The Issue Is Respondent guilty of violations of Rule 10D-6.0751(l)(b) [gross negligence and incompetence] by the installation of a residence septic tank system and failure to obtain a new system construction permit with approved site plan prior to installation of a new on-site sewage treatment system, as charged in the undated administrative complaint numbered HPO-96-1003, which was referred to the Division of Administrative Hearings on or about November 26, 1996 and if so, what discipline should be imposed?
Findings Of Fact Respondent Larry A. Ford is registered by Petitioner agency as a septic tank contractor, under the registered name of "L.A. Ford Septic Services." On July 31, 1996, Gary W. Thompson, agent and building contractor for Johnny Howard, Jr., applied to the Suwannee County Health Department for an Onsite Sewage Disposal System Construction Permit to install an onsite sewage treatment and disposal system for Mr. Howard's residence. The site plan specified installation of a septic system on the north side of a house which was then under construction. On August 2, 1996, Charles Bradley, Environmental Health Specialist, Suwannee County Health Department, conducted a site evaluation at the construction site. His site evaluation included taking soil samples from the location proposed for the system to determine the suitability of the soil and the seasonal high water elevation table. A permit was issued in accord with the site evaluation. Mr. Howard (owner) and Mr. Thompson (general contractor) engaged Respondent Ford to install Mr. Howard's septic system. In practice, septic tank installers, including Respondent, usually will contact the Suwannee County Health Department for a copy of the permit, site plan, and other particulars before beginning an installation. The record is silent as to whether that happened in this case. On August 5, 1996, Respondent completed installation of the system and contacted Mr. Bradley to do a final inspection. When Mr. Bradley arrived to inspect the system, he discovered that it had been installed on the west side of the house instead of the north side as called for in the site plan and permit as issued. In other respects, the installed system seemed to comply with the technical requirements for septic systems and Bradley issued an "in place" approval even though Respondent had failed to advise, or have Mr. Howard or Mr. Thompson advise, the Suwannee County Health Department about the change in the system's location so that the Department could conduct another pre-installation site evaluation and issue a corrected permit. If a location or any other significant factor is going to be altered by the installer, the applicable rules require that the installer first amend the permit application and get a new site inspection and agency approval/permit. In practice, a location change is simply approved or rejected by the agency during the after-the-fact inspection, without any real insistence by the agency that the change be pre-approved. However, if the ultimate installation does not accord with health standards or rule standards for any reason, the agency is authorized by rule to require that the situation be corrected and that the installer arrange for a complying permit to be issued. The following week, Mr. Howard's father, who was also the owner of the land adjacent to Mr. Howard's home construction site, complained to Larry Williams, Environmental Health Supervisor at the Suwannee County Health Department. The senior Mr. Howard's primary concern was that the drainfield for his son's new septic system extended across the property line into his property in an area he used for cultivation. A subsequent inspection by Larry Williams, who is an agency superior to Mr. Bradley, revealed that the system had been mislocated across property lines; that the septic tank was installed nearby a dryer vent opening in the west side of the house, rather than the plumbing stub-out designed for this system on the north side of the house; and that the system's elevation as installed would not allow for gravity flow as originally designed; and that the system, as installed, would require additional plumbing and a pump to operate it. The property line trespass would not have showed up in the "as is" inspection by Mr. Bradley. The testimony herein with regard to gravity backflow is sufficient to establish another technical installation violation, despite Mr. Bradley's original post-installation approval of the system, but the record is lacking in evidence to establish that there was a clear danger to public health as a result. Upon further investigation, agency personnel were confronted with at least one disputed fact. On the one hand, they had the complaints of the two Mr. Howards against Respondent and on the other hand they had Respondent's insistence that the younger Mr. Howard's wife had authorized Respondent to relocate the system to the west side of the house. As a result, Respondent denied any and all responsibility for mislocating the system. Additionally, due to the original post-installation agency approval, the Respondent refused to correct the Howard septic system in any way or to participate in agency mediation. When agency efforts to mediate the problem were unsuccessful and Respondent failed to make any arrangements to correct the problem, the County Health Unit paid $975.00 for the correction of Mr. Howard's system by another certified septic contractor. This amount came out of its discretionary funds reserved for dangers to public health. Apparently, Mr. Howard has paid nothing for the repairs. The agency then instituted this instant disciplinary action against Respondent. Respondent refused certified mail delivery of the notice of intended action. Therefore, he had to be served by the Sheriff's office. The notice of intended action advised Respondent that the agency considered his acts and omissions with regard to his installation of the septic system to be gross negligence and incompetence under Rule 10D-6.075, Florida Administrative Code, and that if he did not take corrective action within three days of his receipt of the notice, the agency intended to issue an administrative fine against him and to suspend his registration as a septic tank contractor. Respondent again denied any responsibility for his installation of Mr. Howard's system and refused to take any corrective action or otherwise to try to mitigate the problem. The agency also has cited Respondent via an August 27, 1997 Letter of Warning which had nothing to do with the Howard job. The Letter of Warning advised Respondent that he was in violation of Part III, Chapter 489, Florida Statutes, punishable under Rule 10D-6.0751(1)(a) Florida Administrative Code, because his advertising used a business name (Ford Septic Tank Service) under which he is not registered, instead of his business registration name of "LA Ford Septic Tank". No timely request for administrative hearing was received to dispute the material issues raised by this warning letter, and therefore its allegations may be considered as true. This Letter of Warning also may be considered for purposes of aggravation of penalty, if any penalty is determined in the instant proceeding. The agency has had numerous other customer complaints against Respondent. Its own investigation of these other complaints has satisfied agency staff that in many instances Respondent was doing fraudulent and/or negligent septic system work. However, none of these allegations can be considered here for two reasons. First, because these other situations were not noticed nor charged in the pending administrative complaint, no findings of fact can be made herein with regard to them. Second, because these situations were never proven in a formal proceeding and were not reduced to a Letter of Warning, they may not be considered under the guidelines provided by the agency's rules to aggravate a penalty, if any penalty is determined in the instant proceeding. See the Conclusions of Law, infra. In filing the administrative complaint herein, witnesses Wilson and Melton considered the gravity of Respondent's situation at the Howard residence and his failure to take any mitigating action. They also considered, as aggravating circumstances, the many other citizen complaints discussed above. The administrative complaint for the charges surrounding Respondent's installation on Mr. Howard's permit was served on Respondent in October 1996. He timely requested a formal administrative hearing. Part of the registration procedure for septic treatment system contractors is to take an examination with regard to the requirements of Chapter 10D-6 Florida Administrative Code, including permit requirements, technical requirements for septic system installations and the conduct expected of contractors. Registered contractors who pass the examination, including Respondent, are expected to know and follow all requirements in Chapter 10D-6, Florida Administrative Code.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health enter a final order finding Respondent guilty of one violation of Rule 10D- 6.0751(1)(b)2. and one violation of Rule 10D-6.0751(1)(l)2; fining Respondent $1,000.00; and revoking his certificate. RECOMMENDED this 29th day of APRIL, 1997, at Tallahassee, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1997. COPIES FURNISHED: Thomas Koch, Esquire Department of Health 2639 N. Monroe Street Suite 160-A Tallahassee, FL 32399-2949 Larry A. Ford Route 1 Box 1705 O'Brien, FL 32071 David West, Esquire Department of Health District 3 Legal Office 1000 Northeast 16th Avenue, Box 3 Gainesville, FL 32601 Dr. James Howell, Secretary Department of Health 1317 Winewood Bouelvard Building 6 Room 306 Tallahassee, FL 32399-0700 Pete Peterson 1317 Winewood Boulevard Building 6 Room 102-E Tallahassee, FL 32399-0700
The Issue In this proceeding, Florida Power Corporation (FPC) seeks approval to construct and operate 470 MW of natural gas-fired advanced design combined cycle (NGCC) generating capacity at its proposed Polk County Site. Additionally, FPC seeks a determination that the Polk County Site has the environmental resources necessary to support an ultimate capacity of 3,000 MW of combined cycle generating capacity fueled by a combination of natural gas, coal-derived gas and distillate fuel oil. Such an ultimate site capacity certification may be granted pursuant to Section 403.517, Florida Statutes and Rule 17-17.231, Florida Administrative Code.
Findings Of Fact Project Site and Vicinity FPC's proposed Polk County Site is located on approximately 8,200 acres in southwest Polk County, Florida, in an area dominated by phosphate mining activities. The Polk County Site is approximately 40 miles east of Tampa, 3 miles south of Bartow and 3.5 miles northwest of Fort Meade. Homeland, the nearest unincorporated community, lies about one mile to the northeast of the site boundary. The Polk County Site is bounded on the north by County Road (CR) 640 and along the southeast and south by a U.S. Agri-Chemical Corporation (USAC) mine. CR 555 runs north-south through the site. The Polk County Site is comprised of land in four different phases of mining activity: mine pits, clay settling ponds associated with phosphate mining, land which has been mined and reclaimed, and land which has yet to be mined. Approximately one-half of the Polk County Site is subject to mandatory reclamation. Land uses adjacent to the Polk County Site consist almost entirely of phosphate mining activities. One mobile home is located at the intersection of CR 640 and CR 555 approximately 2 miles from the proposed location of the principal generating facilities. General Project Description The initial generating capacity at the Polk County Site will be NGCC units. Under what has been designated as the Case A' scenario, ultimate site development will consist of 1,000 MW of NGCC and 2,000 MW of CGCC generating capacity, for a total of 3,000 MW. Under the alternative Case C scenario, the ultimate site capacity would consist of 3,000 MW of all NGCC capacity. The Case C scenario was initially developed as the worst case scenario for the socioeconomic impact analysis (i.e., the one that would produce the least amount of economic benefit.) The combined cycle units which initially burn natural gas can be modified to burn coal gas if necessary to meet changes in fuel supply or pricing. However, under the proposed ultimate site capacity, CGCC generating capacity will be limited to a maximum of 2,000 MW out of the total of 3,000 MW. At ultimate buildout the major facilities at the Polk County Site will include the plant island, cooling pond, solid waste disposal areas, and brine pond. The plant island will be located on mining parcels SA-11, SA-13 and the northerly portion of SA-12. The plant island ultimately will contain the combined cycle power block, oil storage tanks, water and sewage treatment facilities, coal gasification facilities, coal pile and rail loop, and coal handling facilities. The cooling pond at ultimate buildout will be located in mining parcels N-16, N-15 and N-11B, with a channel through N-11C. Mining parcels N-11C, P-3, Phosphoria, Triangle Lakes and P-2, if not used as a solid waste disposal area, will be used as water crop areas to collect rainfall for supplying the cooling pond. The brine pond will receive wastewater reject from the reverse osmosis (RO) water treatment system and will be located on mining parcel SA-9. Two solid waste disposal areas (SWDA) are planned for ultimate development of the Polk County Site. The SWDAs will be mining parcel SA-8 initially and mining parcel P-2 in later phases, if necessary. Coal gasification slag will be the predominant solid waste to be disposed of in the SWDAs. Other areas included within the Polk County Site are mine parcels N- 11A, N-13, N-9B, Tiger Bay East, Tiger Bay, the northerly 80 acres of N-9, SA-10 and the southerly 225 acres of SA-12. Along with providing a buffer for the Polk County Site facilities, these parcels also will provide drainage to Camp Branch and McCullough Creek. Linear facilities associated with the initial 470 MW of generating capacity at the Polk County Site will include a 230 kilovolt (kV) transmission line upgrade, a reclaimed water pipeline, and a backup natural gas pipeline. Site Selection A comprehensive process was used to select the Polk County Site. The goal of that process was to identify a site which could accommodate 3,000 MW of generating capacity and offer characteristics including: (1) multi-unit and clean coal capability; (2) technology and fuel flexibility; (3) cost effectiveness; (4) compatibility with FPC's commitment to environmental protection; (5) ability to comply with all government regulations; and (6) consistency with state land use objectives. The site selection process included the entire State of Florida. Participants in the site selection process included a variety of FPC departments, environmental and engineering consultants, and an eight-member Environmental Advisory Group (EAG) composed of environmental, educational, and community leaders. In October, 1990, with the concurrence of the EAG, the Polk County Site was selected. The ultimate basis for the selection of the Polk County Site was the disturbed nature of the site as a result of extensive phosphate mining activities. The Polk County Site also is compatible with FPC's load center and transmission line network, and is accessible to rail and highway transportation systems. PSC Need Determination On February 25, 1992, the PSC issued Order No. 25805 determining the need for the first 470 MW of generating capacity at the Polk County Site. The PSC concluded in its order that the first two combined cycle units (470 MW) at the Polk County Site will contribute to FPC's electric system reliability and integrity. It also concluded that the first two units would enable FPC to meet winter reserve margin criteria and to withstand an outage of its largest unit at the time of system peak demand. The PSC stated that it was important for FPC to secure a site to meet future needs and that the first two units would contribute toward this goal. Basis for Ultimate Site Capacity The Site Certification Application (SCA), including the Sufficiency Responses, addressed the impacts associated with 3,000 to 3,200 MW of generating capacity under several scenarios. FPC eliminated or modified several of the scenarios by filing a Notice of Limitations which addressed the capacity and environmental effects of 1,000 MW of NGCC and 2,000 MW of CGCC generating capacity at the Polk County Site. Throughout the SCA, Sufficiency Responses and Notice of Limitations, the capacity constraints and environmental effects were analyzed under a worst case scenario, i.e., the maximum environmental effects that could be expected at ultimate site capacity. An ultimate site capacity determination will significantly reduce the time and expense associated with processing supplemental applications for future units at the Polk County Site under the expedited statutory procedures of the Power Plant Siting Act. This will allow FPC to respond more quickly to changes in growth and demand. An ultimate site capacity determination also provides FPC the assurance that the Polk County Site has the land, air and water resources to support future coal gas-fired generating capacity. Project Schedule and Costs Construction of the initial 470 MW of NGCC generating capacity is scheduled to begin in 1994. These units will go into operation in 1998 and 1999. Based on current load forecasts, it is expected that approximately one 250 MW unit will be added every other year to the Polk County Site. Under this schedule, ultimate site development of 3,000 MW would occur about 2018. Capital investment for the Polk County Site is expected to be approximately $3.4 billion for the 1,000 MW NGCC/2000 MW CGCC Case A' scenario and approximately $1.7 billion for the all NGCC Case C scenario. Project Design Generating units for the Polk County Site will be advanced design combined cycle units firing natural gas and/or coal gas, with low sulfur fuel oil as backup. Each combined cycle unit will consist of one or two combustion turbines (CT), a heat recovery steam generator (HRSG) for each CT and one or two steam turbines (ST). The first 470 MW of generating capacity will consist of two CTs firing natural gas, two HRSGs and one or two STs. At ultimate site capacity, the Polk County Site will consist of 12 CTs, 12 HRSGs, and 6 to 12 STs. A combined cycle unit is a generating system that consists of two sequential generating stages. In the first stage, the natural gas, coal gas or fuel oil is burned to operate the CT. Hot exhaust gas from the CT is passed through the HRSG to produce steam to operate the ST. The CT and steam from the HRSG can be arranged to drive individual generators or a single generator. In later phases of the Polk County Site, up to 2,000 MW of combined cycle generation may be fired on coal gas. The combined cycle units that were initially constructed to operate on natural gas can be modified to operate on coal gas. Under the Case A' scenario, two coal gasification plants would be built to produce coal gas for the combined cycle units. Associated with the coal gasification phase of the project will