The Issue The ultimate issue is whether Florida Power Corporation (FPC) engaged in an unlawful employment practice by discriminating against James A. Brand on account of handicap in violation of Section 760.10, Florida Statutes (1989)
Findings Of Fact Florida Power Corporation is an electrical utility engaged in the generation, transmission, and distribution of electricity. FPC operates and maintains electrical generating plants throughout its service area, including Crystal River, Florida, where it operates two fossil generating plants, Crystal River South and Crystal River North, and a nuclear generating plant, Crystal River 3. The maintenance of the plants' equipment is performed by plant maintenance employees and by employees assigned from the System Maintenance Crew (SMC). Both regular and temporary employees work as members of the SMC in the job classifications of mechanic, certified welder mechanic, and electrician. Petitioner, James Brand, was employed by FPC on nine separate occasions during the years 1985 through 1988 as a temporary employee in the job classification of mechanic and certified welder mechanic on FPC's SMC. Temporary employees, such as Mr. Brand, are hired by FPC for the SMC for time periods of less than six months to perform overhaul and maintenance work on boilers, turbines, generators, pumps, fans, and other plant equipment during a unit or plant outage. Temporary employees are laid off and their employment is terminated as the outage work is completed. Mr. Brand had a preemployment physical examination before being initially hired as a temporary employee on the SMC in 1985. Thereafter, he had preemployment physical examinations on two occasions prior to reemployment by FPC. In June 1988, Mr. Brand was notified by letter from his attorney, Alwyn Luckey, that he has an asbestos-related lung disorder known as asbestosis. In June 1988, Mr. Brand received a clinical evaluation from Dr. Lewis J. Rubin, Head, Division of Pulmonary Medicine, University of Maryland School of Medicine, that he has pulmonary asbestosis. In approximately January or February 1989, Kathleen Moyer, a human resources representative in FPC's Crystal River office, contacted Mr. Brand regarding reemployment as a mechanic or certified welder mechanic on the SMC to work during a unit or plant outage. Mr. Brand went to Ms. Moyer's office to update his records and, at that time, provided her with Dr. Rubin's clinical evaluation reflecting that he has pulmonary asbestosis and with a copy of Mr. Luckey's June 21, 1988, letter. Ms. Moyer provided Dr. Rubin's report to Dr. Alex Sanchez, FPC's regional medical director. Mr. Brand was thereafter scheduled for a physical examination with Dr. Sanchez in February 1989. Mr. Brand also provided Dr. Sanchez with copies of Dr. Rubin's clinical evaluation and Mr. Luckey's June 21, 1988, letter. Dr. Sanchez asked Mr. Brand to get a second medical opinion. On March 4, 1989, Mr. Brand went to a physician, Dr. Nikhil Shah, who conducted a pulmonary examination and a pulmonary function or spirometry test. The results were given to Dr. Sanchez. Dr. Sanchez thereafter received a letter dated March 16, 1989, from Dr. Lewis Rubin, who had initially diagnosed Mr. Brand's medical condition as pulmonary asbestosis. Dr. Rubin stated in his March 16 letter that he had reviewed the pulmonary function test performed by Dr. Shah on March 4, and that Mr. Brand's asbestosis "should in no way impair his ability to do his job as long as he is not being exposed to noxious fumes or other environmental irritants." Dr. Ronald S. Kline, Director of Health Services for FPC, thereafter reviewed Mr. Brand's medical records, including Dr. Rubin's clinical evaluation diagnosing Mr. Brand as having pulmonary asbestosis and Dr. Rubin's March 16 letter. As Director of Health Services for FPC, Dr. Kline is responsible for the overall function of the medical department, which includes responsibility for determining whether a person has a physical or mental impairment which might limit his/her activities as they relate to his/her employment. Dr. Rubin's clinical evaluation states that Mr. Brand is at risk for the progression of pulmonary asbestosis even-in the absence of further exposure to asbestos. Dr. Kline did not request that Mr. Brand undergo any additional tests to determine if he suffers from asbestosis nor did Dr. Kline make an independent diagnosis that Mr. Brand has asbestosis. Dr. Kline accepted Dr. Rubin's evaluation and diagnosis of Mr. Brand. Dr. Kline had no reason to disbelieve the diagnosis of Mr. Brand's own physician, especially when the information regarding his medical condition was presented by Mr. Brand to FPC. On April 5, 1989, Dr. Kline issued a guideline to the human resources department placing the following restriction on Mr. Brand's employment activities: "No exposure to irritating gases or fumes, or any other environmental irritant." Dr. Kline based his recommendation on Dr. Rubin's evaluation and assessment. Moreover, Dr. Kline agreed, on the basis of his own medical experience, training, and education, that Dr. Rubin's recommendation of restrictions on Mr. Brand's activities was entirely reasonable. In Dr. Kline's medical opinion, Mr. Brand's continued employment in a position where he would be exposed to noxious fumes, gases, or other environmental irritants would pose a substantial risk of injury or harm to Mr. Brand's health. Dr. Kline does not and did not make decisions or recommendations regarding the hiring or reemployment of employment applicants. At no time did Dr. Rline recommend or otherwise indicate that Mr. Brand should not be reemployed by FPC. Rather, it was Dr. Kline's recommendation that he be employed in jobs in which he would not be exposed to noxious fumes, gases, or environmenta1 irritants. After receiving Dr. Kline's report, a human resources representative contacted Carey Hamilton, senior mechanical supervisor, and asked if he could employ a person in the position of mechanic or certified welder mechanic on the SMC who could not be exposed to irritating gases, fumes, and other environmental irritants. As senior mechanical supervisor, Mr. Hamilton is responsible for hiring and supervising the" regular and temporary mechanics and certified welder mechanics on the SMC. Mr. Hamilton has working knowledge of the environment inside the power plants due to his experience as an employee and supervisor on the SMC. He has been employed by FPC for over fifteen years in the job classifications of temporary mechanic, lab technician, certified welder mechanic, first line supervisor, and senior mechanical supervisor. He has worked as a certified welder mechanic, first line supervisor, and senior mechanical supervisor in all of FPC's power plants. Moreover, approximately ten years of Mr. Hamilton's experience has involved working with the SMC and supervising regular and temporary employees on the SMC, including during unit or plant outages. Based on his experience and firsthand knowledge of the work environment in the plants, Mr. Hamilton determined that he could not employ a person to work as a mechanic or certified welder mechanic on the SMC who could not be exposed to irritating gases, fumes, and other environmental irritants. At the time Mr. Hamilton responded to the human resources employment inquiry, he was unaware of the identity of the individual human resources was inquiring about or that this person has asbestosis. All employees on the SMC are initially hired into the mechanic classification. However, the temporary employees who are hired to work during a plant outage are usually upgraded to the certified welder mechanic position after they pass certain tests. The mechanics and certified welder mechanics working in the plant during an outage are continuously exposed to noxious fumes, gases, and other environmental irritants. Pulverized coal and fly ash, both of which have the consistency of face powder, exist in abundance throughout the plant in areas where the mechanics and certified welder mechanics are assigned to work. They are also exposed to other major irritants including sulfur dioxide gas, flue gases, smoke and dust created by tools, and irritants created by sandblasting and grinding. Mr. Brand was hired as a temporary on the SMC because of his welding and pipe fitting skills. He was qualified and certified to make safety-related pressure welds. FPC expends a significant amount of money in testing and certifying persons employed on the SMC so they can be used as welders. Prior to each period of his employment on the SMC, Mr. Brand was required to take welding certification tests in order to qualify as a certified welder. He always passed the certification tests and therefore was qualified to work as a certified welder mechanic. As a certified welder mechanic, Mr. Brand would work primarily in and around the boiler and boiler cavity. The work that is performed inside the boiler cavity by certified welder mechanics involves inspection, repair, and replacement of boiler tubes, replacement of burner fronts and defusers, and refractory repair. The certified welder mechanics clean the boiler tubes with a grinder prior to inspection. Thereafter, their work typically consists of repairing boiler tube leaks with a weld and replacing sections of the boiler tubes. The performance of this work involves grinding, burning, cutting, and welding, all of which produces fumes, gases, and other airborne irritants. The burner replacement and refractory repair work also exposes the certified welder mechanics to similar fumes, gases ~ and irritants. In addition to the boiler area, the certified welder mechanics perform work on the precipitators. This work involves burning, welding, and cleaning. The bottom ash hopper and the pulverizers that are used to crush coal are cleaned and repaired by certified welder mechanics during an outage. This work involves cutting, burning, grinding, and welding which produces noxious fumes and gases. Working on the water front and in the turbine areas during an outage exposes these SMC employees to fumes and dust particles created by sandblasting. During an outage, the SMC employees will be working on one unit that is out of operation; however, they are working next to a unit that is in operation. The unit that is in operation produces gases, fumes, and airborne irritants. The fact that Mr. Brand might work as a mechanic instead of a certified welder mechanic would not insulate him from exposure to noxious fumes, gases, and other environmental irritants. The duties of a SMC mechanic include sandblasting and grinding dirty or rusty metal, burning with a cutting torch, welding non-safety related welds, and' wire brushing. These activities are performed on a daily basis by mechanics. The sandblasting or grinding work is done with an abrasive disk that creates airborne particulates that contaminate the air. The burning process is used in making repairs such as in the steel ducts that transport air and gases to and from the boilers. Sulfur-based deposits collect in these ducts and when a torch is used in that area, the burning creates sulfur dioxide gas and other fumes. In addition, oxygen blasts are used in the burning process to increase the heat and blow metal out of the weld. This causes fly ash, dust, and other irritants to become airborne. The welding that is performed by mechanics also produces fumes and gases. All of the tools used by the SMC in the power plant are air-driven tools. The air discharged by these tools stirs up the dust, fly ash, gases, and other irritants in the workplace environment. During the time periods that a mechanic is not directly engaged in grinding, burning, or welding, he is working in close proximity to other employees who are performing those tasks, and thus, is exposed to the noxious gases, fumes, and irritants. Mr. Hamilton determined that he could not employ a certified welder mechanic on the SMC with the following restriction: "No exposure to irritating gases or fumes, or any other environmental irritant." He did not know that Mr. Brand was the proposed employee or that Mr. Brand has asbestosis. Mr. Hamilton knew that employing an individual to work as a mechanic or certified welder mechanic would expose that individual to gases, fumes, and other environmental irritants. The only positions supervised by Mr. Hamilton on the SMC are mechanic, certified welder mechanic, and tool room attendant. The tool room is housed in a large trailer parked outside of the plant. The tool room attendant's duties include issuing and receiving tools and repairing tools. These duties are performed in the tool room trailer. Because of his work location, the tool room attendant is not exposed to fumes, gases, and environmental irritants in the same way as the mechanics and certified welder mechanics. Mr. Hamilton later determined that Mr. Brand could be employed in the tool room consistent with the restrictions issued by Dr. Kline. Mr. Hamilton discussed with a human resources representative the possibility of employing Mr. Brand in the tool room. Mr. Hamilton had no objection to employing Mr. Brand in the tool room. However, there were no vacancies in that position and there have been no vacancies since that time. During 1990, Mr. Brand worked in Fluor Constructors Corporation, at Crystal River 3. Fluor Constructors is an independent contractor that is employed by FPC to perform repair and maintenance work. Mr. Brand received the referral to this job site through the Pinellas Park Local of the Pipefitters Union. While working for Fluor at Crystal River 3, he was supervised by Fluor's supervisors and not by FPC's supervisors. Mr. Brand is not seeking back pay for the period from February 23, 1991, through June 6, 1991. He was employed by a number of different employers during the period from January 1989 through May 1991. Such employers include Fluor Contractors, Inc., Teco Electric, Nisco, and a nuclear power plant in Mississippi. Mr. Brand would not be entitled to recover back pay or other monetary relief for the periods while working for other employers insofar as such interim employment periods coincided with SMC outage work periods. The hourly rate as well as other benefits of employment for temporary employees are set forth in the labor agreement between FPC and the International Brotherhood of Electrical Workers. As of December 5, 1988, the hourly wage rate for a mechanic was $16.51 per hour and for a certified welder mechanic was $18.72 per hour.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a Final Order denying the Petition for Relief. DONE and ENTERED this 11th day of July, 1991, in Tallahassee, Florida. DIANE R. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1991. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, James A. Brand 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 1(2); 3(3&4); 475 (5-7); 6(63); 7(8); and 8-16(10-17). 2. Proposed findings of fact 17-19, 21-35, 50-54, 65-70, 76, 77, 84, 85, 91, and 92 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 36-49, 55-64, 82, 83 and 86- 90 are irrelevant. Proposed finding of fact 20 is unnecessary. Proposed findings of fact ,1-75 and 78-81 are unsupported by the credible, competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Florida Power Corporation 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-63(1-62). COPIES FURNISHED: John Barry Relly II Attorney at Law Ray, Kievit & Kelly 15 West Main Street Pensacola, FL 32501 J. Lewis Sapp Sharon P. Morgan Attorneys at Law 800 Peachtree-Cain Tower 229 Peachtree Street, N.E. Atlanta, GA 30303 Ronald M. McElrath, Executive Director Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 Johp Knox Road Tallahassee, FL 32399-1570
The Issue The issue presented for decision herein is whether or not the Petitioner is eligible to sit for the Professional Engineers examination.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact. On December 12, 1983, Petitioner, Craig S. Smith, made application to the Florida Board of Professional Engineers to sit for the April, 1984 professional engineering examination. Respondent, Board of Professional Engineers, reviewed Petitioner's application in their meeting on February 19, 1984 and denied his reguest to sit for the April, 1984 examination. The basis for the denial was that Petitioner failed to qualify under the ten-year provision which requires ten years of experience in engineering pursuant to Chapter 471, Florida Statutes, and Rule chapter 21H, Florida Administrative Code. The Board determined that Petitioner did not satisfy the requisite experience in the areas of engineering, responsible charge and engineering design. Specifically, Respondent determined that Petitioner had 82 months of creditable service toward the 120 month requirement and no experience in the area of engineering design. Petitioner's application reveals that he was employed by Florida Testing and Engineering, Inc., 6784 Northwest 17 Avenue, Ft. Lauderdale, Florida from May, 1971 to May, 1973 in the position of a driller crew chief. His professional duties during that period include the following: subsurface investigations for foundation design; securing and classifying subsurface samples in accordance with standard procedures of ASTM and AASHTO; overall responsibility for drilling operations and sampling equipment (standard penetration tests using either split barrel sampler, shelby tube, hollow stem flight auger, steel casing, drilling mud and rock coring, when required). From May, 1973 to January, 1979, Petitioner was employed by the same employer but held the position of laboratory and field engineering technician. His specific job duties include various construction sampling, testing and inspection as follows: ASPHALT asphaltic design mixes conforming to Florida Department of Transportation and FAA criteria; quantitative extraction of bitumen from bitumen paving mixtures; bulk specific gravity of compacted bituminious mixtures; compressive strength of bituminious mixtures; sampling bituminious paving mixtures; sampling bituminious materials; (o) bituminious mixing plant inspections; coating and stripping of bitumen-aggregate; determining degree of particle coating of bituminous-aggregate mixtures: maximum specific gravity of bituminous paving mixtures; specific gravity of solid pitch and asphalt displacement; determining degree of pavement compaction of bituminous paving mixtures; resistance to plastic flow of bituminous mixtures using marshall apparatus; resistance to deformation and cohesion of bituminous mixtures by means of hveem apparatus. CONCRETE compressive strength of cylindrical concrete specimens; making and curing concrete compressive and flexural strength specimens in the field and laboratory; obtaining and testing drilled cores and sawed beams of concrete; flexural strength of concrete (using simple beam with third point loading); slump of Portland cement concrete; weight per cubic foot, yield, and air content (gravimetric) of concrete; (q) sampling fresh concrete; measuring length of drilled concrete cores; air content of freshly mixed concrete by the pressure method; securing, preparing and testing specimens of lightweight insulating concrete; air content of freshly mixed concrete by the volumetric method; checking approximate strength of hardened concrete by the Swiss hammer method; cement content of hardened Portland cement concrete; specific gravity, absorption and voids in hardened concrete; inspection and testing agencies for concrete materials as used in construction. SOILS investigating and sampling soils and rocks for engineering purposes; dry preparation of disturbed soil and soil aggregate samples for test; particle size analysis of soils; determining the liquid limit of soils; determining the plastic limit and plasticity index of soils; determining the field moisture equivalent of soils; moisture-density relations of soils using a 5.5 lb. rammer and a 12 in. drop; specific gravity of soils; moisture-density relations of soil-cement mixture; cement content of soil cement mixture; wet preparation of disturbed soil samples for test; moisture-density relations of soils using a 10 lb. rammer and an 18 in. drop; density of soil in place by the sand-cone method; the California bearing ratio, the line-rock bearing ratio; unconfined