The Issue The issue is whether two persons were employees or independent contractors of Respondent, pursuant to Chapter 440, Florida Statutes, and, if employees, an additional issue is the penalty that Petitioner should impose against Respondent for his failure to obtain workers’ compensation coverage for the two employees.
Findings Of Fact At the time in question, Respondent was in the business of erecting enclosures for swimming pools. On most of these jobs, Respondent served as a subcontractor of Commercial Residential Construction. On April 7, 1998, Respondent was providing labor and materials, as a subcontractor to Commercial Residential Construction, on a screened-enclosure job located at 2242 Otter Creek Lane in Sarasota. Commercial Residential Construction supplied the aluminum and screen used for this job. For this job, Respondent hired two individuals who had worked for Commercial Residential Construction or other independent contractors in the construction business. Respondent did not have workers’ compensation coverage for the two individuals working with him on this job. Respondent’s agreement with these two persons was to pay them, on a weekly basis, a specified percentage of the total price that Respondent was to receive for the work. If the contractor refused to pay Respondent due to unsatisfactory work, then Respondent would not pay the two individuals. The two individuals had to supply their own tools. Sometimes they transported themselves to the job site; sometimes, as a matter of convenience, Tom Dybalski, the owner of Respondent, transported them or was transported by them. The two individuals did not testify. Petitioner called Mr. Dybalski as a witness; otherwise, Petitioner’s witnesses consisted exclusively of staff and investigators. However, these witnesses were unable to establish the statements of the two putative employees because of hearsay. The findings of fact contained in this recommended order are derived from Mr. Dybalski’s testimony or admissions made to one of Petitioner’s investigators. However, the administrative law judge has not relied on hearsay testimony, which is admissible under the exception for admissions against interest, that Mr. Dyblaski admitted that the two individuals were employees. Mr. Dyblaski is an aluminum contractor, not an attorney, and his “concession” concerning a complex matter, especially given his obvious ignorance of the applicable legal criteria, is not entitled to any weight. Admissible evidence does not establish whether the two individuals had exemptions from workers’ compensation. Mr. Dybalski testified that he did not know whether they did. The two individuals did not testify, so it is impossible to determine from this source whether they had exemptions. The record is similarly devoid of competent evidence establishing Respondent’s contention that the two individuals were employees of Commercial Residential Construction while working on the subject job.
Recommendation It is RECOMMENDED that the Division of Workers’ Compensation enter a final order finding Respondent guilty of failing to obtain workers’ compensation coverage to two employees and imposing a penalty in the amount of $1000. DONE AND ENTERED this 9th day of September, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1998. COPIES FURNISHED: Louise T. Sadler Senior Attorney Division of Labor and Employment Security Suite 307, Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 A. Brent McPeek Attorney 3986 South Tamiami Trail Venice, Florida 34293 Edward A. Dion, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
The Issue The issue presented is whether Petitioner's application to qualify two additional business entities should be granted.
Findings Of Fact Petitioner, David Rheaume, has been an electrician since about 1960. Petitioner is a certified electrical contractor, holding Florida license number EC 13003139. Petitioner currently serves as the primary qualifier for two companies, David's Electric Service, Inc. (David's Electric), in Fort Myers, and Primary Electric of Southwest Florida, Inc. (Primary Electric), in Cape Coral. As the primary qualifier for David's Electric and Primary Electric, Petitioner is responsible for the supervision of all operations of the business organization, for all field work at all sites, and for financial matters, both for the organization in general and for each specific job. § 489.522(1)(a), Fla. Stat. (2006). David's Electric is wholly owned and operated by Petitioner. He is the sole officer and employee. On average, Petitioner works three-to-four hours per day, five or six days per week, doing mostly service work and upgrades. He gets most of his work from the local pennysaver-type advertising circular, and his schedule depends on the number of calls he receives from customers. He may work for six hours on one day, and not at all on the next. Petitioner considers himself semi-retired, and no longer undertakes new home installations. Petitioner is able to make his own flexible schedule as the owner/operator of David's Electric, and believes that he will be able to supervise the operations of the additional entities for which he seeks to act as qualifier. Primary Electric performs electrical service work and the wiring of newly constructed houses. Petitioner spends a "couple hours a week at the most," supervising the electrical contracting work of Primary Electric. The owner/operator of Primary Electric calls Petitioner when a job is ready for inspection. Petitioner then goes to the job site and checks to make sure the job has been done properly before the county inspector arrives. The owner/operator consults Petitioner if he has a problem understanding the blueprints on a job. The staff of Primary Electric consists of the owner/operator and two helpers. Petitioner is officially the vice president and owns ten percent of the company. He serves in a consulting capacity, and performs no physical work for Primary Electric. At the hearing, Petitioner identified the owner/operator of Primary Electric as "Don," and could not, with confidence, recall "Don's" surname. Don supervises the business on a day-to-day basis. Petitioner knew that Don's wife "signs all the checks," but was not certain whether she has an official position in the company. The checkbook and financial records are forwarded to the office of Petitioner's CPA, where Petitioner checks them. Don, the owner/operator of Primary Electric, is not a licensed electrical contractor. Petitioner allows Don to hire and supervise the helpers who work on Primary Electric's job site. Petitioner readily conceded that he knows nothing about the hiring or qualifications of the helpers, and that he relies on Don to address any problems with faulty work performed by the helpers. Primary Electric has pulled permits and performed electrical contracting jobs without Petitioner's prior knowledge. Petitioner testified that he allowed Don to go to local building departments and pull permits for electrical contracting jobs without prior consultation with Petitioner, because "I have that much faith in him." Petitioner acknowledged that on some smaller jobs, such as additions or service work, the owner/operator of Primary Electric has finished the jobs and gone through final inspections without ever notifying him. In response, Petitioner told Don to "at least call me." Petitioner applied to serve as the primary qualifier for Dolphin Electric of SW Florida, Inc. (Dolphin Electric), a start-up company based in Cape Coral. Vincent Sica is the president of Dolphin Electric, and Petitioner is the vice president and ten percent owner. Mr. Sica is a friend of Petitioner, and formerly worked for Petitioner at David's Electric. Mr. Sica was denied an electrical contractor's license by the Board, then asked Petitioner to serve as his qualifier, thereby allowing Dolphin Electric to work in the field of electrical contracting. Dolphin Electric, if approved as an additional business under Petitioner's license, would operate as an electrical contracting business focusing primarily on wiring new custom houses built by Mr. Sica's brother, who is a general contractor. Mr. Sica and his son would perform the work. Petitioner will perform no physical work for Dolphin Electric. Petitioner intends to supervise Dolphin Electric in the same manner that he supervises Primary Electric, including allowing Mr. Sica to pull permits for electrical jobs without first consulting Petitioner. According to Petitioner, Mr. Sica was an electrician in New Jersey and is very qualified. Petitioner stated that he would likely supervise Dolphin Electric a little more closely, if only, because he and Mr. Sica are friends and spend a lot of time together. Petitioner applied to serve as the primary qualifier for Mill Electrical Contractors, Inc. (Mill Electric), a start- up company based in Fort Myers. Terry Gaschk is the president of Mill Electric, and Petitioner is the vice president and ten percent owner. Mr. Gaschk is a friend of Petitioner, and worked for Petitioner at David's Electric during a busy time. Although he has only known Mr. Gaschk for one year, Petitioner testified that Mr. Gaschk is "like a brother" to him and is a better electrician than Petitioner. When Mr. Gaschk wanted to start his own company, Petitioner was willing to serve as his qualifier. Mill Electric, if approved as an additional business under Petitioner's license, would probably operate as an electrical contracting business focusing primarily on wiring newly constructed houses. Petitioner was not sure of Mr. Gaschk's intentions, because of the current softness of the residential construction business. Petitioner guessed that Mill Electric would stay a one-man operation doing service jobs until the market improves. Petitioner intends to supervise Mill Electric in the same manner that he supervises Primary Electric, including allowing Mr. Gaschk to pull permits for electrical jobs without first consulting Petitioner. Petitioner did not demonstrate intent to adequately supervise the operations of the proposed additional entities, Dolphin Electric and Mill Electric. At Petitioner's application request hearing, the Board's chief concern was the appearance that Petitioner was engaged in a "license selling" scheme with his friends. At the de novo hearing before the undersigned, Petitioner did little to put this concern to rest. Petitioner's intent is to continue working part-time for his own company, and to allow his friends to run the day-to- day operations of the two start-up companies, including the hiring and supervision of employees, the pulling of permits for electrical work, and the performance of that work without the direct supervision of a certified electrical contractor. In general, Petitioner would be consulted when there is a problem with the work, or when his presence is required for an inspection. The undersigned does not find that Petitioner had any conscious bad intentions in making his applications. Petitioner sincerely believes that Mr. Sica and Mr. Gaschk are at least as proficient in the field as is he, and is confident enough, in his opinion, to risk his license on their behalf. However, Petitioner's casual manner of supervising the work of his friends, coupled with the sheer volume of supervisory work that he proposed to undertake for a total of three companies plus his own, caused reasonable doubts in the mind of the Board. Unfortunately, Petitioner was unable to dispel those doubts in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: A final order be entered denying Petitioner's applications to qualify Dolphin Electric of SW Florida, Inc., and Mill Electrical Contractors, Inc. as additional business entities. DONE AND ENTERED this 8th day of March, 2007, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 March, 2007. COPIES FURNISHED: Reginald D. Dixon, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Howard Andrew Swett, Esquire Knott, Consoer, Ebelini, Hart & Swett, P.A. 1625 Hendry Street, Suite 301 Fort Myers, Florida 33901 Anthony B. Spivey, Executive Director Electrical Contractors' Licensing Board 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondent committed an unlawful employment act by discriminating against Petitioner based on his age in violation of Section 760.10(1), Florida Statutes.