be the expansion of the plant island to accommodate the storage and handling of coal. Coal will be transported onsite by railroad. A rail loop for coal trains will be constructed on the plant island. It will be sized to accommodate a 100-car coal train. The coal storage area and limestone stockout will be located within the coal loop. Limestone is used in the coal gasification process as a fluxing agent to improve the viscosity of the coal slag, a by-product of the coal gasification process. The coal storage area, including the coal piles and emergency coal stockout system, will be lined with an impervious liner, and runoff from the coal storage area will be recycled to the coal gasification plants. The cooling pond for the Polk County Site will be located north and east of the plant island. Water from the cooling pond will be used for producing steam and condenser cooling. The cooling pond will be constructed initially in mining parcel N-16 and then in parcels N-15 and N-11B for later phases. These areas are mined-out pits which are surrounded by earthen dams. These dams will be upgraded where required to provide stability equivalent to the requirements of Chapter 17-672, Florida Administrative Code, for phosphate dams. Soil and Foundation Stability To evaluate the existing soil conditions at the Polk County Site, more than 165 test borings were made. The plant island is an existing mine pit which has been partially filled with sand tailings from phosphate mining operations. Underlying the sand is the Hawthorn formation which is often used as the base for deep load bearing foundations. Foundations for the heavier loads of power plant facilities will require pile foundations or similar types of deep foundations that will extend into the Hawthorn formation. The potential for sinkhole development at the Polk County Site was investigated by reviewing historic sinkhole records, aerial photographs, well drillers' logs, and by drilling three deep borings at the site. The investigation demonstrated that the potential for sinkhole development at the Polk County Site is low and acceptable for this type of construction. Construction Activities Construction of the Polk County Site will be phased over an approximately 25-year period beginning in 1994. The development of the Polk County Site is expected to take place in seven phases. Changes in the scope or sequence of the individual phases may occur depending on capacity needs over time. During Phase I, the initial earthwork and dewatering activities required for the construction of the plant island and cooling pond will take place. The initial cooling pond and plant island area will be dewatered and fill will be placed in SA-11 and SA-13 for the initial power plant construction. Water from the dewatering activities will be conserved by storage in mining parcels SA-8, SA-9, SA-10, N-15 and the northerly part of SA-12, except for quantities used in IMC's recirculation system. Clay consolidation will commence for other parcels, such as N-11A, N-11B, N-11C, N-13 and N-9B. Phosphate mining and related operations will still function in parcels P-2, P-3, Phosphoria, Triangle Lakes, and N-9. The initial vertical power plant construction for the first 470 MW of generating capacity will take place in Phase II. Water stored in Phase I, along with reclaimed water from the City of Bartow, will be used to fill the cooling pond in parcel N-16. Any excess reclaimed water from the City of Bartow, if necessary, will be stored in the eastern portion of N-16. Mining parcels SA-10, the southerly part of SA-12, and a portion of the offsite Estech Silver City plant site will be configured for drainage enhancement to McCullough Creek. Mining parcel SA-8 will be prepared to receive solid waste and parcel SA-9 will be prepared to receive wastewater from the RO system and neutralization basin. Wildlife habitat creation and enhancement will begin in parcels N-9B and N-13. Phase III of the Polk County Site represents the operation of the power plant from 235 MW to 1,500 MW, currently projected as NGCC capacity. The plant island, which will contain the generating units, will be located on mining parcels SA-11 and SA-13. The cooling pond will be located in N-16 and will receive reclaimed water from the City of Bartow and water crop from mining parcels P-3, Phosphoria, P-2, Triangle Lakes, N-15, N-11B, N-11C, the northerly end of SA-12 and the east end of N-16. Phase IV will encompass the development of the Polk County Site from 1,500 MW to 2,000 MW, currently projected as NGCC capacity. In conjunction with the additional generating units onsite, the cooling pond in N-16 will be enlarged to 1,219 acres. Other portions of the Polk County Site would remain the same as in Phase III. During Phase V, coal gasification is projected to be introduced to the Polk County Site. Generating capacity will be increased to 2,250 MW of which 1,000 MW are projected to be NGCC and the remaining 1,250 MW will be CGCC. To accommodate the coal gasification facilities, the northerly portion of SA-12 would be filled. The balance of the site would remain as described in Phase IV. During Phase VI, the generating capacity at the Polk County Site is projected to increase from 2,250 MW to 3,000 MW. This generating capacity will be a combination of 1,000 MW on NGCC and 2,000 MW on CGCC. During this phase, the cooling pond will be enlarged to 2,260 acres and will include parcels N-16, N-15 and N-11B, and a channel through N-11C. Earthwork will be required in N-15 and N-11B to repair and improve dams, and add slope protection on the dam inner faces and seeding on the exterior faces. Phase VII will be the final phase of the Polk County Site. During this phase, if the solid waste disposal area in mining parcel SA-8 were to become full it would be closed and mining parcel P-2 would be prepared to receive solid waste from the power plant operations. Parcels P-3 and Phosphoria will be available for mitigation, if necessary, as a result of activities in parcel P-2. This phase might not occur if coal slag is successfully recycled. Fuel Supply Fuel for the initial 470 MW of combined cycle generation will consist primarily of natural gas, with light distillate fuel oil as backup. Natural gas will be delivered by pipeline to the Polk County Site at a rate of 3.75 million cubic feet per hour. FPC currently plans to receive natural gas from the proposed Sunshine Pipeline for which certification is being sought in a separate proceeding. The Application for the Sunshine Pipeline was filed with DEP in August 1993. The other source for natural gas will be the backup natural gas pipeline which is being certified in this proceeding as an associated linear facility. Fuel oil will be delivered to the site by tanker truck, and enough fuel oil will be stored onsite for three days of operation for each combined cycle unit. At ultimate development, three 4-million gallon oil tanks will be located on the Polk County Site. All fuel handling and storage facilities, including unloading areas, pump areas, piping system, storage tanks, and tank containment areas will meet the requirements of DEP Chapter 17-762, Florida Administrative Code, and applicable National Fire Prevention Association Codes. At ultimate site development, the combined cycle units would use both natural gas and coal gas as primary fuels, and fuel oil as a backup fuel. As with the initial phase of operation, natural gas will be supplied by pipeline. At 1,000 MW of NGCC capacity, six to eight million cubic feet per hour of natural gas will be required. Coal for the coal gasification units will be delivered by railroad. For 2,000 MW of CGCC generating capacity, approximately 15,000 to 20,000 tons of coal a day will be required. Linear Facilities The initial 470 MW of NGCC generation includes three associated linear facilities: a 230-kV transmission line upgrade, a reclaimed water pipeline, and a backup natural gas pipeline. 230-kV Transmission Line The 230-kV transmission line will be routed from the existing FPC Barcola Substation within the Polk County Site to the FPC Ft. Meade Substation adjacent to CR 630. The transmission line corridor is approximately 1,000 feet wide within the Polk County Site boundary and narrows to 500 feet as the corridor leaves the site. The transmission line corridor follows several linear facilities including an existing transmission line right-of-way, CR 555 and CR 630. Land uses along the corridor are primarily phosphate mining, agricultural and industrial. Wetlands within the transmission line corridor are minimal and are associated primarily with roadside ditches. Where the transmission line crosses McCullough Creek, the creek will be spanned. The 230-kV transmission line will be constructed using single shaft tubular steel poles with a double circuit configuration for two 230-kV circuits. The transmission line structures will range in height from 110 feet to 145 feet. The conductor for the transmission line is a 1590 ACSR conductor that is approximately 1.54 inches in diameter. Conductor span lengths between structures will range from 500 to 900 feet. The transmission line will be constructed in six phases. During the first phase, the right-of-way will be cleared. Clearing in upland areas will be done using mowers and other power equipment. Clearing in wetlands, if necessary, will be accomplished by restrictive clearing techniques. After the right-of-way has been cleared, existing structures which will be replaced with new transmission line structures will be removed by unbolting them from their foundations and removing the structures with a crane. Foundations for new transmission line structures will be vibrated into the ground using a vibratory hammer or placed into an augured hole and backfilled. After the foundations are in place, new structures will be assembled on the foundations using a crane. Insulation and pole hardware will be mounted on the structures after erection. In the fifth phase of construction, conductors will be placed on a structure by pulling the conductors through a stringing block attached to the structure. During the final phase of construction, the structures will be grounded and any construction debris will be removed from the right-of-way. The construction of the 230-kV transmission line is estimated to require approximately 17 weeks. Construction of the transmission line will meet or exceed standards of the National Electrical Safety Code; FPC transmission design standards; Chapter 17- 814, Florida Administrative Code; and the Florida Department of Transportation Utility Accommodation Guide, where applicable. Electric and magnetic fields from the 230-kV transmission line will comply with the standards set forth in Chapter 17-814, Florida Administrative Code. Audible noise from the transmission line should occur only during rainy weather and will not exceed 39.1 dBA at the edge of the right-of-way. Since the transmission line is not located near many residences, interference to television and AM radio reception should be minimal. If interference does occur, it can be identified easily and corrected on an individual basis. Backup Natural Gas Pipeline The backup natural gas pipeline will originate at the Florida Gas Transmission pipeline in Hillsborough County at CR 39. The backup pipeline corridor runs generally east for 18 miles until it enters the Polk County Site at the western boundary of the plant island. The pipeline corridor is 1,000 feet wide and it generally follows linear facilities such as Jameson Road, a Tampa Electric Company transmission line, the CSX Railroad, Durrance Road, and Agricola Road. Several subalternate corridors are proposed in Polk County where the backup natural gas pipeline crosses phosphate mining land. The subalternate corridors, all of which are proposed for certification, are necessary to maintain flexibility in routing the backup natural gas pipeline around active mining operations. The uses of land crossed by the backup natural gas pipeline corridor consist primarily of phosphate mining and some agriculture. There are only two areas of residential land use along the corridor, one along Jameson Road in Hillsborough County, and the other near Bradley Junction along Old Highway 37 in Polk County. Ecological areas crossed by the natural gas pipeline corridor include a portion of Hookers Prairie in Polk County, some isolated wetlands associated with phosphate mining activities, and the South Prong Alafia River near CR 39 in Hillsborough County. The backup natural gas pipeline will consist of a metering facility, a scraper trap for pipeline cleaning, a maximum 30-inch buried pipeline made of high strength steel, a pressure regulating station, a cathodic protection system for corrosion control, and a Supervisory Control and Data Acquisition (SCADA) system to monitor and operate the pipeline. The pipe to be used for the natural gas pipeline will be manufactured in accordance with standards specified in 49 CFR 192 and the industrial standards referenced therein. Pipe thickness will vary depending on the population of the area crossed. External corrosion control for the pipe will be provided by an external coating around the pipe and a cathodic protection system designed to prevent electrochemical corrosion of the pipe. Pipeline sections will be hydrostatically tested before leaving the factory to 125 percent of the design pressure. Activities associated with the construction of the backup natural gas pipeline will include survey and staking of the right-of-way, right-of-way preparation, stringing of the pipe, bending, lineup welding and nondestructive testing, ditching, lowering in of pipeline sections, backfilling, tying in pipeline sections, testing and right-of-way restoration. Construction of the pipeline will take place typically within a 75 foot-wide right-of-way. A wider right-of-way may be required where specialized construction activities, such as jack and bore methods, are used. After construction, the natural gas pipeline will have a permanent 50-foot right-of-way. Where the pipeline crosses federal and state highways or water courses, directional drilling or jack and bore construction methods will be used to minimize disturbance. Where the pipeline crosses the South Prong Alafia River, directional drilling will be used to locate the pipeline underneath the river bed. Pipeline welding will be done by highly skilled personnel who have been qualified in accordance with 49 CFR 192. Pipeline welds will be visually inspected and a percentage of the welds will be x-rayed for analysis. Once the pipeline is constructed, buried and tie-in welds completed, the pipeline will be hydrostatically tested. Hydrostatic testing will use water with a minimum test pressure of 125 percent of maximum operating pressure. Water for hydrostatic testing will be pumped from and returned to the Polk County Site cooling pond. Construction of the pipeline will comply with Title 49 CFR Part 192, Transportation of Natural and Other Gas by Pipelines: Minimum Federal Safety Standards; Chapter 25-12, Florida Administrative Code; Safety of Gas Transportation by Pipeline; and the FDOT Utility Accommodation Guide. After construction of the backup natural gas pipeline, the right-of- way will be restored and a 50-foot-wide permanent right-of-way will be maintained. Line markers will be located along the pipeline at regular intervals and warning signs will be posted where the pipeline crosses roads, railroads, or stream crossings. The estimated cost for the pipeline construction is $611,100 per mile, or $11.2 million for the 18.2 mile pipeline route. Reclaimed Water Pipeline The reclaimed water pipeline will run from the City of Bartow to the cooling pond near the eastern side of the Polk County Site. The reclaimed water pipeline corridor follows the CSX Railroad and U.S. Highway 17/98 south from the southerly Bartow city limit turning west toward the Polk County Site just south of Homeland. Land uses along the corridor include phosphate mining, commercial sites, rural residences and recreation. The corridor does not cross any environmentally sensitive habitats. The reclaimed water pipeline consists of a buried pipe, 24 to 36 inches in diameter, butterfly valves about every mile along the pipeline, and a flow meter. Pumping of reclaimed water will be provided by the Bartow Sewage Treatment Plant. Construction of the reclaimed water pipeline is similar to that of the natural gas pipeline and includes the following activities: survey and staking of the right-of-way, right-of-way preparation, ditching or trenching construction, stringing of the pipe and pipe installation, back filling, hydrostatic testing, and right-of-way restoration. Where the pipeline crosses state or federal highways or railroads, the pipe will be installed by using jack and bore construction. Construction of the reclaimed water pipeline is estimated to cost $500,000 per mile or $5,000,000 for the total length of the pipeline. Construction of the reclaimed water pipeline will comply with the standards in Chapter 17-610, Florida Administrative Code, the Florida Department of Transportation Utility Accommodation Guide, and the EPA Guidelines for Water Reuse Manual. The pipeline will be hydrostatically tested prior to operation. Corrosion control of the pipeline will depend on the material used for the pipeline and the soil conditions. If a polyethylene or a polyvinylchloride material is used, no corrosion control will be necessary. If ductile iron is used, the soil will be tested for corrosive properties and, if necessary, the pipeline will be protected from corrosion with a poly wrap material. Solid Waste Disposal Various types of solid waste will be generated by the operation of the Polk County Site. Depending upon the type of solid waste, disposal may be made in the onsite solid waste disposal areas or it may be disposed of offsite. Waste inlet air filters from the combustion turbines and general waste, such as office waste, yard waste and circulating water system screenings, will be recycled or disposed of offsite at the Polk County North Central Landfill. Solid waste from the well water pretreatment and blowdown pretreatment will be disposed of onsite in the solid waste disposal area to be constructed in mining parcel SA-8. Sulfur, a by-product of coal gasification, will be of marketable grade and will be stored in a molten state onsite and delivered to buyers by rail car or tanker truck. Slag, a by-product of coal gasification, will be the largest volume of solid waste generated at the Polk County Site. Slag is potentially marketable and FPC will make efforts to recycle this by-product as construction aggregate. If slag is not marketable, it will be disposed of in the onsite solid waste disposal areas initially in mining parcel SA-8 and later, if necessary, in parcel P-2. Low volume spent acidic and basic solutions produced in the regeneration of demineralizer resin bed ion exchanges during operation of the facility will be treated in an elementary neutralization unit to render them non-hazardous. Other potentially hazardous waste will be tested and if determined hazardous will be disposed of in accordance with all applicable federal and state laws. Onsite disposal of slag, and well water and blowdown pretreatment solids