associated primarily with roadside ditches. Where the transmission line crosses McCullough Creek, the creek will be spanned. The 230-kV transmission line will be constructed using single shaft tubular steel poles with a double circuit configuration for two 230-kV circuits. The transmission line structures will range in height from 110 feet to 145 feet. The conductor for the transmission line is a 1590 ACSR conductor that is approximately 1.54 inches in diameter. Conductor span lengths between structures will range from 500 to 900 feet. The transmission line will be constructed in six phases. During the first phase, the right-of-way will be cleared. Clearing in upland areas will be done using mowers and other power equipment. Clearing in wetlands, if necessary, will be accomplished by restrictive clearing techniques. After the right-of-way has been cleared, existing structures which will be replaced with new transmission line structures will be removed by unbolting them from their foundations and removing the structures with a crane. Foundations for new transmission line structures will be vibrated into the ground using a vibratory hammer or placed into an augured hole and backfilled. After the foundations are in place, new structures will be assembled on the foundations using a crane. Insulation and pole hardware will be mounted on the structures after erection. In the fifth phase of construction, conductors will be placed on a structure by pulling the conductors through a stringing block attached to the structure. During the final phase of construction, the structures will be grounded and any construction debris will be removed from the right-of-way. The construction of the 230-kV transmission line is estimated to require approximately 17 weeks. Construction of the transmission line will meet or exceed standards of the National Electrical Safety Code; FPC transmission design standards; Chapter 17- 814, Florida Administrative Code; and the Florida Department of Transportation Utility Accommodation Guide, where applicable. Electric and magnetic fields from the 230-kV transmission line will comply with the standards set forth in Chapter 17-814, Florida Administrative Code. Audible noise from the transmission line should occur only during rainy weather and will not exceed 39.1 dBA at the edge of the right-of-way. Since the transmission line is not located near many residences, interference to television and AM radio reception should be minimal. If interference does occur, it can be identified easily and corrected on an individual basis. Backup Natural Gas Pipeline The backup natural gas pipeline will originate at the Florida Gas Transmission pipeline in Hillsborough County at CR 39. The backup pipeline corridor runs generally east for 18 miles until it enters the Polk County Site at the western boundary of the plant island. The pipeline corridor is 1,000 feet wide and it generally follows linear facilities such as Jameson Road, a Tampa Electric Company transmission line, the CSX Railroad, Durrance Road, and Agricola Road. Several subalternate corridors are proposed in Polk County where the backup natural gas pipeline crosses phosphate mining land. The subalternate corridors, all of which are proposed for certification, are necessary to maintain flexibility in routing the backup natural gas pipeline around active mining operations. The uses of land crossed by the backup natural gas pipeline corridor consist primarily of phosphate mining and some agriculture. There are only two areas of residential land use along the corridor, one along Jameson Road in Hillsborough County, and the other near Bradley Junction along Old Highway 37 in Polk County. Ecological areas crossed by the natural gas pipeline corridor include a portion of Hookers Prairie in Polk County, some isolated wetlands associated with phosphate mining activities, and the South Prong Alafia River near CR 39 in Hillsborough County. The backup natural gas pipeline will consist of a metering facility, a scraper trap for pipeline cleaning, a maximum 30-inch buried pipeline made of high strength steel, a pressure regulating station, a cathodic protection system for corrosion control, and a Supervisory Control and Data Acquisition (SCADA) system to monitor and operate the pipeline. The pipe to be used for the natural gas pipeline will be manufactured in accordance with standards specified in 49 CFR 192 and the industrial standards referenced therein. Pipe thickness will vary depending on the population of the area crossed. External corrosion control for the pipe will be provided by an external coating around the pipe and a cathodic protection system designed to prevent electrochemical corrosion of the pipe. Pipeline sections will be hydrostatically tested before leaving the factory to 125 percent of the design pressure. Activities associated with the construction of the backup natural gas pipeline will include survey and staking of the right-of-way, right-of-way preparation, stringing of the pipe, bending, lineup welding and nondestructive testing, ditching, lowering in of pipeline sections, backfilling, tying in pipeline sections, testing and right-of-way restoration. Construction of the pipeline will take place typically within a 75 foot-wide right-of-way. A wider right-of-way may be required where specialized construction activities, such as jack and bore methods, are used. After construction, the natural gas pipeline will have a permanent 50-foot right-of-way. Where the pipeline crosses federal and state highways or water courses, directional drilling or jack and bore construction methods will be used to minimize disturbance. Where the pipeline crosses the South Prong Alafia River, directional drilling will be used to locate the pipeline underneath the river bed. Pipeline welding will be done by highly skilled personnel who have been qualified in accordance with 49 CFR 192. Pipeline welds will be visually inspected and a percentage of the welds will be x-rayed for analysis. Once the pipeline is constructed, buried and tie-in welds completed, the pipeline will be hydrostatically tested. Hydrostatic testing will use water with a minimum test pressure of 125 percent of maximum operating pressure. Water for hydrostatic testing will be pumped from and returned to the Polk County Site cooling pond. Construction of the pipeline will comply with Title 49 CFR Part 192, Transportation of Natural and Other Gas by Pipelines: Minimum Federal Safety Standards; Chapter 25-12, Florida Administrative Code; Safety of Gas Transportation by Pipeline; and the FDOT Utility Accommodation Guide. After construction of the backup natural gas pipeline, the right-of- way will be restored and a 50-foot-wide permanent right-of-way will be maintained. Line markers will be located along the pipeline at regular intervals and warning signs will be posted where the pipeline crosses roads, railroads, or stream crossings. The estimated cost for the pipeline construction is $611,100 per mile, or $11.2 million for the 18.2 mile pipeline route. Reclaimed Water Pipeline The reclaimed water pipeline will run from the City of Bartow to the cooling pond near the eastern side of the Polk County Site. The reclaimed water pipeline corridor follows the CSX Railroad and U.S. Highway 17/98 south from the southerly Bartow city limit turning west toward the Polk County Site just south of Homeland. Land uses along the corridor include phosphate mining, commercial sites, rural residences and recreation. The corridor does not cross any environmentally sensitive habitats. The reclaimed water pipeline consists of a buried pipe, 24 to 36 inches in diameter, butterfly valves about every mile along the pipeline, and a flow meter. Pumping of reclaimed water will be provided by the Bartow Sewage Treatment Plant. Construction of the reclaimed water pipeline is similar to that of the natural gas pipeline and includes the following activities: survey and staking of the right-of-way, right-of-way preparation, ditching or trenching construction, stringing of the pipe and pipe installation, back filling, hydrostatic testing, and right-of-way restoration. Where the pipeline crosses state or federal highways or railroads, the pipe will be installed by using jack and bore construction. Construction of the reclaimed water pipeline is estimated to cost $500,000 per mile or $5,000,000 for the total length of the pipeline. Construction of the reclaimed water pipeline will comply with the standards in Chapter 17-610, Florida Administrative Code, the Florida Department of Transportation Utility Accommodation Guide, and the EPA Guidelines for Water Reuse Manual. The pipeline will be hydrostatically tested prior to operation. Corrosion control of the pipeline will depend on the material used for the pipeline and the soil conditions. If a polyethylene or a polyvinylchloride material is used, no corrosion control will be necessary. If ductile iron is used, the soil will be tested for corrosive properties and, if necessary, the pipeline will be protected from corrosion with a poly wrap material. Solid Waste Disposal Various types of solid waste will be generated by the operation of the Polk County Site. Depending upon the type of solid waste, disposal may be made in the onsite solid waste disposal areas or it may be disposed of offsite. Waste inlet air filters from the combustion turbines and general waste, such as office waste, yard waste and circulating water system screenings, will be recycled or disposed of offsite at the Polk County North Central Landfill. Solid waste from the well water pretreatment and blowdown pretreatment will be disposed of onsite in the solid waste disposal area to be constructed in mining parcel SA-8. Sulfur, a by-product of coal gasification, will be of marketable grade and will be stored in a molten state onsite and delivered to buyers by rail car or tanker truck. Slag, a by-product of coal gasification, will be the largest volume of solid waste generated at the Polk County Site. Slag is potentially marketable and FPC will make efforts to recycle this by-product as construction aggregate. If slag is not marketable, it will be disposed of in the onsite solid waste disposal areas initially in mining parcel SA-8 and later, if necessary, in parcel P-2. Low volume spent acidic and basic solutions produced in the regeneration of demineralizer resin bed ion exchanges during operation of the facility will be treated in an elementary neutralization unit to render them non-hazardous. Other potentially hazardous waste will be tested and if determined hazardous will be disposed of in accordance with all applicable federal and state laws. Onsite disposal of slag, and well water and blowdown pretreatment solids will be made in the solid waste disposal areas to be constructed in parcels SA-8 and later, if necessary, P-2. These parcels are clay lined impoundments that have clays generally 20 to 40 feet thick. Prior to disposal of any solid waste in a clay settling area, that area will be drained and the clays consolidated. The clays will be probed and if the clay thickness is less than 10 feet it will be refurbished or patched with a synthetic liner. Additionally, a geotextile net will be installed to provide tensile strength to the upper layer of clay. Perimeter leachate collection piping will be installed. Leachate in the interior of the solid waste disposal areas will be monitored and collected by the use of well points to maintain the leachate head at no