Findings Of Fact Petitioner was born on December 7, 1944. At the time of the hearing, Petitioner was 58 years old. Petitioner began working for Respondent as a pipe fitter in 1974. Respondent terminated Petitioner on August 5, 1998. He was 53 years old at that time. At all times relevant to this proceeding, Petitioner was a member of the Paper, Allied-Industrial, Chemical and Energy Workers International Union Local 1561 (the Union). Based on his seniority, Petitioner became a predictive/preventative lubrication mechanic (PPM mechanic) in the late 1980s. A PPM mechanic is responsible for lubricating equipment, monitoring oil pressure on induced draft (ID) fans, changing oil filters, and repairing equipment in the powerhouse. A PPM mechanic's duties also include performing vibration analysis on equipment in the powerhouse. As a PPM mechanic, Petitioner was required to look at several hundred pieces of equipment per day. These inspections were essentially "walk-by" inspections. Petitioner was not required to record his observations or to keep a maintenance log. If a piece of equipment needed repair and Petitioner was able to perform the work, he would do so. If he was unable to repair the equipment, Petitioner would report the problem to the powerhouse maintenance department to execute the repair. A computer-generated list identified the equipment that needed inspection. Some of the equipment needed to be lubricated daily, some weekly, and some on a monthly basis. Petitioner worked as a PPM mechanic for about three years. In the early 1990s, his PPM mechanic position was awarded to a more senior employee. In March 1991, Respondent terminated Petitioner's employment for falsifying his time card. The union's subsequent grievance procedure resulted in Petitioner being suspended for six months without pay. In 1994, Petitioner once again became a PPM mechanic. At that time, Petitioner worked the day shift from 7:00 a.m. until 3:30 p.m. He would attend a crew meeting at the beginning of each shift. A crew consisted of pipe fitters and millwrights. After the crew meeting, Respondent expected Petitioner to walk his route to perform his inspections as quickly as reasonably possible. Joseph McCall began working for Respondent on May 8, 1989. He became Petitioner's immediate supervisor on November 1, 1996. Mr. McCall was the supervisor of all PPM mechanics. He supervised Petitioner until Petitioner's termination on August 6, 1998. At the time of Petitioner's termination, Mr. McCall was approximately 30 years old. On or about January 29, 1997, Mr. McCall met with Petitioner to discuss his work performance. Mr. McCall counseled Petitioner to stop doing "government jobs" (personal jobs) during work hours and then requesting overtime to finish his normal duties. Mr. McCall had observed Petitioner doing personal work on company time on at least six occasions. Mr. McCall did not allow employees under his supervision to do "government jobs" on company time. There is no persuasive evidence that Mr. McCall observed anyone other than Petitioner performing "government jobs" during work hours prior to Petitioner's termination. During the January 29, 1997, meeting, Mr. McCall counseled Petitioner regarding his failure to consistently perform his daily maintenance inspection route first thing in the morning. The morning inspection was important because the overnight swing shift did not have a PPM mechanic on duty. After the January 1997 oral warning, Mr. McCall met with Petitioner again in June 1997 to discuss Petitioner's unacceptable job performance. After the meeting, Mr. McCall issued a written reprimand to Petitioner on June 16, 1997. The reprimand stated that Petitioner's job performance needed to improve immediately. The reprimand outlined Respondent's expectations and Petitioner's performance deficiencies. Specifically, Petitioner had not consistently completed his inspection route first thing in the morning. Mr. McCall counseled Petitioner that this responsibility was the highest priority. Mr. McCall counseled Petitioner that he needed to check equipment, such as the oil filter on the No. 3 power boiler ID fan, more frequently. Petitioner needed to take care of housekeeping items, such as cleaning up oil leaks that occurred on his shift. Additionally, Petitioner needed to collect data more efficiently; pay closer attention to critical equipment, such as the ID fans; cooperate with his relief; and follow directions issued by his supervisor. Petitioner's work did not improve in response to the June 16, 1997, written reprimand. On September 24, 1997, Mr. McCall witnessed Petitioner sleeping on the job in the corner shop of the powerhouse. As a result of this incident and Petitioner's failure to consistently meet expectations, Petitioner was suspended from work for 17 days. Respondent suspended Petitioner instead of firing him in recognition of his long service with Respondent. In a disciplinary letter dated October 3, 1997, Respondent memorialized the reasons in support of Petitioner's suspension. The letter also set forth the terms and conditions of a "last chance agreement" containing the following conditions of Petitioner's continued employment: (a) Petitioner would remain in the PPM mechanic job; (b) Petitioner would not violate any mill rules; (c) Petitioner would consistently meet the job performance expectations as established; and (d) Petitioner would work cooperatively with Mr. McCall, with co-workers, and employees in the production areas. Petitioner and Mr. McCall signed the letter, which clearly stated that failure to comply with the conditions for continued employment would result in Petitioner's immediate discharge without recourse. One of Petitioner's most important jobs was to monitor the oil pressure differential on the No. 4 power boiler ID fan because a high oil pressure differential on that fan can cause the power boiler and turbine generator to trip, resulting in a loss of production. This piece of equipment was so critical that it could only be shut down during a "cold outage" in which the whole mill shut down. On March 25, 1998, the No. 4 power boiler tripped. The trip was not so severe as to as to shut down the power- generating turbine. After this incident, Mr. McCall counseled Petitioner about his failure to adequately monitor the oil pressure. On June 11, 1998, Petitioner was working on a job when a co-worker, Kenny Waters, requested Petitioner to stop his work in progress and add oil to a pump that Mr. Waters was working on. Petitioner refused the request telling Mr. Waters that he had the ability to add oil to the pump. Petitioner failed to work cooperatively with his co-worker by refusing to add oil to the pump. On June 17, 1998, Mr. McCall was not at work. Therefore, Kenny Caine (aged 47) was acting as "set-up foreman" (temporary foreman) for Mr. McCall. That same day, Randy Dortch (aged 48) was acting as set-up foremen for the maintenance department and Kip Norton (aged 58) was the powerhouse supervisor. On June 17, 1998, a powerhouse operator informed Mr. Norton that there was a high oil pressure differential on the No. 4 power boiler ID fan. Mr. Norton called Mr. Dortch at 7:10 a.m. to request the services of the PPM mechanic on duty to check the filter on the fan. Mr. Norton was concerned that the filter needed to be changed to alleviate the pressure differential and avoid a possible turbine trip. Petitioner happened to be the PPM mechanic on duty for that area of the mill. After talking to Mr. Dortch, Mr. Norton paged Petitioner. However, Petitioner did not respond to the page. Mr. Norton then called Mr. Caine in an attempt to locate Petitioner. Mr. Dortch located Petitioner in the break room. Mr. Dortch specifically directed Petitioner to go check the oil pressure on the No. 4 power boiler ID fan. Rather than immediately responding to Mr. Dortch's request, Petitioner sat down at the break table, drinking coffee, and reading the paper. Mr. Dortch then contacted Mr. Caine who went to the break room to speak to Petitioner. Petitioner explained to Mr. Caine that the filters on the fan were too small, that they were scheduled for change, and that new filters had been ordered. Mr. Caine went to the production staff to relay Petitioner's explanation that there was no cause for concern about the filters. Mr. Caine then returned to speak with Petitioner, stating that the production department wanted the filters changed despite Petitioner's representation that the equipment was performing normally. Mr. Caine went with Petitioner to the No. 4 power boiler ID fan. Petitioner then proceeded to change the filters. Mr. Caine subsequently counseled Petitioner to respond to every request from an operator for assistance. Mr. Caine reminded Petitioner that he should not have to have a foreman of any sort, production or maintenance, tell him what to do. Mr. Caine mentioned the June 17, 1998, incident to Mr. McCall but did not recommend that Petitioner be disciplined. Petitioner stayed in the break room almost one hour after Mr. Dortch instructed Petitioner to check the oil pressure differential on the No. 4 power boiler ID fan. Petitioner's delay in following directions was insubordinate and a violation of his last chance agreement. Don Wilson was Respondent's engineering and systems manager. Based on Mr. McCall's recommendation, Mr. Wilson (aged 60) made the decision to terminate Petitioner's employment. Mr. Wilson's decision is memorialized in a letter dated August 5, 1998, which states that Petitioner's behavior on June 11, 1998, and June 17, 1998, violated the conditions of his continued employment. Mr. Wilson's decision was reviewed and approved by Doug Owenby (aged 56), Respondent's plant manager. Stan Shaw (aged 49), Respondent's human resource manager, also reviewed and approved of the decision to terminate Petitioner's employment. When Respondent terminated Petitioner, Respondent replaced him with Doug Anderson, an individual who was approximately in his mid-30s. Roger Brown, also in his mid-30s, and Kenny Caine, aged 47, also performed the job formerly held by Petitioner. In each instance, the PPM mechanic position was awarded based on seniority in accordance with the terms of the Union labor agreement. The labor agreement gave Respondent no discretion in selecting Petitioner's replacement. Petitioner grieved his termination through the Union. Mr. Shaw denied the grievance. Subsequently, the Union voted against taking Petitioner's grievance to arbitration. While he was employed with Respondent or during the grievance process following his termination, Petitioner never complained that he was being discriminated against because of his age to any manager, supervisor or human resources representative. However, at least two of Petitioner's co-worker's harassed him occasionally by calling him names such as "old mother fucker" and "old square-headed mother fucker." Mr. McCall was aware that some of Petitioner's co-workers were making jokes about his employment situation relative to the last chance agreement. Even so, there is no persuasive evidence that anyone called Petitioner names in front of Mr. McCall or any other person in a position of authority. The greater weight of the evidence indicates that the two co-workers called Petitioner names because he took the PPM mechanics job away from Billy Dortch, an individual that they liked. At some point before he was terminated, Petitioner learned from the Union that Respondent intended to downsize its workforce. Respondent planned to offer some employees early retirement packages. Respondent intended to eliminate other positions through attrition. Most PPM mechanics were close to Petitioner's (aged 53). Some of the PPM mechanics accepted the retirement package but Petitioner informed Mr. McCall that he needed to continue working and would not be interested in a retirement package if Respondent offered him one. The reduction-in-force took place in October and November 1998 due to market conditions during which 150 positions were eliminated. No employees were involuntarily terminated. Respondent did not consider age as a factor during the reduction-in-force or seek to eliminate older workers through the voluntary retirement packages. Petitioner's termination was unrelated to the downsizing process. The voluntary retirement package offered by Respondent gave each employee who accepted the package at least one week of severance pay per year of service. Employees with more than 15 years of service got two weeks of severance pay per year of service. Therefore, Respondent incurred greater expense allowing employees to chose whether or not to accept the voluntary retirement package based on seniority. The labor agreement with the Union does not require Respondent to offer any severance benefits during a reduction-in-force. At the time of Petitioner's termination, there were 10 other PPM mechanics under Mr. McCall's supervision. All of them were over the age of 40. Five were older than Petitioner. Specifically, Earl Powell was aged 68, Larry Sloan was aged 62, Edward Holland was aged 60, Howard Patrick was aged 57, and Lee Stonewall was aged 54. Mr. McCall never had cause to discipline these five men. None of the PPM mechanics other than Petitioner were terminated. After Petitioner's termination, Mr. McCall did have to issue a verbal warning to Phil Caddel (aged 50) and Clay Bonner (late 30's). In both incidences, the discipline was for performing "government jobs" on company time. During the time that Mr. McCall supervised Petitioner, he was never asked to serve in a set-up capacity. Instead, Mr. McCall selected Mr. Caine, Mr. Dortch, and Bob Stewart, all younger than Petitioner, to act as substitute foremen when Mr. McCall was not at work. Mr. McCall kept notes on Petitioner's performance. In fact, Mr. McCall kept detailed notes on the performance of a great majority but not all of the employees under his supervision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 11th day of March, 2003, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 11th day of March, 2003. COPIES FURNISHED: Thomas R. Brice, Esquire McGuireWoods LLP 50 North Laura Street, Suite 3300 Jacksonville, Florida 32202 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 R. John Westberry, Esquire Holt & Westberry 1108-A North 12th Avenue Pensacola, Florida 32501 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues to be determined in this proceeding are whether OUC should receive supplemental certification from the Siting Board for its proposed Unit 2 electrical power plant and associated facilities, including a transmission line and alternate access road, and what conditions, if any, should be incorporated within such supplemental certification to assure that minimal adverse consequences result from the new electrical power plant and associated facilities. The parties have reached substantial agreement on issues of fact and upon conditions of certification necessary to assure compliance with applicable nonprocedural requirements of the agencies having jurisdiction over the project. No party opposes the issuance of the supplemental certification sought by OUC, leaving a single dispute between OUC and SJRWMD as to SJRWMD's proposed condition of certification which would limit OUC's consumptive water use authorization to a ten-year period commencing on the date of certification and would essentially require OUC to reapply for subsequent consumptive use permits for water use thereafter.
