Findings Of Fact All parties involved concurred that there is a necessity for expanded generating capacity to serve Gulf's customers and that the two initial units of 500mw each can meet this requirement. The parties stipulated that the power plant site certification application submitted by Gulf (Exhibit 1) deals sufficiently with the issue of operational safeguards and further that DER's proposed conditions of certification contain a condition that adequately addresses that issue. All agencies involved recommended certification; however, DER's recommendation was predicated upon Gulf complying with the general and special conditions or certifications contained in Exhibits 4 and 5. Gulf agreed to all those conditions but three, viz: 1. That the water intake and return lines to the river cross the wetlands on a trestle instead of the causeway proposed by Gulf; 2. A more extensive monitoring program and without termination date than the fixed period monitoring program proposed by Gulf; and 3. Restrictions upon use of herbicides to clear transmission line corridors in excess of those placed by federal and state authorities. In addition DER proposed in general conditions of certification 11(a) and (b) to modify in the future the conditions of certification by any new or more stringent department rule enacted pursuant to Chapter 120 F.S. Gulf objected to this condition of certification and submitted a brief in opposition thereto. I With respect to Item number 1 the proposed causeway will occupy some 8 acres of wetlands. It is proposed to commence the causeway at elevation + 58 feet (above MSL), which is the 25 year predicted high water flood level in the Choctawhatchee River flood plain, and continue the causeway some 2400 feet at this elevation tot he river bank. The base of the proposed causeway will have a maximum width of 130 feet at a point near the river's edge where the causeway height will be 23 feet (T91). The top width is roughly 60 feet (T90) of which 18 feet will be paved surface. To the north of the access road will be a buried electrical service to carry electricity to the pumps. In the causeway to the south of the access road will be buried two intake lines of 30 inch diameter and one water discharge line. Near the river end of the causeway a vehicle turn-around area will be provided. The causeway across the wetlands will run in a southwesterly direction from plant site parallel to the principal direction of flood water flow when the river is out of its banks. Five oval-shaped culverts will be placed in the causeway at the lowest points of natural contour and permit water to pass through the causeway to equalize levels on both sides of the causeway. These culverts will be 6 feet wide by 3 feet 8 inches high. During the wet season water will be standing in most of these culverts. If the causeway were built in the same location, but without culverts, so as to block any flow normal to the causeway, the build up of water on the north side of the causeway would be only 1 or 2 inches at full flood stage of 57 feet (T146).1 Accordingly, the causeway would have little, if any, effect on the water flow in the wetlands over which this causeway passes; and, but for the 8 acres of wetlands eliminated by the construction of the causeway, the ecological function of these wetlands will be virtually unimpaired. As a collector of sediment from the flood waters the flood plain would also be unimpaired by the construction of the causeway (T154). The cost of constructing the causeway as proposed is $216,000. As a condition of certification (Ex 5 D 1 b) DER prescribed "a trestle shall be used for access to the platform for all areas west of station 14 + 00." This includes the access across the wetlands and presumably it is DER's position that the intake and discharge pipes from the Choctawhatchee River shall be placed upon a trestle structure rather than upon a causeway. The only evidence presented with respect to the cost of the trestle structure was presented by Gulf that a concrete pile trestle to support the pipes and access road would cost some $900,000. A creosoted pile trestle to perform the same function would cost approximately $600,000 and to provide fire protection for the piling would cost another $250,000, which would place the cost of either type trestle some four times the cost of the causeway. No maintenance costs or useful life comparisons of the trestle and causeway were presented. Both trestle and causeway would require the same corridor to be cleared thus the construction of either would result in the same ecological damage. Thereafter, however, the vegetation and other indicia of wetlands could return under the trestle. While evidence was presented that the causeway would occupy 8 acres of former wetlands no evidence was presented of the area occupied by the piling of the trestle. It is obvious that this would be a small fraction of the area occupied by the causeway, but not necessarily insignificant. Gulf opposed the trestle concept for two additional reasons. The exposed pipe on the trestle, if of steel, would require painting and would conduct heat from the sun to the water passing through the pipe. Testimony was presented that ecologists not present had evaluated wetlands in general as having an ecological value of between $1,000 and $20,000 per acre per year. If these figures have economic reality all wetland should have a market value of at least $10,000 per acre. Regardless of this if we assume the values presented are real and the cost for the access corridors are correct, the following economic comparisons can be made. The difference in the cost of the causeway and trestle is approximately $700,000. If this money is borrowed by Gulf at 8 1/2 percent interest the interest cost is almost $60,000 per year. Since this would be a valid capital expense this interest cost will be reflected in the rates of Gulf's customers. If the wetlands are ecologically worth $7,500 per acre per year the 8 acres here involved would also have a value of $60,000 per year. In this connection it should be noted that DER's condition of certification specifying trestle across wetlands was based solely on ecological factors and cost was not considered (T308). During the course of the hearing considerable evidence was presented regarding a third alternative for piping water to and from the river, viz. in pipes buried across the wetlands. This evidence was insufficient in numerous aspects to give it viability; however, several aspects of this proposal are worthy of note. Any pipe that is used to carry cooling water requires some degree of slope to permit the pipe to be drained. From a position near SR 179 (where if underground pipes are used the pumps would have to be placed to provide access for maintenance) the pipe could be buried; but, at some point in the flood plain, the pipe would have to be placed upon a trestle to maintain slope to the river's edge (T287). Burying pipes across the wetlands would have the least ecological impact upon the wetlands. Once the pipe path was trenched, suitable bearing material placed in the trench to support the pipe, the pipe laid and the trench back filled the wetlands would return to natural state and the area involved resume most of the characteristics of wetlands. Problems associated with this proposal include providing all-weather access to the inside of the pipe; obtaining suction on pumps located 2400 feet laterally and 12 + feet above the level of the water to be pumped; long periods of shutdown in case a section of pipe required replacement; and routine engineering problems in obtaining a constant slope upon installation. Regardless of the path taken by these pipes some difficulties with corbicula clams are expected. These creatures are endemic to the Choctawhatchee River and will be entrained in the pipe. There they will attach themselves and as they grow restrict the flow in the pipes. Although chlorination at the inlet is expected to help control this problem periodic cleaning of the intake pipes may be required. Accordingly, access to these pipes at all stages of the water level in the flood plain is an important concern. While testimony presented that it was possible to obtain suction with pumps located 2400 feet laterally and 12 feet higher than the level of the water to be pumped, it was also acknowledged that this 2400 feet of 30 inch pipe would "probably" have to be primed before the pumps could pick up suction. (T305-306). Cost and feasibility of providing all weather access to the buried pipes, and of providing capability to prime the remote pumps was not presented. Furthermore the cost associated with burying the pipes across the wetlands was not presented. Accordingly this concept should not be further considered. II With respect to the biological monitoring program to be carried out by Gulf to determine the effects of the power plant on river organisms, DER, as a condition of certification, proposes a program that will continue for the life of the plant regardless of the conclusions reached from such monitoring. Gulf, on the other hand, proposes a monitoring program to commence prior to the operation of Unit I to determine the base line conditions and continue for one year after commencement of operations of Unit I. Thereafter when Unit II comes on line the monitoring program would be reinstituted and continue for one more year. Since Unit II is scheduled to come on line one year after Unit I the monitoring program proposed by Gulf would actually be continuous for about 2 1/2 years. All parties generally agreed that monitoring is required to ascertain the ecological effects of the plant on the aquatic life in the river. One type monitoring is needed to determine the effect of impingement and entrainment at the intake. The intake structure is designed so the plant of the intake screen is parallel to the current flow. This largely eliminates impingement of fish and other aquatic life on the intake screen as the current flow would tend to wash aquatic life off the screen. Since water is drawn into the intake at a speed of 1/2 foot per second those aquatic life in the volume of water entering which are small enough to pass through the screens will be entrained and killed in the filters. It is to determine the quantity and composition of the aquatic life so destroyed that this part of the monitoring program is intended. The second part of the monitoring program involves ascertaining the aquatic life in the river above the plant and below the point of discharge of the returned cooling water in order to ascertain the effect of the discharged water on the aquatic organisms. With respect to the entrainment monitoring there was considerable confusion in the testimony regarding anticipated findings. Gulf's witness stated that at low river and low flow conditions the greatest number of organisms would be entrained. While it is obvious that the greatest percentage of available water will be removed from the river during low flow conditions (since the same quantity or volume of water will be withdrawn as at high flow conditions) it is not obvious that there will be a higher density of aquatic organisms in the river at this same time; and no one so testified. In fact the testimony was that various organisms in the water may change radically (of a magnitude of 1,000 to 1) at various times throughout the year. It would appear that whatever concentration of aquatic organisms that exist in the thalweg of the river would exist in the water withdrawn through the intake pipes and be entrained. Those organisms that exist in slack water portions of the river, swim or otherwise remain out of the current passing near the intake would not be entrained. Thus a sampling point in the current near the intake would provide adequate information on the effects of entrainment. The program proposed by Gulf and contained in Exhibit 21 appears adequate for this determination. With respect to the monitoring required to ascertain the effects of the plant operation on the river ecosystems Gulf proposed sampling only periphyton while DER's condition or certification (Exhibit 5) provides for a sampling to include phytoplankton, zoo plankton, ichthyoplankton, nutrient analysis, benthos and fish. These samples would be taken at points above and below the plant intake and discharge for the obvious determination of the effects on the river ecological system resulting from the discharge of the used cooling water back into the system. In this regard it should be pointed out that the water to be discharged will be treated to remove heat, solids, and other concentrations that would affect compliance with the EPA standards. No valid cost estimates for the monitoring program proposed by either Gulf or DER was presented. One witness upon cross examination gave a ball park "guesstimate" of $50,000 per year for Gulf's proposed program and $100,000 per year for DER's program. The witness expressly disallowed any credit for the accuracy of these figures and accordingly they are disregarded. They are inserted here simply because cost of the end product, electricity, is a factor to be considered in determining under what conditions this certification should be granted. As noted above, Gulf proposes to continue the monitoring program for approximately 30 months (until one year after Unit II has come on line) while DER proposes a monitoring program that will continue for the life of the plant. The biological community sampling program contained in Exhibit 5, part II C should be followed. The time during which these programs should be continued will be discussed under Conclusions. III All parties generally agreed that the use of herbicides was required to clear vegetation from transmission line corridors in wet areas where mechanical equipment cannot operate. Gulf proposes to use Kuron, a herbicide approved by both state and federal authorities. It will be used in wet areas only at a frequency not to exceed once per year and in accordance with manufacturer's instructions admitted into evidence as Exhibit 22. At the hearing DER appeared to take the position that approval by DER should be obtained prior to each time the herbicide is used. The evidence presented clearly shows that Kuron is a safe non- persistent herbicide which, when applied in accordance with instructions, will cause no harm to untargeted vegetation. All of the transmission line routes were not finalized at the time of the hearing but when the remainder of these corridors are finalized there appears to be no reason that Gulf should not provide DER with a map of these corridors indicating thereon those areas in which herbicides will be used. IV No factual evidence regarding general conditions of certification 11(a) and (b) was presented. Accordingly these will be treated solely as a matter of law.
Recommendation It is RECOMMENDED that the application of Gulf Power Company for a power plant site certificate be granted so as to authorize the construction and operation of a coal-fired steam generating electrical power plant near Carryville, Florida in accordance with Exhibit 1. It is further RECOMMENDED that this approval be conditioned upon compliance by Gulf with the conditions of certification contained in Exhibit 4 and 5 except conditions II D 1 (b) (Exhibit 5), general conditions 11(a) and (b), (Exhibit 4), and that condition II C (Exhibit 5) be modified to provide such monitoring shall commence not less than six months prior to completion of Unit I and continue for a period of three years after completion of Unit II. At this time Gulf may petition DER for authority to discontinue said monitoring or to modify same and if such request is not approved Gulf shall be entitled to a hearing at which evidence shall be presented from which a determination can be made whether the benefits of said monitoring program justify the costs involved. DONE AND ENTERED this 19th day of January, 1976, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida (904) 488-9675
The Issue Whether Tampa Electric Company's (Tampa Electric) application for site certification of existing Big Bend Generating Station Units 1, 2, and 3 and authorization to construct and operate the Big Bend Unit 1 Modernization Project should be approved under section 403.5175, Florida Statutes.
Findings Of Fact Based on the evidence adduced at the hearing within the scope of this proceeding, the following findings of fact are made: The Parties Tampa Electric is the applicant for site certification of Units 1, 2, and 3, and for approval of the Modernization Project at its Big Bend Power Station (Big Bend). Tampa Electric provides electric service to more than 734,000 residential, commercial, industrial, and governmental customers in west-central Florida. Its service territory includes all of Hillsborough County and portions of Polk, Pasco, and Pinellas counties. Its existing electric generating units are located at five facilities in the service territory, and consist of diverse generating technologies, including coal and natural gas-fired steam units, natural gas-fired combined-cycle and combustion turbine units, an integrated coal-gasification combined-cycle unit, and renewable solar energy facilities. DEP is the state agency charged with administering the Electrical Power Plant Siting Act (PPSA) contained in part II of chapter 403. DEP's Siting Coordination Office (Siting Office) coordinates the site certification process, receives comments from affected agencies, and prepares the Project Analysis Report (PAR) that contains DEP's recommendation to approve or deny the requested certification and the proposed Conditions of Certification. Intervenor, Sierra Club, is a national non-profit environmental advocacy organization. A key component of Sierra Club's mission is to advocate for the use of clean energy sources. Standing Sierra Club's members are concerned about continued reliance on fossil fuels and related climate change impacts, including sea level rise, increased storm surge, severe weather events, and coastal flooding. In Florida, Sierra Club has more than 30,000 members, including more than 2,000 members who live, work, and recreate in the Tampa Bay area and some near Big Bend in Hillsborough County. Sierra Club promotes outdoor activities, and many of its Florida members organize and participate in outdoor recreation for people of all ages. Sierra Club members who testified at the certification hearing take their own kids and others picnicking, kayaking, canoeing, and on service projects throughout South Florida and the Tampa Bay area. Sierra Club members, who testified at the certification hearing live in the vicinity of Big Bend, are Tampa Electric customers and enjoy outdoor recreation, such as boating in Tampa Bay and visiting the beaches. Sierra Club members who testified at the certification hearing have been injured by and suffered the effects of climate change impacts, including sea level rise, increased storm surge, severe weather events, and coastal flooding. The substantial environmental interests of Sierra Club's Florida members in the Tampa Bay area include the potential adverse effects of climate change to which Tampa Electric's greenhouse gas emissions would allegedly contribute. Thus, a substantial number of Sierra Club's Florida members' substantial interests could reasonably be affected by climate change impacts, including sea level rise, increased storm surge, severe weather events, and coastal flooding in the Tampa Bay area. Climate Change Sierra Club's expert, Harold Wanless, Ph.D., provided testimony on various aspects of the general topic of climate change. Dr. Wanless testified that climate change is a complex, worldwide issue, with contributions from many different sources. The primary is carbon dioxide emissions resulting primarily from human activities, including the combustion of fossil fuels. Dr. Wanless testified about his predictions regarding global sea level rise, storm surge, and hurricane activities in the coming years. He opined that all of this should be taken into account in the design and evaluation of a project such as the Modernization Project, but concurred that there are no current regulatory standards, other than the Hillsborough County Code of Ordinances discussed below, which address these issues. Dr. Wanless conceded that his predictions were more extreme based on a comparison with government data, to which he also cited. He advocated the immediate cessation of burning fossil fuels, and that the solution must happen "one car, one power plant at a time." Dr. Wanless also acknowledged that the timing and landfall of individual storm events, such as hurricanes, cannot be specifically attributed to human-induced global warming. From a regulatory standpoint, the United States Environmental Protection Agency's (EPA) guidance for permitting for greenhouse gases states: As a general matter, GHG emissions contribute to global warming and other climate changes that result in impacts in the environment and society. However, due to the global scope of the problem, climate change modeling and evaluations of risks and impacts of GHG emissions currently is typically conducted for changes in emissions orders of magnitude larger than the emissions from individual projects that might be analyzed in PSD permit reviews. Quantifying these exact impacts attributable to the specific GHG source obtaining a permit in specific places is not currently possible with climate change modeling. Given these considerations, an assessment of the potential increase or decrease in the overall level of GHG emissions from a source would serve as the more appropriate and credible metric for assessing the relative environmental impact of a given control strategy. Tampa Electric Ex. 22, p. 000296, ¶ 2 (quoting PSD and Title V Permitting Guidance for Greenhouse Gases, March 2011). Big Bend Power Station Site The Big Bend Power Station Site (the Site) is an existing electrical generating facility located on approximately 1,722 acres of property owned by Tampa Electric. It is approximately ten miles south of Tampa in the unincorporated southwestern portion of Hillsborough County, also known as Apollo Beach. Its address is 13031 Wyandotte Road, Gibsonton, Florida. Approximately 1,096 acres of the Site is currently certified under the PPSA. The SCA sought certification of an additional 92 acres, for a total of 1,188 acres. The Site has been used for power generation since 1970. The main fossil fuel generating facilities are in the northwestern portion of the Site located on land created by spoil materials from dredging the barge access channel to the Site in the late 1960s. The Site contains four coal and natural gas-fired steam electric generating units, a combustion turbine generator peaking unit, and associated facilities. The Site contains the approximately 20 MW Big Bend I Solar Project that was placed into service in 2017 and an area for the approximately 33 MW Solar II Solar Project, which will be constructed in the future. Each of the four coal and natural gas fired steam electric generating units uses what is known as a Rankine process to generate electricity. That process consists of taking high-pressure water and converting it in a boiler to high-pressure, high-temperature steam. The steam is then utilized in a steam turbine to convert the energy in the steam into mechanical energy. The mechanical energy provided by the steam is then used by the electrical generator associated with the steam turbine to create electrical energy. The steam leaving the steam turbine is condensed back to water by the condenser and pumped back into the boiler to complete the process. Onsite facilities associated with electric generation include: boiler and steam turbine generator buildings; air pollution control equipment; three exhaust stacks; water and wastewater treatment facilities; cooling water intake and discharge structures and canals; coal delivery and storage facilities; gypsum storage areas; coal combustion residuals beneficial use storage and handling facilities; electrical enclosures; transmission lines; substation; natural gas pipeline; and water storage and stormwater management facilities. The Site also contains a Manatee Viewing Center and the Florida Conservation and Technology Center, which is a partnership between Tampa Electric, the Florida Aquarium, and the Florida Fish and Wildlife Conservation Commission (FWCC). Other facilities located on the Site include the STI Ash Beneficiation facility and the Tampa Bay Water desalination plant. Portions of the Site were originally certified pursuant to the PPSA in 1981 for the construction and operation of Unit 4. That certification included associated facilities, which are shared with Units 1, 2, and 3, such as coal delivery and storage areas. Units 1, 2, and 3 were not subject to the PPSA because those units were constructed and operational in the 1970s prior to the effective date of the PPSA. In addition to the Modernization Project, Tampa Electric sought certification of the associated facilities for Units 1, 2, and 3, and an approximately 92-acre adjacent parcel, which would increase the certified site area to approximately 1,188 acres. Proposed Modernization Project The Modernization Project would retire Unit 2 and repower Unit 1 as a clean natural gas-fired two-on-one combined- cycle generating facility on an approximately nine-acre portion of the Site. The Unit 1 boiler would be repowered with a new natural gas-fired combined-cycle unit that would utilize Unit 1's existing steam turbine generator. Upon completion, the repowered Unit 1 would have a nominal net generating capacity of 1,090 MW. Tampa Electric selected two General Electric (GE) combustion turbine generators, each with a nominal generating capacity of 370 MW, for the new combined-cycle unit. Hot exhaust gases would be used to generate steam in two heat recovery steam generators, which would be routed to the steam turbine generator. The combustion turbine generators would be capable of operating in simple-cycle mode. The Modernization Project would include construction of new onsite associated facilities, such as electrical equipment enclosures, a gas metering station, water pumps, fin- fan coolers, transformers, an emergency diesel generator, fire protection systems, hydrogen and carbon dioxide storage tanks, an ammonia skid, and stormwater management systems. Existing Unit 1's steam turbine generator, the boiler/turbine structure, once-through cooling system, condenser, intake/discharge structures, the generator step-up transformer, the auxiliary tower, and various electrical and control systems would be refurbished and used for the repowered Unit 1. Other existing infrastructure and systems such as the demineralized water system, potable water and sanitary wastewater onsite service interconnections with Hillsborough County public services, and existing access roads, would also be used. An administration office building would be located on an approximately 1.4-acre area north of the intake canal and southeast of the plant facilities. Temporary use of several areas for construction laydown and parking, barge delivery of larger equipment, and workspace for the gas pipeline horizontal directional drilling (HDD) activities will cover approximately 44 acres. The existing 230 kilovolts (kV) transmission lines to the onsite substation would be upgraded. A new 230 kV transmission line interconnection would be constructed from the combined-cycle facilities to the existing substation. An elevated pipe bridge across the intake canal would be constructed to carry steam from the heat recovery steam generators to the repowered Unit 1 steam turbine generator. The pipe bridge will also be used to support miscellaneous pipes, cable trays, and a personnel access walkway. A new onsite natural gas pipeline interconnection would run east from the combined-cycle plant to a metering station tie-in along the north side of an existing access road located south of the barge canal. From the metering station, the pipeline would continue east to existing gas supply pipeline interconnection, located east of Wyandotte Road within the onsite railroad spur loop. The Unit 1 once-through-cooling water (OTCW) aging circulating water pumps would be replaced in-kind. The cooling water intake structure (CWIS) would be upgraded to include modified traveling water screens and a fish-return system consistent with applicable federal regulations. Fish-holding tanks for the repowered Unit 1 fish return system would be constructed in the deconstructed Unit 2 CWIS area. There would be no changes to the OTCW system serving Units 3 and 4. Construction activities for the Modernization Project would begin in July 2019, with commercial operation of the facility in simple-cycle mode in June 2021. Commercial operation of the combined-cycle plant would begin in January 2023. Unit 2 would continue to operate firing natural gas from the date of certification until 2021 when it would be retired. Environmental and Other Impacts from Existing Site Utilization Historical aerial photographs of southwestern Hillsborough County showed largely undeveloped lands with agricultural activity. Current land uses include transportation and utilities, agricultural activities along with upland non- forested areas and some wetland areas. The existing Big Bend generating facilities and associated facilities were primarily located on artificial fill dredged from Tampa Bay. These areas were heavily impacted by industrial activities associated with power generation. Other areas of the Site, located south of the existing generating facilities, were less impacted by industrial activities. Those industrial activities began in the 1970s and continue to the present time. The developed nature of the Site resulted in low vegetative diversity, limited wetlands, and limited wildlife habitat. There have been significant air emissions from existing Units 1, 2, 3, and 4 since each began operating. As explained below, the units have been capable of burning natural gas or coal since 2015, and Units 1, 2, and 3 have used only natural gas since mid-2017. Prior to mid-2017, those units' coal emissions were significantly higher than the emissions associated with burning natural gas. The air emissions from Big Bend are regulated by state and federally delegated air permitting programs. Air quality in the area is affected by emissions not only from Big Bend, but from a number of surrounding sources. For example, there are approximately 27 major sources of pollutants in Hillsborough County, including hospitals, airports, transportation, power production, and manufacturing. Ambient air quality standards were established for the protection of health and welfare- related concerns and those standards are currently being met in the area of the Site based on review of recent monitoring information. The SCA included a copy of Tampa Electric's application to DEP for a separate air permit to construct the Modernization Project under Florida's federally approved PSD preconstruction review program. DEP published a Notice of Intent to Issue Air Construction Permit No. 0570039-119-AC (Air Permit) for the Modernization Project on June 16, 2018. Sierra Club submitted comments on June 15, 2018, regarding the Air Permit, which were received and considered by DEP in the final Air Permit. However, no challenge was filed to the Air Permit, which was subsequently issued in final form on July 16, 2018. Big Bend has regulated wastewater discharges. Units 1, 2, 3, and 4 are steam electric generators that use water for cooling purposes. Cooling water is withdrawn from the man-made intake canal through CWIS 1 for Units 1 and 2 and CWIS 2 for Units 3 and 4. After being pumped through the condensers, the cooling water is discharged through outfalls into the man-made discharge canal on the south side of Big Bend. This activity is regulated in accordance with the requirements of National Pollutant Discharge Elimination System (NPDES) Permit FL000817. This NPDES permit is administered by DEP under a federally approved program. The cooling water discharge is the largest volume of surface water discharge from Big Bend. Preexisting stresses to aquatic systems are associated with the electrical generating operations at Big Bend, particularly effects from entrainment and impingement and the thermal effects of the cooling water discharge. The stresses have diminished with the use of fine mesh screens. The cooling water is heated when discharged as a result of cooling the condensers. When the cooling water is drawn from the intake canal by pumps and routed into the units, it contains organisms and fish that become trapped in the water and drawn through the intake structures and through the condensers. This causes mortality from entrainment and exposure to heat or impingement on the screens that are associated with the CWIS facilities. The CWIS for Units 1 and 2 has coarse screens that catch large fish and crabs. The CWIS for Units 3 and 4 has coarse and fine mesh screens that trap much smaller organisms that can be returned, alive, to the bay. These aspects are regulated by the federal Clean Water Act and the NPDES permit. Ecological surveys and studies of impingement and entrainment at Big Bend began in 1970 prior to the start-up of Big Bend Unit 1 and have continued through 2013. The thermal limitations were determined to be protective of indigenous shellfish, fish, and wildlife and were permitted to continue. The fine mesh screen system was determined to constitute best technology for reducing entrainment for Units 3 and 4, which satisfied certain federal Clean Water Act requirements. A renewal NPDES permit application is pending and additional review of these aspects will occur. Solid waste materials are produced at Big Bend as a result of the operations. The combustion of coal produces a number of byproducts, including gypsum solids from the flue gas desulfurization equipment and fly ash from the electrostatic precipitators, both of which are air pollution control devices for the facilities. Bottom ash and slag are also produced. These materials are left over after the combustion process and are the noncombustible materials. Economizer ash is also produced as a result of the process. The fly ash byproduct is conveyed to the Separation Technologies, Inc., facility located on an area leased from Tampa Electric at the Big Bend site. The product is separated and reused by cement companies. Bottom ash is stored in surface impoundments and conveyed hydraulically for beneficial reuse as a raw material for other products. Economizer ash is stored in a surface impoundment, and the slag material is stored for future recycling in bins. Approximately 95 percent of the coal combustion residuals are recycled for beneficial use. Materials that are not useable are sent for disposal to approved landfills. Management of coal combustion residuals, including monitoring and inspection requirements are contained in a Coal Combustion Residuals Management Manual. The manual also contains an emergency response plan, which includes communication protocols for specific local, state, and public notifications. The locations of the facilities for the storage of bottom ash, fly ash, and recycling areas are shown on an aerial in the manual, as is the east gypsum storage area. The active coal combustion residual materials storage areas are equipped with liners to prevent groundwater discharges. The facilities are subject to the federal coal combustion residuals rule. The south gypsum storage area and the economizer ash impoundments are in the process of being closed. The Coal Combustion Residuals Management Manual was developed as a component of an April 10, 2001, consent order between Tampa Electric and DEP. The consent order implemented projects that resulted in all the coal combustion residuals storage units being lined and fully contained to prevent contact of the coal combustion residuals, process water, and stormwater runoff with the environment. Previously, those areas were identified as potential release points to groundwater. Groundwater monitoring did not show any exceedances. Environmental and Other Benefits of the Modernization Project Technology and Emissions The Modernization Project includes repowering of Unit 1 into a highly efficient, state of the art, natural gas- fired two-on-one combined-cycle generating power plant using the existing steam turbine generator for Unit 1 along with other equipment. Repowered Unit 1, a combined-cycle generating facility, would consist of two combustion turbine generators, two heat recovery steam generators, and the existing steam turbine electrical generator from Unit 1. Tampa Electric selected the advanced, large-frame GE Model 7HA.02 combustion turbine generator for the Modernization Project. In combined-cycle mode, these large combustion turbine generators are the most efficient electric generating technology currently available for utility scale power plants. The combined-cycle plants can achieve an efficiency of more than 60 percent, compared to combustion turbine generators alone in simple cycle mode at 35 to 38 percent and coal fired steam electric generating plants at 32 to 42 percent. When a combustion turbine generator is operated alone in simple-cycle mode, hot exhaust gases from the combustion turbine generator are released to the atmosphere. In combined- cycle configuration, the hot exhaust gases from the combustion turbine generator are used to produce steam in the heat recovery steam generator and the steam is used to drive the steam turbine electrical generator to generate approximately 50 percent more electricity without using additional fuel, resulting in the efficiencies. Sierra Club's expert witness, Ranajit Sahu, Ph.D., testified that the use of the existing steam turbine generator would result in a difference in generation compared to the use of a new steam turbine generator. Dr. Sahu testified that the increase in performance would be 13 MW. Tampa Electric's expert witness, Kristopher Stryker, testified that Dr. Sahu's opinion was not based on the latest study, which showed that the performance differential between the new steam turbine generator and the refurbished steam turbine generator was 5 MW, which is less than one-half of one percent of the total output of the facility. Mr. Stryker further testified that since extensive modifications would be required to the foundation to install a new steam turbine generator, a 5 MW increase in performance did not justify those modifications. Bypass stacks would be located between the combustion turbine generators and the heat recovery steam generators, which would allow the initial simple-cycle operation of the combustion turbine generators and also allow simple cycle operation in the future in the event that there is a reason to do so. The refurbished steam turbine generator would only be used when the facility is operating in combined-cycle mode. The capacity of the combined-cycle unit is a nominal 1090 MW which would be the output at an average ambient temperature of 70 degrees Fahrenheit. Each combustion turbine generator has a nominal capacity of 370 MW, and the steam turbine generator has a nominal capacity of 350 MW. The combined-cycle facility would be designed with technologies to control air emissions. The two combustion turbine generators would be equipped with dry low-nitrogen oxide combustors to control nitrogen oxide air emissions. The heat recovery steam generators would be equipped with selective catalytic reduction systems to further reduce nitrogen oxide emissions. Emissions of other regulated air pollutants, including sulfur dioxide, volatile organic compounds, and particulate matter, would be controlled through the use of low sulfur, clean burning natural gas as the only fuel fired in the combustion turbine generators, along with advanced combustion equipment and operational practices. The Modernization Project would minimize greenhouse gas emissions through the repowering of Unit 1 with clean burning natural gas, highly efficient combined-cycle electric generating technology, the retirement of Unit 2, and further reductions by dispatching other existing units in the system less often. The Modernization Project was evaluated during the Air Permit process. It was determined that the PSD program was not applicable because the Modernization Project would not result in a net increase in emissions from the Big Bend facility. Based upon the evaluation process for systemwide emissions that was conducted in accordance with the applicable requirements, it was determined that the addition of the Modernization Project would result in a substantial net reduction in emissions in most cases, including a net decrease in greenhouse gas emissions of over two million tons per year. The Modernization Project is projected to result in significant reductions in emissions