compressive strength of cohesive soil; permeability of granular soils (constant head) one-dimensional consolidation properties of soils; repetitive and nonrepetitive static plate load tests of soils and flexible pavement components, for use in evaluation and design of airport and highway pavements; determination of moisture in soils by means of a calcium carbide gas pressure moisture tester; bearing capacity of soil for static load on spread footings; density and moisture content of soil and soil- aggregate in-place by nuclear methods (shallow depth); classification of soils and soil aggregate mixtures for highway construction purposes; determining the Florida bearing ratio test (Florida Department of Transportation) determining the calcium carbonate content for base course materials (Florida Department of Transportation). AGGREGATES sampling stone, slag, gravel, sand, and stone block for use as highway materials; amount of material finer than 0.075 mm sieve in aggregate; unit weight of aggregate; voids in aggregate for concrete; organic impurities in sands for concrete; sieve analysis of fine and coarse aggregates; mechanical analysis of extracted aggregate; sieve analysis of mineral filler; specific gravity and absorption of fine aggregate; specific gravity and absorption of coarse aggregate; resistance to abrasion of small size coarse aggregate by use of the Los Angeles abrasion machine; soundness of aggregate by use of sodium sulfate or magnesium sulfate; clay lumps and friable particles in aggregates; lightweight pieces in aggregate; surface moisture in fine aggregate; reducing field samples of aggregate to testing size; total moisture content of aggregate by drying. MISCELLANEOUS percent of elongation, yield and tensile strength of steel members; compressive strength of hollow load bearing masonry units; inspection tests, including the inspection of pressure grout to insure proper distribution for foundation design; inspection and testing agencies for reinforced concrete culvert, storm drain and sewer pipe as used in construction; inspection and testing amenies for precast and prestress oiling members; From January of 1979 through January of 1982, Respondent held the position of supervisor for the same employer, Florida Testing and Engineering, Inc. During that period, he was in charge or was otherwise overall responsible for field and laboratory operations, prepared engineering reports, analyses, recommendations and design for various construction projects; Fort Lauderdale-Hollywood International Airport-Resurface Requisition No. 14905 and No. 29019 Fort Lauderdale-Hollywood International Airport- ADAP No. 06-12-0025-10 R/W and T/W Improvements and Resurfacing Fort Lauderdale-Hollywood International Airport - ADAP No. 06-12-0025-11 R/W and T/W Improvements and Resurfacing Key West International Airport - ADAP No. 06-12-0037-08 Fort Lauderdale Executive Airport Project No. 7155 City of Fort Lauderdale Parking Garage Project No. 7071 City of Fort Lauderdale 5 Ash Waste Water Treatment Plant Project No. 7642 From January of 1982 to the present time, Respondent formed his own company and holds the position as President of that firm (Eastcoast Testing and Engineering, Inc., 430 Northwest Flagler Drive, Fort Lauderdale, Florida 33301). Respondent is responsible for all phases of construction materials, testing, analysis, inspections, evaluations, quality control and quality assurance. The laboratory personnel and facilities of Eastcoast Testing and Engineering, Inc. has been inspected by the Cement and Concrete Reference Laboratory at the National Bureau of Standards. It is accredited by the Department of Commerce, National Voluntary Laboratory Accreditation Program for selected test methods of freshly mixed field concrete. Eastcoast was awarded the annual testing contract for the City of Fort Lauderdale during its first year of operation. During his tenure as an employee of Florida Testing and Engineering, Inc., Petitioner planned and implemented testing programs for the purpose of developing design criteria; implemented investigation and testing programs for the purpose of determining the cause of failures; prepared reports documenting material test data; and assisted in the preparation of reports for engineering evaluation under the guidance of a professional engineer. (See Petitioner's Exhibit No. 1.) For Petitioner's experience at Florida Testing during the period 1971 to 1973, Respondent determined that "zero time" was credited for that experience based on the Board's determination that Petitioner's work was more a "technician's job than engineering-related job." (Testimony of Board member William B. Bradley, Tr. page 16.) For Petitioner's experience during the period Nay, 1973 to January, 1979, Respondent allotted fifty percent or 34 of the 68 months experience that Petitioner served in that position. The Board determined that the "in-house testing" would have a lot more association with normal engineering procedures than Petitioner's earlier work. (Tr. 17.) The Board considered the technical testing and reporting thereof that took place in the laboratories was more responsible for engineering and, therefore, creditable as opposed to Petitioner's field work. (Tr. 17-18.) Again, for the period 1979 through 1992, Respondent gave Petitioner 59 percent credit for a total of 18 months of the 3 years in question. For the period 1979 through 1982, the Board determined that Petitioner was not essentially doing anything different but, rather, that he was "in charge of people now; he is preparing engineering reports here which I assume Mr. Winterholler signed." For that service, Petitioner was given credit for 18 of those 36 months. From the period of January, 1982 to the present time, the Board gave Petitioner 199 percent credit because, as President of his own firm, he would be more involved and would have more responsibility for the actions of his testing laboratory and, therefore, entitled to full credit for that time. (Testimony of Bradley at Tr. page 21.) Finally, Mr. Bradley determined that be saw no design engineering in the Petitioner's submissions because designing is "actually putting onto paper what's going to be there." (Tr. page 29.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Professional Engineers enter a Final Order finding Petitioner eligible to sit for the next regularly scheduled Professional Engineers examination based on his compliance with the ten (10) year requirement of Subsection 471.013(1)(a)3., Florida Statutes. DONE and ORDERED this 30th day of October, 1984, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 31st day of October, 1984.
The Issue In this proceeding, FPL seeks approval to construct and operate Martin Units 3 and 4, fueled by natural gas and distillate oil, under the provisions of Section 403.511, F.S. Additionally, FPL seeks a determination that the proposed site of the three-phase Project and the attendant environmental resources have the capacity ultimately to accommodate all three phases of the Project consisting of a total 1600 MW of generating capacity fueled by coal-derived gas, natural gas or distillate oil. Such an ultimate site capacity certification may be granted pursuant to Section 403.517, F.S. and Rule 17-17.231, F.A.C.
Findings Of Fact The DER published notices of this land use hearing on February 8, 1990, in the Palm Beach Post, on February 11 and February 12, 1990, in the Stuart News, and on February 14, 1990, in the Indiantown News. Notices of this hearing also were published in the Florida Administrative Weekly on February 9, 1990 and February 23, 1990. The DER mailed notice of this hearing to the chief executives of the local and regional authorities with responsibility for zoning and land use planning whose jurisdiction includes the site. (DER Exhibit 1) The Applicant, FPL, posted a notice of this hearing at the proposed site. (FPL Exhibit 19) The Martin Coal Gasification/Combined Cycle Project FPL proposes to construct and operate combined cycle generating units with a total capacity of 1,600 megawatts and coal gasification units to supply coal gas to these combined cycle units. The four combined cycle units, known as Units 3, 4, 5, and 6, will consist of combustion turbines, heat recovery steam generators, and steam turbines, which will be used to generate electricity. The coal gasification units will produce a fuel gas from coal and oxygen. Sulfur and particulates will be removed from the fuel gas, and the clean gases will be sent to the combined cycle units. (T.28, FPL Exhibit 5) The proposed project also includes a natural gas pipeline that will connect at the main Florida Gas Transmission Pipeline near the Florida Turnpike and extend west and south to the proposed site. (T.23, FPL Exhibit 2) A new 230 kilovolt electrical transmission line circuit will be constructed within an existing FPL transmission line right- of-way between the proposed site and the FPL Indiantown substation. (T.23, FPL Exhibits 1 and 2) The proposed CG/CC project will utilize the existing cooling pond as its source of cooling water. Coal for the project will be delivered over existing rail lines serving the site. A new coal rail loop and coal unloading equipment will be constructed on site. Within the rail loop, a coal storage pile and other facilities will be constructed. The slag by-product from the coal gasification process will be stored on a 550 acre parcel, occupying the northern portion of the project site. (T.26-27, FPL Exhibits 1, 4, and 6D) The Martin CG/CC project will be developed in three phases. During the first phase, two combined cycle units, Units 3 and 4, will be constructed. The second phase will involve the construction and operation of the coal gasification and combined cycle units known as Units 5 and 6. In the third phase, gasification units will be constructed to serve Units 3 and 4. (T.31-32) Ultimate Site Capacity for Martin CG/CC Project The site for the proposed Martin CG/CC Project is a 2,192 acre tract located within the existing 11,300 acre FPL Martin Plant site located in western Martin County, Florida. (FPL Exhibits 1 and 2) This site lies approximately 22 miles west of Stuart, five miles northwest of Indiantown and five miles east of Lake Okeechobee. (T.22-23, FPL Exhibit 2) State Road 710 runs along the northeast side of the site. The St. Lucie Canal lies to the south of the site. (T.24, FPL Exhibits 2 and 3) A portion of the Martin Plant site is occupied by two existing 800 megawatt natural gas and oil-fired units. (T.24) A 6,800 acre cooling pond is also located within the existing site. (T.24, FPL Exhibits 1 and 3) The proposed alignment for the natural gas transmission line to serve the proposed CG/CC Project is within a 1,200 foot-wide corridor lying along the center line of State Road and County Road 714, running west from the junction with the Florida Turnpike. This corridor turns south at the junction with an existing FPL transmission right-of-way, and follows that right-of-way, becoming a 600 foot wide corridor, until it reaches the proposed CG/CC site. The permanent 50-foot wide right-of-way for the pipeline will be located within this corridor. (T.23, 25-26, FPL Exhibit 2) The proposed site for the electrical transmission line upgrade to be undertaken as part of this project is an existing FPL transmission line right-of-way running south and east from the Martin Plant site to an existing substation near Indiantown. (T.23, FPL Exhibits 1 and 2) FPL proposes in its Site Certification Application (SCA) an ultimate site capacity of 1,600 megawatts of combined cycle generating capacity to be fueled by natural gas, coal-derived gas and fuel oil. FPL's SCA proposes certification in this proceeding for combined cycle Units 3 and 4 burning natural gas or fuel oil, and CG/CC Units 5 and 6 burning coal-derived gas, natural gas or fuel oil. Additionally, the SCA seeks an ultimate site capacity determination that would allow the later addition of coal gasification units to provide coal-derived gas to Units 3 and 4. (FPL Exhibit 1, (Section 1.5)) Presently, the Florida PSC is considering the need for Martin Units 3 and 4. The PSC pre-hearing officer determined that the PSC would not consider the need for Units 5 and 6 at this time. However, that order recognizes that FPL could still proceed to seek an ultimate site capacity certification for Units 5 and 6. (FPL Exhibit 22) Consistency and Compliance of the Project Site with Local Land Use Plans In August 1989, the Martin County Board of County Commissioners (BOCC) amended the April 1, 1982 Martin County Comprehensive Plan to change the land use designation for the site of the proposed Martin CG/CC project from a land use designation of Agricultural to Industrial. This amendment was adopted in response to an application filed by FPL, along with a petition to change the zoning for the proposed site from A-2 (agricultural) to Planned Unit Development (industrial), or PUD(i), and to grant a height exception for structure heights greater than 60 feet. (T.47-50, FPL Exhibits 10, 13 and 14) The 1982 Martin County Comprehensive Plan, as subsequently amended, was the local land use plan in effect on the date FPL filed this SCA. (FPL Exhibit 7) The Electric Utility Element of that plan encouraged the expansion of the power plant facilities located at FPL's Martin Plant Site. This element also encouraged future development at the site to occur under a planned unit development industrial zoning classification. (T.48, FPL Exhibit 7) On August 8, 1989, the Martin County BOCC voted to amend its 1982 Comprehensive Plan to designate the proposed site as industrial. This adoption reflects the Martin County BOCC's determination that the proposed project is consistent with that Plan. (T.50, 53) The proposed CG/CC project was also reviewed by the Martin County BOCC for consistency with Martin County's then developing 1990 Comprehensive Growth Management Plan. The concurrent rezoning to PUD(i) was evaluated for consistency with the proposed Capital Improvement Element and the County's proposed 25% upland preservation policy. The project, as proposed, was found to be consistent with both of these policies. (T.56-58, FPL Exhibit 13 (Exhibit "C")) The proposed site is designated for "major public utility" use on the Land Use Map adopted in February, 1990, by the Martin County BOCC as part of its 1990 Growth Management Plan. (T.58, FPL Exhibits 11 and 12) Consistency of the Project Site with Local Zoning On August 8, 1989, the Martin County BOCC rezoned the proposed CG/CC site to a planned unit development (industrial) zoning classification. (T.50, FPL Exhibit 13) The planned unit development, or PUD, zoning provides more flexibility than traditional zoning in allowing a mix of different land uses and densities while still achieving objectives of land use compatibility and creation of open space. It is a performance-based zoning that typically involves a specific site plan and a set of performance standards for the proposed development. (T.63-64, FPL Exhibit 15) The PUD(i) zoning criteria for the Martin CG/CC project are contained in a document titled "Martin Expansion Project Planned Unit Development Zoning Agreement" between FPL and the Martin County BOCC, dated August 8, 1989. This agreement refers to the proposed CG/CC project as the Martin Expansion Project. (FPL Exhibit 6) The PUD Agreement establishes certain conditions and standards upon which construction and operation of the CG/CC project may be undertaken at the proposed site. The Agreement incorporates and references various other local regulations with which a project at this site must comply. (T.62) The PUD(i) zoning agreement also recognizes that final approval for the project will be obtained under the Florida Electrical Power Plant Siting Act and that the final development plan of approval contemplated by the Agreement would be obtained through this certification process. (T.62-66, FPL Exhibit 6) The PUD(i) Agreement provides that FPL shall have the right to develop the project in accordance with applicable laws, ordinances and regulations; with the provisions and requirements of the Zoning Agreement; and with the Preliminary and Final Development Plans. (T.66, FPL Exhibit 6) This vesting of rights is consistent with Section 1-12C of the Preamble of the subsequently-adopted Comprehensive Growth Management Plan for Martin County which addresses vested rights. That section provides that development orders approved prior to the adoption of the 1990 Comprehensive Growth Management Plan shall not be considered to be in conflict with this plan provided the development is continuing in good faith, pursuant to its established timetable. (T.66, FPL Exhibit 11) The timetable for development included in the PUD(i) Agreement recognizes the site certification process as part of the timetable for this development. (FPL Exhibit 6 (Exhibit "E")). Exhibit D to the PUD(i) Zoning Agreement is a Preliminary Development Plan for the CG/CC project. This exhibit provides a conceptual layout for the proposed project, but provides a level of detail that will accommodate changes to the actual site layout made during the licensing and final design processes. The CG/CC Project, as proposed in the SCA, is consistent with this Preliminary Development Plan. (T.30-31, 69-70, FPL Exhibit 6) A development schedule for the proposed project is established in Exhibit E to the PUD(i) Agreement. This timetable contemplates and incorporates site certification by the Governor and Cabinet. (FPL Exhibit 6) FPL will be able to develop all 1,600 MW of CG/CC units as proposed in the SCA consistent with this timetable. (T.32-33) Seventeen (17) Special Conditions are established for the Martin Expansion Project in Exhibit F to the PUD Agreement. (FPL Exhibit 6) FPL has committed to meet all of the Special Conditions (T.34-40) and its design, as developed to date and presented in the site certification application, is consistent and in compliance with all seventeen Special Conditions. (T.40,76-77) They are: Permitted uses on the site are set out in Special Condition 1, allowing uses including combined cycle electric generating units, coal gasification facilities, coal handling and storage facilities, by-product storage area, and other associated facilities. A conceptual layout for a typical 1,600 megawatt coal gasification/combined cycle plant is shown on Attachment 1 to that Exhibit F, a plan that is subject to modification. (T.34,69-70, FPL Exhibit 6) The uses permitted are described in greater detail in attachment 2 to that Exhibit F. (FPL Exhibit 6) Special Condition 2 allows development of the project with an interim potable water system, pursuant to a separate interim water system agreement, an agreement which is consistent with Martin County's interim water policy in article III, Division 2 of Chapter 31 of the Martin County Code. (T.35,71, FPL Exhibit 6 and 15) Special Condition 3 allows the use of an onsite aerobic treatment facilities for a sanitary waste water treatment system. (T.35, FPL Exhibit 6) Special Condition 4 provides for 313 acres of upland preserve and restoration areas as shown on the approved development plans. This condition on upland preservation complies with the requirements of the 1982 Martin County Comprehensive Plan and was designed to meet the requirements of the upland preservation policy of the 1990 Comprehensive Growth Management Plan. The upland preservation condition also satisfies the requirements of the Martin County Landscaping Code in Chapter 23, Article III, which requires that one-half of the open space requirements be met with native upland plant preserve areas. (T.71- 72, FPL Exhibits 6 and 15) The size and dimension criteria of CG/CC facilities are governed by Special Condition 5, which references Attachment 1 to Exhibit F of the PUD Agreement, showing the relative sizes and dimensions of the planned facilities. (T.36, FPL Exhibit 6) Special Condition 6 establishes performance standards which are consistent with the provisions of Section 33-581.44(G) and (H) of the Martin County Code. (T.73, FPL Exhibit 15) The performance standards establish limits on the density of smoke, size of particulates, emissions of odors, dust and dirt, and of obnoxious gases and fumes, set-backs for unenclosed buildings, fire