Findings Of Fact The Co-applicants. Orlando Utilities Commission (OUC) is a statutory commission of the State of Florida and is part of the government of the City of Orlando. OUC generates and distributes electric power and water to persons within its service area. OUC owns the Stanton Energy Center site and will have a 75% ownership interest in Stanton 2. The Florida Municipal Power Agency (FMPA) is a joint agency formed under the Interlocal Cooperation Act and exercises power under the Joint Power Act. FMPA has authority to undertake and finance electric projects and to plan, finance, acquire, construct, own, operate, maintain or otherwise participate jointly in Stanton 2 and other projects. FMPA members Fort Pierce, Homestead, Key West, Lake Worth, Starke and Vero Beach will be participants in Stanton 2; FMPA members Bushnell, Clewiston, Green Cove Springs, Jacksonville Beach, Leesburg and Ocala will be participants through FMPA's All Requirements Project. The FMPA will have an approximate 21% ownership interest in Stanton 2. Kissimmee Utility Authority (KUA) is a public body, organized and existing as part of the government of the City of Kissimmee. KUA generates, transmits and distributes electric power. KUA will have an approximate 4% ownership interest in Stanton Unit 2. The Stanton Site and the proposed project. OUC owns the Curtis H. Stanton Energy Center, a 3280-acre site, with associated railroad, utility and transmission corridors located in Orange County, approximately twelve miles east-southeast of the City of Orlando, Florida. On December 14, 1982, the Governor and Cabinet of the State of Florida, sitting as the Siting Board, certified the Stanton Energy Center site for an ultimate generating capacity of approximately 2000 megawatts. On July 1, 1987, Stanton Energy Center Unit 1, a 465 megawatt gross, 440 megawatt net, coal-fired electrical generating plant, went into commercial operation. The certified facilities associated with the Stanton site include a railroad corridor containing a railroad spur for coal train access to the site, a cooling water pipeline for the treated sewage effluent used for cooling water obtained from the Orange County Easterly Subregional Wastewater Treatment Plant, a plant access road, and associated transmission lines. The associated facilities are sized to accommodate the ultimate 2000 megawatt site development; additional associated transmission lines will be required for the ultimate site development. Certain facilities constructed with Stanton Unit 1 were sized to accommodate Stanton 2. These include the following: cooling water storage pond, coal handling and storage areas, two potable water wells, wastewater treatment systems and a landfill for disposable wastes and flue gas sulfur sludge. Development of the site for Stanton 1 and its associated facilities directly affected approximately 960 acres. The construction of the Stanton 2 power block will affect approximately nine additional acres which were originally graded and prepared during Stanton 1 construction. The proposed Unit 2 is a 465 megawatt gross (440 megawatt net) coal- fueled, steam electric generating plant which is intended by OUC to be virtually identical to the existing Unit 1. New plant facilities to be constructed with Unit 2 include electrostatic precipitators, sulfur-dioxide removal equipment, a chimney and a cooling tower. Unit 2 will have a Babcock and Wilcox natural circulation steam generator with a maximum continuous rating of 3,305,000 lb. hr. of steam at 2,640 psig and 1005/1005 degree F. The unit will have a Westinghouse Turbine Generator with a 516,200 KVA generator nameplate rating. The boiler will be equipped with low NOx burners. The unit will have an electrostatic precipitator and wet limestone scrubber, consisting of two scrubber modules and one spare module. Treated sewage effluent provided by Orange County's Easterly Subregional Wastewater Treatment Plant will be used for cooling water. No cooling water or wastewater will be discharged from the Stanton site. A natural draft cooling tower will be used for cooling and evaporation of water. New linear facilities to be constructed for Unit 2 consist of a 14- mile 230 kV transmission line (which includes a new unpaved access road) and a new 1.4-mile alternate access road. The existing certified transmission line corridor, which is 220 feet wide, extends approximately 32 miles east and west from a point one-fourth mile north of the SEC site boundary. This corridor contains two sets of transmission lines and structures which connect Unit 1 to OUC's Indian River Power Plant, near Titusville, Florida, and to OUC's Pershing Substation located at Orlando, Florida. One set of lines comprises two 115 kV lines on wooden structures, while the other set is a 230 kV line on steel structures. In order to integrate the power generated by Unit 2 into OUC's transmission system, a new 230 kV transmission line is required. This proposed Stanton-Mud Lake 230 kV transmission line will originate at the existing Stanton Energy Center 230 kV Substation and will interconnect with the existing OUC Transmission Line 7-0615 after its relocation near Mud Lake. The new Stanton- Mud Lake Transmission Line, approximately 14.0 miles in length, is to be constructed within OUC's existing OUC coal-haul railroad corridor, which runs from the Stanton Energy Center to its interconnection with existing transmission line 7-0615. This corridor, which varies in width along its route, from 260 feet to 400 feet, was certified along with Unit 1 in 1982. The 1.4-mile alternate access road will be paved. It will provide a second access to the Stanton site during construction. It will also provide access from the Bee Line Expressway for OUC personnel, and for fire, ambulance or other emergency vehicles. Approximately 60 OUC employees will use the alternate access road on a daily basis. The daily use of this alternate access road will increase during plant outages. Secondary access to the SEC site was previously provided by a road across the adjacent Orange County landfill during the construction of Unit 1. However, expansion of the landfill has resulted in this particular road not being available for Unit 2. Stanton's solid waste management and disposal area was placed along the western boundary of the SEC site because existing upland surface elevations allowed the use of the area as a source of fill material and because an existing sanitary landfill was located on adjacent property to the west. The railroad track loop for coal trains is placed along the south side of the complex because the railroad spur from Orlando approaches the site from the south. All coal is received by rail. Rail service to the site is provided by the CSX railroad system from its main line connecting Jacksonville to Orlando and Tampa. A rail spur branches from the CSX main line at a point about three miles south of Taft and runs easterly, skirting the south boundary of Orlando International Airport and associated residential-commercial development. The spur turns due north just before it crosses the Bee Line Expressway, enters the SEC site and terminates in the site's rail loop, utilized for unloading coal. The headwaters of the Hart, Cowpen, Green and Turkey Creek tributaries of the Econlockhatchee River are located on the eastern part of the site which includes the power block, transmission line and associated proposed access roads. The location and arrangement of the Unit 2 power block does not encroach upon these tributaries. Wetlands on site consist of both isolated wetlands and those connected to other wetland systems or bodies of water. No wetlands will be cleared for the construction of the Unit 2 power block. Colonies of the endangered red-cockaded woodpecker (RCW) inhabit portions of the SEC site. When Unit 1 was built there were 63 RCW cavity trees on site, of which five had to be removed for construction. One of these was an active cavity tree. No existing cavity trees will be removed for construction of Unit 2. The approximately 2000 undeveloped acres of the site are being managed currently by OUC, pursuant to condition number XXXI of the site certification to provide foraging habitat for red-cockaded woodpeckers. The construction of Unit 2 should not have any significant adverse impact upon red- cockaded woodpeckers or their habitat on the Stanton site. Land use planning considerations. Originally, the site, including the corridor certified for railroad use, consisted predominantly of sandy areas of little topographical relief, supporting native forest vegetation or improved pasture and pine forest. These terrain conditions are referred to as flatwoods. Prior to OUC's acquisition of the site, it was logged and used for the grazing of livestock. There are scattered wooded and wet areas on the site. The east half of Sections 13 and 14 and the northeast quarter of Section 23 were under lease for hunting purposes. There were no residences on the site. The site is located four and three-fourths miles south of Highway 50 and one mile north of Bee Line Highway in eastern Orange County, Florida. The Econlockhatchee River is about three-fourths mile east of the northeast corner of the site boundary; four tributaries cross the site. The Orange County landfill, or solid waste disposal facility, is adjacent to the site along the west boundary. There are no incorporated areas within five miles of the plant. The community of Bithlo, at the periphery of a five-mile radius, was incorporated from about 1895 to 1977. In 1977, the incorporation was dissolved and the area reverted as part of unincorporated Orange County, which now determines zoning and provides services for the area. Some residential development has occurred north and east of the site. Existing development in the Bithlo region begins about three and one-half miles north-northeast of the plant. To the south of the plant, near the Bee Line Expressway, International Corporate Park is attempting to develop an office/industrial complex. A state prison is located south of the site immediately north of the Bee Line and east of the railroad spur. Some zoning of the plant site and area within a five-mile radius of the plant is classified as "A-2," which is defined as a Ranch and Farmland Rural District with a minimum one-half acre lot size. Exceptions are the Bithlo area northeast of the plant and the proposed development area northwest of the plant. The Bithlo and Cape Orlando areas are predominantly classified at "R-1A," which is defined as a Single Family Residential District with a minimum 7500 square feet lot size. A portion of the Cape Orlando area is zoned "R-1AA," which is Single Family Residential with 10,000 square feet lot size. The area of proposed development to the northwest of the plant is classified as "P-D," which is defined as a Planned Development District. Citrus groves occur between the four and five mile radii to the northeast, southeast, and northwest of the plant site. No citrus groves are located within four miles of the plant location. There are no prime or unique farmlands, as identified by the U.S. Department of Agriculture Soil Conservation Service, within five miles of the plant site. There are no state or federally owned lands within five miles of the plant site. Water resources in the site vicinity (five mile radius) which could be affected include four tributaries of the Econlockhatchee River, isolated wetlands and the surficial and Floridan aquifer. These surface water resources are east and west of the developed portions of the site, respectively, while the surficial and Floridan aquifers underlie all of Orange County. The Floridan aquifer will supply plant service and potable water, and the Orange County Easterly Subregional Wastewater Treatment Facility supplies cooling tower make- up water. No municipal water supply or wastewater facilities are located on- site or are proposed. No natural lakes are on-site or within the five-mile site vicinity. Numerous small lakes to the west and south of the site are used for recreation and irrigation water supply. The cooling water reservoir occupying 93 acres was constructed on site to serve the existing and proposed units. Proximity to and impacts on transportation system. One alternate access road for vehicular access to the site will be constructed. This alternate access road will extend southward for 1.4 miles along the rail spur to the Bee Line Expressway. The existing access to the site is by Alafaya Trail, a two lane road which ends at the existing plant site. This road was constructed contemporaneously with Stanton 1 and was subsequently conveyed to Orange County. The maximum traffic generated by Stanton 2 will occur during a period in 1995 when up to an estimated 983 construction workers will be employed on site. Most of these construction workers will travel eastward from Orlando to work during the morning, with the reverse being true in the evening hours. There will be no substantial adverse effects on traffic congestion as a result of construction or operation of Stanton Unit 2, except at some intersection movements during construction. Traffic would use the East-West Expressway to bypass the more congested State Road 50, therefore not adding substantially to existing conditions at the State Road 50 and Alafaya Trail intersection. During construction, truck traffic to the plant will be scattered throughout the day and will not pose major problems other than some added wear and tear on roadways. However, the substantial portion of heavy equipment and material needed for Unit 2 is expected to arrive by rail, entering the plant site via the existing rail spur. Unit 2 is expected to employ only 85 additional personnel spread between three shifts. These employees will have minimal impact upon the transportation system during Unit 2 operation. Soil and foundation conditions. The soil and foundation conditions at the Stanton Energy Center Site were described in the original site certification application. There have been no significant changes in these conditions since the site certification. There will be no impact upon or changes to these conditions or factors as a result of the construction and operation of Stanton Unit 2. The soils underlying Unit 2 and its associated facilities have sufficient strength to support Unit 2 and its associated facilities with conventional foundation systems. The foundation systems will have no detrimental impact on the environment on site. The strata beneath the site to a depth of 209 feet are divided into five stratigraphic layers: a surficial sand layer, an intermediate cohesive layer, a lower sand layer, a lower cohesive layer and limestone bedrock. The soil and foundation conditions were extensively described in the original site certification application. These conditions are suitable for the construction and operation of Stanton Unit 2. Impact on archaeological sites and historic preservation areas. There are no recorded historic, scenic, cultural or natural landmarks located on the plant site. The National Registry