compared to the continued operation of Units 1 and 2 firing either coal or natural gas as a primary energy source. R. James Rocha, Tampa Electric's expert in resource planning, prepared projections using a Planning and Risk simulation model showing system-wide yearly energy produced or megawatt-hours (MWh) and the resultant yearly systemwide British Thermal Units (BTUs) or fuel use. First, for the case in which the Modernization Project is not constructed and Units 1 and 2 continue to operate into the future; and second, for the case in which the Modernization Project is constructed and Units 1 and 2 cease operations in 2021. The model is essentially an hourly dispatch simulation of the units in the Tampa Electric generating system taking into account a number of operational, fuel, probabilistic outage and planned maintenance outage scenarios, and other variables to develop a reliable estimate of the future operations of the system to meet the hourly needs of customers. Using a complex model, such as that used by Mr. Rocha, is a standard practice in the utility industry for forecasting the hourly dispatch of the system. Outputs from the modeling and emission limits in existing permits, standard emission factors for natural gas, and heat input numbers, were then provided to William Karl, an expert in air quality analyses. Mr. Karl developed calculations of projected emissions reflecting continued operation of Units 1 and 2 burning coal and natural gas, or coal only into the future, compared to projected emissions from the operation of the Modernization Project into the future. In Tampa Electric Exhibit 27, Mr. Karl showed the current carbon dioxide emission rates for Units 1 and 2 operating with coal as a primary energy source and operating with natural gas only, compared to the expected performance of the Modernization Project. The emission rates were expressed in pounds per MWh of energy produced. The Modernization Project carbon dioxide emission rate was projected to be 737 pounds per MWh of energy produced. Units 1 and 2 operating on natural gas only, each had a carbon dioxide emission rate of 1,250 pounds per MWh. Units 1 and 2 operating primarily on coal each had a carbon dioxide emission rate of 2,180 pounds per MWh. Both comparisons demonstrated substantial reductions in the carbon dioxide emission rate of the Modernization Project compared to Units 1 and 2. With Tampa Electric Exhibit 28, Mr. Karl showed the projected Tampa Electric systemwide reduction in greenhouse gas and criteria pollutant emissions if the Modernization Project was constructed compared to Units 1 and 2 continuing to operate primarily on coal during the period of 2017 through 2046. This resulted in a projected reduction in greenhouse gas emissions of 50,500,000 tons and a reduction in emissions of criteria pollutants of 213,000,000 pounds during the period of 2017 through 2046. With Tampa Electric Exhibit 29, Mr. Karl showed the projected Tampa Electric systemwide reduction in greenhouse gas emissions and all criteria pollutants with the Modernization Project constructed compared to operating Units 1 and 2 on natural gas only. This resulted in projected reductions in greenhouse gas emissions of 18,500,000 tons and projected reductions of all criteria pollutants of 21,000,000 pounds over the period of 2017 through 2046. Sierra Club disputed that reduction credit should be given for the comparison of projected emissions from the Modernization Project to projected emissions from Units 1 and 2 continuing to operate using coal as a primary energy source. Sierra Club argued that Tampa Electric's decision to stop using coal in Units 1 and 2 was made prior to filing the SCA, and existing permits were modified to reflect that fact. Therefore, no benefit should be claimed for reduced air emissions resulting from a comparison of emissions of Units 1 and 2 burning coal projected into the future. However, testimony from Paul Carpinone confirmed that if the Modernization Project is not constructed, Tampa Electric intends to continue operating Units 1 and 2, and a return to coal use remains an option. Mr. Rocha explained that based on pricing, it could make sense for the customers to return to coal in Units 1 and 2 if the Modernization Project is not approved. Mr. Carpinone also testified that permit modifications would be required to return the units to coal use. If it is assumed that coal would not be used at all in the future, the construction of the Modernization Project would result in substantial decreases in air emissions. These are projected as decreases of 18,500,000 tons of greenhouse gases and 21,000,000 pounds in all other criteria pollutants as compared to continuing to operate Units 1 and 2 on natural gas only. Although the evidence may support downward adjustment to the projected reductions in emissions resulting from the comparison of the Modernization Project to continuing Units 1 and 2 on coal based on the time it could take to obtain the necessary permit modifications to return to coal, these projected reductions should still be considered as environmental benefits of the Modernization Project. Therefore, the preponderance of the evidence demonstrated that the Modernization Project would operate at a substantially lower emission rate for greenhouse gases than the emission rates for Units 1 and 2 on natural gas or on coal. Water Use The most substantial water use for the Modernization Project would be the OTCW supply from Hillsborough Bay. The existing station is currently authorized to withdraw a combined 1,440 million gallons per day (MGD) for cooling purposes. Primarily as a result of the retirement of Unit 2 in 2021 eliminating Unit 2's cooling water requirements, the Modernization Project would reduce cooling water withdrawals by 25 percent to a maximum of 1,080 MGD. Environmental benefits associated with the reduced cooling water withdrawals would include reductions in impingement and entrainment associated with reduced intake flows and velocity. Also, reduced fish mortality because of new fish friendly modified traveling screens and fish return system that would be installed at CWIS 1, where there previously were no such facilities. The fish return system would allow aquatic organisms washed from the modified traveling screens to be discharged back into Hillsborough Bay at a location that would minimize the potential for re-impingement. Domestic and sanitary wastewater service for Big Bend with the Modernization Project would be provided by interconnection with the Hillsborough County wastewater system similar to existing operations. Potable water for the facility would also be provided by Hillsborough County, but the volume of backup service water use would be significantly reduced. There would be a number of changes to the service water uses. These would include elimination of the auxiliary cooling tower associated with Unit 2, reduction of flue gas desulfurization system makeup water from county effluent, use of county effluent for wash down associated with the combined-cycle unit, and rerouting and reuse of several other relatively minor water streams. Wastes Nonhazardous and potentially hazardous waste generated during operation of the Modernization Project would be managed in accordance with applicable federal, state, and local regulations. The use of natural gas, which does not produce solid wastes, would further reduce the need for onsite solid waste management units for disposal areas, and any waste generated would be disposed of at an offsite permitted solid waste or hazardous waste management facility. Eliminating coal use at Units 1 and 2 along with the Modernization Project, there would be a decrease in the use of coal at the Site. This would lead to production of less coal combustion residuals and reduce the need for storage and handling of those residuals. Stormwater Management The Modernization Project would include onsite stormwater management. The stormwater management system would serve areas that include the combined-cycle and combustion turbine generator areas, onsite construction laydown and parking areas, barge unloading and laydown area, new office building area, and remote construction laydown area. Tampa Electric's stormwater system design expert, Darrel Packard, was the lead civil engineer for the Modernization Project. Mr. Packard testified about the purpose of the stormwater management system and its design and benefits. The stormwater management system would convey runoff from developed areas in a controlled manner and attenuate the stormwater peak flow such that the discharge is not greater than the current discharge conditions. The system would provide water quality benefits through retention and Best Management Practices to minimize and control the discharge of nitrogen and phosphorus. The stormwater system would also address the potential for flooding by the use of appropriately sized pipes and ditches to convey runoff from developed areas and discharge runoff into stormwater ponds that meet the regulatory requirements. Offsite flooding would also be prevented by attenuating the peak discharges that might be increased due to development. Regulatory requirements applicable to the stormwater system include required sediment basins, Best Management Practices such as silt fences, the requirement to control a one-inch runoff from the developed areas, provision of a littoral zone of approximately 35 percent of the pond surface area, and the retention of a one-inch volume of runoff for at least 120 hours prior to discharge. Half of that volume would be contained over 60 hours after the rainfall event. In addition, the design would be sufficient to control the 25-year stormwater runoff event, which is roughly 8.2 inches over 24 hours. The Modernization Project would include installation of a floodwall surrounding repowered Unit 1 to protect it from flooding. Mr. Packard's testimony provided details about the design and dimensions of the floodwall. Tampa Electric Exhibit 12 showed the details of the elevation of the floodwall. Beginning from a published datum referred to as NAVD88 or North American Vertical Datum of 1988 reflected at 0.00 elevation on the exhibit, the existing grade was shown at elevation 8.3 feet above NAVD88. The top of the floodwall was depicted at elevation 18.029 feet above NAVD88, meaning that the total elevation of the flood protection would be 18.029 feet above NAVD88. The design basis for the floodwall height took into account the elevation of the 100-year flood for facilities that are in a defined federal Emergency Management Agency (FEMA) AE Zone. Based on current FEMA flood maps, the Modernization Project is in the AE Zone, and the 100-year flood elevation is 12 feet above NAVD88. Another 2.5 feet were added to the 12-foot, 100-year flood elevation. The Hillsborough County Code of Ordinances specified the use of the American Society of Civil Engineers Standard for Flood Resistant Design and Construction (ASCE Standard) 24-05. The Modernization Project would fall into Category 3 for the ASCE Standard 24-05, adding two feet. The applicable Hillsborough County Ordinance required an additional six inches, resulting in a total minimum flood protection height of 14.5 feet. The design of the floodwall was 18.029 feet above NAVD88 and the amount by which it exceeded the 14.5-foot regulatory requirement provides a margin to account for uncertainties such as sea level rise. The FEMA flood maps for the area are under revision and have not yet been finalized. Under section 403.5185, a proposed revised map not yet in effect is not applicable to this SCA. However, a comparison of the currently effective and the preliminary flood maps showed that the flood zone for the Modernization Project would not change. Sierra Club's expert, Dr. Sahu, opined that since the Modernization Project concerns electric power generation facilities, there should be heightened scrutiny and flood protection requirements. However, Dr. Sahu's testimony did not dispute the Modernization Project's compliance with the applicable regulatory requirements. The Hillsborough County Code of Ordinances defines "critical facilities" as those for which even a slight chance of flooding might be too great. That definition of "critical facilities" does not include power plants. The design details for the floodwall followed ASCE Standard 7-10 for the minimum design load requirements for buildings and other structures. The floodwall was designed considering two design cases. When the cases were considered, essentially three checks were made for wall stability, which included values obtained from the geotechnical report plus calculations performed by the geotechnical engineers. Dr. Sahu questioned the design basis of the floodwall in terms of its ability to withstand the forces that the wall was designed to withstand. His criticism was mainly based on a lack of ability to review final detailed design plans. DEP's witness, Cynthia Mulkey, explained in her testimony that final design plans are not required for every aspect of the project. Ms. Mulkey testified that it was not unusual that final detailed design plans were not available at the time the application was being processed. The applicable nonprocedural requirement pertaining to this issue was contained in the Hillsborough County Code of Ordinances, Part A, SCC 8-1-Hillsborough County Construction Code, and the FEMA flood map. Dr. Sahu's testimony did not dispute the Modernization Project's compliance with these regulatory requirements. Socioeconomic Benefits Construction and operation of the Modernization Project is expected to provide significant benefits to the economy of Hillsborough County and the State of Florida through increased employment and revenues during construction and operation of the project. Direct benefits from construction will include employment and payroll for an average monthly employment of approximately 250 workers, as well as the purchase of equipment and materials. Approximately $300 million of construction expenditures for materials and services would occur during the construction period from 2019 through approximately mid-2023. Approximately $210 million would be spent in the local area. Once the repowering project begins operations, tax revenues and operational and maintenance expenditures would be in the range of $18 million per year. The majority of construction wages would be spent within Hillsborough County. Anticipated annual property tax revenue and sales tax revenue would be $8.4 million and $1.26 million respectively. The peak construction employment would be approximately 500 workers, and this would occur in the most labor intensive construction period in 2021. Land Use and Zoning The applicable Hillsborough County future land use (FLU) map designation for the Modernization Project and barge offloading areas is Heavy Industrial. Electrical generation plants and expansions of electrical power plants are among the allowed uses within this FLU designation. The remote construction laydown area is designated Community Mixed Use-12 which allows for light industrial multipurpose use. Areas associated with the Modernization Project are located within either Manufacturing or Planned Development-Industrial zoning districts. On June 1, 2018, Hillsborough County found the additional 92 acres, as well as the proposed activities, consistent with its existing land use plans and zoning ordinances. Impacts from Construction of the Modernization Project Environmental Impacts The site certification process includes only state, regional, and local requirements. Federal permits issued by the state under federally approved or delegated permit programs that were sought, or modified, in association with the Modernization Project are processed separately from the SCA. These include the Air Permit, the NPDES Permit, and the United States Army Corps of Engineers (USACE) Section 404 application. Tampa Electric would apply for applicable federally delegated stormwater discharge permit(s), including requirements for a comprehensive Stormwater Pollution Prevention Plan, prior to construction. During construction, stormwater would be managed to meet the requirements of those federal permits. As previously found, the stormwater management system for the Modernization Project would be designed to treat the first inch of runoff from the 25-year, 24-hour storm event and would meet federal, state, regional, and local requirements. During operation, contact stormwater runoff from the power block and equipment areas would be collected and treated through a new oil/water separator and routed to a new contact water transfer sump prior to discharge to the existing coal field pond. Noncontact stormwater runoff from the facility area would be collected and routed to a stormwater detention pond for treatment prior to discharge to the barge canal. The Modernization Project would create a new internal outfall for the reverse osmosis (RO) concentrate, and the OTCW discharge from Unit 2 would cease. The NPDES discharge compliance point would include the combined cooling water discharge from Units 1, 3, and 4, and the treated effluent from the flue gas desulfurization treatment plant, as well as the RO concentrate to Hillsborough Bay, a Class III marine water, via the onsite discharge canal. Low-volume industrial wastewater generated by the Site primarily includes floor and equipment drains, water treatment equipment waste, and service cooling tower and boiler blowdown. These waste streams are routed to a system of lined ponds, a reclaimed water storage pond, and bottom ash ponds for containment or reuse within the facility, and the same practice would continue with the Modernization Project. Groundwater monitoring around the water storage ponds is required under the facility's industrial wastewater permit No. FLA017047 and would continue to be a requirement of the Site License. The Modernization Project would include construction of stormwater detention ponds during the beginning stages of the Modernization Project development activities to provide stormwater storage and treatment for onsite runoff during construction. Because of the disturbed nature of the Site, preparation would require minimal clearing and grading. Erosion, sedimentation, and runoff control measures, both pre- and post-construction, will meet applicable nonprocedural requirements of part IV of chapter 373, Florida Statutes, Florida Administrative Code Chapter 62-330, and applicable Hillsborough County land development regulations. Best Management Practices (BMPs) and a sediment control plan would also be implemented during site construction. Monitoring of construction runoff and the operation and maintenance of BMPs for erosion and sediment control would be undertaken as required by applicable construction permits, such as the NPDES Generic Permit for Stormwater Discharge from Large and Small Construction Activities contained in Florida Administrative Code Chapter 62-621. Under current operation, the Site does not withdraw groundwater for plant processes or potable water uses nor will the Modernization Project use groundwater as a source. The Site relies on treated effluent from Hillsborough County and recycled water for its process needs. There would be no consumptive use nor anticipated impact to groundwater supply due to the Modernization Project. Site preparation and facility construction activities may have potential short-term effects on groundwater in the shallow surficial aquifer in the immediate area of the combined- cycle facilities from temporary dewatering activities. Because of the temporary and localized nature of potential dewatering activities and the direction of the flow from east to west of the Floridan aquifer in the area, construction of the Modernization Project is not anticipated to have significant adverse impacts to on or offsite groundwater resources. Construction and operation of the Modernization Project would impact approximately 55 acres of the approximately 1,188-acre certified Site. The Site has been utilized for industrial purposes for the past 50 years. Therefore, most of the land was previously disturbed and not prime habitat for wildlife species. Both uplands and wetlands are located onsite but are considered low-quality and contain a mixture of nuisance exotic and native species. Construction of the Modernization Project would not result in permanent impacts to wetlands. In fact, over 99 percent of the wetlands and surface waters onsite would remain intact. An approximately 0.18-acre portion of a low- quality wetland is proposed to be temporarily cleared for workspace during the construction of the gas pipeline interconnection. Once construction is complete, this area would be allowed to revegetate naturally. Other potential impacts proposed include: an additional 0.02 acres of permanent impact to surface waters/water bodies for the construction of a new pipe bridge across the existing intake canal; temporary impacts in the barge canal due to the spud columns; and approximately 0.01 acres of a man-made, roadside ditch would be filled for construction of a new culverted driveway for access to the remote construction laydown and/or parking area. The wetland proposed for clearing is considered a lower quality wetland, and impacts would be offset by the purchase of mitigation bank credits or onsite mitigation, if necessary. Secondary impacts to preserved wetland communities would be minimized by maintaining an average 25-foot and minimum 15-foot buffer surrounding wetlands where no construction activities would occur. Impacts from the in-water work during construction of the intake canal pipe bridge would be mitigated with the use of turbidity barriers. Existing Units 3 and 4 and the repowered Unit 1 would continue to discharge through separate outfalls into the Site's 4,500-foot discharge canal that leads to Hillsborough Bay through an inlet at the north end of Apollo Beach. The south side of the discharge canal is bordered by a sheet pile seawall that serves as a thermal barrier to the adjacent shallow waters in North Apollo Bay, minimizing thermal impacts to surface waters in this area. Adverse changes in hydrologic or water quality conditions in the existing intake and discharge canals or Hillsborough Bay are not expected to result from operation of the Modernization Project. The existing Site's OTCW discharge provides a primary thermal refuge for the local population of West Indian manatees, and seagrass along the southern boundary of the discharge canal provides food for the manatees that winter in the canal. The area outside the discharge canal and the canal itself are designated as manatee protection areas under both state and federal laws. The Site's NPDES permit includes a manatee protection plan that contains requirements for timely communication with manatee recovery program personnel and for production of adequate warm water during the winter months. Because of these required measures, projected reductions in the effluent temperature and total thermal loading in the discharge canal from operation of repowered Unit 1 and retirement of Unit 2 are unlikely to adversely impact manatees. Noise Noise impacts resulting from construction activities are expected to be minimal and mitigated by the distance between the construction area of the power block and the site boundaries, and the fact that the construction activities will take place mainly on an existing power plant site that is currently operational. Average noise levels during the loudest construction activities are projected to be between 62 and 66 A-weighted decibels (dBA) at the northern property boundary, and noise levels from construction activities will be lower at all other property boundaries. Under the rules of the Hillsborough County Environmental Protection Commission, Chapter 1-10, Noise Pollution, construction activities occurring during the hours of 7:00 a.m. and 6:00 p.m. are exempt from the noise rule if reasonable steps are taken to abate the noise. The construction activities, however, are expected to be below the 70 dBA level applicable to industrial land use category. Noise resulting from the operation of the Modernization Project would not have any adverse impact on the existing noise levels in the general vicinity of the Big Bend Power Station. Archeological and Historic Sites Based on results of cultural resource assessments conducted in 1979, no significant archaeological or historical sites were found or are expected to be found at the Site. A survey conducted in January of 2018 did not identify any previously recorded archaeological sites. In the event that any archaeological resources are encountered during construction activities, the Florida Division of Historical Resources will be notified and consulted to determine appropriate actions. Safety Issues Shawn Copeland, vice president of safety for Tampa Electric, testified on safety issues associated with Big Bend. Tampa Electric has safety programs at the different generating stations, as well as for the operating areas. The programs are designed to provide a safe environment for workers and compliance with regulations and standards. The safety programs apply to Big Bend and are designed to create a safe work environment and also public protection. There is an Emergency Action Plan for Big Bend. The plan provides basic information for initial emergency actions. Actions and procedures for reporting emergencies, procedures for emergency evacuation, procedures to account for personnel after an evacuation, procedures to be followed by employees performing rescue or medical duties, and procedures to be followed by employees remaining to conduct critical plant operations prior to evacuation. The Emergency Action Plan primarily focuses on events related to fires, medical, natural gas, and severe weather emergencies. There are specific emergency evacuation plans for each type of event. The storm preparedness procedures contained in the Emergency Action Plan do not apply to hurricanes, but rather storms that are more sudden. Hurricane preparedness is addressed in the Big Bend Station Storm Preparedness Procedures, revised May 9, 2018, which consists of approximately 151 pages of information and checklists applicable when hurricanes or hurricane-related events are approaching. Emergencies of all types are addressed by the All Hazard Notification Flowchart, which provides protocols for communications and activities to be taken during the occurrence of suspicious activities or an unexpected emergency at the plants. In addition to the foregoing, Big Bend has an Integrated Contingency Plan dated December 2018. The purpose of the Integrated Contingency Plan is to focus on emergency prevention and preparedness and provide rapid, effective protection of human health and the environment during an emergency caused by a chemical release or other physical hazardous release. The objectives of the Integrated Contingency Plan are to establish: (i) means of recognizing an emergency; rapid notification procedures to avoid delay in response; an organizational structure for accountability; initial assessment and response procedures to isolate and stabilize the incident; (v) sustained response procedures to mitigate the consequences of the incident; and (vi) post- incident investigations to document and eliminate the incident causes. The scope of the plan covered involves hazards or releases associated with hazardous waste, oil, and petroleum products, substances subject to the emergency planning and Community Right-to-Know Act requirements, federal workplace requirements for emergency response plans, Florida requirements governing release prevention and response for pollutants stored in regulated tanks, radiation hazards, and federal and state requirements for response to an air release of asbestos containing fibers. The plan provides protection from these hazards for both workers and the public. The Coal Combustion Residuals Management Manual assists the facility in maintaining compliance with permits and environmental procedures and preventing unauthorized releases to the environment, while maximizing beneficial use of this material and minimizing generation of additional wastes. Mr. Stryker detailed the design standards that apply or would be used in the design of the Modernization Project including the natural gas pipeline lateral. The generating facility additions were designed by an internationally recognized engineering firm with significant experience designing similar projects throughout North America and Florida, including one for Tampa Electric. Sound engineering practice will be utilized, and all applicable laws and regulations and required codes, such as the Florida Building Code and the Hillsborough County Code requirements, would be met. The natural gas lateral, in addition to adhering to good engineering practices and industry requirements, is subject to review by the Florida Public Service Commission (PSC). The PPSA and SCA Process The PPSA created a centrally coordinated process for review and evaluation of electrical generating facilities at the state and local level on the basis of adopted standards and recommendations of the reviewing agencies. DEP, through the Siting Office, is responsible for coordinating and processing the SCA and maintaining the Site License for the life of the electrical generating facility. The SCA was filed with DEP on April 18, 2018. DEP submitted the application to DOAH, along with a proposed schedule for processing the SCA for approval by the ALJ. The SCA was distributed to the reviewing agencies that review the SCA for completeness and ultimately submit agency reports containing recommendations. Each agency conducts a review as to the compliance of the SCA with the statutory and administrative requirements within the respective agencies' jurisdiction and also provides a report containing a recommendation of approval or denial of the Modernization Project, including any proposed Conditions of Certification. Following initial agency review, the SCA was determined to be incomplete, and additional information was requested. Tampa Electric submitted the additional information requested on June 27, 2018, and the SCA was determined to be complete on July 19, 2018. The Southwest Florida Water Management District (SWFWMD), the FWCC, the Florida Department of Transportation (DOT), the Florida Department of Economic Opportunity (DEO), the Florida Department of State, Division of Historical Resources (DHR), and the DEP were the state and regional agencies reviewing the SCA. As required by the PPSA, the local government in whose jurisdiction the project would be located was also included. Hillsborough County, as well as the Environmental Protection Commission of Hillsborough County, reviewed the SCA. The state, regional, and local agencies supported the Modernization Project. The agencies determined that the Modernization Project would comply with all applicable non- procedural requirements when constructed and operated in conformance with the proposed Conditions of Certification. SWFWMD, FWCC, DOT, DHR, and Hillsborough County proposed Conditions of Certification to which Tampa Electric agreed. DEP prepared a PAR summarizing the substantive review by the agencies, including DEP's review of the applicable environmental regulations by all the relevant divisions within DEP. The PAR contains DEP's recommendation, taking into account all of the information received from Tampa Electric and the various reviewing agencies, that the SCA should be approved subject to the proposed Conditions of Certification. Tampa Electric has agreed to accept the proposed Conditions of Certification in the PAR. With the exception of DEP, the reviewing agencies waived their rights to be a party and to participate in the certification hearing by not filing the notice required to do so. Need Determination The SCA was filed and processed under the provisions of section 403.5175, which provides for the certification of existing, uncertified units that were not previously subject to the provisions of the PPSA. The SCA requested certification of existing Units 1, 2, and 3, and the authorization to repower Unit 1 and retire Unit 2 after continuing to operate until 2021. Units 1, 2, and 3 are not subject to the PPSA unless the steam electric generating capacity was expanded after the effective date of the PPSA. The preponderance of the evidence established that repowering Unit 1 would not result in an expansion of the steam electric generating capacity, Unit 2 would continue to operate as currently operated until its retirement in 2021, and Unit 3 would continue to operate as currently operated into the future, so there is no expansion of steam electric generating capacity at either of those facilities. The Unit 1 repowering project would use the existing steam turbine electrical generator that is currently used for Unit 1. The electrical generating rating or capacity of a facility is found on a nameplate on the generator. The nameplate capacity of existing Unit 1 steam turbine electrical generator is 445.5 MW. The maximum steam electric generating capacity of the combined-cycle, after the repowering, would be 360 MW. This is because the steam produced in the heat recovery steam generators would limit the amount of electricity that can be produced using the steam. It would be well below the existing capacity of the steam turbine electrical generator for Unit 1. There would not be an expansion of steam electrical generating capacity as measured by the nameplate of the existing Unit 1 steam turbine electrical generator. Therefore, the provisions of the PPSA that require a need determination are not triggered. Ms. Mulkey testified that DEP defines "expansion" as an increase in steam generation. In addition, early in the process, DEP's Siting Office considered the PPSA applicability issues. DEP evaluated the information provided by Tampa Electric and consulted with PSC staff to determine whether the Modernization Project should be subject to a need determination. Because the combined-cycle facility that would repower Unit 1 has the capacity to produce sufficient steam to generate only 360 MW, no expansion of steam turbine electrical generating capacity would occur. The PSC staff and DEP agreed that proceeding under the provisions of section 403.5175 was appropriate. Mr. Stryker testified to other projects where repowering did not go through the site certification process. One such project involved the repowering of Tampa Electric's Gannon Station with a combined cycle unit using the existing steam turbine electrical generator for the repowered units. A similar repowering project was carried out by then Progress Energy at the Bartow facility. The Progress Energy project, although not increasing steam electric generating capacity as a result of the repowering, actually used an entirely new steam electric generator unit. Notwithstanding this difference, DEP concluded that the Bartow repowering project was not subject to the PPSA because it did not increase steam electric generating capacity. Sierra Club's expert, Dr. Sahu, testified that Tampa Electric's consideration of only the steam-generated electricity to determine whether a need determination was required was factually incorrect and misleading. He opined that evaluating only the steam component of the generation for purposes of determining the applicability of the PPSA was not appropriate since the PPSA is 40 years old and the manner in which electricity is generated has changed during that period of time. Instead, he suggests that the entire facility should be looked at, rather than just the steam component. However, Ms. Mulkey testified that for purposes of evaluating whether the Modernization Project would be subject to a need Determination, the focus was on whether there would be an expansion of steam electrical generating capacity defined as an increase in steam generation. It was appropriate to focus on the steam generation component, and the PSC did not express any concerns with this approach. Notice, Outreach, Public Hearing All notices required by the PPSA were provided. Tampa Electric published the required Notice of Filing for Electrical Power Plant Site Certification on May 7, 2018, Notice of Land Use Consistency Determination on Electrical Power Plants Site on June 20, 2018, Notice of Certification Hearing on November 2, 2018, and Notice of Rescheduled Certification Hearing on January 4, 2019, all in the Tampa Bay Times. DEP notices were published in the Florida Administrative Register. Tampa Electric engaged in public outreach for the SCA. The public outreach included newspaper notifications, direct mailing, establishing a website for the SCA, and a phone number to call for questions concerning the SCA. There was one direct mailing consisting of 8,948 direct letters to landowners within three miles of the Site and in accordance with the PPSA. Tampa Electric representatives also met with various elected officials to discuss the Modernization Project. A copy of the SCA was made available for public inspection at Tampa Electric's main office on Tampa Street in downtown Tampa, and a copy of the SCA was also made available at the John F. Germany Hillsborough County Public Library on Ashley Street in Tampa. Those SCAs were updated as appropriate. As part of the certification proceeding, a public hearing was held on March 11, 2019, from 6:00 p.m. until 9:00 p.m. At the hearing, comments were accepted from those who expressed a desire to speak. Thirty-nine members of the public testified. Twenty-six members of the public spoke in opposition, and 13 members of the public spoke in favor of the Modernization Project. The public hearing was recorded and transcribed as part of the Transcript of the certification hearing.
Recommendation Based on the foregoing Finding of Facts and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a final order approving certification of Tampa Electric Company, Big Bend Power Generating Station's, existing Units 1, 2, and 3; and authorizing the Modernization Project, subject to the Conditions of Certification contained in DEP's Project Analysis Report. DONE AND ENTERED this 30th day of May, 2019, in Tallahassee, Leon County, Florida. S FRANCINE M. FFOLKES Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2019. COPIES FURNISHED: Lawrence N. Curtin, Esquire Kevin W. Cox, Esquire Holland & Knight, LLP 315 South Calhoun Street, Suite 600 Tallahassee, Florida 32301 (eServed) Kelley F. Corbari, Esquire Michael J. Weiss, Esquire Kirk S. White, Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Diana A. Csank, Esquire Julie Kaplan, Esquire Aaron Messing Matthew E. Miller, Esquire Sierra Club 50 F Street Northwest, 8th Floor Washington, DC 20001 (eServed) Kathleen Riley Sierra Club 50 F Street Northwest, 8th Floor Washington, DC 20003 Theresa Lee Eng Tan, Esquire Florida Public Service Commission 2450 Shumard Oak Boulevard Tallahassee, Florida 32399 (eServed) Andrew S. Grayson, Esquire Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399 (eServed) Marva M. Taylor, Esquire Hillsborough County 601 East Kennedy Boulevard Tampa, Florida 33601 (eServed) Vivian Arenas-Battles, Esquire Southwest Florida Water Management District 7601 U.S. Highway 301 Tampa, Florida 33637 (eServed) Kimberly Clark Menchion, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399 (eServed) Jon F. Morris, Esquire Department of Economic Opportunity 107 East Madison Street, Mail Station 110 Tallahassee, Florida 32399 (eServed) Richard Thomas Tschantz, Esquire Environmental Protection Commission 3629 Queen Palm Drive Tampa, Florida 33619 (eServed) Sean Sullivan Tampa Bay Regional Planning Council 4000 Gateway Center Boulevard, Suite 100 Pinellas Park, Florida 33782 Jason Aldridge Division of Historical Resources Department of State R.A. Gray Building 500 South Bronough Street Tallahassee, Florida 32399-0250 Carlos A. Rey, Esquire Department of State R.A. Gray Building 500 South Bronough Street Tallahassee, Florida 32399-0250 (eServed) Ronald W. Hoenstine, Esquire Department of Environmental Protection Douglass Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Andres Restrepo, Esquire Sierra Club 520 Carpenter Lane Philadelphia, Pennsylvania 19119 Joshua Douglas Smith, Esquire Sierra Club 2101 Webster Street Oakland, California 94612 (eServed) Kathryn E.D. Lewis, Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Tara R. Price, Esquire Holland and Knight, LLP 315 South Calhoun Street, Suite 600 Tallahassee, Florida 32302 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
The Issue The issue to be determined in this case is whether the Governor and Cabinet, sitting as the Siting Board, should grant certification to New Hope for the expansion of the Okeelanta cogeneration facility to a total net steam electrical generating capacity of 140 megawatts (”MW”).