greater than 4 feet. The solid waste disposal area in parcel SA-8 will be closed by installing a two-foot thick soil cover which will be seeded and graded to provide water crop to parcel N-16. At closure, the leachate level will be pumped down to minimize the residual leachate head. The clay which lines the base of the solid waste disposal areas decreases in permeability as it consolidates and the solids content of the clay increases. In the first 20 to 50 years of consolidation, the hydraulic gradient of the clay is reversed and water will drain upward. Analysis of the clay shows that it would take 60 to 100 years for leachate to seep through the clay liner. After closure and capping of the solid waste disposal area occurs and the leachate residual head is pumped out, leachate is not expected to break through the liner. Based on the design of the solid waste disposal areas and the analysis of the clay, the solid waste disposal areas in parcels SA-8, and later P-2, should provide equivalent or superior protection to that of a Class I landfill under Chapter 17-7.01, Florida Administrative Code. Industrial Wastewater The Polk County Site is designed to be a zero discharge facility. There will be no offsite surface water discharge of contaminated stormwater or cooling pond blowdown. Cooling pond blowdown will be treated first by a lime/soda ash softening pretreatment system. A portion of the softened effluent will be routed to the cooling pond and a portion will be treated further by reverse osmosis (RO). High quality water from the RO system will be reused in the power plant as process water. The reject wastewater from the RO system will be sent to the brine pond for evaporation. In later stages of the Polk County Site operation, the RO reject wastewater will be concentrated prior to disposal in the brine pond. The brine pond will be constructed in parcel SA-9, a waste clay settling pond. Parcel SA-9 has thick waste clay deposits which will act as a liner. A synthetic liner will be placed along the interior perimeter of the brine pond out to a point where the clay is at least 10 feet thick. The synthetic liner will prevent seepage of the brine through the embankment of the brine pond and will provide added protection near the perimeter of the brine pond where the clay liner is thinner. Groundwater Impacts/Zone of Discharge The brine pond and solid waste disposal areas will be located in waste clay settling ponds with thick clay liners. They will be constructed to minimize, if not eliminate, seepage of brine and leachate to groundwater. If brine or leachate should seep through the clay liner, dispersion and dilution will reduce chemical concentrations so that neither primary nor secondary groundwater quality standards will be exceeded at the boundary of the zone of discharge. A zone of discharge has been established for the solid waste disposal area in parcel SA-8, the brine pond in parcel SA-9, and the cooling pond in parcels N-11B, N-15 and N-16. The zone of discharge will extend horizontally 100 feet out from the outside toe of the earthen dam along a consolidated boundary surrounding these facilities and vertically downward to the top of the Tampa member of the Hawthorn Group. A groundwater monitoring plan will be implemented to monitor compliance with groundwater standards at the boundary of the zone of discharge. Surficial Hydrology and Water Quality Impacts The Polk County Site is located along the divide between the Peace River Drainage Basin and the Alafia River Drainage Basin. Water bodies near the site include McCullough Creek, Camp Branch, Six Mile Creek, Barber Branch, and South Prong Alafia River. Mining has disrupted or eliminated natural drainage patterns from the Polk County Site to these water bodies. Currently the only drainage from the Polk County Site to these water bodies is through federally permitted National Pollutant Discharge Elimination System (NPDES) outfalls to McCullough Creek and Camp Branch. To assess the impact to the surficial hydrology of the Polk County Site and surrounding water bodies, the baseline condition was assumed to be the surficial hydrology which would be present under current mandatory reclamation plans for the mining parcels onsite and offsite. The baseline for non-mandatory parcels was assumed to be the minimum reclamation standards under the DEP/Bureau of Mine Reclamation (BOMR) (formerly within the Department of Natural Resources) Old Lands Program and the baseline for non-mandatory offsite parcels was considered to be the existing condition. The one water body onsite for which the baseline condition presently exists is Tiger Bay, which has been reclaimed and released. The baseline condition for the Polk County Site ultimately would include elimination of seepage from N-16 to Tiger Bay and removal of the NPDES outfall weir from Tiger Bay to Camp Branch. These conditions will result in a lowering of the water table in Tiger Bay and the drying out of wetlands in that area. Under current reclamation plans, water bodies also will be created in parcels SA-12 and SA-11. Other than the reclaimed Tiger Bay and Tiger Bay East, DEP, Southwest Florida Water Management District (SWFWMD) and Polk County have not claimed jurisdiction over any of the water bodies onsite within areas in which phosphate mining activities have been or will be conducted. The major construction activities which may impact offsite surface water bodies are the dewatering activities associated with the initial phase of construction. During this period, parcels SA-11, SA-13 and N-16 will be dewatered to allow earth-moving activities to take place. Dewatering effluent will be stored onsite, reused in IMC's recirculation system, or discharged in the event of above-average rainfall. After the earthwork is complete, the water will be returned to N-16. Based on this construction scenario, no adverse impact to offsite surface water bodies is expected from the construction activities associated with the Polk County Site. The Polk County Site has been designed to function as a "zero discharge" facility. No surface water will be withdrawn from or discharged to any offsite surface water body as a result of plant operations. Certain non- industrial areas within the Polk County Site will be designed, however, to provide offsite drainage to enhance flows to McCullough Creek and Camp Branch. Flow to McCullough Creek will be enhanced by drainage from parcel SA-10, an offsite portion of the Estech Silver City Plant Site, and the southerly portion of parcel SA-12. Drainage from parcels N-11A, N-13, N-9B, Tiger Bay East and Tiger Bay will enhance flows to Camp Branch. Additionally, FPC has agreed to explore the possibility of restoring drainage to Six Mile Creek if onsite water cropping produces more water than FPC needs for power plant operations and if such drainage can be accomplished without additional permits. The net effect of the drainage enhancement plans will be to equal or improve flows to McCullough Creek and Camp Branch over the baseline condition for the site. There are several types of surface water systems to be developed on the Polk County Site. Surface water runoff from the plant island, other than that from the coal and limestone storage areas, will be routed to the site runoff pond and then used in the cooling pond as makeup water. Surface water runoff from the coal and limestone storage areas, as well as runoff from the active solid waste disposal area, will be routed to a lined recycle basin and will be used as process makeup water for the coal gasification plant. Surface water runoff from mining parcels N-11C, Triangle Lakes, N-11B and N-15 prior to its use as part of the cooling pond, P-3, Phosphoria, P-2 prior to its use as a solid waste disposal area, and SA-8 after it has been closed as a solid waste disposal area, will be directed to the cooling pond as makeup water. All of the surface water management systems will meet the requirements of the SWFWMD Management and Storage of Surface Water rules. Subsurface Hydrology and Impacts from Water Withdrawal The Polk County Site will use a cooling pond for process water and for cooling water for the combined cycle units and the coal gasification facilities. For the initial 940 MW of generating capacity, makeup water for the cooling pond will come from onsite water cropping and reclaimed water from the City of Bartow. FPC has negotiated an agreement with the City of Bartow for 3.5 or more million gallons per day (mgd) of reclaimed water from its wastewater treatment facility. At ultimate site capacity, the Polk County Site will require up to 23.6 mgd from a combination of offsite sources and groundwater for the operation of the power plant. FPC has agreed with the SWFWMD to obtain at least 6.1 mgd from reclaimed water and other offsite non-potable water sources, including the City of Bartow, for use as makeup water for the cooling pond. The additional 17.5 mgd of water may be withdrawn from the Upper Floridan Aquifer if additional sources of reclaimed water are not available. FPC has identified substantial amounts of reclaimed water that may be available. A limited quantity of potable water from the Upper Floridan Aquifer will be needed to supply drinking water and other potable water needs for power plant employees. Well water from the Upper Floridan Aquifer will be treated, filtered and chlorinated in an onsite potable water treatment system prior to consumption. At ultimate site development, potable water consumption is estimated to average 19,000 gallons per day, with a peak consumption of 36,000 gallons per day. As an alternative, FPC may connect with the City of Bartow or the City of Fort Meade potable water system. The subsurface hydrology of the Polk County Site consists of three aquifer systems. The uppermost system is the surficial aquifer which is located in the upper 20 to 30 feet of soil. Due to mining operations, the surficial aquifer has been removed from the site except beneath highway rights-of-way and portions of some dams. Below the surficial aquifer lies the intermediate aquifer which is comprised of an upper confining layer approximately 120 feet thick, a middle water bearing unit about 60 feet thick, and a lower confining unit about 80 to 100 feet thick. This aquifer system provides potable water to some small quantity users in the area. Below the intermediate aquifer is the Floridan Aquifer, which consists of the Upper Floridan Aquifer, a discontinuous intermediate confining unit, and the Lower Floridan Aquifer. The Upper Floridan Aquifer provides a larger source of potable water for the area. The Lower Floridan Aquifer is characterized by poorer quality water and has not been used generally for water supply. The principal impact to groundwater from construction of the Polk County Site will be from the dewatering activities in parcels N-16, SA-11 and SA-13. This impact, if not mitigated, could result in the lowering of groundwater levels in the surficial aquifer in adjacent wetlands. During construction, recharge trenches will be constructed in certain locations near wetlands. Modeling analysis demonstrates that the recharge trenches will adequately mitigate any offsite groundwater impacts that otherwise would be caused by construction dewatering. The principal groundwater impact from the operation of the Polk County Site will be the withdrawal of water from the Upper Floridan Aquifer for process water and cooling pond makeup. Water from the Upper Floridan Aquifer is the