will be made in the solid waste disposal areas to be constructed in parcels SA-8 and later, if necessary, P-2. These parcels are clay lined impoundments that have clays generally 20 to 40 feet thick. Prior to disposal of any solid waste in a clay settling area, that area will be drained and the clays consolidated. The clays will be probed and if the clay thickness is less than 10 feet it will be refurbished or patched with a synthetic liner. Additionally, a geotextile net will be installed to provide tensile strength to the upper layer of clay. Perimeter leachate collection piping will be installed. Leachate in the interior of the solid waste disposal areas will be monitored and collected by the use of well points to maintain the leachate head at no greater than 4 feet. The solid waste disposal area in parcel SA-8 will be closed by installing a two-foot thick soil cover which will be seeded and graded to provide water crop to parcel N-16. At closure, the leachate level will be pumped down to minimize the residual leachate head. The clay which lines the base of the solid waste disposal areas decreases in permeability as it consolidates and the solids content of the clay increases. In the first 20 to 50 years of consolidation, the hydraulic gradient of the clay is reversed and water will drain upward. Analysis of the clay shows that it would take 60 to 100 years for leachate to seep through the clay liner. After closure and capping of the solid waste disposal area occurs and the leachate residual head is pumped out, leachate is not expected to break through the liner. Based on the design of the solid waste disposal areas and the analysis of the clay, the solid waste disposal areas in parcels SA-8, and later P-2, should provide equivalent or superior protection to that of a Class I landfill under Chapter 17-7.01, Florida Administrative Code. Industrial Wastewater The Polk County Site is designed to be a zero discharge facility. There will be no offsite surface water discharge of contaminated stormwater or cooling pond blowdown. Cooling pond blowdown will be treated first by a lime/soda ash softening pretreatment system. A portion of the softened effluent will be routed to the cooling pond and a portion will be treated further by reverse osmosis (RO). High quality water from the RO system will be reused in the power plant as process water. The reject wastewater from the RO system will be sent to the brine pond for evaporation. In later stages of the Polk County Site operation, the RO reject wastewater will be concentrated prior to disposal in the brine pond. The brine pond will be constructed in parcel SA-9, a waste clay settling pond. Parcel SA-9 has thick waste clay deposits which will act as a liner. A synthetic liner will be placed along the interior perimeter of the brine pond out to a point where the clay is at least 10 feet thick. The synthetic liner will prevent seepage of the brine through the embankment of the brine pond and will provide added protection near the perimeter of the brine pond where the clay liner is thinner. Groundwater Impacts/Zone of Discharge The brine pond and solid waste disposal areas will be located in waste clay settling ponds with thick clay liners. They will be constructed to minimize, if not eliminate, seepage of brine and leachate to groundwater. If brine or leachate should seep through the clay liner, dispersion and dilution will reduce chemical concentrations so that neither primary nor secondary groundwater quality standards will be exceeded at the boundary of the zone of discharge. A zone of discharge has been established for the solid waste disposal area in parcel SA-8, the brine pond in parcel SA-9, and the cooling pond in parcels N-11B, N-15 and N-16. The zone of discharge will extend horizontally 100 feet out from the outside toe of the earthen dam along a consolidated boundary surrounding these facilities and vertically downward to the top of the Tampa member of the Hawthorn Group. A groundwater monitoring plan will be implemented to monitor compliance with groundwater standards at the boundary of the zone of discharge. Surficial Hydrology and Water Quality Impacts The Polk County Site is located along the divide between the Peace River Drainage Basin and the Alafia River Drainage Basin. Water bodies near the site include McCullough Creek, Camp Branch, Six Mile Creek, Barber Branch, and South Prong Alafia River. Mining has disrupted or eliminated natural drainage patterns from the Polk County Site to these water bodies. Currently the only drainage from the Polk County Site to these water bodies is through federally permitted National Pollutant Discharge Elimination System (NPDES) outfalls to McCullough Creek and Camp Branch. To assess the impact to the surficial hydrology of the Polk County Site and surrounding water bodies, the baseline condition was assumed to be the surficial hydrology which would be present under current mandatory reclamation plans for the mining parcels onsite and offsite. The baseline for non-mandatory parcels was assumed to be the minimum reclamation standards under the DEP/Bureau of Mine Reclamation (BOMR) (formerly within the Department of Natural Resources) Old Lands Program and the baseline for non-mandatory offsite parcels was considered to be the existing condition. The one water body onsite for which the baseline condition presently exists is Tiger Bay, which has been reclaimed and released. The baseline condition for the Polk County Site ultimately would include elimination of seepage from N-16 to Tiger Bay and removal of the NPDES outfall weir from Tiger Bay to Camp Branch. These conditions will result in a lowering of the water table in Tiger Bay and the drying out of wetlands in that area. Under current reclamation plans, water bodies also will be created in parcels SA-12 and SA-11. Other than the reclaimed Tiger Bay and Tiger Bay East, DEP, Southwest Florida Water Management District (SWFWMD) and Polk County have not claimed jurisdiction over any of the water bodies onsite within areas in which phosphate mining activities have been or will be conducted. The major construction activities which may impact offsite surface water bodies are the dewatering activities associated with the initial phase of construction. During this period, parcels SA-11, SA-13 and N-16 will be dewatered to allow earth-moving activities to take place. Dewatering effluent will be stored onsite, reused in IMC's recirculation system, or discharged in the event of above-average rainfall. After the earthwork is complete, the water will be returned to N-16. Based on this construction scenario, no adverse impact to offsite surface water bodies is expected from the construction activities associated with the Polk County Site. The Polk County Site has been designed to function as a "zero discharge" facility. No surface water will be withdrawn from or discharged to any offsite surface water body as a result of plant operations. Certain non- industrial areas within the Polk County Site will be designed, however, to provide offsite drainage to enhance flows to McCullough Creek and Camp Branch. Flow to McCullough Creek will be enhanced by drainage from parcel SA-10, an offsite portion of the Estech Silver City Plant Site, and the southerly portion of parcel SA-12. Drainage from parcels N-11A, N-13, N-9B, Tiger Bay East and Tiger Bay will enhance flows to Camp Branch. Additionally, FPC has agreed to explore the possibility of restoring drainage to Six Mile Creek if onsite water cropping produces more water than FPC needs for power plant operations and if such drainage can be accomplished without additional permits. The net effect of the drainage enhancement plans will be to equal or improve flows to McCullough Creek and Camp Branch over the baseline condition for the site. There are several types of surface water systems to be developed on the Polk County Site. Surface water runoff from the plant island, other than that from the coal and limestone storage areas, will be routed to the site runoff pond and then used in the cooling pond as makeup water. Surface water runoff from the coal and limestone storage areas, as well as runoff from the active solid waste disposal area, will be routed to a lined recycle basin and will be used as process makeup water for the coal gasification plant. Surface water runoff from mining parcels N-11C, Triangle Lakes, N-11B and N-15 prior to its use as part of the cooling pond, P-3, Phosphoria, P-2 prior to its use as a solid waste disposal area, and SA-8 after it has been closed as a solid waste disposal area, will be directed to the cooling pond as makeup water. All of the surface water management systems will meet the requirements of the SWFWMD Management and Storage of Surface Water rules. Subsurface Hydrology and Impacts from Water Withdrawal The Polk County Site will use a cooling pond for process water and for cooling water for the combined cycle units and the coal gasification facilities. For the initial 940 MW of generating capacity, makeup water for the cooling pond will come from onsite water cropping and reclaimed water from the City of Bartow. FPC has negotiated an agreement with the City of Bartow for 3.5 or more million gallons per day (mgd) of reclaimed water from its wastewater treatment facility. At ultimate site capacity, the Polk County Site will require up to 23.6 mgd from a combination of offsite sources and groundwater for the operation of the power plant. FPC has agreed with the SWFWMD to obtain at least 6.1 mgd from reclaimed water and other offsite non-potable water sources, including the City of Bartow, for use as makeup water for the cooling pond. The additional 17.5 mgd of water may be withdrawn from the Upper Floridan Aquifer if additional sources of reclaimed water are not available. FPC has identified substantial amounts of reclaimed water that may be available. A limited quantity of potable water from the Upper Floridan Aquifer will be needed to supply drinking water and other potable water needs for power plant employees. Well water from the Upper Floridan Aquifer will be treated, filtered and chlorinated in an onsite potable water treatment system prior to consumption. At ultimate site development, potable water consumption is estimated to average 19,000 gallons per day, with a peak consumption of 36,000 gallons per day. As an alternative, FPC may connect with the City of Bartow or the City of Fort Meade potable water system. The subsurface hydrology of the Polk County Site consists of three aquifer systems. The uppermost system is the surficial aquifer which is located in the upper 20 to 30 feet of soil. Due to mining operations, the surficial aquifer has been removed from the site except beneath highway rights-of-way and portions of some dams. Below the surficial aquifer lies the intermediate aquifer which is comprised of an upper confining layer approximately 120 feet thick, a middle water bearing unit about 60 feet thick, and a lower confining unit about 80 to 100 feet thick. This aquifer system provides potable water to some small quantity users in the area. Below the intermediate aquifer is the Floridan Aquifer, which consists of the Upper Floridan Aquifer, a discontinuous intermediate confining unit, and the Lower Floridan Aquifer. The Upper Floridan Aquifer provides a larger source of potable water for the area. The Lower Floridan Aquifer is characterized by poorer quality water and has not been used generally for water supply. The principal impact to groundwater from construction of the Polk County Site will be from the dewatering activities in parcels N-16, SA-11 and SA-13. This impact, if not mitigated, could result in the lowering of groundwater levels in the surficial aquifer in adjacent wetlands. During construction, recharge trenches will be constructed in certain locations near wetlands. Modeling analysis demonstrates that the recharge trenches will adequately mitigate any offsite groundwater impacts that otherwise would be caused by construction dewatering. The principal groundwater impact from the operation of the Polk County Site will be the withdrawal of water from the Upper Floridan Aquifer for process water and cooling pond makeup. Water from the Upper Floridan Aquifer is the lowest quality of groundwater that can be used for the Polk County Site while maintaining the cooling pond as a zero discharge facility. The withdrawal of 17.5 mgd from the Upper Floridan Aquifer at ultimate site development will not adversely impact offsite legal users of groundwater and will comply with the SWFWMD consumptive use criteria for groundwater withdrawal. Ecological Resources The baseline for the ecological resources at the Polk County Site was established as the site condition that would exist following (i) mandatory reclamation under reclamation plans approved by the DEP/BOMR, and (ii) non- mandatory reclamation normally carried out by the mining companies. In the cases of Tiger Bay, which has been reclaimed and released by DEP/BOMR, and Tiger Bay East, which has revegetated naturally without reclamation, the ecological baseline was represented by the current condition of these parcels. This baseline methodology was proposed by FPC in a Plan of Study which was accepted by DEP in a Binding Written Agreement. The predominant land cover that would occur under the baseline condition at the Polk County Site would be agriculture. Approximately 70 percent of the Polk County Site, or approximately 5,678 acres, would be developed as crop land, citrus or pasture. The remaining 30 percent of the site would be reclaimed as non-agricultural uplands, wetlands and open water bodies. Tiger Bay already has been reclaimed and released by DEP/BOMR and Tiger Bay East has revegetated naturally. These two parcels represent one-fourth (524 acres) of the natural habitat under the ecological baseline condition. The quality of the baseline land cover and vegetation was established by surveying several onsite and offsite areas which have been reclaimed and released. Baseline aquatic resources at the Polk County Site consist of Tiger Bay and the aquatic resources which would have been developed under existing reclamation plans. This baseline would include open water bodies and forested wetlands in parcels SA- 11 and SA-12, and forested and herbaceous wetlands in parcel N-16. Both Estech and IMC have exceeded their mine-wide wetlands mitigation obligations even without those wetlands. The quality of the baseline open water bodies on the Polk County Site was evaluated by surveying parcel N- 16, which currently consists of open water habitat. The quality of wetlands was determined by surveying Tiger Bay, which contains wetlands that have been reclaimed and released. The baseline aquatic resources were found to have significant fluctuations of dissolved oxygen, and were characterized by encroachment of cattail, water hyacinth and other nuisance species. All of the aquatic areas sampled as representative of baseline conditions showed significant eutrophication. No DEP or SWFWMD jurisdictional wetlands currently exist onsite, within areas in which phosphate mining activities have been or will be conducted, except in the reclaimed Tiger Bay and Tiger Bay East. Baseline evaluation of threatened and endangered species, and species of special concern (listed species) was conducted by collecting information regarding regional habitat descriptions; plant species lists and ecological reports for the area; lists and ecological reports of birds, mammals, reptiles and amphibians common to the area; species checklists; reports of sightings or abundance estimates; interspecific relationships and food chains of important species; location of rare, threatened or endangered species or critical habitat for these species in the region; and occurrence of potential preexisting stresses. Information from the Florida Natural Areas Inventory and approved mine reclamation plans was reviewed. Visits were made to nearby reclaimed sites by land and low-flying helicopters. No listed plant species were found at the site or offsite study areas. Existing reclamation plans, and consequently the ecological baseline condition, do not require the planting of such species. Listed animal species which were observed at the Polk County Site and are expected under the baseline conditions include the American alligator, woodstork, southeastern kestrel, osprey, little blue heron, snowy egret and tricolored heron. The baseline conditions would provide suitable feeding habitat for these species, but only limited areas of suitable nesting habitat. Both the current condition of the site and baseline condition provide feeding habitat for the American bald eagle, however, the nesting potential for this species will be greater after the implementation of the baseline condition. Impacts to the baseline ecological resources from the construction and operation of the Polk County Site will be more than compensated by habitat creation and enhancement programs proposed by FPC. The primary impacts to the baseline ecological resources will occur when power plant facilities, such as the plant island, cooling pond, brine pond and solid waste disposal area are constructed, eliminating these parcels from the baseline ecological resources. Without development of the Polk County Site, these parcels would represent approximately 2,268 acres of viable lakes and upland and wetland habitats. FPC has proposed a total of 3,713 acres of viable wildlife habitat as part of the ultimate development of the Polk County Site. Accordingly, the available wildlife habitat after construction of the Polk County Site represents a net increase of 1,445 acres over the baseline ecological resource conditions. This increase in habitat, particularly in the buffer area, will be a net benefit for protected species. In providing more wildlife habitat than baseline conditions, FPC has agreed to certain enhancement activities that will specifically offset any impact to baseline ecological resources. These enhancement programs include habitat and wetland creation in parcels N-9B and N-13; habitat creation and offsite drainage enhancement in parcel SA-10; implementation of a wildlife habitat management plan and exotic vegetation control in parcels SA-10, N-9B and N-13; drainage enhancement to McCullough Creek and Camp Branch; and funding the acquisition of a 425 acre offsite area to serve as part of a wildlife corridor. Air Pollution Control Polk County has been designated by the U.S. Environmental Protection Agency (EPA) and DEP as an attainment area for all six criteria air pollutants. Federal and state Prevention of Significant Deterioration (PSD) regulations provide that the project will be subject to "new source review." This review generally requires that the project comply with all applicable state and federal emission limiting standards, including New Source Performance Standards (NSPS), and that Best Available Control Technology (BACT) be applied to control emissions of PSD pollutants emitted in excess of applicable PSD significant emission rates. The project will limit emission rates to levels far below NSPS requirements. For the initial 470 MW phase of the Project, BACT must be applied for the following pollutants: sulfur dioxide (SO2), nitrogen oxides (NOx), particulates (PM and PM10), volatile organic compounds (VOCs), carbon monoxide (CO), beryllium, inorganic arsenic, and benzene. For the ultimate site capacity, BACT is required for each of these pollutants, and sulfuric acid mist (H2SO4), mercury, and lead as well. BACT is defined in DEP Rule 17-212.200(16), Florida Administrative Code, as: An emission limitation, including a visible emission standard, based on the maximum degree of reduction of each pollutant emitted which the Department, on a case-by-case basis, taking into account energy, environmental and economic impacts, and other costs, determines is achievable through application of production processes and available methods, systems and techniques (including fuel cleaning or treatment or innovative fuel combustion techniques) for control of each such pollutant. The primary purpose of a BACT analysis is to minimize the allowable increases in air pollutants and thereby increase the potential for future economic growth without significantly degrading air quality. Such an analysis is intended to insure that the air emissions control systems for the project reflect the latest control technologies used in a particular industry and is to take into consideration existing and future air quality in the vicinity of the project. The BACT analysis for the project therefore evaluated technical, economic, and environmental considerations of available control technologies and examined BACT determinations for other similar facilities across the United States. For the first 470 MW of NGCC units, BACT for SO2 emissions from the CTs is the use of natural gas as the primary fuel and the use of low sulfur oil for a limited number of hours per year. For the first 470 MW of NGCC units, BACT for CO, VOCs, PM, beryllium, arsenic, and benzene emissions from the CTs is efficient design and operation of the CTs, the inherent quality of natural gas (the primary fuel), and a limitation on the annual use of fuel oil. For the first 470 MW of combined cycle units, BACT for NOx emissions from the CTs is the use of advanced dry low NOx combustors capable of achieving emissions of 12 parts per million by volume dry (ppmvd) at 15 percent oxygen when burning natural gas, water/steam injection to achieve 42 ppmvd at 15 percent oxygen when burning fuel oil, and limited annual fuel oil use. For the first 470 MW of NGCC units, the DEP staff initially proposed BACT for NOx emissions from the CTs as 9 ppmvd at 15 percent oxygen when burning natural gas, using dry low NOx combustor technology. However, after careful consideration, it was determined that, because of the lack of proven technology to achieve such emission rate, it would be more appropriate to establish BACT at 73 lb/hour/CT (24-hour average, based on 12 ppmvd at 15 percent oxygen and 59o F) using dry low NOx combustor technology and to require FPC to make every practicable effort to achieve the lowest possible NOx emission rate with those CTs when firing natural gas. FPC also is required to conduct an engineering study to determine the lowest emission rate consistently achievable with a reasonable operating margin taking into account long-term performance expectations and assuming good operating and maintenance practices. Based on the results of that study, DEP may adjust the NOx emission limit downward, but not lower than 55 lb/hour/CT (24-hour average, based on 9 ppmvd at 15 percent oxygen and 59o F.). For the 99 MBtu/hour auxiliary boiler that is part of the initial phase of the project, BACT for NOx emissions is low NOx burners, limited annual fuel oil use, and limited hours of annual operation. BACT for NOx emissions from the 1300 kW diesel generator is combustion timing retardation with limited hours of annual operation. For the 99 MBtu/hour auxiliary boiler and the diesel generator as part of the initial phase of the project, BACT for CO, VOC, SO2, PM, benzene, beryllium, and arsenic emissions consists of good combustion controls, the inherent quality of the fuels burned, the use of low-sulfur fuel oil, and limited hours of operation. For the fuel oil storage tank as part of the initial phase of the project, BACT is submerged filling of the tank. For the coal gasification and other facilities to be built during later phases of the project, a preliminary BACT review was undertaken by FPC to support the demonstration that the Polk County Site has the ultimate capacity and resources available to support the full phased project. Air Quality Impact Analysis Air emissions from the project also must comply with Ambient Air Quality Standards for six criteria pollutants and Prevention of Significant Deterioration increments for three pollutants. Polk County and the contiguous counties are classified as Class II areas for PSD purposes; the nearest Class I area is the Chassahowitzka National Wilderness Area, located approximately 120 km. from the Site. An air quality analysis, undertaken in accordance with monitoring and computer modeling procedures approved in advance by EPA and DEP, demonstrated that the project at ultimate capacity utilizing worst-case assumptions will comply with all state and federal ambient air quality standards as well as PSD Class I and II increments. For nitrogen dioxide, sulfur dioxide and particulate matter, air quality modeling was based on conservative assumptions, including background concentrations based upon the highest long- term and second highest short-term measured values (established through an onsite one-year air quality monitoring program and regional data), existing major sources at their maximum emissions, the estimated maximum emissions from certain other proposed projects, and the impacts of the proposed FPC project at ultimate site capacity. For other pollutants, detailed analyses were not performed because offsite impacts were predicted to be insignificant. Impacts of the project's estimated emissions of certain hazardous air pollutants (antimony, arsenic, barium, beryllium, benzene, boron, cadmium, calcium, chromium, cobalt, copper, formaldehyde, magnesium, manganese, nickel, selenium, vanadium, and zinc) at ultimate capacity were compared to the DEP draft no-threat levels under DEP's draft "Air Toxics Permitting Strategy." All pollutants except arsenic were projected to be below the corresponding draft no- threat level. Because of the conservatism of DEP's draft no-threat levels, it was concluded that arsenic impacts would not pose a significant health risk to the population in the surrounding area. Impacts on vegetation, soils, and wildlife in both the site area and the vicinity of the Chassahowitzka National Wilderness Area, the nearest PSD Class I area, will be minimal. Visibility in the vicinity of the Chassahowitzka National Wilderness Area will not be impaired significantly by the project's emissions. Air quality impacts from commercial, industrial, and residential growth induced by the project are expected to be small and well-distributed throughout the area. Impacts from the initial phase of the Project (470 MW) will comply with all State and federal ambient air quality standards as well as PSD Class I and II increments. The impacts from the initial phase of the Project are also well below the draft no-threat levels. The initial phase of the Project will not significantly impair visibility in the vicinity of the Chassahowitzka National Wilderness Area, and the impact on vegetation, soils, and wildlife in both the site area and the vicinity of the Chassahowitzka National Wilderness Area will be minimal. The air quality impacts due to commercial, industrial, and residential growth from the initial phase of the Project will be small, and are not expected to impact air quality. Land Use Planning/Socioeconomic Impacts of Construction and Operation The proposed site is an appropriate location for the Polk County Site project. The Polk County Site has adequate access to highway and rail networks, including CR 555, a major collector road, and the CSX railroad. The Polk County Site is located away from major residential areas in a location already heavily disturbed by mining activity. The site is located in reasonable proximity to major metropolitan areas that can supply an adequate work force for construction. Development of the Polk County Site in a mined-out phosphate area is a beneficial use of land and will provide an economic benefit for Polk County. The Polk County Site also is close to existing facilities, such as existing transmission line corridors and reclaimed water facilities, which will benefit the operation of the site while minimizing the impact of the project. The linear facilities associated with the Polk County Site are sited in appropriate locations. The 230-kV transmission line upgrade, reclaimed water pipeline and backup natural gas pipeline corridors: (i) are located adjacent to other linear facilities, such as existing roads and transmission lines, (ii) avoid major residential areas, and (iii) minimally disrupt existing land uses. The Polk County Site is compatible with the State Comprehensive Plan, the CFRPC Regional Policy Plan, and will meet the requirements of the Polk County Conditional Use Permit. The portion of the backup natural gas pipeline located in Hillsborough County is consistent with the Hillsborough County Comprehensive Plan and the policies of the TBRPC Regional Policy Plan. Construction of the Polk County Site will occur over an approximately 25-year period beginning in 1994. If the Polk County Site is developed only for NGCC capacity, construction employment will average 153 jobs per year with a peak employment of 350. The average annual payroll for construction of the Polk County Site on all NGCC is expected to be $7.1 million per year. If 1,000 MW of NGCC and 2,000 MW of CGCC units are built at the Polk County Site, peak construction employment will be 1,000 with an average annual construction employment of 315 over the approximate 25-year period. Average annual payroll under this scenario would be $14.6 million per year. Indirect jobs created as a result of buildout of the Polk County Site will average 231 jobs for all NGCC and 477 jobs if 2,000 MW of CGCC is added to the Polk County Site. After completion of the construction of the Polk County Site at ultimate capacity, 110 permanent direct jobs will be created if the site uses all NGCC and 410 jobs will be created if coal gasification is added to the Polk County Site. The operation of the Polk County Site will have a multiplier effect on the Polk County economy. The all NGCC scenario will create 272 indirect jobs and the Case A' scenario with CGCC will create 1,013 indirect jobs. After buildout, property taxes generated by the Polk County Site are estimated to be $24.3 million per year for the all NGCC scenario and $37.4 million per year if CGCC capacity is constructed at the site. Noise Impacts The ambient noise, or baseline noise condition at the Polk County Site was measured in five locations. These measurements show that the baseline noise condition for the site ranges between 30 dBA and 65 dBA at the nearest residential location. The higher noise levels are caused by truck traffic associated with the phosphate mining industry. Noise impacts from construction will be loudest during initial site preparation and steel erection stages. Earth moving equipment will produce noise levels of 45 to 50 dBA at the nearest residence in Homeland. During final phases of construction, steam blowout activity to clean steam lines will produce short duration noise levels of 69 dBA at the nearest residence. This activity will take place only during daylight hours. Noise levels from the operation of the Polk County Site were calculated using a computer program specifically designed for assessing noise impacts associated with power plant operation. The highest predicted continuous noise level will be 41 dBA at several houses 2.9 miles south of the site and 47 dBA at the nearest church. Noise impacts from fuel delivery trucks and coal trains will not significantly increase the noise levels over existing conditions. The continuous noise level from the operation of the Polk County Site at the nearest residence or church will be below the 55 dBA level recommended by the U.S. Environmental Protection Agency. Traffic Traffic analyses were made for impacts to highway traffic which will result from the construction and operation of the Polk County Site. These analyses included impacts at rail crossings caused by the delivery of coal to the Polk County Site under the Case A' scenario. A highway traffic analysis was made to determine if the existing roadway network in the vicinity of the Polk County Site would operate at acceptable levels of service based upon increased volumes of traffic associated with the construction and operation employment at the Polk County Site. Methodologies for evaluating traffic impact complied with Polk County, FDOT and CFRPC criteria. County roads were evaluated using Polk County criteria and state roads were evaluated using both Polk County and FDOT criteria. Traffic volumes were evaluated for peak construction traffic in 2010 and full plant operations, estimated in 2018. The traffic evaluation included analysis of existing traffic conditions, increased traffic volume associated with growth in the area not associated with the Polk County Site, and increased traffic associated with construction and operation employment at the Polk County Site. During peak construction employment under the Case A' scenario, 1,000 employees are expected at the Polk County Site. Under this scenario, the expected trip generation of the Polk County Site is expected to be 1,792 trips per day, with a morning peak of 717 trips and an afternoon peak of 717 trips. Based on this analysis, all roadways are expected to operate at acceptable levels of service with currently planned improvements to the roadways. Intersection levels of service were found acceptable for 7 out of 11 intersections. FPC has recommended improvements to four intersections at U.S. 98 and SR 60A, SR 60 and CR 555, SR 37 and CR 640, and CR 555 and CR 640 at specified traffic levels. Peak operation employment under the Case A' scenario is expected to be 410 employees in 2018. Based upon this employment figure, the expected trip generation of the Polk County Site is 964 trips per day with a morning peak of 195 trips and an afternoon peak of 154 trips. At peak operation employment, all roadways evaluated were found to operate at acceptable levels of service. All intersections, except the intersection at SR 60 and CR 555, were found to operate at acceptable levels. FPC has recommended a protected/permissive westbound left turn lane at this intersection. With FPC's recommended improvements, which have been incorporated as conditions of certification, and those improvements currently planned by FDOT, the existing roadway network will meet Polk County and FDOT approved levels of service at peak employment during the construction and operation of the Polk County Site to its ultimate capacity. In addition to the highway traffic impact analysis, FPC evaluated the impact on rail/highway crossings from the transportation of coal by rail under the Case A' scenario. It was assumed that all coal for the Polk County Site will be delivered by rail over existing CSX transportation lines. It is expected that at full operation two 90-car trains per day will be required for the delivery of coal, resulting in four train trips per day. It was also assumed that trains will travel at speeds averaging 35 to 45 miles per hour. Evaluation of the impacts at rail crossings found an increase of .5 second per vehicle per day at urban rail crossings and .3 second per vehicle per day at rural rail crossings. Based on the 1985 Highway Capacity Manual, the total delay at rail crossing intersections caused by the increased train traffic to and from the Polk County Site will not cause a significant delay and the rail crossing intersections will maintain level of service A. Archaeological and Historic Sites The Florida Department of State, Division of Historical Resources, has stated that because of the location of the Polk County Site, it is unlikely that any significant archaeological or historical sites will be affected. Mandatory Reclamation of Mining Parcels The Polk County Site is comprised of phosphate mining parcels, portions of which are subject to mandatory reclamation under the jurisdiction of DEP/BOMR. The mandatory mining parcels are currently owned by Estech, IMC, and USAC. FPC has entered into stipulations with each mining company agreeing to reclamation of the mandatory mining parcels in accordance with the conditions of certification proposed by DEP/BOMR. In those conditions, DEP has proposed to incorporate the reclamation conceptual plan modifications included in Appendix 10.9 of the SCA into the certification proceeding for the Polk County Site and has redesignated those conceptual plan modifications as EST-SC-CPH and IMC-NP- FPC. The portions of the site which will be developed by FPC will be released from mandatory reclamation requirements when FPC purchases the Polk County Site. Variances FPC has requested variances from certain reclamation standards set forth in Rule 16C-16.0051, Florida Administrative Code, which will be necessary until the affected mining parcels on the Polk County Site are released from reclamation. FPC has requested a variance from Rule 16C-16.0051(5)(a), which requires artificial water bodies to have an annual zone of fluctuation, and Rule 16C-16.0051(5)(b), which requires submerged vegetation and fish bedding in artificially-created water bodies. The criteria in these rules are inappropriate for a cooling pond, because it is an industrial wastewater treatment facility which cannot be efficiently or safely operated with fluctuating water levels and aquatic vegetation zones. With regard to the construction of dams for the cooling pond, brine pond and solid waste disposal areas, FPC will need a variance from Rule 16C-16.0051(2)(a), which requires a 4:1 slope for dam embankments and Rule 16C-16.0051(9)(b) and (c), which requires vegetation of upland areas, which may include dam embankments. Dams for the cooling pond, brine pond and solid waste disposal areas will have steeper slopes and the interiors of the dams will be concrete blanket revetments, synthetic liners or solid waste consistent with the industrial purposes for which these facilities have been constructed. Access to these areas will be controlled to prevent any potential safety hazard. Finally, FPC will need a variance from Rule 16C-16.0051(11)(b)(4), which requires reclamation to be completed within two years after mining operations are completed. Construction of the Polk County Site requires extensive dewatering and earthwork which cannot be completed within this timeframe. Applications for variances from mining reclamation criteria were included in Appendix 10.9 of the SCA and have been incorporated into the certification proceeding for the Polk County Site. DEP has redesignated these variance applications as EST-SC-FPC-V and IMC-NP-FPC-V. These variances are appropriate and should be granted. Agency Positions and Stipulations The Department of Environmental Protection, Southwest Florida Water Management District, and Polk County have recommended certification for the construction and operation of the initial 470 MW of natural gas combined cycle generating capacity and have recommended the determination that the Polk County Site has the ultimate capacity for 3,000 MW of natural gas and coal gas combined cycle generating capacity, subject to appropriate conditions of certification. No other state, regional or local agency that is a party to the certification proceeding has recommended denial of the certification for the construction of the initial 470 MW of generating capacity or determination of ultimate site capacity. Several agencies which expressed initial concern regarding certification of the Polk County Site have resolved those concerns with FPC and have entered into stipulations with FPC as discussed below. The Florida Department of Transportation, the Game and Fresh Water Fish Commission, and the Department of Community Affairs have entered into stipulations with FPC recommending certification of the Polk County Site and a determination that the Polk County Site has the ultimate site capacity to support 3,000 MW of NGCC and CGCC generating capacity subject to proposed conditions of certification. Hillsborough County, the Environmental Protection Commission of Hillsborough County, and the Tampa Port Authority have entered into a stipulation and agreement with FPC recommending certification of the backup natural gas pipeline corridor subject to proposed conditions of certification. FPC and the agency parties have agreed on a set of conditions of certification for the Polk County Site. Those conditions are attached as Appendix A to this Recommended Order.