Findings Of Fact The Applicant The Applicant, New Hope Power Partnership, is a Florida partnership that owns the existing Okeelanta cogeneration Facility. Ex. 1 at 1-1, 3-1. New Hope will also own the Project. See id. The Site The Facility is located in an unincorporated area in western Palm Beach County, Florida. Ex. 1 at 2-1; Ex. 4 at 6; T It is approximately six miles south of South Bay and two miles west of U.S. Highway 27. Id. The Facility is located on a site (the ”Site”) that is approximately 82.1 acres in size. Ex. 1 at 2-1; Ex. 4 at 8; T 19. The Site is adjacent to Okeelanta Corporation’s existing sugar mill, sugar refinery, and sugarcane fields. Ex. 1 at 2-1; Ex. 4 at 6; T 17, 20. The Surrounding Area There are large buffer areas around the Site. See Ex. 1 at 2-1, 2-2, 2-4; Ex. 4 at 6; T 17-18. Almost all of the land within five miles of the Site is used for agricultural purposes (sugarcane farming). Id. The community nearest the Site is South Bay. Ex. 1 at 2-2; Ex. 4 at 6; T 17. The nearest home is more than 3.5 miles northeast of the Site. Ex. 1 at 2-4; Ex. 5 at 9; T 17-18. The Facility is adjacent to an existing electrical substation (Florida Power & Light Company’s Okeelanta Substation). See Ex. 1 at 1-2. An existing electrical transmission line connects the Facility to the substation. Ex. 1 at 3-1. The Existing Facility The Facility uses biomass fuels (e.g., bagasse from the sugar mill; clean wood waste) to generate steam and up to 74.9 MW of electricity (net). Ex. 1 at 1-1, 3-1; Ex. 4 at 6-7; T 18. The Facility supplies steam to the sugar mill during the sugarcane harvest (October through March) and it supplies steam to the refinery throughout the year. Ex. 1 at 1-2, 3-1; Ex. 4 at 7; see T 18. Excess steam from the Facility is used to generate electricity, which is sold to utility companies, including Florida Power & Light Company. Ex. 1-3; Ex. 4 at 7; See T 50-51. The existing Facility includes three steam boilers, one steam turbine/electrical generator, a cooling tower, an electrical switchyard, materials handling and storage facilities for biomass fuels, and ancillary equipment. Ex. 1 at 2-1, 3-1; Ex. 4 at 7; T 20-21. The Expansion Project The Expansion Project will increase the Facility’s electrical generating capacity by 65 MW (net), creating a total generating capacity of 140 MW (net). Ex. 1 at 1-1, 1-3, 2-1; Ex. 4 at 7; T 18. The Expansion Project will involve the installation of a new turbine/electrical generator, a cooling tower, and related equipment at the Site. Ex. 1 at 1-3, 2-1; Ex. 4 at 8; T 19. Construction of the Expansion Project Approximately 0.5 acres of the Site will be occupied by the new equipment that will be installed for the Expansion Project. Ex. 1 at 2-1; Ex. 4 at 8; T 19. The construction of the Project will occur in disturbed upland areas that already are used for industrial operations. Ex. 1 at 3-2, 4-1; Ex. 4 at 9; T 20. No construction will take place in any wetland, wildlife habitat, environmentally sensitive area, or 100-year flood plain. Ex. 1 at 2-2, 2-18, 4-1; Ex. 4 at 9; T 20. No new electrical transmission lines will need to be built to accommodate the additional electrical power generated by the Expansion Project. See Ex. 1 at 3-1, 6-1. During construction, there will be a temporary increase in sound levels due to the heavy equipment associated with the construction process. Ex. 1 at 4-9 through 4-10; Ex. 5 at 9; T 42-43. Given the remote location of the Site, the sounds generated by the construction of the Expansion Project will not interfere with human activities or otherwise cause a nuisance at any residential locations. Id. The construction of the Expansion Project will result in a temporary increase in traffic on some roads near the Site, but these roads will continue to operate at acceptable traffic levels. Ex. 1 at 4-8 through 4-9; Ex. 5 at 9; T 42. Operation of the Expansion Project The Facility currently operates at its full capacity during the sugarcane harvest. See Ex. 30, Technical Evaluation at 2. The Expansion Project will enable the Facility to operate at its full capacity year-round. See Ex. 1 at 3-1 through 3-2; Ex. 30, Technical Evaluation at 2. Although the Facility will generate more electricity after the Expansion Project is completed, the basic operation of the Facility will not change. Ex. 4 at 10; Ex. 5 at 6; T 22. The Facility has a water use permit issued by the South Florida Water Management District, which authorizes the Facility to use water from the Miami/North New River Canal System, the surficial aquifer, and the Floridan aquifer. Ex. 1 at 3-11; Ex. 5 at 7; T 40-41. The Okeelanta Corporation also may provide water to the Facility, in accordance with the SFWMD water use permit for the Okeelanta Corporation’s sugar mill. Ex. 5 at 7; T 41. After the Expansion Project is completed, the amount of water used by the Facility will increase, commensurate with the increased use of the Facility. Ex. 5 at 7; DEP Ex. 2, Staff Analysis Report at 3; T 41. The additional water will be obtained from the cooling pond/rock pit located at the adjacent sugar mill. Id. In March 2005, the SFWMD issued a water use permit that allows the Okeelanta Corporation to increase the amount of water provided to the Facility from 0.4 mgd to 2.0 mgd. Ex. 37; see T 41. The Facility’s stormwater and process water are routed to a 600-acre area that is divided into four percolation basins. Ex. 1 at 3-16; Ex. 5 at 8; T 41. Each basin is used on a rotating basis--i.e., the basin is used for percolation for one year and then it is used for growing sugarcane for three years. Ex. 5 at 8; T 41. Each percolation basin is designed to hold all of the Facility’s process water, plus all of the contact and non-contact stormwater runoff from a 100-year, three-day storm event. Id. The Facility does not discharge any stormwater or process water to any surface water. Ex. 1 at 5-9; Ex. 5 at 8; T 41-42. The Facility’s use of the percolation ponds has not caused and is not expected to cause any violations of any ground water quality standards. Ex. 5 at 8. The Facility generates fly ash and bottom ash from the combustion of biomass fuels. Ex. 1 at 3-16, 5-10; Ex. 5 at 9; T 42. These materials are taken to a landfill for disposal. Id. The operation of the Expansion Project will not have any significant impacts on traffic. Ex. 1 at 5-17; Ex. 5 at 9; T 42. The local roads will continue to operate at an acceptable level of service. Id. Air Quality Regulations The Facility must comply with New Source Performance Standards (”NSPS”) and Best Available Control Technology (”BACT”) requirements, both of which impose strict limits on the Facility’s airborne emissions. See Ex. 1 at 3-5; Ex. 30, Technical Evaluation at 3. The Facility also must comply with Ambient Air Quality Standards (”AAQS”) and Prevention of Significant Deterioration (”PSD”) standards, which establish criteria for the protection of ambient air quality. Id. The Facility previously was reviewed and approved under the PSD program. Ex. 1 at 3-5; Ex. 5 at 6; Ex. 30, Technical Evaluation at 2; T 39-40. The DEP has determined that the Expansion Project is not subject to PSD pre-construction review. Ex. 5 at 6; Ex. 30, Technical Evaluation at 5; T 38. The cooling towers will be the only new source of air pollution associated with the Expansion Project. Ex. 1 at 3-5; Ex. 5 at 6; T 38. The water droplets leaving the cooling tower will evaporate, causing small amounts of particulate matter to enter the atmosphere near the Site. Ex. 5 at 6; T 38. However, the emissions from the cooling tower are so small that the cooling tower is exempt from the permitting requirements established by the DEP. Id. Best Available Control Technology A BACT determination is required for each pollutant for which PSD review is required. Ex. 1 at 3-5; Ex. 5 at 7; DEP Ex. 2, Staff Analysis Report at 15. BACT is a pollutant- specific emission limit that provides the maximum degree of emission reduction, after taking into account the energy, environmental, and economic impacts and other costs. Ex. 1 at 3-5; Fla. Admin. Code R. 62-210.200(38). As part of its BACT analyses for the Facility, DEP determined that mechanical cyclone dust collectors and an electrostatic precipitator (”ESP”) will control the Facility’s emissions of particulate matter, a selective non-catalytic reduction system (”SNCR”) will control oxides of nitrogen (”NOx”), use of low-sulfur fuels will control sulfur dioxide emissions, and proper facility design and operating methods will control other pollutants. Ex. 1 at 3-6 through 3-8; Ex. 30, Draft Permit at D-1; T 40. Accordingly, these air pollution control systems and techniques are utilized at the Facility. Id. The Facility also uses an array of continuous emissions monitors to ensure that the Facility is continuously in compliance with the BACT emission limits. Ex. 1 at 5-14; Ex. 30, Draft Permit at E-1 through E-2. Protection of Ambient Air Quality The EPA has adopted ”primary” and ”secondary” National Ambient Air Quality Standards (”NAAQS”). See Ex. 1 at 2-21. The primary NAAQS were promulgated to protect the health of the general public with an adequate margin of safety. See Ex. 1 at 2-21; see also 42 U.S.C.A. § 7409(b) (1997). The secondary NAAQS were promulgated to protect the public welfare, including vegetation, soils, visibility and other factors, from any known or anticipated adverse effects associated with the presence of pollutants in the ambient air. Id. Florida has adopted EPA’s primary and secondary NAAQS, and has adopted some Florida AAQS (”FAAQS”) that are more stringent than EPA’s NAAQS. See id. The Facility’s potential impacts on ambient air quality were evaluated by DEP, based on the continuous operation of the Facility at full load, following completion of the Project. Ex. 30, Technical Evaluation at 4. DEP concluded that the maximum impacts from the Facility will not cause or contribute to any violations of AAQS. Ex. 1 at 5-10 through 5- 14; Ex. 5 at 6-7; Ex. 30, Technical Evaluation at 4; Ex. 5 at 6; T 39. Other PSD Analyses The PSD program provides protection for those areas that have good air quality. See Ex. 1 at 2-22; Ex. 30, Technical Evaluation at 3-4. Different areas of Florida have been designated as PSD ”Class I” or ”Class II” areas, depending upon the level of protection that is to be provided under the PSD program. Id. In this case, the Project is located in a PSD Class II area. Id. The nearest PSD Class I area is the Everglades National Park (”Everglades”), which is approximately 92 kilometers (”km”) south of the Site. Ex. 1 at 2-22. The DEP’s analyses demonstrate that the Facility’s impacts on ambient air quality will not violate any applicable PSD requirement for the Class I and Class II areas. Ex. 1 at 5- 14; Ex. 5 at 6; Ex. 30, Technical Evaluation at 4; DEP Ex. 2, Staff Analysis Report at 16-17; T 39. Compliance With Air Standards New Hope has provided reasonable assurance that the Expansion Project and the Facility will comply with all of the applicable air quality standards and requirements. Ex. 5 at 7; Ex. 30; DEP Ex. 2, Staff Analysis Report at 17; T 38-40. Environmental Benefits of the Project The Expansion Project will provide environmental benefits. Ex. 1 at 7-3 through 7-4; Ex. 5 at 10; T 43-44. For example, the Project will be capable of producing approximately 65 MW (net) of electricity in Southeast Florida, which needs new electrical generating capacity. Ex. 1 at 7-3 through 7-4; Ex. 5 at 10; T 43-44. The Expansion Project will also enhance fuel diversity by using renewable biomass fuels to generate electricity. Id. Over 20 years, the Project may displace the use of approximately 5,600,000 barrels of oil worth nearly $170,000,000 (assuming oil prices of $30 per barrel). Id. In addition, the Expansion Project will beneficially reuse clean wood waste, which otherwise would likely be placed in a landfill for disposal. Ex. 1 at 7-4; Ex. 5 at 10; T 44. The Facility receives wood waste and biomass materials from Miami-Dade County, the Palm Beach County Solid Waste Authority, and approximately 25 private recycling companies, thus assisting them with their solid waste management programs. Ex. 5 at 10; T 44. The Facility also burns melaleuca trees that have been removed pursuant to land clearing programs for the eradication of this nuisance species. Ex. 5 at 10. Socioeconomic Benefits of the Project The Expansion Project will provide jobs for an average of 70 construction workers during the 12-month construction phase of the Project. Ex. 1 at 7-1 through 7-2; Ex. 5 at 10; T 43. Approximately $3.5 million will be paid in wages for construction employees working on the Expansion Project. Id. Consistency with Land Use Plans and Zoning Ordinances The proposed use of the Site is consistent and in compliance with Palm Beach County’s comprehensive land use plan and zoning ordinances. Ex. 1 at 2-2 through 2-4; Ex. 4 at 16; Ex. 23; Ex. 24; Ex. 38; Ex. 39; T 28-29. The Facility and Project have both been reviewed and approved by the Palm Beach County Board of County Commissioners. Ex. 4 at 11-12; Ex. 23; Ex. 24; T 23-25. Compliance with Environmental Standards New Hope has provided reasonable assurance that the Facility and Project will comply with all of the nonprocedural land use and environmental statutes, rules, policies, and requirements that apply to the Project, including but not limited to those requirements governing the Project’s impacts on air quality, water consumption, stormwater, and wetlands. Prehearing Stipulation at 24, paragraph 5.B.3.; Ex. 5 at 11; DEP Ex. 2, Staff Analysis Report at 22; T 44-45, 60. The location, construction and operation of the Facility and Project will have minimal adverse effects on human health, the environment, the ecology of the State’s lands and wildlife, and the ecology of the State’s waters and aquatic life. Ex. 5 at 12; DEP Ex. 2, Staff Analysis Report at 20; T 45-46, 61-62. The Facility and Project will not unduly conflict with any of the goals or other provisions of any applicable local, regional or state comprehensive plan. Ex. 4 at 16; Ex. 23; Ex. 24; Ex. 38; Ex. 39; T 28-29. The Conditions of Certification establish operational safeguards for the Facility and Project that are technically sufficient for the protection of the public health and welfare. Ex. 5 at 13; T 46-47, 61. Agency Positions and Conditions of Certification On November 18, 2004, the PSC issued an Order (No. PSC-04-1105A-FOF-EI) granting New Hope’s petition for determination of need for the Expansion Project. Ex. 22; DEP Ex. 2, Staff Analysis Report at 4-6, 12-13. The PSC determined, consistent with the criteria of Section 403.519, Florida Statutes, that the Expansion Project is needed. Id. The DEP, DOT, DCA, and SFWMD all recommend certification of the Expansion Project, subject to the Conditions of Certification. Prehearing Stipulation at 10-11, 13-16. New Hope has accepted, and has provided reasonable assurance that it will comply with, the Conditions of Certification. Prehearing Stipulation at 24-25, paragraph V.B.4; Ex. 5 at 11-12; T 45, 61-62. Public Notice of the Certification Use Hearing On September 29, 2004, New Hope published a ”Notice of Filing of Application for Electrical Power Plant Site Certification” in the Palm Beach Post, which is a newspaper of general circulation published in Palm Beach County, Florida. Ex. 31; see also Ex. 5 at 16; T 49. On October 1, 2004, the Department published ”Notice of Receipt of Application for Power Plant Certification” in the Florida Administrative Weekly. Ex. 35; see also Ex. 5 at 16; T 49. On February 2, 2005, New Hope published notice of the Certification Hearing in the Palm Beach Post. Ex. 33; see also Ex. 5 at 16; T 49. On February 4 and 11, 2005, the Department published notice of the Certification Hearing in the Florida Administrative Weekly. Ex. 36; see also Ex. 5 at 16; T 49. The public notices for the Certification Hearing satisfy the informational and other requirements set forth in Section 403.5115, Florida Statutes, and Florida Administrative Code Rules 62-17.280 and 62-17.281(4). Prehearing Stipulation at 24, paragraph V.B.2,3; Ex. 5 at 17; T 49, 63-64.
Conclusions For Petitioner New Hope Power Partnership (”New Hope”): David S. Dee, Esquire Landers & Parsons 310 West College Avenue Tallahassee, Florida 32301 For the Florida Department of Environmental Protection: Scott A. Goorland, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order granting certification for the expansion of the Okeelanta Cogeneration Facility to a total capacity of 140 MW (net), in accordance with the Conditions of Certification, DEP Exhibit 3. DONE AND ENTERED this 31st day of March, 2005, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2005. COPIES FURNISHED: David S. Dee, Esquire Landers & Parsons 310 West College Avenue Tallahassee, Florida 32301 Scott Goorland, Esquire Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 James V. Antista, General Counsel Florida Fish and Wildlife Conservation Commission 620 South Meridian Street Tallahassee, Florida 32399-1600 Roger Saberson, General Counsel Treasure Coast Regional Planning Council 70 Southeast 4th Avenue Delray Beach, Florida 33483 Jennifer Brubaker, Esquire Public Service Commission Division of Legal Services 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0863 Leslie Bryson, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399 Sheauching Yu, Esquire Department of Transportation 605 Suwannee Street Mail Station 58 Tallahassee, Florida 32399-0458 Sarah Nall, Esquire 9341 Southeast Mystic Cove Terrace Hobe Sound, Florida 33455 Denise M. Nieman, Esquire Palm Beach County Attorney's Office 302 North Olive Avenue, Suite 601 West Palm Beach, Florida 33401-4705 Raquel A. Rodriguez, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-1001 Kathy C. Carter, Agency Clerk Department of Environmental Protection Office of General Counsel Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact At all times material to this proceeding, the Respondent, Joseph Davidow, was licensed as a general contractor with the Florida Construction Industry Licensing Board. On August 3, 1978, the Respondent entered into an agreement with Rubin Zimmerman, Vice-president of Gilbert's Fish Camp, Inc., located in Monroe County, to construct an addition and make alterations to an existing motel. The contract specified the work to be done, for which the Respondent was to receive $190,000 with a completion date within 90 days of the contract. The Respondent was recommended to Mr. Zimmerman, the complainant in this case, by Mr. Zimmerman's architect on the project, Seymore Drexler, AIA. The Respondent originally bid the project at $210,000 of which $19,000 was allocated for electrical work to be performed by a qualified sub-contractor. The complainant believed that the original bid for electrical work was too high and suggested that the Respondent contact Mr. Charles Katzman of Kay Electric, a long-time friend of the complainant. Mr. Katzman was able to obtain his permits on the project despite being unlicensed in Monroe County, a fact which was not known by either the Respondent or the complainant at the time. Mr. Katzman bid $13,500 on the project which was $5,500 under the lowest bid received by the Respondent and was, therefore, awarded the project. During the course of the construction, numerous problems arose which affected the progress on the site. The complainant and his business partner, Harry Gilbert, made numerous requests for changes in the original plans and specifications. The "extras" requested by the complainant and/or his business partner were generally done orally on the site and at times through direct negotiations between the complainant and the Respondent's sub-contractors or workmen. The changes in the specifications included modifications to the flooring, patio, laundry and storage room, grade beams, pilings, walkways, stairs, patio wall, diningroom walls, linen closet, bathroom windows and walls, outside planter, doors and support system for electrical cooling. A dispute arose between the Respondent and the complainant and Mr. Gilbert over the cost and the extent of the change orders. Additionally, the Respondent was concerned because the extras requested by the complainant diverted his sub-contractors and/or workmen from the basic project to areas not contemplated by the contract. Certain of the electrical work performed by Mr. Katzman was negotiated separately from the original contract. Romex an illegal electrical wire was used on the project, but this was not known by the Respondent nor was Romex used in any of the electrical work specified in the original plans. Due to the continuing dispute over the cost of the extras and the diversion of workers for additional "extras," the Respondent sent the Monroe County Building and Zoning Department on April 12, 1979, a notice of withdrawal as general contractor on the subject project. Since that time liens have been filed against the project by suppliers of materials and/or labor which have been satisfied by the corporation. Civil litigation involving Kay Electric also has been instituted. The building inspection reports maintained by Monroe County concerning this project are incomplete.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department dismiss the complaint filed against the Respondent, Joseph Davidow. DONE and ORDERED this 26th day of November, 1980, in Tallahassee, Leon County, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1980. COPIES FURNISHED: Barry S. Sinoff, Esquire 2400 Independent Square One Independent Drive Jacksonville, Florida 32202 Arthur W. Karlick, Esquire 1454 NW 17th Avenue Miami, Florida 33125 Nancy Kelley Wittenberg, Secretary Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. Case No. 80-382 JOSEPH DAVIDOW, CG C007463 Respondent. /
The Issue The issue is whether Respondent Department of Environmental Protection (DEP) may issue to Respondent Republic Services of Florida, L.P. (Republic), permits to construct and operate a Class III landfill, pursuant to Permit Numbers 266830-003-SC/01 and 266830-004-SO/01, as modified as set forth below.
Findings Of Fact Background On June 30, 2009, Republic filed with DEP an application for a permit to construct and operate a Class I landfill (Application). In response to DEP's request for additional information dated July 30, 2009 (RAI), Republic filed a response dated September 14, 2009 (RRAI), upon receipt of which, DEP deemed the Application to be complete. References to the Application typically include the Application, RRAI, and other materials, such as reports, plans, and drawings, that are part of the Application, as well as three subsequent modifications, which are detailed below. Republic revised several reports, plans, and drawings in the RRAI; references to these items, such as the Engineering Report and Operation Plan, are to the versions contained in the RRAI. On November 13, 2009, DEP filed its intent to issue construction permit #266830- 003-SC/01 (Construction Permit) and intent to issue operation permit #266830-004-SO/01 (Operation Permit; collectively, the Permit). Republic Services, Inc. and its affiliates constitute the second largest waste-management operator group in the United States. Their market capitalization is just over $11 billion. The capitalization of the affiliate formed to operate the subject landfill is doubtlessly less than $11 billion, as the record does not suggest that any significant part of the overall capitalization of Republic Services, Inc., and its affiliates would be at risk in the operation of the proposed landfill. Republic presently owns and operates a Class III landfill in the City of Bartow, Polk County, known as the Cedar Trail Landfill. The oldest part of this landfill is an unlined Class III landfill of 52.5 acres in the center of the property owned by Republic. Immediately west of this unlined landfill is a 30.7-acre lined Class III landfill, which comprises cells 1-4. The Cedar Trail Landfill is located at 2500 West State Road 60, about three miles west northwest of the intersection of State Road 60 and State Road 98, which marks the center of Bartow. The landfill is immediately west of E.F. Griffin Road. Petitioners Frost live on E.F. Griffin Road, about one mile north of the Cedar Trail Landfill. Petitioner Highland Lakes Estates Homeowner's Association serves a residential subdivision known as Highland Lakes Estates. Highland Lakes Estates occupies a notch at the southeast corner of Republic's property. Aerial photographs reveal the changing land use of the land on which Cedar Trail Landfill is situated. Fifty years ago, the land was vacant with indications of agricultural uses. At the site of the proposed landfill were mostly citrus groves on the west side and some rangeland or vacant land on the east side. Ten years later, a large area immediately northeast of the subject land reveals the effects of strip mining for phosphate. Three years later, in 1971, the mined area had greatly expanded to encompass all or nearly all of the subject site and much of the surrounding area, including the western half of what would become Highland Lakes Estates. By 1980, the pits had been refilled and active mining had ceased, and the streets had been constructed for what is now known as Highland Lakes Estates. By 1993, about three dozen homes had been built in this residential, large-lot subdivision. 9. The Cedar Trail Landfill was constructed in the early 1990s as an unlined construction and demolition debris landfill. Now designated an approved landfill for Class III waste, this facility accepts such waste as is defined by Florida Administrative Code Rule 62-701.200(14) (2010), which includes construction and demolition debris, yard trash, processed tires, asbestos, carpet, paper, glass, furniture (but not white goods), plastic, and other materials not expected to produce leachate that presents a risk to the public health or environment. A zoning/land use map reveals that the land for which the proposed landfill is proposed is designated "sewage/borrow pits/spray fields." Highland Lakes Estates occupies land that is designated single-family residential with a density of one dwelling unit on up to 2.49 acres. The Cedar Trail Landfill has been the subject of three recent environmental resource permits (ERPs). Appendix R to the Application is an individual ERP issued in April 2009, and Appendix R to the RRAI is a conceptual ERP issued in March 2005. The April 2009 ERP mentions that the entire stormwater project was conceptually approved by an ERP issued on September 10, 2008, but this ERP is not part of the record. In any event, these ERPs approve the construction of a comprehensive stormwater or surface water management system for the entire Republic property. In particular, the April 2009 ERP permits the construction of a borrow pit at the southeast corner of the Republic property and a modification of the perimeter ditch/wet retention system. The April 2009 ERP states that the permitted stormwater management system will provide total onsite retention for runoff from the 100-year, 24-hour storm. The April 2009 ERP requires 2.8 acres of compensation for 2.8 acres of encroachment in the 100-year floodplain. Specific Condition 14 prohibits excavation of the borrow pits to a clay confining layer or limestone bedrock layer. Specific Condition 20 prohibits the mixing of leachate with stormwater and provides that, if leachate enters stormwater, the stormwater becomes leachate. Presumably reflecting this permitting activity, Application Drawing 4, as revised in the RRAI, is the site plan, including the unlined Class III landfill, the four-cell lined Class III landfill immediately to the west of the unlined landfill, and the eight cells proposed to accept Class I waste. These eight cells are immediately south of the four cells of the lined Class III landfill. The two northernmost of these eight cells abut, on their east boundary, the unlined Class III landfill. The remaining six cells abut, on their east boundary, an 800-foot wide borrow pit, which lies between these cells and Highland Lakes Estates. Immediately north of Highland Lake Estates is a second borrow pit, and west of this borrow pit is the unlined Class III landfill. The other major feature on the site plan is a third borrow pit running, from west to east, along the north border of the lined Class III cells, the unlined Class III landfill, and the second borrow pit. Bearing no signs of ambitious reclamation activity, the backfilled mining cuts host large water storage areas and, as described in the application for the March 2005 ERP, wetlands of "very poor quality." The backfilled soils are best described as complex surficial soils, consisting mostly of fine sands with varying amounts of organics, silts, and clays. Geotechnical investigations of the Cedar Trail Landfill suggest that mining depths, although variable, probably averaged 40 feet. Petitioners and Intervenor are substantially affected by the Permit and the construction and operation of the proposed landfill, which will stand nearly 200 feet above grade and will be the focus of substantial activity six days per week during its years of operation. Like Petitioners, Intervenor owns land in the immediate vicinity of the Cedar Trail Landfill, which is in the jurisdiction of Intervenor, and Intervenor's various municipal operations are much affected by whether the proposed Class I landfill is permitted. Among other things, Intervenor has agreed to accept untreated leachate from the proposed landfill. Petitioners Frost built their home in 1980 or 1981. During the hours of operation of the existing landfill, Petitioners Frost constantly hear the beeping noise of heavy- duty equipment, presumably a safety device when the equipment is moved. Over a dozen lots in Highland Lakes Estates abut the property line of the Cedar Trail Landfill, and the closest residence is about 1000 feet from the nearest proposed Class I cell. At present, the existing landfill subjects the Highland Lakes Estates to constant noise during operating hours and a coating of dust inside their homes. Several residents of Highland Lakes Estates testified. Hard-working people, some of whom are now retired, these residents decided to purchase homes in Highland Lakes Estates because it was a sunny, healthy place to live. Over time, most of these residents, by varying degrees, have come to accept the fact of the Class III operations at Cedar Trail Landfill, but they object to the substantial intensification of land use that will result from a regional Class I landfill. One resident testified that she finds in her pool dirt that has escaped from the existing landfill, and she has become concerned about her grandchildren coming over to swim. Another resident testified that he only began closing his windows five or six years ago when the noise levels at the existing landfill increased; he eventually had to install a window air- conditioner. The same resident testified that the green herons and snowy egrets that he used to see around his house have not returned for five years, and his wife, who has health problems, including respiratory distress, would suffer from the expanded landfill operations. Application, RRAI, and Permit, Including Modifications The Permit incorporates the Application, including the RRAI, Engineering Report, Operation Plan, and drawings. Thus, all of the documents are part of the Permit. In the Application, Republic proposes to convert cells 5-8, which are not yet constructed, from a Class III to a Class I landfill and add four new cells adjacent to the unused cells. The unfilled portion of Cells 1-4 would continue to receive only Class III waste. Pursuant to Florida Administrative Code Rule 62-701.200(13) (2010), Class I waste is all solid waste, other than hazardous waste, that is not otherwise prohibited by rule. The Application states that the proposed landfill will serve communities within 100 miles. The service area of this regional landfill will thus extend in central Florida from Marion to Osceola counties, along the Gulf Coast from Pasco to Lee counties, and along the Atlantic Coast from Volusia to Martin counties. As stated in the Application, this service area is populated by 9.7 million persons, who would daily account for 3000 tons of waste at the Cedar Trail Landfill. Initially, according to the Engineering Report, the proposed landfill will receive 1600 tons per day of Class I waste, but, once the existing Class III cells are filled, the proposed landfill will receive 1600 tons per day of Class I waste plus the 1400 tons per day of the Class III waste that is currently going into the existing landfill. As revised by the RRAI, the life expectancy of the proposed landfill is seven years. The Application states that Republic will employ an attendant, a trained operator, and 3-5 spotters at the landfill. The Application reports that the landfill would operate Monday through Saturday from 7:00 a.m. to 6:00 p.m. and that the working face would be covered daily. The Application reports that Republic would install seven new detection wells and use 17 existing wells for monitoring groundwater and would use two existing staff gauges for monitoring surface water, evidently at a single location, as discussed in the next paragraph. 23. Application Appendix V is the Water Monitoring Plan. Appendix V states that surface water will be monitored every time that the stormwater pond for the leachate storage area discharges offsite, but not more frequently than weekly. Application Drawing 4, as revised in the RRAI, shows that the sole surface water monitoring location is close to the leachate storage tanks, which are described below. 23. Appendix V also requires leachate monitoring, "at least annually," for five field parameters--specific conductivity, pH, dissolved oxygen, colors, and sheens; eight laboratory parameters--including chloride, mercury, and total dissolved solids; and the parameters listed in 40 CFS Part 258, Appendix II, which includes a comprehensive list of volatile organic compounds; persistent organic pollutants, including 2,3,7,8-TCDD (a major dioxin) and Dibenzofuran; and metals, including lead and chromium. Fourteen days prior to all sampling events, Republic is required to notify DEP, so that it may obtain split samples for its own analysis. Republic is required to report the results of the groundwater monitoring quarterly and to analyze the groundwater data in a technical report filed with DEP every two years. Appendix V also requires monitoring for odors and combustible gases, mostly methane. Republic will monitor combustible gas quarterly at various ambient locations, such as the office buildings and to monitor combustible gas quarterly in the soil down to the seasonal high water table. The purpose of this monitoring is to determine combustible gas concentrations and, if they exceed 25%, take "all necessary steps to ensure protection of human health." Some confusion in the Application arises as to the issue of whether the Cedar Trails Landfill will be subject to, or voluntarily implement, the more elaborate provisions applicable to a landfill covered under Title V of the federal Clean Air Act, as amended in 1990. Regulated emissions for a new source might include particulate matter, sulphur dioxide, nitrogen oxides, volatile organic compounds (VOCs), and specified hazardous air pollutants. Appendix V states that the landfill will become a Title V landfill once permitted to receive Class I waste, and, at that time, it will be subject to a "more comprehensive system of landfill gas collection and monitoring." Appendix V assures that these items "will be addressed in separate documentation from this monitoring plan"--and, apparently, separate from the present record. By contrast, the Operation Plan concedes only that, based on the nature of Class I waste and the design capacity of the proposed landfill, Cedar Trail Landfill "may" become a Title V facility. The Operation Plan states: "If the regulatory thresholds at [Cedar Trail Landfill] are met [under Title V] requiring an active gas collection and control system (GCCS), [Cedar Trail Landfill] will submit as required the GCCS design plans for approval and install an active gas extraction system within the regulatory timeframes specified by Title 40, Code of Federal Regulations, Part 60, Subpart WWW." More specific provisions in the Operation Plan identify best management practices to prevent objectionable odors. Four practices are identified, including an "active gas collection and extraction system." On the DEP form application, which is a cover sheet to the more elaborate application materials, Republic checked boxes indicating that the landfill would use active gas controls with gas flaring and gas recovery, which is probably what is meant by an "active gas collection and extraction system." The Application provides that the landfill liner would be double composite; the leachate collections system would consist of collection pipes, geonets, and a sand layer; the leachate would be stored in tanks; some of the leachate would be recirculated as spray on the working face; and the remainder of the leachate would be stored onsite and periodically transferred to a wastewater treatment center for treatment. The Engineering Report states that the waste disposal footprint will not be located where geological formations or other subsurface features will not provide support for the waste. The Engineering Report identifies appendices addressing the slope-stability analysis and foundation analysis and relies on a March 12, 1997, report by Ardaman & Associates, Inc. (Ardaman Report), January 23, 2004, report by Golder Associates, Inc. (Golder Report), and June 26, 2009, report by Hanecki Consulting Engineers, Inc. (Hanecki Report). These items are discussed in greater detail below in connection with the sinkhole issue. The Engineering Report assures that the waste disposal footprint will not be within 500 feet of an existing or approved potable water well, nor will it be within 1000 feet of an existing or approved potable water well serving a community water supply. The Engineering Report adds that the minimum horizontal distance between waste deposits and the property line is 100 feet. The Engineering Report assures that the landfill footprint will not be in a dewatered pit, as the installation elevations are at least 2-3 feet higher than the seasonal high water table. The Engineering Report acknowledges that a small part of the eastern end of the four southernmost cells lies within the 100-year floodplain, as depicted by the Flood Insurance Rate Map effective December 29, 2000, and as shown in Application Appendix A, Drawing 1. Claiming that the relevant map was not revised in 2000, the Engineering Report asserts that the last update to the FIRM map was in 1975, and the depicted floodplain was filled during the mine reclamation process. The Engineering Report notes that the floodplain concerns were addressed in the April 2009 ERP. 34. The Engineering Report discloses two enforcement actions against Republic at the Cedar Trail Landfill. In a letter dated October 19, 2001, DEP warned Republic about noncompliant items at the site, and, in a notice of noncompliance dated January 30, 2006, DEP warned Republic not to use a new cell prior to construction certification of the cell's stormwater system. Both matters were reportedly resolved, and Republic has not been the subject of other enforcement actions for the Cedar Trails Landfill. At DEP's urging, the RRAI elaborates on enforcement actions against Republic or, evidently, Republic affiliates at a variety of Florida facilities, not just landfills. The additional information reveals that DEP imposed a fine of $61,300 for the October 2001 violations, which included disposing of unacceptable waste, storing an excessive number of tires and exceeding groundwater standards without notifying DEP, and a fine of $1000 for the January 2006 notice of noncompliance. The other enforcement actions against Republic or affiliates concerning landfills involved consent orders about the Nine Mile Road Landfill (Seaboard Waste): in February 2003, DEP imposed a fine of $13,000 in settlement of charges that employees were not removing all unacceptable waste from the site and, in November 2005, DEP imposed a $285 fine for a failure to submit required stormwater monitoring reports. There were many other enforcement actions, generally resulting in modest fines, but they involved hauling facilities, transfer stations, and materials recovery facilities, not landfills. The Engineering Report states that the proposed landfill is within six miles of, but greater than 10,000 feet from, the Bartow Municipal Airport. Airport safety is addressed in more detail below. The Engineering Report describes in detail the double composite liner system, which uses materials whose physical, chemical, and mechanical properties prevent failure due to contact with Class I waste and leachate, climactic conditions, installation stress, and other applied stresses and hydraulic pressures. The Engineering Report performs no contingency sinkhole analysis. The report does not suggest that the liner system could withstand the stresses and pressures resulting from any size sinkhole, so the necessary inference is that the liner will fail if any sinkhole forms directly beneath it. The Engineering Report states that waste placement will remain within the lined containment berm. The Engineering Report describes in detail the double composite liner system for use at the proposed landfill. The primary liner system and secondary liner system each comprises three layers with the top layer consisting of a composite drainage net, the middle layer consisting of a high-density polyethylene geomembrane with a minimum average thickness of 60 ml, and the bottom layer consisting of a geosynthetic clay liner with a maximum hydraulic conductivity of 5 x 10-9 cm/second. The Engineering Report describes in detail the leachate collection and removal system, which, sitting atop the primary liner, includes a 24-inch thick sand drainage layer with a minimum hydraulic conductivity of 1 x 10-3 cm/second, a composite drainage net, and a single perforated 8-inch diameter lateral pipe in each cell. The collection lateral pipes will gravity drain to the east to a header pipe that gravity drains to the primary leachate collection pump stations--one station for the four converted cells and one station for the four new cells. A smaller leachate collection and removal system will handle the leachate that penetrates to the leak detection layer by