lowest quality of groundwater that can be used for the Polk County Site while maintaining the cooling pond as a zero discharge facility. The withdrawal of 17.5 mgd from the Upper Floridan Aquifer at ultimate site development will not adversely impact offsite legal users of groundwater and will comply with the SWFWMD consumptive use criteria for groundwater withdrawal. Ecological Resources The baseline for the ecological resources at the Polk County Site was established as the site condition that would exist following (i) mandatory reclamation under reclamation plans approved by the DEP/BOMR, and (ii) non- mandatory reclamation normally carried out by the mining companies. In the cases of Tiger Bay, which has been reclaimed and released by DEP/BOMR, and Tiger Bay East, which has revegetated naturally without reclamation, the ecological baseline was represented by the current condition of these parcels. This baseline methodology was proposed by FPC in a Plan of Study which was accepted by DEP in a Binding Written Agreement. The predominant land cover that would occur under the baseline condition at the Polk County Site would be agriculture. Approximately 70 percent of the Polk County Site, or approximately 5,678 acres, would be developed as crop land, citrus or pasture. The remaining 30 percent of the site would be reclaimed as non-agricultural uplands, wetlands and open water bodies. Tiger Bay already has been reclaimed and released by DEP/BOMR and Tiger Bay East has revegetated naturally. These two parcels represent one-fourth (524 acres) of the natural habitat under the ecological baseline condition. The quality of the baseline land cover and vegetation was established by surveying several onsite and offsite areas which have been reclaimed and released. Baseline aquatic resources at the Polk County Site consist of Tiger Bay and the aquatic resources which would have been developed under existing reclamation plans. This baseline would include open water bodies and forested wetlands in parcels SA- 11 and SA-12, and forested and herbaceous wetlands in parcel N-16. Both Estech and IMC have exceeded their mine-wide wetlands mitigation obligations even without those wetlands. The quality of the baseline open water bodies on the Polk County Site was evaluated by surveying parcel N- 16, which currently consists of open water habitat. The quality of wetlands was determined by surveying Tiger Bay, which contains wetlands that have been reclaimed and released. The baseline aquatic resources were found to have significant fluctuations of dissolved oxygen, and were characterized by encroachment of cattail, water hyacinth and other nuisance species. All of the aquatic areas sampled as representative of baseline conditions showed significant eutrophication. No DEP or SWFWMD jurisdictional wetlands currently exist onsite, within areas in which phosphate mining activities have been or will be conducted, except in the reclaimed Tiger Bay and Tiger Bay East. Baseline evaluation of threatened and endangered species, and species of special concern (listed species) was conducted by collecting information regarding regional habitat descriptions; plant species lists and ecological reports for the area; lists and ecological reports of birds, mammals, reptiles and amphibians common to the area; species checklists; reports of sightings or abundance estimates; interspecific relationships and food chains of important species; location of rare, threatened or endangered species or critical habitat for these species in the region; and occurrence of potential preexisting stresses. Information from the Florida Natural Areas Inventory and approved mine reclamation plans was reviewed. Visits were made to nearby reclaimed sites by land and low-flying helicopters. No listed plant species were found at the site or offsite study areas. Existing reclamation plans, and consequently the ecological baseline condition, do not require the planting of such species. Listed animal species which were observed at the Polk County Site and are expected under the baseline conditions include the American alligator, woodstork, southeastern kestrel, osprey, little blue heron, snowy egret and tricolored heron. The baseline conditions would provide suitable feeding habitat for these species, but only limited areas of suitable nesting habitat. Both the current condition of the site and baseline condition provide feeding habitat for the American bald eagle, however, the nesting potential for this species will be greater after the implementation of the baseline condition. Impacts to the baseline ecological resources from the construction and operation of the Polk County Site will be more than compensated by habitat creation and enhancement programs proposed by FPC. The primary impacts to the baseline ecological resources will occur when power plant facilities, such as the plant island, cooling pond, brine pond and solid waste disposal area are constructed, eliminating these parcels from the baseline ecological resources. Without development of the Polk County Site, these parcels would represent approximately 2,268 acres of viable lakes and upland and wetland habitats. FPC has proposed a total of 3,713 acres of viable wildlife habitat as part of the ultimate development of the Polk County Site. Accordingly, the available wildlife habitat after construction of the Polk County Site represents a net increase of 1,445 acres over the baseline ecological resource conditions. This increase in habitat, particularly in the buffer area, will be a net benefit for protected species. In providing more wildlife habitat than baseline conditions, FPC has agreed to certain enhancement activities that will specifically offset any impact to baseline ecological resources. These enhancement programs include habitat and wetland creation in parcels N-9B and N-13; habitat creation and offsite drainage enhancement in parcel SA-10; implementation of a wildlife habitat management plan and exotic vegetation control in parcels SA-10, N-9B and N-13; drainage enhancement to McCullough Creek and Camp Branch; and funding the acquisition of a 425 acre offsite area to serve as part of a wildlife corridor. Air Pollution Control Polk County has been designated by the U.S. Environmental Protection Agency (EPA) and DEP as an attainment area for all six criteria air pollutants. Federal and state Prevention of Significant Deterioration (PSD) regulations provide that the project will be subject to "new source review." This review generally requires that the project comply with all applicable state and federal emission limiting standards, including New Source Performance Standards (NSPS), and that Best Available Control Technology (BACT) be applied to control emissions of PSD pollutants emitted in excess of applicable PSD significant emission rates. The project will limit emission rates to levels far below NSPS requirements. For the initial 470 MW phase of the Project, BACT must be applied for the following pollutants: sulfur dioxide (SO2), nitrogen oxides (NOx), particulates (PM and PM10), volatile organic compounds (VOCs), carbon monoxide (CO), beryllium, inorganic arsenic, and benzene. For the ultimate site capacity, BACT is required for each of these pollutants, and sulfuric acid mist (H2SO4), mercury, and lead as well. BACT is defined in DEP Rule 17-212.200(16), Florida Administrative Code, as: An emission limitation, including a visible emission standard, based on the maximum degree of reduction of each pollutant emitted which the Department, on a case-by-case basis, taking into account energy, environmental and economic impacts, and other costs, determines is achievable through application of production processes and available methods, systems and techniques (including fuel cleaning or treatment or innovative fuel combustion techniques) for control of each such pollutant. The primary purpose of a BACT analysis is to minimize the allowable increases in air pollutants and thereby increase the potential for future economic growth without significantly degrading air quality. Such an analysis is intended to insure that the air emissions control systems for the project reflect the latest control technologies used in a particular industry and is to take into consideration existing and future air quality in the vicinity of the project. The BACT analysis for the project therefore evaluated technical, economic, and environmental considerations of available control technologies and examined BACT determinations for other similar facilities across the United States. For the first 470 MW of NGCC units, BACT for SO2 emissions from the CTs is the use of natural gas as the primary fuel and the use of low sulfur oil for a limited number of hours per year. For the first 470 MW of NGCC units, BACT for CO, VOCs, PM, beryllium, arsenic, and benzene emissions from the CTs is efficient design and operation of the CTs, the inherent quality of natural gas (the primary fuel), and a limitation on the annual use of fuel oil. For the first 470 MW of combined cycle units, BACT for NOx emissions from the CTs is the use of advanced dry low NOx combustors capable of achieving emissions of 12 parts per million by volume dry (ppmvd) at 15 percent oxygen when burning natural gas, water/steam injection to achieve 42 ppmvd at 15 percent oxygen when burning fuel oil, and limited annual fuel oil use. For the first 470 MW of NGCC units, the DEP staff initially proposed BACT for NOx emissions from the CTs as 9 ppmvd at 15 percent oxygen when burning natural gas, using dry low NOx combustor technology. However, after careful consideration, it was determined that, because of the lack of proven technology to achieve such emission rate, it would be more appropriate to establish BACT at 73 lb/hour/CT (24-hour average, based on 12 ppmvd at 15 percent oxygen and 59o F) using dry low NOx combustor technology and to require FPC to make every practicable effort to achieve the lowest possible NOx emission rate with those CTs when firing natural gas. FPC also is required to conduct an engineering study to determine the lowest emission rate consistently achievable with a reasonable operating margin taking into account long-term performance expectations and assuming good operating and maintenance practices. Based on the results of that study, DEP may adjust the NOx emission limit downward, but not lower than 55 lb/hour/CT (24-hour average, based on 9 ppmvd at 15 percent oxygen and 59o F.). For the 99 MBtu/hour auxiliary boiler that is part of the initial phase of the project, BACT for NOx emissions is low NOx burners, limited annual fuel oil use, and limited hours of annual operation. BACT for NOx emissions from the 1300 kW diesel generator is combustion timing retardation with limited hours of annual operation. For the 99 MBtu/hour auxiliary boiler and the diesel generator as part of the initial phase of the project, BACT for CO, VOC, SO2, PM, benzene, beryllium, and arsenic emissions consists of good combustion controls, the inherent quality of the fuels burned, the use of low-sulfur fuel oil, and limited hours of operation. For the fuel oil storage tank as part of the initial phase of the project, BACT is submerged filling of the tank. For the coal gasification and other facilities to be built during later phases of the project, a preliminary BACT review was undertaken by FPC to support the demonstration that the Polk County Site has the ultimate capacity and resources available to support the full