of Natural Landmarks does not include any sites for Orange County, Florida. An archaeological and historic survey was conducted on accessible portions of the Stanton Energy Center site. The site survey was conducted by personnel from the Florida Secretary of State, Division of Archives, History and Records Management. Four sites were found during the survey. Three were prehistoric archaeological sites and one was a historic hunting lodge from the early 20th century. This lodge is located just off the site near the southwest corner of the property line. The Division of Archives, History and Records Management concluded that the sites did not represent significant archaeological or historical resources. No known landmarks or scenic areas will be affected by the proposed transmission line. During Stanton 1 construction, the railroad spur was realigned to miss a historical site that would have required salvaging. There are no historically, culturally or archaeologically significant areas within or along the new transmission line right-of-way that will be affected. Although archaeological site #8-OR-2208 is located along the new transmission line right-of-way, as first identified in the 1989 Lake Hart DRI review, the upper 30 cm. of soil in the area had previously been disturbed. Since the transmission line will span the 100 meter site, this project will have no impact on that site. Impacts to wetland and riparian habitat regulation zone resources. Installation of the proposed transmission line corridor and access roads will require clearing and filling of wetlands. Impacts to these wetlands are regulated by DER, SFWMD and SJRWMD. Those portions of the site which are located in the SJRWMD jurisdiction lie within a regulatory basin known as the Econlockhatchee River Hydrologic Basin (Econ Basin). Within the Econ Basin is a special area known as the Riparian Habitat Regulation Zone (RHRZ), regulated to provide additional habitat protection for certain contiguous wetlands and uplands. Of the total acres of wetland to be cleared, 13.19 acres are DER jurisdictional wetlands and 21.18 acres are regulated as isolated or connected by the SFWMD. Of the total wetland acres to be filled during construction of the transmission line and access roads, fill impacts include 4.12 acres of DER jurisdictional wetlands and 1.87 acres of SFWMD wetlands. The SJRWMD and SFWMD wetland acreage totals include the DER wetland acreages. As a result of construction of the transmission line and access roads, approximately a total of 8.9 acres of SJRWMD wetlands, and 6.6 acres of uplands within the Riparian Habitat Regulation Zone and 1.1 acre of isolated SJRWMD wetlands will be impacted. Construction of the access roads will result in the filling of 2.7 acres of herbaceous wetlands, and 0.1 acre of forested wetlands, and 0.9 acre of an isolated wetland. Approximately 0.1 acre of forested and 0.1 acre of herbaceous uplands within the RHRZ will be filled. Clearing impacts associated with the transmission line will result in the loss of 5.5 acres of forested wetlands and 6.4 acres of uplands within the RHRZ and 0.2 of an acre of isolated SJRWMD wetland. OUC's mitigation plan, as approved by SJRWMD, provides 67.75 acres of wetlands mitigation (compared to SJRWMD jurisdiction impacts of 4.3 acres filled and 5.7 acres cleared) and 81.95 acres of upland mitigation, including 32.55 acres of RHRZ (compared to SJRWMD jurisdiction RHRZ uplands impact of 6.6 acres). Surface water management considerations. The surface water management system and stormwater management system (the system) which OUC proposes to construct and operate includes the Unit 2 power block facilities, transmission line, structure pads and support structures, unpaved access road and paved alternate access road. Surface and stormwater runoff from the power block facility will be conveyed by new ditches and piping systems connecting to existing drainage systems to the Recycle Basin and Make-up Water Supply Storage Pond which is part of the power block facilities. The basin and pond are designed to retain runoff from the ultimate build-out (four units) of the power block area. The transmission line will be maintained through the use of the unpaved access road and the paved alternate access road. The unpaved access road consists solely of intermittent fill segments. No excavation or filling will occur for the unpaved access road in upland areas; however, fill will be placed in wetland areas which exist in the proposed unpaved access road alignment. These areas of fill will be contained with erosion and sediment control practices during construction and stabilized with vegetation upon final grading so as to prevent erosion and sediment transport into the Econlockhatchee RHRZ. The unpaved access road will allow passage of maintenance vehicles during normal climatic conditions for maintenance and repair of the transmission line and structures; maintenance is expected to occur approximately twice per year. Due primarily to its infrequent use and low impervious nature, the operation of this unpaved, stabilized access road is not expected to be a concern regarding stormwater pollution or to increase peak runoff rates. Placement of fill will occur for the length of the proposed paved alternate access road. Runoff from this road will be directed to proposed swales with ditch blocks and overflow structures. The proposed system meets SJRWMD's peak discharge criteria because plans and calculations demonstrate that: Runoff from the Unit 2 power block is directed to an adequately sized existing facility which attenuates peak discharge from the 25-year and 2.3-year, 24-hour regulatory storm events; The transmission line with its unpaved access road has a very low impervious nature; therefore, only an insignificant increase in runoff is expected; and Runoff from the paved alternate access road will be directed to the proposed roadside swale system which will attenuate peak discharge from the SJRWMD regulatory storm events. The proposed system meets SJRWMD's post-development volume criterion because there is no discharge from the proposed system to a landlocked basin. The proposed system meets the floodway conveyance and floodplain storage criteria of SJRWMD because plans and calculations show that: Existing culverts under the railroad track bed will be extended underneath both access roads and an additional bridge adjacent to the existing bridge will be constructed, such that floodway conveyance capabilities will not be impaired. The proposed extended culverts and bridge will be the same sizes as the existing culverts and bridges; and Necessary compensating storage for fill placed within the 100-year floodplain due to construction of the unpaved access road south of the Bee Line Expressway will be provided by excavating uplands adjacent to the floodplain. The proposed system will not decrease the flows of adjacent streams, impoundments or other watercourses so as to cause adverse impacts because: The applicants propose no new impoundments which might impair low flow discharges; and The applicants propose no deep excavations which might impair base flow. Anticipated construction dewatering will be temporary and will not unacceptably reduce water tables. The proposed system meets the SJRWMD's water quality criteria and standards because plans and calculations demonstrate that: Runoff from the Unit 2 power block will be directed to an adequately designed retention facility sized to treat a volume in excess of 1/2 inch of runoff from the contributing site; The transmission line with its unpaved access road will be stabilized, has a low impervious nature and will be used only to access the transmission line and poles. The operation of this road is not expected to increase pollutant loading to receiving waters; therefore, no additional stormwater management controls are proposed since they are not needed and would only result in additional impact to the RHRZ adjacent to the proposed road; Runoff from the paved alternate access road will be treated in roadside swales designed to provide storage and recovery of the required pollution abatement volume; and Adequate temporary and permanent erosion and sediment control measures will be implemented to protect the quality of receiving waters. The proposed system is a gravity flow system. It has no high maintenance pumps or filter drain systems which can be difficult to operate and maintain. The system will be easily maintained through mowing, as necessary, and through inspection of culverts to ensure no obstruction at least twice per month from June through October and once per month from November through May. There are no Works of the District (SJRWMD) in the vicinity of the plant site, proposed transmission line or proposed roads. There have been no minimum flows or levels yet established in the SJRWMD pursuant to Section 373.042, Florida Statutes. The area of influence of any dewatering associated with the proposed system will not extend to any area where the surficial aquifer is used by others. The operation of the proposed system will not induce saltwater intrusion. The proposed system has been designed to provide attenuation of peak runoff rates, to maintain floodway conveyance and floodplain storage, and to provide treatment of the required pollution abatement volume. No damage to property of the public is likely to be caused by operation of the system. Plant communities. Plant communities at the SEC site at the time of the original site certification application were described in that certification application. The plant communities existing on site are typical of those in the region, predominated by nearly level flatwoods with scattered wetlands and low ridges on the western portion and in the center of the already certified site. Construction and operation of Unit 2 will not affect any endangered or threatened plant species. No additional protected state listed species pursuant to 581.185(5)(a), Florida Statutes, have been identified on site within the plan proposed for alteration for Unit 2. Spoonflower (Peltandra sagittifolia), a listed species, was observed in a hardwood bay stand in summer 1981; however, this stand is not proposed for development as a result of the construction of Stanton Unit 2. Animal communities. The animal species found on or utilizing the SEC site were described in the original site certification application. The red-cockaded woodpeckers are restricted primarily to the scrub oak and pine flatwoods habitats. However, they are known to also utilize the wetlands on site as foraging habitat. Habitat improvements to the longleaf pine flatwoods have resulted from the Habitat Management Plan which has been implemented since construction of Unit 1. The distribution of animal communities on site reflects the variety of site conditions. Primarily upland species may utilize a variety of habitat types. The cypress strand wetlands on site provide habitat requirements for a wide array of wildlife species. Animal species found on the Stanton site include game animals and resident fur-producing species. Common small game species of wildlife consist of bobwhite quail, mourning dove, cottontail rabbit, marsh rabbit and gray squirrel. Populations of white-tailed deer and feral swine are present in much of the area and some adjoining lands. The land seasonally attracts a few migratory species. A wide selection of fur-bearing mammal species occur on the site. The endangered wood stork (Mycteria americana), the only American representative of the stork family, is a large white bird locally common in southern swamps, freshwater marshes and ponds. Its primary foods are fish, frog, young alligators and other aquatic animals. Wood storks have been observed on site. Red-cockaded woodpeckers (Picoides borealis) are characterized as inhabiting mature, open pine forest. Several trees on site have nest cavities of the red-cockaded woodpeckers. Prior to construction of Unit 1, surveys of the Stanton site revealed a total of 45 active cavity trees and 35 red-cockaded woodpeckers in the vicinity of the proposed project. Once the presence of the birds was known, the plant site layout was revised to preserve as many cavity trees and as much foraging habitat as possible, although two clans left the area following the construction of Unit 1. Nine clans occurred on the site in 1981 and six clans now live on the site, with others located nearby. One active cavity tree was to be removed for Unit 1 development. No other active trees are destined to be removed for ultimate site development. A management/study plan was developed for the purpose of minimizing and assessing impacts on woodpeckers. OUC has implemented the management plan for the red-cockaded woodpecker. The threatened Florida scrub jay (Aphelocoma c. cocrulescens) is characteristic of oak scrub communities and is confined mainly to such habitats. The range of this subspecies is restricted to peninsular Florida, primarily along the east coast with scattered populations in the central portion and western coastline of Florida. The Florida scrub jay has been observed on the southwest portion of the property. No activities are proposed in this area and no impact to this species is anticipated. Scrub habitat found along the southern portion of the transmission corridor south of the Bee Line was surveyed and no scrub jays were found. The threatened eastern indigo snake (Drymarchon corais) occurs in peninsular Florida, in a few widely scattered areas of the Georgia Coastal Plain, and in parts of the Florida panhandle. This snake occupies a wide variety of habitat types. Indigo snakes have been observed on site. The gopher tortoise (Gopherus polyphemus), a species of special concern, is commonly encountered in central Florida. On-site populations of gopher tortoise are centered mainly on the higher elevation in the western and south-central portion of the property. No impacts to the gopher tortoise are anticipated as a result of the construction, including the clearing, of the transmission line corridor. No tortoises occur within the alternate access road corridor. The proposed transmission line corridor follows the existing railroad corridor from the site to the existing OUC transmission line 7-0615 near Mud Lake southeast of