routing it to a secondary leachate collection pump station. Based on calculations derived from the HELP groundwater model, the leachate collection and removal system is designed to prevent leachate head from exceeding the thickness of the composite drainage net (about 1 cm) over the secondary geomembrane and from exceeding one foot over the primary geomembrane. According to the Engineering Report, flow meters will be installed at each of the pump stations to allow daily readings of the amount of leachate being pumped. At one foot of head over the primary liner, the Engineering Report expects just over three gallons per day collected at each secondary leachate collection pump station--significantly less than the leakage rate typical of a double liner system without a geosynthetic clay liner beneath the primary liner. However, the Engineering Report provides a standard action leakage rate of 100 gallons/acre/day, meaning that Republic is required to report to DEP liner leakage only when this leakage rate is attained. The pump stations will transmit the leachate to one of two above-ground, 150,000-gallon storage tanks. From these tanks, most of the leachate will be transported to an offsite location for treatment. However, up to 12,000 gallons per day of the untreated leachate will be recirculated to be sprayed on the working faces of the landfill. This is to control dust and possibly to assist with the degradation of the waste. The Engineering Report states that the Cedar Trail Landfill implements a facility-wide water quality monitoring plan. Upon completion of the pump stations for the eight cells that are the subject of the Application, Republic will expand its leachate sampling program to include annual sampling of the leachate collected in the primary and secondary leachate collection pump stations. The groundwater monitoring wells would be installed as closely as possible to the outer edge of the roadway that, with a stormwater ditch, will run the perimeter of the proposed Class I landfill. In the revised Engineering Report contained in the RRAI, Republic proposes a surface water discharge point in the stormwater pond located near the leachate storage tanks. The Engineering Report adds that Republic will continue to comply with the following prohibitions: No waste will be knowingly burned on site; Hazardous waste will not knowingly be accepted; PCB contaminated waste will not knowingly be accepted; Untreated biomedical waste will not knowingly be accepted. Please note that treated biomedical waste may be accepted at [Cedar Trail Landfill]'s Class I Landfill provided that the waste containers are marked "Treated Biomedical Waste.;" No waste disposal at the proposed Class I Landfill will occur within 3,000 feet of a Class I surface water body; [Cedar Trails Landfill] will not knowingly accept liquid waste within containers, excluding leachate and gas condensate derived from solid waste disposal operations. [Cedar Trails Landfill] will comply with the requirements of Rule 62- 701.300(10), FAC regarding the handling of liquid wastes; Neither oily waste nor commingled oily waste will knowingly be accepted; and Lead-acid batteries, used oil, white goods, and whole-waste tires will not knowingly be disposed of in the Class I waste disposal system. The Joint Stipulation to Permit Modification, identified above, adds four items to this list of operational prohibitions: i. Garbage will not be knowingly accepted; Household Waste, except waste from residential sources generated as Class III waste, will not be knowingly accepted; Animal carcasses will not be knowingly accepted; and Aluminum dross will not be knowingly accepted. Capitalized terms are generally defined in the Florida Administrative Code. Florida Administrative Code Rule 62-701.200(39) defines "Garbage" as " all kitchen and table food waste, and animal or vegetative waste that is attendant with or results from the storage, preparation, cooking, or handling of food materials." Application Appendix H is the Operation Plan, which also identifies the types of wastes to be permitted at the proposed landfill. Section 3(b) of the Operation Plan authorizes the proposed landfill to accept: Commercial waste Ash residue Incinerator by-pass waste Construction and demolition debris, including from a residence Treated biomedical waste Agricultural waste Industrial waste Yard trash, including from a residence Sewage sludge Industrial sludge Water/air treatment sludges Waste tires De minimis amounts of non-hazardous waste from incidental residential sources Section 5 of the Operation Plan provides, in relevant part: [Cedar Trail Landfill] will accept waste included in any of the waste categories identified under Section 3(b) of this Operation Plan[, but] will . . . NOT knowingly accept any hazardous waste, untreated biomedical waste, liquid waste (including paint), explosive waste, toxic waste, or radioactive waste for disposal at the [Cedar Trail Landfill.] Unacceptable types of refuse are listed below and will not be knowingly accepted for disposal. --Hazardous waste --Explosive waste --Radioactive waste --Drums that have not been opened and Emptied --Refrigerators, freezers, air Conditioners (white goods) --Any toxic or hazardous materials, i.e. batteries, solvents, oil, etc. --Automobiles or parts that contain fuel, lubricants, or coolants --Untreated Biomedical waste The original Application prohibited the acceptance of septic tank pumpage, but the application form accompanying the original Application indicated that the proposed landfill would accept industrial sludge and domestic sludge. After modification by the RRAI, the prohibition against accepting septic tank pumpage was deleted, and the Operating Plan added, among acceptable wastes, sewage sludge, industrial sludge, and water- and air-treatment sludge. Florida Administrative Code Rule 62-701.200(101) (2001) defines "sludge" to include solid waste pollution control residual from an industrial or domestic wastewater treatment plant, water supply treatment plant, air pollution control facility, septic tank, grease trap, portable toilet, or other source generating a waste with similar characteristics. Florida Administrative Code 62-701.200(64) (2001) defines "liquid waste" as any waste with free liquids, according to the "Paint Filler Liquids Test." As modified by the Joint Stipulation to Permit Modification, Section 5 of the Operation Plan was amended to add the following items to unacceptable types of refuse that will not be knowingly accepted for disposal: --Garbage --Household Waste, except waste from residential sources generated as Class III waste --Animal carcasses --Aluminum dross At the hearing, Republic and DEP agreed to an additional condition to the Operation Plan that unacceptable waste would include Garbage contained in commercial, industrial or agricultural waste. According to the Operation Plan, the initial waste screening occurs at the gate house where the attendant interviews the driver and inspects the incoming waste load. If the attendant sees more than a negligible amount of unauthorized wastes, he will reject the load and will contact the hauler to identify the source of the waste. Additionally, Republic will notify DEP if anyone tries to dispose of hazardous waste at the proposed landfill. As modified by the Joint Stipulation to Permit Modification, the Operation Plan was amended to provide a new paragraph between the paragraph addressing the initial waste screening at the gate house and, as discussed below, the second screening at the working face. The new paragraph provides: Any malodorous waste will be covered with mulch and/or additional soil or other approved cover materials to control odors promptly, within one (1) hour from the time of unloading, except in the event of exigent circumstances, such as extreme weather. Cedar Trail Landfill will promptly cover any sludge deposited on the landfill working face within one (1) hour from the time of the unloading, except in the event of exigent circumstances, such as extreme weather. At the hearing, Republic and DEP agreed to an additional condition to the Operation Plan, which would prohibit Republic from accepting malodorous waste or sludge that, due to exigent circumstances, it would not be able to cover within one hour from the time of unloading. If the load passes the initial waste screening, it will proceed to the working face of the landfill, according to the Operation Plan. At least one spotter will be stationed at the working face at all times that the landfill receives waste. Her job will be to detect unauthorized wastes. Republic is to assure that it has a sufficient number of spotters to find and remove unauthorized waste prior to compaction. The Operation Plan allows the spotter to work from ground level or the cab of a compactor. If the operator of a piece of heavy equipment is trained as a spotter, she may also serve as a spotter. During periods of higher waste traffic, the equipment operator will, according to the Operation Plan, "likely" need the assistance of another operator or spotter to screen the higher waste volumes. When finding unauthorized wastes in manageable volumes, the spotter or operator will remove these wastes by hand and place them into nearby containers for removal to an appropriate facility. The third waste screen occurs as the equipment operator spreads the waste, pursuant to the Operation Plan. The equipment operator is required to place any unacceptable observed wastes into containers, which will be located "within the lined area." These wastes will also be removed to an appropriate facility. In the RAI, DEP questioned the proximity of the containers to the working face, as the lined area consists of 72 acres, but, in the RRAI, Republic ignored the comment, restating only that the containers would not be located outside the lined area. The Operation Plan specifies a filling sequence. Republic will assure that the first layer of waste placed above the liner in each cell will be a minimum of four feet in compacted thickness and will be free of rigid objects that could damage the liner or leachate collection and removal system. Republic will maintain the working face to minimize the amount of exposed waste and initial cover necessary at the end of each day. The filling sequence will proceed until the permitted final grade elevations have been reached, less three feet for the final cover. The Operation Plan states that the initial cover at the Class I landfill will consist of a six-inch layer of soil that is transferred from onsite borrow pits or offsite sources. This soil will be compacted and placed on top of the waste by the end of each work day. At Republic's option, subject to DEP's approval, it may use a spray-on or tarpaulin cover, instead of a soil cover. The Operation Plan requires Republic to apply at least one foot of intermediate cover within seven days of cell completion, if additional waste will not be deposited within 180 days of cell completion. Republic may remove all or part of this intermediate cover before placing additional waste or the final cover. Through the placement of initial, daily, and intermediate cover, Republic will minimize the occurrence of moisture infiltration, fires, odors, blowing litter, and animals and other disease vectors. 59. The Operation Plan requires Republic to control litter primarily by daily waste compaction and cover. However, at least daily, if needed, employees will collect litter along the entrance and access roads and around the working face. Complaints about litter must be logged. In addition to the inspections detailed above, the Operation Plan establishes a random load-checking program to detect unauthorized wastes. Each week, Republic employees will examine at least three random loads of solid waste by requiring drivers to discharge their loads at a designated location within the landfill where the employees may undertake a detailed inspection. All random inspections will be logged. Notwithstanding the daily limit of 12,000 gallons per day, the Operation Plan prohibits Republic from spraying leachate during rain events. To apply the recirculated leachate, the lead operator will drive the leachate tanker truck on the working face, so that it can spray leachate over waste as it is being compacted, but after it has been screened by spotters. The spraying will be done to avoid causing leachate to pond atop the waste and will not be done within 50 feet of an outside slope. No restrictions apply to wind conditions. The Operation Plan states that, if the annual sampling of leachate water quality at the two pump stations reveals a contaminant in excess of the permissible limits listed in 40 CFR Part 261.24, Republic will start monthly sampling and notify DEP in writing. Also, the Cedar Trail Landfill will maintain a recording rain gauge. The Operation Plan requires Republic employees to conduct daily surveys for objectionable odors and take immediate corrective action, if odors are found at the property line. As modified by the Joint Stipulation to Permit Modification, this portion of the Operation Plan was amended to add two odor- remediation actions and another form of odor inspection. The two additional actions to prevent odors are to 1) provide additional cover using mulch, additional soil, or other approved cover material and 2) use odor masking or neutralizing agents. The new inspection provision states: Internal inspection will be performed on a weekly basis by a properly trained odor ranger or equivalently trained person. Such individual will tour the facility, property boundary, and the subdivision of Highland Lakes Estates . . . to identify any odors leaving the Landfill's property boundaries. The results of each weekly inspection will be document, and any odors identified will be mitigated. Another new provision from the Joint Stipulation for Permit Modification applies to the handling of sludge. As amended, the Operation Plan states: When accepting sludge from a new source or distributor, [Republic] will obtain information regarding the characteristics and constituents of the sludge, including a description of the industrial process or circumstances that resulted in the generation of the sludge. Upon delivery of the sludge, [Republic] will mix lime, sodium hydroxide, or any other suitable agents to eliminate objectionable odors as required during disposal of the sludge before the material is covered. Furthermore, [Republic] will obtain advance notice from contributors prior to delivery of any sludge and shall promptly cover any sludge unloaded on the landfill working face within one (1) hour from the time of unloading, except in the event of exigent circumstances, such as severe weather. [Republic] shall use its best efforts to avoid accepting or disposing of sludge on Saturdays, Sundays, or public holidays. Additionally, with respect to sludge received from wastewater treatment facilities only, such sludge shall not exceed the lesser of (1) twenty percent (20%) of the total volume of waste disposed in the landfill on an average monthly basis, determined annually on the prior calendar year, or (2) two-hundred (200) tons per day, averaged over the prior 12-month calendar year. Republic is required to monitor combustible gases quarterly and transmit the results to DEP, according to the Operation Plan. If Republic detects methane above the limits specified in Florida Administrative Code Rule 62-701.530 (2010), Republic must submit a gas remediation plan to DEP within seven days. The Operating Plan indicates that the separation of the waste from the groundwater prevents the saturation of the waste and, thus, the generation of odor. Sloping and compacting will promote stormwater runoff, again to discourage the generation of odor. The Construction Permit authorizes construction of the proposed landfill in accordance with the "rules[,] . . . reports, plans and other information" submitted by Republic "(unless otherwise specified)." This parenthetical reference provides that the provisions of the Construction Permit control over any contrary provisions in the other documents that are part of the Permit due to incorporation by reference. In addition to the original Application, RRAI, and drawings, the Construction Permit also incorporates Florida Administrative Code Chapter 62-701 (2001). The Construction Permit states that Republic may not violate the prohibitions set forth in Florida Administrative Code Rule 62-701.300, which is discussed in the Conclusions of Law. Construction Permit Specific Condition A.9.a requires notification to DEP of the discovery of limestone during excavation or discovery. Specific Condition A.9.b requires notification to DEP of any surface depressions or other indications of sinkhole activity onsite or within 500 feet of the site. Specific Condition A.9.c prohibits open burning. Construction Permit Specific Condition C.1.b prohibits the discharge of leachate, during construction or operation, to soils, surface water, or groundwater outside the liner and leachate management system. Specific Condition C.4 prohibits the acceptance of hazardous waste and does not condition this prohibition on Republic's knowledge that the waste is a hazardous waste. Specific Condition C.5 requires Republic to "control . . . odors and fugitive particulates (dust)" and "minimize the creation of nuisance conditions on adjoining property." "Nuisance conditions" include "complaints confirmed by [DEP] personnel upon site inspection." Specific Condition C.5 orders Republic to "take immediate corrective action to abate the nuisance" and to "control disease vectors so as to protect the public health and welfare." Construction Permit Specific Condition C.6.b requires immediate notice to DEP of any sinkholes or other subsurface instability. Specific Condition C.8 requires Republic to manage leachate in accordance with the Operating Permit and Florida Administrative Code Rule 62-700.500(8). The Operating Permit incorporates the same materials that are incorporated into the Construction Permit, again "(unless otherwise specified)." Like the Construction Permit, the Operating Permit incorporates Florida Administrative Code Chapter 62-701 (2001) and requires immediate notice to DEP in the event of a sinkhole or subsurface instability. The Operating Permit specifies that the action leakage rate is 100 gallons per acre per day and the leachate recirculation rate is 12,000 gallons per day. As modified by the Joint Stipulation to Permit Modification, Operating Permit Specific Condition A.1.b states: This Facility is not authorized to accept Garbage; untreated Biomedical Waste; animal carcasses; liquids and non-liquid PCB containing materials or wastes with a PCB concentration greater than or equal to 50 parts per million; Liquid Waste; and aluminum dross. Additionally, this facility is not authorized to accept Household Waste, except waste from residential sources generated as Class III waste. Class III waste means yard trash, construction and demolition debris, processed tires, asbestos, carpet, cardboard, paper, glass, plastic, furniture other than appliances, or other materials approved by [DEP] that are not expected to produce leachate which are a threat to public health or the environment as defined in Rule 62-701.200(14), F.A.C. Based on this authorization to allow certain wastes as described above from residential sources, and since the landfill design, including liner and leachate collection systems, meets the requirements of Chapter 62-701, F.A.C., for Class I landfills, the facility will be entitled to [the] household hazardous waste exemption pursuant to 40 C.F.R. 261.4(b)(1). Specific Condition A.9.c prohibits open burning. Operating Permit Specific Condition C.1.b prohibits the discharge of leachate to soils, surface water, or groundwater outside the liner. Specific Condition C.1.c prohibits the discharge of "residual contaminants," such as gasoline, oil, paint, antifreeze, and polychlorinated biphenyls (PCBs), onto the ground or into surface water or groundwater. Operating Permit Specific Condition C.1.k(1) provides that authorized waste types are those listed in Section 3(b) of the Operations Plan, and unacceptable wastes shall be removed from the site as described in Sections 3(a) and 7. As modified by the Joint Stipulation to Permit Modification, Operating Permit Specific Condition C.1.k(1) provides: "Waste types authorized for management at this site are those listed in Section 3(b) of the Operations [sic] Plan. Unacceptable wastes are those listed in Section 5 [of the Operation Plan] " Operating Permit Specific Condition C.1.k(2) requires the use of a sufficient number of spotters to remove unacceptable wastes, but allows Republic to direct its equipment operators to serve as spotters from the equipment. This condition allows DEP to require that spotters work from the ground, if DEP determines that spotting from equipment is not effective. Specific Condition C.1.k(3) requires Republic to remove unacceptable wastes immediately and not to unload additional wastes in the immediate vicinity until placing unacceptable wastes in the designated waste containers" "near the working face" and within the lined landfill area. Operating Permit Specific Condition C.1.l(2) requires Republic to inspect on each operating day the property boundary for objectionable odors and, if any are detected, abate them in accordance with Specific Condition C.5. Specific Condition C.5.a requires Republic to control odors, disease vectors (insects and rodents), and fugitive particles (dust and smoke) to protect the public health and welfare. Control is defined as "minimiz[ing]" the creation of nuisance conditions on adjoining property. Odors confirmed by DEP personnel are a nuisance condition, and Republic must take immediate corrective action to "abate" the nuisance. Specific Condition C.5.b provides that, if odor control measures do not "sufficiently abate" objectionable odors within 30 days, Republic will submit an odor remediation plan to DEP for approval. Operating Permit Specific Condition C.8.e requires monthly reports to DEP of leachate quantities. Specific Condition C.8.h(1) prohibits recirculation of leachate at rates that result in seepage that may discharge outside the lined area. Leachate may not be sprayed when the application area is saturated or during a rainfall event. There is no prohibition against spraying during windy conditions. Operating Permit Specific Condition E details the extensive water quality monitoring requirements. However, Specific Condition E.9.b requires only annual testing of the five field parameters, eight laboratory parameters, and the comprehensive list of Appendix II parameters set forth in 40 CFR Part 258, all of which are identified below. Specific Condition E.9.c provides that, if a contaminant listed in 40 CFR 261.24 exceeds the level listed therein, Republic will notify DEP and take monthly leachate samples until no exceedances are detected for three consecutive months. Operating Permit Specific Condition F.1.a states: "This solid waste permit will meet the statutory requirement to obtain an air construction permit before . . . constructing a source of air pollution, except for those landfills that are subject to the prevention of significant deterioration (PSD) requirements of Chapter 62-212, F.A.C." Such facilities are required to obtain an air construction permit from the Bureau of Air Regulations prior to construction. Specific Condition F.1.b requires Republic to comply with Title V of 40 CFR 60, Subparts WWW and CC. This section notes that Title V permit applications must be submitted to the District Air Program Administrator or County Air Program Administrator responsible for the landfill. Aviation Safety Landfills attract birds in search of food. Flying birds may interfere with aviation safety. Thus, landfills are typically not located in close proximity to airfields to minimize the risk that flying birds will interfere with airborne aircraft approaching or departing from an airport. The nearest airport to the Cedar Trail Landfill is the Bartow Municipal Airport, which is operated by the Bartow Aviation Development Authority. This airport is over five miles from the footprint of the active landfill and 4.6 miles from the boundary of the proposed site. Republic provided notice of the Application to all airports within six miles of the proposed landfill, the Federal Aviation Administration, and the Florida Department of Transportation. None of these entities objected to the proposed landfill. When Republic gave the Bartow Aviation Development Authority notice of an earlier application, which sought a permit for a landfill that would accept garbage, the authority objected to the proposal due to concerns posed by birds to aviation safety. When asked about the Application, the authority's executive director testified that she still has concerns about the proposed landfill, but she did not specify the nature of her concerns or her analysis. As explained in the Conclusions of Law, these are the only facts required for a determination of whether Republic has provided reasonable assurance of aviation safety. The record provides no basis for finding that Republic has failed to provide reasonable assurance of aviation safety. Neither the FAA nor the Bartow Aviation Development Authority has objected to the proposed landfill. The executive director's unspecified concerns do not override the absence of a formal objection from these agencies. Petitioners assign too much weight to the earlier objection submitted by the authority. The composition of the authority may have changed or some authority members may have decided they were wrong in their earlier analysis. This earlier objection does not outweigh the absence of objection to the present proposal from any of the aviation agencies and the absence of any evidence of the expected nature or extent of bird usage of the proposed landfill and the extent to which these birds would interfere with existing and expected flight paths of aircraft using the Bartow Municipal Airport. Public Health Petitioners' expert witness on public-health issues, Dr. David Carpenter, is a medical doctor with a long, prestigious history of public service, including with the Department of Defense, the National Institutes of Mental Health, the United States Public Health Service, and the New York Department of Health, where he served as director from 1980-85. At that time, Dr. Carpenter started the School of Public Health at the University of Albany. Republic's expert witness on public-health issues, Dr. Christopher Teaf, is an expert in the evaluation of environmental contamination, waste management, and toxicology, but not a medical doctor. Dr. Teaf is a professor at Florida State University and owns a small consulting firm. The major part of Dr. Carpenter's career has been devoted to research. For the past ten years, he has focused more on human health, especially human disease from exposure to environmental contaminants. Dr. Carpenter has considerable experience with the adverse effects of landfills on human health, but his experience has been mostly with older landfills, where containment measures were few and offsite releases were many. Clearly, Dr. Carpenter's experience does not extend to the role of landfill design, construction, and operation in the transmission of human disease. Thus, Dr. Carpenter is qualified to opine on the effects of pollutants that may escape landfills, but not on the relationship of landfill design, construction, and operation on the probability that a landfill will transmit pollutants. For the most part, Dr. Carpenter did not attempt to address matters outside of his expertise. However, Dr. Carpenter testified that the risk of disease or injury increased in relationship to the proximity of the person to the landfill. This testimony can only be credited if one assumes that the landfills are identical in terms of design, construction, and operation and in terms of the environmental conditions of the landfill site. In other words, in real-world applications, it is impossible to credit this element of Dr. Carpenter's testimony, especially to the extent of his implicit suggestion that public health is unreasonably endangered by the construction of a landfill, in compliance with all rules, that satisfies all of the separation criteria and design criteria set forth in the rules, as discussed below. By contrast, Dr. Teaf focused on the details of the proposed landfill. Applying his knowledge of toxicology, Dr. Teaf determined that the proposed landfill adequately protects public health. In making this determination, Dr. Teaf analyzed the effects of various design and operational characteristics of the proposed landfill, including the double liner system, the leachate collection and management system, the selection of appropriate waste types, the procedures for the evaluation and covering of sludges, the prohibition against municipal garbage, the restrictions on household items, the monitoring of groundwater and surface water, the stormwater management system, and the plans to control dust and odors. Dr. Carpenter's testimony and the literature that he sponsored suggested important links between older landfills and a wide range of human disease. But the recurring problem with Dr. Carpenter's testimony and the research articles that he sponsored was the inability to link this information to the proposed landfill. All of the landfills studied in his research articles were older, and most of them appeared to have been designed, constructed, and operated under far more relaxed regulatory regimes than exist today. Nothing in Dr. Carpenter's testimony or sponsored literature attempted to delineate the design or operational characteristics of these landfills, such as whether they were double- or even single-lined, served by leachate circulation and recovery systems, limited as to materials that they could accept, or required to install stormwater management and water monitoring systems. 93. Analysis of the risk to public health posed by the proposed landfill requires consideration of the various means of transmission of the pollutants received by the landfill: water, land, and air. Of these, water requires little analysis, on this record. Even Dr. Carpenter conceded that the proposed landfill does not appear to pose a threat to groundwater. The double liner, leachate collection and recovery system, and groundwater monitoring plan support the finding that groundwater transmission of pollutants from the proposed landfill is unlikely. Transmission by surface water is also unlikely. Compared to groundwater monitoring, surface water monitoring is limited. For instance, there is only a single monitoring site. Also, as noted above, the stormwater pond for the leachate storage area is expected to discharge stormwater offsite during excessive storm events, at which time surface water samples will be taken. However, a comprehensive surface water management system is in place at the landfill and will prevent offsite discharges in all but a few excessive rain events. Transmission by land is also unlikely. The Application contains engineering analysis of the proposed stability of the side slopes and a determination that they will be stable. The discussion of sinkholes, below, does not affect this finding. Treating dust as transmission by air, the only other means by which pollutants may transmit by land is by animals, such as insects, rodents, and birds. An important factor limiting the activity of animals in spreading pollutants offsite is the fact that the proposed landfill will not receive garbage. Although putrescible waste may be received within other categories of waste, the prohibition against receiving garbage will greatly reduce the amount of potential food sources for animals and thus the utilization rate of the proposed landfill by these animals. A further reduction in animal utilization will be achieved through the daily and intermediate cover requirements. Thus, transmission of pollutants by animals is also unlikely. Transmission by air takes several forms. Pollutants may be transmitted as or on dust, with water in the form of aerosol, or as gas. In terms of how transmission by air is addressed by the Permit, this means of transmission potentially represents a greater threat than transmission by water or land for four reasons. First, the explicit focus of the Permit, as to gas, is to avoid explosive concentrations of methane and objectionable odors, but not the transmission of other pollutants by air. Second, the effect of the Permit is to prohibit the release of pollutants into the groundwater or offsite surface water and to prohibit the release of pollutant-bearing land offsite, but no such flat prohibition applies to the offsite release of pollutants by air. Third, the leachate recirculation system provides a good opportunity for the release of certain pollutants into the air by aerosol or evaporation, but similar releases to offsite land, surface water, or groundwater are prohibited. Fourth, scientific understanding of the effects of exposure, especially by inhalation, to pollutants, especially in the form of organic compounds, is continuing to develop: with the use of chemicals increasing three fold in the 50 years preceding 1995 and approximately 80,000 chemicals in use in 2002, only a few hundreds of these chemicals have been subjected to long- or short-term study, resulting in the discovery that about 10% of the chemicals in use in 2002 were carcinogens. Transmission by dust appears to be limited by the frequent covering and spraying of the working faces. Although nearby residents complain of dust in their homes, the practices of the less-regulated Class III landfill cannot be extrapolated to the proposed Class I landfill. Thus, the prospect of dust transmission of chemicals contained in the fill received by the proposed landfill appears also to be slight. The use of untreated leachate as the spray medium to control the dust itself raises two risks, however. First, spraying leachate will release chemicals in aerosol. The potential range of aerosol is great, especially as the landfill ascends toward its design height of 190 feet. However, the risk of transmission by aerosol is reduced to insubstantial levels by adding a Permit condition that prohibits spraying during windy conditions. Second, depositing leachate on the landfill face will release chemicals through evaporation. The point of spraying the landfill face is to control dust between the addition of the waste materials to the pile and the application of the cover. Between these two events, dry conditions will sometimes intervene and may cause the evaporation of certain, but not all, pollutants. The leachate acquires pollutants as it percolates down the waste column and into the leachate collection system. As Dr. Teaf noted, the leachate becomes more concentrated as it recirculates, but, otherwise, this record is largely silent as to the likely composition of the recirculated leachate. However, for landfills accepting sludge, higher levels of mercury may be present in the leachate. As reported by the Florida Center for Solid and Hazardous Waste Management at the University of Florida, in a report issued March 2007, and titled, "Design and Operational Issues Related to Co-Disposal of Sludges and Biosolids and Class I Landfills--Phase III," one study found that the concentration of mercury in the leachate of landfills that receive sludge is almost three times greater than the concentration of mercury in the leachate of landfills that do not accept sludge. The same study reported that total dissolved solids and chlorides were present at greater concentrations at the landfills that did not accept sludge and that other parameters--unidentified in the cited article--were not significantly different between the two types of landfills. Republic proposes to recirculate substantial volumes of leachate--sufficient, for instance, to raise the moisture content of the fill from 25 percent to 28.9 percent. The Permit allows the proposed landfill to operate six days per week, for a total of 312 days annually. The Operation Plan prohibits the application of leachate during rain, but the number of days annually during which rain extends for the entire day is few, probably no more than a dozen. These numbers suggest that Republic may apply as much as 3.6 million gallons annually of untreated leachate to the landfill face. The 12,000 gallon-per-day limit and restrictions on head in the leachate collection and removal system effectively limit the quantities of leachate that may be recirculated, but the sole provision addressing leachate water quality is the annual monitoring event described above. Given the time required to analyze the many parameters included in the EPA regulation, for most of the year between tests, Republic will be applying over three million gallons of leachate whose pollutant concentrations will be completely unknown. Some assurances emerge, though, when considering air transmission of pollutants by class. In general, on this record, as to transmission by gas, there appears to be an inverse relationship between a compound's volatility, which is a measure of its ability to enter the air, and a compound's persistence. VOCs are one of the most dangerous classes of pollutants to public health and include such carcinogens as benzene, tolulene, xylene and, the most dangerous of all VOCs, vinyl chloride, which is released upon the degradation of such common substances as plastics, carpets, and upholstery. Biogas, which is generated by the anerobic decomposition of organic compounds in a landfill, contains mostly methane and carbon dioxide, but also significant levels of VOCs. When inhaled, the primary results of exposure to VOC are respiratory irritation and allergenic effects. Volatility is measured by vapor pressure, which is a measure of a chemical's ability to get into the air. As their name suggests, VOCs enter the air easily. They are also capable of traveling great distances due to their light molecule. However, VOCs are easily destroyed by sunlight and diluted by wind. Other organic compounds common to landfills are only semi-VOCs, such as PCBs. Although less volatile, these chemicals, too, are hazardous to public health--in the case of PCBs, in any amount. Due to this fact and their persistence in the environment, the United States has prohibited the manufacture of PCBs for over 30 years. However, not only are PCBs considerably less likely to enter the air than VOCs, they also travel shorter distances than VOCs due to a heavier molecule. Dr. Carpenter opined that there is little evidence that PCBs are an issue in the proposed landfill. Another class of organic compound, 1000 times less volatile than even PCBs, is phthalates, which are used in the production of plastics. Phthalates pose significant threats to public health, especially reproductive health. However, the exceptionally low volatility of this compound renders transmission by evaporation highly unlikely. Much of the regulatory framework imposed on landfill design, construction, and operation arises out of concerns for the control of human pathogens, which are infection-causing organisms, such as bacteria, viruses, protozoa, and parasitic worms. One of the great advances in human longevity in the United States occurred in the early 1900s--not with the development of antibiotics or improved medical care--but with the implementation of basic sanitation control and the removal of pathogens from the drinking water. For the proposed landfill, sludge will be the primary source of pathogens. Sludge is nutrient-rich organic matter, which will be received at the proposed landfill without any treatment except possibly dewatering. Even with the acceptance of sludge, the proposed landfill presents little risk for the transmission of pathogens. Pathogens communicate disease only when a person is exposed to an effective dose and are better transmitted by direct contact or animal than air. Bacterial pathogens are themselves killed by wind, as well as sunlight, temperature, and humidity differentials, so the preferred means of air transmission would be aerosol versus gas. The record permits no findings as to the persistence of pathogenic viruses, protozoa, and parasitic worms. However, as noted above in connection with the land transmission of pathogens, the immediate application of lime and cover to the sludge will tend to prevent the release of effective doses of pathogens by air, as well. The last major class of pollutant that could be transmitted by air is heavy metals, such as mercury or lead. Although these metals produce a wide range of neurological diseases and generally interfere with cognition and behavior, Dr. Carpenter admitted that heavy metals were not as much of a concern as VOCs, presumably due to their resistance to vaporization. Even though transmission by air is not as tightly controlled as transmission by water or land, for the four reasons noted above, there is little risk of transmission by air--i.e., dust, aerosol, or gas--when the specific properties of likely pollutants are considered. In all but five respects, then, Republic has provided reasonable assurance that public health will not be endangered by pollutants released from the landfill by water, land, or air. First, to provide reasonable assurance concerning public health, the Permit needs a condition that prohibits spraying leachate during windy conditions, which DEP may define as it reasonably sees fit. As noted in the Conclusions of Law, this is a requirement in the rules and, due to its importance, should be restated explicitly in the Permit, which restates numerous other rule requirements. Second, to provide reasonable assurance concerning public health, the Permit needs more frequent monitoring of leachate water quality, at least at the frequency, as noted in the Conclusions of Law, set forth in the rules. Large volumes of untreated leachate will be recirculated through the landfill. Even if aerosol transmission is controlled, transmission by evaporation of some pollutants, although not the heavy metals, is possible. Also, pollutants are concentrated in recirculated leachate and thus the consequences of transmission into groundwater or surface water, however unlikely, become greater. At the same time, the action leakage rate is generous--to Republic, not the groundwater. At 100 gallons per acre per day, Republic is not required to report to DEP possible liner leakage until about 7300 gallons per day are lost