phased project. Air Quality Impact Analysis Air emissions from the project also must comply with Ambient Air Quality Standards for six criteria pollutants and Prevention of Significant Deterioration increments for three pollutants. Polk County and the contiguous counties are classified as Class II areas for PSD purposes; the nearest Class I area is the Chassahowitzka National Wilderness Area, located approximately 120 km. from the Site. An air quality analysis, undertaken in accordance with monitoring and computer modeling procedures approved in advance by EPA and DEP, demonstrated that the project at ultimate capacity utilizing worst-case assumptions will comply with all state and federal ambient air quality standards as well as PSD Class I and II increments. For nitrogen dioxide, sulfur dioxide and particulate matter, air quality modeling was based on conservative assumptions, including background concentrations based upon the highest long- term and second highest short-term measured values (established through an onsite one-year air quality monitoring program and regional data), existing major sources at their maximum emissions, the estimated maximum emissions from certain other proposed projects, and the impacts of the proposed FPC project at ultimate site capacity. For other pollutants, detailed analyses were not performed because offsite impacts were predicted to be insignificant. Impacts of the project's estimated emissions of certain hazardous air pollutants (antimony, arsenic, barium, beryllium, benzene, boron, cadmium, calcium, chromium, cobalt, copper, formaldehyde, magnesium, manganese, nickel, selenium, vanadium, and zinc) at ultimate capacity were compared to the DEP draft no-threat levels under DEP's draft "Air Toxics Permitting Strategy." All pollutants except arsenic were projected to be below the corresponding draft no- threat level. Because of the conservatism of DEP's draft no-threat levels, it was concluded that arsenic impacts would not pose a significant health risk to the population in the surrounding area. Impacts on vegetation, soils, and wildlife in both the site area and the vicinity of the Chassahowitzka National Wilderness Area, the nearest PSD Class I area, will be minimal. Visibility in the vicinity of the Chassahowitzka National Wilderness Area will not be impaired significantly by the project's emissions. Air quality impacts from commercial, industrial, and residential growth induced by the project are expected to be small and well-distributed throughout the area. Impacts from the initial phase of the Project (470 MW) will comply with all State and federal ambient air quality standards as well as PSD Class I and II increments. The impacts from the initial phase of the Project are also well below the draft no-threat levels. The initial phase of the Project will not significantly impair visibility in the vicinity of the Chassahowitzka National Wilderness Area, and the impact on vegetation, soils, and wildlife in both the site area and the vicinity of the Chassahowitzka National Wilderness Area will be minimal. The air quality impacts due to commercial, industrial, and residential growth from the initial phase of the Project will be small, and are not expected to impact air quality. Land Use Planning/Socioeconomic Impacts of Construction and Operation The proposed site is an appropriate location for the Polk County Site project. The Polk County Site has adequate access to highway and rail networks, including CR 555, a major collector road, and the CSX railroad. The Polk County Site is located away from major residential areas in a location already heavily disturbed by mining activity. The site is located in reasonable proximity to major metropolitan areas that can supply an adequate work force for construction. Development of the Polk County Site in a mined-out phosphate area is a beneficial use of land and will provide an economic benefit for Polk County. The Polk County Site also is close to existing facilities, such as existing transmission line corridors and reclaimed water facilities, which will benefit the operation of the site while minimizing the impact of the project. The linear facilities associated with the Polk County Site are sited in appropriate locations. The 230-kV transmission line upgrade, reclaimed water pipeline and backup natural gas pipeline corridors: (i) are located adjacent to other linear facilities, such as existing roads and transmission lines, (ii) avoid major residential areas, and (iii) minimally disrupt existing land uses. The Polk County Site is compatible with the State Comprehensive Plan, the CFRPC Regional Policy Plan, and will meet the requirements of the Polk County Conditional Use Permit. The portion of the backup natural gas pipeline located in Hillsborough County is consistent with the Hillsborough County Comprehensive Plan and the policies of the TBRPC Regional Policy Plan. Construction of the Polk County Site will occur over an approximately 25-year period beginning in 1994. If the Polk County Site is developed only for NGCC capacity, construction employment will average 153 jobs per year with a peak employment of 350. The average annual payroll for construction of the Polk County Site on all NGCC is expected to be $7.1 million per year. If 1,000 MW of NGCC and 2,000 MW of CGCC units are built at the Polk County Site, peak construction employment will be 1,000 with an average annual construction employment of 315 over the approximate 25-year period. Average annual payroll under this scenario would be $14.6 million per year. Indirect jobs created as a result of buildout of the Polk County Site will average 231 jobs for all NGCC and 477 jobs if 2,000 MW of CGCC is added to the Polk County Site. After completion of the construction of the Polk County Site at ultimate capacity, 110 permanent direct jobs will be created if the site uses all NGCC and 410 jobs will be created if coal gasification is added to the Polk County Site. The operation of the Polk County Site will have a multiplier effect on the Polk County economy. The all NGCC scenario will create 272 indirect jobs and the Case A' scenario with CGCC will create 1,013 indirect jobs. After buildout, property taxes generated by the Polk County Site are estimated to be $24.3 million per year for the all NGCC scenario and $37.4 million per year if CGCC capacity is constructed at the site. Noise Impacts The ambient noise, or baseline noise condition at the Polk County Site was measured in five locations. These measurements show that the baseline noise condition for the site ranges between 30 dBA and 65 dBA at the nearest residential location. The higher noise levels are caused by truck traffic associated with the phosphate mining industry. Noise impacts from construction will be loudest during initial site preparation and steel erection stages. Earth moving equipment will produce noise levels of 45 to 50 dBA at the nearest residence in Homeland. During final phases of construction, steam blowout activity to clean steam lines will produce short duration noise levels of 69 dBA at the nearest residence. This activity will take place only during daylight hours. Noise levels from the operation of the Polk County Site were calculated using a computer program specifically designed for assessing noise impacts associated with power plant operation. The highest predicted continuous noise level will be 41 dBA at several houses 2.9 miles south of the site and 47 dBA at the nearest church. Noise impacts from fuel delivery trucks and coal trains will not significantly increase the noise levels over existing conditions. The continuous noise level from the operation of the Polk County Site at the nearest residence or church will be below the 55 dBA level recommended by the U.S. Environmental Protection Agency. Traffic Traffic analyses were made for impacts to highway traffic which will result from the construction and operation of the Polk County Site. These analyses included impacts at rail crossings caused by the delivery of coal to the Polk County Site under the Case A' scenario. A highway traffic analysis was made to determine if the existing roadway network in the vicinity of the Polk County Site would operate at acceptable levels of service based upon increased volumes of traffic associated with the construction and operation employment at the Polk County Site. Methodologies for evaluating traffic impact complied with Polk County, FDOT and CFRPC criteria. County roads were evaluated using Polk County criteria and state roads were evaluated using both Polk County and FDOT criteria. Traffic volumes were evaluated for peak construction traffic in 2010 and full plant operations, estimated in 2018. The traffic evaluation included analysis of existing traffic conditions, increased traffic volume associated with growth in the area not associated with the Polk County Site, and increased traffic associated with construction and operation employment at the Polk County Site. During peak construction employment under the Case A' scenario, 1,000 employees are expected at the Polk County Site. Under this scenario, the expected trip generation of the Polk County Site is expected to be 1,792 trips per day, with a morning peak of 717 trips and an afternoon peak of 717 trips. Based on this analysis, all roadways are expected to operate at acceptable levels of service with currently planned improvements to the roadways. Intersection levels of service were found acceptable for 7 out of 11 intersections. FPC has recommended improvements to four intersections at U.S. 98 and SR 60A, SR 60 and CR 555, SR 37 and CR 640, and CR 555 and CR 640 at specified traffic levels. Peak operation employment under the Case A' scenario is expected to be 410 employees in 2018. Based upon this employment figure, the expected trip generation of the Polk County Site is 964 trips per day with a morning peak of 195 trips and an afternoon peak of 154 trips. At peak operation employment, all roadways evaluated were found to operate at acceptable levels of service. All intersections, except the intersection at SR 60 and CR 555, were found to operate at acceptable levels. FPC has recommended a protected/permissive westbound left turn lane at this intersection. With FPC's recommended improvements, which have been incorporated as conditions of certification, and those improvements currently planned by FDOT, the existing roadway network will meet Polk County and FDOT approved levels of service at peak employment during the construction and operation of the Polk County Site to its ultimate capacity. In addition to the highway traffic impact analysis, FPC evaluated the impact on rail/highway crossings from the transportation of coal by rail under the Case A' scenario. It was assumed that all coal for the Polk County Site will be delivered by rail over existing CSX transportation lines. It is expected that at full operation two 90-car trains per day will be required for the delivery of coal, resulting in four train trips per day. It was also assumed that trains will travel at speeds averaging 35 to 45 miles per hour. Evaluation of the impacts at rail crossings found an increase of .5 second per vehicle per day at urban rail crossings and .3 second per vehicle per day at rural rail crossings. Based on the 1985 Highway Capacity Manual, the total delay at rail crossing intersections caused by the increased train traffic to and from the Polk County Site will not cause a significant delay and the