protection measures, building heights, perimeter buffers adjacent to residential uses, and lighting. (T.36-37, FPL Exhibit 15) Several of these special performance standards provide additionally for compliance to be shown as part of the final certification order under the Florida Electrical Power Plant Siting Act. (FPL Exhibit 6) Special Condition 7 provides for a wetlands enhancement and restoration program to mitigate and compensate for loss of wetlands by the project's development. This condition complies with the wetlands exemption criteria for utilities under Section 4-3(b), Waivers of the Martin County Comprehensive Plan. (T.73, FPL Exhibits 6 and 7) Under Special Condition 8, FPL is to pay $81,000 for community facilities in the Indiantown area in lieu of constructing a bike path along State Road 710. (T.77, FPL Exhibit 6) A hazardous waste management plan, consistent with a hazardous waste management plan attached to the Zoning Agreement, is required by Special Condition 9. Under Special Condition 10, the SCA, which constitutes the application for final development plan approval, is to show compliance with the Martin County Excavation and Fill Ordinance to the maximum extent practicable. These pertinent provisions of the Martin County Code are Sections 33-804, 805, 806, and 809. (T.38-39, 75, FPL Exhibits 6 and 15) Landscaping around the administration buildings and parking areas is required by Special Condition 11. This condition satisfies the requirements of the Martin County Landscape Code, Chapter 23, Article III of the Martin County Code. (T.75, FPL Exhibits 6 and 15) Special Condition 12 requires that plant operations not cause unreasonable levels of sound to reach the boundary of any existing adjacent residential district. FPL is to provide general public notice of any planned steamblows. No quantitative noise standards are established by Martin County. (T.76, FPL Exhibit 6) Special Conditions 13 and 14 require that certain precautions be taken in the event that archaeological artifacts or endangered plants and animals are discovered on the site. (T.76, FPL Exhibit 6) Under Special Condition 15, FPL is to phase the construction of the by- product storage area beginning from its western boundary and progressing eastward. FPL's proposed site layout demonstrates that the initial by-product storage cells will be constructed in the southwest corner of that area in order to comply with this provision. (T.39-40, FPL Exhibits 4 and 6) Special Condition 16 requires FPL to avoid filling wetlands in the by- product storage area if the slag by-product is successfully marketed. Under Special Condition 17, FPL is to make employment applications available in Indiantown area during periods of significant hiring. These are project specific conditions proposed by the Martin County BOCC. (T.74-77, FPL Exhibit 6) The CG/CC Project, as designed, committed to by FPL, and proposed in the site certification application, is consistent and in compliance with the foregoing provisions of the PUD(i) Zoning Agreement. (T.40, 78; FPL Exhibits 1 and 6) Consistency and Compliance of the Electrical Transmission Line and Natural Gas Pipeline with Local Land Use Plans and Zoning Ordinances Electrical transmission lines are permitted land uses in all land use classifications under the 1982 Martin County Comprehensive Plan and its Electric Utility Element. The 1982 Plan is silent concerning natural gas pipelines. (T.78-79, FPL Exhibit 7) The Martin County Zoning Code provides, in Section 35- 5.5(9), that normal distribution facilities, such as transmission lines and natural gas distribution lines, are excepted from the definition of those utilities that are treated as advertised conditional uses. Transmission lines and gas pipelines are, therefore, permitted uses in all zoning districts. (T.78- 79, FPL Exhibit 15) This conclusion is confirmed by the opinion of Michael F. Sinkey, the Martin County Zoning Administrator. (T.84, FPL Exhibit 18) Consistency and Compliance with Height Exception On August 8, 1989, the Martin County BOCC adopted a special exception to allow heights in excess of 60 feet for facilities associated with the CG/CC project. The project, as proposed, is consistent and in compliance with the provisions of this height exception. The PUD(i) Zoning Agreement in Special Condition 6 establishes maximum heights of the various project facilities; and the proposed CG/CC project, as designed, committed to by FPL, and proposed in the site certification application, complies with all of them. (T.27,40, FPL Exhibits 6 and 14)
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That the Governor and Cabinet, sitting as the Siting Board, enter a final order finding that the proposed Martin Coal Gasification/Combined Cycle project and its site (including associated linear facilities), as proposed in the Site Certification Application, are consistent and in compliance with existing land use plans and zoning ordinances. DONE AND RECOMMENDED this 10th day of May, 1990, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Gary C. Smallridge Asst. General Counsel DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Steve Hall, Esquire and Kathryn Funchess Senior Attorney Dept. of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 MARY CLARK 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 10th day of May, 1990. John Fumero, Esquire South Florida Water Mgmt District P.O. Box 24680 West Palm Beach, FL 33416-4680 Suzanne S. Brownless, Esquire Florida Public Service Commission Fletcher Building 101 East Gaines St., Rm. 212 Tallahassee, FL 32399-0850 Gary P. Sams, Esquire Douglas S. Roberts Box 6526 Tallahassee, FL 32314 Fred W. Van Vonno Asst. County Attorney 2401 SE Monterey Rd. Stuart, FL 34996 Dan Cary, Executive Director Treasure Coast Regional Planning Council 3228 SW Martin Downs Blvd., Suite 205 Palm City, FL 33490 Roger G. Saberson Attorney for Treasure Coast Regional Planning Council 110 D. Atlantic Avenue Delray Beach, FL 33444 Hamilton S. Oven, Jr., P.E. DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issue to be resolved in this proceeding is whether the Governor and Cabinet, sitting as the Siting Board, should issue a final order granting certification to Progress Energy Florida (“PEF”), to construct and operate a new 530 megawatt (“MW”) natural gas-fired electrical power plant in Polk County, Florida. The proposed site for the Project is located at PEF’s existing Hines Energy Complex, southwest of Bartow, Florida.
Findings Of Fact Background Progress Energy Florida, previously known as Florida Power Corporation, is an electric utility that provides electricity in a 35-county service area in Florida. This service area stretches from the Panhandle through the center of the state and includes the western coast of Florida north of Tampa Bay. PEF currently serves approximately 1.5 million customers in this service area. PEF has been providing electric service in Florida for over 100 years. PEF’s current generating capacity is 9,174 megawatts. The Company currently operates 14 different power plant facilities in the state. PEF has a customer growth rate of 1.7 percent per year. (Hunter, Tr. 14- 15; PEF Ex. 10, Slide 2). The PEF Hines Energy Complex is located in the southwest portion of Polk County, Florida, approximately 3.5 miles south of the city of Bartow. The community of Homeland is located one mile northeast of the Hines site. County Road 555 runs through the Project site. The Hines site contains approximately 8,200 acres of reclaimed phosphate mine lands. The area around the larger Hines site has been dominated by phosphate mining operations, including mines, settling ponds, sand tailings, gypsum stacks, and chemical beneficiation plants. The adjacent land uses consist almost entirely of active phosphate mining or mined and reclaimed lands. (PEF Ex. 6, Zwolak at 5-6; PEF Ex. RZ-2; PEF Ex. 1 at 2-1). In the late 1980’s, PEF began planning to meet the needs of future growth in customer demand for electricity and decided to identify a site that allowed for a wide variety of possible generation technologies, while at the same time meeting the ecological and regulatory requirements for building new generation. PEF solicited the help of a team of local community, educational, and environmental leaders to evaluate over 50 potential sites in Florida and South Georgia. This two- year process culminated in 1991 with the selection of the Hines site, then known as the Polk County site. (PEF Ex. 6, Hunter at 4). In January 1994, the Governor and Cabinet, acting as the Siting Board, certified the Hines Energy Complex for an ultimate site capacity of 3,000 megawatts (MW) of generating capacity fueled by either natural gas, coal gas or fuel oil, and also granted certification for the construction and operation of an initial 470 MW combined cycle unit known as Power Block 1. Power Block 1 began operation in 1999. In 2001, the Siting Board also granted certification for the construction and operation of Hines Power Block 2, a 530 MW combined cycle unit. Power Block 2 began operation in 2003. In 2003, certification was granted by the Siting Board for Power Block 3, which is currently under construction, and expected to be in service by late 2005. (PEF Ex. 6, Hunter at 5; PEF Ex. 1, Preface at 1-2; FDEP Ex. 2 at 1). The original certification proceeding that culminated in the 1994 certification included extensive evaluations of the worst case capacity constraints and potential environmental effects of the operation of the expected 3,000 MW of capacity. Those evaluations included assessments of air quality impacts, water quality and wildlife impacts, water use, noise impacts, socioeconomic impacts and benefits, traffic impacts of construction and operation, and other impacts of the entire planned capacity of 3,000 MW. This original evaluation significantly reduces the time and expense for processing the Supplemental Site Certification Application and allows PEF to respond more quickly to the growth in demand for electrical generating facilities. The ultimate site capacity determination assures PEF that the Hines Energy Complex site has adequate air, water, and land resources to accommodate additional electrical generating facilities. The 1994 certification also established that the full 3,000 MW of generating capacity and the Hines site are consistent with the local land use plans and zoning regulations of Polk County. (PEF Ex. 1, Pre-1 to Pre-2 at 2.4 to 2.5). The Hines Energy Complex contains a number of existing facilities and is divided into several major areas. The plant island is the location for the existing and future power generation facilities. It is approximately 704 acres. A 722- acre cooling pond, that is being expanded to approximately 1200 acres, has been constructed on the site, along with a 311-acre brine pond. A buffer and mitigation area has been created along the eastern portion of the Hines site containing approximately 2,498 acres. These areas serve as a wildlife corridor as well. Approximately 3500 acres of the site are designated for water crop areas to supply captured rainfall for use in the power plant. (PEF Ex. 6, Hunter at 3; PEF Ex. JJH-4; PEF Ex. 1 at 2- 1). The Hines Energy Complex is interconnected to the electrical grid through multiple existing electrical transmission lines. A new 20 mile long 230 kV transmission line to connect the Hines Site to the existing PEF West Lake Wales Substation is being permitted separately. Natural gas is delivered to the Hines Energy Complex by two existing natural gas pipelines, which will serve Power Blocks 1, 2, 3, and 4. Fuel oil is also burned in the existing units and is delivered by truck and stored in an onsite storage tank. A new fuel oil unloading station and a new fuel and storage tank will be added to serve Power Block 4. (PEF Ex. 6, Hunter at 6, 8; PEF Ex. 1 at 3-1; Tr. 17). Project Overview The Hines Power Block 4 is a 530 MW combined-cycle power plant to be fueled primarily with natural gas. Fuel oil will be used as a backup fuel. The proposed Power Block 4 will be located entirely within the existing Hines Energy Complex site. The unit will be located west of Power Blocks 1, 2 and 3. All construction activities for Power Block 4 will occur within an approximately 5-acre portion of the plant island. (PEF Ex. 1, at 3-2, 4-1; PEF Ex. 6, Robinson at 5; Exs. JMR 4 and 5). Need for Power Block 4 On November 23, 2004, the FPSC issued a Final Order determining the need for the PEF’s Hines Power Block 4 Project. The FPSC determined that the Hines Power Block 4 will be needed by 2007 to maintain electric system reliability and integrity for PEF. This was based upon an evaluation of PEF’s load forecast and maintenance of its required 20 percent reserve margin of generating capacity above the firm demand of PEF’s customers. Power Block 4 adds to the diversity of PEF’s generating assets in terms of technology, fuel, age, and functionality. Operational flexibility is provided by Power Block 4’s dual fuel capability. The FPSC also found that the Hines Power Block 4 will contribute to the provision of adequate electricity at reasonable cost. The FPSC concluded that PEF, in proposing the Hines Power Block 4, had identified the least cost alternative compared to other options, including outside proposals from third parties. There are no cost-effective conservation measures available that might mitigate PEF’s need for Hines Power Block 4. In conclusion, the FPSC determined that PEF met the statutory requirements under Section 403.519, Florida Statutes, for the Commission to grant the determination of need for Hines Power Block 4. (PEF Ex. 3). Project Schedule and Construction The proposed Power Block 4 is similar to the existing Hines Power Blocks 1, 2, and 3, which exist or are currently under construction at the Hines site. The proposed combustion turbines for the new unit are two advanced General Electric 7FA combustion turbines, designed for dual fuel operation. Engineering of the units will commence in December 2005 and on- site construction will begin no later than the first quarter of 2006. The new unit is proposed to be in service by December 1, 2007. (PEF Ex. 6, Robinson at 4, 13-14). Construction activities will be initiated by the preparation of the five-acre site for construction. This will include mobilization of contractors and subcontractors along with plant construction project management personnel. Existing construction laydown and parking areas will be utilized for Power Block 4. On-site construction will begin with the installation of the circulating water piping and pilings for structural foundations. Power Block 4 will be mechanically complete by June 2007. (PEF Ex. 6, Robinson at 14). The construction workforce for Power Block 4 is expected to average about 145 employees over the two-year construction period. Peak construction employment is estimated at 350 employees. The construction payroll is expected to be $15 million annually. Based upon prior experience during construction of Power Blocks 1, 2, and 3, it is expected that most construction workers will be drawn from the Polk County and Central Florida areas. Construction employees are expected to commute daily to the job site. Traffic improvements have already been made in the vicinity of the Hines Energy Complex. Traffic impacts related to construction of Power Block 4 will not require additional road improvements. (PEF Ex. 1 at 4-16 to 4-17). No new roads will be required to support construction of Power Block 4 as the existing plant access road will be used during construction. Major project components will be delivered to the Hines site by rail or by truck. No off-site upgrade of rail or road facilities is expected to be necessary. All oversized deliveries will receive necessary Florida Department of Transportation (“DOT”) approvals. (PEF Ex. 1 at 3-20, 4-3; PEF Ex. 6, Robinson at 14-15). Most major earthwork activities for construction for the Power Block 4 construction area were performed during initial site development activities that were completed in 1996. There are no expected impacts to land in the Project area except for minor grading, installation of foundation systems and infrastructure piping, the new control/administration building, and the new fuel oil tank. (PEF Ex. 1 at 4-1). Heavily loaded and structural foundation loads such as the heat recovery steam generators, combustion turbines, steam turbines, and step-up transformers will be supported by deep foundations. These foundations will include deep foundations such as pilings similar to those used for Power Blocks 1, 2, and Lightly loaded foundations will use spread foundations. Construction dewatering will occur primarily at excavations for the circulating water intake structure and the discharge head wall in the cooling pond. Other additional limited dewatering may occur, depending upon the amount of rainfall and the depth of other excavations onsite. Dewatering would be performed using well points or open pit sump pumps, which have a very localized impact area. Dewatering effluent will be routed to the existing on-site stormwater collection ditches for return to the existing cooling pond. (PEF Ex. 6, Robinson at 12-13; PEF Ex. 1 at 4-7). The entire Project area is outside the 100-year flood zone. There will be no construction impacts to either on-site or off-site water bodies or wetlands as a result of construction activities. (PEF Ex. 1 at 2-2, 4-5). On-site construction activities will not have any measureable adverse ecological impacts. The five-acre Project area has already been cleared and graded in anticipation of construction of Power Block 4 and other future units. The Power Block 4 area is primarily bare soil, with very sparse weedy vegetation of low-ecological functional value. This habitat is suitable for few animals and exhibits low plant species diversity. It will not support populations of threatened and endangered species or species of special concern. There are no jurisdictional or non-jurisdictional wetlands that would be impacted by the development of Power Block 4 and the on-site portion of the new transmission line. Mitigation for wetland impacts on the Hines Energy Complex occurred as part of the original permitting process for the Hines Energy Complex. (PEF Ex. 6, Bullock at 5-6; PEF Ex. 1 at 4-10 to 4-12). Construction noise impacts from construction of all phases up to the 3,000 MWs of ultimate site capacity were analyzed as part of the 1992 certification application. It was shown at that time that the applicable noise criteria would be complied with during construction of each future phase. An updated analysis of construction noise from Power Block 4 reaffirmed the earlier analysis and demonstrated no adverse impacts from construction noise. The nearest residences are approximately 2.9 miles from the plant site. The Project construction noise levels will be less than the existing noise levels measured near these residences. Construction noise will have an insignificant effect on noise levels. (PEF Ex. 6, Osbourn at 15-16; PEF Ex 1 at 4-17 to 4-19). During construction, the most prevalent construction air emissions will be fugitive dust, generated by site grading, excavation, vehicular traffic, and other construction activities. Dust control measures will be used and will typically require moisture conditioning of construction areas and roadways. Disturbed areas will also be stabilized by mulching or seeding as soon as practical. Crushed rock may also be used in high traffic areas. It is not expected that these air emissions from construction will present any significant air quality problems during the construction period. (PEF Ex. 1 at 4-14 to 4-16). Project Description Power Block 4 will be similar to the existing Power Blocks 1, 2, and 3 at the Hines site. Power Block 4 is a new combined cycle unit of approximately 530 MWs. It will consist of two advanced GE 7 FA combustion turbines (“CT”) designed for dual fuel operation, using primarily natural gas and low sulfur fuel oil as a backup fuel. Each CT will connect to an electrical generator, capable of generating approximately 170 MWs of electricity. Each CT in Power Block 4 will be paired with a heat recovery steam generator (“HRSG”) which will extract heat energy from the CT’s exhaust gas. The HRSG is essentially