to the surficial aquifer. Suitable for the detection of catastrophic failures associated with most sinkholes, this action leakage rate is too high to trigger action for small liner leaks. If Republic is to be allowed this much leakage into the groundwater, it must identify the leachate's constituents and their concentrations at least semi-annually. Third, to provide reasonable assurance concerning public health, the Application must extend the right of split testing to all of the parties in these cases, if DEP fails to exercise its right to take a split sample. The spraying of untreated leachate and generous limit applied to liner leakage before reporting and remedial action are required underscore the importance to public health of independent leachate testing. There is no reason to allow budgetary constraints or administrative oversight to preclude Petitioners and Intervenor, who are uniquely situated to suffer from the escape of excessive pollutants in the leachate, from providing, at their expense, this independent leachate testing. Fourth, to provide reasonable assurance concerning public health, the Permit needs to restate accurately the language of the rules concerning the extent of knowledge required of Republic, if it is to be liable for the acceptance of certain prohibited wastes. Fifth, to provide reasonable assurance concerning public health, the Permit needs to be modified to ensure that at least one spotter, whose sole responsibility is spotting, will be assigned to each working face while the landfill is receiving waste. Sinkholes The sinkhole issue arises in the geotechnical analysis of the sufficiency of the foundation to support the considerable loads of a landfill and also in the stability of the side slopes of the landfill. This analysis starts with consideration of the geology of the area, of which Republic's property is a part, and, among other things, the potential for sinkhole formation in the area. The Cedar Trail Landfill lies within the Bartow Embayment and along the eastern slope of the Lakeland Ridge of the Central Lake District Physiographic Province. This embayment is a large erosional basin partially backfilled with phosphatic sand and clayey sand of the Bone Valley Member. At this location, the top of the Floridan Aquifer is formed by Suwannee Limestone, which consists of white to tan, soft to hard, granular, porous, very fossiliferous limestone with interbedded dolomite. This rock unit is 110-140 feet thick. Atop the Suwannee Limestone sits the Hawthorne Group, which comprises the Arcadia Formation, at the base of which is the Nocatee Member, which is a relatively impermeable sand and clay unit. Atop the Nocatee Member is the Tampa Member, which consists of hard, dense, sandy, locally phosphatic, fossiliferous limestone. The top of this member, which is the top of the Arcadia Formation, is locally referred to as the "bedrock complex," which marks the lower limit of phosphate mining. Atop the Arcadia Formation, still within the Hawthorne Group, sits the Peace River Formation, which consists of phosphatic clayey sand and clayey sand. The lower portion of the Peace River Formation is a relatively impermeable, undifferentiated clayey unit locally known as "bedclay." The Bone Valley Member of the Peace River Formation is mined for phosphate and is locally known as "matrix." Atop of the Peace River Formation are undifferentiated surficial soils, typically consisting of silty sand, clayey sand, and some hardpan and organic soils. These materials are locally known as "overburden." Phosphate mining is prevalent in the area, including, as noted above, much or all of the Cedar Trail Landfill site. Strip mining for phosphate normally removes the entire surficial aquifer, just into the bedclay. Mined areas are then backfilled with overburden spoil soils, clay, waste clay, and sand tailings. After backfilling, the soil strata bear little resemblance to premining strata. Sinkholes are prevalent in the general area surrounding the Cedar Trail Landfill. A sinkhole is a surface depression varying in depth from a few feet up to several hundreds of feet and in area from several square feet to several acres. Sinkholes are typically funnel-shaped and open broadly upward. Sinkholes form when weakly acidic groundwater creates cavities in the calcium carbonate within limestone. Soils above these cavities erode into the cavities. In the area that includes the Cedar Trail Landfill, cover-collapse and cover- subsidence sinkholes predominate among sinkhole types. A cover-collapse sinkhole, which is typically steep- sided and rocky, forms when cohesive soils over a limestone cavity can no longer bridge the cavity under the weight of overlying soil and rock. At this point, the cohesive soils suddenly collapse into the cavity. These are more common in the part of the state in which the Cedar Trail Landfill is located. A cover-subsidence sinkhole occurs due to the gradual lowering of the rock surface as solutioning occurs in the subsurface rocks. This type of sinkhole develops as subsurface soluble rock is dissolved and overlying soils subside into the resulting shallow surface depressions. Regardless of the type of sinkhole, borings into sinkholes will reveal zones of very loose soil sediments that have washed downward into the cavernous voids within the bedrock. This very loose soil zone is called a raveling zone, which starts at the limestone layer, as the overlying soils begin to collapse into the solution features within the limestone. As the loosening works its way upward toward the surface, it eventually results in the subsidence of the ground surface and formation of a sinkhole. Considerable sinkhole activity has taken place in the immediate vicinity of Republic's property. Most visibly, a sinkhole formed in 2006 in 285-acre Scott Lake, 4.5 miles northwest of the landfill. This sinkhole drained the entire lake and destroyed several structures. The Florida Geological Service sinkhole database, which consists of anecdotal reports of sinkhole activity, some of which are unverified, includes 49 sinkholes within five miles of the proposed landfill. Two documented sinkholes have occurred within .17 mile of the landfill--one of which is reported to be 125 feet in diameter and 80 feet deep. Based upon the information contained in the preceding paragraph, Clint Kromhout, a professional geologist with the Florida Geological Survey, opined on August 23, 2009, that the potential for sinkhole formation "within the proposed site and surrounding area" is "low to moderate." Mr. Kromhout does not provide a definition of "low," but part of his opinion is shared by the Golder Report, which agrees that the sinkhole potential on the proposed site is "low." The potential for sinkhole formation in the general area surrounding the proposed landfill, as distinguished from the site itself, is at least moderate. In their Proposed Recommended Order, Republic and Intervenor necessarily concede: "All parties acknowledge that the proposed landfill site is in a general region that has a relatively high frequency of sinkholes as compared with the rest of the state of Florida." It is misleading to characterize the area surrounding the proposed landfill as of low potential for the formation of sinkholes, unless there is another category, like "nonexistent." But characterizing the sinkhole potential of the surrounding area as moderate is not determinative of the likelihood of sinkholes at the landfill's footprint, nor is a site-specific geotechnical investigation mooted by such a characterization. Rather, characterizing the sinkhole potential of the surrounding area as moderate dictates the intensity and scope of the ensuing geotechnical investigation, if the investigation is to provide reasonable assurance of the structural integrity of the proposed landfill. Acknowledging moderate potential for sinkhole formation in the surrounding area, Republic has appropriately relied on three geotechnical reports, including three sets of boring data. The final of these reports, the Hanecki Report, is based on the collection and analysis of boring data, as well as a review of the data and analysis contained in the two earlier geotechnical reports, the Ardaman Report and Golder Report. The boring data reveal that the proposed landfill site features four units. Nearest the surface is Unit 1, which is brown to dark brown, medium- to fine-grained sand with minor amounts of clayey silt. Unit 1 is 0-10 feet thick. Next down is Unit 2, which is tan to gray, medium- to fine-grained sand with increasing silty clay or clayey silt. Unit 2 is 5-10 feet thick and generally marks the upper limit of fine-grained, granular soils (i.e., clayed sands and silty sands). Unit 3 is orange brown to yellow brown, gray and tan silty clay to clayey silt or fine sand and silty clay. Unit 3 is 5-15 feet thick. Unit 4 is gray and tan clayey silt or silty clay with minor amounts of fine sand. This material is very stiff or very dense, and most borings terminated in this unit. The few borings that penetrated this unit suggest that it may consist of dolomitic sandy clays and silts and dolomitic limestone to depths greater than 100 feet below grade. Units 3 and 4 generally mark the upper limits of low permeability/low compressibility soils. The Hanecki investigation comprised two main steps. First, Hanecki retained a subconsultant to perform electrical resistivity imaging (ERI) along 100-foot-wide transects run across the site. Any anomalies revealed by the ERIs were to be followed by standard penetration test (SPT) borings, which permit soil testing at predetermined intervals, as well as a measure of the compressibility of the soils. Compressibility is measured during the soil-testing intervals, during which the drill bit is replaced by a soil sampler. The driller records the number of blows required for a 140-pound hammer falling 30 inches to produce 12 inches of penetration. The value is expressed in N-values, where N represents the number of such blows. Looser soils produce lower N values. Another important piece of information obtained during SPT boring is the partial or total loss of circulation fluid during drilling. While the drill is penetrating soil, a slurry circulates through the borehole to prevent the collapse of the sides of the hole. This slurry is recycled during drilling, but, if the drill encounters a void, all or part of the circulation fluid is lost. The ERI survey revealed no real anomalies because of a narrow range of resistance values. However, taking relatively small differences in resistivity as an anomalies, Hanecki identified 14 features of interest. At each of these locations, Hanecki performed an SPT boring. Because the ERI transects were unable to span the two onsite ponds, Hanecki added two locations for SPT borings adjacent to each side of each pond, for a total of four additional SPT borings. At the request of DEP, Hanecki added a nineteenth SPT boring at Golder site G-11, which had revealed low N-values during Golder's borings. Hanecki extended the borings into "refusal" quality soil, which was defined as soils requiring more than 50 blows of the 140-pound hammer to achieve six inches or less of penetration. All of Hanecki's SPT borings encountered very hard limestone. Among the most significant findings of Hanecki's borings, only one boring, G-11, experienced any circulation fluid loss, and this was estimated at 50 percent. However, it is more likely that this partial circulation fluid loss is due to loosely deposited sands than a void that might be indicative of conditions suitable for sinkhole formation. Not all circulation losses indicate voids that that will result in sinkhole formation. Also significant among Hanecki's findings is a clayey soil, or bedclay, at every SPT boring, which severely limits hydraulic recharge to the limestone. By impeding vertical migration of surface and shallow subsurface water to the limestone layer, this bedclay "greatly inhibits limestone erosion." This bedclay also supports the looser soils above the bedclay and thus prevents raveling, without which sinkholes cannot form. Two borings--G-11 and F3-1--lacked a layer of Unit 3 or 4 soil above the limestone, but Hanecki concluded that the Unit 2 layers above the limestone at these locations contained sufficient clay or clayey sand to serve the same functions of impeding the downward movement of groundwater and preventing the downward movement of loose soils. This conclusion appears reasonable because Unit 2 is the uppermost reach of the finer- grained materials, of which clays and silts are examples when compared to sands. There is obviously some variability in the distribution of finer- and coarser-grained materials within each occurrence of Unit 2 soils. Hanecki's findings indicated intervals of loose soils, sometimes at depth, which typically would suggest raveling zones. At the proposed location, though, these findings do not support raveling due to the underlying bedclay layer and the history of mining, which probably introduced looser soils typically found closer to the surface through the entire 40-foot depth of the mine cut. Based on these findings, the Hanecki Report concludes that, regardless of at least moderate potential for sinkhole potential in the area, the footprint of the proposed landfill has an acceptably low risk of sinkhole development to permit development of the proposed landfill. This is a reasonable conclusion because it is supported by the data collected by Hanecki and his reasoned analysis of these data. Hanecki's conclusion is also supported by the data and analysis contained in the Golder Report and Ardaman Report, which are based on an additional 84 SPT borings, post- reclamation. Only about 12 percent of these SPT borings reached the limestone, and they cover all of Republic's property, not merely the footprint of the proposed landfill. Even so, these borings confirm two important findings of the Hanecki Report. First, they produced data indicative of an extensive bedclay layer intact on Republic's property. Second, the Ardaman and Golder borings reveal only two or three instances of partial circulation loss that, like the sole occurrence of partial circulation loss in the Hanecki borings, are located on Republic's property, but outside the footprint of the proposed landfill. Republic has provided reasonable assurance that the site will provide an adequate foundation for the proposed landfill and sinkholes are unlikely to undermine the structural integrity of the proposed landfill.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order granting the Construction Permit and Operation Permit, but only if the Operation Permit is modified by the addition of the five items identified in paragraphs 172, 174, 175, 181, and 187. DONE AND ENTERED this 8th day of October, 2010, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2010. COPIES FURNISHED: Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Mimi A. Drew, Secretary Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Ronald L. Clark, Esquire Clark, Campbell & Mawhinney, P.A. 500 South Florida Avenue, Suite 800 Lakeland, Florida 33801-5271 William D. Preston, Esquire William D. Preston, P.A. 4832-A Kerry Forest Parkway Tallahassee, Florida 32309-2272 Jennings Kemp Brinson, Esquire Clark, Campbell & Mawhinney, P.A. 500 South Florida Avenue, Suite 800 Lakeland, Florida 33801 Sean R. Parker, Esquire Boswell & Dunlap, LLP 245 North Central Avenue Bartow, Florida 33830-4620 Ralph A. DeMeo, Esquire Hopping, Green, & Sams, P.A. 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 Stanley M. Warden, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Paula L. Cobb, Esquire Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314 John W. Frost, Esquire Frost Sessums Van den Boom & Smith, P.A. Post Office Box 2188 Bartow, Florida 33831 John Stanley Fus Highland Lakes Estates HOA 2190 Boardman Road Bartow, Florida 33830
The Issue Whether Beker Phosphate Corporation should be granted a hermit to construct an industrial waste water facility pursuant to chapter 403, Florida Statutes. By application, dated April 8, 1975, Beker Phosphate Corporation (hereinafter Beker) , sought a permit to construct an industrial waste water facility in Manatee County, Florida, from the Department of Pollution Control (now and hereinafter DER) . The application was received on April 11 and, after advising Beker that the application was incomplete a meeting was held on May 9th between DER and Beker representatives with the result that Beker filed a new application dated June 11, that was received by the DER in July. Further meetings were held in the fall of 1975 and additional in formation was received as to the application. On December 16, 1975, DER secretary. Jay W. Landers, Jr., issued a Notice Of Intent To Grant A Permit With Conditions. The conditions were unspecified in the letter of intent (Exhibit 1.) Subsequently, on December 23 and December 24, 1975, Sarasota County (hereinafter Sarasota) and the Town of Longboat Key (hereinafter Longboat Key), respectively, filed petitions with the DER alleging that their substantial interests would be adversely affected by approval of the permit application and setting forth in their petitions certain disputed questions of fact for determination. After a prehearing conference, Amended Petitions were filed by those parties to clarify and expand on such questions of fact and to resolve procedural matters. Additionally, during this period, George Browning, III, of Sarasota, Florida was granted status as an intervenor.
Findings Of Fact Beker proposes to construct a phosphate rock mine and beneficiation plant on a tract of approximately 11,000 acres in a predominately agricultural and ranching area of Manatee County about 10 miles from Myakka City, Florida. The mining will be performed by two dredges. One will mine overburden and return it to the mined-out area and the other will mine phosphate rock matrix which will be pumped to the beneficiation plant. The plant will consist essentially of two circuits. The first is a washer where the matrix pumped from the dredging operation is partially cleaned of clay and fine sand, and the coarser phosphate particles "pebbles" are separated as a product. The "fines" from the washing operation consist of small phosphate rock particles, sand, and clay. This mixture will be treated in the second section of the plant by "flotation" methods to recover the small phosphate rock particles as a product. During initial operation, the sand and clay will be stored in a temporary waste material storage area, but as the mining proceeds and the dredge pits open up, the sand and clay material will be pumped back to the dredge pits so that sand, and overburden will be mixed and redeposited to reclaim the land. Approximately 8 million gallons of fresh water per day will be drawn from the Floridian aquifer to be used in the flotation circuits. From the plant the water flows in two types of streams--one containing sand suspended in water and one containing clay suspended in water. Both streams flow into a settling pond surrounded by an earthen dam where sand and clay solids settle to the bottom. The clarified water is then decanted through six spillway structures into a hydraulic recirculation ditch outside the dam and flows back to the plant for re-use. The ponds and canals that make up the hydraulic circuit are planned to have sufficient capacity to contain rainwater falling on the site and pond system during the wet season when there are heavy rainfalls (approximately from May to September). Excess water will be decanted from the hydraulic recirculation ditch through a structure into a pipe and then discharged into Wingate Creek. The settling pond will occupy approximately 225 acres and its capacity will be about 8,458 acre- feet. The pond itself can be used to act as a reservoir and water can be built up in the pond during periods of high rainfall. It will not be necessary to release the water at any particular time. It can be released at will when the effluent contains a minimum of pollutant materials (Exhibit 1). Matrix is an unconsolidated mixture of phosphate pebbles and boulders of partly phosphatized limestone, quartz and clay. The washing operation removes unwanted oversized material and fine clays. The purpose of the flotation plant is to recover fine phosphate rock that might otherwise be lost. In the flotation process, flotation reagents, including sulfuric acid, number 2 fuel oil, tall oil, sodium hydroxide, and amines are used for treatment. The wastes are then moved to the settling pond where over a period of time the "slimes", (sands and clays) will settle to the bottom forming an impervious layer which will seal the pond. The settling process removes more than 90 percent of the contaminants from the influent. The coarser clay particles settle first and many of the fine particles settle in a process called "flocculation" by which electrical forces bring the particles together. However, some of the particles will not flocculate and remain suspended in the water. These extremely small particles constitute the total suspended solids that remain in the effluent when it is discharged from the settling area. They probably will not settle out entirely during their course from Wingate Creek into the Myaaka River and eventually to the Gulf of Mexico. However, even if it were assumed that such materials would settle somewhere between the point of discharge and Charlotte Harbor, over the entire 20 year proposed life of the mine they would form a deposit much less than 1/10th of an inch. Although it is technically possible to treat water to the degree that it would result in distilled water, realistic concepts of treatment establish that an additional settling or "polishing" pond for the proposed facility might not improve the quality of the wastewater finally discharged in state waters to any appreciable degree. Alternative proposals for the reduction of pollutants by additional processing, such as the intentional growth of water hyacinths in settling areas or use of chemical coagulants would result in creating other waste materials and thus be counterproductive (Testimony of Bromwell; Exhibit 1). The applicant's discharge of wastewater to Wingate Creek will average approximately 3.19 million gallons per day. However, since discharge will be effected primarily during periods of excessive rainfall, actual discharges can reach a maximum of about ten million gallons per day during this period. The effluent contained in such discharge will meet the test of at least 90 percent removal of organic and inorganic wastes specified by Rule 17-3.04(1), Florida Administrative Code, when measured by the influent into the settling pond and the effluent leaving that area. This treatment, however, will not produce an effluent equivalent to that produced by the "highest quality municipal waste treatment." The highest degree of treatment that has been reached by municipalities is "advanced waste treatment" as defined in Rule 17-3.04(2)(b), Florida Administrative Code. The water quality characteristics of the effluent will meet the standards of Rule 17-3.05 as to concentrations of those pollutants reasonably anticipated to be fond in the wastewater based on samples taken where the waters are discharged into Wingate Creek (Testimony of Gilgallon, Davis, Edwards, Heinzman, Bromwell, Bartow, Wellford, Exhibit 1). In preparing the application, no consideration was given to the need of meeting treatment standards for highest quality municipal waste treatment or advanced waste treatment. Neither did the recommending official of the DER, Mr. Edwards, then Regional Administrator for the Southwest Region, consider this standard because he had been advised by the DER legal staff that Rule 17-3.04(2) did not apply to Wingate Creek since it was not a tributary to one of the bodies of water listed in subparagraph (c) of the rule 17-3.04(2). This determination was based upon Resolution No. 74-83, September 17, 1974, of the Florida Pollution Control Board that was issued after legal challenges had been made to an interpretation by the Department of Pollution Control legal staff that Rule 17-3.04(2) required advanced wastewater treatment for industrial waste discharges. The Board, in its resolution, determined that since evidence had not been taken concerning treatment standards for industrial waste discharges at the time of adoption of the effluent standards for sanitary waste contained in Rule 17-3.04(2), the advanced wastewater treatment standards in the aforesaid rule would not be enforced against industrial dischargers pending full hearings on a new Rule to clearly express the Board's intent in this regard (Testimony of Gilgallon, Edwards; Exhibit 1). Special conditions that the Southwest Region, Department of Environmental Regulation, recommends should be attached to any issuance of a construction permit, other than standard conditions and those relating to other types of permits, are as follow: Approval by DER prior to the construction of any above grade phosphatic clay storage facility other than the initial settling pond. Removal efficiencies for oil and grease shall be a minimum of 90 percent and shall not exceed 14 milligrams per liter measured in the discharge effluent. Discharge effluent to Wingate Creek shall meet the water quality standards of Chapter 17-3.05(2) at the point of discharge prior to mixing with the receiving stream. Further treatment of the discharge will be required in the event compliance with proviso (c) above cannot be achieved or significant degradation of the receiving stream occurs as determined by the DER. In addition to required routine monitoring, a detailed analysis of the untreated and treated wastewater to be conducted once on representative samples during (1) month of July and (2) month of February. Such analyses shall, as a minimum, include all the parameters listed in 17-3:05(2). Applicants shall conduct an investigation into total retention possibilities of the effluent including, but not limited to, the following areas: recharge wells retention and storage of excess water during the "wet" season with subsequent reuse during the "dry" season for process and/or irrigation purposes. A report of these investigations shall be submitted prior to submission of operation permit application The location of monitoring wells shall be down gradient from the settling pond. Detailed proposal, subject to the DER approval, regarding exact location and number of wells to adequately ascertain the impact of seepage to be submitted no later than 90 days prior to commencement of operation. Bond to be posted for damages that may result from a clay settling area dam failure. Oral and written communications from the public were received at the hearing and included the following: Announcement by the County Attorney, Manatee County, that the county did not plan to appeal the DER Notice of Intent to Grant the permit (Statement of E.N. Fay, Jr.). The Division of Recreation and Parks, Department of Natural Resources, fears that the construction of the phosphate mine up-stream from the Myaaka diver State Park poses a serious potential threat to its aquatic habitat due to the possibility of a dam failure. It also fears that pollutants from the project will tend to settle as the river waters flow through the two lakes in the park. It therefore, opposes the construction until assurance can be given that proper safeguards have been taken to prevent such problems (Testimony of Alverez). The Longboat Key Garden Club believes that the project would involve too much water consumption and also that phosphate mining should be halted until further government studies are made to assure that the safety and health of the populace and the environment will not be endangered through polluted runoff and phosphate spills (Testimony of Monroe). The Save Our Bays Association in Manatee County has collected petitions from citizens in Manatee County requesting a referendum on a ballot this November for or against phosphate mining. The Association believes that such a vote should be taken before final decision is made on the subject. Its spokesman fears that if the quality and quantity of the drinking water is disrupted, it will interfere with continued tourist trade (Testimony of Howard Greer). The Palma Sola Parks Association opposes the Beker Application until there is greater assurance of environmentally safe mining (Testimony of Blankenship) A former physical and health education director is concerned about the fact that there has not been sufficient data collected on the effect of radioactive materials in runoff and waste. She believes there should be more research in these areas and asked that the public be protected from such hazards (Testimony of Mary Kay Greer). The Manasota-88 project for environmental qualities of 1968 and 1988 believes that issuance of the permit should be withheld until health implications can be determined concerning potential hazards to the Myakka and Manatee Rivers' watersheds (Exhibit 7). A former member of the Manatee County Planning Commission that approved the Beker application prior to action by the County Commission of Manatee County is in favor of the proposed project because Beker's plan to impound water will augment the water facilities of the county (Testimony of Reasoner). The City of Bradenton believes that since it is being required to meet advanced water treatment standards of discharge for sanitary sewage, Beker Phosphate Corporation should be required to meet similar standards (Testimony of Mayor A.K. Leach). A member of the Myakka City Civic Association who is an adjacent land owner to Beker Phosphate Corporation feels that the project is necessary in order to produce jobs for individuals in that area of the county (Testimony of Mizell). The U.S. Fish and Wildlife Service is concerned that proposed construction of two dams by the applicant will destroy approximately (4) acres of mangrove areas, three acres of pasture land and about 185 acres of bottom land or hardwood habitat. It recommends an alternative method of backup levies constructed around the primary settling bases on the applicant's land to contain any spills and prevent destruction of the streams and associated wetlands (Testimony of Johnston) The Conservation Council of Manatee County believes that Beker's unique mining and reclamation plan will help the farming industry and also create necessary water reserviors and recreation areas, and therefore endorses its proposal to mine in Manatee County (Testimony of Kent, Exhibit 14). Petitions were submitted at the hearing from approximately 3,000 individuals living in Manatee and Sarasota Counties opposing the issuance of the permit because they believe that phosphate mining is dangerous to the quality and supply of the water and endangers the health of the people (Composite Exhibit 9, Testimony of Humphrey).
The Issue The issue to be determined is whether the Governor and Cabinet, sitting as the Siting Board, should approve the Site Certification Application ("Application") submitted by Florida Power & Light Company ("FPL"), pursuant to the Florida Power Plant Siting Act ("PPSA"), sections 403.501 through 403.518, for the construction and operation of a new electrical power generation facility, Dania Beach Energy Center ("DBEC") at FPL's existing Lauderdale Site in Broward County, Florida; and, if so, the Conditions of Certification that should be imposed.
Findings Of Fact The Parties FPL is the applicant for site certification for the DBEC electrical power plant5/ at issue in this proceeding. FPL is the largest electric utility in Florida, serving approximately 4.9 million customer accounts. Its service territory covers approximately 28,000 square miles, in all or part of 35 counties in Florida, and in Georgia. Its 53 existing electrical power generating units are located at power plants throughout its service territory, and consist of diverse generation technologies, including nuclear units, coal-burning units, combined cycle units, oil/gas steam units, combustion turbines, gas turbines, and solar facilities. As of December 2016, FPL had a total system electrical power generation capacity of 26,267 megawatts ("MW"). DEP is the state agency charged with administering the PPSA, which is codified at chapter 403, part II. Specifically, the SCO administers the PPSA and coordinates the site certification process, including receiving comments from the affected agencies and preparing the PAR, which contains the proposed Conditions of Certification.6/ Sierra is a national non-profit environmental advocacy organization. A key component of Sierra's mission is to advocate for the use of clean energy sources. As discussed below, Sierra was granted intervenor status pursuant to section 403.508(3)(e), subject to proving that its substantial interests are affected in this proceeding. The DBEC Electrical Power Plant FPL's Lauderdale Site FPL owns and operates the Lauderdale Site, an existing electrical power generating facility site located on approximately 392 acres in the City of Dania Beach and the City of Hollywood, in Broward County, Florida. The Site is approximately one mile west of Interstate 95 and approximately 1/4 mile south of Interstate 595. It has served as an operating power plant site for more than 90 years, and has existing infrastructure consisting of a transmission switch yard, a gas yard, an existing gas transmission pipeline, an existing electrical transmission system, water lines, fuel storage tanks, and a sewer line. Currently, the Lauderdale Site features five electrical power generation units: Units 4 and 5, which consist of four combined cycle units comprised of four 1990s-vintage combustion turbines ("CTs"), four heat recovery steam generators ("HRSGs"), and two 1950s-vintage steam turbines; Unit 6, which consists of five 200-MW single cycle CTs used as "peakers" to generate additional electrical power during periods of peak demand; and two 35 MW units. Location of DBEC DBEC is proposed to be constructed on the portion of the Lauderdale Site that is located within the City of Dania Beach. The City of Dania Beach recently amended its Comprehensive Plan to add the Electrical Generation Facilities use category to the Future Land Use Element and to so designate, on its Future Land Use Map, the portion of the Lauderdale Site on which DBEC will be constructed. DBEC is proposed to be constructed and operated on the portion of the Lauderdale Site on which Units 4 and 5 currently are located. These units will be completely dismantled and removed before construction of DBEC commences.7/ DBEC will use much of the existing infrastructure that currently serves Units 4 and 5. This infrastructure includes existing fuel and storage tanks, an existing gas transmission pipeline, existing electrical transmission lines, existing cooling water intake at the Dania Cutoff Canal, and existing cooling water discharge structures. The major new components of DBEC will be constructed at an elevation of 11.5 feet above mean sea level. The existing infrastructure that will be used by DBEC will not be raised above its current elevation above mean sea level. Unit 7 Technology Unit 7, as proposed, will consist of a new two-on-one combined cycle electrical power generation unit with a nominal rating of 1,200 MW. A combined cycle electrical generation system generates electrical power in two cycles. In the first cycle, ambient air is drawn into the multistage compressor, where it is compressed, then directed to the combustor section, where fuel——in this case, natural gas——is introduced, ignited, and burned. The hot combustion gases are diluted with additional cool air and directed to the turbine section, where they expand, causing the CT, which is connected to a generator, to rotate, producing electricity. The captured gases are then routed to a HRSG, which begins the second cycle. In this cycle, the heat from the captured gases is used to convert water to steam, which drives a steam turbine generator ("STG"), producing additional electricity. Each CT/HRSG combination is termed a "train." Unit 7 will have two CT/HRSG trains, each having a gross generation capacity of 400 MW at an inlet air temperature of 75 degrees Fahrenheit. These two CT/HRSG trains will be connected to one STG having a generation capacity of 400 MW. The combination of the two CT/HRSG trains with one STG gives rise to the "two-on-one combined cycle" label for this type of power generation unit. Combined cycle systems, such as the one that will constitute Unit 7, are significantly more efficient than single cycle units that involve only combustion turbines. This increased efficiency is due to the addition of the second cycle, which uses captured exhaust heat from the first cycle to create steam, which is then used to turn a steam turbine, thereby generating an additional 400 MW of electricity per total amount of fuel burned. Operating efficiency for combined cycle units is measured in terms of "heat rate," which is an expression of how efficiently the fuel is converted to electrical energy. The lower the heat rate, the more efficient the electrical power generation unit. Unit 7 is a modern combined cycle plant and is expected to achieve a heat rate of approximately 6,119 British Thermal Units ("BTUs") per kilowatt hour. By contrast, Units 4 and 5——which are also combined cycle units but use older, less efficient equipment——have an average heat rate of approximately 7,800 BTUs per kilowatt hour. As noted above, Unit 7 will use natural gas as its primary fuel. The natural gas will be delivered to the DBEC site through an existing natural gas pipeline, which originates offsite and is not part of this site certification proceeding.8/ Ultra-low sulfur distillate ("ULSD") oil will be used as the back-up fuel. Unit 7 Effect on FPL System-wide Natural Gas Consumption As noted above, Unit 7 will use the most modern combined cycle technology. Dr. Steven Sim, FPL's director of Integrated Resource Planning, prepared a projection of the effect Unit 7 will have on natural gas consumption by FPL's electrical power generation units on a system-wide basis. Using a model that simulates the operation of all electrical generating units on FPL's system, FPL compared, for natural gas fuel consumption on a system-wide basis, two scenarios: one in which Units 4 and 5 continue to operate indefinitely and Unit 7 is not constructed and operated; and one in which Units 4 and 5 are retired in the fourth quarter of 2018, and Unit 7 is constructed and commences operation in mid-2022. The inputs to the model included a range of information, including the electrical load that FPL will serve in the future, on an hourly, monthly, and yearly basis, for a period of 30 years; information, for each of FPL's 53 electrical power generation units regarding individual generating capacity, fuel use efficiency, scheduled maintenance outages, and forced outages; fuel costs; environmental compliance costs; and the addition of other power-generation resources to meet future forecasted demand. The model was used to determine which of FPL's generating units operate during each hour, in order to determine how to most economically generate electrical power. The model projected a significant reduction in natural gas consumption by FPL on a system-wide basis over a 30-year horizon if Units 4 and 5 are retired in late 2018 and Unit 7 commences operation in 2022. Conversely, if Units 4 and 5 are not retired and continue to operate9/——which will be the case if Unit 7 is not certified——the model showed that FPL will consume substantially more natural gas on a system-wide basis over a 30- year horizon, from 2018 through 2047, than if Unit 7 is certified, constructed, and begins operating in 2022. Assuming Units 4 and 5 are retired in 2018 and Unit 7 commences operation in 2022, the model-generated comparative natural gas consumption amounts shows a consistent system-wide decrease in natural gas consumption in amounts ranging from slightly over two million cubic feet per year to slightly over six million cubic feet per year, for a projected total decrease in system-wide natural gas consumption of nearly 134 million cubic feet over the 30-year horizon. This is because the operation of Unit 7 will displace less-efficient gas burning units that otherwise would be used if Unit 7 does not operate. Further, because the model-generated projected natural gas consumption amounts simply compared the "with Units 4 and 5 and without Unit 7" scenario to the "without Units 4 and 5 and with Unit 7" scenario, with all other variables being held constant, the projected natural gas consumption differential between the two scenarios would not change, regardless of whether, and which, additional types of energy-generation resources were added to FPL's system. Dr. Sim acknowledged that the social costs of carbon were not considered as part of the modeling of FPL's system-wide projected natural gas consumption. However, he noted that as a practical matter, because Unit 7 will operate more efficiently, FPL will demand less natural gas on a system-wide basis to fuel its electrical power generating units. As a result of reduced demand, less natural gas will need to be produced and transported by pipeline to fuel FPL's electrical power plant generating system. Public Service Commission Need Determination Pursuant to section 403.519, FPL filed a petition for determination of need for DBEC with the PSC in October 2017. Sierra intervened into the need determination proceeding. The final hearing was held on January 17, 2018. The PSC issued the Need Determination for DBEC Unit 7 on March 19, 2018. This Order, which constitutes final agency action, was not appealed. During the need determination proceeding, Sierra contended, and presented evidence in an effort to show, that renewal energy sources and technologies, such as solar facilities, could be deployed incrementally to delay or potentially entirely forestall the need for Unit 7. Thus, as part of the need analysis, the PSC specifically considered the feasibility of using renewable generation options and sources, including solar facilities. The PSC specifically determined that the use of such generation options and sources, including solar facilities, was less cost-effective than DBEC. The PSC found that: "[n]o additional cost-effective renewable resource has been identified in this proceeding that can mitigate the need for new generation. Similarly, no additional cost-effective [Demand Side Management] has been identified in this proceeding that can mitigate the need for new generation." Based on the evidence and argument presented in the need determination proceeding, the PSC granted the Need Determination for DBEC Unit 7, specifically finding and concluding that "the Dania Beach Clean Energy Center Unit 7 is the most cost-effective alternative that maintains Florida Power & Light Company's system and Southeastern Florida area reliability compared to other alternatives[.]" Section 403.519(3) states: The commission shall be the sole forum for the determination of [need], which accordingly shall not be raised in any other forum or in the review of proceedings in such other forum. In making its determination, the commission shall take into account the need for electric system reliability and integrity, the need for adequate electricity at a reasonable cost, the need for fuel diversity and supply reliability, whether the proposed plant is the most cost-effective alternative available, and whether renewable energy sources and technologies, as well as conservation measures, are utilized to the extent reasonably available. The commission shall also expressly consider the conservation measures taken by or reasonably available to the applicant or its members which might mitigate the need for the proposed plant and other matters within its jurisdiction which it deems relevant. The commission's determination of need for an electrical power plant shall create a presumption of public need and necessity and shall serve as the commission's report required by s. 403.507(4). An order entered pursuant to this section constitutes final agency action. § 403.519, Fla. Stat. (emphasis added). Pursuant to this statute, the PSC is the only entity authorized to determine whether an electrical power plant is needed, and whether, given the need for the power plant, the applicant should be required to implement renewable energy sources and technologies, including the use of solar generation facilities. Here, the PSC determined that DBEC is needed, and further determined that the use of renewable energy sources and technologies, such as solar technology, was not cost-effective, and, therefore, was not reasonably available. Pursuant to the plain language of section 403.519(3), it is beyond the scope of this proceeding for the undersigned or the Siting Board to require, as a condition of site certification for DBEC, the use of alternative energy sources or technologies, such as solar or other forms of renewable energy, or to deny DBEC's site certification on the basis that such technologies are not proposed as part of the project. DBEC Emissions and Air Construction/Prevention of Significant Deterioration Permit Florida's Air Quality Regulatory Program In Florida, DEP implements the federal air regulatory programs under the Clean Air Act, subject to approval and oversight by the United States Environmental Protection Agency ("EPA"). Under this system, DEP is the permitting authority, while EPA retains commenting authority. DEP rules implementing the Clean Air Act consist of several air quality regulatory programs. Pertinent to this proceeding are the National Ambient Air Quality Standards ("NAAQS") and Prevention of Significant Deterioration ("PSD") programs. Under the Clean Air Act, EPA is required to promulgate NAAQS for certain air pollutants called "criteria" pollutants. The primary NAAQS establish levels of air quality that are necessary to protect the public health, with an adequate margin of safety to protect sensitive populations. Secondary NAAQS also may be established to protect the public welfare, which can include environmental impacts. 