rail crossing intersections will maintain level of service A. Archaeological and Historic Sites The Florida Department of State, Division of Historical Resources, has stated that because of the location of the Polk County Site, it is unlikely that any significant archaeological or historical sites will be affected. Mandatory Reclamation of Mining Parcels The Polk County Site is comprised of phosphate mining parcels, portions of which are subject to mandatory reclamation under the jurisdiction of DEP/BOMR. The mandatory mining parcels are currently owned by Estech, IMC, and USAC. FPC has entered into stipulations with each mining company agreeing to reclamation of the mandatory mining parcels in accordance with the conditions of certification proposed by DEP/BOMR. In those conditions, DEP has proposed to incorporate the reclamation conceptual plan modifications included in Appendix 10.9 of the SCA into the certification proceeding for the Polk County Site and has redesignated those conceptual plan modifications as EST-SC-CPH and IMC-NP- FPC. The portions of the site which will be developed by FPC will be released from mandatory reclamation requirements when FPC purchases the Polk County Site. Variances FPC has requested variances from certain reclamation standards set forth in Rule 16C-16.0051, Florida Administrative Code, which will be necessary until the affected mining parcels on the Polk County Site are released from reclamation. FPC has requested a variance from Rule 16C-16.0051(5)(a), which requires artificial water bodies to have an annual zone of fluctuation, and Rule 16C-16.0051(5)(b), which requires submerged vegetation and fish bedding in artificially-created water bodies. The criteria in these rules are inappropriate for a cooling pond, because it is an industrial wastewater treatment facility which cannot be efficiently or safely operated with fluctuating water levels and aquatic vegetation zones. With regard to the construction of dams for the cooling pond, brine pond and solid waste disposal areas, FPC will need a variance from Rule 16C-16.0051(2)(a), which requires a 4:1 slope for dam embankments and Rule 16C-16.0051(9)(b) and (c), which requires vegetation of upland areas, which may include dam embankments. Dams for the cooling pond, brine pond and solid waste disposal areas will have steeper slopes and the interiors of the dams will be concrete blanket revetments, synthetic liners or solid waste consistent with the industrial purposes for which these facilities have been constructed. Access to these areas will be controlled to prevent any potential safety hazard. Finally, FPC will need a variance from Rule 16C-16.0051(11)(b)(4), which requires reclamation to be completed within two years after mining operations are completed. Construction of the Polk County Site requires extensive dewatering and earthwork which cannot be completed within this timeframe. Applications for variances from mining reclamation criteria were included in Appendix 10.9 of the SCA and have been incorporated into the certification proceeding for the Polk County Site. DEP has redesignated these variance applications as EST-SC-FPC-V and IMC-NP-FPC-V. These variances are appropriate and should be granted. Agency Positions and Stipulations The Department of Environmental Protection, Southwest Florida Water Management District, and Polk County have recommended certification for the construction and operation of the initial 470 MW of natural gas combined cycle generating capacity and have recommended the determination that the Polk County Site has the ultimate capacity for 3,000 MW of natural gas and coal gas combined cycle generating capacity, subject to appropriate conditions of certification. No other state, regional or local agency that is a party to the certification proceeding has recommended denial of the certification for the construction of the initial 470 MW of generating capacity or determination of ultimate site capacity. Several agencies which expressed initial concern regarding certification of the Polk County Site have resolved those concerns with FPC and have entered into stipulations with FPC as discussed below. The Florida Department of Transportation, the Game and Fresh Water Fish Commission, and the Department of Community Affairs have entered into stipulations with FPC recommending certification of the Polk County Site and a determination that the Polk County Site has the ultimate site capacity to support 3,000 MW of NGCC and CGCC generating capacity subject to proposed conditions of certification. Hillsborough County, the Environmental Protection Commission of Hillsborough County, and the Tampa Port Authority have entered into a stipulation and agreement with FPC recommending certification of the backup natural gas pipeline corridor subject to proposed conditions of certification. FPC and the agency parties have agreed on a set of conditions of certification for the Polk County Site. Those conditions are attached as Appendix A to this Recommended Order.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that: Florida Power Corporation be granted certification pursuant to Chapter 403, Part II, Florida Statutes, for the location, construction and operation of 470 MW of combined cycle generating capacity as proposed in the Site Certification Application and in accordance with the attached Conditions of Certification. Florida Power Corporation's Polk County Site be certified for an ultimate site capacity of 3,000 MW fueled by coal gas, natural gas, and fuel oil subject to supplemental application review pursuant to 403.517, Florida Statutes, and Rule 17-17.231, Florida Administrative Code, and the attached Conditions of Certification. A zone of discharge be granted in accordance with the attached Conditions of Certification. The conceptual plan modifications (EST-SC-CPH and IMC-NP-FPC) for the mandatory phosphate mining reclamation plans be granted subject to the attached Conditions of Certification. The variances from reclamation standards (EST-SC-FPC-V and IMC-NP-FPC- V) as described herein be granted subject to the attached Conditions of Certification. DONE AND ENTERED this 3rd day of December, 1993, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5308EPP RECOMMENDED CONDITIONS OF CERTIFICATION * * NOTE: 114 page Recommended Conditions of Certification plus attachments is available for review in the Division's Clerk's Office. COPIES FURNISHED: Gary P. Sams Richard W. Moore Attorneys at Law Hopping Boyd Green & Sams Post Office Box 6526 Tallahassee, Florida 32314-6526 Representing Applicant Pamela I. Smith Corporate Counsel Florida Power Corporation Post Office Box 14042 St. Petersburg, Florida 33733-4042 Richard Donelan Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road, Room 654 Tallahassee, Florida 32399-2400 Representing DER Hamilton S. Oven, Jr. Office of Siting Coordination Division of Air Resources Mgmt. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Lucky T. Osho Karen Brodeen Assistant General Counsels Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Representing DCA Michael Palecki, Chief Bureau of Electric & Gas Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399-0850 Representing PSC M. B. Adelson, Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Representing DNR Carolyn S. Holifield, Chief Chief, Administrative Law Section Department of Transportation 605 Suwanee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Representing DOT Doug Leonard, Executive Director Ralph Artigliere, Attorney at Law Central Florida Regional Planning Council 409 East Davidson Street Bartow, Florida 33830 Representing CFRPC Julia Greene, Executive Director Tampa Bay Regional Planning Council 9455 Koger Boulevard St. Petersburg, Florida 33702 Representing Tampa Bay Regional Planning Council John J. Dingfelder Assistant County Attorney Hillsborough County Post Office Box 1110 Tampa, Florida 33601-1110 Representing Hillsborough County Mark Carpanini Attorney at Law Office of County Attorney Post Office Box 60 Bartow, Florida 33830-0060 Representing Polk County Martin D. Hernandez Richard Tschantz Assistant General Counsels Southwest Florida Water Management District 2370 Broad Street Brooksville, Florida 34609-6899 Representing SWFWMD James Antista, General Counsel Florida Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Representing GFWFC Sara M. Fotopulos Chief Counsel Environmental Protection Commission of Hillsborough County 1900 Ninth Avenue Tampa, Florida 33605 Representing EPCHC Joseph L. Valenti, Director Tampa Port Authority Post Office Box 2192 Tampa, Florida 33601 Representing Tampa Port Authority Board of Trustees of the Internal Improvement Trust Fund Don E. Duden, Acting Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Representing the Trustees Honorable Lawton Chiles Governor State of Florida The Capitol Tallahassee, Florida 32399 Honorable Robert A. Butterworth Attorney General State of Florida The Capitol Tallahassee, Florida 32399-1050 Honorable Bob Crawford Commissioner of Agriculture State of Florida The Capitol Tallahassee, Florida 32399-0810 Honorable Betty Castor Commissioner of Education State of Florida The Capitol Tallahassee, Florida 32399 Honorable Jim Smith Secretary of State State of Florida The Capitol, PL-02 Tallahassee, Florida 32399-0250 Honorable Tom Gallagher Treasurer and Insurance Commissioner State of Florida The Capitol Tallahassee, Florida 32399-0300 Honorable Gerald A. Lewis Comptroller State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350
Findings Of Fact On February 4, 2008, the Department filed a two-count Administrative Complaint against Boetzel, alleging that Boetzel violated sections 481.323(1) and 489.531(1), Florida Statutes (2006), in that Boetzel engaged in the unlicensed practice of landscape architecture and electrical contracting. The following pertinent facts were alleged in the Administrative Complaint: At no time material hereto were Respondents the holders of valid licenses to engage in the practice of landscape architecture pursuant to Chapter 481, Part II, Florida Statutes. At no material time hereto were Respondents the holders of valid licenses to engage in the practice of electrical contracting pursuant to Chapter 489, Part II, Florida Statutes. At all times material hereto, Respondent TODD P. BOETZEL was the Registered Agent and Officer/Director/President of Respondent BOETZEL LANDSCAPING, INC. Respondents' last known address is 2534 22nd Avenue North, St. Petersburg, Florida 33713. On or about June 5, 2007 Respondents submitted an invoice to Southern Cross Construction for site preparation, including grading, placement of plantings, and installation of an irrigation system at a construction site in Reddington [sic] Beach, Florida. The aforementioned invoice also included electrical contracting work. On or about June 19, 2007 Respondent Todd P. Boetzel signed a sworn Claim of Lien indicating that he provided "Landscaping, Sod, and Irrigation" for the aforementioned project. Respondent was paid a deposit of $8,000.00 by check number 1274 on May 25, 2007. Boetzel requested an administrative hearing, and the case was referred to DOAH. A final hearing was held, and the Administrative Law Judge entered a Recommended Order, recommending that a final order be entered finding that Boetzel did not engage in the unlicensed practice of landscape architecture and electrical contracting. On October 28, 2008, the Department filed a Final Order, which adopted the Findings