a boiler that turns heat in the CT’s exhaust, which would be otherwise wasted, into steam. The steam produced in both HRSGs is used to drive a single steam turbine, which will produce an additional 190 MWs of electricity. (PEF Ex. 6, Robinson at 4 to 5; PEF Ex. JMR-2; FDEP Ex. 2 at 1-10). The normal operating mode for Power Block 4 will be for both CTs to be in operation providing steam from their respective HRSGs to the single steam turbine. However, Power Block 4 can be operated in other ways, depending on the need for electricity. One CT can be operated at full load, producing steam from its HRSG that would power the steam turbine at half load while the other CT and HRSG are idle. The unit will be operated between 30 percent load and full load in the combined cycle mode while meeting its air emission permit requirements. (PEF Ex. 6, Robinson at 4-5). Natural gas will be the principal fuel used in Power Block 4. Gas will be delivered by two existing gas pipelines that serve the Hines Energy Complex. A new on-site gas pipeline will be constructed to supply natural gas to the new Power Block 4 from the two on-site natural gas meter regulation stations. Fuel oil will be delivered by truck to a new fuel unloading facilities and stored in a new on-site fuel storage tank adjacent to Power Block 4. (PEF Ex. 1 at 3-4; Tr. 27). The existing on-site electrical switchyard will be expanded to provide electrical transmission interconnection for Power Block 4. The on-site segment of a new 230 kV transmission line between the Hines Site and the PEF West Lake Wales electrical substation is included in the project for certification. (PEF Ex. 6, Robinson at 6; Tr. 17). Pursuant to the authorization under the 1994 site certification, a 10,000 gallon per day domestic wastewater treatment plant will treat additional on-site domestic and sanitary wastewaters from on-site showers, lavatories, toilets, and drinking fountains for Power Block 4. The treated effluent is directed to the on-site cooling pond as makeup water. Potable water is provided from an existing on-site approved potable water system which is adequate to support Power Blocks 1, 2, 3, and 4. Potable water is supplied from well water and is treated and chlorinated for on-site uses such as drinking, washing, showers, and other uses. A new on-site water distribution line will be installed to support Power Block 4 and the new control and administration building. (PEF Ex. 6, Robinson at 12; PEF Ex. 1 at 3-11 to 3-12). Solid wastes that may be generated by Power Block 4 include circulating water systems screenings, sanitary waste solids, water treatment filter backwash solids, and solid wastes produced in the course of operating and maintaining the unit. Office wastes are expected to be the biggest component of these wastes. These wastes will be disposed of in differing ways. Circulating water systems screenings and water filter backwash will be recycled on-site to the extent possible. All other solid wastes will be disposed of off-site in appropriate facilities. PEF has a corporate commitment to waste minimization. This includes extensive recycling of waste products, reduction at the source, and elimination of most hazardous waste storage. This corporate commitment will be implemented on a continuing basis at the Hines Energy Complex. (PEF Ex. 6, Robinson at 12; PEF Ex. 1 at 3-18). Water Use and Supply The existing cooling pond will supply cooling water and other water needs for Power Block 4. Makeup water to the cooling pond is obtained from direct precipitation, reclaimed treated municipal effluent, on-site stormwater runoff, recycled plant blowdown and wastewaters, water cropping, and groundwater. (PEF Ex. 1 at 3-7 to 3-9). The process steam in the steam turbine is cooled to the liquid state in a steam condenser. The rejected heat from the steam is transferred to water pumped from the existing cooling pond into the circulating water system and then returned to the cooling pond. The heat rejected from the power plant results in forced evaporation above and beyond the natural evaporation that occurs in the cooling pond. The circulating water system equipment for Power Block 4 will include two new circulating water pumps capable of pumping 60,000 gallons per minute. An additional intake structure will be constructed at the cooling pond to support these pumps. (PEF Ex. 6, Robinson at 7-8; PEF Ex. 1 at 3-9 to 3-10). All process water needs for Power Block 4 will be supplied from the existing cooling pond. Water is pumped from the pond to the water treatment area located east of the existing power blocks. The water is processed for use either as service water or as demineralized water. Service water is used for washdown of equipment and other uses. The higher quality demineralized water is used for makeup to the steam-condensate- feedwater cycle in the HRSGs to replace steam cycle losses. Demineralized water is also used when firing low sulfur fuel oil in the CTs to control NOx emissions. (PEF Ex. 6, Robinson at 8- 9, Osbourn at 7; PEF Ex. 1 at 3-12 to 3-13). The reverse osmosis equipment in the demineralized water system produces a brine reject that will be pumped to the existing on-site brine pond for evaporation. The only other wastewater streams from Power Block 4 will come from the boiler blowdown and from floor drains located throughout the facility. Boiler blowdown results from removal of a portion of the water cycling in the HRSG to control the buildup of solids in that water. Boiler blowdown is collected and pumped back to the cooling pond without further treatment. Areas that contain lubricating oil equipment or where fuel lines run above ground will have containment curbs or walls. Wastewater streams from these areas that may contain oil will be routed to the existing oil water separator to remove oil contamination prior to being pumped to the cooling pond. Any collected oil is properly disposed. All wastewaters are collected and processed as appropriate and pumped back to the cooling pond. The cooling pond has no discharge to area surface waters. (PEF Ex. 6, Robinson at 9-10; PEF Ex. 1 at 3-12 to 3-16; FDEP Ex. 2 at 13). The cooling pond at the Hines Energy Complex experiences both natural and forced evaporation. The forced evaporation is that additional evaporation above and beyond natural evaporation and is caused by the heat rejected from the power plant. The total annual average evaporation rate from the cooling pond from natural evaporation and from heat rejected by Power Blocks 1, 2, 3 and the proposed Power Block 4 is approximately 10 million gallons per day. This is an increase in evaporation of 2.2 million gallons per day for Power Block 4. This loss of water needs to be replenished to keep the cooling pond operating and keep the plant continuing in operation. (PEF Ex. 6, Robinson at 7-8; PEF Ex. 1 at 3-9). It has been determined that, over the long term, Power Block 4 will require an average annual daily water supply of 2.4 million gallons per day. This is needed to replace evaporation from the pond and to supply the process water needs for the new unit. (PEF Ex. 1 at 3-8). The existing Conditions of Certification for the Hines Energy Complex authorize the use of up to 17.5 million gallons per day of groundwater beginning with the third generating unit at the Hines Energy Complex. The water needs for Power Block 4 will be supplied from these previously approved quantities of groundwater. The existing Units 1 and 2 utilize a mix of treated wastewater from on-site and off-site sources and captured rainfall to supply cooling and process water needs for Power Blocks 1 and 2. (PEF Ex. 1 at 3-7 to 3-9; PEF Ex. 6, Hunter at 7; FDEP Ex. 2, Appendix IV, SWFWMD Agency Report at 7). Under the Conditions of Certification, no groundwater will be withdrawn to supplement the cooling pond until the operating level in the cooling pond falls to 160 feet. The proposed on-site withdrawals were previously evaluated as part of the initial certification proceeding in 1994 and were found to have no adverse impacts. The proposed on-site withdrawals of groundwater for Power Block 4 will not have any adverse impacts on existing legal users of water in the vicinity of the Project, on- and off-site wetlands, or to off-site land uses. PEF has investigated other reasonably obtainable sources of water in the region and found none that could meet the needs for Power Block (PEF Ex. 1, Vol. 2, Appendix 10.6; FDEP Ex. 2, App. IV, SWFWMD Agency Report at 8-9). PEF has undertaken several efforts to minimize the use of groundwater through the use of water conservation practices, as required by the Conditions of Certification in the 1994 site certification. These measures include the use of water conserving electric generation technologies, recycling of all wastewater streams, and the design of the power plant as a “zero discharge” facility. PEF is also continuing to investigate other sources of water supply for the Hines site. (FDEP Ex. 2, App. IV, SWFWMD Agency Report at 8). Power Blocks 1 and 2 are supplied water from the on- site water cropping system and on-site and off-site treated wastewaters. The capture and reuse of rainfall is an integrated part of PEF’s efforts to reduce dependence on the Upper Floridan aquifer as a source of water. In addition, recycled plant wastewaters, treated wastewater from the City of Bartow, and nearby industrial and power plants are the other primary sources of water for Hines Power Blocks 1 and 2. The City of Bartow currently provides approximately 2.0 million gallons per day of treated wastewater for use at the Hines Energy Complex. (PEF Ex. 1, Hunter at 7; FDEP Ex. 2, App. IV, SWFWMD Agency Report at 6-8). Air Emissions The primary air pollutants emitted from Hines Power Block 4 will include nitrogen oxides (“NOx”), carbon monoxide (“CO”), particulate matter (“PM”), and sulfur oxides such as sulfur dioxide. The primary cause of the air emissions from the new unit will be the combustion of natural gas and distillate oil in the CTs. Emissions of NOx and CO will result from the combustion process. Emissions of PM and sulfur dioxide result from trace impurities in the fuel itself. (PEF Ex. 6, Osbourn at 4-5; Tr. 35-37). Air emissions from Power Block 4 will be minimized through the inherent efficiency of the combined cycle technology, as well as the use of natural gas and light oil, use of combustion controls, and use of post-combustion control technology for nitrogen oxide emissions. Natural gas is the cleanest of fossil fuels and contains minimal amounts of impurities. Light oil is also very low in impurities and its use will be limited to up to 1,000 hours per year per combustion turbine. Natural gas and light oil burn very efficiently, thus minimizing the formation of air pollutants. Emissions are also minimized through the use of advanced combustion control technology in the combustion turbine, specifically dry, low NOx combustion controls for firing natural gas, and use of water injection when firing light oil. A post-combustion control technology, selective catalytic reduction (“SCR”) will be used to further reduce NOx emissions from Power Block 4. (PEF Ex. 6, Osbourn at 5-6; Tr. 35). The Hines Power Block 4 is required to meet best available control technology (“BACT”) requirements, which limits air pollution emission rates. The Project must also comply with ambient air quality standards (“AAQS”) and prevention of significant deterioration (“PSD”) increment standards, which establish levels of air quality which must be met. (PEF Ex. 6, Osbourn at 6-7; PEF Ex. 1 at 3.5 to 3-6; FDEP Ex. 2 at 6, 17). Hines Power Block 4 is required to undergo PSD review because it is a new source of air pollution that will emit some air pollutants above the threshold amounts established under the PSD program. PSD review was required for air emissions of PM, sulfur dioxide, NOx, CO, and sulfuric acid mist because these emissions are greater than the established PSD thresholds. (PEF Ex. 6, Osbourn at 7). The BACT analysis for Hines Power Block 4 is part of the evaluation of air emissions control technology under the PSD regulations and is applicable to all pollutants for which PSD review is required. BACT is a pollutant-specific emission standard that provides the maximum degree of emission reduction, after taking into account the energy, environmental, and economic impacts and other costs. (PEF Ex. 6, Osbourn at 6-7; FDEP Ex. 2 at 6). For NOx, FDEP has preliminarily determined for this facility a BACT emission limit of 2.5 parts per million when firing natural gas, and 10 parts per million when firing low sulfur fuel oil. These emission levels will be achieved by the use of dry low NOx combustion technology when firing natural gas, use of water injection when firing fuel oil, and use of SCR technology. (PEF Ex. 6, Osbourn at 8; FDEP Ex. 2 at 9, 21, Table 4). Emissions of carbon monoxide will be controlled using good combustion techniques. Sulfur dioxide emissions, including sulfuric acid mist, will be controlled through the use of clean fuels. Particulate matter emissions will be controlled through the use of clean fuels, natural gas, and low sulfur fuel oil. Fuel oil firing will be limited to a maximum of about 1,000 hours per year. (PEF Ex. 6, Osbourn at 7-9; PEF Ex. 10, Slide 15; Tr. 36-37). The air emissions from Power Block 4 cannot be permitted at a level that would cause or contribute to a violation of federal and state AAQS for the six criteria air pollutants or PSD increments for sulfur dioxide, NOx, and PM. The PSD increments refer to the amount of incremental air quality deterioration allowed from a new air pollution source. Polk County is classified as a Class II area for PSD purposes. The nearest Class I PSD area within which limited increases in air pollutant concentrations are allowed is the Chassahowitzka National Wilderness Area. (PEF Ex. 6, Osbourn at 9-11; FDEP Ex. 2 at 6-8, 16-17). Air emissions from Power Block 4 were principally analyzed for emissions from fuel oil firing as representing the maximum air quality impact. The air quality impact analysis was performed using approved air quality models and five years of historical hourly meteorological data. This analysis indicated that Power Block 4 will not cause any violations of federal or state AAQS and will comply with applicable PSD Class II and Class I increments. The maximum impact of the Project was estimated to be well below the applicable PSD Class II increments. Maximum ambient air impacts were also estimated to be well below the applicable AAQS. Using worst case air emissions during oil firing, it was shown that the Project impacts would be less than the PSD Class I increments, as well as less than the Class I significant impact levels, and therefore were concluded not to be significant in the PSD Class I area. (PEF Ex. 6, Osbourn at 8-14, Exs. SO-3 and SO-4; FDEP Ex. 2 at 7-8, 16-17). Air emissions from Power Block 4 are not expected to have any impact on vegetation or to cause any growth-related air quality impacts. The results of the visibility impact analysis of the Project’s emissions in the nearest PSD Class I area demonstrated no adverse impact on visibility at that location due to Power Block 4. (PEF Ex. 6, Osbourn at 14-15; FDEP Ex. 2 at 6-7, 17). Noise Noise impacts during operation of Power Block 4 were shown not to be significant. Noise monitoring was originally conducted at various locations around the Hines Energy Complex site prior to construction and operation of Power Block 1. Additional noise monitoring was conducted at these locations in 2000 and 2004 during the permitting of Power Blocks 2 and 4, to determine any changes since the original permitting. There are only a few isolated rural residences in the land area surrounding the site. The nearest residence is about 2.5 miles from the proposed Power Block 4. Industrial activities in the surrounding area result in considerable traffic on nearby roads, causing noise levels to exceed the EPA guideline of 55 dBA. Without the area traffic, ambient noise levels meet the EPA guidelines. (PEF Ex. 1 at 2-65 to 2-72). Using a conservative approach which tends to overstate the Project impacts, noise impacts due to operation of Power Block 4 would increase by less than 2 dBA at the nearest receptor and will not be significant. Therefore, the Project will meet applicable noise criteria and no significant noise impacts will occur as a result of the Project. (PEF Ex. 6, Osbourn at 15-16; PEF Ex. 10, Slide 23; PEF Ex. 1 at 5-9 to 5-12). Land Use and Socioeconomic Impacts The Plant Island, where Power Block 1 is in operation and where Power Block 4 will be constructed, is located near the southern end of the site. The northern boundary of the Plant Island is about two miles south of CR 640. The western limit of the City of Fort Meade is about 3.9 miles east of the Plant Island, and the unincorporated community of Homeland is more than 3.5 miles northeast of the Plant Island. The nearest residential use is three homes located approximately 2.5 miles from the southern boundary of the Plant Island. Otherwise, the entire area surrounding the proposed power plant site consists of existing or former phosphate mines. The site is buffered from surrounding populations at Homeland and Fort Meade by an extensive buffer area on the eastern perimeter of the site. There has been almost no change in land use and very little change in the landscape in the area of the Hines Energy Complex since the original site certification. (PEF Ex. 6, Zwolak at 5- 6). There have not been any changes in the area surrounding the Hines Energy Complex that would change the land use and socio-economic conclusions reached in the Final Order of Certification issued for the site by the Siting Board on January 27, 1994. The most significant change has been the completion of another nearby power plant approximately three miles southeast of the Hines site. (PEF Ex. 6, Zwolak at 6). No land use or socio-economic impacts will be associated with construction of Power Block 4 that were not previously addressed in the Final Order of Certification for the Hines Energy Complex in 1994. (PEF Ex. 6, Zwolak at 6-8). The land use impacts from development and construction of Power Block 4 will be quite minimal, and the economic benefits will be substantial. Current operating employment at the Hines Energy Complex is 29. The staffing level at the plant is expected to increase by six employees with the addition of Power Block 4. Annual payroll was $2.7 million in 2002. The annual payroll will increase by about $493,000 when Power Block 4 becomes operational in 2007. (PEF Ex. 6, Zwolak at 8). The estimated increase in property taxes for Power Block 4 is $5.0 million. Over one-half of this revenue goes to support the Polk County school system. (PEF Ex. 6, Zwolak at 8; PEF Ex. 1 at 7-1). Agency Positions and Stipulations The FDEP, the Florida Department of Community Affairs, the FDOT, and the SWFWMD each prepared written reports on the Project. (FDEP Ex. 2). Each of these agencies either recommended approval of Hines Power Block 4 or otherwise did not object to certification of the proposed power plant. The FDEP has proposed a series of Conditions of Certification for the Project that incorporate the recommendations of the various reviewing agencies. At hearing, the FDEP added one additional condition related to air emissions monitoring. (Tr. 54-55). PEF states that it can comply with these Conditions of Certification in the design, construction, and operation of the Hines Power Block 4. (Tr. 21, 56). No state, regional, or local agency has recommended denial of certification of the Project or has otherwise objected to certification of the Project. (PEF Ex. 4). Subject to compliance with the proposed conditions of certification, the proposed design of Hines Power Block 4 offers reasonable assurance that the standards of the FDEP and other affected regulatory agencies will be met and that the operation safeguards are technically sufficient for the protection of the citizens of the state. The Hines Power Block 4, as proposed, minimizes through reasonable and available methods the adverse effects on human health, the environment, the ecology of the land and its wildlife, and the ecology of state waters and their aquatic life. (FDEP Ex. 1 at 28; Tr. 57-59).