40 C.F.R. § 50.2(b). NAAQS have been developed for six air pollutants: sulfur dioxide, nitrogen dioxide, carbon monoxide, ozone, certain sizes of particulate matter, and lead. NAAQS have not been established for greenhouse gases ("GHGs"). For each of the six criteria air pollutants for which NAAQS have been developed, EPA has designated areas within each state that either meet or do not meet the NAAQS for that specific pollutant. Areas in which the NAAQS for a specific criteria air pollutant is met are termed "attainment" areas for that pollutant, while areas in which the NAAQS is not met for a specific criteria pollutant are termed "nonattainment" areas for that pollutant. Attainment areas are classified as Class I, which need special air quality protection; or Class II, which do not need special air quality protection. Everglades National Park and designated national wilderness areas are the only Class I attainment areas in Florida. All other attainment areas in Florida are designated as Class II. Broward County, including the DBEC site, is in a Class II attainment area for all NAAQS. The PSD program applies in attainment areas to limit the air quality impacts that may result from new or modified major sources of air pollution. Its purpose is to assure that the air quality in areas meeting the NAAQS does not significantly deteriorate below an established baseline. Under the PSD program, all major new sources of air pollution are subject to preconstruction review to determine whether significant air quality deterioration will result from the facility. As part of the PSD review, the new source is required to demonstrate compliance with PSD increments, which effectively constitute small amounts of air quality impacts that new or modified major sources of air pollution cannot exceed. PSD increments are more stringent than NAAQS, and, as such, they protect against air quality degradation in attainment areas. If an area meets the NAAQS for a specific criteria pollutant, PSD increments prevent the addition of that pollutant in greater than that incremental amount over an established baseline concentration for that pollutant. No PSD increments have been established for GHGs. The PSD program also requires demonstration that the air pollution source will use the Best Available Control Technology ("BACT"). BACT is defined, in pertinent part, as: an emission limitation based on the maximum degree of reduction of each pollutant subject to regulation under this chapter emitted from or which results from any major emitting facility, which the permitting authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such facility through application of production processes and available methods, systems, and techniques, including fuel cleaning, clean fuels, or treatment or innovative fuel combustion techniques for control of each such pollutant. 40 U.S.C. § 7479(3). More simply stated, BACT is the maximum degree of emission reduction that is available and feasible for the source, taking into account environmental, energy, economic impacts, and other costs. BACT requires a "top-down" analysis, which starts with the most stringent emission limits demonstrated feasible for a specific air pollution source category, as applied throughout the country. EPA has created a software tool accessible on its website, that enables a review of different source categories to determine the most stringent applicable control technology that meets the definition of BACT for that particular source type. BACT also must be at least as stringent as new source performance standards ("NSPS"), which are EPA-developed emissions limits for specific pollutants emitted by new or modified air pollution sources within a particular source category. The NSPS applicable to combined cycle combustion turbines, such as those that will comprise Unit 7, are nitrogen oxides, sulfur dioxide, and GHGs. DBEC Emissions DBEC will have several sources of air emissions. These consist of the two CTs that are part of the CT/HRSG trains discussed above; an auxiliary boiler; two emergency diesel generators, two natural gas heaters; a fire water pump diesel engine; a 14-cell auxiliary cooling system; and circuit breakers containing sulfur hexafluoride located in the Unit 7 power block. Of these, the CTs constitute the most significant air emissions source. DBEC's air emissions sources will emit nitrogen oxides, carbon monoxide, volatile organic compounds, sulfur dioxide, sulfuric acid, particulate matter ("PM") 10 and PM2.5, and GHGs. The GHGs emitted by DBEC will consist primarily10/ of carbon dioxide, with small amounts of methane.11/ DBEC's Air Construction/PSD Permit FPL applied to DEP for an air construction/PSD permit for DBEC in July 2017. DEP issued the air construction/PSD permit for DBEC ("Air Permit") in December 2017. The Air Permit was not challenged and became final agency action on December 24, 2017. It is valid through December 31, 2027. Pursuant to section 403.509(5), the Air Permit is not subject to revision or modification in this proceeding.12/ Because DBEC will emit 100 tons per year or more of regulated pollutants and is included in a source category to which the 100-tons-per-year threshold applies, it constitutes a major stationary source of air pollution. See Fla. Admin. Code R. 62-210.200(154)(a)1. Therefore, under Florida and federal law, FPL was required to obtain an air construction/PSD permit for DBEC. As part of the PSD review, FPL was required to perform a control technology review; to demonstrate that all applicable state and federal emission limiting standards would be met; and to determine and implement BACT to control the emissions. Projected emissions of carbon monoxide, volatile organic compounds, sulfur dioxide, sulfuric acid, PM10 and PM2.5, and GHGs underwent PSD review. Initial PSD modeling for projected carbon monoxide and sulfur dioxide emissions showed that these emissions would not exceed "significant impact levels," so no further review beyond the modeling was required. Initial modeling showed that PM10 and PM2.5 emissions would exceed the "significant impact level," so the modeling results were compared to the Class I and Class II PSD increments. This comparison showed that neither PM10 emissions nor PM2.5 emissions would exceed the increments for these pollutants. Accordingly, FPL demonstrated that DBEC would comply with the incremental standards for these pollutants. DBEC also meets BACT for volatile organic compounds emissions. The primary BACT for GHG emissions for Unit 7, as a combined cycle unit, is the efficiency of the unit itself in producing electrical power using low-GHG emitting fuels, such as natural gas. As previously discussed, Unit 7 will be an extremely efficient combined cycle unit that will use natural gas as its primary fuel. The Air Permit limits the emissions rates for, and amounts of, GHG emissions. These are consistent with BACT, as determined comparing DBEC's control technology to all other types of GHG control technology for CTs throughout the country. The Air Permit also imposes an extremely stringent methane monitoring requirement. Pursuant to these measures, DBEC was determined to meet the BACT requirement applicable to GHGs.13/ Additionally, DBEC will meet the NSPS applicable to CTs.14/ Specifically, DBEC emissions of nitrogen oxides will be 7.5 times lower than the NSPS limit for that pollutant, and DBEC emissions of sulfur dioxide will be ten times lower than the NSPS standard for that pollutant. Accordingly, DBEC will meet the NSPS for these pollutants. DBEC also will meet the applicable NSPS for GHGs.15/ The NSPS for GHG emissions applicable to combined cycle CTs is 1,000 pounds per MW hour ("lbs/MWh"). DBEC is projected to produce 727 lbs/MWh of GHGs when burning natural gas——well below the 1,000 lbs/MWh NSPS limit. The Air Permit also imposes emissions standards for carbon monoxide, PM10 and PM2.5, sulfur dioxide, sulfuric acid mist, volatile organic compounds, and GHGs. The competent, credible evidence established that replacing Units 4 and 5 with Unit 7 will reduce the emissions of nitrogen oxides, PM10 and PM2.5, volatile organic compounds, sulfur dioxide, and carbon monoxide by approximately 6.6 million pounds for the period from 2018 to 2047. The evidence also established that replacing Units 4 and 5 with Unit 7 is projected to result in an approximately 22-percent reduction in GHGs generated, measured in lbs/MWh, assuming Unit 7 is operated at the same frequency as Units 4 and 5. This comparative reduction in GHG emissions on a lbs/MWh basis underscores the efficiency of Unit 7 compared to Units 4 and 5. Additionally, the credible evidence established that the operation Unit 7 will result in a system-wide reduction of GHG emissions for the period from 2018 to 2047.16/ The retirement of Units 4 and 5 in 2018 and commencement of operation of Unit 7 in 2022 may not result in reduced total amounts of GHG emissions generated at the Lauderdale Site. This is because even though Unit 7 is substantially more efficient than Units 4 and 5——so will burn substantially less natural gas——it may operate more often because it will be the most efficient electrical power generating unit in FPL's electrical power generation system. However, the competent, credible evidence showed that the operation of Unit 7 will reduce GHG emissions across FPL's electrical power generating system because it will be operated more often than other, less efficient units, thereby displacing the use of those units across FPL's electrical power generation system. Stated another way, because Unit 7 will be a significantly more efficient electrical power generating unit—— meaning that it will produce more electricity per cubic foot of natural gas than FPL's less efficient units——it will be operated more frequently than FPL's less efficient units, resulting in reduced consumption of natural gas on a system-wide basis. Reduced natural gas consumption on a system-wide basis will result in a reduced total amount of GHGs generated on a system-wide basis from FPL's electrical power generating plants. The competent, credible evidence establishes that the retirement of Units 4 and 5 in 2018 and the addition of Unit 7 in 2022 will result in a total reduction of approximately 8.1 million tons17/ of GHG emissions in the form of carbon dioxide18/ across FPL's electrical power generation system for the period from 2018 to 2047.19/ Sierra contends that DBEC will "[e]mit millions of tons more [GHGs] every year than the units it replaces." As discussed above, the evidence shows that the operation of Unit 7 in conjunction with the retirement of Units 4 and 5 in 2018 may not result in reduced GHG emissions at the Lauderdale Site because, due to its efficiency, Unit 7 may be operated more frequently and at higher capacity. However, the competent, credible, and persuasive evidence establishes that the total GHG emissions from FPL's electrical power plant generating units will be reduced on a system-wide basis by approximately 8,123,624 tons over the period between 2018 and 2047. Further, Sierra's position that retiring Units 4 and 5 in 2018 and operating Unit 7 beginning in 2022 will result in a greater total amount of GHGs being emitted appears grounded in the assumption that if Unit 7 does not go into operation, FPL will retire Units 4 and 5 by 2033. However, this assumption is not supported by any competent substantial evidence in the record,20/ and was directly contradicted by Dr. Sim, who testified that Units 4 and 5 realistically could operate indefinitely. In sum, the competent, credible, and persuasive evidence shows that if DBEC does not commence operation in 2022, and Units 4 and 5 continue to operate indefinitely, FPL's GHG emissions on a system-wide basis will be approximately 8,123,624 tons more for the period between 2018 and 2047 than if Units 4 and 5 are retired in 2018 and Unit 7 commences operation in 2022. In sum, FPL demonstrated that DBEC meets all applicable state and federal air regulatory and permitting requirements for DBEC and, specifically, for Unit 7. As discussed above, FPL demonstrated that DBEC will meet the applicable BACT requirement——which literally means the best available control technology——for GHG emissions, as well as other emissions from Unit 7 and other emissions sources. Additionally, the air construction/PSD permit establishes emissions limits for DBEC, and, specifically, for Unit 7, and FPL demonstrated, to DEP's satisfaction, that its emissions control technology will meet the applicable standards, which are more stringent than applicable NSPS limits. Thus, FPL demonstrated that DBEC will meet state and federal law regarding emissions limitations for GHGs and other pollutants emitted by DBEC. Sierra's Contentions Regarding GHG Emissions from DBEC Notwithstanding that FPL demonstrated that DBEC meet all applicable air rules and regulations, Sierra contends that the Siting Board should either deny the site certification for DBEC or approve it with conditions (addressed below) because, it alleges, FPL and/or DEP failed to consider or address numerous environmental issues regarding projected GHG emissions for DBEC. These alleged deficiencies are: failure of FPL and/or DEP to perform modeling of the "the environmental impact" of DBEC's GHG emissions; failure of FPL and/or DEP to analyze the "social costs of carbon" emitted by DBEC; failure of FPL and/or DEP to perform a "life-cycle analysis" to analyze DBEC's GHG emissions "from start to finish, . . . from gas generation to gas burn"; failure of FPL and/or DEP to consider the cumulative impacts of DBEC's emissions combined with GHG emissions "from other existing and foreseeable permitted sources in Florida and elsewhere"; and failure of FPL and/or DEP to consider the use of solar electrical power generation.21/ Each of these challenges is addressed below. Failure to Model Endpoint Environmental Impact With respect to FPL's and/or DEP's alleged failure to perform modeling of "the environmental impact" of DBEC's GHG emissions, the evidence establishes that FPL and DEP complied with the applicable state rules and federal regulatory requirements in addressing GHG emissions from DBEC. To that point, Syed Arif, who performed the air construction/PSD permit application review, testified that modeling of the environmental impacts of DBEC's projected GHG emissions offsite was not performed because it is not required by the applicable state rules and federal regulations. Indeed, EPA's PSD Guidance document22/ specifically states that "[w]hen conducting a BACT analysis for GHG's, the environmental impact analysis should continue to concentrate on impacts other than direct impacts due to emissions of the regulated pollutant in question." This document further states, in pertinent part: When weighing any trade-offs between emissions of GHGs and emissions of other regulated NSR pollutants, EPA recommends that permitting authorities focus on the relative levels of GHG emissions rather than the endpoint impacts of GHGs. As a general matter, GHG emissions contribute to global warming and other climate changes that result in impacts on the environment and society. However, due to the global scope of the problem, climate change modeling and evaluations of risks and impacts of GHG emissions currently is typically conducted for changes in emissions orders of magnitude larger than the emissions from individual projects that might be analyzed in PSD permit reviews. Quantifying these exact impacts attributable to the specific GHG source obtaining a permit in specific places is not currently possible with climate change modeling. Given these considerations, an assessment of the potential increase or decrease in the overall level of GHG emissions from a source would serve as the more appropriate and credible metric for assessing the relative environmental impact of a given control strategy. EPA PSD Guidance, at pp. 41-42 (emphasis added). In sum, state and federal PSD permitting law does not require an analysis of endpoint impacts of GHGs, and, further, expressly recognizes that due to the global scope of GHG emissions' contribution to climate change, climate change modeling and risk/impact evaluation of GHG emissions is conducted on a scale orders of magnitude larger than the emissions from individual projects. Additionally, the guidance expressly recognizes that determining the exact climate change impacts due to GHGs emitted on a source-specific basis is not currently possible with climate change modeling. Sierra's contention that the site certification for DBEC should be denied or additional GHG-related conditions imposed due to project-specific environmental endpoint impacts is not persuasive, because it is not grounded in applicable law and, as discussed above, is not possible using current climate change modeling. Failure to Consider and Address Social Costs of Carbon Sierra also contends that the site certification for DBEC should be denied or additional GHG-related conditions imposed because FPL and/or DEP failed to analyze the social costs of carbon emitted by DBEC, particularly by Unit 7, and failed to mitigate or minimize those costs. The social cost of carbon is defined as the present monetary value of the additional damages caused by emitting one more ton of carbon dioxide. In general terms, the social cost of carbon is the economic cost per ton of emissions. For each incremental ton of carbon emissions, there is an incremental amount of harm. There are different methods, or models, for determining the social cost of carbon. They vary depending on the types of data used in the model, as well as how the models address issues such as the rate of climate change; whether the models adequately and accurately address catastrophic risk; and whether the models address "tipping points" at which climate change becomes abruptly and irreversibly worse. Sierra's expert on the social cost of carbon, Dr. Frank Ackerman,23/ presented the results of integrated assessment models used to estimate the social cost of carbon.24/ These types of models have been applied in various studies to estimate, in 2017 dollars, the cost per metric ton of carbon dioxide. These studies generated estimates of the social cost of carbon ranging from as low as $39 per metric ton in 2020 to as high as $1,821 in 2050, with each study generating a range of projected values for the first year modeled——either 2020 or 2025——through the last year modeled——either 2050 or 2055. These widely-ranging values for the modeled years over these 30-year periods are due to the substantial uncertainty and disagreement regarding the rate and extent of climate change, and whether there are tipping points that must be taken into consideration. Ackerman estimated the social cost of carbon, as of 2012, as ranging from $33 to $1,048 per metric ton of carbon dioxide in 2020, to $75 to $1,821 per metric ton of carbon dioxide in 2050. Ackerman prepared a report analyzing the social cost of carbon from DBEC's projected GHG emissions. He attempted to compare the costs of DBEC's emissions with the benefits of DBEC's operation. In assessing the social cost of carbon emitted by DBEC, Ackerman considered the damage to tourism; human health; unique wildlife and ecosystems, including the Everglades; and property loss due to sea level rise and exacerbated king tides. He acknowledged that while it can be very difficult to estimate the true monetary value of the social cost of carbon for a project due to the aforementioned uncertainties, it is possible to arrive at estimates that represent a "floor," or minimum value, of damage due to GHG emissions from a specific project. Ackerman used the federal government's estimated social cost of carbon of $70 per ton of carbon dioxide25/——which, in Ackerman's view, underestimates the value of damages due to carbon dioxide emissions——and multiplied it by the GHG emissions, in tons, for each year of the DBEC project's projected life. Using two different annual GHGs emissions projections for DBEC—— 4.13 million metric tons or 3.04 million metric tons——he determined that the value of damages due to carbon dioxide emitted by DBEC would range from $213 million to $289 million on an annual basis.26/ Ackerman testified that, according to a research project conducted by Columbia University and the Rhodium Group, out of the 48 contiguous states, Florida will experience the greatest damage from climate change——which is projected to negatively impact the state's gross domestic product ("GDP") by between 10 and 24 percent by 2100. Using this study's projected GDP impacts and assuming that Florida experiences, to the year 2100, the same growth rate it has experienced over the past 20 years, Ackerman estimated that the monetary impact to Florida's economy from climate change may be between $500 million to $1.1 trillion annually by 2100. Ackerman also attempted to quantify DBEC's proportion of that impact on Florida. Using the two values of projected carbon dioxide emissions from DBEC and comparing them to global carbon dioxide emissions projections, Ackerman estimated that DBEC accounts for approximately 1/115,000th to 1/120,000th of total global carbon dioxide emissions on an annual basis. Using those proportions and the valued damage of global climate change to Florida, he estimated that the present value of the damages resulting from DBEC's annual carbon dioxide emissions would range from $8.4 million and $27 million per year. Ackerman also compared these annual projected social costs of carbon dioxide to the assumed $8.29 million annual benefits of the DBEC project to FPL's ratepayers. Based on this comparison, he concluded that the damages from DBEC's carbon emissions greatly outweigh DBEC's benefits to FPL ratepayers. Ackerman did not perform any analysis of DBEC's economic effects on the local community. He also did not take in account the effect that the increased efficiency of Unit 7 would have on FPL's system-wide emissions of GHGs through 2040. He acknowledged that if greenhouse gas emissions are reduced as a result of Unit 7, then the overall harm and damage from the social costs of carbon would also be reduced. As he put it: "[t]he social cost is a per ton harm, so if fewer tons, smaller harm. . . . A reduction in emissions is a reduction in harm." Ackerman testified that emitting any amount of GHGs has a social cost, but that "[a] smaller amount of emission is better. A smaller amount of emissions represents a smaller harm." While the evidence shows that GHG emissions from DBEC will result in increased social costs of carbon on a per-ton basis compared to a zero emissions baseline, the competent, substantial, and persuasive evidence establishes that the operation of Unit 7 will reduce FPL's GHG emissions on a system- wide basis by approximately 8.1 million tons by 2047, due to the retirement of older, less-efficient Units 4 and 5 and the reduced use of older, less-efficient generating units that produce greater quantities of GHG emissions.27/ Based on the foregoing, it is determined that retiring Units 4 and 5 in 2018 and operating Unit 7 commencing in 2022 will result in a net total reduction in the amount of GHG emissions from FPL's electrical power generating units on a system-wide basis——which, in turn, will result in lower social costs of carbon than if Unit 7 is not operated and Units 4 and 5 continue to operate indefinitely into the future.28/ Failure to Perform Life-Cycle Analysis Additionally, Sierra contends that the site certification for DBEC should be denied or additional conditional GHG-related conditions imposed because FPL and/or DEP failed to perform a "life-cycle analysis" to analyze DBEC's GHG emissions "from start to finish, . . . from gas generation to gas burn," which would include GHGs emitted by natural gas production and transport by pipeline to the DBEC site. This contention disregards that such an analysis is beyond the scope of this proceeding. This proceeding specifically applies only to "electrical power plants" as that term is defined in section 403.503(14). Pursuant to that definition, the scope of this proceeding is limited only to considering the impacts of, and imposing conditions on, facilities that fall within that definition. By this statute's plain terms, associated facilities that are directly or indirectly connected to the electrical power plant are to be considered only if they are owned by the applicant. As discussed above, the evidence establishes that Florida Gas Transmission Company owns the pipeline that transports natural gas to the DBEC site. No evidence was presented showing that FPL has any ownership interest in this pipeline, or that FPL has any ownership in sources which may produce gas that is ultimately transported to DBEC for use as fuel for Unit 7. Therefore, any GHG impacts associated with the operation of the pipeline to transport natural gas to DBEC are beyond the scope of this proceeding.29/ Failure to Consider Cumulative Impact of GHG Emissions Sierra also contends that the site certification for DBEC should be denied or additional GHG-related conditions imposed because FPL and/or DEP did not consider the cumulative impacts of DBEC's GHG emissions combined with those from "other existing and foreseeable permitted sources in Florida and elsewhere." As previously discussed, Florida and federal air statutes and rules do not impose cumulative impacts assessment in the PSD permitting process. Further, EPA's PSD Guidance expressly recognizes that climate change modeling and impacts evaluation of GHG emissions is conducted for changes in GHG emissions that are orders of magnitude larger than those from individual projects, and that determining the exact impacts attributable to a specific GHG source is not possible under current climate change modeling. Failure to Consider Using Solar Power Generation Technology Sierra also contends that the site certification for DBEC should be denied or additional conditions imposed because FPL and/or DEP "did not consider using solar generation." As discussed above, the PSC's Need Determination for Unit 7 considered and specifically rejected the use of photovoltaic (solar) facilities as a cost-effective alternative to Unit 7 as proposed. As discussed above, the PSC is the sole forum for determining need for electrical power plants subject to the PPSA. § 403.519, Fla. Stat. The PSC's need determination considers, among other things, the need for electric system reliability, the need for fuel diversity, whether the proposed plant is the most cost-effective alternative, and whether renewable energy resources may mitigate the need for the proposed electrical power plant. Thus, section 403.519 vests sole jurisdiction in the PSC to determine, as part of the need determination process, whether solar facilities should be required to be implemented as part of an electrical power plant's need determination. Therefore, the decision whether to impose a requirement for DBEC to implement solar facilities is beyond the scope of this proceeding. DBEC Stormwater Management System and Flooding Issues The stormwater management system for DBEC was designed to ensure that stormwater received onsite does not flood onsite facilities and to ensure that stormwater leaving the site does not cause offsite flooding or pollution. The stormwater management system for DBEC consists of a system of culverts, catch basins, ditches, storm sewer inlets, an underground storm sewer system, and ponds. The collection and conveyance structures collect the stormwater onsite and convey it to the ponds, which collect and store the water, then release it offsite at a controlled rate. Compliance with Applicable Stormwater Management Requirements The DBEC stormwater management system is designed in accordance with, and meets, all applicable stormwater management requirements of the City of Dania Beach, the City of Hollywood, Broward County, and the South Florida Water Management District ("SFWMD"), including regulations specifically directed toward protecting land uses against flooding. Broward County's land development code regulations require the floor elevation of the power plant facilities to be elevated to at least 5.5 feet North American Vertical Datum of 1988 ("NAVD88"), or approximately 6.5 feet above mean sea level, to withstand flooding from a 100-year, 72-hour storm event. The City of Dania Beach requires new or substantially improved power generation structures to be elevated three feet above the Federal Emergency Management Agency's ("FEMA") 100-year Base Flood Elevation established on the FEMA Flood Insurance Rate Map ("FEMA Map"). FEMA's 100-year Base Flood Elevation is three feet NAVD88; thus, the City of Dania Beach requires DBEC's power generation structures to be elevated to six feet NAVD88, which is approximately seven feet above mean sea level. To be conservative, FPL proposes to elevate the minimum floor elevation of DBEC's power generation structures to 10.5 feet NAVD88, or 11.5 feet above mean sea level——an additional five feet above Broward County's flood elevation requirement. This far exceeds both Broward County's and the City of Dania Beach's minimum flood elevation requirements. Broward County also required FPL to compare the base elevation of the stormwater management ponds to future groundwater elevation established on the Broward County Future Conditions Average Wet Season Groundwater Map ("Groundwater Map"), to ensure that the ponds would be sufficiently elevated to hold enough water to prevent flooding during storm events. The Groundwater Map depicts a projected future average wet season groundwater elevation of 2.5 feet above mean sea level——i.e., 1.5 feet NAVD88——in the year 2060. The base of the onsite stormwater storage ponds will be constructed one to two feet above this elevation. Additionally, the stormwater management system ponds have been designed to provide adequate storage to accommodate a 100-year, 72-hour storm event, so that the project does not have stormwater offsite impacts. Projected Sea Level Rise and DBEC Design The design elevation of DBEC's power block and stormwater management ponds adequately accounts for sea level rise. At Broward County's request, FPL compared the base flood elevation of the DBEC power block to the 2015 Unified Sea Level Rise Projection for Southeast Florida ("USLRP") document. This document, which was prepared by a technical working group on behalf of Palm Beach, Broward, Miami-Dade and Monroe counties, projects future sea level rise in South Florida, including Broward County. The USLRP contains a graph30/ consisting of four curves31/ depicting projected sea level rise from 1992 (the baseline year) to 2100 for the southeast Florida region.32/ The table below summarizes the projected sea level rise corresponding to each curve on the USLRP graph for the year 206033/. Name of Sea Level Rise Projection Predicted Sea Level Rise by 2060 (inches) NOAA High Curve 34 USACE High Curve 26 IPCC AR5 Curve 14 NOAA Intermediate/Low Curve 10.5 The area between the IPCC AR5 Curve and the USACE High Curve is recommended in planning design elevation for most projects that fall within a short-term planning horizon, and applies to "most infrastructure projects, especially those with a design life expectancy of less than 50 years."34/ Additionally, the USLRP states that "[p]rojects in need of a greater factor of safety related to potential inundation should consider designing for the [USACE High Curve]. Examples of such projects may include evacuation routes planned for reconstruction, communications and energy infrastructure, and critical government and financial facilities."35/ DBEC has a design life of 40 years and constitutes energy infrastructure. Therefore, the USACE High Curve is appropriate to use in designing the DBEC project to account for projected sea level rise by 2060. By contrast, the NOAA High Curve is used to plan high- risk projects that will be constructed after 2060; projects that are not easily replaceable or removable, have a long design life— —i.e., more than 50 years; or are critically interdependent with other infrastructure of services. Examples of infrastructure expressly identified in the USLRP document to which the NOAA High Curve is appropriately applied include nuclear power plants,36/ wastewater treatment facilities, levees or impoundments, bridges along major evacuation routes, airports, seaports, railroads, and major highways. DBEC does not fall within any of these categories; accordingly, the NOAA High Curve is not recommended for use in designing the DBEC project to account for projected sea level rise by 2060. Nonetheless, FPL took a conservative approach in determining the appropriate design elevation for the project over its projected design-life. Specifically, FPL added one inch to the USACE High Curve projection to account for two additional years of sea level rise beyond the end of DBEC's design-life in 2060. This resulted in a projected 27 inches of sea level rise by 2062. FPL then added this projection to the Broward County existing flood level requirement of 6.5 feet above mean sea level to determine potential flood levels in 2062. This calculation showed that an elevation of 8.75 feet above mean sea level is necessary to protect against sea level rise by 2062, using the USACE High Curve as the design benchmark. Because the minimum concrete base on which the power block will be elevated to 11.5 feet above mean sea level, it will be sufficiently elevated to protect against projected sea level rise by 2062. To further ensure that the design elevation of 11.5 feet above mean sea level is adequate to protect against a realistic, reasonably-projected "worst case" scenario, FPL compared the design elevation of 11.5 feet above mean sea level to the 34-inch sea level rise projected by the NOAA High Curve by 2060. Adding the 34 inches to Broward County's existing flood level requirement of 6.5 feet above mean sea level results in a design elevation of approximately 9.5 feet above mean sea level needed to address the NOAA High Curve projection by 2062. Thus, DBEC's minimum floor elevation of 11.5 feet above mean sea level exceeds the recommended design elevation, even when compared to sea level rise projected by the NOAA High Curve in 2062. FPL also used the NOAA Sea, Lake, and Overland Surges from Hurricanes ("SLOSH") model to address potential storm surge in determining the design elevation for DBEC's power block. This model projects storm surges for different categories of hurricanes and tidal events. FPL applied the SLOSH model to sea level rise projected by the USACE High Curve to predict storm surge height at the DBEC site by 2060, and then compared those results to the FEMA Map. The SLOSH model indicated lower elevations than the FEMA Map, which takes storm surge into account in determining the 100-year flood elevation. Accordingly, the 11.5 foot above mean sea level design elevation on which the DBEC power block will be constructed is more conservative than, and, thus, more protective than, a design based on the SLOSH model. As discussed above, FPL used the Groundwater Map to establish the bottom elevation of DBEC's stormwater ponds. The Groundwater Map, which relies on the USACE High Curve, projects groundwater levels at the DBEC site will be at approximately 1.5 feet NAVD88 by 2060. Because the bottom elevation of the stormwater ponds will be one to two feet above this projected level, they will adequately account for projected sea level rise by 2060. As noted above, certain existing infrastructure is not being replaced, so will not be elevated. These structures, which were constructed in compliance with the regulatory requirements in effect at the time they were approved, are constructed at six to seven feet NAVD88 above mean sea level. The highest flood elevation on the FEMA Map is at elevation 5.5 feet NAVD88 in 2060. Thus, it is unlikely that these structures will be subject to flooding by 2060. In designing DBEC, FPL reasonably relied on the sea level rise projections in the USLRP. That document, which was developed specifically for use in structural design and land use planning to address projected sea level rise, was created by the local governments in south Florida and provides the best scientific consensus view of future sea level rise.37/ FPL's expert, Dr. George Maul,38/ concurred that FPL reasonably relied on the USACE High Curve in designing the floor of DBEC's power block at 11.5 feet above mean sea level. In Maul's opinion, the USACE High Curve's projection for sea level rise is reasonable and appropriate for use in southeast Florida over the next 60 years.39/ Maul questioned the reliability of the NOAA High Curve, which predicts a rate of sea level rise twice as high as that experienced exiting the last Ice Age. He further noted that, in any event, the USACE High Curve and the NOAA High Curve differ by only a few inches in projected sea level rise by 2060. Dr. Harold Wanless40/ testified on behalf of Sierra regarding the relationship between climate change and sea level rise, hurricanes, and their effects on coastal marine environments. Specifically, Wanless testified regarding a range of factors that may cause the rate of sea level rise to accelerate. According to Wanless, research shows that sea level rise began to accelerate in approximately 1993 due to melting of the Greenland and Antarctic ice sheets.41/ Based on this research, Wanless disputes the accuracy of government predictions that do not take this phenomenon into account. In his testimony regarding the projected rate and extent of sea level rise over time, Wanless presented a graphic adapted from a January 2017 NOAA publication showing three global sea level curves——the "intermediate/high," "high," and "extreme" curves——projecting sea level rise through the year 2100. All of these curves on Wanless' adapted graphic assume Greenland and Antarctic ice sheet loss. Based on the extreme curve, Wanless projected that global sea level rise "could be" three feet by 2059. Notably, no evidence was presented regarding the probability of this projected sea level rise scenario. To depict local sea level rise in southeast Florida through 2100, Wanless added "local influences" to the 2017 NOAA curves, which consisted of higher water levels on the western side of the Gulf Stream due to its deceleration, and the gravitational redistribution of water due to decreasing ice sheet mass in Antarctica and Greenland. Specifically, Wanless added to the 2017 NOAA extreme curve sea level rise projection of three feet by 2062, 15 percent additional sea level rise to account for deceleration of the Gulf Stream, and 52 percent additional sea level rise to account for redistribution of water due to decreased gravitational pull by Greenland and Antarctica. Applying these local influences, Wanless projected that there "could be" an approximate 5.2 feet of local sea level rise by 2062. Again, no evidence was presented regarding the probability with