Orlando International Airport. The corridor was surveyed in 1982 and in the summer of 1991 for the presence of threatened and endangered species. One sandhill crane nest was observed within the corridor. Construction activities in the vicinity of the known sandhill crane nest will be arranged and scheduled to avoid any adverse impacts to this nest. Air Quality Issues. The only new air emission point for Unit 2 will be the 550-foot chimney. This source was previously evaluated with regard to its effect on air quality and is included as an approved source in a Prevention of Significant Deterioration (PSD) permit issued by the U.S. Environmental Protection Agency for the project (Units 1 and 2) during the initial permitting process that commenced in 1981. However, because combustion parameters and emissions rates for Unit 2 have been revised, an additional review has verified that air quality impacts remain below all applicable PSD increments and ambient air quality standards. The air quality impact analysis required by the PSD regulations include: an analysis of existing air quality; a PSD increment analysis (NOx, PM and SO2 only); an Ambient Air Quality Standards (AAQS) analysis; an analysis of impacts on soils, vegeta- tion, and visibility and of growth-related air quality impacts; a "Good Engineering Practice" (GEP) stack height determination. The analysis of existing air quality generally relies on pre- construction monitoring data collected with EPA-approved methods. The AAQS analysis depends on the air quality dispersion modeling carried out in accordance with EPA guidelines. Based on these required analyses, there is reasonable assurance that the proposed facility, as subject to the applicable conditions of certification, will not cause or contribute to violation of any PSD increment or ambient air quality standard. The PSD increment represents the amount that new sources in an area may increase ambient ground-level concentrations of a given pollutant. The purpose of these increment limitations is to prevent areas which currently have good air quality from being significantly degraded. If an area currently has ambient concentrations near the ambient air quality standards for NO2, PM or SO2, the increased emissions from new sources must not cause or contribute to a violation of the ambient air quality standard and the allowed increments would be reduced to prevent such exceedances. The Stanton site is located in a Class II area and must meet the increments defined for this class. The nearest Class I area (Chassahowitzka National Wilderness Area) is about 130 kilometers west of the site. Stanton is not expected to influence this Class I area. All of the emissions of NO2, PM and SO2 at Stanton will consume Class II increments. No other sources near Stanton have been identified which would be expected to significantly affect increment consumption in the area of the Stanton Site. Air modeling results indicate that Stanton does not contribute to a violation of the PSD Class II increments. Of the pollutants subject to review, only CO, NO2, PM, SO2 and ozone have AAQS with which to compare. In general, the total ambient air quality impact for each pollutant is obtained by adding the estimated background concentration to the maximum predicted modeled concentrations of the proposed facility and other modeled background sources. Ozone is a photochemically formed pollutant resulting mainly from motor vehicle emissions. The regulated pollutant for ozone formation is volatile organic compounds (VOC) which cannot be modeled for source-specific applications. Ozone, by way of VOC's, is regulated through BACT. Given existing air quality in the area of the proposed facility, emissions from Stanton are not expected to cause or contribute to a violation of any AAQS. Impacts on soils, vegetation, visibility and growth-related air quality impacts are not expected to change from the original OUC's proposal. This project does not change the original GEP stack height. BACT Determination Considerations. DER's BACT determination is 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. In addition, Department BACT regulations require the Department to give consideration to any Environmental Protection Agency determination of Best Available Control Technology pursuant to Section 169, and any emission limitation contained in 40 CFR Part 60 (Standards of Performance for New Stationary Sources) or 40 CFR Part 61 (National Emission Standards for Hazardous Air Pollutants), and to: All scientific, engineering and technical material and other information available to the Department; The emission limiting standards or BACT determinations of any other state; and The social and economic impact of the application of such technology. The EPA currently stresses that BACT should be determined using the "top-down" approach. The first step in this approach is to determine for the emission source in question the most stringent control available for a similar or identical source or source category. If it is shown that this level of control is technically or economically infeasible for the source in question, the next most stringent level of control is determined and similarly evaluated. This process continues until the BACT level under consideration cannot be eliminated by any substantial or unique technical, environmental or economic objections. The air pollutant emissions from coal-fired power plants can be grouped into categories based upon what control equipment and techniques are available to control emissions from these facilities. Using this approach, the emissions can be classified as follows: Combustion Products (e.g., Particulates). Controlled generally by good combustion of clean fuels and baghouse filters or electrostatic precipitators (ESP); Products of Incomplete Combustion (e.g., CO). Controlled generally by proper combustion techniques; and Acid Gases (e.g., NOx). Controlled generally by gaseous control devices. Grouping the pollutants in this manner facilitates the BACT analysis because it enables the equipment available to control the type or group of pollutants emitted and the corresponding energy, economic and environmental impacts to be examined on a common basis. Although all of the pollutants addressed in the BACT analysis may be subject to a specific emission limiting standard as a result of PSD review, the control of "nonregulated" (noncriteria) air pollutants is considered in imposing a more stringent BACT limit on a "regulated" (criteria) pollutant (i.e., particulates, sulfur dioxide, fluorides, sulfuric acid mist, etc.), if a reduction in "nonregulated" air pollutants can be directly attributed to the control device selected as BACT for the abatement of the "regulated" pollutants. Unit 2's major combustion equipment will consist of a pulverized coal (PC) boiler. The PC boiler will be started on No. 6 fuel oil and use No. 6 fuel oil for flame stabilization during low load operation. The PC boiler is rated at 3,305 MMBTU/hr. and has a maximum heat input of 4,286 MMBTU/hr. OUC has indicated the maximum annual tonnage of regulated air pollutants expected to be emitted from the facility based in 100 percent capacity to be as follows: PSD Significant Emissions Potential Emissions (tons/yr.) PC Boiler (tons/yr.) NOx 5943 40 SO2 6008 40 PM 375 25 PM10 375 15 CO 2816 100 VOC 282 40 H2SO4 653 7 BE 0.039 0.0004 Hg 0.041 0.1 Pb 0.701 0.6 Fluorides 1.58 3 Florida Administrative Code Rule 17-2.500(5)(c) requires a BACT review for all regulated pollutants emitted in an amount equal to or greater than the significant emission rates listed in the previous table. The BACT requirements are intended to ensure that a proposed facility will incorporate air pollution control systems that reflect the latest techniques (including fuel cleaning or treatment or innovative fuel combustion) used in the particular industry. An evaluation of the air pollution control techniques and systems is required, including a consideration for energy requirements, environmental and economic impact. The appropriate best available control technology (BACT) emission rates for criteria pollutants for Stanton Unit 2 are shown on the following table: Sulfur Dioxide, lb/MBtu 30-day rolling average 0.25 24-hour emission rate 0.67 3-hour emission rate 0.85 Nitrogen Oxides lb/MBtu 30-day rolling average 0.17 Particulate Matter, lb/MBtu TSP 0.02 PM10 0.02 VOC, lb/MBtu 0.015 Carbon Monoxide, lb/MBtu 0.15 The BACT emission rates for non-criteria pollutants are shown on the following table: H2SO4, lb/MBtu 3.3 x 10-2 Be, lb/MBtu 5.2 x 10-6 Hg, lb/MBtu 1.1 x 10-5 Pb, lb/MBtu 1.5 x 10-4 Fluoride, lb/MBtu 4.2 x 10-4 Air emission considerations. The cause-effect-control relationship concerning air and pollutant emissions and the entire phenomenon of acid deposition or "acid rain" is extremely complex. Stanton Unit 2 will have less adverse impact upon air quality than other coal fueled units in the state which do not employ sulfur- dioxide (SO2) and nitrogen-oxides (NOx) emission controls that are as stringent as those required for Stanton Unit 2 to meet BACT emission limits. Stanton Unit 2 will utilize a flue-gas desulfurization system which includes wet limestone scrubber for control of sulfur dioxide emissions. Use of scrubbers and NOx control technologies represent practical and effective means of minimizing the contribution from Unit 2 to rain fall acidification. Given the location of the plant and the advanced air emission controls that will be utilized at Stanton Unit 2, this plant will not significantly contribute to acid rain or acid deposition in Florida. Potential adverse health effects of the criteria air pollutants expected to be emitted by Unit 2 have been analyzed utilizing the total expected concentrations of sulfur dioxide, nitrogen oxides, particulates and carbon monoxide. These concentrations were determined by adding together the maximum predicted impacts for both Stanton plants with measured, historical background concentrations. The resulting air levels are all below the Florida Ambient Air Quality Standard values and are not expected to adversely affect human health. The maximum levels of SO2 in the ambient air are predicted to be 17.2, 106.8, and 642.4 ug/m3 for annual, 24-hour and 3-hour averaging periods, respectively. These are total expected concentrations determined by adding the modeled Stanton impacts with the existing background concentrations. These levels are below the Florida AAQS of 60, 260, and 1,300 ug/m3 for annual, 24- hour and 3-hour values. These concentrations are also below levels at which any clinically evident health effects, such as shortness of breath or wheezing, have been demonstrated in laboratory tests in normal individuals or in sensitive individuals, including asthmatics, during exercise. The annual and 24-hour concentrations are less than those levels shown to have deleterious health effects during longer term epidemiology studies that are relevant to those averaging period. The annual and 24-hour total expected PM10 concentrations are 42 and 128 ug/m3. These levels are below the Florida AAQS values for annual and 24- hour averaging periods of 50 and 150 ug/m3. The annual total expected PM10 concentration of 42 ug/m3 is below the level associated with health effects in epidemiology studies comparing different annual particulate levels in different cities. The 24-hour total expected particulate level of 128.0 ug/m3 is below the level resulting in clinically significant symptoms, such as shortness of breath or wheezing in asthmatics during exercise. The 24-hour level of 128.0 ug/m3 is also below levels at which most studies on sensitive asthmatics have found changes in laboratory measures of lung function. 90 The annual total expected concentration of NOx is 26.0 ug/m3, which is well below the Florida AAQS of 100 ug/m3. The maximum predicted impact only contributes 2 ug/m3, and background contributes 24 ug/m3 to this value. This total expected concentration has not been found to produce health effects in epidemiology studies of long term NO2 exposures in children. A level of 26 ug/m3 is also well below the lowest dose at which minimal effects have been found in short term studies in sensitive subjects with asthma, chronic bronchitis and chronic obstructive pulmonary disease (emphysema). The total expected concentrations of carbon monoxide are 31.0 and 106.4 ug/m3 for eight- and one-hour average periods, respectively, and are well below the Florida AAQS of 10,000 and 40,000 ug/m3. These values are also well below the level expected to cause any significant health effects. Carbon monoxide causes the production of carboxyhemoglobin, which is normally in the blood at 0.5% as a result of metabolism. Exposure to these maximum expected levels of CO would yield an insignificant increase in the normally present amount of carboxyhemoglobin. Certain trace elements exist in coal which can be released when the coal is burned. Those trace elements that remain in particulate form will be effectively removed from the flue gas by the electrostatic precipitator. Those trace elements that are volatilized in the boiler will be largely removed by the cooling of the flue gas in the scrubber and the subsequent of these elements after they have condensed on the fly ash particles. Other toxic air emissions are primarily prevented from forming by the complete combustion of the fuel. Water use considerations. Water used at the Stanton Energy Center will come from three sources: the Orange County Easterly Subregional Wastewater Treatment Plant, wells and rain. The majority of the water will be used as make-up to the cooling towers. Cooling tower make-up will be primarily treated sewage effluent, up to 10.19 million gallons per day (MGD) for both units from the Orange County treatment plant, plus collected reuse water, site runoff and direct precipitation on the make-up water supply storage pond. A maximum of 2 MGD of well water from the Floridan aquifer is used for potable water, general plant uses and steam cycle make-up. Yearly use of the aquifer may not exceed 321 million gallons. The well water comes from two 850 gallons per minute (gpm) capacity on-site wells that pump from the Floridan aquifer. The well water is pumped directly to a solids contact unit for treatment by