of Fact and Conclusions of Law in the Recommended Order and found that Boetzel was not guilty of engaging in the unlicensed practice of landscape architecture and electrical contracting. On November 17, 2008, Boetzel filed a Verified Petition and Affidavit for Attorney's Fees and Costs under Florida Statutes § 57.111 (2006). The petition included an Affidavit for Attorney's Fees executed by the attorney for Boetzel, stating that 102.2 hours of attorney time had been rendered in the case and that the usual rate was $300.00 per hour. The total amount claimed for attorney's fees is $30,660.00. The petition also included a Bill of Costs executed by Todd P. Boetzel, which included costs for services of process and transcripts. The total amount claimed for costs is $1,327.30. On December 8, 2008, the Department filed Respondent's Answer to Initial Order. The answer stated: The Department does not dispute the reasonableness of the fees and costs submitted by Petitioner. The Department does not dispute that Petitioner [sic] were a prevailing party in the underlying proceeding. The Department does not dispute that Petitioner [sic] are a small business party. The Department does not dispute that it was non-nominal party at the underlying proceeding. The Department knows of no circumstances or facts that would make an award of attorney's fees to Petitioner unjust in the present case. * * * The Department alleges that its actions in prosecuting this matter were substantially justified, thereby negating Petitioners' entitlement to attorneys' fees. The only disputed issue in the instant case is whether the Department was substantially justified in issuing the Administrative Complaint. In February 2008, Laura P. Gaffney (Ms. Gaffney) was the chief attorney in the unlicensed activity section of the Department. Her primary responsibility was to review incoming cases and determine whether the cases should be closed out, whether additional investigation was needed, or whether charges should be filed in the form of an administrative complaint. Ms. Gaffney had been delegated the authority by the Secretary of the Department to make probable cause findings on cases dealing with unlicensed activity.2/ In making her determination of whether there was probable cause to file an administrative complaint, Ms. Gaffney considered the investigative report dated December 29, 2007, and a supplemental report dated January 19, 2008. The investigative file included a complaint filed by Steve Petrozak (Mr. Petrozak), a licensed general contractor and manager of Southern Cross Construction, alleging that Boetzel had engaged in the unlicensed practice of landscape architecture. The complaint described the work performed by Boetzel as "landscaping, lawn irrigation, sod." The complaint filed by Mr. Petrozak included an invoice from Boetzel for the work performed. The invoice was for the planting of various plants, site preparation, irrigation, installation of pine bark, and lighting. The site preparation was described in the invoice as follows: "Sodcut areas to be planted, remove unwanted vegetation and haul away, prepare areas for planting, stump grind. Grade entire property and create swale down left side." The lighting work was described in the invoice as follows: "Install Low Voltage Halogen Lights, uplight 3 foxtail palms, 1 adonidia palm and 2 lights on mailbox, with one automatic transformer. Additional transformer." The investigative file also included a letter dated November 7, 2007, from Gregory Elliott, an attorney representing Boetzel. Mr. Elliott stated that Boetzel was not in the business of landscape architecture, but was in the business of selling and installing landscape materials for residential or commercial use. Mr. Elliott described Boetzel as a laborer or materialman working under the general contractor. Ms. Gaffney felt that the "single most important part of this investigative report" was the sworn claim of lien filed by Boetzel, which stated that Boetzel had furnished "labor, services and material consisting of Landscaping, Sod, and Irrigation" at the property situated at 511 161st Avenue, Redington Beach, Florida. Ms. Gaffney assumed that because the work performed by Boetzel included grading the property and creating a swale that Boetzel had set the grades for the grading and had designed the swale. The investigative report does not contain sufficient information to make that determination. Such information could easily have been obtained from Mr. Petrozak, but the investigator did not get the information nor did Ms. Gaffney request the information. Ms. Gaffney assumed that because transformers were being provided and that halogen lights were being installed that Boetzel hardwired the installation of the lights and transformers. She assumed that because lights were being placed near a mailbox that the work would entail more than plugging in the lights. The information contained in the investigation file is insufficient to supports such assumptions. The investigator could have obtained the necessary information from Mr. Petrozak, but did not do so nor did Ms. Gaffney request the information.
The Issue Whether the Respondent, Reichhold, Inc., has committed an unlawful employment practice contrary to Section 760.11, Florida Statutes.
Findings Of Fact Respondent owns a chemical plant that produces resins, copolymers, polymers, alkyds, amines and hardeners, for various applications in paints and coatings. It is an equal opportunity employer. Its policy prohibiting discrimination is posted on the company’s intranet site, to which all employees have access. In order to produce its products, Respondent uses a variety of chemicals in its production process. The chemicals used in the plant are volatile substances which, if dealt with improperly, can cause explosions, flashes, or fires, endangering plant employees and the surrounding community. These chemicals are expensive, dangerous, and are subject to tight safety and environmental regulation. In addition, many of the products are created under heat and pressure conditions inside a closed mixing and/or distilling chamber known as a reactor or kettle. The reactors are connected in a production line by a system of pipes. Each reactor has a set of controls which allow the reactor to be opened and closed for the addition of chemicals to the reactor. Failure to close other reactors in the line can cause a chemical to be added to the wrong reactor. Respondent has developed a number of written procedures that operators must follow when mixing chemicals or performing certain tasks, such as cleaning the reactors products. Written procedures for operating a reactor are known as Standard Operating Procedures and are available at all times for operators to consult in performing their duties. Operators must also follow a recipe for a product known as a batch ticket. The batch ticket provides the formula for a given product, including quantities of specific materials, plus instructions on when and how to add chemicals to the mix to produce the desired product. If the responsible operator follows the batch ticket for a given product, the resulting batch of chemicals should meet all applicable quality standards for that product. If the operator does not follow the batch ticket, then the product will not meet quality standards. A non-conforming product can sometimes be salvaged by adding additional raw materials to bring it within product specifications. Such corrections increase the price of the batch. However, it is not always possible to salvage a non-conforming product. This results in a loss of raw materials and sometimes causes disruption in product delivery schedules and significant clean-up costs for the Respondent. Therefore, it is very important for operators to follow operating and batch ticket procedures precisely and to communicate immediately with their supervisors if they notice any problems with the batches they are working. The production system at the plant is continuously monitored by a computer system that logs actions taken by an operator for a line of reactors. The system also monitors the internal environment of the kettle such as temperature and pressure and sets off alarms when certain processes are not met. Inventory logs are also maintained by computer via operator input. Individual reactors are also monitored by the assigned operators. The United Steel Workers Union represents the operators at the Pensacola plant. The collective bargaining agreement between the union and Reichhold contains a non-discrimination clause. All employees in the unit, including Petitioner, have the right to file a grievance whenever they believe that the company has violated a provision of the collective bargaining agreement. Petitioner has not filed any grievance regarding any alleged discriminatory action discussed in this order. The union collective bargaining agreement also provides for the discipline of employees through a progressive disciplinary system. The progressive disciplinary system was instituted at the Pensacola facility in 2004 after consultations with the President of the United Steel Workers Union and eventually placed in the union contract. The policy defines four categories of misconduct: minor, major, severe, and termination. The category of “major misconduct includes “violation of product quality standards,” “violation of safety procedures,” and “activities that create product delivery problems.” The category of “severe” misconduct includes a “ mischarge or mispump” and a “misadjustment.” A “mischarge” occurs when the wrong material is added to a batch. After implementation of the progressive discipline policy, discipline began to be administered more frequently in the Pensacola plant. The increased level of discipline affected everyone regardless of race. The record contains 36 exhibits reflecting disciplinary actions issued to both white and black employees during and after 2004. Petitioner is a black male. Petitioner was hired by the Respondent at its Pensacola plant, on September 7, 1993. Petitioner was terminated from his job on April 3, 2006. At the time of his termination, he was 54 years old. Petitioner began his employment with Respondent as a laborer. He worked as a laborer until January 1994. In January 1994, Petitioner was promoted to a material handler position, also known as a “C” operator. The primary responsibility of a material handler is to load chemicals into the reactors. Petitioner held this position for approximately one year. Eventually, Petitioner was promoted to the position of an “A” operator and was an “A” operator at the time of his discharge. “A” operators are the highest level operators in the plant. The principal responsibility of an “A” operator is to monitor the reactors to which he has been assigned at the beginning of his shift. On October 22, 2004, Petitioner was working the night shift with two other operators, Ernest Anderson (African- American) and John Monti (White). Petitioner was assigned to monitor two reactors during his shift on October 22, 2004. Monitoring a reactor requires the operator to monitor the Johnson Yokagawa Control (JYC) system for any alarms or adverse conditions it detects in the reactors. All three of the operators on the night shift were responsible for monitoring the JYC system. During Petitioner’s shift on October 22, 2004, the temperature in one of the tanks tripped the alarm. The alarm was shut-off without any action being taken to address the issue