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that: Florida Power Corporation be granted certification pursuant to Chapter 403, Part II, Florida Statutes, for the location, construction and operation of 470 MW of combined cycle generating capacity as proposed in the Site Certification Application and in accordance with the attached Conditions of Certification. Florida Power Corporation's Polk County Site be certified for an ultimate site capacity of 3,000 MW fueled by coal gas, natural gas, and fuel oil subject to supplemental application review pursuant to 403.517, Florida Statutes, and Rule 17-17.231, Florida Administrative Code, and the attached Conditions of Certification. A zone of discharge be granted in accordance with the attached Conditions of Certification. The conceptual plan modifications (EST-SC-CPH and IMC-NP-FPC) for the mandatory phosphate mining reclamation plans be granted subject to the attached Conditions of Certification. The variances from reclamation standards (EST-SC-FPC-V and IMC-NP-FPC- V) as described herein be granted subject to the attached Conditions of Certification. DONE AND ENTERED this 3rd day of December, 1993, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5308EPP RECOMMENDED CONDITIONS OF CERTIFICATION * * NOTE: 114 page Recommended Conditions of Certification plus attachments is available for review in the Division's Clerk's Office. COPIES FURNISHED: Gary P. Sams Richard W. Moore Attorneys at Law Hopping Boyd Green & Sams Post Office Box 6526 Tallahassee, Florida 32314-6526 Representing Applicant Pamela I. Smith Corporate Counsel Florida Power Corporation Post Office Box 14042 St. Petersburg, Florida 33733-4042 Richard Donelan Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road, Room 654 Tallahassee, Florida 32399-2400 Representing DER Hamilton S. Oven, Jr. Office of Siting Coordination Division of Air Resources Mgmt. Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Lucky T. Osho Karen Brodeen Assistant General Counsels Department of Community Affairs 2740 Centerview Drive Tallahassee, Florida 32399-2100 Representing DCA Michael Palecki, Chief Bureau of Electric & Gas Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32399-0850 Representing PSC M. B. Adelson, Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Representing DNR Carolyn S. Holifield, Chief Chief, Administrative Law Section Department of Transportation 605 Suwanee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Representing DOT Doug Leonard, Executive Director Ralph Artigliere, Attorney at Law Central Florida Regional Planning Council 409 East Davidson Street Bartow, Florida 33830 Representing CFRPC Julia Greene, Executive Director Tampa Bay Regional Planning Council 9455 Koger Boulevard St. Petersburg, Florida 33702 Representing Tampa Bay Regional Planning Council John J. Dingfelder Assistant County Attorney Hillsborough County Post Office Box 1110 Tampa, Florida 33601-1110 Representing Hillsborough County Mark Carpanini Attorney at Law Office of County Attorney Post Office Box 60 Bartow, Florida 33830-0060 Representing Polk County Martin D. Hernandez Richard Tschantz Assistant General Counsels Southwest Florida Water Management District 2370 Broad Street Brooksville, Florida 34609-6899 Representing SWFWMD James Antista, General Counsel Florida Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Representing GFWFC Sara M. Fotopulos Chief Counsel Environmental Protection Commission of Hillsborough County 1900 Ninth Avenue Tampa, Florida 33605 Representing EPCHC Joseph L. Valenti, Director Tampa Port Authority Post Office Box 2192 Tampa, Florida 33601 Representing Tampa Port Authority Board of Trustees of the Internal Improvement Trust Fund Don E. Duden, Acting Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Representing the Trustees Honorable Lawton Chiles Governor State of Florida The Capitol Tallahassee, Florida 32399 Honorable Robert A. Butterworth Attorney General State of Florida The Capitol Tallahassee, Florida 32399-1050 Honorable Bob Crawford Commissioner of Agriculture State of Florida The Capitol Tallahassee, Florida 32399-0810 Honorable Betty Castor Commissioner of Education State of Florida The Capitol Tallahassee, Florida 32399 Honorable Jim Smith Secretary of State State of Florida The Capitol, PL-02 Tallahassee, Florida 32399-0250 Honorable Tom Gallagher Treasurer and Insurance Commissioner State of Florida The Capitol Tallahassee, Florida 32399-0300 Honorable Gerald A. Lewis Comptroller State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350
The Issue The issue is whether a permit should be issued to Respondent, Lake Environmental Resources, LLC (LER), authorizing the construction and operation of a construction and demolition debris disposal facility in unincorporated Lake County, Florida.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: The Parties LER, whose mailing address is Post Office Box 2872, Windermere, Florida, is a limited liability company authorized to do business in the State. LER's principals are Linwood Brannon and Richard Bazinet, both of whom have had at least ten years' experience in the operation and construction of demolition debris disposal facilities. The Department is an agency of the State that is authorized under Chapter 403, Florida Statutes (2005)2, to evaluate applications and issue permits for construction and demolition debris disposal and recycling facilities. The permit in issue here was processed, reviewed, and approved for issuance by the Department's Central District Office in Orlando, Florida. Petitioners Miriam Resto and Jim Taylor did not appear at the final hearing or otherwise present any evidence as to where they resided or how their substantial interests would be determined by the issuance of a permit. Petitioner Timothy L. McCormack resides at 11321 Valley View Road, Howey-in-the-Hills, Florida. Mr. McCormack's home is "a little over a mile" north-northwest of the proposed facility. His concern with the proposed facility is generally over contamination from the landfill, and not contamination occurring at the property. Petitioner John A. Mapp, Jr., resides at 21307 County Road 561, Clermont, Florida, which is approximately one-half mile from the proposed facility. Mr. Mapp's home is upgradient from the facility and consequently he has no "individual concerns" as to how the proposed facility would affect his home. He is concerned, however, with potential groundwater contamination from the facility. Petitioners David and Lisa Cimini did not testify at the final hearing or otherwise present any evidence as to where they resided or how their substantial interests would be determined by this proceeding. According to the Partial Pre- Hearing Stipulation filed by Respondents, however, they reside at 21423 County Road 455, Clermont, Florida, which is near the proposed facility. Background On July 26, 2005, LER filed an application with the Department for a permit authorizing it to construct and operate a facility for construction and demolition debris disposal and recycling in an unincorporated area of the County. A lengthy definition of construction and demolition debris is found in Florida Administrative Code Rule 62-701.200(27), which reads as follows: discarded materials generally considered to be not water soluble and non-hazardous in nature, including but not limited to steel, glass, brick, concrete, asphalt material, pipe gypsum wallboard, and lumber, from the construction or destruction of a structure as part of a construction or demolition project or from the renovation of a structure, including such debris from construction of structures at a site remote from the construction or demolition project site. The term includes rocks, soils, tree remains, trees, and other vegetative matter which normally results from land clearing or land development operations for a construction project; clean cardboard, paper, plastic, wood, and metal scraps from a construction project; effective January 1, 1997, except as provided in Section 403.707(12)(j), F.S., unpainted, non-treated wood scraps from the facilities manufacturing materials used for construction of structures or their components and unpainted, non-treated wood pallets provided the wood scraps and pallets are separated from other solid waste where generated and the generator of such wood scraps or pallets implements reasonable practices of the generating industry to minimize the commingling of wood scraps or pallets with other solid waste; and de minimus amounts of other non-hazardous wastes that are generated at construction and demolition projects, provided such amounts are consistent with best management practices of the construction and demolition industries. Mixing of construction and demolition debris with other types of solid waste will cause it to be classified as other than construction and demolition debris. The facility will be located on a 44.33-acre site one- half mile west of State Road 561, off County Road 455, in an unincorporated part of Lake County. Based on this description, it appears that the facility will be located east of Howey-in- the Hills, west of Tavares, and approximately half-way between Astatula and where State Road 561 crosses the Florida Turnpike to the southwest. The site presently has an active sand mine (borrow pit) that covers an area of approximately twenty-two acres. The facility intends to recycle metal, concrete, asphalt, wood chips, and PVC (polyvinyl chloride) and will serve areas in Lake County and nearby communities. In response to LER's initial application, the Central District Office submitted a Request for Additional Information dated August 22, 2005, asking for additional well and site information, operations plan details, and financial assurance clarification. On October 20, 200, LER submitted its Response to Request for Additional Information. While the application was being processed, Mr. Cimini advised the Department that two additional wells surrounded the property, including one that had recently been installed on property owned by Mr. Gary Sprauer that lies within five hundred feet of the limits of waste disposal of the facility. On November 18, 2005, the Department submitted an additional Request for Additional Information, in which it brought up the fact that Mr. Cimini had advised the Department of the existence of these wells. On November 28, 2005, LER submitted its Response to Request for Additional Information, in which it stated that only one well, which belonged to a Mr. Sprauer, had been drilled within five hundred feet of the proposed facility; that there was no electricity to the well; that the nearest residence was approximately seven hundred feet away; and that the well was not approved or being used as a potable water well. Therefore, LER asserted that the Department should not treat the Sprauer well as a potable water well subject to the five-hundred-foot setback from potable water wells for landfills established in Florida Administrative Code Rule 62-701.300(2)(b). LER's submittal provided additional information on the geology and operational aspects of its proposed facility. On December 6, 2005, LER submitted additional information in response to items discussed at a meeting held between the Department and LER on December 2, 2005. The submittal contained further information about potential drinking water wells around the proposed facility, and LER reasserted that the Sprauer well should not be treated by the Department as a potable drinking water well. Based upon its own investigation, however, the Department concluded that the Sprauer well "was a bona fide drinking water well for domestic supply." On January 6, 2006, Mr. Bradner, a Department solid and hazardous waste program manager who was assisting in the processing and review of the application, wrote a memorandum to the file confirming that the Department considered the application complete as of December 6, 2005. On February 10, 2006, LER provided additional hydrologic and operational information in order to try to convince the Department not to apply the five-hundred-foot setback to the Sprauer well. This information showed that the Sprauer well would be upgradient from the proposed facility. The Department allows waste to be placed within five hundred feet of an existing potable water well based upon site-specific conditions as demonstrated by an applicant. See Fla. Admin. Code R. 62-701.300(2)(b). On March 27, 2006, in response to the Department's comments on its submittal of this additional information, LER submitted further hydrologic and modeling information to support its contention that groundwater flowed away from the well belonging to Mr. Sprauer. On April 27, 2006, LER provided the Department with further refinement of its groundwater model to demonstrate that there would be no impact to the Sprauer well. On May 4, 2006, the Central District Office issued notice of its intent to approve the application and issue a permit to LER. Of significance here is the fact that the Department did not require LER to install a liner and leachate collection system. This was consistent with the terms of Florida Administrative Code Rule 62-701.730(4)(a), which does not require a liner unless the Department demonstrates that the facility is "reasonably expected to result in violations of ground water standards and criteria." On May 17, 2006, Petitioners filed their Petition challenging the issuance of the permit. As grounds, Petitioners alleged that there is a substantial risk that the surrounding groundwater will be contaminated by leachates from the facility, and that the Department should accordingly require LER to (a) install a liner and associated leachate recovery system in their facility and (b) post a surety bond necessary to maintain the system in good working order and to fund a toxic cleanup should it become necessary. The Proposed Project Among other things, the application included an engineering report, an operations plan, a geotechnical evaluation of the stability of the site, a hydrological investigation, a stormwater management plan, a reclamation and closure plan, and financial assurance documentation. These elements are required by Florida Administrative Code Rule 62- 701.730, which governs this type of application. The proposed facility is to be located on a 44.33-acre parcel in a rural area that has been the site of a sand and clay borrow pit. The pit has been mined for the last thirty years, has been permitted by Lake County as a mine since 1986, and before being used as a mine was the site of an orange grove. As explained by Mr. Golden, the proposed facility's project manager, the site is "high and dry" and "a good site for a landfill." The water table is at least one hundred feet below the ground surface. There is a confining layer of clays and sandy clays approximately one hundred fifty feet below the ground surface at the site of the proposed facility, and the layer has very low hydrologic conductivity, that is, 1,000 to 10,000 times less permeable than the surface sands. The Floridan Aquifer is approximately two hundred feet below ground surface. The horizontal velocity of the groundwater at the site is approximately two feet per year, and the vertical velocity about 1.3 inches per year. As a result, the groundwater monitoring system at the proposed facility would detect any contamination that might be emitted. In addition, approximately twenty feet of dry soils underlying the landfill would absorb whatever comes out of the landfill to begin with, just like a septic tank. The confining layer would be approximately one hundred to one hundred twenty feet below the landfill base and would be anywhere from twenty to forty feet deep. As a result, it is highly unlikely that any potential contaminants that hypothetically might be emitted from the facility would ever reach the Floridan Aquifer. The Proposed Permit On May 4, 2006, the Central District Office issued its intent to issue the permit. Attached to that intent to issue was a Draft Permit. The Draft Permit restricts disposal of solid waste exclusively to construction and demolition debris (as defined in the rule cited above) and requires LER to comply with an Operations Plan developed by LER. Among other things, the Operations Plan provides for operators trained in spotting and turning away unacceptable waste and other screening procedures to ensure nondisposal of unacceptable waste. The Operations Plan exceeds minimum Department rule requirements. The Operations Plan prohibits disposal of CCA (chromated copper arsenate) pressure treated wood and has a special screening procedure to ensure that these wood products do not come into the facility. The Draft Permit requires LER to install a system of groundwater monitoring wells that surround the property at both shallow and deep depths to detect any potential contaminants coming off of the site. Thus, LER will be required to monitor the surficial aquifer, the Floridan Aquifer, and adjacent wells to ensure protection of area groundwater. The wells will act as a form of early warning indicator so that corrective action can be undertaken in the event the wells show a potential threat to drinking water beyond the property boundary of the proposed facility. The Draft Permit requires two wells to be installed immediately to the north of the Sprauer well, even though it is upgradient from the site. To be conservative and prudent, the Department is requiring that the number of wells that LER must install be substantially greater than the minimum required under Department rules. Based upon the hydrologic evaluation and the proposed permit conditions, Mr. Golden concluded