aeration, lime softening, filtration and chlorination. Unit 1 operations require withdrawal of 305 gpm from two existing Floridan aquifer wells. The construction of Unit 2 will require the pumping of those wells at the rate of 611 gpm for a daily average consumption of 879,840 gallons. The proposed consumptive uses represent quantities of water which are necessary for economic and efficient utilization because: The water will be used for household (or potable) dewatering and power production purposes, which are recognized classes of water use; Under current technology and economics, the proposed consumptive use amounts are reasonable for the purposes intended; and The plant, a "zero discharge" facility, employs many current water- saving technologies, in that once water enters the facility, it is recirculated and recycled in a number of processes to reduce quantities used; and the water is needed in order to meet electric power demands. The proposed consumptive uses are for a purpose that is both reasonable and consistent with the public interest because: The water will be put to a variety of purposes, all of which fit into accepted classes of use; Lower quality water in the form of treated sewage effluent, reuse water and stormwater will be employed for cooling purposes; and Water will be supplied to generate needed power. The known characteristics of the aquifer, the results of the 48-hour constant rate discharge pump test performed on each of the two existing Floridan aquifer wells with a withdrawal rate greater than the proposed consumptive use, as well as the fact that these wells have been supplying water for years without experiencing production problems, establish that the Floridan aquifer here is capable of producing the proposed consumptive use amounts. The projected effluent quantities from the Orange County Easterly Subregional Wastewater Treatment Plant, stormwater runoff and on-site reuse water are sufficient to supply the facility's cooling water needs. The proposed consumptive uses of water will not seriously harm the sources of the water and will not cause significant saline water intrusion or encroachment, will not result in any unacceptable amount of economic or environmental harm and will not interfere with any presently existing legal use of water because: The drawdown effects due to the proposed consumptive use withdrawals on the Floridan aquifer were predicted utilizing the U.S. Geological Survey MODFLOW model. The proposed reduction in the surficial aquifer due to construction dewatering on the plant site was also analyzed. These analyses of the proposed groundwater consumptive use withdrawals showed limited drawdowns and that the radius of influence of these withdrawals will not extend beyond the boundaries of the facility. Based on currently available data, the proposed consumptive uses are not predicted to cause interference with other water users or result in other adverse economic impacts; and There is no known water quality or saline water intrusion or encroachment problem in the aquifers on-site. Based on current water quality data and the above-referenced hydrologic modeling, the proposed consumptive uses are not predicted to cause a water quality or saline water intrusion problem. OUC has submitted and will implement a water conservation plan. The Stanton facility now utilizes currently available conservation, recycling and reuse measures which are economically, environmentally and technologically feasible. OUC will utilize available treated sewage effluent in an average annual allocated amount of 10.19 million gallons/day for cooling tower make-up water needed for Stanton Units 1 and 2 from the Orange County Easterly Wastewater Treatment Facility. Effluent from the on-site treatment facility will also be used for this cooling purpose. The proposed consumptive uses of water utilize the lowest acceptable quality water source which is currently available and currently economically, environmentally and technologically feasible. No flooding damage will result from or be contributed to by the proposed consumptive uses because no wastewater from the plant use or dewatering will be discharged from the site. The proposed consumptive uses will cause no serious harm to any receiving body of water. The applicants will monitor withdrawals of water through metering devices. The SJRWMD Governing Board has not reserved water from use pursuant to Section 373.223(3), Florida Statutes. The SJRWMD and OUC entered into a Stipulation agreeing, with one exception, to the imposition of conditions of certification that will ensure that OUC's water withdrawal will be in compliance with Chapter 373, Florida Statutes, and Chapter 40C-2 F.A.C. SJRWMD proposed the following condition which is opposed by OUC: Condition 7: During the tenth year following issuance of this certification order, OUC, et al., shall submit a report to SJRWMD and DER demonstrating compliance with these conditions of certification, Chapter 373, Florida Statutes, and the rules of SJRWMD and DER, applicable to the consumptive use of water. Compliance shall be demonstrated with rules and statutory provisions in effect at that time. SJRWMD shall evaluate the report and notify DER in a report of any issues regarding compliance with this certification and applicable rules and statutory provisions, including whether the consumptive use of water complies with those provisions of Chapter 373, Florida Statutes, and DER's and SJRWMD's rules applicable to consumptive use and whether any conditions of certification must be amended, added, or deleted in order to insure compliance with the referenced rules and statutory provisions. SJRWMD shall respond within 30 days of receipt of OUC, et al.'s report as to whether or not it contains information sufficient to make a determination as to compliance with the referenced rules and statutory provisions. Thereafter, DER shall notify OUC, et al., and SJRWMD as to its determination concerning sufficiency. SJRWMD shall file its report within ninety (90) days after DER's determination that OUC, et al.'s report is sufficient. Section 40C-1.610, Florida Administrative Code, shall apply. An opportunity for hearing pursuant to Section 120.57, Florida Statutes, shall be afforded any party. In any hearing requested pursuant to this condition of certification, the burden of demonstrating compliance shall be on OUC, et al. The continued consumptive use of water for the Stanton Energy Center Unit 2, shall be dependent upon OUC, et al., demonstrating and presenting sufficient data to establish that its consumptive use meets the referenced rules and statutory provisions. The Board hereby delegates to the Secretary the authority to enter final orders regarding this condition in the event an administrative hearing is requested. SJRWMD asserts that its proposed condition is based on the regulatory standards found in Section 6.5.1, Applicants Handbook: Consumptive Uses of Water (A.H.) and Section 373.236, Florida Statutes. SJRWMD believes that the proposed condition 7 is necessary for the following reasons: Section 6.5.1, A.H., sets forth a 10-year duration for consumptive use allocations where the applicant derives 50% or more of their total allocation from reclaimed water or stormwater. Water technology is constantly changing and improving. Water which is no longer needed by the applicant as a result of such changes and improvements could be allocated to other uses. Economic conditions change over time. As water becomes increasingly scarce and the demand for it increases, it is possible that even lower quality waters may be required to be used for this power plant. Knowledge about the water resource is continually improving. Knowledge gained in the future may change SJRWMD's ability to predict and allocate water. In order to allocate the water resource consistently with the public interest, the allocating agency needs to have the capability to require a user to periodically re-establish that its uses are not harming the water source or receiving water, are utilizing the must efficient and water-conserving technology, and are not impacting other users or land uses. The wording of condition 7 and the testimony of Mr. Jeffrey Elledge, Director of the SJRWMD's Department of Resource Management, makes it clear that under the proposed condition, after ten years the burden would be upon OUC to file a report with DER and SJRWMD demonstrating that OUC's continued consumptive use of water is still consistent with the criteria in Chapter 373, Florida Statutes, and the District's rules in effect at that time. The District maintained that a review of the consumptive use of water by OUC after ten years is needed "to reevaluate the use periodically . . . to make sure that they are still efficient and still in the public interest." SJRWMD has issued water allocations and consumptive use permits to approximately 4000 consumptive water users. These allocations include public water supply, agricultural, industrial, and commercial uses. Each allocation has been for a specific duration. Since the passage of the Power Plant Siting Act in 1973, at least thirty power plants have been certified. Of these, only one, Cedar Bay, has had a time limitation on its consumptive water use allocation. Cedar Bay is a private company and it voluntarily accepted a condition of certification similar to condition 7. There is no consumptive use time limitation which was approved through the certification process for Unit 1. The other certified power plants in SJRWMD's jurisdiction do not have time limitations on their consumptive use of water. In fact, other than in Cedar Bay, the issue of duration for a consumptive use allocation has never been raised and contested in any other power plant certification proceeding. Mr. Elledge acknowledged that SJRWMD's interpretation of and intention in condition 7 is that OUC's ten year water allocation would be reviewed, with the burden being on OUC to convince the District and DER that the rule criteria would be met for the duration of the next allocation. If the burden was not satisfied, the allocation for Unit 2 could be totally rescinded. Although the condition uses the term "report" for the documentation which OUC would have to file, in fact the "report" is the procedural equivalent of a permit renewal application. Without the granting of that renewal, OUC would not have the authorization for further water use. The parties have agreed to conditions of certification which adequately protect other current and future water users in the event of water shortages and unforeseen impacts to existing users, adjacent land uses, and water quality. These conditions are adequate to address the nonprocedural requirements and the concerns of SJRWMD which are summarized above in Finding of Fact 107. Solid waste considerations. Solid waste is generated from a number of sources at the Stanton power plant. The largest quantity of solid wastes produced by the operation of the plant is sludge generated by the flue gas desulfurization (FGD) system. Coal combustion ash, in the form of fly ash and bottom ash, is the other major solid waste. Collectively, FGD waste and coal ash are referred to as "high volume solid wastes." Other comparatively small quantities of solid wastes, generated on an infrequent basis by the operation of the plant, include sludge from the sedimentation pond, retention basin, cooling towers and wastewater treatment facilities. Ash is the residue produced by the combustion of coal. It consists of the unburned organic matter and inorganic mineral constituents present in the coal. The quantity and chemical characteristics of ash depend on the coal, boiler operating conditions and air pollution control devices, among others. Two types of ash are produced during combustion - fly ash and bottom ash. Fly ash consists of the finer particles that are entrained in the flue gas stream. Bottom ash is the courser, heavier material that accumulates in the furnace bottom in the form of a loose ash or slag. Approximately 447,000 tons of bottom ash are expected to be generated over the life of the plant. Maximum rate of production of bottom ash is expected to be about 17 tons/hour for each unit. Fly ash and boiler hopper ash will be generated at a maximum rate of about 48,400 tons/year for each unit. Approximately 1.45 million tons of fly ash will be generated over the life of the plant. For the proposed Unit 2 wet limestone FGD scrubber, the sulfur dioxide in the flue gas reacts with the limestone slurry producing a waste which must be removed. The maximum rate of production of FGD sludge for the unit is estimated at about 201,000 tons/year. Total wastes produced over the life of the plant will be approximately 6.03 million tons. Periodic removal of sediments from the sedimentation pond also generates a solid waste. Due to the number of variables involved, such as rainfall frequency and duration, concentration of suspended solids in the influent, etc., quantities are difficult to predict. Frequency of sediment removal is approximately once per year. Solids removed are mainly coal dust and ash. Cooling towers are expected to be drained approximately once per year and the accumulated solids removed. The solids will contain suspended solids from the make-up water and particulates from the atmosphere. Based on ground water monitoring data, the concentrations of dissolved constituents in groundwater from the waste disposal area beyond all site boundaries does not exceed Florida Class I-B water quality standards for the inorganic constituents and does not exceed U.S. EPA secondary drinking water standards within the unconfined Hawthorn and Floridan aquifer systems beyond the site boundary. The construction and operation of Unit 2 will not adversely change these existing conditions beyond the site boundaries. Construction impacts. Site clearing necessary for the construction of Unit 2 power block was done in connection with Unit 1. The Alafaya Trail, which provides access from State Road 50, was paved during construction of Unit 1. No impacts along Alafaya Trail will result from construction of Unit 2. Construction waste materials will be disposed of in accordance with applicable Conditions of Certification, rules and regulations. General waste materials