Conclusions For Progress Energy Florida: Douglas S. Roberts, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314-6526 For the Department of Environmental Protection: Scott A. Goorland, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 For the Southwest Florida Water Management District: Martha A. Moore, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order granting certification to PEF to construct and operate a new 530 MW natural gas-fired electrical power plant (Hines Power Block 4 Project) in Polk County, Florida, in accordance with the Conditions of Certification, FDEP Exhibit 2. DONE AND ENTERED this 5th day of April, 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 5th day of April, 2005. COPIES FURNISHED: Douglas S. Roberts, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314-6526 Scott A. Goorland, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Martha A. Moore, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34604-6899 Michael Duclos, Esquire Polk County Attorney’s Office Post Office Box 9005 Bartow, Florida 33831-9005 James V. Antista, Esquire Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Sheauching Yu, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0450 Craig Varn, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 Wm. Cochran Keating IV, Esquire Florida Public Service Commission 2450 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Norman White, Esquire Central Florida Regional Planning Council 555 East Church Street Bartow, Florida 33830 Steven Palmer Siting Coordination Office Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399 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 parties stipulated that the Petitioner's financial responsibility and morals were not an issue. The only basis for the Board's denial was the Petitioner's alleged lack of experience. Petitioner and Respondent submitted proposed findings of fact which were read and considered. These proposals are discussed in detail in the Conclusions of Law.
Findings Of Fact Petitioner is presently employed as an electrical inspector for Hillsborough County, Florida. He has held this position for approximately two and one-half (2 1/2) years. He holds a master's electrician's license issued by Hillsborough County but is prohibited by terms of his employment as an electrical inspector from engaging in any electrical contracting activity. Petitioner is technically experienced as an electrician. Prior to his employment as an electrical inspector, Petitioner was employed by Mobil Chemical Company which operates several phosphate mines in central Florida. The Petitioner was employed at its Fort Meade mine. The Fort Meade mine, or plant, is a substantial operation producing approximately four (4) million tons of phosphate per year at the time when Petitioner was employed. The mining area occupies several hundred acres and the working or processing area occupies approximately ten (10) of those acres. The working area comprises of a flotation plant, a washer plant, a sizing section, a shipping area where the rock is loaded on railroad cars, a maintenance area, and an office complex. The plant ran three (3) shifts around the clock and employed approximately one hundred (100) persons. All of the major equipment to include the 30 and 40 yard draglines at the Fort Meade plant alone contained in excess of one hundred (100) electric motors each with its own fuse box and disconnect. The Petitioner was employed by Nobil Chemical Company for twenty (20) years (1962-1982); 16 years as an electrician and four years as supervisor of the electrical maintenance at the Fort Meade plant. He was responsible for all electrical repairs, maintenance, and new construction at the plant for all three shifts. His direct superior was the department chief who was in charge of all the electrical departments at all of Mobil's phosphate mining locations. Approximately twenty (20 percent) percent of the Petitioner's time was spent on new construction projects. Approximately forty (40 percent) percent of petitioner's time was spent on regular maintenance and repairs. Fifteen (15 percent) percent of the Petitioner's time was spent on emergency repairs. The remainder of petitioner's time was spent on miscellaneous projects. Petitioner supervised a staff of ten (10) men: two (2) crewmen, four linemen, and four (4) electricians. The Petitioner was responsible for estimating the cost of jobs for his immediate superior to include the cost of materials and the number of man hours. The Petitioner was responsible for counting and reporting the number of hours his employees worked in turning this information into the company's payroll section. Petitioner had the power to request overtime work for his employees and made recommendations concerning hiring and firing personnel. On new construction the Petitioner's responsibilities began with doing takeoffs from blueprints provided for the job and supervising the work through to its completion. He was responsible for the maintenance and repair of the Fort Meade facility to include small electrical motors, large electrical motors, office lighting, transformers, and the large draglines. Petitioner's experience included experience with three (3) phase electrical power, high voltage electrical service, and lower voltages used in small motors, lights and appliances. The electrical department which the Petitioner headed provided service only to Mobil's Fort Meade plant. Mobil is not an electrical contractor; however, its electrical department provided extensive services which are comparable to those an outside electrical contracting service would have provided. Although the petitioner did not prepare a payroll for those persons who he supervised, he did serve as the clerk for his church for five (5) years during which time he was responsible for preparing the payroll for the church's employees. The petitioner applied in 1982 to sit for the electrical contractor's licensing examination. His application was approved by the Respondent and the Petitioner sat for the examination on two occasions, failing both examinations. Petitioner reapplied to sit for the electrical contractor's licensing examination in 1984 and was denied by the Respondent based upon lack of satisfactory experience. The Petitioner held a responsible management position with Mobil at the Fort Meade plant as supervisor of electrical maintenance at the Fort Meade facility for four (4) years. The Petitioner never negotiated a construction contract, was never bonded as a contractor, never obtained insurance to cover his operation as a contractor, and never sought a building permit for any of the electrical work done at the Fort Meade facility.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Electrical Contractors Licensing Board disapprove the application of Cecil U. Lane to sit for the statewide electrical contractor's license. DONE and ORDERED this 18th day of January, 1985, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1985. COPIES FURNISHED: Mr. Jerry W. Hendry Executive Director Department of Professional Regulation Division of Electrical Contractors 130 North Monroe Street Tallahassee, Florida 32301 Eric S. Ruff, Esquire Post Office Box TT Plant City, Florida 33566 Arthur C. Wallberg, Esquire Department of Legal Affairs Suite 1601 The Capitol Tallahassee, Florida 32301 Mr. Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues are whether the Department of Transportation may declare Petitioner non-responsible and ineligible to bid on Department contracts based upon Petitioner's alleged unsatisfactory performance and default on Department contract number E-5G08; and if so, for what period of time should Petitioner be declared non-responsible.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the parties' stipulations, the following findings are made: Parties Petitioner is a Florida corporation whose principal business is road and bridge maintenance. Petitioner also does some landscape installation work. Petitioner's president is Charles Welch. Petitioner has received between ten and 20 contracts from the Department since 1993. However, the contract at issue in this proceeding is the first landscape installation project that Petitioner has done for the Department. The Department is the state agency responsible for maintaining and regulating the use of the right-of-way along the state highway system. That responsibility includes overseeing the installation and maintenance of landscaping within the right-of-way. Department Contract No. E-5G08 In November 2001, the Department awarded Petitioner a contract to install landscaping around six interchanges in the central Florida area. The interchanges were identified and prioritized in the bid specifications as follows: (1) I-95/US 192 interchange; (2) I-4/Lake Mary Boulevard interchange; (3) SR 25/SR 200 interchange; (4) SR 482/SR 435 interchange; (5) I-95/SR 518 interchange; and (6) US 441/SR 46 interchange. The SR 482/SR 435 interchange was subsequently deleted from the project, and the I-4/Lake Mary Boulevard interchange was subsequently prioritized ahead of the I-95/US 192 interchange. The Department's contract identification number for the project was E-5G08. The contract required Petitioner to prepare and mulch 66,667 square yards of beds for the landscaping and then to install a total of 63,667 plumbago shrubs and 927 sabal palm trees. The plumbagos were required to be ten to 18 inches in height, and the palm trees were required to be nine to 20 feet in height. Petitioner did not challenge the specifications for the project. Petitioner bid $745,160.90 for the contract, and the Department accepted the bid at that amount. Petitioner's bid amount was calculated by multiplying a unit price for each plant type by the number of plants required under the contract, plus a unit price for the mulching/bed preparation multiplied by the total number of square yards in the beds. No separate amount was bid by Petitioner for "maintenance," and the bid form did not include a separate line for that item. The contract generally described the work to be performed by Petitioner as "furnish[ing] and install[ing] palms, plants and associated landscape materials at various locations." A similar description of the project was provided on the first page of the bid specification package. The contract and the bid specification package incorporated by reference the 2000 edition of the Department's Standard Specifications for Road and Bridge Construction (Standard Specifications). Mr. Welch was generally familiar with the Standard Specifications as a result of the prior contract work that he and Petitioner had done for the Department. He understood that the Standard Specifications were part of each Department construction and maintenance contract. Section 580-10 of the Standard Specifications, entitled "Contractor's Responsibility for Condition of the Plantings," requires the contractor to: [e]nsure that the plants are kept watered, that the staking and guying is adjusted as necessary, that all planting areas and beds are kept free of weeds and undesirable plant growth and that the plants are maintained so that they are healthy, vigorous, and undamaged at the time of acceptance. Section 580-11 of the Standard Specifications, entitled "Plant Establishment Period and Contractor's Warranty," requires the contractor to: [a]ssume responsibility for the proper maintenance, survival and condition of all landscape items for a period of one year after the final acceptance of all work under the Contract in accordance with [Section] 5-11. [The contractor shall also] [p]rovide a Warranty/Maintenance Bond to the Department in the amount of the total sums bid for all landscape items as evidence of warranty during this plant establishment period. The costs of the bond will not be paid separately, but will be included in the costs of other bid items. * * * [The contractor shall] [t]ake responsibility to apply water as necessary during this period and include the cost in the various landscape items. No separate measurement of payment will be made for water during the plant establishment period. Pursuant to Sections 5-10 and 5-11 of the Standard Specifications, "acceptance" of a project does not occur until the Department determines that the contractor has satisfactorily completed all work on the project and informs the contractor in writing that the project is accepted. Sections 5-10.2 and 5-10.3 of the Standard Specifications allow for acceptance of portions of the project, called "partial acceptance." Those provisions do not, however, require the Department to accept projects on a piecemeal basis. At the pre-construction conference held on November 19, 2001, Mr. Welch asked, "if a single location [would] be accepted as it is completed." The Department's project manager, Stephen Bass, replied that he would "check to see if this is possible," and he told Mr. Welch that "[i]n the meantime, as you complete a site, advise me in writing and I will respond " Based upon the subsequent correspondence between the parties, it can be inferred that the Department decided against accepting the project on a site-by-site basis. No partial or final acceptance was ever given for the project or any of the individual sites. The first page of the specification package provided that the contract period was "270 days for installation," and "365 addtl [sic] days after acceptance for establishment." The 365-day, post-acceptance establishment period referred to in the specification package is the same as the one- year period referred to in Section 580-11 of the Standard Specifications. Petitioner's obligations during the establishment period were specifically discussed at the pre-construction conference. At that time, Mr. Bass made it clear to Mr. Welch that the contract included the one-year establishment period, in addition to the 270-day installation period. The installation period began on December 3, 2001, and ended on September 8, 2002. The latter date takes into account the ten "[bad] weather days" added to the installation period under the terms of the contract. Mr. Welch understood the project to be an installation-only contract. That understanding was based upon the reference to a 270-day installation period in the specifications, and the fact that the bid form did not have a separate line-item for maintenance. Mr. Welch did not read the specifications word-for- word prior to bidding on the project, nor did he take into account Section 580-11 of the Standard Specifications or the language on the first page of the specification package which clearly referenced the 365-day, post-acceptance establishment period. Mr. Welch did not understand the contract to require Petitioner to weed or otherwise maintain the beds after the plants were installed. He understood the contract to only require Petitioner to install the plants and then water them through the end of the 270-day installation period. In reaching this conclusion, Mr. Welch did not take into account Section 580-10 of the Standard Specifications, which clearly requires pre-acceptance weeding and which makes the contractor the absolute insurer of the plants until acceptance by the Department. The Department did not in any way contribute to Mr. Welch's misunderstanding of the scope of the contract. The contract documents were clear and unambiguous on the issue and the Department made it clear from the outset that the contract included a one-year establishment period. Petitioner's Performance Under the Contract Petitioner performed its work under the contract in a series of steps. Petitioner first sprayed the areas at each site where the landscaping would be installed with a herbacide to kill any existing vegetation. Two herbacide treatments were done at each site. Petitioner then "mulched" the planting areas at each site by mowing the dead vegetation and marked the locations at each site where the palm trees were to be installed. Petitioner then planted the palm trees at each site. Next, Petitioner installed "weed fabric" at the I-4/Lake Mary Boulevard interchange (hereafter "the Lake Mary site"). The weed fabric has two purposes: it blocks the light that reaches the ground thereby reducing or eliminating weeds, and it also helps prevent erosion. After installing the weed fabric, Petitioner began planting the plumbago shrubs at the Lake Mary site. To do so, Petitioner cut and folded back the weed fabric where each plumbago was to be located and then dug the hole within which the plant was placed. After the plant was placed in the hole, the weed fabric was then re-folded around the base of the plant. After the plumbagos were planted, Petitioner completed its work at the Lake Mary site by spreading pine straw mulch in the landscaped beds. The contract required a four-inch layer of mulch. After completing its work at the Lake Mary site, Petitioner moved to another site and installed the weed fabric, planted the plumbagos, and spread the pine straw mulch at that site. Petitioner continued working on a site-by-site basis in this manner until all of the sites had been completed. In June 2002, the Department expressed concern to Petitioner that it had fallen behind its installation schedule. In response, Petitioner put more people on the job and was able to get back on schedule. Petitioner completed the installation of the plants within the 270 days allotted for installation. Petitioner periodically watered each of the sites as the plants were being installed. Petitioner had two water trucks that it used for watering. The truck used at the Lake Mary site sprayed a stream of water out of a hose at a relatively high flow rate. Because large portions of the landscaped beds at the Lake Mary site were on steep slopes around the interchange, the stream of water from the water truck caused some of the pine straw to wash down the slope. Heavy rains also caused the pine straw to wash down the slope and, in some areas, to wash away completely. As a result, some of the landscaped areas were not covered with the four inches of mulch required by the specifications. Mr. Welch acknowledged the loss of mulch in some areas, and he attributed it to the weed fabric being too "slick" to hold the mulch. Nevertheless, because Mr. Welch considered the replacement of the mulch to be maintenance, which he did not consider to be part of the contract, Petitioner never replaced the pine straw. Petitioner did not consider using a "drip line" or other watering system which would have applied the water at ground level or at a lower rate of flow than the stream of water being sprayed from the water truck. Such an alternative system may have minimized the amount of mulch that washed down the slope from watering, but it may not have affected the mulch that washed away due to heavy rains. Such a system may have also gotten more water to the plants' roots. Despite the watering done by Petitioner, plumbagos and palm trees died at the Lake Mary site, as well as at the other sites. Mr. Welch acknowledged the "loss" of a number of trees and plants, although he testified that fewer plants had died than he had projected at the outset of the project. The precise number of trees and plants which died before Petitioner was declared in default on the contract and told to stop work on the project is not clearly reflected in the record. The loss of the plumbagos at the Lake Mary site may be partially attributable to the weed fabric selected by Petitioner not being permeable enough to allow the water to reach the plant roots, but Petitioner's failure to utilize an alternative watering system to compensate for the "problems" it encountered with the weed fabric also contributed to the loss of the plumbagos. On August 12, 2002, the Department and Petitioner "agreed that substantial completion has been achieved" on each of the sites. That means that all or substantially all of the plants had been installed by that date; it does not mean that the Department had accepted the work, either partially or conditionally. By letter dated August 13, 2002, the Department informed Petitioner that maintenance of the completed sites was necessary. Specifically, the letter informed Petitioner that there were dead palm trees and plumbagos at all of the sites which needed to be replaced, that the pine straw mulch needed to be replaced at most of the sites, and that weeding needed to be done. Petitioner did not perform the weeding or other maintenance directed by the Department. Indeed, the only work that Petitioner did on the project after August 13, 2002, was on August 20, 2002, when it watered two of the sites. By letter dated August 15, 2002, Petitioner responded to the Department's direction that maintenance be commenced at the completed sites. In that letter, Petitioner characterized the maintenance as "extra work" and requested additional compensation for the maintenance work. The Department denied Petitioner's request for additional compensation by letter dated August 15, 2002. That letter informed Petitioner that "a Deficiency Letter would be forthcoming if weed removal operation does not begin immediately." Petitioner did not respond to the letter. By letter dated August 21, 2002, the Department issued a "performance deficiency" based upon Petitioner's failure to maintain the planted areas as required by the contract and as directed by the Department in the letters dated August 13 and 15, 2002. Petitioner did not contest the deficiency within the ten-day period prescribed by the letter. By letter dated August 22, 2002, the Department requested that Petitioner submit the Warranty/Maintenance Bond required by the contract since "substantial completion has been achieved on the . . . project." The letter further advised Petitioner that the one-year establishment period would not commence until the bond was received by the Department. Petitioner did not respond to the letter. By letter dated August 27, 2002, the Department provided Petitioner with a "punch list" of items that