of the elevated temperature in the tank. Over the next ten hours, the alarm continued to sound every ten minutes and was continuously manually silenced without any steps being taken to resolve the underlying problem that was causing the elevated temperature. When the day shift arrived, an “A” operator noticed the problem, immediately stopped the reaction and called an outside contractor to come in and repair a chiller that had broken and had caused the elevated temperature in the reactor tank. Had the overheating tank not been caught by the day shift employees, it could have exploded, causing major damage to the plant and the surrounding community. During most of the shift, but not all, Petitioner had been cleaning a filter on one of his reactors and was away from the room where the JYC system is housed. He, therefore, did not see or hear the alarm. Petitioner admits that he did not monitor the JYC system for both of his reactors throughout his shift as procedures require him to do. The company investigated the incident. None of the operators admitted to hearing or silencing the alarm. Because all three operators failed to respond to the alarm and because of the very serious potential consequences of their failure, Respondent issued a suspension for negligence to all three operators on duty during the night shift on October 22, 2004. There was no evidence that any other employee who failed to report a JYC alarm were not disciplined. The evidence did not demonstrate that Respondent’s disciplinary action was unreasonable or discriminatory. On March 17, 2005, Petitioner was responsible for adding VMP solvent to help cool product 16901-00, lot #217946, for the second stage reflux distillation. During this process, the disc in the reactor ruptured because of a build-up of pressure and temperature due to moisture entering the reactor. The JYC log showed that the pressure in the reactor had reached 25.24 psi and the column temperature had reached 125 C. As a consequence of the rupture, the sight glass gasket on the column was damaged and had to be replaced. As a result, Respondent incurred significant costs in repairing the blown disc and sight glass. These costs included the actual cost of the disc and the sight glass gasket. In addition, the reactor could not be operated during the repairs, which cost the company production time. Respondent also conducted an investigation of this incident. The investigation revealed that the decanter was found to be over half full of resin. Based upon the investigation, the JYC information and the nature of the chemical distillation process, Respondent concluded that Petitioner either: (1) did not control the cooling solvent for the second stage of cooling and caused a violent reaction that triggered an overflow and pressure build- up that resulted in the blown disc; or (2) failed to properly drain all of the water from the decanter before adding the VMP, which caused an overflow back into the reactor and the blown disc. Petitioner thought the water may have been in the solvent pipes used to pump the chemicals into the reactor. Under any scenario, Petitioner failed to follow the operating procedures for his reactor and he failed to take appropriate action to prevent the failure of a pressure relief device. On April 5, 2005, due to the progressive disciplinary policy and the serious nature of uncontrolled temperature and pressure build-ups in a reactor, Respondent placed Petitioner on a three-day suspension for negligence. The written notification given the Petitioner stated: “Any recurrence of this or any other poor work performance will result in termination from Reichhold, Inc.” At the hearing, Petitioner was unable to specifically identify any other white or younger employee who blew a rupture disc and was not disciplined. Although Petitioner claims that other employees blew rupture discs, his knowledge is based on hearsay or speculation. The one instance that Petitioner was aware of occurred after Petitioner’s discharge, but prior to the hearing in this matter. In that instance a rupture disc blew on a reactor being operated by a white employee. However, the disc blew because the disc was faulty, not because of operator error. The disc was not supposed to rupture until ten pounds or more of pressure occurred in the reactor. According to the computer log, the disc ruptured prematurely at only 6.7 pounds of pressure. Because there was clearly no operator error no discipline was imposed. The incident is not comparable to Petitioner’s situation and there was no evidence that showed Respondent’s disciplinary action was unreasonable or discriminatory. On July 23, 2005, Petitioner was working with two “D” operators, Robert Atkins (African-American) and Ralph Davis (African-American), all of whom were responsible for a batch of 16827-00, lot 215786, a type of chemical that Respondent mixed for sale to a customer. During the process, Petitioner added too much Pentaerythritol Pure Mono to the batch causing a mischarge of the product. Later, Petitioner sampled the product and found that it was running high in acid value and was out-of-specification. He added glycerin to the reactor to try to bring the product back into specification. Petitioner’s action, however, was not sufficient to correct the problem and the product remained out- of-specification. In the end, the product could not be salvaged and two shipments to the customer were missed. Respondent conducted an investigation into this incident and concluded that Petitioner was responsible for the mischarge and had failed to follow the batch ticket recipe. Petitioner admitted that he was responsible for this mistake. Even though Petitioner could have been discharged under the progressive disciplinary policy, he was not. By disciplinary action issued on August 3, 2005, the company issued Petitioner a three-day suspension for negligence. The written notification received by Petitioner again stated: “any recurrence of this or any other poor work performance will result in termination from Reichhold, Inc.” The two “D” Operators, who were substantially younger than Petitioner, received final written warnings for the same incident. Final written warnings are lower levels of discipline under the progressive disciplinary policy. They received less discipline because it is ultimately the "A" operator’s duty to ensure the correct material is charged into the reactor. There was no evidence of any other employees who committed mischarges and who were not disciplined. On the other hand, there was evidence that Respondent has disciplined white operators for similar mistakes. For example, on January 25, 2006, Doyle Caudell was responsible for a mischarge to reactor number two. Like Petitioner, he was issued a three-day suspension for the mischarge. There was no competent evidence that the discipline imposed on Petitioner was unreasonable, discriminatory or pretextual. On June 25, 2005, Petitioner was responsible for batch 16070-00, lot 239480. During his shift, Petitioner mistakenly entered 1,919 pounds of castor oil, code 4016 to the company’s inventory tracking system known as "SAP." The amount that should have been entered was 2,919 pounds of castor oil that he actually used in the production process. One of the responsibilities of an “A” operator is to accurately enter all raw materials into the company’s computer system to ensure other Reichhold employees order the necessary supplies for upcoming production needs. Because of Petitioner’s error, the company’s inventory showed that it had 1,000 more pounds of castor oil than it actually possessed. Petitioner’s error was not discovered until August 8, 2005, when Respondent planned to mix another batch of 16070-00. The company did not have enough castor oil on hand to mix the batch. As a result, Respondent was forced to delay production of 16070-00, until enough castor oil could be delivered to the plant. On August 18, 2005, Petitioner was not discharged, but issued a final written warning for negligence. The disciplinary notice again stated: “any recurrence of this or any other poor work performance will result in termination from Reichhold, Inc.” The evidence showed that Respondent has disciplined a white operator for the same type of mistake. Jimmy Dickens received a one-day suspension for transposing numbers on a calculation which shorted inventory and created an off specification batch. There was no evidence that Respondent’s disciplinary action was unreasonable, discriminatory or pretextual. On March 17, 2006, Petitioner was responsible for the production of batch 16827-00, lot 309864 in Reactor 7(R7). During the processing and sampling of the product, Petitioner found that it was running high in acid value. He added two 700 pound hits of glycerin to the reactor to try to bring the product into specification. The product, however, could not be saved and was placed into storage until the company could prepare a plan to try to salvage the materials. While Petitioner was working on his batch of 16827-00 in R7, a batch of 16406, lot 309785 was processing in Reactor 1 (R1), a different reactor on the same line as R7. During the sampling of R1 batch, it was observed to be running low on viscosity and acid value. As a result, 2,421 pounds of Phthalic Anhydride was added to R1 to bring batch 16406 back into specification. Respondent investigated the problem. The computer log showed that Petitioner had logged that he added 2,393 pounds of glycerin to R7. However, Respondent tested the Hydroxyl values of both batches (16827-00 and 16406) which did not corroborate the addition of the glycerin to R7. The process information (PI) data showed a drop of 17 degrees in R1 during the time the glycerin was supposed to be cooling R7, showing that the glycerin had been charged or fed into the wrong reactor on the line. The only way the glycerin was able to enter R1 was because Petitioner failed to close the glycerin valve on R1 prior to attempting to pump the glycerin into R7. Thus the glycerin flowed into R1 instead of R7. Within the 18-month period prior to his discharge, Petitioner had engaged in conduct prompting three suspensions and a final written warning. Based upon Petitioner’s mischarge on March 17, 2006, and his prior record of negligence in performing his duties, Respondent terminated Petitioner on March 30, 2006. There was no evidence of any other employees with five similar disciplinary actions within an 18-month period that were not discharged. Petitioner was replaced by Phillip Nared (Black). Mr. Nared voluntarily resigned after 120 days and was replaced by Jason McGruder, also Black. Petitioner testified that Terry King caused a spill from a monomer tank and was not disciplined. Terry King is a White A operator at the Pensacola plant. However, Petitioner does not know when the alleged spill occurred, and did not witness Terry King engage in any conduct that caused the spill. Rather, Petitioner walked up on the spill after it had already occurred. All of Petitioner’s knowledge regarding this incident is based on either speculation or hearsay. Petitioner did not present any other evidence corroborating his allegations regarding Terry King. Therefore, this evidence is inadmissible and insufficient as comparator evidence. Moreover, Petitioner introduced no other competent evidence about Mr. King’s disciplinary history or other alleged incidents he was involved in for which he received no discipline. Therefore, no meaningful comparison of