that LER has provided reasonable assurance that the proposed facility will not discharge pollutants in contravention of Department standards or rules. Mr. Bradner agreed with this conclusion and likewise concluded that LER had provided reasonable assurance that the proposed facility will comply with all of the required statutes and rules. The weight of the evidence supports these conclusions. The weight of the evidence also supports Mr. Golden's conclusion that based upon the hydrologic evaluation and the proposed permit conditions, the proposed facility will not be a source of contamination for wells within or greater than five hundred feet of the proposed facility. In the same vein, Mr. Bradner determined that the Sprauer well was the only existing potable drinking water well within five hundred feet. Both experts concluded that the Sprauer well would not be adversely impacted based upon the Department's review of the groundwater modeling data provided to it by LER. Finally, the weight of the evidence supports Mr. Golden's conclusion that, based upon the hydrologic evaluation and the proposed permit conditions, the Department should not require LER to install a landfill liner at the proposed facility. Mr. Bradner agreed with that conclusion. Petitioners' Objections In their Petition, Petitioners have raised the following objections to the issuance of a permit: That because the proposed facility would have no liner, the local environment and drinking water supplies would not be adequately protected from contamination; That the application significantly underestimates the amount of recharge to local aquifers; That the application ignores or underestimates the ecological fragility of the area; and That the location of the Sprauer well should require a reconfiguration of the footprint of the proposed facility. As relief, the Petition asks that the Department require a liner and associated leachate recovery system and adequate financial assurance to ensure proper operation and cleanup if necessary. During opening argument, Petitioners raised one more issue not previously raised in their Petition — - the potential cumulative impacts of the proposed facility in conjunction with two other landfills in the area. This allegation was not timely raised, however, and has been disregarded. The positions taken by Petitioners (other than cumulative impacts) appear to be interrelated, that is, the Department should require a liner because the area is ecologically fragile and recharge is greater than calculated by LER. In support of their position, Petitioners first presented the testimony of Mr. McCormack, who is engaged in the commercial nursery and landscaping business. Mr. McCormack identified the presence of CCA treated wood as his main concern from a contamination standpoint. His concern is that a possible spread of leachate will result from mingling the wood with rainwater or groundwater and that the surrounding groundwater (which ultimately flows into Double Run Springs, the Harris Chain of Lakes, and the Floridan Aquifer) would be adversely impacted. Mr. McCormack estimated that the edge of the Double Run Springs system was approximately 2,500 feet, or around one- half mile, from the site. He expressed the opinion that it was physically impossible to remove such wood prior to its being landfilled. Mr. McCormack conceded, however, that he was not an expert on landfill management or hydrology and had no personal experience with the operation of a landfill. There is specific language in LER's Operations Plan prohibiting the disposal of CCA treated wood and requiring best management practices to enforce the prohibition against the disposal of CCA treated wood. This requirement is mandatory, and not voluntary, and provides reasonable assurance that CCA treated wood would not be a potential source of contamination. The testimony of expert witnesses Bradner and Golden, who expressed this view, is accepted as being more credible on this issue. Petitioners also presented the testimony of Mr. Mapp, who critiqued the hydrological investigation performed by LER by asserting that the recharge to the Floridan Aquifer is four or five times the amount stated in the application. He also opined that LER's evapotranspiration rates were understated.3 Mr. Mapp is a systems analyst for Lockheed Martin Missiles and has a master's degree in business and an undergraduate degree in physics. While highly educated, Mr. Mapp has no prior experience in any kind of hydrologic, geologic, chemical, or similar types of analyses, or any analyses of the rate of transport of chemicals in the environment. The knowledge and opinions rendered in this case by Mr. Mapp were obtained through personal research after the permit application was filed. Mr. Mapp opined that LER's recharge calculations constitute a "significant discrepancy." He acknowledged, however, that his estimate of the true speed of downward flow of water at the site of the proposed facility was "just off the cuff" and did not factor in the effects of applying cover to, and the filling and capping of, the landfill. He did not know how fast particular contaminants may migrate through the groundwater or what volume of waste might be necessary to cause a violation of groundwater quality standards. He also could not give a specific calculation of where a contaminant might be located after a set period of years. Unlike the other experts in this case, the witness had not calculated Floridan Aquifer recharge rates or otherwise used Darcy's Law.4 Even if the permit application underestimated the recharge rate, the thickness of the confining layer below the base of the proposed facility, which was conservatively estimated, would cause groundwater to flow horizontally, not vertically, once the confining layer is reached. As explained by Mr. Golden, LER did not rely exclusively on the recharge calculations that Mr. Mapp relied upon in determining recharge rates. Separate information regarding the permeability of the confining layer provides additional support for the recharge calculations. Mr. Mapp also opined that LER's evapotranspiration rate calculations were underestimated, based upon his review of a study of a deforested site elsewhere in the Lake Wales Ridge. He assumed the evapotranspiration rate in that study (for a site located fifteen miles away) would be applicable to the site of the proposed facility, and he then assumed that the evapotranspiration rate identified in the permit application for the proposed facility would be applicable only to the properties adjacent to the proposed facility. There is, however, no scientific basis for drawing an analogy between the borrow pit that is the location of the proposed facility and the deforested site with different geological characteristics about which Mr. Mapp read in the study he relied upon for his conclusions. Furthermore, LER undertook site-specific analyses of the permeability of the soils underlying the site of the proposed facility, whereas Mr. Mapp's calculations were based upon assumptions drawn from a study of a site fifteen miles away. The testimony of Mr. Golden is found to be credible and persuasive on this issue. Finally, there was no evidence concerning Petitioners' contention that LER should post a surety bond necessary to maintain the system in good working order and to fund a toxic cleanup should it become necessary. Therefore, no modification to the permit in this respect is required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting the application of Lake Environmental Resources, LLC, for a permit authorizing the construction and operation of a construction and demolition debris disposal and recycling facility in unincorporated lake County. DONE AND ENTERED this 8th day of November, 2006, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 2006.
The Issue The issue in this case is whether Petitioner should be issued an air construction permit authorizing its Crystal River steam generating plant Units 1 and 2 to co-fire a five to seven percent blend of petroleum coke with coal.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioner, Florida Power Corporation (FPC), is an investor-owned public utility engaged in the sale of electricity to approximately 1.2 million customers. Among others, it operates the Crystal River Power Plant consisting of five electric-generating units in Citrus County, Florida. Units 1, 2, 4, and 5 are coal-fired, while Unit 3 is a nuclear unit. Respondent, Department of Environmental Regulation (DEP), is a state agency charged with the statutory responsibility of regulating the construction and operation of business enterprises in a manner to prevent air pollution in excess of specified limits. Among other things, DEP issues air construction permits for a limited period of time to undertake and evaluate initial operations of a business enterprise; long- term approval subsequently is available under an air operation permit. As a part of this process, and pursuant to federal law, DEP engages in a Prevention of Significant Deterioration (PSD) review to determine if non-exempt alterations to major facilities result in net emission increases greater than specified amounts. Under certain conditions, however, the use of alternative fuels or raw materials are exempted from PSD review. Intervenor, Legal Environmental Assistance Foundation, Inc. (LEAF), is a non-profit Alabama corporation licensed to do business in the State of Florida. It is a public interest advocacy organization whose corporate purposes include securing environmental and health benefits from clean air and water. Intervenor, Sierra Club, Inc. (Sierra Club), is a public interest advocacy organization incorporated in California and doing business in Florida. Its corporate purposes include securing the environmental and health benefits of clean air and water. On December 26, 1995, FPC filed an application with DEP for an air construction permit authorizing it to burn a blend of petroleum coke and coal in its existing coal-fired Units 1 and 2 at the Crystal River Power Plant in Citrus County, Florida. In the application, FPC did not address PSD review since it believed it qualified for an exemption from PSD permitting under Rule 62- 212.400(2)(c)4., Florida Administrative Code. That rule exempts from PSD review the [u]se of an alternative fuel or raw material which the facility was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975. After reviewing the application, DEP issued an Intent to Deny on June 25, 1996. In that document, DEP stated that [a]ccording to information in Department files, both Units 1 and 2 operated on liquid fuel prior to January 6, 1975. Very substantial modifications of the boilers and pollution control equipment were implemented thereafter by [FPC] to convert the units to coal-firing mode. Therefore the project does not qualify for the exemption from PSD review claimed by the company. Contending that it was entitled to an exemption from PSD review and therefore a permit, FPC filed a Petition for Administrative Hearing on October 4, 1996. In its Petition, FPC generally alleged that petroleum coke is a product with characteristics very similar to coal; Units 1 and 2 were capable of accommodating coal and petroleum coke as of January 6, 1975; and contrary to the statements in the Intent to Deny, any boiler modifications and pollution control improvements to those units were minor and not substantial. The Permitting Program The PSD program is based on similar PSD requirements found in the federal Clean Air Act of 1970, as amended (the Act). The permitting program is a federally required element of DEP's State Implementation Plan (SIP) under Section 110 of the Act. DEP has fulfilled the requirement of administering the federal PSD program by obtaining approval from the Environmental Protection Agency (EPA) of state PSD regulations that meet the requirements of federal law. The requirements of the SIP are found in Chapters 62-204, 62-210, 62-212, 62-296, and 62-297, Florida Administrative Code. Chapter 62-212 contains the preconstruction review requirements for proposed new facilities and modifications to existing facilities. Rule 62-212.400, Florida Administrative Code, establishes the general preconstruction review requirements and specific requirements for emission units subject to PSD review. The provisions of the rule generally apply to the construction or modification of a major stationary source located in an area in which the state ambient air quality standards are being met. Paragraph (2)(c) of the rule identifies certain exemptions from those requirements. More specifically, subparagraph (2)(c)4. provides that a modification that occurs for the following reason shall not be subject to the requirements of the rule: 4. Use of an alternative fuel or raw material which the facility was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975. The rule essentially tracks verbatim the EPA regulation found at 40 CFR 52.21(b)(2)(iii)(e)1. Therefore, in order to qualify for an exemption from PSD review, FPC must use "an alternative fuel . . . which [Units and 2 were] capable of accommodating before January 6, 1975." In addition, FPC must show that "such change would [not] be prohibited under any federally enforceable permit condition which was established after January 6, 1975." Contrary to assertions by Respondent and Intervenors, in making this showing, there is no implied or explicit requirement in the rule that FPC demonstrate that it had a subjective intent to utilize petroleum coke prior to January 6, 1975. The Application and DEP's Response In its application, FPC proposes to co-fire a five percent (plus or minus two percent) blend of petroleum coke with coal, by weight. It does not propose to make any physical changes to Units 1 and 2 to utilize petroleum coke. Also, it does not request an increase in any permitted air emission rates for the units because it can meet its current limits while burning the proposed blend rate of petroleum coke with coal. The application included extensive fuel analysis and air emissions data obtained from a DEP-authorized petroleum coke trial burn conducted from March 8 until April 4, 1995. Although it is not proposing to make physical changes to the plant, FPC applied for the air construction permit in deference to DEP's interpretation that such a permit is required when a permittee utilizes an alternative fuel. After completing his initial review, the DEP supervisor of the New Source Review program acknowledged in a memorandum to his supervisor that FPC was "entitled to a permit" but suggested that FPC be asked to "change their minds." Before the permit was issued, however, DEP changed its mind and issued an Intent to Deny on the ground that prior to January 6, 1975, Units 1 and 2 were not capable of accommodating coal or a blend of petroleum coke with coal. The Units Unit 1 has a generating capacity of 400 MW and commenced operation as a coal-fired plant in October 1966. It fired coal until March 1970, fuel oil until October 1978, and then again fired coal from June 1979 to the present. Unit 2 has a generating capacity of 500 MW and commenced operations as a coal-fired plant in November 1969. It fired coal until September 1971, fired fuel oil from December 1971 until October 1976, and then again fired coal from December 1976 to the present. Original equipment installed during the initial construction of Units 1 and 2 included the following: the barge unloader, which removes coal from barges that deliver coal from New Orleans; the stacker/reclaimer, which stacks the coal into piles and then reclaims the coal by directing it from the coal piles to conveyors that deliver it to the units; the crusher house, which has two crushers that crush the coal on the way to units down to nuggets no larger than three-quarters of an inch in diameter; the silos, which store the crushed coal; the feeders, located below the silos, which regulate the flow of coal from the silos to the pulverizers; the pulverizers, which grind the coal in preparation for combustion and then direct the pulverized coal to the burners, which are located on the corners of each unit's boiler; and the boilers, where the fuel is combusted, imparting heat to water contained in the waterwalls and thereby producing steam for electrical generation. The foregoing equipment was reflected in the plant's construction specifications and remains in operation, on site, at the plant. Components and parts of this equipment have been maintained, replaced, and repaired periodically. The original operations manual for the barge unloader, stacker/reclaimer, crushers, and conveyor systems are still kept and utilized on site. The primary fuel utilized in Units 1 and 2 is coal, although these units also co-fire from one to five percent number fuel oil and used oil. The combustion of fuel in Units 1 and 2 results in air emissions. As a result of changing regulatory requirements, there have been substantial improvements to the units' air pollution control capabilities since original construction. Existing Air Permits Unit 1 currently operates under Air Operation Permit Number A009-169341. Unit 2 operates under Air Operation Permit Number A-009-191820. Both permits were amended by DEP on October 8, 1996. Although each air operation permit contains an expiration date that has been surpassed, the permits remain in effect under DEP's regulations during the pendency of the agency's review of FPC's applications for air operation permits under the new Title V program found in Chapter 62-213, Florida Administrative Code. The air operation permits governing Units 1 and 2 contain mass emission rate limitations of 0.1 pounds/million (mm) British thermal units (Btu) or particulate matter (PM), and 2.1 pounds/mmBtu for sulfur dioxide. These mass emission rate limitations restrict the amount of each pollutant (measured in pounds) that is to be released into the atmosphere per million Btu of heat energy by burning fuel. The PM limitation is applicable to Units 1 and 2 under state regulations originally promulgated in 1972. The sulfur dioxide limitation was established in 1978 as a result of a PSD air quality analysis performed in conjunction with the permitting of Units 4 and 5. Prior to 1978, sulfur dioxide limits promulgated early in 1975 imposed a limit of 6.17 pounds/mmBtu on coal-fired operations at Units 1 and 2. Because Units 1 and 2 were subjected to a PSD air quality impact analysis along with Units 4 and 5, the units' sulfur dioxide emission limits were reduced from 6.17 to 2.1 pounds/mmBtu. The 2.1 pounds/mmBtu sulfur dioxide emission limitation applicable to Units 1 and 2 was set with the intention of assuring no adverse air quality impacts. The sulfur dioxide impacts associated with Units 1, 2, 4, and 5, after collectively being subjected to PSD air quality review, were much lower than the sulfur dioxide impacts previously associated with only Units 1 and 2. Is Petroleum Coke an Alternative Fuel? Petroleum coke is a by-product of the oil refining process and is produced by many major oil companies. The oil refineries refine the light ends and liquid products of oil to produce gasoline and kerosene, resulting in a solid material that resembles and has the fuel characteristics of coal. Both historically