required correction before the project could be accepted. The list included the replacement of dead palm trees and dead or under- sized plumbago shrubs at all of the sites; missing pine straw mulch at all of the sites; weeding and general clean-up of all of the sites; and submittal of the Warranty/Maintenance Bond. At the time of the Department's August 27, 2002, letter, 12 days still remained in the installation period. Petitioner did not respond to the letter and it made no effort to complete the punch list items identified by the Department. The Department never accepted the work performed by Petitioner under the contract because of the deficiencies identified above. As a result, the 365-day post-acceptance establishment period never commenced. Petitioner never provided the Department the Warranty/Maintenance Bond required by Section 580-11 of the Standard Specifications, which was incorporated by reference into the contract. The Lake Mary site is highly visible because the adjacent roads are very heavily traveled. The Department received complaints regarding the appearance of the Lake Mary site. The complaints came from Seminole County officials and members of the public. Alternative Weed Fabric Proposed by Petitioner The specifications package for the contract provided general requirements for the weed fabric to be used on the project. It did not, however, specify a specific brand of fabric which must be used. The specifications package provided that "[t]he fabric shall conform to the physical requirements on Roadway and Traffic Design Standards, Index No. 199 according to its application." Index No. 199 refers to the weed fabric as an "erosion mat," and requires it to have an ultra violet (UV) rating of 2,000 hours. Index No. 199 does not prescribe criteria for water permeability for the weed fabric. Petitioner provided the information in the specifications package relating to the weed fabric to its material supplier, who then provided Petitioner a fabric that met the specifications. The Department was not involved in those discussions. As required by the specifications package, Petitioner provided the Department a copy of the product data sheet for the selected fabric so that the Department could confirm that the fabric met the requirements of Index No. 199. The weed fabric which Petitioner selected was called "gold line." It had a UV rating of 2,500 hours, which met the requirements of Index No. 199. It had a water permeability rating of 15 gallons per minute per square foot (gal/min/SF). After encountering the problems described above at the Lake Mary site, Petitioner began looking for an alternative weed fabric which would be more permeable to water. The alternative fabric identified by Petitioner was "Style 125EX" from Linq Industrial Fabrics, Inc. The water permeability rating for that fabric was 150 gal/min/SF, but its UV rating was only 500 hours. Mr. Welch provided the data sheet for the Style 125EX fabric to Mr. Bass and requested that Petitioner be allowed to substitute that fabric for the fabric that it had used at the Lake Mary site. The Style 125EX fabric would have been used on the remaining sites, because the Lake Mary site had been completed with the original weed fabric by that time. That request was denied by the Department because the UV rating for the Style 125EX fabric did not meet the requirements of Index No. 199. The lower UV rating meant that the fabric would not hold up as long and, therefore, could create maintenance problems in the future. After the request to substitute the Style 125EX fabric was denied, Petitioner did not attempt to locate an alternative material which met the UV rating specified in Index No. 199, but was more permeable to water than the gold line fabric. Petitioner's Default and Unsatisfactory Performance Rating Section 8-9.1 of the contract provides that: The following acts or omissions constitute acts of default and . . . the Department will give notice, in writing, to the Contractor and his surety for any delay, neglect or default, if the Contractor: * * * performs the work unsuitably, or neglects or refuses to remove materials or to perform anew such work that the Engineer rejects as unacceptable and unsuitable; discontinues prosecution of the work, or fails to resume discontinued work within a reasonable time after the Engineer notifies the Contractor to do so; * * * (j) for any other cause whatsoever, fails to carry on the work in an acceptable manner, . . . . For a notice based upon reasons stated in subparagraphs (a) through (h) and (j): if the Contractor, within a period of ten calendar days after receiving the notice described above, fails to correct the conditions of which complaint is made, the Department will . . . have full power and authority, without violating the Contract, to take the prosecution of the work out of the hands of the Contractor and to declare the contractor in default. On September 16, 2002, the Department notified Petitioner that it intended to "default" Petitioner under the contract based upon its failure to maintain the planted areas, its failure to replace the dead plumbagos and palms, and its failure to provide the required Maintenance/Warranty Bond. As required by the contract, the letter gave Petitioner 10 days to cure the deficiencies in its performance. Petitioner did not respond to the Department's default letter, nor did it take any action to cure the deficiencies identified by the Department. As a result, on September 30, 2002, the Department formally declared Petitioner in default on the contract and directed Petitioner not to perform any additional work on the project. By letter dated October 22, 2002, the Department advised Petitioner of its "preliminary" field performance rating for the contract. Petitioner received a raw score of 53 (out of 90), which is a scaled score of 59. That is an unsatisfactory rating. Petitioner did not contest its rating within the time allowed by the Department's October 22, 2002, letter. As a result, the preliminary rating became final. Petitioner was not scored in the area of "maintenance of traffic operations." The Department had not received any complaints from the public on that issue, which is the primary consideration upon which that score is based. Had Petitioner received a "satisfactory" grade in that category, Petitioner's total score would have been 60. If Petitioner received a higher grade in that category, its total score could have been as high as 63. In either event, those scores still result in an unsatisfactory rating. By letter dated February 12, 2003, the Department advised Petitioner that it intended to declare Petitioner non-responsible for a period of two years based upon its default and unsatisfactory performance on Department contract number E-5G08. Petitioner timely requested a formal hearing, and this proceeding followed. The Department stipulated at the hearing that its decision to declare Petitioner non-responsible was not based on Petitioner's numerical performance rating (whether it is 59, 60, or 63), but rather on the actual unsatisfactory performance that is described above. Subsequent Department Contract With Vila & Sons After Petitioner's default, the Department contracted with another entity "in order to salvage the Department's investment in this landscaping project, i.e., ensure that the plantings become established, " That contract, entered into in May 2003 between the Department and Vila & Sons Landscaping Corporation, is identified as contract number E-5H09 (Vila & Sons Contract). The contract amount was $112,461.36. The Vila & Sons Contract was for "one-time maintenance" of three of the sites that Petitioner was responsible for under its contract with the Department. The sites were the I-4/Lake Mary Boulevard interchange, the SR 25/SR 200 interchange, and the US 441/SR 46 interchange. The Vila & Sons Contract was only for a 60-day period and consisted of the following landscape maintenance functions: 1) weeding [which includes pruning of existing live shrubs], 2) removal and replacement of dead shrubs, 3) fertilizing [which includes "watering in"], 4) remulching as necessary, 5) watering for plant establishment and/or maintenance. (Brackets in original). The Vila & Sons Contract called for the installation of 3,700 plumbago shrubs. It does not make reference to the removal of dead palm trees, the re-erection of fallen palm trees, or the installation of new palm trees. The bid form for the Vila & Sons Contract included separate line-items for water, mulch pine bark, plumbago shrubs, slow-release fertilizer, and "landscape maintenance (weed removal, manual)." The record does not establish whether the Vila & Sons Contract was satisfactorily performed or whether it was successful in "salvaging" the installation work which had been done by Petitioner. Between the time that Petitioner was declared in default in September 2002 and May 2003 when the Vila & Sons Contract was entered into, the Central Florida area had periods of cold weather. The cold temperatures during those periods may have killed some of the plumbagos and palm trees installed by Petitioner, but the record does not establish how many plants, if any, were killed by the cold weather as compared to the plants that were already dead at the time of Petitioner's default.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a final order which declares Petitioner non-responsible and ineligible to bid on Department contracts for a period of two years, commencing on the date of the final order. DONE AND ENTERED this 18th day of September, 2003, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2003. COPIES FURNISHED: Robert M. Burdick, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Brant Hargrove, Esquire Law Office of Brant Hargrove 2984 Wellington Circle, West Tallahassee, Florida 32308 James C. Myers, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issue for determination is whether the proposed Indiantown Cogeneration, L.P. (ICL) Project site is consistent and in compliance with existing land use plans and zoning ordinances of Martin County and Okeechobee County, Florida. See Section 403.508(2), Florida Statutes. No party to the proceeding disputes that the site is consistent and in compliance with the plans and ordinances in effect on December 21, 1990, when the application was filed.
Findings Of Fact ICL published notices of this land use hearing on June 15, 1991, in The Stuart News, on June 19, 1991, in The Indiantown News, and on June 16, 1991, in The Okeechobee News. Notices of this hearing were published by the Department of Enviromental Regulation in the Florida Administrative Weekly on June 28, 1991. ICL mailed notice of this hearing to the chief executives of the local and regional authorities with responsibility for zoning and land use planning whose jurisdiction includes the site. The Applicant, ICL, posted a notice of this hearing at the proposed site. ICL proposes to construct and operate a 330 Mw cogeneration facility which captures waste heat from electrical generation to produce steam for industrial processes. The facility will burn pulverized coal to generate electricity for sale to Florida Power & Light Company (FPL) and supply up to 225,000 pounds per hour of steam for drying operations at the adjacent Caulkins Citrus Processing plant. Steam generation will be accomplished by means of a pulverized coal boiler. The boiler will be of an outdoor natural-circulation type in which coal will be mixed with air and ignited. Electricity will be generated by passing steam produced by the boiler through an extraction-condensing turbine generator. Sulfur oxide and nitrogen oxide compounds and particulates will be removed from the boiler exhaust gases using various removal systems. Coal will be delivered by trains arriving from the north. A rail loop and coal unloading, handling and storage facilities will be constructed onsite. Ash will be temporarily stored in onsite silos before being removed from the site. A new site access road will be constructed along the western and southern boundary of the site to provide access to State Road 710 and West Farm Road. A railroad spur across the adjacent Florida Steel plant site will connect the site to the CSX railroad. The proposed project will include a water pipeline that will extend 19 miles southeast from Taylor Creek/Nubbin Slough in Okeechobee County to the facility site. An intake structure will be constructed at Taylor Creek/Nubbin Slough to pump water to the plant site. To distribute electricity generated, the ICL facility's electrical switch yard will connect to an existing FPL electrical transmission line which crosses the northern portion of the Project site. Site for Indiantown Cogeneration Project The site for the proposed Indiantown Cogeneration Project is a 220 acre tract which lies approximately 20 miles west of Stuart, three miles northwest of Indiantown and nine miles east of Lake Okeechobee. To the north of the Site are the Caulkins Citrus Processing Plant and a vacant Florida Steel Corporation plant site. Both of these facilities border State Road 710 and the CSX Railroad. The proposed corridor for the cooling water pipeline to serve the Project is within the existing CSX Railroad right-of-way which parallels State Road 710, running southeast from the intake structure location in Okeechobee County to the site. The permanent right-of-way for the pipeline is to be located within this corridor. Consistency and Compliance of the Project Site with Local Land Use Plans of Martin County The proposed site is designated for "Industrial" use on the Land Use Map adopted by the Martin County Board of County Commissioners (BOCC) as part of its 1990 Comprehensive Growth Management Plan (Martin Plan). The Martin Plan was the local land use plan in effect in Martin County on the date ICL filed this SCA. This Plan encouraged future development of industrial uses, including cogeneration facilities, to occur under a planned unit development industrial zoning classification. The evidence at the hearing established that the Project is consistent and in compliance with the Martin Plan in effect on the date ICL filed the SCA. During the PUD(i) rezoning process discussed below, the proposed project was also reviewed by Martin County for consistency with the other policies of the Martin Plan. The project, as proposed, was found to be consistent with this Plan. On July 9, 1991, the Martin County BOCC adopted a land text amendment (ICL Exhibit 9), which added steam/electricity cogeneration plants as permitted uses within areas designated Industrial. The Department of Community Affairs has made no determination as to the amendment's compliance or non-compliance with Chapter 163 and specifically reserves its responsibility to review the amendment pursuant to its statutory authorization. Consistency of the Project Site With Martin County Zoning Regulations The Project is consistent and in compliance with the industrial zoning of Martin County that was in effect for the Project Site on December 21, 1990, the date ICL filed its SCA. On July 23, 1991, the BOCC granted petitions by ICL to change the zoning for the proposed site from M-3 and M-1, industrial, to Planned Unit Development (industrial) or PUD(i); to grant a height exception for structures higher than 60 feet; and to grant an advertised conditional use for utilities. All parties present throughout the land use hearing have stipulated that this zoning change and related approvals do not affect adversely the use of the site as the location for the proposed power plant while still protecting the public interest under the applicable land use plan and zoning ordinances of Martin County. The later-adopted PUD(i) zoning criteria for the Project are contained in a document titled "Indiantown Cogeneration Project Planned Unit Development Zoning Agreement" between ICL, the current property owners, and the Martin County BOCC, dated July 23, 1991. The PUD Agreement establishes certain conditions and standards upon which construction and operation of the ICL project may be undertaken at the proposed site. The Agreement incorporates and references various other local regulations with which a project at this site must comply. The PUD(i) zoning agreement also recognizes that final approval for the project will be obtained under the Florida Electrical Power Plant Siting Act, Chapter 403, Part II, Florida Statutes, and that the final development plan of approval contemplated by the Agreement would be obtained through this certification process. The PUD(i) Agreement provides that ICL shall have the right to develop the project in accordance with applicable laws, ordinances and regulations; with the provisions and requirements of the PUD(i) Zoning Agreement; and with the Preliminary and Final Development Plans. Exhibit D to the PUD(i) Zoning Agreement is a Preliminary Development Plan for the ICL project. This exhibit provides a conceptual layout for the proposed project that is subject to modification based on detailed site planning and engineering required as part of the certification of the Project in conjunction with the final development plan approval (site certification process). The Project, as proposed in the SCA, is consistent with this Preliminary Development Plan. A development schedule for the proposed project is established in Exhibit E to the PUD(i) Agreement. This timetable contemplates and incorporates site certification by the Governor and Cabinet under the Florida Electrical Power Plant Siting Act. ICL will be able to develop the Project proposed in the SCA consistent with this timetable. Twenty-two (22) Special Conditions are established for the Indiantown Cogeneration Project in Exhibit F to the PUD Agreement. ICL has committed to meet all of the Special Conditions and its design, as developed to date and presented in the site certification application, is consistent and in compliance with all twenty-two Special Conditions. The special conditions are: Special Conditions 1 and 4 require that certain precautions be taken in the event that archaeological artifacts or endangered plants and animals are discovered on the site. A $1 million Community trust program is to be created by ICL to benefit projects in the Indiantown community, under Special Condition 2. Special Condition 8 requires ICL to encourage Project employees to live and become active in the Indiantown Community. Under Special Condition l0, ICL is to make employment applications available in the Indiantown area during periods of significant hiring. Special Condition 3 provides that ICL is solely responsible for obtaining necessary drainage permits from the South Florida Water Management District and that Martin County has no responsibility for funding of Project drainage improvements. With regard to special Condition 5, the Department of Community Affairs concurs that the evidence at the land use hearing established that the Project at this location is consistent and in compliance with local land use plans and zoning ordinances in effect as of December 21, 1990. Special Condition 6 prohibits disposal of wastewater filter cake at the Martin County landfill. Under Special Condition 7, ICL agrees not to haul fill to or from the Site without Martin County approval. This is in compliance with the Excavation and Fill provisions of the Martin County Code, Sections 33-804, 805, 806, and 809. A hazardous waste management plan, consis- tent with a hazardous waste management plan attached to the Zoning Agreement, is required by Special Condition 8. Landscaping along the access road and around the administration buildings and parking areas is required by Special Condition 10. This condition satisfies the requirements of the Martin County Landscape Code, Chapter 23, Article III of the Martin County Code. Special Condition l3 requires that plant operations not cause unreasonable levels of sound to reach the boundary of any existing adjacent residential district. ICL is to provide general public notice of any planned steamblows. No quantitative noise standards are established by Martin County. Special Condition 14 establishes performance standards which are consistent with the provisions of Section 33-581.44(G) and (H) of the Martin County Code. The performance standards establish limits on the density of smoke; size of particulates; emissions of odors, dust and dirt, and of obnoxious gases and fumes; sewage disposal; set-backs for unenclosed buildings; fire protection measures; building heights; vegetative buffers adjacent to S.R. 710; and Project lighting. Several of these special performance standards provide additionally for compliance to be shown as part of the final certification order under the Florida Electrical Power Plant Siting Act. Special Conditions 15 and 17 provide that potable water and wastewater services for the Project will be supplied by the Indiantown Company. Final agreements for the provisions of these services are to be provided as part of the final development plan approval. Special Condition 16 provides for protection of upland and wetland preserve areas as shown on the approved development plans. This condition complies with the upland and wetland preservation policies of the Martin County Comprehensive Growth Management Plan. The size and dimension criteria of project facilities are governed by Special Condition 18. Special Condition 19 requires that soil erosion and sedimentation be controlled during construction through such practices as wetting, seeding or sodding of exposed areas. Under Special Condition 20, shoulders of Project roadways are to be stabilized. Pursuant to Special Condition 22, a south-bound turn lane on S.R. 710 is to be constructed at the entrance road to the Project. Permitted uses on the site are set out in Special Condition 23, allowing uses including pulverized coal electric generating unit, coal handling and storage facilities, rail trans- portation facilities, and other associated facilities. The uses permitted