will be disposed of in dumpsters for collection and disposal at the county landfill adjacent to the site or other suitable and approved local landfill areas. Impacts are expected from the construction of the transmission line with an unpaved access road and alternate access road. These include the filling of wetlands and the clearing of uplands and wetlands on the plant site and within the existing certified corridor for the access roads and transmission line. The construction of the existing rail spur from the plant site to the CSX mainline converted land from its original use along its 18-mile length. This corridor will be used for the new 230 kV transmission line and access roads. Wetland impacts include the filling of wetlands (regulated by SJRWMD, SFWMD and DER) and the clearing of wetlands, 13.19 acres of which are DER jurisdictional. These wetlands vary in quality from cattail (Typha spp.) monocultural areas, swales and ditches adjacent to the existing cooling water reservoir, to cypress domes and mixed hardwood forests. Mitigation for these projected impacts has been proposed by OUC in the form of enhancement of wetlands located on the site through planting of forested wetland species and proposed reestablishment of "natural" hydroperiod to selected wetland stands, proposed creation of herbaceous wetlands and the proposed enhancement of upland buffers and upland habitats through the planting of longleaf pine forests. Mitigation for the projected impacts from the transmission line and the transmission line access road within the South Florida Water Management District (SFWMD) jurisdiction has been proposed by OUC in the form of wetlands creation within the transmission line right-of-way, enhancement of wetlands located on the OUC plant site through the planting of forested wetland species, the reestablishment of "natural" hydroperiod to selected wetland stands, creation of herbaceous wetlands and the enhancement of upland buffers and sensitive upland buffers and sensitive upland habitats through the planting of longleaf pine forests. Neither DER nor the SFWMD has reviewed or approved final construction plans for this proposed mitigation; both agree that the plan is feasible, appropriate in concept and capable of being approved after certification with the submission to DER and SFWMD by OUC of sufficient additional details and plans following certification. The primary construction effects on upland areas will be clearing of some forested areas to accommodate the transmission line installation and construction of the access roads. Following clearing, the land under the transmission line can continue to be used for wildlife habitat or agricultural uses where such uses currently exist. A small segment of an orange grove will be crossed, but no clearing will be done there and fruit production will not be affected. The new transmission facilities should cause little inconvenience to the adjacent landowners since the land may continue to be used as it has in the past. The planned facilities also will not change traffic patterns from those already existing. Right-of-way clearing will affect existing vegetation. Upland habitat provided by trees and other vegetation will be reduced along the six miles of expanded transmission corridor. Of course, the cleared areas will continue to be utilized by some wildlife. Deer, birds and small mammals are often seen in these areas. Growth retardants, chemicals, biocides, sprays, etc., will not be used during construction. If recommended conditions are followed, no significant erosion is anticipated because of the construction of the new transmission line facilities. The construction techniques used will be similar to those utilized previously in Florida to construct transmission facilities. As outlined in the application, construction procedures, including runoff control facilities and practices to avoid contamination of state waters, will be implemented. The construction site is isolated from the general public by appropriate means which include fences and guards. Compliance with OSHA standards and the provisions of Section 440.56, Florida Statutes, should adequately protect construction workers and operating personnel. Comprehensive plan considerations. The Department of Community Affairs concluded as a result of its overall evaluation of the consistency of the Stanton Energy Center Unit 2 with the state comprehensive plan that the power plant was consistent with the state comprehensive plan and should be certified with appropriate conditions of certification. The construction and operation of Stanton Unit 2 will be consistent with the state comprehensive plan (Chapter 187, Florida Statutes), the Orange County Plan and the East Central Florida Regional Policy Plan. Noise impacts. There are no applicable federal, state or local laws, regulations or ordinances that govern the permittable noise levels in the vicinity of the Stanton Energy Center that will be caused by the proposed construction and operation of Stanton Unit 2. Both the State of Florida and the U.S. Environmental Protection Agency have recommended noise guidelines, both of which recommend a 24-hour equivalent noise level of 55 DBA or less in outdoor areas where people spend varying amounts of time. This recommended community noise level should ensure that there is no annoyance or interference with outdoor activities. Because the majority of site clearing and preparation for Stanton Unit 2 was completed during construction of Unit 1, the noise impacts of Unit 2 construction will be lower than the noise impacts caused during construction of Unit 1. The estimated average construction noise impacts for Unit 2 are below the 55 DBA level at the site boundaries. Therefore, the estimated construction noise impacts will not be significant to the closest residential land uses, which are well beyond the Stanton Energy Center site boundaries. The off-site noise impacts from the operation of Unit 2 equipment will result in an increase to the existing ambient noise level of approximately 2 DBA. A 2 DBA increase in noise is not noticeable to the average person. No area outside of the Stanton Energy Center site boundary will have noise impacts that exceed 55 DBA. Therefore, the expected noise impacts resulting from the operation of Stanton Unit 2 will be insignificant. Regional economic impacts. The local Orlando economy (defined as Orange County, Lake County, Osceola County, and Seminole County) will realize significant and positive, direct regional economic benefits due to the construction and operation of Stanton 2. Direct economic benefits realized by the local Orlando economy due to the construction of Unit 2 include approximately 1,863 man-years of employment, $25.1 million in local supply and material purchases, and $91.8 million (1991 dollars) of construction expenditures. Direct annual economic benefits realized by the local Orlando economy due to the operation of Stanton 2 include approximately $7.0 million (1990 dollars) in fixed operation and maintenance (O&M) expenditures and capital addition expenditures, and a Stanton 2 work force of 85 persons. In addition to the direct economic benefits, the local Orlando economy will also realize indirect economic benefits through output, employment and earnings multiplier effects. Total (direct and indirect) Stanton 2 construction economic impacts include approximately 3,878 man-years of employment, $181.6 million (1991 dollars) in earnings and $49.5 million (1991 dollars) in output. Total annual Stanton 2 operational (arising from fixed O&M and capital additions) economic impacts include approximately 263 man-years of employment, $7.7 million (1990 dollars) in earnings, and $9.7 (1990 dollars) in local output.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order granting a supplemental site certification for Unit 2 and the associated facilities of the Curtis H. Stanton Energy Center, subject to the Conditions of Certification contained in Appendix A. RECOMMENDED this 15th day of November, 1991, at Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1991. APPENDIX A TO RECOMMENDED ORDER, CASE NO. 91-1813EPP STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION ORLANDO UTILITIES COMMISSION CURTIS H. STANTON ENERGY CENTER UNIT 2 PA 81-14/SA1 SUPPLEMENTAL CONDITIONS OF CERTIFICATION TABLE OF CONTENTS PART I I/I ENTITLEMENT . . . . . . . . . . . . . . . . . . . . 1 I/II SCOPE OF LICENSE . . . . . . . . . . . . . . . . . . 1 I/III JURISDICTIONAL AGENCIES . . . . . . . . . . . . . . 1 I/IV DEFINITIONS . . . . . . . . . . . . . . . . . . . . 2 I/V TRANSFER OF CERTIFICATION . . . . . . . . . . . . . 2 I/VI SEVERABILITY . . . . . . . . . . . . . . . . . . . . 2 I/VII PROFESSIONAL CERTIFICATION . . . . . . . . . . . . . 3 I/VIII RIGHT OF ENTRY . . . . . . . . . . . . . . . . . . . 3 I/IX DESIGN STANDARDS . . . . . . . . . . . . . . . . . . 3 I/X LIABILITY . . . . . . . . . . . . . . . . . . . . . 3 I/XI PROPERTY RIGHTS . . . . . . . . . . . . . . . . . . 4 I/XII COMPLIANCE . . . . . . . . . . . . . . . . . . . . . 4 I/XIII POST-CERTIFICATION REVIEW . . . . . . . . . . . . . 5 I/XIV COMMENCEMENT OF CONSTRUCTION . . . . . . . . . . . . 6 I/XV COMMENCEMENT OF OPERATION . . . . . . . . . . . . . 6 I/XVI OPERATIONAL CONTINGENCY PLANS . . . . . . . . . . . 6 I/XVII REVOCATION OR SUSPENSION . . . . . . . . . . . . . . 7 I/XVIII CIVIL AND CRIMINAL LIABILITY . . . . . . . . . . . . 7 I/XIX ENFORCEMENT . . . . . . . . . . . . . . . . . . . . 7 I/XX FIVE YEAR REVIEW . . . . . . . . . . . . . . . . . . 7 I/XXI MODIFICATION OF CONDITIONS . . . . . . . . . . . . . 7 PART II II/I AIR . . . . . . . . . . . . . . . . . . . . . . . . 9 II/II WETLANDS RESOURCE MANAGEMENT . . . . . . . . . . . . 17 II/III ELECTRIC AND MAGNETIC FIELDS . . . . . . . . . . . . 19 II/IV OTHER . . . . . . . . . . . . . . . . . . . . . . . 19 PART III III/I WILDLIFE SURVEY . . . . . . . . . . . . . . . . . . 20 III/II NESTING SANDHILL CRANES . . . . . . . . . . . . . . 20 III/III MANAGEMENT PLAN . . . . . . . . . . . . . . . . . . 20 PART IV IV/I LEGAL/ADMINISTRATIVE CONDITIONS . . . . . . . . . . 21 IV/II SURFACE WATER MANAGEMENT CONDITIONS . . . . . . . . 23 IV/III ENVIRONMENTAL CONDITIONS . . . . . . . . . . . . . . 26 PART V V/I WATER SHORTAGES . . . . . . . . . . . . . . . . . . 30 V/II WELL CONSTRUCTION, MODIFICATION, OR ABANDONMENT . . 30 V/III WELL MAINTENANCE . . . . . . . . . . . . . . . . . . 30 V/IV MITIGATION OF WITHDRAWAL IMPACTS ON EXISTING LEGAL USERS . . . . . . . . . . . . . . . . . . . . 30 V/V MITIGATION OF IMPACTS ON ADJACENT LAND USES . . . . 31 V/VI IDENTIFICATION TAGS . . . . . . . . . . . . . . . . 31 V/VII MAXIMUM ANNUAL WITHDRAWALS . . . . . . . . . . . . . 31 V/VIII MAXIMUM DAILY WITHDRAWALS . . . . . . . . . . . . . 31 V/IX LIMITATION ON USE OF WATER . . . . . . . . . . . . . 31 V/X DEWATERING . . . . . . . . . . . . . . . . . . . . . 32 V/XI OFF-SITE DISCHARGES . . . . . . . . . . . . . . . . 32 V/XII DISCHARGES FROM MAKE-UP WATER SUPPLY POND . . . . . 32 V/XIII WELL WATER QUALITY SAMPLING . . . . . . . . . . . . 32 V/XIV WATER TREATMENT PLANT REPORTS . . . . . . . . . . . 33 V/XV WELL WATER FLOW MONITORING . . . . . . . . . . . . . 33 V/XVI CONSERVATION PLAN . . . . . . . . . . . . . . . . . 33 V/XVII WELL WATER FLOW METERS . . . . . . . . . . . . . . . 33 V/XVIII CALIBRATION OF FLOW METERS . . . . . . . . . . . . . 33 V/XIX MAINTENANCE OF FLOW METERS . . . . . . . . . . . . . 33 V/XX DELINEATION OF LIMITS OF CONSTRUCTION . . . . . . . 33 V/XXI BACKGROUND ASSESSMENT PLAN . . . . . . . . . . . . . 34 V/XXII COMPLETION OF BACKGROUND ASSESSMENT . . . . . . . . 34 V/XXIII INITIATION AND COMPLETION OF ENHANCEMENT MITIGATION PLAN . . . . . . . . . . . . . . . . . . .34 V/XXIV CRITERIA FOR SUCCESS OF ENHANCEMENT AND MITIGATION . . . . . . . . . . . . . . . . . . . . . 34 V/XXV MONITORING PLAN FOR ENHANCEMENT AND MITIGATION . . . 34 V/XXVI SURVEY OF ENHANCEMENT AREAS . . . . . . . . . . . . .35 V/XXVII MONITORING REPORTS FOR THE ENHANCEMENT AND MITIGATION AREAS . . . . . . . . . . . . . . . . . . 35 V/XXVIII REVISIONS TO ENHANCEMENT AND MITIGATION . . . . . . 35 V/XXIX EROSION AND SEDIMENT CONTROL DURING CONSTRUCTION . . 36 V/XXX EROSION AND SEDIMENT CONTROL DURING OPERATION . . . 36 V/XXXI INCORPORATION OF MITIGATION PLAN . . . . . . . . . . 36 V/XXXII COMPLETION OF SURFACE WATER MANAGEMENT SYSTEM . . . 36 V/XXXIII RETENTION/DETENTION STORAGE AREAS . . . . . . . . . 36 V/XXXIV ACCESS ROAD AND TRANSMISSION LINE CONSTRUCTION PLANS . . . . . . . . . . . . . . . . . 37 V/XXXV ACCESS ROAD FILL . . . . . . . . . . . . . . . . . . 37 V/XXXVI CONTRACTOR REVIEW AND POSTING OF CONDITIONS OF CERTIFICATION . . . . . . . . . . . . . . . . . . . 37 VI/I PART VI CONSTRUCTION IMPACT MITIGATION PROGRAM . . . . . . . 38 PART VII VII/I RED-COCKADED WOODPECKER MANAGEMENT AREA IDENTIFICATION . . . . . . . . . . . . . . . . . . 39 VII/II USE AND LIMITATIONS OF THE RCW AREA . . . . . . . . 