and presently, it has been common- place for electric utilities to rely on petroleum coke as fuel. For example, during the period 1969 through 1974, regular shipments of petroleum coke were sent to various electric utility companies throughout the United States to be co-fired with coal. In addition, DEP has issued permits for Tampa Electric Company to co-fire petroleum coke with coal. In 1987 and again in 1990, the EPA promulgated air- emission regulations which specifically define "coal" as including "petroleum coke." DEP has incorporated these regulations by reference at Rule 62-204.800(7)(b) 3. and 4., Florida Administrative Code. Given these considerations, it is found that petroleum coke constitutes an alternative fuel within the meaning of Rule 62-212.400(4)(c)4., Florida Administrative Code. Were the Units Capable of Accommodating the Fuel? Petroleum coke and coal are operationally equivalent. Petroleum coke can be handled, stored, and burned with the existing coal handling equipment at Units 1 and 2. The barge unloader, stacker/reclaimer, storage areas, conveyors, silos, crusher house, pulverizers, and burners, all installed prior to 1975, can handle petroleum coke. The equipment comprising Units 1 and 2 does not require any modification in order to burn a blend of petroleum coke with coal. Also, there will be no net impact on steam generator design or operation, and there will be no decline in performance or adverse impacts to the boilers. FPC could have co-fired petroleum coke with coal historically without making physical alterations or derating the units. Similarly, petroleum coke can be fired in Units 1 and 2 now without alterations or derating. These findings are further supported by Petitioner's Exhibits 35 and 36, which are reference books published in 1948 and 1967 by the manufacturer of the equipment installed at Units 1 and 2. They confirm that prior to 1975, petroleum coke was suitable for the manufacturer's boilers and pulverizers. Unrebutted testimony demonstrated that Units 1 and 2 could have co-fired petroleum coke with oil during the oil-firing period. Even when Units 1 and 2 fired oil instead of coal for a period of time in the 1970s, the coal-handling equipment remained in existence on-site and available for use, and both units remained readily convertible to their original, coal-firing modes. Because the plant remained capable of accommodating coal, it also remained capable of accommodating petroleum coke. In light of the foregoing, it is found that co-firing petroleum coke with coal at Units 1 and 2 could have been accomplished prior to January 6, 1975. Are there Post-January 6, 1975, Prohibitions? There is no evidence to support a finding that a federally enforceable permit condition was establshed after January 6, 1975, that prohibits co-firing petroleum coke with coal. I. Miscellaneous By letters dated February 14 and June 2, 1997, the EPA Region IV office replied to inquiries from DEP regarding the instant application. The conclusions reached in those letters, however, were based on a misapprehension of the facts in this case. Therefore, the undersigned has not credited these letters. To prove up its standing, LEAF introduced into evidence a copy of its articles of incorporation and a brochure describing the organization. In addition, it asserted that the air quality for its members would be "at risk" if Units 1 and 2 did not meet PSD standards and air emissions were "increased." Intervenor Sierra Club proffered that a substantial number of members "live, work, or recreate in the vicinity of the Crystal River Units 1 and 2, and in the area subject to the air emissions by those units," and that those members "would be substantially affected by the proposed exemption."
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting the application of Florida Power Corporation and issuing the requested air construction permit. DONE AND ORDERED this 23rd day of September, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1560 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1997. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 James S. Alves, Esquire Post Office Box 6526 Tallahassee, Florida 32314-6526 W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Gail Kamaras, Esquire 1115 North Gadsden Street Tallahassee, Florida 32303-6327 Jaime Austrich, Esquire Post Office Box 1029 Lake City, Florida 32056-1029 F. Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact The Respondent, Department of Corrections ("Department"), conducted the bid opening for the proposed award of lease number 700:0487 on June 27, 1989. The bids submitted by Petitioner, Miami International Commerce Center ("MICC"), and Intervenor, Luis Sanchez ("Sanchez") were the only two timely responses received to the bid solicitation for this lease. At the bid opening, the Department rejected MICC's bid on the grounds that it was unresponsive. The Department contends that MICC's bid was not responsive because: The map included in the proposal form on which the bidder was supposed to depict the location of the project was not included as an attachment to the package submitted. However, the MICC bid package did include a map from which the location of the project could easily be determined. The package submitted did not include adequate evidence of compliance with the energy performance index. The package submitted did not include a clear photo of the building demonstrating that the building was "dry and measurable". Mary Goodman, the Chief of the Bureau of Property Management for the Department of General Services, was called as a witness by the Department to testify regarding MICC's bid submittal. Ms. Goodman has been Chief of the Bureau of Property Management for 18 years and has been involved in leasing for state projects since 1958. She drafted the proposal form and the schedule of required attachments thereto. In September of 1988, she sent a letter to the state agencies involved in leasing (including the Department) advising them as to the mandatory nature of the proposal form and the need to insist upon strict adherence to the requirements set forth in the proposal. This directive was applied by the Department in rejecting MICC's bid. After testifying regarding the deficiencies in the MICC's bid submittal, Mrs. Goodman reviewed the energy performance certification included as part of the Intervenor's submittal package. Mrs. Goodman testified that the certification letter included in that package was inadequate, and therefore, the Intervenor's bid was also nonresponsive. Both the bid submitted by Petitioner and the bid submitted by Intervenor failed to include acceptable energy performance certifications and were therefore nonresponsive.
Recommendation Based upon the foregoing, it is RECOMMENDED that both bids submitted in connection with the proposed award of Lease No. 700:0487 be deemed nonresponsive and the Department of Corrections rebid the lease. DONE and ENTERED this 25th of August, 1989, at Tallahassee, Florida. J. STEPHEN MENTON 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 25th day of August, 1989. APPENDIX The Petitioner has filed a Proposed Recommended Order which does not comply with the format anticipated in Rule 221- 6.031, Florida Administrative Code. However, the undersigned has reviewed the Proposed Recommended Order and it has been considered in the preparation of this Recommended Order. The first two pages of the Proposed Recommended Order consist of background information and quotes from the bid documents. These two pages do not constitute proposed findings of fact. Page three of the Proposed Recommended Order includes proposed findings of fact and they have been adopted in the Findings of Fact set forth above. Page four of the Proposed Recommended Order constitutes legal argument. COPIES FURNISHED: Charles Fritz, Designated Representative 8181 Northwest 14th Street Miami, FL 33126-1899 Luis Sanchez, Pro Se P. O. Box 34021 Tallahassee, FL 33134 Drucilla E Bell, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, FL 32399-2500
The Issue The issue presented for decision herein is whether or not the Petitioner is eligible to sit for the Professional Engineers examination.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact. On December 12, 1983, Petitioner, Craig S. Smith, made application to the Florida Board of Professional Engineers to sit for the April, 1984 professional engineering examination. Respondent, Board of Professional Engineers, reviewed Petitioner's application in their meeting on February 19, 1984 and denied his reguest to sit for the April, 1984 examination. The basis for the denial was that Petitioner failed to qualify under the ten-year provision which requires ten years of experience in engineering pursuant to Chapter 471, Florida Statutes, and Rule chapter 21H, Florida Administrative Code. The Board determined that Petitioner did not satisfy the requisite experience in the areas of engineering, responsible charge and engineering design. Specifically, Respondent determined that Petitioner had 82 months of creditable service toward the 120 month requirement and no experience in the area of engineering design. Petitioner's application reveals that he was employed by Florida Testing and Engineering, Inc., 6784 Northwest 17 Avenue, Ft. Lauderdale, Florida from May, 1971 to May, 1973 in the position of a driller crew chief. His professional duties during that period include the following: subsurface investigations for foundation design; securing and classifying subsurface samples in accordance with standard procedures of ASTM and AASHTO; overall responsibility for drilling operations and sampling equipment (standard penetration tests using either split barrel sampler, shelby tube, hollow stem flight auger, steel casing, drilling mud and rock coring, when required). From May, 1973 to January, 1979, Petitioner was employed by the same employer but held the position of laboratory and field engineering technician. His specific job duties include various construction sampling, testing and inspection as follows: ASPHALT asphaltic design mixes conforming to Florida Department of Transportation and FAA criteria; quantitative extraction of bitumen from bitumen paving mixtures; bulk specific gravity of compacted bituminious mixtures; compressive strength of bituminious mixtures; sampling bituminious paving mixtures; sampling bituminious materials; (o) bituminious mixing plant inspections; coating and stripping of bitumen-aggregate; determining degree of particle coating of bituminous-aggregate mixtures: maximum specific gravity of bituminous paving mixtures; specific gravity of solid pitch and asphalt displacement; determining degree of pavement compaction of bituminous paving mixtures; resistance to plastic flow of bituminous mixtures using marshall apparatus; resistance to deformation and cohesion of bituminous mixtures by means of hveem apparatus. CONCRETE compressive strength of cylindrical concrete specimens; making and curing concrete compressive and flexural strength specimens in the field and laboratory; obtaining and testing drilled cores and sawed beams of concrete; flexural strength of concrete (using simple beam with third point loading); slump of Portland cement concrete; weight per cubic foot, yield, and air content (gravimetric) of concrete; (q) sampling fresh concrete; measuring length of drilled concrete cores; air content of freshly mixed concrete by the pressure method; securing, preparing and testing specimens of lightweight insulating concrete; air content of freshly mixed concrete by the volumetric method; checking approximate strength of hardened concrete by the Swiss hammer method; cement content of hardened Portland cement concrete; specific gravity, absorption and voids in hardened concrete; inspection and testing agencies for concrete materials as used in construction. SOILS investigating and sampling soils and rocks for engineering purposes; dry preparation of disturbed soil and soil aggregate samples for test; particle size analysis of soils; determining the liquid limit of soils; determining the plastic limit and plasticity index of soils; determining the field moisture equivalent of soils; moisture-density relations of soils using a 5.5 lb. rammer and a 12 in. drop; specific gravity of soils; moisture-density relations of soil-cement mixture; cement content of soil cement mixture; wet preparation of disturbed soil samples for test; moisture-density relations of soils using a 10 lb. rammer and an 18 in. drop; density of soil in place by the sand-cone method; the California bearing ratio, the line-rock bearing ratio; unconfined compressive strength of cohesive soil; permeability of granular soils (constant head) one-dimensional consolidation properties of soils; repetitive and nonrepetitive static plate load tests of soils and flexible pavement components, for use in evaluation and design of airport and highway pavements; determination of moisture in soils by means of a calcium carbide gas pressure moisture tester; bearing capacity of soil for static load on spread footings; density and moisture content of soil and soil- aggregate in-place by nuclear methods (shallow depth); classification of soils and soil aggregate mixtures for highway construction purposes; determining the Florida bearing ratio test (Florida Department of Transportation) determining the calcium carbonate content for base course materials (Florida Department of Transportation). AGGREGATES sampling stone, slag, gravel, sand, and stone block for use as highway materials; amount of material finer than 0.075 mm sieve in aggregate; unit weight of aggregate; voids in aggregate for concrete; organic impurities in sands for concrete; sieve analysis of fine and coarse aggregates; mechanical analysis of extracted aggregate; sieve analysis of mineral filler; specific gravity and absorption of fine aggregate; specific gravity and absorption of coarse aggregate; resistance to abrasion of small size coarse aggregate by use of the Los Angeles abrasion machine; soundness of aggregate by use of sodium sulfate or magnesium sulfate; clay lumps and friable particles in aggregates; lightweight pieces in aggregate; surface moisture in fine aggregate; reducing field samples of aggregate to testing size; total moisture content of aggregate by drying. MISCELLANEOUS percent of elongation, yield and tensile strength of steel members; compressive strength of hollow load bearing masonry units; inspection tests, including the inspection of pressure grout to insure proper distribution for foundation design; inspection and testing agencies for reinforced concrete culvert, storm drain and sewer pipe as used in construction; inspection and testing amenies for precast and prestress oiling members; From January of 1979 through January of 1982, Respondent held the position of supervisor for the same employer, Florida Testing and Engineering, Inc. During that period, he was in charge or was otherwise overall responsible for field and laboratory operations, prepared engineering reports, analyses, recommendations and design for various construction projects; Fort Lauderdale-Hollywood International Airport-Resurface Requisition No. 14905 and No. 29019 Fort Lauderdale-Hollywood International Airport- ADAP No. 06-12-0025-10 R/W and T/W Improvements and Resurfacing Fort Lauderdale-Hollywood International Airport - ADAP No. 06-12-0025-11 R/W and T/W Improvements and Resurfacing Key West International Airport - ADAP No. 06-12-0037-08 Fort Lauderdale Executive Airport Project No. 7155 City of Fort Lauderdale Parking Garage Project No. 7071 City of Fort Lauderdale 5 Ash Waste Water Treatment Plant Project No. 7642 From January of 1982 to the present time, Respondent formed his own company and holds the position as President of that firm (Eastcoast Testing and Engineering, Inc., 430 Northwest Flagler Drive, Fort Lauderdale, Florida 33301). Respondent is responsible for all phases of construction materials, testing, analysis, inspections, evaluations, quality control and quality assurance. The laboratory personnel and facilities of Eastcoast Testing and Engineering, Inc. has been inspected by the Cement and Concrete Reference Laboratory at the National Bureau of Standards. It is accredited by the Department of Commerce, National Voluntary Laboratory Accreditation Program for selected test methods of freshly mixed field concrete. Eastcoast was awarded the annual testing contract for the City of Fort Lauderdale during its first year of operation. During his tenure as an employee of Florida Testing and Engineering, Inc., Petitioner planned and implemented testing programs for the purpose of developing design criteria; implemented investigation and testing programs for the purpose of determining the cause of failures; prepared reports documenting material test data; and assisted in the preparation of reports for engineering evaluation under the guidance of a professional engineer. (See Petitioner's Exhibit No. 1.) For Petitioner's experience at Florida Testing during the period 1971 to 1973, Respondent determined that "zero time" was credited for that experience based on the Board's determination that Petitioner's work was more a "technician's job than engineering-related job." (Testimony of Board member William B. Bradley, Tr. page 16.) For Petitioner's experience during the period Nay, 1973 to January, 1979, Respondent allotted fifty percent or 34 of the 68 months experience that Petitioner served in that position. The Board determined that the "in-house testing" would have a lot more association with normal engineering procedures than Petitioner's earlier work. (Tr. 17.) The Board considered the technical testing and reporting thereof that took place in the laboratories was more responsible for engineering and, therefore, creditable as opposed to Petitioner's field work. (Tr. 17-18.) Again, for the period 1979 through 1992, Respondent gave Petitioner 59 percent credit for a total of 18 months of the 3 years in question. For the period 1979 through 1982, the Board determined that Petitioner was not essentially doing anything different but, rather, that he was "in charge of people now; he is preparing engineering reports here which I assume Mr. Winterholler signed." For that service, Petitioner was given credit for 18 of those 36 months. From the period of January, 1982 to the present time, the Board gave Petitioner 199 percent credit because, as President of his own firm, he would be more involved and would have more responsibility for the actions of his testing laboratory and, therefore, entitled to full credit for that time. (Testimony of Bradley at Tr. page 21.) Finally, Mr. Bradley determined that be saw no design engineering in the Petitioner's submissions because designing is "actually putting onto paper what's going to be there." (Tr. page 29.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Professional Engineers enter a Final Order finding Petitioner eligible to sit for the next regularly scheduled Professional Engineers examination based on his compliance with the ten (10) year requirement of Subsection 471.013(1)(a)3., Florida Statutes. DONE and ORDERED this 30th day of October, 1984, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 31st day of October, 1984.