the disciplinary histories of Mr. King and Petitioner can be made. Petitioner also testified about David Blair. David Blair is a white A operator at the Pensacola plant. Petitioner contends that Mr. Blair also caused a spill from the monomer tank. However, the spill was caused by faulty equipment. As with Mr. King, Petitioner did not see Mr. Blair engage in any conduct that caused the spill. Rather, he saw the spill after it had already happened and was unaware of its cause. Therefore, Petitioner’s evidence of Mr. Blair’s alleged involvement in the spill is not based on his own personal knowledge but rather is speculation. Again, Petitioner introduced no evidence about Mr. Blair’s disciplinary history or other alleged incidents he was involved in for which he received no discipline. Therefore, no meaningful comparison of the disciplinary histories of Mr. Blair and Petitioner can be made. Doyle Caudell is another white A operator at the Pensacola plant that Petitioner felt received more favorable disciplinary treatment than he did. Petitioner contends that Mr. Caudell was not disciplined for (1) and alleged mischarge to the monomer tank; and (2) a flash fire incident in May 2005. Petitioner learned about the alleged mischarge to the monomer tank based on a statement from Carl Martion who was repeating an alleged statement from Doyle Caudell. Petitioner introduced no other evidence regarding this alleged mischarge. Consequently, it is based on uncorroborated hearsay and is not as comparator evidence. Similarly, Petitioner was not working when the flash fire incident occurred, and again, his knowledge of the incident is based on uncorroborated hearsay. Respondent investigated the flash fire incident. The incident occurred when a reaction inside a reactor caused the reactor to “flash” while two operators, one of whom was Doyle Caudell, were in the process of charging (loading) the reactor. The force of the flash knocked one of the operators backwards, causing injury to the operator. Respondent concluded that the flash fire was not caused by operator error but rather by a faulty nitrogen valve and faulty procedures regarding when to apply heat to the reactor. The company changed its procedures after the incident to specify that heat should not be applied to the reactor during the charging process. As a result of the investigation, the operators were not disciplined for the incident. Respondent concluded that Mr. Caudell did not violate any operating procedures and was not responsible for the flash fire. Petitioner introduced no competent evidence to rebut the Company’s conclusion that the flash fire was caused by faulty equipment and procedures. Petitioner testified that he was trained by Respondent that heat should never be applied to a reactor while loading chemicals because the pressure created by the added heat could cause the chemical being added to “blow back” out of the reactor. However, the evidence showed that this “Procedure” was not consistent or in place for all types of batches made by the Pensacola plant. Such procedures varied depending on the product being made. Therefore Petitioner’s testimony is insufficient to overcome the data records maintained by the Respondent for the batch that caused the flash fire. Moreover, Mr. Caudell’s disciplinary history was not comparable to Petitioner’s record. In the same 18-month period, Mr. Caudell only received two disciplinary actions. Thus, even if Mr. Caudell had been disciplined for the flash fire incident, his disciplinary record still would not have been as extensive as Petitioner’s record. Petitioner also testified that in June 2006, Jimmy Dickens (white) falsified company records. Again Petitioner was not present during the time of the alleged falsification. The evidence showed that Mike Weaver, Mr. Dickens supervisor, suspected Jimmy Dickens of falsifying company records. The records did not affect safety or production issues. Mr. Weaver investigated but did not find sufficient evidence of falsification and did not feel comfortable with drawing a formal conclusion that Mr. Dickens had, in fact, falsified records. Therefore, Mr. Weaver verbally counseled Mr. Dickens and documented the incident in Mr. Weaver’s own files. There was no evidence that Mr. Weaver’s actions were unreasonable or that Mr. Dickens alleged falsification was similar to Petitioner’s actions. Likewise, this one incident does not support a finding of preferential treatment for white employees over black employees. Lastly, in 2006, Respondent terminated Jimmy Dortch, a white manager who was over 40 for poor performance. Petitioner offered no competent evidence on the issue of age discrimination and the evidence does not demonstrate that Petitioner was discriminated against or that Respondent’s disciplinary actions were a pretext to cover up discrimination. Therefore the Petition For relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 2nd day of August, 2007, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2007. COPIES FURNISHED: R. John Westberry, Esquire 1308 Dunmire Street, Suite B Pensacola, Florida 32504 Gretchen W. Ewalt, Esquire Ogletre, Deakins, Nash, Smoke and Stewart, P.C. 2301 Sugar Bush Road, Suite 600 Raleigh, North Carolina 27612 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Conclusions . This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Linzie F. Bogan, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’s Notice of Withdrawal of Intent to Establish Dealership, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Power Group International, LLC, and Reliable Power Equipment, LLC d/b/a Coastal Carts to sell low-speed vehicles manufactured by Tomberlin Automotive Group, (TOMB) at 16277 South Tamiami Trail, Suite A, Fort Myers, Florida 33908. Filed September 6, 2012 2:11 PM Division of Administrative Hearings “ DONE AND ORDERED this C day of September, 2012, in Tallahassee, Leon County, Florida. —m P00 J ulie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed in the official records of the Division of Motorist Services this G day of September, 2012. Webi: Viranok AO Mad — Nalini Vinayak, Deater Hicense Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/wev Copies furnished: Elinore Hollingsworth Power Group International, LLC 3123 Washington Road Augusta, Georgia 30907 Jay Stewart A Plus Carts and Parts 16100 San Carlos Boulevard Fort Myers, Florida 33908 Donald B. Imbus Reliable Power Equipment, LLC 16277 South Tamiami Trail, Suite A Fort Myers, Florida 33908 Linzie F. Bogan Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
Findings Of Fact Donn M. Patterson, Petitioner, was employed by the City of Lakeland, Florida as a Water Plant Operator I (WPO I) in 1982 and was promoted to Water Plant Operator II (WPO II) in 1985 or 1986 after obtaining his Class C WPO license. In July 1988 Petitioner was involved in a motorcycle accident in which he received serious head injuries and was unable to return to work for nearly one year. Because of his extended absence he was terminated on June 26, 1989. (Ex. 10). In 1990 Respondent had a vacancy for the position of WPO I and advertised for applicants for this position. Petitioner was one of those applicants. WPO I is an entry level position for which Petitioner met all the requirements. Petitioner has completed more than two years of college and, on the examination given to the 60-65 applicants for the WPO I position, Petitioner received a higher score than did the individual who was hired, Perry Cochran. Petitioner testified that he went to the water plant and went through the various tasks that water plant operators perform while on duty, and that he, with some minor adjustments, could perform all of those functions. No medical evidence was presented that Petitioner could or could not perform the duties required of a WPO I. However, the stipulation of the parties that the only issue for resolution is whether Respondent's stated reason for not employing Petitioner is pretextual, removes the requirement that Petitioner demonstrated that he is in the covered position of handicap. Petitioner's supervisor while he was employed by the City of Lakeland, John Sluski, is presently Superintendent of Production. Sluski has worked his way up in the Lakeland Water Department from WPO I, II, and III to Chief Operator, temporary superintendent and superintendent. Most of the time while Petitioner was employed by Lakeland Sluski was Chief Operator whose principle function was to supervise water plant operations and water plant operators. A municipal water plant is a 24 hour per day operation with three shifts each 24 hours. The day shift (from 6:45 a.m. to 2:45 p.m.) has a lead operator (WPO III) and 3 or 4 WPO IIs. The afternoon shift (2:45 - 10:45) has a lead operator, one or two WPO IIs and the midnight shift has a lead operator only part of the time and a WPO II in charge the balance of the time with another WPO II and a WPO I. Petitioner generally received satisfactory performance evaluations during the period from 1982 until 1985 as a WPO I. His evaluation as a WPO II in July 1986 was also satisfactory; however, his evaluation in August 1987 (Ex. 2) was decidedly below his previous evaluations and contained numerous adverse comments about Petitioner's performance and attitude. Similarly, Petitioner was recommended for merit pay increases each time he was eligible except in August 1987. (Ex. 3) Although Petitioner's evaluation in August 1987 showed only 8 days Petitioner was late for work, Mr. Sluski testified that Petitioner was frequently late reporting for his shift and that this was irritating to the person he was to relieve and destructive of morale at the plant. This lateness varied from a few minutes to an hour or more and the person to be relieved had to remain on duty until Petitioner relieved him. During the period between December 1983 through January 1987 the time cards (Ex 7) showed Petitioner late reporting for work some 166 times. When Sluski spoke to Petitioner about his tardiness Petitioner's attendance would improve for a short while but then revert. When Sluski received Petitioner's application for the WPO I position in 1990 he called Petitioner's latest employer, The City of Dundee, and was told Petitioner had been terminated. This factor plus the numerous times Petitioner had been late for work while employed by the Lakeland Water Department led Sluski not to interview Petitioner for the position and to employ Perry Cochran. Petitioner testified, without contradiction, that he was terminated by the City of Dundee because he lived too far away to be on call in an emergency situation which the job required.
Recommendation It is recommended that the Petition for relief from an unlawful employment practice, based on handicap, filed by Donn M. Patterson against the City of Lakeland, be dismissed. DONE and ORDERED this 6th day of January, 1993, in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1993. COPIES FURNISHED: Timothy J. McCausland Assistant City Attorney 228 S. Massachusetts Avenue Lakeland, Florida 33801-5086 Robert H. Grizzard, II, Esquire P.O. Box 992 Lakeland, Florida 33801-5006 City Clerk City of Lakeland 228 South Massachusetts Avenue Lakeland, Florida 33801-5086 Margaret Jones/Clerk Florida Human Relations Commission Bldg F, Suite 240 325 John Knox Road Tallahassee, Florida 32303 4149 Dana Baird, Esquire General Counsel Florida Human Relations Commission Bldg F, Suite 240 325 John Knox Road Tallahassee, Florida 32303 4149