are described in greater detail in attachment 4 to that Exhibit F. The ICL Project, as designed, committed to by ICL, and proposed in the site certification application, is consistent and in compliance with the foregoing provisions of the PUD(i) Zoning Agreement. Project Compliance with Martin County Height Limitations On July 23, 1991, the Martin County BOCC adopted a special exception to allow heights in excess of 60 feet for facilities associated with the Indiantown Cogeneration Project. The project, as proposed, is consistent and in compliance with the provisions of this height exception. The PUD(i) Zoning Agreement in Special Condition 13 establishes maximum heights of the various project facilities; and the proposed Indiantown Cogeneration Project, as designed, committed to by ICL and proposed in the site certification application, complies with all of them. Consistency and Compliance of the Water Pipeline, Rail Spur and Site Access Road with Local Land Use Plans and Zoning Ordinances of Martin and Okeechobee Counties The location and construction of the cooling water pipeline is consistent with the policies of the Martin County Comprehensive Growth Management Plan that protect the residential quality of life and prevent impacts to tree canopies and soil erosion from such uses. The Martin County Zoning Code provides, in Chapter 35, Article II, that normal linear distribution facilities, such as the proposed water pipeline, are excepted from the definition of those utilities that are treated as advertised conditional uses. The water pipeline is, therefore, a permitted use in all zoning districts in Martin County. The Electric Utility Element of the adopted Okeechobee County Comprehensive Plan (Okeechobee Plan) provides that support facilities needed to provide electric utility service are deemed consistent with that Plan and are an allowed use in all land use categories. The water pipeline and intake structure are necessary support facilities to the Indiantown Cogeneration Project and, therefore, are consistent with the Okeechobee Plan. The Okeechobee County zoning ordinance allows, in any zoning district, installations necessary to the performance of an essential service, including water systems. Such facilities are to conform to the character of the zoning district. The water pipeline and intake structure are consistent with these provisions of the Okeechobee County zoning regulations. The Martin Plan provides that new rail facilities and roads be designed to minimize impacts on natural systems, which ICL has done in the siting of the rail spur and site access road to serve the site. The proposed location of the site access road is in the basic alignment of a future road between S.R. 710 and West Farm Road shown in the Traffic Circulation Element of the Martin Plan. The site access road to be constructed by ICL fulfills this objective of the Plan. Martin County zoning regulations are silent on the issue of the location of a rail spur or new roads. The proposed access road and rail spur are, therefore, consistent and in compliance with Martin County land use plans and zoning ordinances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Governor and Cabinet, sitting as the Siting Board, enter a final order determining that the proposed Indiantown Cogeneration Project and its site (including the associated water pipeline and intake structure), as proposed in the Site Certification Application, are consistent and in compliance with land use plans and zoning ordinances of Martin and Okeechobee Counties. RECOMMENDED this 5th day of August, 1991, in Tallahassee, Leon County, 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 5th day of August, 1991. COPIES FURNISHED: Douglas S. Roberts Gary P. Sams Attorneys at Law Post Office Box 6526 Tallahassee, FL 32314 (Counsel for Applicant) Richard T. Donelan, Jr. Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kathryn Funchess, Assistant General Counsel David L. Jordan, Assistant General Counsel Stephen Pfeiffer, General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Vernon Whittier R. Bishop Assistant General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399 Fred W. Van Vonno Assistant County Attorney Martin County 2401 Southeast Monterey Road Stuart, FL 34996 John Fumero Attorney at Law South Florida Water Management District 3301 Gun Club Road Post Office Box 24680 West Palm Beach, FL 33416-4680 Roger G. Saberson Attorney at Law 70 S.E. 4th Avenue Delray Beach, FL 33483-4514 (Treasure Coast Regional Planning Council) Peter Merritt Suite 205 3228 Southwest Martin Downs Boulevard P. O. Box 1529 Palm City, FL 34990 (Treasure Coast Regional Planning Council) Ken Plante, General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399 Robert V. Elias, Staff Counsel Division of Legal Services Florida Public Service Commission 101 East Gaines Street Fletcher Building, Room 212 Tallahassee, FL 32399-0850 Brian Sodt Ernie Caldwell, Interim Executive Director Central Florida Regional Planning Council Post Office Box 2089 Bartow, FL 33830-2089 John D. Cassels, Jr. Attorney at Law Post Office Box 968 400 Northwest Second Street Okeechobee, FL 34973 (Counsel for Okeechobee County) James Antista, General Counsel Kenneth McLaughlin, Assistant General Counsel Florida Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, FL 32399-1600 Hamilton S. Oven, Jr., P.E., Administrator Office of Siting Coordination Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Board of Trustees of the Internal Improvement Trust Fund 3900 Commonwealth Boulevard, Room 153 Tallahassee, FL 32399-3000 Honorable Lawton Chiles Governor, State of Florida The Capitol Tallahassee, FL 32399 Honorable Robert A. Butterworth Attorney General State of Florida The Capitol Tallahassee, FL 32399-1050 Honorable Bob Crawford Commissioner of Agriculture State of Florida The Capitol Tallahassee, FL 32399-0810 Honorable Betty Castor Commissioner of Education State of Florida The Capitol Tallahassee, FL 32399 Honorable Jim Smith Secretary of State State of Florida The Capitol, PL-02 Tallahassee, FL 32399-0250 Honorable Tom Gallagher Treasurer and Insurance Commissioner State of Florida The Capitol Tallahassee, FL 32399-0300 Honorable Gerald A. Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, FL 32399-0350
The Issue The basic issue in this case is whether the Respondent's proposed Rule 21E- is an invalid exercise of delegated legislative authority.
Findings Of Fact On August 9, 1991, the Construction Industry Licensing Board published notice in Volume 17, No. 32, of the Florida Administrative Weekly of its intent to adopt a new proposed rule. The full text of the proposed rule reads as follows: 21E-15.020 Registration of Specialty Categories. Locally licensed contractors whose classifications are not of a nature to permit certification, shall be required to register with the Board. The Board's notice of rulemaking in the August 9, 1991, issue of the Florida Administrative Weekly also contained the following additional relevant information about the proposed rule: PURPOSE, EFFECT AND SUMMARY: The purpose of the rule is to replace language that has been repealed in Rule 21E-15.018. This rule would require local contractors who are not certified under provisions of Chapter 489 to register with the Board. The statute already requires that contractors in the state will be certified or registered. The rule makes this requirement clear. RULEMAKING AUTHORITY: 489.108, 489.105(12), F.S. LAW IMPLEMENTED: 489.105(12), 489-117(5), F.S. SUMMARY OF THE ESTIMATE OF ECONOMIC IMPACT OF THE RULE: The implementation of this proposed rule amendment will have minimal impact upon the Board or the Department other than the costs involved in promulgation. There should be no adverse economic impact or benefit to current licensees or potential applicants. It is not anticipated that this proposed rule amendment will economically impact entities falling within the definition of "small business". On September 15, 1991, a copy of the notice filed with the Secretary of State and published in Volume 17, No. 32, of the Florida Administrative Weekly, along with a statement of facts and circumstances justifying the proposed rule, a copy of the statement of the economic impact of the proposed rule, and a comparative statement of federal standards, were filed with the Joint Administrative Procedures Committee. A public hearing was held pursuant to the provisions of Section 120.54(3), Florida Statutes, on September 16, 1991. No new information was received at that hearing and the Respondent board proceeded with the rule as proposed. The Petitioner, Rick Bondurant, is a painting contractor. He has been self-employed as a painting contractor for the past six years, and worked in the same trade for approximately five years before becoming self-employed. He does not presently have any employees in his painting contractor business. In the past he has had one employee. His gross annual revenue from his business in recent years has varied between $20,000.00 and $30,000.00 per year. The Petitioner works primarily in Pinellas County, Florida. In Pinellas County, painting contractors are regulated by a local board known as the Pinellas County Construction Licensing Board. Painting contractors doing business in Pinellas County are required to have a competency card issued by the local construction licensing board. The Petitioner presently holds a countywide certificate of competency, number C-5229, which certifies him to be a painting contractor. To obtain his local competency card, the Petitioner had to pay an application fee of $110.00. Renewal of the local competency card costs $70.00 each year. The Pinellas County Construction Licensing Board is an active board that appears to be doing a good job of regulating the painting contractor trade in that county. The local board administers discipline when appropriate, including the imposition of administrative fines and the suspension and revocation of local competency cards. The Petitioner is not now, nor has he ever been, registered or certified by the State of Florida as a painting contractor. The Petitioner does not wish to be registered or certified by the State of Florida as a painting contractor. If the Petitioner is required to register with the State of Florida as a painting contractor, he will be required to pay application and renewal fees that he is not currently required to pay, and he will also incur certain additional expenses that he does not presently incur. If the Petitioner is required to register with the State of Florida as a painting contractor, he will be subject to state investigatory and disciplinary authority, to which he has not previously been subjected.
The Issue The issue to be resolved in this portion of the proceeding is whether the Siting Board should issue a final certification to the Florida Municipal Power Agency (FMPA) to construct and operate the Treasure Coast Energy Center (TCEC) Unit 1 and an ultimate site capacity determination of 1,200 megawatts of steam electric generating capacity to be located at the TCEC, in accordance with the provisions of the Florida Electrical Power Plant Siting Act (PPSA).
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: FMPA is a joint action agency created under the Florida Interlocal Cooperation Act of 1969 (Section 163.01, Florida Statutes) and the Joint Power Act (Part II, Chapter 361, Florida Statutes). FMPA comprises twenty-nine municipal electric utilities across Florida and was created to allow its member utilities to cooperate with each other on the financing, construction, ownership, and operation of electrical generating resources. FMPA is governed by a Board of Directors consisting of one representative from each of the twenty-nine member cities. Within FMPA, the All-Requirements Project (ARP) was formed in 1986 and currently has fifteen municipal members serving approximately 280,000 customers. Under the ARP, both generating and non-generating members purchase all of their capacity and electrical energy needs from the ARP. Additionally, ARP members with generating plants commit their capacity to FMPA. FMPA will own the TCEC and act as the project manager for construction. The FPUA will operate Unit 1 for FMPA. FMPA's proposed TCEC will be located in the County, approximately five miles west of the City of Fort Pierce and eight miles north of the City of Port St. Lucie. Much of the site's northwestern boundary is determined by a Florida East Coast Railroad line that parallels Glades Cut- Off Road. To the south, the site is bordered by the North St. Lucie River Water Control District's Canal 102 with a Florida Power and Light Company (FPL) electrical transmission line right-of-way across the southern part of property and adjacent to Canal 102. The parcel north of the proposed site is owned by the FPUA and is proposed for a mainland wastewater treatment plant. The land directly east of the site is largely undeveloped industrial park. The proposed plant site itself is located within the Midway Industrial Park. The site is approximately one-half mile east of the Florida Turnpike and one-half mile north of Midway Road. The site contains approximately 68.1 acres. Land use and vegetation at the site consist primarily of pasture used for cattle and horses. Within the pasture land are areas of wet prairie, freshwater marsh, and Brazilian Pepper. The site was historically and most likely pine flatwoods or savannah, based on the characteristics of the surrounding vicinity. However, due to past clearing and agricultural activities, the site has been significantly altered from its natural state and has little native vegetation. Current vegetation reflects the disturbed condition of the site. There were no observations or indications of protected plant or wildlife species on the site. The site is located in an area outside the 500-year flood plain as determined by the Federal Emergency Management Agency. The future land use map in the County's Comprehensive Plan indicates no expected changes in the land use patterns for the site or the adjacent land area in the future, indicating that the site will continue to be compatible with the predominant land use in the immediate Project vicinity. As part of its land development approvals for the site, the St. Lucie Board of County Commissioners determined that the Project was compatible with surrounding land uses. FMPA proposes to construct a nominal 300-megawatt combined cycle electrical generating unit at the site known as Unit 1. FMPA is also requesting an ultimate site capacity determination for a total of 1,200 megawatts of generating capacity to be located at the Project site. Any future electrical generating units after the first two units up to the proposed ultimate site capacity of 1,200 megawatts will require additional zoning review and approval and any other applicable County development authorization at the time those units are proposed for approval. Unit 1 will be dual fuel, with natural gas as the primary fuel and ultra low sulfur diesel fuel oil as a backup fuel. The Project will be a "one-on-one" combined cycle unit. Unit 1 will be comprised of a combustion turbine, a heat recovery steam generator (HRSG), and a single steam turbine generator. In the combustion turbine, fuel is combusted in the form of hot gases which expand through the turbine. The combustion turbine spins the electrical generator that is directly connected, producing power. About half of the energy of the hot gases is extracted when expanded through the combustion turbine. The remainder of the heat is exhausted into a HRSG. These hot gases flow through the HRSG which turns water into steam. The steam flows into a steam turbine, spinning a second electrical generator. The steam is then exhausted into a condenser, where it is condensed back into water and pumped back to the HRSG. The HRSG will also be equipped with duct firing to provide peak power by increasing the steam production in the HRSG, which increases the output from the steam turbine generator. The Unit will also be able to operate in a steam turbine bypass operation where the combustion turbine and HRSG will operate normally but the steam will bypass the steam turbine. This mode of operation will be employed during startups and will also allow unit operation when the steam turbine/generator is not available. Combined cycle generation technology is very efficient because it generates electrical energy from the fuel input, both directly through the combustion turbine and indirectly through capture of the energy in the combustion turbine exhaust gas in the HRSG. This captured energy is used to produce steam to drive the separate steam turbine electrical generator. By reheating the steam between sections of the steam turbine, additional improvements and cycle efficiency can be achieved. Combined cycle technology makes the most of the input fuel, achieving increased efficiency in the generation of electrical energy. It achieves efficiencies of 55 percent in converting fuel into electricity. For these reasons, the modern combined cycle power plant is one of the most efficient power cycles available. If properly maintained and operated, the life expectancy of a combined cycle unit is indefinite. Combined cycle units operating on natural gas, such as Unit 1, are one of the cleanest sources of fossil generation. These units also use considerably less water than traditional steam turbine units, requiring approximately one-half the amount of water used by a steam cycle only unit with similar electrical output. The ultimate site arrangement for the Project allows for the installation of three future similar-sized combined cycle units for an ultimate site certification capacity of approximately 1,200 megawatts. FMPA will clear and develop the entire Project site during the construction for Unit 1. A cooling tower used to cool the steam turbine condenser will be located to the north of Unit 1. The cooling tower will consume approximately 95 percent of all the water used by the Project. For this Project, reclaimed water will be supplied from FPUA's soon-to-be constructed water reclamation facility, which will be located just north of the site. The reclaimed water will be used as cooling tower makeup. Until the water reclamation plant comes online, the new Unit 1 will utilize water withdrawn from the Upper Floridan Aquifer for cooling. The cooling tower design will be a multiple cell, mechanical draft, counter flow cooling tower. Access to the site will be over Energy Drive, which is an access road in the adjacent industrial park. Unit 1 will be interconnected to the FPL electrical transmission system. A new electrical switchyard will be constructed on the site. Two new transmission lines will connect the site to an existing nearby FPL electrical substation and electrical transmission system. The new transmission lines will be installed on new structures for the entire length of each transmission line. Each of the two new lines will be approximately three miles long. One line will parallel Glades Cut-Off Road to the southwest and connect to the existing FPL Midway/Turnpike transmission line. The second line will go west from the Project site, cross Glades Cut-Off Road parallel to an existing road and FPL transmission line, cross over the Florida Turnpike and Interstate 95, and then turn south into the FPL Midway electrical substation. Each corridor is one-fourth mile wide for most of its length. It is expected that a final right- of-way will be acquired parallel to Glades Cut Off Road for one transmission line and a final right-of-way will be acquired for the second transmission line parallel to the existing FPL right- of-way. The new transmission line structures will be self- supporting concrete tubular steel or hybrid concrete-tubular steel poles or a combination of these options. The typical aboveground height of the transmission structures will be approximately one hundred feet. The structures will be placed approximately four hundred to eight hundred feet apart along the route. The lines will be designed to meet the clearance requirements of the National Electrical Safety Code for the minimum ground clearance of twenty-six feet. The two lines will also comply with the Department's electric and magnetic fields limits in Florida Administrative Code Chapter 62-814. These two transmission line corridors were selected as the most direct means with the least impact for connecting into the FPL transmission network. The transmission lines are located in areas zoned for commercial, industrial, and agricultural uses. No housing units will be moved as part of the Project and no residential areas will be impacted. The transmission lines will be constructed completely within or adjacent to existing rights-of-way which provide minimal ecological value. A new natural gas pipeline up to sixteen inches in diameter is proposed to connect the site with the Florida Gas Transmission gas pipeline. This existing gas main is located approximately 3,700 feet southwest of the site, near the Florida Turnpike. A 1,320-foot wide corridor centered on Glades Cut Off Road from the Florida Turnpike to the site is proposed for certification. A seventy-five-foot wide temporary easement for pipeline installation and a permanent forty-foot right-of-way are anticipated. It is expected that the natural gas pipeline will be constructed within or adjacent to the existing Florida East Coast Railroad corridor or adjacent to Glades Cut Off Road. The pipeline will be manufactured according to American Petroleum Institute standards and will be built in accordance with United States Department of Transportation and FPSC safety requirements. The proposed gas pipeline corridor is located in areas zoned for commercial and utility uses. No residential areas will be impacted during construction of the underground pipeline. The existing railroad right-of-way is expected to be maintained as a transportation corridor and provides minimal