which this projected local sea level rise scenario may occur. Upon full consideration of the testimony by Maul and Wanless, the undersigned concludes, based on the competent, substantial, and persuasive evidence, that the USACE High Curve, rather than Wanless's local influence sea level projection curve, is the more reasonable benchmark to apply in determining the appropriate design elevation for the DBEC power block. Wanless's local sea level rise projection is substantially based on the assumption that redistribution of the Earth's mass will significantly contribute to local sea level rise; however, Wanless himself noted that this phenomenon only recently has become the focus of research, and that "we're still learning."42/ Maul counseled against attempting to project long-term sea level rise using short periods of record data. To that point, he testified that trends derived from short records are less reliable as projections because they are affected by inter- annual and decadal climate and oceanographic patterns that are superimposed on the long-term rise of global sea level. Maul's research of historical 19-year periods43/ over which sea level rise rates have been observed by use of tidal gauges shows significant variability between 19-year periods. He testified, credibly, that in his recent review of tidal and sea level records for Key West, "I found we can pick a 19-year period where that particular 19 years is twice the long-term [sea level] range and other times where it's half the long-term range." He also testified that in looking at 19-year records a year at a time, "I find times when that short time scale is much, much higher than a long-term average and other times when it's much less than the long-term average. So you can either overestimate or underestimate what's happening when choosing short records." On that basis, Maul disputes that "since the year 2000, there has been a rapid acceleration in sea level rise." He testified, credibly, that he has not observed any statistically significant increase in sea level at Key West since 2000. Maul also opined, based on his own research, that there is no statistically significant slowing of the Gulf Stream. Sierra did not present persuasive evidence specifically refuting Maul's conclusion regarding slowing of the Gulf Stream.44/ In any event, the DBEC power block minimum floor elevation has been set at 11.5 feet above minimum sea level—— well above the 34- to 37-inch global sea level rise projected by the 2015 NOAA High Curve and the 2017 NOAA Extreme Curve, and also well above Wanless' projected local 5.2-foot local sea level rise by 2060. Sierra also contends that the minimum design elevation for the DBEC power block does not adequately consider storm surges associated with hurricanes. In support, Wanless presented graphics generated using LiDar, a light-detection and ranging technology, showing the elevation above mean sea level of Broward County, including the DBEC site. One graphic shows the current elevation of the DBEC site as approximately two feet above mean sea level. Other graphics assume a two-foot global mean sea level rise by 2060; a four-foot rise by 2089; a six-foot rise by 2110; an 8-foot rise by 2127; and a ten-foot rise in 2142. Each of these graphics shows the DBEC site as being inundated by sea level rise by 2060. Wanless also presented graphics for the period from 2018 to 2060, depicting the effect of adding storm surges of four feet and nine feet to regional sea level influences, king tides, and global mean sea level. According to these graphics, adding a four-foot storm surge may result in water heights of as much as 11 feet above present global mean sea level on the DBEC site by 2060, and adding a storm surge of nine feet may result in water heights of as much as 15 feet above present global mean sea level on the DBEC site by 2060. Wanless's storm surge scenarios entail layering contingencies on top of contingencies——each contingency fraught with uncertainty. Stated another way, each assumed condition on which Wanless relies to project storm surge heights of 11 and 15 feet has its own inherent uncertainty. To that point, the evidence showed that while it is well-accepted that climate change is occurring and that, as a result, global sea levels are rising, there is substantial lack of consensus in the scientific community and regulatory agencies regarding the extent and rate of global sea level rise in the future. Further, as discussed above, currently there is not a consensus that the Gulf Stream is slowing or that water mass is being redistributed due to the melting of the Greenland and Antarctic ice sheets——two contingencies that substantially contributed to Wanless' projection of a 5.2-foot local sea level rise by 2060. Additionally, as with Wanless's other projections, no evidence was presented regarding the probability that his projected water height scenarios on the DBEC site, assuming four- and nine-foot storm surges, would occur. Based on the foregoing, it is determined that the 11.5 foot above mean sea level design elevation for DBEC adequately addresses future storm surges. As previously discussed, certain existing infrastructure will be used for DBEC. These components were built years ago, complied with code requirements for elevation at the time they were constructed, and currently comply with those code requirements.45/ In sum, the competent substantial evidence establishes that the DBEC site design, as currently proposed, complies with all applicable state and local regulatory requirements. The competent, substantial, and persuasive evidence further establishes that DBEC site design elevation, which exceeds all applicable regulatory requirements, will adequately protect against flooding and inundation due to global and local sea level rise and storm surges. Other Impacts Water Resource Impacts The construction and operation of DBEC will not adversely impact water resources. The primary water uses for DBEC consist of cooling water, process water, service water, irrigation, and potable water. The cooling system for DBEC will use cooling water withdrawn from the Dania Cutoff Canal, which currently serves, and since 1927 has served, as the cooling water source for the electrical power generating facilities on the Lauderdale Site. DBEC will not require an increase in the rate or amount of cooling water withdrawn from the canal. Because the withdrawal rate will not increase, the through-screen velocity through the cooling water intake structure will not increase. This helps ensure that the project will not adversely impact fish or shellfish by impingement or entrainment. Additionally, no increase in the authorized quantity of industrial wastewater discharge will be required. The cooling system has been designed to ensure that DBEC will meet existing permitted National Pollutant Discharge Elimination System ("NPDES") thermal discharge limits. The average amount of process water used is anticipated to decrease. DBEC will continue to receive potable water from the City of Hollywood, and potable water use is not anticipated to increase. Sanitary Waste Disposal and Solid and Hazardous Waste The City of Hollywood will provide sanitary waste disposal services to DBEC. The operation of DBEC will generate small amounts of solid waste, which will be recycled, reused, disposed onsite, disposed in licensed offsite landfills, or otherwise appropriately disposed via approved disposal methods. The Lauderdale Site is a conditionally-exempt small quantity generator of hazardous waste and is anticipated to remain so during the construction and operation of DBEC. Hazardous waste generation by DBEC is anticipated to be less than 100 kilograms per month. FPL will contract with an approved and licensed hazardous waste disposal entity to handle and dispose of any hazardous waste generated by DBEC in a manner that complies with all federal, state, and local environmental regulations. Terrestrial Impacts The DBEC project will affect approximately 134 acres of the 392-acre Lauderdale site, which has continuously been used for industrial activities for the past 90 years. As such, the Lauderdale site is disturbed and does not constitute prime wildlife habitat for unique wildlife species. The upland and wetland habitat onsite is low-quality, and consists of a mixture of nuisance exotic and native species. Due to the disturbed nature of the site and the lack of significant wildlife habitat, no change in floral or faunal populations, including commercially- or recreationally-important species, is anticipated due to DBEC. Additionally, the site does not contain significant areas of preferred habitat for nesting, roosting, or foraging by state and/or federal endangered, threatened, or candidate species. Approximately 18.67 acres of low-quality wetlands, 0.12 acres of disturbed exotic and native hardwood systems, and a small area of low-quality isolated freshwater marsh will be impacted by dredging and filling. These wetland impacts will be mitigated through purchase of mitigation credits from the Everglades Mitigation Bank. Impacts on Aquatic Species DBEC project will continue to withdraw water from the existing Dania Cutoff Canal and to discharge cooling water into ponds and, ultimately, offsite. Proximate aquatic systems are subject to tidal influences and fresh water discharges through SFWMD canals. The waters in the vicinity of the DBEC site are designated Class III marine waters. Existing stresses on aquatic systems in the vicinity of DBEC include altered hydrology, altered salinity, elevated nutrient and organic loads, power plant intake/discharge, physical alterations, and pressures from fishing and boating. DBEC will address impacts to these aquatic systems, as appropriate, through obtaining an NPDES permit for the cooling water discharge. Additionally, FPL will use best management practices during construction to control erosion, sedimentation, and runoff to prevent water quality degradation. Significant impacts to aquatic resources and biological communities are not anticipated. During DBEC construction, FPL will continue to discharge warm water consistent with the Manatee Protection Plan established under the NPDES permit for the existing electrical power plant facility. The Lauderdale Site will continue to provide a warm water refuge for manatees during and after DBEC is constructed. Transportation Impacts A traffic analysis for construction and operation of DBEC was performed and provided in the site certification application. During peak construction, approximately 500 vehicles per day are anticipated to enter and exit the DBEC site. A traffic impact analysis showed that additional construction-related traffic will not degrade roadway system operating conditions. FPL will develop a traffic management plan to minimize level of service deficiencies due to construction traffic. FPL has agreed, pursuant to the Conditions of Certification, to work with the City of Hollywood to improve roadway operations at site access locations. No adverse impacts to traffic flow are anticipated from DBEC operation. Archaeological and Historical Site Impacts A cultural resource assessment of the DBEC site determined that no archaeological or historical structures that are listed, eligible, or potentially eligible for listing in the National Register of Historic Places, are present. Noise A computer program predicted environmental noise impacts from DBEC. Most of the noise sources, which consist of the steam turbine, the gas turbines, the electric generators, and the compressors, are located in enclosed structures, which helps mitigate impacts. The DBEC sound profile will not be significantly different than that for Units 4 and 5. The Lauderdale Site is in a highly-developed area having other proximate industrial and urban uses, including a waste-to-energy center, a shipping center, a recycling center, the Fort Lauderdale-Hollywood International Airport, and several major highways. DBEC is projected to comply with the Broward County and City of Hollywood noise ordinances. DBEC's normal operation is not anticipated to exceed the City of Dania Beach's maximum permissible noise levels. However, as part of the site certification application, FPL has requested a variance from the City of Dania Beach noise ordinance, chapter 17, article IV, sections 17-79 through 17-90, for noise levels that may occur on an infrequent and short-term basis during startup, shutdown, and upset conditions. The City of Dania Beach does not object to FPL's request for the variance. The undersigned recommends approval of FPL's request for a variance from the City of Dania Beach noise ordinance, chapter 17, article IV, sections 17-79 through 17-90. Climate Change "Climate change" is a term used to describe changes in global temperature, global sea level rise, and other conditions associated with those effects, including changes in precipitation, winds, waves, and climates. Climate change is occurring globally and locally, including in southeast Florida. Climate change is caused, in substantial part, by the emission of GHGs. Water vapor, carbon dioxide, and methane are the most significant GHG contributors to climate change. Atmospheric concentrations of gaseous carbon dioxide and methane are increasing. Since the Industrial Revolution, the global atmospheric concentration of carbon dioxide has dramatically increased, from 280 parts per million ("ppm") to 410 ppm at present——almost 100 times faster than historical increases in atmospheric carbon dioxide concentration during previous interglacial periods. Most of the increase in atmospheric carbon dioxide concentration has occurred since World War II and is primarily due to human population increase, global industrialization, and increased burning of fossil fuels on a global basis. GHGs cause climate change by trapping solar radiation in the Earth's atmosphere, thereby warming the atmosphere. Once carbon dioxide is emitted, it persists in the atmosphere for approximately 4,000 years. Climate change is responsible for causing sea level to rise on a global and local basis. The main drivers of sea level rise are atmospheric and ocean warming, which increase the ocean's mass through melting land and sea ice and increase the ocean's volume through thermal expansion. Increasing the concentration of carbon dioxide in the atmosphere increases the rate of climate change, which, in turn, accelerates sea level rise. The last time atmospheric concentrations of carbon dioxide were at or above 400 ppm, sea level was approximately 20 meters, or 70 feet, higher than current level. At that level, a substantial portion of the land mass that constitutes the state of Florida was inundated. The evidence shows that global sea level does not rise in a gradual linear manner, but instead rises in rapid pulses followed by pauses. Although it is well-established that sea level is rising on a global and local basis, there currently is little consensus regarding the rate of sea level rise. Due to its low elevation, southeast Florida is particularly vulnerable to sea level rise. Many urban areas in southeast Florida experience substantial flooding during rainfall events. The evidence shows that sea level rise is likely a contributing cause. Sea level rise causes substantial coastal hazards, including inundation of land, higher storm surges, higher king tides, increased flood height and frequency, coastal erosion and destruction of coastal mangroves and other ecosystems, erosion and destruction of coastal barrier islands, and saltwater intrusion into freshwater aquifers and ecosystems. These impacts will worsen or accelerate with sea level rise. The cumulative addition of carbon dioxide to the atmosphere is warming the atmosphere, which, in turn, is causing ocean temperatures to rise on a global basis. In particular, the upper ocean has warmed substantially on a global basis since 1997, due to increasing human population and the corresponding increased burning of fossil fuels. Increased carbon dioxide in the atmosphere is being transferred to the oceans, causing them to acidify. Some scientific studies indicate that climate change will cause more severe storm and weather events. Some scientific studies indicate that climate change will result in threats to human health, native wildlife and ecosystems, agriculture, and the tourism industry. In sum, the competent, persuasive evidence establishes that climate change is occurring, that it is primarily caused by GHGs emissions, and that every ton of GHGs emitted into the atmosphere contributes to climate change. The competent, persuasive evidence also establishes that as a result of climate change, sea level is rising globally, and, to a certain extent, locally,46/ and that sea level rise already is causing environmental adverse impacts.47/ SCO and Affected Agencies' Review of Application The PPSA establishes a centralized, coordinated process for licensing electrical power plants that generate 75 MW or more of electrical power. §§ 403.502, 403.503(14), Fla. Stat. Site certification for an electrical power plant constitutes a license that addresses and encompasses the regulatory requirements of the agencies that are involved in the site certification application review process. The SCO is an office within DEP's Division of Air Resource Management. It is responsible for coordinating and overseeing the electrical power plant site certification application review process. The SCO also serves as administrative staff for the Siting Board. The SCO's responsibilities include receiving site certification applications, preparing a schedule of deadlines and milestones applicable to the site certification application review process, determining completeness48/ of the application based on the recommendations of affected agencies,49/ receiving each affected agency's preliminary statement of issues, receiving each affected agency's report, and preparing the PAR.50/ §§ 403.5064, 403.5066, and 403.507, Fla. Stat. The PAR addresses the proposed electrical power plant's compliance with all applicable non-procedural requirements of the affected agencies51/ and contains copies of the affected agencies' reports; comments from other agencies or persons; any variances and waivers from applicable regulatory requirements that have been requested and the SCO's recommendation regarding the request; the SCO's recommendation regarding whether site certification should be approved, denied, or approved with conditions; and proposed conditions of certification. § 403.507(5)(a), Fla. Stat. The affected agencies' reports provide the agencies' specialized knowledge on matters within their jurisdiction and expertise, so are a crucial component of the PAR. Each affected agency conducts a substantive review of the site certification application to determine whether the electrical power plant complies with that particular agency's applicable substantive rules, regulations, ordinances, standards, and criteria. The affected agency's report must specifically address these topics and must state whether, based on its substantive review, the agency recommends that the electrical power plant be approved, denied, or approved with conditions. The report also must include any conditions of certification that the agency recommends be imposed regarding matters within that agency's jurisdiction. § 403.507(3), Fla. Stat. Conditions of certification are regulatory requirements imposed to minimize and mitigate the potential adverse effects of the construction and operation of the electrical power plant with respect to the environment and public health. Because the conditions of certification are regulatory requirements, each affected agency that recommends a specific condition of certification must possess the legal authority to impose that condition. § 403.507(3)(c), Fla. Stat. To that end, the affected agency is required to cite the specific statute, rule, or ordinance that authorizes the imposition of that specific condition. Because each affected agency possesses legislatively or constitutionally delegated regulatory authority over specific matters, the SCO does not conduct an independent review as to whether the proposed electrical power plant meets those affected agencies' nonprocedural requirements, and instead relies on each affected agency's specific regulatory knowledge and expertise regarding matters that are within its substantive regulatory jurisdiction. FPL submitted the Application for DBEC to the SCO on July 27, 2017. The Application was referred to DOAH and was distributed to the affected agencies for review and comment regarding completeness of the Application. The affected agencies needed additional information, so the Application was determined incomplete. After FPL provided the requested information, the Application was deemed complete on October 27, 2017. Pursuant to section 403.507(3), the SFWMD; Florida Fish and Wildlife Conservation Commission ("FFWC"); Florida Department of Transportation ("DOT"); Florida Department of Economic Opportunity ("DEO"); Florida Department of State, Division of Historical Resources ("DHR"); DEP; Broward County; the City of Dania Beach; and the City of Hollywood reviewed the Application and submitted agency reports to the SCO. Each of these affected agencies submitted recommended conditions of certification to be included in the site certification as conditions specifically designed to address matters within that particular agency's regulatory jurisdiction. Each agency concluded that if DBEC complies with the conditions of certification recommended by that agency, it will meet all applicable non-procedural requirements, rules, and ordinances within that agency's jurisdiction. Each affected agency recommended that DBEC be approved, subject to the conditions of certification recommended by that agency. Each agency report is briefly discussed below. PSC Need Determination As previously noted, the PSC issued the Need Determination for DBEC on March 19, 2018. Pursuant to section 403.507(4)(a), the Need Determination constitutes the PSC's agency report for DBEC. In determining the need for DBEC, the PSC considered critical components of need, including forecasted load, necessary reserve margin, projected load generation and imbalance, and area reliability margin. The PSC determined that FPL demonstrated the need for DBEC Unit 7 in the 2024-to-2026 timeframe, in order to maintain its electrical system reliability and integrity. The PSC found that: No cost-effective [Demand Side Management] or renewable resources have been identified that could mitigate the need for DBEC Unit 7. DBEC Unit 7 is expected to provide adequate electricity at a reasonable cost to FPL's customers. DBEC Unit 7 is projected to reduce overall natural gas consumption and reduce emissions compared to maintaining the existing Lauderdale units. DBEC Unit 7 is the most cost-effective alternative that maintains FPL's system and Southeastern Florida area reliability compared to other alternatives. South Florida Water Management District SFWMD determined that there will be no increase in water use for DBEC, and that the cooling water, potable water, and process water sources will remain the same as for the units currently existing at the Lauderdale Site. SFWMD determined that if DBEC complies with SFWMD's recommended conditions of certification, it can be constructed and operated in compliance with the applicable statutes and rules within SFWMD's jurisdiction. Florida Fish and Wildlife Conservation Commission FFWCC's report noted that several listed wildlife species were observed onsite or have a moderate to high likelihood of occurrence onsite. Additionally, the West Indian Manatee will be affected by ceasing operation of Units 4 and 5 before the construction of DBEC. FFWCC recommended conditions of certification requiring biological surveys, monitoring for impacts to listed species, and also recommended a condition of certification to require temporary heaters to be used during DBEC construction to maintain a warm water refuge for manatees. Department of Transportation DOT determined that, with the exception of construction-related traffic, DBEC is not anticipated to adversely affect the State Highway System in the vicinity of the plant. DOT recommended certification of DBEC, contingent on DBEC's compliance with its recommended conditions of certification. Department of Economic Opportunity DEO anticipates that DBEC will provide economic and fiscal benefits to the City of Dania Beach, Broward County, and the surrounding area. DEO recommended approval without any recommended conditions of certification. Division of Historical Resources DHR did not object to DBEC, noting that all current matters pertaining to historical resources were addressed. Department of Environmental Protection DEP reviewed solid waste and hazardous waste, environmental resource permitting, industrial wastewater, and stormwater management issues within its jurisdiction and determined that DBEC will meet all applicable regulatory requirements, provided it complies with the proposed conditions of certification. DEP recommended conditions of certification to address solid waste and hazardous waste, environmental resource permitting, industrial wastewater, and stormwater management issues within its jurisdiction. Local Governments Broward County, the City of Dania Beach, and the City of Hollywood each recommended approval of DBEC, subject to recommended conditions of certification regarding matters within its regulatory jurisdiction. The City of Dania Beach did not object to the variance sought by FPL related to noise limits in the City of Dania Beach's Code of Ordinances for transient and infrequent noises associated with unit startup, shutdown, and upset conditions. Preliminary Analysis Report and Recommended Approval with Conditions of Certification On April 2, 2018, the SCO issued the PAR for DBEC. The PAR describes the project and summarizes the affected agencies' substantive review of DBEC. Based on the agencies' reports, recommended conditions of certification, and unanimous approval recommendation, the SCO determined that FPL has provided reasonable assurance that, considering and balancing the factors in section 403.509(3)(a) through (g), DBEC can be certified. The PAR recommends approval of the site certification for DBEC, subject to the proposed Conditions of Certification ("COC") attached thereto, which were compiled from the affected agencies' recommended conditions of certification submitted as part of their agency reports. Sierra contends that because the SCO did not conduct an independent review of whether DBEC meets the nonprocedural requirements of the affected agencies, it was not able to determine whether FPL provided reasonable assurance that the site certification complies with the agencies' applicable statutes, rules, regulations, and other requirements. This contention is rejected. The purpose of the affected agency's review and report submittal requirement in section 403.507 is to ensure that the agency legally and factually vested with the substantive jurisdiction and expertise over a specific regulated area is an integral part of the site application review process. To that end, each agency is charged with submitting recommended conditions of certification that are specifically keyed to addressing issues within that agency's substantive jurisdiction and expertise. The purpose of affected agency involvement in the site certification process would be defeated if the SCO——which is not an expert over the matters within the various affected agencies' substantive jurisdiction—— was authorized to second-guess these agencies' determinations and to modify or reject their recommended conditions of certification. Further, and fundamentally, the SCO is not statutorily authorized to conduct such an independent review. Notably, Sierra has not cited any statutory, rule, or case law authority to support its position.52/ Notice, Public Outreach, and Public Hearing All public notices required by the PPSA were provided. FPL timely published the notice of filing of the Application, as required by section 430.5115(1)(a), and notice of the certification hearing, as required by section 403.5115(1)(e). DEP published notice of the filing of the Application and the certification hearing in the Florida Administrative Register, as required by section 403.5115(4). Additionally, FPL provided direct written notice that the Application had been filed to property owners and residents within three miles of the project area, as required by section 403.5115(6)(a). FPL also engaged in public outreach for the project, including providing a toll-free phone number at which information regarding the project could be obtained, a website containing information about the project, and electronic mail contact information. Additionally, FPL sent 310 letters to residents of the neighborhood closest to the project and sent 1,600 mailers to residents and property owners in the vicinity of the site, inviting them to an open house that was held on May 24, 2017. FPL hosted another open house in June 2017 for residents of the neighborhood immediately south of the project site. A public hearing was held on May 15, 2018, from 6:00 p.m. until 8:03 p.m. Many members of the public provided comments on the DBEC project,53/ and were able to ask questions of representatives from FPL and DEP. The public hearing comments were recorded and transcribed as part of the Transcript of the certification hearing.54/ Federal Permits As discussed above, an air construction/PSD permit has been issued for DBEC. FPL has applied for an NPDES permit and a permit from the United States Army Corps of Engineers under section 404 of the Clean Water Act. These permits and approvals are not part of, or subject to revision, modification, or revocation in, this proceeding. Variance As discussed above, FPL has requested a variance from the City of Dania Beach noise ordinance in Chapter 17-86 of the City's Code of Ordinances, which establishes the permissible sound levels for receiving land use categories. Specifically, FPL requested a variance from the City's maximum permissible sound levels for: Noise due to emergency or upset conditions for all time periods and all receiving land use categories; Noise due to transient conditions associated with unit startup and shutdown shall be limited to 70 dB(A) for all time periods and all receiving land use categories, except for Industrial land use which shall retain a limit of 75 dB(A). Currently, the area in which the Lauderdale Site is located experiences significant noise from the combined effect of a range of industrial and urban activities, including the operation of Units 4 and 5 at the Lauderdale Site. DBEC's projected noise profile is not materially different than that of the existing power plant operation at the Lauderdale Site. Transient and infrequent conditions at the Lauderdale Site, including unit startup, shutdown, and upset conditions occasionally occur for short periods of time. These conditions also are expected to occasionally occur at DBEC. The variance is limited in nature, and the noise levels necessitating a variance are expected to be infrequent and short-lived during unit startup, shutdown, or upset conditions. The City of Dania Beach does not oppose the variance. Given the limited nature of the variance, lack of opposition, and that similar noise levels currently occur at the Lauderdale Site, it is determined that the requested variance is reasonable, and, therefore, should be granted. The Siting Board's Role and Authority Section 403.509(3) sets forth the Siting Board's authority and duty under the PPSA. In considering whether to approve, approve with conditions, or deny a power plant site certification license, the Siting Board must consider all factors in section 403.509(3)(a) through (g). The Siting Board possesses broad authority under the PPSA in considering whether to certify an electrical power plant. With the exception of the need determination and federal permits, the Siting Board is not bound by the conditions of certification proposed by the SCO or the affected agencies, and may modify, remove, or add conditions of certification, as authorized, to protect the broad interests of the public and minimize adverse impacts of the electrical power plant on the environment and human health. See § 403.502(2), Fla. Stat. Comparative Impacts and Benefits of DBEC As discussed above, DBEC will emit GHGs into the atmosphere. Therefore, DBEC's emissions will increase the amount of carbon dioxide in the atmosphere when compared to a zero emissions scenario——i.e., no GHG emissions at all. However, the alternatives in this proceeding do not entail a zero GHG emissions alternative to DBEC. As discussed above, the PSC found and concluded, in the Need Determination, that with the retirement of Units 4 and 5, DBEC is needed to meet a projected future electrical power demand. As part of the Need Determination, the PSC concluded that no additional cost-effective renewal resource——such as solar or wind generation technology——could mitigate the need for DBEC. The PSC also concluded that no new demand side management——i.e., conservation——could mitigate the need for DBEC. In so determining, the PSC established, as a baseline condition to this proceeding, that DBEC, a natural gas-fueled facility, is the most cost-effective means of meeting projected future electrical power demands if Units 4 and 5 are retired. Thus, given the Need Determination, the only alternative available to constructing DBEC is to continue operating Units 4 and 5 indefinitely.55/ As previously discussed, Units 4 and 5 are less efficient units that burn substantially more natural gas than will Unit 7. Therefore, if Units 4 and 5 continue to operate indefinitely——as will be the case if DBEC is not certified——they will burn more natural gas, resulting in the emission of greater amounts of GHGs over their operation life than would the construction and operation of Unit 7, combined with FPL's reduction of the use of less-efficient units in its system. The competent, substantial, and persuasive evidence establishes that the retirement of Units 4 and 5 in 2018, along with the construction and operation of DBEC in 2022 and FPL's concomitant reduction in the use of other less-efficient, more- polluting units in its system, will result in the emission of approximately 8.1 million tons less GHGs into the atmosphere over a 30-year period than if DBEC is not approved and Units 4 and 5 continue to operate indefinitely. Because DBEC will, through system-wide reduced GHG emissions, result in a net environmental benefit as compared to the alternative of continuing to operate Units 4 and 5 indefinitely into the future, DBEC should be weighed as a net positive in considering and balancing the site certification criteria in section 403.509(3). Other measures, discussed above, that DBEC will include and implement to minimize offsite impacts include using the existing transmission line system, existing natural gas pipeline, existing site access, and using a previously-developed power generation site. DBEC will not require new water sources, will not result in a new or expanded surface water discharge, and will reduce the use of processed water by approximately 22 percent. Additionally, upon its operation, DBEC will provide a warm water refuge for manatees.56/ In sum, the undersigned finds that DBEC's benefits, discussed at length above, outweigh its adverse impacts. This determination is more fully addressed in the Conclusions of Law, below. Sierra's Standing Sierra has intervened in this proceeding pursuant to section 403.508(3)(e), which confers party status on persons or entities who demonstrate that their substantial interests will be affected by this proceeding. Sierra is a national non-profit organization. Sierra and its members are committed to protecting the environment. Sierra focuses extensive effort and resources toward combating climate change through advocating the displacement of fossil-fuel energy sources, which emit GHGs, in favor of renewable energy sources and energy sources, such as solar power, wind power, and energy storage and batteries. Consistent with that mission, Sierra's members are concerned about climate change resulting from GHG emissions and the adverse impacts of climate change on human health, property, wildlife, and sensitive ecological systems, and many are actively involved in efforts aimed at reducing GHG emissions on a global and local basis. Several Sierra members testified at the certification hearing regarding the environmental and personal harms they allege they will suffer due to climate change——to which, Sierra alleges, DBEC will contribute. These alleged harms include rising sea level, saltwater intrusion, contamination of drinking water aquifers, property damage due to flooding and increased storm intensity, adverse impacts on recreational activities due to degradation of coral reef and mangrove ecosystems, algal blooms, and human health impacts. Sierra has nearly 38,000 members who live in Florida. Approximately 18,000 Sierra members live in FPL's service territory.57/ The relief Sierra requests in this proceeding is set forth below. Generally, Sierra requests either that the site certification for DBEC be approved, subject to additional conditions that Sierra proposes, or be denied. Relief Requested by Sierra On May 2, 2018, Sierra filed Sierra's Statement on Relief ("Statement on Relief"), identifying the relief it seeks in this proceeding. That relief was set forth in nine sequentially-numbered paragraphs. On May 8, 2018, FPL filed Florida Power & Light Company's Motion to Strike paragraphs 1 through 7 of the Statement on Relief. On May 11, 2018, Sierra filed Sierra Club's Opposition to Florida Power & Light Company's Motion to Strike. At the commencement of the certification hearing, the undersigned struck paragraphs 6 and 7 of the Statement on Relief and reserved ruling on the other forms of relief requested in paragraphs 1 through 5, 8 and 9, pending development of the evidentiary record in this proceeding. The undersigned has ruled on these paragraphs in the Conclusions of Law, below. Sierra requests the following relief in paragraphs 1 through 5, 8, and 9 of its Statement on Relief, which remain at issue in this proceeding: Paragraph 1 of Sierra's Statement of Relief requests the Siting Board to require FPL to limit the annual emission of GHGs from DBEC to the existing annual GHG emission levels from Units 4 and 5, and require FPL to terminate GHG emissions from DBEC at the same date that FPL planned to retire Units 4 and 5, in 2033, subject to any required operation to meet electric reliability needs. Paragraph 2 of Sierra's Statement of Relief requests the Siting Board to require FPL to comply with FPL's stated system- wide GHG commitment to DEP and the PSC, and upon which FPL relies in seeking approval for DBEC——specifically, that DBEC's operation reduces FPL's system-wide annual emissions of GHGs from its current baseline by at least the amount committed to by FPL. As part of this requirement, approval of DBEC should be conditioned on FPL's system-wide annual emissions of GHGs being lower than its current baseline by at least the amount committed to by FPL, and never exceeding that reduced level of GHGs during each year of the lifespan of DBEC. Paragraph 3 of Sierra's Statement of Relief requests the Siting Board to require FPL to develop a locally-sited public stakeholder process that provides municipalities and other governmental entities that have adopted, or that in the future adopt, carbon reduction or clean energy commitments, a means to work with FPL to develop a binding plan to meet the commitments of the municipalities and other governmental entities, subject to any governmental approvals required by law, and that such processes allow interested persons, including non-governmental organizations, a meaningful opportunity to participate. Paragraph 4 of Sierra's Statement of Relief requests the Siting Board to require FPL to evaluate, every five years, in a detailed, transparent process with opportunity for meaningful public participation, the Climate Change Damages resulting from 40 years of GHG pollution from building and operating DBEC as proposed, and approve DBEC subject to the opportunity for the Siting Board to reevaluate the approval of DBEC, including whether there are additional reasonable and available methods that should be adopted to minimize the Climate Change Damages caused by DBEC, and to impose further conditions, including future emissions reductions of DBEC. The impacts of DBEC must be evaluated individually, as well as in the context of cumulative impacts from other GHG emissions. In this evaluation, FPL must examine reasonable and alternative methods to minimize the adverse effects of DBEC's emissions, including sequestration of GHGs and the ability to avoid the emissions. Paragraph 5 of Sierra's Statement of Relief requests the Siting Board to require FPL and DEP to reevaluate, on a five-year basis, and in a detailed, transparent process with opportunity for meaningful public participation, the Climate Change Damages which pose a risk to the DBEC facility specifically, and approve DBEC subject to the opportunity for the Siting Board to reevaluate the approval of DBEC, including whether there are additional reasonable and available methods that should be adopted to minimize the Climate Change Damages to the DBEC facility, and to impose further conditions, including future emissions reductions of DBEC. Paragraph 8 of Sierra's Statement of Relief requests the Siting Board to deny DBEC's site certification. Paragraph 9 of Sierra's Statement of Relief requests that the ALJ and the Siting Board provide such relief as is just and reasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the State of Florida Siting Board enter a final order approving DBEC, subject to the Conditions of Certification contained in the PAR, and approving the variance to the City of Dania Beach Code of Ordinances, Chapter 17, Article IV, Noise, Section 17-86, as set forth in the PAR. DONE AND ENTERED this 30th day of July, 2018, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2018.
The Issue The issues presented in the case are whether Respondents P & L Salvage and Marlene Ballard are liable for violations of state statutes and rules, as alleged in the amended NOV, and, if so, whether the proposed corrective action is appropriate, and whether the proposed civil penalties and costs should be paid by Respondents.