The Issue The issue in this case is whether Respondent, Action Instant Concrete, LLC (AIC), should be allowed to use the Concrete Batching Plant Air General Permit promulgated by Respondent, Department of Environmental Protection (DEP), in Florida Administrative Code Rule 62-210.300(4)(c)2.1
Findings Of Fact Petitioners, Paul and Barbara Corbiey, live at 7380 Southwest 86th Lane, Ocala, Florida, in an area called Green Turf Acres. Petitioners' property shares a boundary with property owned by AIC at State Road 200. In 2003 AIC began construction of a relatively small cement silo and area for storage of rock aggregate and sand to mix with the cement, similar to facilities at a related operation some distance away. The other operation is within the jurisdiction of DEP's Central District, which did not require a permit for the operation. AIC's operation in Ocala is in DEP's Southwest District, which is headquartered in Tampa. Periodically (and irregularly but apparently usually early in the morning) AIC receives deliveries of cement to the silo at its facility next to the Corbieys. The silo is essentially a rectangular bin with a baghouse, essentially another rectangular structure attached to the silo and containing a combination of filters. Deliveries are made using an enclosed truck with a blower and flexible hose that can be positioned and attached to the fill spot on the silo. The transfer of cement from truck to silo is accomplished pneumatically, with the air exhausted through the baghouse, which is designed to capture and retain cement particles within the silo as the air passes through to the outside of the silo. If there are particulate emissions during the process, they typically would come from the baghouse. AIC also has aggregate and sand delivered to storage areas on either side of the silo. Each of the storage areas has walls made of 4-5 courses of cement block on three sides. The walls are there mainly to contain the aggregate and sand but also serve as a partial windbreak. During AIC's operations, trucks come to pick up cement, aggregate, and sand. To load cement onto the trucks, cement is gravity-fed from a hopper on the silo, through a flexible tube, and into the truck; aggregate and sand also are loaded into trucks using a front-end loader. Unconfined emissions can and, at least sometimes, do occur during the loading processes. After loading, the trucks are driven offsite, typically to a construction site, where the cement, aggregate, and sand are batched to form concrete. When AIC began operations, its yard was covered with grass and weeds, which helped suppress fugitive dust when trucks drove in and out. Later, the grass and weeds died, and AIC installed three sprinkler heads to keep the area watered to help suppress fugitive dust. When AIC began construction and operation, Petitioners complained to numerous authorities that AIC's construction and operation were illegal, inappropriate, and should not be allowed for various reasons, including alleged particulate emissions and fugitive dust that was harmful to the health and property of Petitioners and their neighbors.13 One complaint was lodged with DEP's Central District, which referred it to DEP's Southwest District. DEP's Southwest District investigated, determined that AIC should have obtained a permit, initiated compliance action, and required AIC to make use of the Concrete Batching Plant Air General Permit promulgated by DEP in Rule 62- 210.300(4)(c)2. DEP also fined AIC in the amount of $4,150, plus $100 to reimburse DEP for its costs, for constructing and operating without a permit.14 These amounts were paid. It does not appear from the evidence in the record that DEP ordered AIC to cease operations until DEP allowed AIC to use the Concrete Batching Plant Air General Permit. It does not appear that AIC ceased operations. As DEP instructed, AIC had a VE test performed in accordance with EPA Method 9 for submission with a Concrete Batching Plant Air General Permit Notification Form, fee, and proof of public notice. AIC retained Koogler & Associates for this purpose, and the test was performed on April 26, 2005. On April 29, 2005, AIC published notice in the Ocala Star-Banner that it intended to use the Concrete Batching Plant Air General Permit. On May 5, 2005, Koogler & Associates prepared a VE Observations Report for AIC. On May 16, 2005, Petitioners filed a Petition opposing AIC's use of the Concrete Batching Plant Air General Permit and seeking its revocation. On May 19, 2005, AIC submitted a Concrete Batching Plant Air General Permit Notification Form, fee, proof of public notice, and VE observation report to DEP. At the hearing, John B. Koogler, Ph.D., P.E., an expert in environmental science and air quality, and the principal of Koogler & Associates, testified as to the cement and concrete industry in general, EPA Method 9, required certifications for conducting a VE test under EPA Method 9, VE testing under EPA Method 9, and the VE Observations Report prepared for AIC by Koogler & Associates. In the case of AIC's operation, VE testing measures stack emissions during standard loading of cement under pressure. Typically, if there are emissions during the process, they will be seen at the baghouse on the silo--i.e., the dust collector at the exhaust point. This is where VE is measured during testing. AIC's stack emissions were tested at a loading rate of approximately 50 tons per hour; at that rate, 25 tons of cement were loaded into the silo in half an hour. According to AIC's VE Observations Report, there were no stack emissions during testing. Dr. Koogler did not perform the test himself and did not sign the Observations Report, but the test was performed and the report was prepared under his general supervision, and experts in his field routinely rely on VE testing performed by certified technicians under general supervision and on observations reports prepared by others under general supervision. According to Dr. Koogler, the test for AIC appeared to have been performed properly and met the requirements of EPA Method 9 and DEP's statutes and rules for use of the Concrete Batching Plant Air General Permit. Petitioners questioned the veracity of the VE Observations Report, primarily by speculating that the certified technician who performed the test may have fabricated the observations, either with or without his employer's knowledge. This speculation is rejected as unfounded. Petitioners also repeatedly questioned the consistent and reasonable testimony of all the experts that valid, authorized VE observations could not be performed using Petitioners' videotapes. Besides, the videotape in evidence did not show loading of the silo. As a result, Petitioners presented no evidence that VE in excess of five percent opacity occurred during cement loading of the silo. Petitioners also alleged that violations occurred during the loading of trucks at AIC's operation. Witnesses testified to seeing various amounts of dust from various distances occurring at various times, but their testimony was not specific. Parts of the videotape in evidence show some unconfined emissions occurring during the loading of at least some of the trucks. However, as indicated above, VE testing is not done for unconfined emissions; in addition, standardized opacity measurements could not have been made from a videotape. Finally, the videotape showed that AIC uses a chute, or partial enclosure, to mitigate emissions at the drop point to the truck, and the evidence was that AIC maintains its parking areas and yards and applies water when necessary to control emissions. Cf. Conclusions 22-23, infra. Dr. Koogler also opined that AIC and its operation may use the Concrete Batching Plant Air General Permit under a proper interpretation of the statutes and rules, in particular Rule 62-296.414, which states that it not only applies to "emissions units producing concrete and concrete products by batching or mixing cement and other materials" but also applies to "facilities processing cement and other materials for the purposes of producing concrete." This opinion was consistent with DEP's interpretation of the statutes and rules. Petitioners also contended that AIC was ineligible for the Concrete Batching Plant Air General Permit because its facility already was in existence and was operating without a permit. However, expert witnesses for DEP and for AIC testified consistently and reasonably that DEP can require a facility operating without a permit to use the Concrete Batching Plant Air General Permit in order to come into compliance. It is not necessary for the facility to dismantle its facility and rebuild after obtaining authorization to use the Concrete Batching Plant Air General Permit under Rule 62-210.300(4)(a)2. Under these circumstances, it is reasonable for the facility to submit VE test results along with the facility's initial Concrete Batching Plant Air General Permit Notification Form, fee, and proof of public notice. In the exercise of its discretion to enforce compliance, DEP allowed AIC to continue to operate before and during the pendency of this proceeding. Petitioners questioned the wisdom and propriety of this choice, but DEP's exercise of discretion in enforcing compliance is not at issue in this proceeding. See Conclusion 24, infra.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order approving AIC's use of the Concrete Batching Plant Air General Permit under Rule 62-210.300(4)(a)2. Jurisdiction is retained to consider a motion for costs and attorney fees under Section 57.105, Florida Statutes, if filed within 30 days after issuance of the final order. DONE AND ENTERED this 31st day of March, 2006, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2006.
The Issue Should Respondent be fined $500.00 for initiating repairs to an on-site sewage treatment and disposal system before obtaining a permit?
Findings Of Fact Respondent is engaged in the septic tank contracting business as a contractor licensed under Chapter 489, Part III, Florida Statutes. He does business as "Alpha." In association with his business Respondent provided services to residents at 224 North Orange Avenue, Orange City, Florida. This was related to a failed on-site sewage treatment and disposal system at that residence. To assist in providing repair service to the residence in Orange City, Florida, Respondent engaged Andy Trapp. Mr. Trapp's business is to assist septic tank contractors in obtaining necessary permits to perform septic tank contracting services. Mr. Trapp's occupation includes field work involving soil testing, measurements, and completion of necessary paperwork to assist the septic tank contractor in obtaining necessary permits. As permitting agency, usually Petitioner would accept applications submitted by Mr. Trapp in relation to the application for a permit to repair on-site sewage treatment and disposal systems, in that Mr. Trapp is recognized by Petitioner as being sufficiently qualified to submit information in support of an application for permit. On March 27, 1998, Mr. Trapp submitted an application for a permit to repair the on-site sewage treatment and disposal system at the Orange City, Florida, address, to include supporting information concerning the results of soil testing. That application was accompanied by the necessary fee to obtain a permit. The application was delivered to Petitioner's Daytona Beach, Florida, office as a matter of convenience to Mr. Trapp. Mr. Trapp realized that the actual processing of the permit application would be conducted by Petitioner's Deland, Florida, office. In that connection, Mr. Trapp realized that the application that he had submitted to the Daytona Beach office would be forwarded by interoffice transmittal to the Deland office, which would cause a delay in the processing of the application. In his experience Mr. Trapp has filed applications with the Daytona Beach office to be subsequently transmitted to the New Smyrna Beach office of the Petitioner, which ordinarily can be done late on the same day that the application was presented or by the next day. James McRae is an environmental supervisor for the Volusia Health Department, Environmental Health Office in Deland, Florida. It is his office that had ultimate responsibility for considering, and if appropriate, issuing a permit allowing Respondent to conduct necessary repairs of the failed on-site sewage treatment and disposal system at the Orange City, Florida address. Mr. McRae confirmed that the permit application, as submitted by Mr. Trapp for the repairs, had been received by the Deland office on March 30, 1998. In addition, the accompanying $57.00 fee had been transferred from the Daytona Beach office to the Deland office, as was customary, the custom being that the funds in support of an application would ultimately be received in the office from which the application would be processed and a permit number assigned, as applicable. Upon receipt of the application in the Deland office, a receipt was generated. Information concerning the permit application was placed in the computer. Assessment of the application was assigned to William Vander Lugt, Environmental Specialists II, who is part of the field staff for the Petitioner's Deland office. Beyond Mr. Vander Lugt's assignment to consider the application for the permit for the Orange City, Florida project, it was expected that he would do any necessary field work involving an inspection and any necessary soil analysis. If satisfied that the site was appropriate to effect repairs to the failed on-site sewage treatment and disposal system, Mr. Vander Lugt would issue a permit subject to approval by Mr. McRae. Mr. McRae identified that the usual turn around time for issuing permits is two to three days, assuming that the permit was applied for at Petitioner's office which would be responsible for assessing the application. In this instance the permit had been applied for at another office which delayed consideration of the permit application by the Deland office. The permit was approved on April 2, 1998, within three days of its receipt by the Deland office. Before the permit was issued, Respondent, through his employees, had commenced the repairs at the Orange City, Florida, address. The commencement of repairs was verified by an on-site inspection performed by Mr. Vander Lugt, on March 31, 1998. Although the supporting information presented by Mr. Trapp was in order and the fee had been paid, and there was no indication that any other problems existed which would prohibit the repairs from being conducted, Respondent was premature in commencing the work before the permit issued, and was unjustified in that choice.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be issued which imposes a $500.00 fine against Respondent for initiating a repair of an on-site sewage treatment and disposal system without first obtaining a permit to do the work. DONE AND ENTERED this 24th day of September, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1998. COPIES FURNISHED: Charlene Petersen, Esquire Department of Health 420 Fentress Boulevard Daytona Beach, Florida 32114 Michael J. Jedware Post Office Box 390073 Deltona, Florida 32739-0073 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703