ecological value. There will be minimal impacts to vegetation in the gas pipeline right-of-way as there will be only minor clearing required for construction. Disturbed lands will be returned to maintained right-of-way condition following construction. Fuel oil for use in the unit will be delivered by truck. A complete fuel unloading, storage, and supply system will be installed at the site. The unloading station will be designed for containment of a fuel spill. Double-walled piping will be used for underground piping running through the unloading station to the storage tank and from the tank to the combustion turbine. A one-million gallon aboveground storage tank will be installed to provide approximately three days of fuel oil at full load operation for Unit 1. This will be a single wall tank fabricated from carbon steel and will be installed inside a dike containment area. The containment area will be provided with a synthetic liner sufficiently impermeable to ensure no oil can escape by infiltrating through the liner into the soil or into surface or groundwaters. The major water use during operation of Unit 1 will involve cooling tower operation. This is the highest volume water consumer for the Project. The cooling system will use approximately 2.52 million gallons per day of treated wastewater, most of which is evaporated to the atmosphere in the cooling process. Other plant non-cooling water uses will include the plant service water system. This system supplies fire water, miscellaneous process uses, and makeup water to the demineralizer system. The demineralizer system provides boiler makeup water and provides water for control of nitrogen oxides when firing oil in the unit. Treated sewage effluent or reclaimed water will be used for cooling tower makeup water. This reclaimed water will be provided by the FPUA wastewater treatment plant proposed to be located north and adjacent to the site. This treatment plant is expected to be online in late 2009. The reclaimed water will be supplied via pipeline across the site. It will be necessary to utilize groundwater for cooling purposes until the wastewater treatment plant is online. Groundwater will also be used when the wastewater treatment is offline and unable to supply treated effluent in the future. Three new onsite wells pumping from the Upper Floridan Aquifer will supply fire water and service water. The wells will supply water to the steam cycle and makeup treatment system and the evaporative cooling makeup. They will also provide a temporary water supply for cooling tower makeup. The wells will be sized so that two of the wells will be able to provide the required water flow at full load with a third well as a backup. An average of 2.95 million gallons per day of groundwater will be used prior to the availability of reclaimed water. An average of approximately 129,000 gallons per day of groundwater will be needed under average annual conditions for non-cooling water needs of the plant. Cooling tower blowdown from Unit 1 will be conveyed to the FPUA wastewater treatment plant for treatment and disposal. Approximately 586,000 gallons per day of cooling tower blowdown wastewater will be returned to the FPUA system for disposal. The cooling tower system will operate at three cycles of concentration when using groundwater, which is considered the maximum practical limit to prevent scaling of heat transfer systems within the cooling system. When reuse water is available, the cooling towers will operate at four cycles of concentration, which further minimizes the amount of water needed for cooling. The cooling system is also designed to minimize the amount of cooling tower blowdown and makeup that is required. Potable water for the site will be provided through an extension from the FPUA municipal water system. This connection will also supply the evaporative cooler needs on the Unit and backup water supply to the plant service water system. Water treatment and other water uses in Unit 1 will generate various process wastewaters. Wastewaters from the onsite demineralizer system, including filter backwash and reverse osmosis reject wastewater, will be routed to an onsite wastewater sump for disposal to the FPUA wastewater treatment plant. The HRSG and boiler piping will be chemically cleaned during commissioning of the new unit and the steam generators will be cleaned infrequently over the life of the unit. Chemical cleaning solutions will be neutralized onsite if required and transported offsite by a licensed waste disposal contractor. Sanitary wastewater will be routed to the FPUA municipal sanitary treatment system for treatment and disposal. The TCEC design contains several features to minimize impacts of project wastewaters to surface and groundwaters. The cooling system design will minimize the amount of cooling tower blowdown and makeup required. There will be no process wastewater discharge to groundwater or surface waters at the plant site. All process and sanitary wastewaters will be returned to FPUA for final disposal. Further, the use of reclaimed and treated wastewater in the cooling system will reduce the quantity of wastewater that would otherwise have to be disposed of to surface and groundwaters. Groundwater consumption will also be reduced through the use of treated wastewater for cooling and by recovering and pumping blowdown water from the HRSG to the cooling towers as makeup rather than sending the blowdown to the wastewater collection and disposal system. Groundwater withdrawals during initial operation of Unit 1 are proposed from the Upper Floridan Aquifer for cooling tower makeup until future sources of treated wastewater become available for the Project to displace groundwater withdrawals. Analyses were performed to determine the impact of these groundwater withdrawals from the non-potable Upper Floridan Aquifer. A three-dimensional aquifer analysis computer model was developed to model these impacts. The computer model was one developed by the United States Geological Survey and approved by the SFWMD. The drawdown in the Floridan Aquifer was simulated for the condition of groundwater withdrawals for Unit 1 of 3.2 million gallons per day. This assessment indicates that the onsite pumping from the Upper Floridan Aquifer would have a small impact on existing legal groundwater users in the area. This modeling predicts that the additional two- and one- foot drawdowns in the Upper Floridan Aquifer due to the plant withdrawals at maximum withdrawal rates would occur at 1.8 and 5.8 miles, respectively, from the Project. This limited impact in drawdown of the Floridan Aquifer and the magnitude of the drawdown increase are not considered significant. The proposed groundwater pumping is not expected to cause salt water intrusion into the Floridan Aquifer. Due to the presence of a 600-foot thick Hawthorne formation and the upward gradient from the Upper Floridan Aquifer to the land surface, no adverse effects to surface wetlands are expected. The SFWMD agreed with these conclusions as indicated in its report submitted to the Department. Impacts on the Upper Floridan Aquifer after the Project begins operation using reclaimed water will be significantly reduced and also cause no adverse impacts. Project construction may require dewatering for placement of subsurface facilities, such as piping, electrical trenches, sumps, and foundations. Dewatering impacts for construction were estimated using site specific geotechnical information. Due to the short duration of the onsite dewatering, it will not affect existing users and will have a minimal and temporary impact on the surficial water table aquifer. No impact is expected to extend beyond the project site boundaries. Of the 68.1-acre Project site, 11.96 acres constitute wetlands. Three onsite wetlands will be lost due to the site development, comprising 11.25 acres of wetlands. The onsite wetlands were delineated in accordance with state and federal guidelines for such delineations. These onsite wetlands are low quality herbaceous wetlands, mainly disturbed wet prairie and freshwater marshes. Cattle have access to the entire site including these wetlands. Natural vegetation and wildlife have been largely eliminated from the Project site and much of the surrounding vicinity due to onsite grazing and past development activities, including residential, industrial, and commercial development. Based on these considerations, the loss of vegetation and associated wildlife habitat at the Project site will be insignificant. FMPA must mitigate for the unavoidable wetlands impacts due to site development. FMPA has entered into a mitigation credit purchase and sale agreement with the Bluefield Ranch Mitigation Bank (located in the County) to compensate for those wetlands impacts subject to state jurisdiction. There will be no impacts to surface waters from operation of the facility. The Project will not withdraw or discharge wastewaters to surface waters. The onsite stormwater management system will be designed to comply with all applicable state and local regulations regarding discharge into offsite surface waters. The stormwater management system will meet the water quality treatment requirements of the Department and SFWMD, as well as the standards of the County. Runoff originating from potentially contaminated areas, such as miscellaneous plant drains and drainage from oil containment areas, will be routed through an oil/water separator. Oil and grease will be removed from the contaminated stormwater, and the treated effluent will be collected and discharged to the FPUA wastewater treatment plant. Captured oil and grease will be properly disposed offsite. Runoff from other potentially contaminated areas, such as storage tank containment areas, will be contained locally. All runoff from the fenced site will be directed to the onsite stormwater detention basin for treatment and discharge in accordance with applicable stormwater rules. Peak stormwater discharges from the Project area are less than the peak stormwater discharges from the pre-Project site for the same storm event. Therefore, the potential for local flooding will not be affected by the Project. During construction, a combination of silt fencing, straw bale sediment barriers, and a stormwater detention pond will be used to control erosion on the site and to reduce the potential for transport of loaded sediment offsite. Grading will be accomplished in phases and each graded area will be seeded and mulched after construction is completed. During operation, stormwater ditches will route stormwater to the onsite stormwater detention area. This basin will meet the stormwater treatment quality and quantity requirements of the Department, SFWMD, and County. Thus, there will be minimal adverse impact from the management and storage of surface waters on the site. Air emissions from the Project are subject to review under federal and state regulations, primarily the Prevention of Significant Deterioration (PSD) permitting program. The Department regulates major air pollution facilities, such as Unit 1, in accordance with the PSD program under Florida Administrative Code Rule 62-212.400. The PSD pre-construction review is required in areas currently in attainment with the state and federal ambient air quality standards. The County is an attainment area for those air quality standards. The state PSD regulations are designed to assure that the air quality in existing attainment areas like the County does not significantly deteriorate or exceed the ambient air quality standards while providing a margin for future industrial and commercial growth. The PSD regulations apply to major stationary sources and major modifications at major existing sources undergoing construction. A major stationary source is defined for PSD permitting purposes as any one of twenty-eight listed major source categories which emits or has the potential to emit one hundred tons per year or more of any regulated pollutant. The Unit 1 Project is one of the twenty-eight major listed category types, a fossil fuel-fired steam electric plant, and has the potential to emit greater than one hundred tons per year of at least one of the PSD regulated pollutants. Unit 1 also exceeds the PSD significant emission levels for several pollutants and is thus subject to PSD review as a major stationary source. The emissions from Unit 1 subject to PSD review include nitrogen oxides (NOx), sulfur dioxide, carbon monoxide (CO), particulate matter (PM), particulate matter less than ten microns in aerodynamic diameter (PM10), and sulfuric acid mist. The PSD review requires an analysis of best available control technology (BACT), an air quality impact analysis, and an assessment of the Project's impacts on general commercial residential and commercial growth, soils and vegetation, and visibility, as well as impacts to air quality in Class I areas. BACT is defined as an air emission limitation based on the maximum degree of pollutant reduction for emissions, determined on a case-by-case basis, considering technical, economic, energy, and environmental factors, as well as other costs for the control of each pollutant. The facilities at the Project subject to BACT review include the combustion turbine, the fuel oil storage tank, a diesel driven fire pump and oil storage tank, a safe shutdown generator and storage tank, and the mechanical-draft cooling tower. A BACT analysis was performed for each of these emission sources. The analysis was conducted using the "top down" methodology described by the United States Environmental Protection Agency (EPA). Based upon this analysis, best available control technologies for controlling NOx emissions from Unit 1 were determined by the Department during its PSD review to be the use of dry low NOx burners within the combustion turbine and selective catalytic reduction (SCR) installed in the HRSG to achieve an emission limit of 2.0 parts per million of NOx when burning natural gas. The Department also determined during its PSD review that when burning fuel oil, BACT to control NOx emissions was the use of water injection with a SCR to achieve an emission limit of 8.0 parts per million. The Department agreed with FMPA's proposed NOx emission limit for this Project. For carbon monoxide emissions, BACT control was determined by the Department during its PSD review to be good combustion controls and practices. Carbon monoxide is a product of incomplete combustion of carbon-containing fuels such as natural gas and fuel oil. Most combustion turbines incorporate good combustion practices based on high temperature and other techniques to minimize emissions of CO. The Department further determined during its PSD review that the BACT for CO was 4.1 parts per million for natural gas firing and 8.0 parts per million for fuel oil firing. A continuous limit of 8.0 parts per million CO on a twenty-four hours basis will also be implemented for both gas and oil firing with or without the duct burner in operation. In addition, an annualized limit of 6.0 parts per million of CO will also be included to recognize that Unit 1 will be operated in the normal natural gas-fired mode. BACT for particulate emissions, both PM and PM10, was determined by the Department during its PSD review to be a fuel selection of natural gas and ultra low sulfur fuel oil and good combustion controls. Sulfur dioxide and sulfuric acid mist control was determined by the Department in its PSD review to be the use of low sulfur fuels, including the limited use of ultra low sulfur diesel fuel. The cooling tower can produce PM emissions in the small amounts of water entrained in the air passing through the cooling tower that can be carried out of the tower, known as "drift" droplets. These droplets contain impurities from the cooling water which can be classified as an emission. FMPA proposed, and the Department accepted during its PSD review, that use of high-efficiency mist eliminators with a maximum guaranteed drift rate of 0.0005 percent constitutes BACT for these drift emissions. Modeling of the impacts of the emissions and plume from the cooling tower indicates that there would be no environmental impact. Finally, the Department concluded during its PSD review that the use of ultra low sulfur fuel oil and limited hours of operations (five hundred hours or less) insures that emissions from both the onsite safe shutdown generator and the diesel engine fire pump will be minimal. An air quality impact analysis was also conducted for the Project-related air emissions, in accordance with the Department's and EPA's air dispersion modeling guidelines. The ambient air quality impact analysis conducted for Unit 1 demonstrates that this Project will not have a significant impact on air quality near the Project site or in the nearest Class I air quality areas, including the Everglades National Park. There are no predicted air quality impacts greater than the PSD significant impact levels. Therefore, under the PSD program, no further air quality impact analysis was required for the Project. The Project is not expected to cause any adverse impacts on vegetation, soils, or visibility in the Project area or at the nearest Class I areas. The Project construction activities may produce air emissions during onsite construction of buildings and from construction equipment exhaust. Particulate matter would be the major source of air pollution during construction. These emissions are expected to be intermittent, short term, and composed of relatively-large particles. These particles tend to settle out quickly and will not generally leave the Project site. Particulate matter emissions will be controlled by watering and application of dust suppressants or ground covers as necessary in active work areas. Construction and operation of the Project will result in significant economic benefits to the County, the region, and the State of Florida. No significant permanent adverse socioeconomic impacts are expected. The anticipated benefits of the Project include primarily the direct and indirect employment and earnings impacts that will be realized in the area from construction and operation. The Unit 1 construction will create approximately 286 temporary jobs, with an estimated payroll of $23.6 million over a twenty-two-month period. It is expected that most of these jobs will be filled by workers already residing in or near the County. The in-migration of construction employees will be small and should not increase the demand for services from local governments and nearby service providers. Information gathered for the Project indicates that more than enough service capacity is available to accommodate the construction work force. Individuals temporarily relocating to the area during construction should not have a problem securing affordable housing. The indirect socioeconomic impacts from construction of the Project include the creation of service jobs in the area to accommodate construction workers. Using an accepted economic multiplier, it is expected that 762 additional jobs may be created as a result of the construction. Expenditure of the construction payroll in the local economy will be passed along to local businesses through spending by construction workers and the governments in the form of taxes. Benefits from operation of the Project will occur from the sixteen operational personnel needed to operate the combined cycle units. The annual payroll for these employees is estimated to be $1.38 million. It is expected that these employees will come from the existing FPUA work force. Since operational personnel tend to live near the facility they operate, the majority of the annual payroll will remain within the local economy. Indirect socioeconomic impacts will include the creation of up to sixteen additional fulltime indirect jobs as a result of the operation of the combined cycle project. By its Order dated July 27, 2005, the FPSC found that there is a need for the proposed Unit 1, taking into account the need for electric system reliability and integrity. The FPSC found that Unit 1 was required to maintain FMPA's winter and summer reserve margins. The FPSC also found that Unit 1 will enhance the reliability and integrity of FMPA's electric system through the use of the highly efficient combined cycle technology with the ability to burn two different types of fuel. The two interconnections to FPL's transmission system would also be a benefit to Unit 1 and allow FMPA to better serve its members in the FPL transmission grid. FMPA's analysis of five proposals from other potential bidders indicated that Unit 1 is the most cost-effective option available. There were no conservation measures taken by or reasonably available to FMPA which would mitigate the need for the proposed Unit 1. Unit 1 was further found by the FPSC to provide the most cost-effective solution to satisfy FMPA's forecast capacity requirements beginning in 2008. The Department, DCA, FPSC, SFWMD, FDOT, FFWCC, TCRPC, and the Cities of Fort Pierce and Port St. Lucie each prepared written reports on the Project. The Department has proposed Conditions of Certification for the Project, which FMPA has agreed to accept and comply with in construction and operation of the Project. No state, regional, or local agency has recommended denial of certification of the Project.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Siting Board grant final certification to the Treasure Coast Energy Center Project under Part II, Chapter 403, Florida Statutes, for the location, construction, and operation of the Project, representing a 1,200 megawatts combined cycle unit site with Unit 1 being a nominal 300- megawatt combined cycle unit, as described in the Site Certification Application and the evidence presented at the certification hearing, and subject to the Conditions of Certification contained in Department Exhibit 2. DONE AND ENTERED this 30th day of March, 2006, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2006.