Findings Of Fact The Parties The Department is the state agency charged with the power and duty to administer and enforce the provisions of Chapters 376 and 403, Florida Statutes, and the rules promulgated in Florida Administrative Code Title 62. Respondent P & L Salvage, Inc., is a Florida corporation. P & L Salvage owned and operated an automobile salvage yard at 4535 and 4537 West 45th Street in West Palm Beach, Florida (the “property,” “facility,” or “site”). The property comprises less than two acres. Respondent Marlene Ballard is a Florida resident and the president, treasurer, secretary, and director of P & L Salvage, Inc. Historical Use of the Site Beginning in the 1960s, the site was used as an auto salvage yard, first under the name Johnny’s Junkyard and later as General Truck Parts. In 1981, the owner of the salvage yard, Marie Arant, sold the facility. The record is not clear about the exact identity of the purchaser. The Alliance report, referred to later, states that the property was purchased by “the Ballard family.” The record evidence is insufficient to prove that Marlene Ballard ever owned the salvage yard. The parties agree that the salvage yard was operated for a time as P & L Salvage, which was unincorporated. Then, in January 1990, the site was purchased by Respondent P & L Salvage, Inc., which owned the site continuously until January 2007. Marlene Ballard lived in a house on the site from the 1980s until the property was sold in 2007. A separate building at the site was used as P & L Salvage’s office. The general operation of the salvage yard was to bring junk cars and trucks to the site, remove fluids from the vehicles, remove parts for sale, and then crush the dismantled vehicles in a hydraulic crusher to prepare them for transport and sale as scrap metal. The automotive fluids removed from the junked cars were stored on the site in 55-gallon drums for later disposal. Respondents presented evidence to show that the person who had the most knowledge of and managed the day-to-day operations in the salvage yard was an employee named John Boyd. When John Boyd ceased employment at the salvage yard, Marlene Ballard’s son, Thomas Ballard, took over the management of the yard. Respondents contend that no evidence was presented that Marlene Ballard conducted or participated in any activities that resulted in contamination, or that she had authority to prevent any potential contamination that might have occurred. However, Ms. Ballard was familiar with the activities in the yard, having worked and lived on the site for many years. She did the bookkeeping and signed payroll checks. All employees answered to Ms. Ballard. She contracted for environmental assessment and remediation work, and signed the hazardous waste manifests. She was acquainted with the contamination that could and did occur at the salvage yard. Eagle Sanitation, Inc., which operated a roll-off container business, leased the site from September 2005 until January 2007. Eagle Sanitation also obtained an option to purchase the property. At first, Eagle Sanitation only leased about a quarter of the site because there were many junk autos, tires, and other salvage debris still on the site in September 2005. For several months, Thomas Ballard continued to sell auto parts and scrap from the site, and to clear the site. Eagle Sanitation did not have complete use of the site until early in 2006. Eagle Sanitation’s business consisted of delivering roll-off containers for a fee to contractors and others for the disposal of construction debris and other solid waste, and then picking up the containers and arranging for disposal at the county landfill or, in some cases, recycling of the materials. Roll-off containers at the site were usually empty, but sometimes trucks with full containers would be parked at the site overnight or over the weekend. During its lease of the site, Eagle Sanitation did not collect used oil or gasoline and did not provide roll-off containers to automotive businesses. No claim was made that Eagle Sanitation caused any contamination found at the site. Contamination at the Site In 1989, Marlene Ballard contracted with Goldcoast Engineering & Testing Company (Goldcoast) to perform a “Phase II” environmental audit. Goldcoast collected and analyzed groundwater and soil samples and produced a report. Cadmium, chromium, and lead were found in the soil samples collected by Goldcoast. Some petroleum contamination was also detected in soils. These pollutants are all associated with automotive fluids. The Goldcoast report states that groundwater samples did not indicate the presence of pollutants in concentrations above any state standard. The Goldcoast report did not address the timing of discharges of contaminating substances that occurred at the site, except that such discharges had to have occurred before the report was issued in 1989. That is before the property was purchased by P & L Salvage, Inc. During an unannounced inspection of the salvage yard by two Department employees on August 15, 1997, oil and other automotive fluids were observed on the ground at the site in the “disassembly area” and around the crusher. There were also stains on the ground that appeared to have been made by automotive fluids. No samples of the fluids were taken or analyzed at the time of the inspection. The Department inspectors told Marlene Ballard to cease discharging fluids onto the ground, but no enforcement action was initiated by the Department. Ms. Ballard was also told that she should consider removing the soil where the discharged fluids and staining were observed. In early 1998, RS Environmental was hired to excavate and remove soils from the site. This evidence was presumably presented by Respondents to indicate that they remediated the contaminated soils observed by the Department inspectors, but no details were offered about the area excavated to make this clear. In 2004, in conjunction with a proposed sale of the site, another Phase II investigation of the site was done by Professional Services Industries, Inc. (PSI), and a report was issued by PSI in May 2004. The PSI report is hearsay and, as such, cannot support a finding of fact regarding the matters stated in the report. Presumably as a result of its knowledge of the PSI report, the Department issued a certified letter to Ms. Ballard on June 24, 2005, informing her that the Department was aware of methyl tert-butyl ethylene (MTBE) contamination at the facility. MTBE is an octane enhancer added to gasoline. The Department’s June 2005 letter advised Ms. Ballard that Florida Administrative Code Chapter 62-780 required “responsible parties” to file a site assessment report (SAR) within 270 days of becoming aware of such contamination. The letter also informed Ms. Ballard of the proximity of the City of Riviera Beach’s wellfield and the threat that represented to public drinking water. The June 2005 letter was returned to the Department unsigned. In October 2005, the Department arranged to have the letter to Marlene Ballard served by the Palm Beach County Sheriff’s Office. The Department received a confirmation of service document that shows the letter was served by a deputy on October 14, 2005, but this document is hearsay and does not support a finding that Ms. Ballard had knowledge of the contents of the letter. The Department did not receive an SAR within 270 days, but no enforcement action was immediately initiated. On December 15, 2006, the Department issued a six- count NOV to P & L. Salvage, Inc. P & L Salvage requested a hearing and the matter was referred to DOAH. In January 2007, in conjunction with Eagle Sanitation’s proposed sale of its purchase option to Prime Realty Capital, LLC, Alliance Consulting & Environmental Services, Inc., (Alliance) conducted a site assessment at the site and produced an SAR in April 2007. At that time, as indicated above, P & L Salvage had ceased operations at the site and Eagle Sanitation was operating its roll-off container business there. The SAR states that in January 2007, “[a]pproximately 80 yards of black stained oily-solidified shallow sands were excavated [by Eagle Sanitation] from the central and northeastern portions of the site, where car crushing, fluid draining and battery removal were historically conducted.” The soil contained lead, iron, chromium, cadmium, and arsenic, but testing did not show the excavated soils constituted hazardous materials and, therefore, the soils were disposed at the county landfill. The area of soils where the Department inspectors in 1997 observed automotive fluids and staining appears to have been included in the soils that were excavated and removed in 2007. The Department presented no evidence to the contrary. Testing by Alliance of other soils at the site showed “no significant petroleum metals concentrations” and Alliance did not recommend the removal of other soils. The presence of an MTBE “plume” of approximately 30,000 square feet (horizontal dimension) was also described in the SAR. The plume is in the area where the crusher was located. Several groundwater samples from the site showed MTBE in concentrations above the target cleanup limit. The City of Riviera Beach operates a public water supply wellfield near the site. The closest water well is approximately 250 feet from the site. The SAR concludes that “the potential exists for the MTBE plume to be pulled downward” toward the well, and recommends that a risk assessment be performed. Alliance recommended in the SAR that the MTBE contamination be remediated with “in-situ bioremediation” with oxygen enhancement. No remediation has occurred on the site since the date of the Alliance report. The Alliance report did not address the timing of contaminating discharges that occurred at the site. To the extent that Alliance reported contamination in 2007 that was not reported in the 1989 Goldcoast report, that is not sufficient, standing alone, to meet the Department’s burden of proof to show that P & L Salvage, Inc., caused “new” contamination after 1989. Competent evidence was not presented that the Alliance report describes “new” contamination. The authors of the reports were not called as witnesses. No expert testimony was presented on whether the data in the reports can establish the timing of contaminating discharges. It is not the role of the Administrative Law Judge, nor does he have the requisite expertise, to compare the environmental assessments conducted by Goldcoast and Alliance and make judgments about whether some of the contamination reported by Alliance had to have occurred after 1989. Although the Department’s expert, Paul Wierzbicki, testified that it was his opinion that the contamination was attributable to the “operations of the P & L Salvage yard facility,” he was answering a question about “what caused the contamination” and, in context, his testimony only confirmed that the type of contamination shown in the photographs and reported in the site assessment reports was the type of contamination associated with auto salvage yards. Mr. Wiezbicki’s testimony is not evidence which can support a finding that the contamination at the site, other than the automotive fluids and stained soils observed by the Department inspectors in 1997, was caused by P & L Salvage, Inc.1 On June 12, 2007, after reviewing the Site Assessment Report, the Department issued a letter to Marlene Ballard, requesting additional data and analysis. At the hearing, the Department presented a responding letter from Alliance dated June 21, 2007. It was disputed whether the Alliance letter is evidence of Ms. Ballard’s receipt and knowledge of the Department’s June 12, letter. However, even if Ms. Ballard did not know about the Department’s letter in June 2007, she certainly became aware of the letter in the course of this proceeding. The amended NOV issued in January 2008 mentions the letter, and the letter was listed as an exhibit in the parties’ June 4, 2008 Pre-hearing Stipulation. On January 24, 2008, the Department issued an amended NOV which dropped three counts from the original NOV and added two new counts. Most significantly, the amended NOV added Marlene Ballard and Thomas Ballard as Respondents. P & L Salvage and Marlene Ballard responded to the amended NOV with petitions for hearing. Thomas Ballard did not respond. At the hearing, the Department presented testimony of employees that were involved in this enforcement action regarding the value of their time expended on various tasks associated with this case. Bridget Armstrong spent eight hours inspecting the site of the contamination, eight hours drafting the NOV and consent order, approximately 30 hours reviewing technical documents, and 15 hours corresponding with Respondents. Ms. Armstrong’s salary at the time was about $20.00 per hour. Paul Wierzbicki spent 16 hours investigating facilities in the area, reviewing the contamination assessment reports, and overseeing the enforcement activity of his subordinates. Mr. Wierzbicki was paid $33.00 per hour. Kathleen Winston spent 10 hours reviewing a site assessment report and drafting correspondence. Ms. Winston’s salary at the time was $23.56 per hour. Geetha Selvendren spent 4-to-5 hours reviewing the site assessment report. She was paid $19.00 per hour at the time. Finally, Joseph Lurix spent three hours reviewing documents. His salary at the time was $34.97 per hour.
The Issue The issue is whether Dr. Vigna and his corporation, AVA Hazardous Waste Removal and Disposal, Inc., should be disciplined for the improper disposal of hazardous waste.
Findings Of Fact Lyn-Rand, Inc., was a corporation in the metal fabrication and painting business in Dade County, Florida, during April and May of 1989. The industrial processes used by Lyn-Rand required the use of solvents, cutting oils, and other chemicals. Lyn-Rand employed Courtney Warrenfeltz as its quality control director. Mr. Warrenfeltz had met Dr. Anthony Vigna, who held himself out as a transporter of hazardous waste. Dr. Vigna offered to dispose of 55-gallon drums of waste which had accumulated at the Lyn-Rand facility. Dr. Vigna took samples of the waste, offered to use his federal EPA identification number in connection with the disposal, and do all the paper work involved with the disposal. Mr. Warrenfeltz believed, based upon his conversations with Dr. Vigna, that Dr. Vigna was knowledgable about hazardous waste disposal. Mr. Warrenfeltz made arrangements for Dr. Vigna to pick up nine drums of cutting oils and cleaning solvents on Saturday, April 29, 1989. Dr. Vigna was paid $500 per drum. Those drums had been marked with "x's" on the tops and sides. An employee of Lyn- Rand, Carlos Alayon, had been left instructions to expect Dr. Vigna, and had been given a check to give Dr. Vigna when the drums were picked up. While Dr. Vigna was at the Lyn-Rand site to pick the drums up, he asked Alayon for some black paint which Dr. Vigna used to paint over the labels on the drums. Alayon then helped Dr. Vigna load the drums into a rental truck. Dr. Vigna gave Mr. Alayon no paperwork, such as a manifest, receipt, or shipping papers. Mr. Warrenfeltz never received any paperwork from Mr. Alayon or from Dr. Vigna. The drums Dr. Vigna took from Lyn-Rand were discovered later, Saturday, April 29, 1989, at the business premises of Compliance Technology, Inc., a corporation located in Broward County, which is licensed to act as a broker for hazardous waste. Compliance Technology, Inc., does not, however, act as a transporter of hazardous waste. The employee of Compliance Technology who found the drums near the back loading dock, Mike Webb, was concerned, because their labels had been obliterated with black paint and the only marks on the drums were the "x's." The obliteration of the labels was a cause for concern and the bungs appeared to be leaking around the tops of two of the drums. The drums had been abandoned near a storm drain. The drums were not fenced or secured; if someone had driven into them due to their placement on the ground near the loading dock, the drums could have ruptured and the contents flowed into the storm drain and eventually into the Biscayne Aquifer. Mr. Webb notified the founder of Compliance Technology, Dr. Solon Cole, of the discovery of the drums, and the matter was reported on or about May 1, 1989, to the Broward County Environmental Quality Control Board and the City of Hollywood Police Department. Compliance Technology moved the drums away from the storm drain, barricaded them, and replaced bungs in two of the drums. On or about May 5, 1989, Dr. Cole notified Jeff Tobergte, of the Department of Environmental Regulation office in West Palm Beach, about the drums. Mr. Tobergte went to Compliance Technology the next day, and photographed the drums and sampled their contents. He found that the drums contained various solvents, including methylene chloride, ethylbenzene, toluene, xylene and phenol. The samples had a pH of less than 2 and a flash point of less than 60 degrees centigrade, and therefore were hazardous wastes. Dr. Cole and Mr. Tobergte were able to determine that one of the drums had a label which stated "Spray Iron Phosphatizer and Cleaner" "SC-283" from Novamax Tech in Atlanta, Georgia. After contacting Novamax Tech, Mr. Tobergte learned that SC-283 is an unusual product with only four buyers in Florida, three of them in Dade County, including Lyn-Rand. Mr. Tobergte then drove to all three locations in Dade County which were customers of Novamax Tech, and determined that the most likely source of the drums at Compliance Technology was Lyn-Rand. Mr. Tobergte visited Lyn-Rand on May 8, 1989, and verified that the drums he had photographed were drums which originated at Lyn-Rand. The verification was made by comparing the photographs of the drums left at Compliance Technology with drums at Lyn-Rand which still had labels. Mr. Warrenfeltz recognized the markings on the photos of the drums left at Compliance Technology. The pine needles found on the drums were also significant, since drums were stored in a manner at Lyn-Rand which lead to pine needles falling upon them. Mr. Warrenfeltz told Mr. Tobergte that Lyn-Rand had recently shipped nine drums and recognized the drums from the photographs as those delivered to Dr. Vigna. Lyn-Rand removed the drums from Compliance Technology's property and arranged for their proper disposal. Neither Dr. Anthony Vigna nor AVA Hazardous Waste Removal and Disposal, Inc., has any EPA identification number. After the discovery of the abandoned drums, Mr. Vigna mailed a letter to Compliance Technology on May 10, 1989. The letter was backdated to April 28, 1989, and states in part that it was sent to Dr. Solon Cole, the President of Compliance Technology, "to make you aware of a delivery of nine drums that my driver will be leaving off at your plant." The letter was an after-the-fact attempt by Dr. Vigna to cover himself, which is foiled by the postmark date the letter bears. The content of the letter itself, however, leaves the impression that Dr. Cole and Compliance Technology had no prior awareness of the delivery, which is consistent with the testimony of Dr. Cole, that he had not agreed to any delivery of hazardous waste by Dr. Vigna, because Compliance Technology is not a hazardous waste storage facility, or a transporter of hazardous waste. It had acted as a broker for entities needing to dispose of hazardous waste. Dr. Vigna had visited Compliance Technology, and should have known that it did not store hazardous waste. This after-the-fact letter is also inadequate to constitute a shipping manifest for the hazardous waste delivered by Dr. Vigna, for there is no designation of the source of the material, or explanation of the contents of the drums. It does not approximate the kinds of documents used by legitimate hazardous waste transporters. Perhaps most significantly, Dr. Vigna and his company never contacted Dr. Cole after the drums were dropped at the Compliance Technology site to make arrangements to pay Compliance Technology for handling the drums, as the letter of May 10, 1989, suggests. Dr. Vigna maintains that his delivery of the drums to Compliance Technology was the result of a misunderstanding he had with Dr. Solon Cole. Dr. Vigna maintained that he and Dr. Cole had discussions concerning possible business ventures and he told Dr. Cole that he would be delivering nine drums of cutting oils and cleaning solvents to Compliance Technology, Inc. This testimony is rejected as much less credible than that of Dr. Cole, and because of the rather significant problems with the letter Dr. Vigna mailed on May 10, 1989, which was designed to cover himself, not to notify Compliance Technology of a delivery before the delivery was to be made. There is some slight corroboration of Dr. Vigna's version of the facts which arises from the decision of Compliance Technology not to press criminal charges against Dr. Vigna. The lawyer for Compliance Technology, Arthur Luongo, wrote to the Assistant State Attorney on June 7, 1989, and said: I have a great concern that Compliance Technology may be liable for a malicious prosecution action should they [the employees of Compliance Technology] testify in a criminal proceeding against Mr. Vigna. I see the case as one of simple civil negligence arising out of an honest, though admittedly stupid, mistake. It is the intention of Compliance Technology to become a public corporation within a year, and being the defendant in such a suit could seriously effect the value of their stock. They do, however, intend to recover civil restitution for their time, efforts and energy in locating Mr. Vigna. At best, this letter demonstrates that Compliance Technology had its own reasons for not wanting to press any criminal proceedings, but does not show that Dr. Vigna's actions were proper. Dr. Vigna's position would have been much more persuasive if the letter sent to Compliance Technology had actually been sent near the time it was dated (April 28), or if he had made contact with Dr. Cole to discuss pricing for what Dr. Vigna contends would have been Compliance Technology's efforts in arranging for final disposal of the Lyn-Rand material. It is strange that Dr. Vigna arrived at a price to charge Lyn-Rand without knowing what his price for disposal would be from Compliance Technology. That cost to Dr. Vigna was not relevant if Dr. Vigna intended merely to dump the material. The Department's characterization of the material as abandoned by Dr. Vigna is sustained by the evidence. Dr. Vigna acted as a transporter of hazardous waste. Because the drums were rusted, two bungs had to be replaced, and were leaking, Dr. Vigna is properly regarded as having caused pollution in transporting and leaving them at Compliance Technology. The Department incurred $2,936.58 as costs and expenses in tracing the pollution back to Dr. Vigna and arranging for its proper disposal.
Recommendation It is RECOMMENDED that Dr. Vigna and AVA Hazardous Waste Removal and Disposal, Inc., be found guilty of the violations alleged in the Administrative Complaint, that a final order be entered directing them to refrain from the transportation of hazardous waste unless they first notify the Florida Department of Environmental Regulation, obtain an EPA identification number, demonstrate their financial security, and comply with all standards and procedures required by rules of the Department and applicable federal regulations; it is also RECOMMENDED that they be required, jointly and severally, to reimburse the Department $2,936.58. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of April 1992. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of April 1992. APPENDIX TO RECOMMENDED ORDER The Petitioner's proposed findings of fact are addressed as follows: Adopted in Finding 1. Generally adopted in Finding 1. Adopted in Finding 1. Adopted in Findings 1 and 2. Adopted in Finding 2. Adopted in Finding 3. Adopted in Finding 3. Adopted in Finding 3. Adopted in Finding 3. Adopted in Finding 4. Adopted in Finding 4. Adopted in Finding 5. Adopted in Finding 6. Adopted in Finding 7. Adopted in Finding 8. Adopted in Finding 9. Adopted in Finding 10. Adopted in Finding 10. Adopted in Finding 10. Adopted in Finding 11. Adopted in Finding 12. Rejected as redundant of Finding 1. Adopted in Finding 16. The Respondent's proposed findings of fact are addressed as follows: Adopted in Finding 1. Adopted in Finding 3. Adopted in Finding 10. Rejected, see Finding 13. Rejected as unnecessary. Adopted in Finding 14. Adopted in Finding 15. Adopted in Finding 4. Rejected for the reasons stated in Findings 10-15. Rejected, see Finding 11. It is in the nature of a manifest that it needs to be delivered with the material it is designed to accompany. A "manifest" which Dr. Vigna maintained as his own record is no manifest. Rejected because the material was left unsecured near a loading dock. Its location near the storm drain, and the obliteration of the labels lead to the conclusion that the way was it was left did constitute an imminent hazard. Rejected, see Finding 3. Rejected because the leakage from the bungs, while not severe, did present the risk of pollution through contamination of the Biscayne Aquifer if any of the contents of the nine drums had been introduced into the storm drain. Rejected, see Finding 3. COPIES FURNISHED: Agusta P. Posner, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Steven N. Rosenthal, Esquire Suite 1040 City National Bank Building 25 West Flagler Street Miami, Florida 33130 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether Petitioner was the subject of an unlawful employment action.
Findings Of Fact Respondent is an employer within the meaning of Chapter 760, Florida Statutes. Petitioner has had diabetes since his youth and requires regular insulin and other medications for his condition. However, even with medication, Petitioner experiences a variety of symptoms due to low or high blood sugar. At the time relevant to this proceeding, Petitioner’s symptoms ranged from mild to severe and included periods of disorientation, faintness and passing out. Around October 1986, Petitioner was hired by Bay County (County) as an Equipment Operator. In that position, he was required to drive trucks. At the time of his employment, the County was aware of Petitioner’s diabetes. However, the evidence was not clear that the County was aware of the severity of Petitioner’s diabetic symptoms at the time of his hire or that Petitioner’s diabetes might have been severe enough to constitute a handicap at the time of his hire. Unfortunately, Petitioner had two accidents during his tenure as an Equipment Operator. Petitioner’s first accident occurred in 1989 and resulted in a reduction of pay. Petitioner’s second accident occurred in 1990 and led to his demotion from the Equipment Operator position. After his demotion, Petitioner assumed the position of Maintenance II with the County. In October 2005, the County changed the title of the Maintenance II position to Senior Maintenance Worker. Under either title, the duties of the maintenance position required heavy physical labor outdoors. The duties included shoveling, lifting, road work and ditch work. Such work was performed in all types of weather experienced in North Florida, including high heat conditions. Petitioner remained in the Senior Maintenance Worker position until December 2, 2007. At some point around early 2005, during Petitioner’s employment as a maintenance worker with the County, his diabetes became a handicap that impacted his major life functions. Petitioner experienced many episodes where he became uncooperative, faint and/or disoriented because of his diabetes. Some of the episodes occurred without warning when Petitioner would become uncommunicative, begin wandering, or pass out. Other episodes had some warning when Petitioner would report that he felt ill and needed to rest or take medication. The evidence demonstrated that Petitioner’s supervisors and co- workers were aware of his diabetic condition and would assist him in recuperating from these hypoglycemic or other diabetic- related episodes. Additionally, although the record is not clear, there was some evidence that summer heat in combination with strenuous labor exacerbated Petitioner’s ability to control his diabetic symptoms. On the other hand, there was some evidence that indicated Petitioner could experience symptoms from his diabetes under any environmental or working conditions. In 2005, the episodes were significant enough for the County to require Petitioner to undergo a medical examination to assess his fitness to safely perform his duties as a maintenance worker. At that time, the doctor recommended that Petitioner learn to control his diabetes better and be monitored for several months to see if Petitioner gained control of his diabetic episodes. Significantly, the doctor did not find Petitioner unfit to perform his duties as a maintenance worker. Petitioner was never denied a break that he needed as a result of his diabetes and was not disciplined because of his diabetic episodes. Indeed, throughout Petitioner’s employment as a maintenance worker, the County reasonably accommodated Petitioner’s diabetic condition and, as needed, allowed him to sit in the shade, eat, rest, test his blood sugar levels, and/or take medications. County supervisors provided Petitioner candy bars or soft drinks to help resolve his diabetic episodes, allowed Petitioner to take unscheduled breaks, leave work early because of his diabetes, and, at least once, provided a County vehicle to transport Petitioner to his home to get medications. Throughout the years of his employment with the County, Petitioner submitted job interest forms to the County. The job interest forms did not demonstrate that there were job openings or positions available at the time Petitioner expressed an interest in those jobs. The jobs Petitioner expressed an interest in were equipment operator, heavy equipment operator, lab field technician, dump truck driver, parks maintenance worker, traffic sign technician, and water treatment plant operator trainee. Petitioner was interested in the positions identified in the job interest forms because he wanted to better himself professionally. Importantly, Petitioner did not pursue the jobs identified in the various job interest forms he submitted as reasonable accommodations for his diabetes. The fact that the County’s doctor indicated in a 2005 medical examination and report assessing Petitioner’s fitness for duty that work under less strenuous conditions might be warranted should Petitioner not gain better control of his diabetes does not demonstrate that Petitioner requested or required transfer to another position in order to reasonably accommodate his diabetes. Indeed, the documentary evidence demonstrated Petitioner did gain control over his diabetic episodes in 2006 and 2007 with reports of such episodes being substantially reduced and one doctor, in 2007, advising the County that Petitioner could drive a truck as long as he monitored his blood sugar adequately. The evidence did not demonstrate that Petitioner sought transfer to a lighter-duty position as a reasonable accommodation until late 2007 as described later in this Recommended Order. Moreover, all but one of the job interest forms Petitioner submitted during his employment with the County sought reemployment to the equipment operator position from which he was demoted. All of these positions required driving or operating machinery. They all required heavy physical exertion and lifting between 45-to-90 pounds. All positions also required exposure to the heat from the sun and exhaust from machinery. However, the evidence demonstrated that these positions were not as strenuous as the maintenance position that Petitioner held. These positions were also promotions from his maintenance worker position. Additionally, Petitioner offered no evidence that his driving had improved or that he was qualified to operate heavy equipment or drive trucks given his insulin-dependent diabetes and the severe symptoms that he experiences as a result of his diabetes. In fact, since Petitioner’s symptoms included disorientation, faintness and passing out, it would have been negligent for the County to allow Petitioner to operate trucks or other heavy equipment. In short, none of the equipment operator/driver positions constituted a reasonable accommodation for Petitioner. As for the other jobs of Laboratory Analyst I, Parks Maintenance Worker, Traffic and Sign Technician or the Water Treatment Plant Operator Trainee positions that Petitioner expressed an interest in, Petitioner did not know the minimum qualifications for these positions and did not offer any evidence that he was qualified for such positions. Similarly, Petitioner offered no evidence that he sought these positions as reasonable accommodations for his diabetes. Additionally, Petitioner’s interest in these jobs was expressed prior to 2007 or 2008, well outside the relevant time period for purposes of this discrimination claim. In September 2007, Petitioner provided the County a Family Medical Leave Act certification from Dr. Steven Wise that stated he could perform all of the essential functions of the maintenance worker position he held. The doctor’s notes do not state that he is unable to perform the duties of his maintenance worker position under current working conditions. In fact, Petitioner never gave the County any document that stated he could not perform the duties of the maintenance worker position and needed a less strenuous and hot job in order to accommodate his diabetes. On October 18, 2007, Petitioner conducted himself in a rude, combative, and extremely argumentative manner during a County-sponsored Diabetes Awareness Seminar. As a result, Petitioner was suspended without pay for one day. On November 1, 2007, Petitioner erupted into a profanity-laced tirade at the workplace only one week after serving the suspension for his outburst during the County’s Diabetes Awareness Seminar. Petitioner gestured his middle finger at a co-worker, threatened to beat an employee’s a _ _, and told the co-worker f_ _ _you, “if you stand up I will kick you’re [sic] a _ _,” “loud mouth punk,” and “you smart mouth d _ _ _head.” Petitioner directed his threats and profanity at co- workers and supervisors in response to another person who had parked their vehicle improperly and blocked or interfered with Petitioner’s ability to move his parked vehicle. At the time, Petitioner was undergoing a change from insulin shots to a continuous insulin pump. Such a change requires a period of adjustment in order for the pump to provide the correct dose of insulin to the user. There was no evidence that the County was aware of the change in Petitioner’s insulin regimen at the time of these outbursts. Additionally, the evidence was unclear that the change in Petitioner’s insulin regimen caused either of these outbursts although such behavior is consistent with a hypoglycemic reaction. As a result of Petitioner’s behavior, the County recommended his termination. Notably, such aggressive outbursts could have led to any employee’s termination, irrespective of whether the employee was handicapped or not, since the ability to get along with co-workers is essential to any working environment. Petitioner was provided a pre-termination hearing prior to the County making a final decision on his recommended discharge. During Petitioner’s pre-termination hearing, he explained that his profanity-laced outburst resulted from a low blood sugar episode and that he felt it was due to the changes he was undergoing in his insulin regimen. Petitioner’s spouse, who is a nurse, also explained his diabetic condition to the County Manager. Petitioner also submitted a note from his physician, Dr. Steven Wise, stating that a “job requiring less heavy physical exertion” would help Petitioner control his diabetes. Petitioner asked that he remain employed with the County and be allowed to transfer to a job with little or no physical exertion, less manual labor, and that was not exposed to the elements. Based upon Petitioner’s claim that his diabetes caused the outburst, his wife’s explanation of his diabetic condition, and the doctor’s note, the County decided to provide Petitioner an opportunity to remain employed in a less strenuous position. Ms. Smith, the County’s Human Resources Director, reviewed Petitioner’s personnel file to ascertain what jobs he had previously demonstrated an interest in and what positions he might be qualified for. After review, the Solid Waste Attendant position was the only position the County had available in November 2007 that fit the less heavy physical exertion requirement requested by Petitioner. At hearing, Petitioner submitted a list of available County jobs for 2007 and 2008. The list does not indicate which of the jobs was available in November 2007 when Petitioner first sought a job transfer as a reasonable accommodation. Additionally, the jobs Petitioner expressed an interest in were the same jobs Petitioner had expressed an interest in that were discussed earlier in this Recommended Order. As to those positions, the record shows that either Petitioner was not qualified for those jobs or there was no substantial or credible evidence that demonstrated the availability of any other less strenuous positions that Petitioner was qualified for in November 2007. Sometime after the pre-termination hearing, the County offered Petitioner the position of Solid Waste Attendant. At some point, the County met with Petitioner before he accepted the Solid Waste Attendant position. At that meeting, Petitioner was told about the duties of the Solid Waste Attendant position. Those duties included counting money, inputting data into a computer, and/or processing paperwork. Two of the essential functions of the Solid Waste Attendant position were the ability to use computers and the ability to make correct change when handling cash. At the time, and even though Petitioner now admits he is not good at math and has not used a computer to any great extent, Petitioner was pleased with the Solid Waste Attendant position and did not raise any concerns or objections regarding his ability to perform the duties of that job. In fact, Petitioner testified during the hearing that he “thought that it would be a good job.” Petitioner accepted the Solid Waste Attendant position and started work on December 3, 2007. He did not lose any pay or benefits when he was transferred to the Solid Waste Attendant position. As with any other County employee, Petitioner was on performance probation status when he assumed the Solid Waste Attendant position. The County’s probationary employee policy allows employees to be discharged prior to the completion of the probationary period. Petitioner was in the Solid Waste Attendant position for approximately two and a half months. With the exception of two weeks (December 28, 2007, until January 14, 2008) that he missed because of hand surgery on his non-dominant left hand, Petitioner spent the remaining ten weeks in training. However, prior to Petitioner’s leaving for surgery on his left hand he was having problems performing the Solid Waste Attendant’s duties. Upon Petitioner’s return to work on January 14, 2008, Petitioner was placed on light duty. He was not restricted in relation to the use of his left hand. However, for a short time, use of his left hand was difficult since it required elevation. Importantly, the evidence did not demonstrate that Petitioner’s surgery on his left hand significantly interfered with his ability to perform the duties of the Solid Waste Attendant position over the period of time he worked in that position. Nor, was there any credible evidence that Petitioner’s large hands hindered his ability to use the computer keyboard at work. Petitioner’s difficulties in mastering the duties required in the position did not involve the speed with which he could input data into the computer system. His problems did involve his ability to do math, understand the waste computer program and learn the codes for appropriately accounting for solid waste disposal. John Beals, Rose Day, and Cynthia Thompson trained Petitioner in the duties of the Solid Waste Attendant position for periods ranging from a couple of weeks to two months. Petitioner was provided training on how to complete solid waste attendant paperwork, computer operation, scale operation, customer service, and cash-handling procedures. Despite the training, his job performance in the Solid Waste Attendant position was unsatisfactory. Specifically, Petitioner was unable to retain the information necessary to complete solid waste attendant tasks, did not understand the WasteWork computer program, did not count money correctly when giving change, could not remember account numbers or material codes relevant to required environmental accounting for solid waste processing, failed to complete forms correctly, and could not multi-task while processing customers leaving waste at the solid waste facility. Petitioner’s performance did not improve after his return from the hand surgery. As a result of Petitioner’s inability to understand the Solid Waste Attendant’s job duties and unsatisfactory work performance in the position, the County terminated Petitioner’s employment during his probationary period. There was no credible evidence that Petitioner’s termination was based on his diabetic condition or was a pretext for discrimination based on his handicap. Petitioner simply could not perform the essential functions of the Solid Waste Attendant job. Finally, the evidence did not demonstrate that any other position was available to Petitioner for which he was qualified. Given these facts, the evidence did not demonstrate that Petitioner was discriminated against based on his handicap and the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition for Relief be dismissed. DONE AND ENTERED this 31st day of December, 2009, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 2009. COPIES FURNISHED: Cecile M. Scoon, Esquire Peters & Scoon 25 East Eighth Street Panama City, Florida 32401 Reynaldo Velazquez, Esquire Velazquez Law Firm, P.A. 100 Almeria Avenue, Suite 340 Coral Gables, Florida 33134 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