39 SUPPLEMENTAL CONDITIONS OF CERTIFICATION (COCs) PART I Administrative Conditions I/I. ENTITLEMENT Pursuant to s. 403.501-519, F.S., the Florida Electrical Power Plant Siting Act, this certification is issued to Orlando Utilities Commission, Florida Municipal Power Agency, and Kissimmee Utility Authority as joint owner/operators of Curtis H. Stanton Unit 2. I/II. SCOPE OF LICENSE Certification has previously been issued by the Governor & Cabinet on 12/14/82 for the Stanton site, including associated transmission and rail spur lines, with subsequent modifications thereto. These Conditions of Certification address the supplementary changes related to the construction and operation of Unit 2 and associated transmission line and alternate access road (shown on Attachment I). Where these conditions supersede the original COC and modifications thereto, such COC are rendered void; otherwise, the original COC and modifications thereto remain in effect. Unit 2 certification is limited to 516,200 KVA (465 MW at a 0.9 power factor) nameplate capacity. I/III. JURISDICTIONAL AGENCIES The following agencies are deemed to have jurisdictional interest in the certification, and thus regulatory authority over the development, construction, operation, and maintenance of the facility: Department of Environmental Regulation (& Central District Office) [DER or DER/CDO] South Florida Water Management District [SFWMD] St. Johns River Water Management District [SJRWMD] Game & Fresh Water Fish Commission [GFWFC] Department of Natural Resources [DNR] Department of Community Affairs [DCA] Department of Transportation [DOT] Orange County [OC] I/IV. DEFINITIONS Licensee: References herein to the "Licensee" apply to Orlando Utilities Commission, Florida Municipal Power Agency, and Kissimmee Utility Authority as joint owners of Stanton Unit 2, or to their successors or assigns. (See COC-I/V regarding transfer of certification). Completeness/sufficiency: The term "complete" as used herein shall have the same meaning as contained in Chapter 120, F.S., not Chapter 403, F.S., i.e., a complete application shall also provide sufficient information for an agency to perform an analysis of compliance with the conditions of certification and applicable regulations. Where agency-recommended COCs have used the Ch. 403 FS term of "sufficient", that shall have the same meaning as the term "complete" as used herein. Affected agencies: References to the "affected agencies" apply to the jurisdictional agencies listed in COC-I/III. Other terms: The meaning of terms not otherwise specified in A-C, as used herein, shall be governed by the definitions contained in Chapter 403, Florida Statutes, and any regulations adopted pursuant thereto. In the event of any dispute over the meaning of a term in these conditions which is not defined in such statutes or regulations, such dispute shall be resolved by reference to the most relevant definitions contained in any other state or federal statute or regulation. I/V. TRANSFER OF CERTIFICATION If contractual rights, duties, or obligations are transferred under this Certification, notice of such transfer or assignment shall immediately be submitted to the Florida Department of Environmental Regulation and the Affected Agencies by the previous certification holder (Licensee) and the Assignee. Included in the notice shall be the identification of the entity responsible for compliance with the Certification. Any assignment or transfer shall carry with it the full responsibility for the limitations and conditions of this Certification. I/VI. SEVERABILITY The provisions of this certification are severable, and if any provision of this certification or the application of any provision of this certification to any circumstances, is held invalid, the application of such provisions to other circumstances and the remainder of the certification shall not be affected thereby. I/VII. PROFESSIONAL CERTIFICATION Where post-certification submittals are required by these conditions, drawings shall be signed and sealed by a Professional Engineer, or Professional Geologist, as applicable, registered in the State of Florida. I/VIII. RIGHT OF ENTRY The Licensee shall allow during operational or business hours the Secretary of the Florida Department of Environmental Regulation and/or authorized representatives, including personnel of the Affected Agencies, upon the presentation of appropriate credentials: To have access during normal business hours (Mon.-Fri., 9:00 a.m. to 5:00 pm.) to any records required to be kept under the conditions of this certification for examination and copying; and To inspect and test any monitoring equipment or monitoring method required in this certification and to sample any discharge or pollutants; and To assess any damage to the environment or violation of ambient standards; and To have reasonable escorted access to the power plant site and any associated linear facilities to inspect and observe any activities associated with the construction, operation, maintenance, or monitoring of the proposed project in order to determine compliance with the conditions of this Certification. The Licensee shall not refuse immediate entry or access upon reasonable notice to any Affected Agency representative who requests entry for the purpose of the above noted inspections and presents appropriate credentials. I/IX. DESIGN STANDARDS The facility shall be constructed pursuant to the design standards presented in the application and any approved post-certification submittals, and shall be considered the minimum design standards for compliance. I/X. LIABILITY The Licensee shall hold and save the Affected Agencies harmless from any and all damages, claims, or liabilities which may arise by reason of the construction, operation, maintenance and/or use of any facility authorized by this Certification, to the extent allowed under Florida law. I/XI. PROPERTY RIGHTS The issuance of this certification does not convey any property rights in either real or personal property, nor any exclusive privileges, nor does it authorize any injury to public or private property or any invasion of personal rights nor any infringement of Federal, State or local laws or regulations. I/XII. COMPLIANCE Compliance with Conditions The Licensee shall at all times maintain in good working order and operate all treatment or control facilities or systems installed or used by the Licensee so as to achieve compliance with the terms and conditions of this certification. All discharges or emissions authorized herein shall be consistent with the terms and conditions of this certification. The discharge of any regulated pollutant not identified in the application, or more frequent than, or at a level in excess of that authorized herein, shall constitute a violation of the certification. An environmental control program shall be established under the supervision of a qualified Environmental Engineer/Specialist to assure that all construction activities conform to applicable environmental regulations and the applicable Conditions of Certification. If a violation of standards, harmful effects or irreversible environmental damage not anticipated by the application or the evidence presented at the certification hearing are detected during construction, the Licensee shall notify the DER Central District Office and Siting Coordination office, as required in I/XII.B. Any anticipated facility expansions beyond the certified initial nameplate capacity, production increases, or process modifications which may result in new, different, or increased discharges of pollutants, change in type of fuel, or expansion in steam generation capacity shall be reported by submission of a modification petition pursuant to Chapter 403, Florida Statutes. In the event of a malfunction of Unit 2's pollution control system, that the Licensee shall comply with 40 CFR 60.46a. Non-compliance Notification If, for any reason, the Licensee does not comply with or will be unable to comply with any limitation specified in this certification, the Licensee shall notify the Central District office of the Department of Environmental Regulation by telephone within a working day that said noncompliance occurs and shall confirm this in writing within seventy-two (72) hours of becoming aware of such conditions, and shall supply the following information: A description of the discharge and cause of noncompliance; and The period of noncompliance, including exact dates and times; or if not corrected, the anticipated time the noncompliance is expected to continue, and steps being taken to reduce, eliminate and prevent recurrence of the noncomplying event. Adverse Impact The Licensee shall take all reasonable steps to minimize any adverse impact resulting from noncompliance with any limitation specified in this certification, including such accelerated or additional monitoring as necessary to determine the nature and impact of the noncomplying discharge. I/XIII. POST-CERTIFICATION REVIEW Further information may be required by these conditions for site-specific or more detailed review and approval to determine compliance with the conditions of certification. Compliance determinations of the Department and other reviewing agencies are subject to review pursuant to chapter 120, Florida Statutes. In order to provide adequate lead time for review, such information, as developed, must be submitted for post-certification review at least 120 days prior to the intended commencement date of construction or operation of the feature undergoing review. Notification of the submittal of the information, and any determinations made pursuant to these COC, shall be provided to the DER Siting Coordination Office for record-keeping purposes. Where such information is required, it shall be submitted to the agency(ies) named in the condition, which shall then have 30 days in which to determine the completeness (sufficiency) of the information. If a written request for additional information is not issued within the 30 day time period, the information will be presumed to be complete (sufficient). Once the information has been determined complete (sufficient), the agency(ies) shall have 90 days, unless another time period has been specified herein, in which to make the determination regarding compliance. I/XIV. COMMENCEMENT OF CONSTRUCTION At least 30 days prior to the commencement of construction, the Licensee or Project Engineer shall notify the DER Siting Coordination Office, the DER Central District Office, and Affected Agencies of theconstruction start date. Quarterly construction status reports shall similarly be submitted by the Licensee beginning with the initial construction start date. The report shall be a short narrative describing the progress of construction. I/XV. COMMENCEMENT OF OPERATION At least 30 days prior to the commencement of operation, the Licensee or Project Engineer shall notify the DER Siting Coordination Office and Affected Agencies of the operation start date. I/XVI. OPERATIONAL CONTINGENCY PLANS Operating Procedures The Licensee shall develop and make available for viewing at the Stanton site by the DER operating instructions for all aspects of the operations which are critical to keeping the facility's pollution control equipment working properly and to keep the facility in compliance with air and water quality criteria. Contingency Plans The Licensee shall develop and make available for viewing at the Stanton site by the DER written contingency plans or procedures for the continued operation of the unit in event of pollution control equipment breakdown. Stoppages which compromise the integrity of the operations must have appropriate contingency plans. Such contingency plans shall identify critical spare parts to be readily available. Current Engineering Plans For all pollution control and monitoring systems, the Licensee shall maintain a complete current set of as installed engineering plans, equipment data books, catalogs and documents in order to facilitate the smooth acquisition or fabrication of spare parts or mechanical modifications. Application Modifications The Licensee shall furnish appropriate modifications to drawings and plot plans submitted as part of the application. I/XVII. REVOCATION OR SUSPENSION This certification may be suspended or revoked for violations of any of its conditions pursuant to Section 403.512, Florida Statutes. I/XVIII. CIVIL AND CRIMINAL LIABILITY This certification does not relieve the Licensee from civil or criminal penalties for noncompliance with any conditions of this certification, applicable rules or regulations of the Department or Chapter 403, Florida Statutes, or regulations thereunder. Subject to Section 403.511, Florida Statutes, this certification shall not preclude the institution of any legal action or relieve the Licensee from any responsibilities or penalties established pursuant to any other applicable state statutes, or regulations. I/XIX. ENFORCEMENT The Department of Environmental Regulation, as supported by the applicable Affected Agency, may take any and all lawful actions to enforce any condition of this Certification. Any agency which deems enforcement to be necessary shall notify the Secretary of DER of the proposed actions. The agency may seek modification of this Certification for any change in any activity resulting from enforcement of this Certification which change will have a duration longer than 60 days. I/XX. FIVE YEAR REVIEW The certification shall be final unless revised, revoked, or suspended pursuant to law. At least every five years from the date of issuance of certification the Department shall review the project and these conditions of certification and propose any needed modifications. I/XXI. MODIFICATION OF CONDITIONS Pursuant to Subsection 403.516(1), F.S., the Board hereby delegates the authority to the Secretary to modify any condition of this certification not in conflict with Condition of Certification Part VII dealing with sampling, monitoring, reporting, specification of control equipment, related time schedules, emission limitations, variances or exceptions to water quality standards, transmission line, access road or pipeline construction, source of treated effluent cooling water, mitigation, transfer or assignment of the Certification or related federally delegated permits, or any special studies conducted, as necessary to attain the objectives of Chapter 403, Florida Statutes. All other modifications to these conditions shall be made in accordance with Section 403.516, Florida Statutes. II/I. AIR Part II Conditions Recommended by the Department of Environmental Regulation The construction and operation of Unit 2 at Orlando Utilities Commission, Curtis H. Stanton Energy Center (CHSEC) steam electric power plant site shall be in accordance with all applicable provisions of Chapters 17-2, 17-4, and 17-5, Florida Administrative Code except for NOx, and SO2 which shall be governed by 40 CFR Part 60 regarding startup, shutdown, and malfunction. In addition to the foregoing, the permittee shall comply with the following conditions of certification: A. Emissions Limitations The proposed steam generating station shall be constructed and operated in accordance with the capabilities and specifications of the application including the proposed 465 (gross) megawatt generating capacity and the 4286 MMBtu/hr heat input rate for each steam generator. Based on a maximum heat input of 4286 million Btu per hour, stack emissions from CHSEC Unit 2 shall not exceed the following when burning coal: SO2 - lb/million Btu heat input 30 - day rolling average 0.25 24 - hour emission rate 0.67 3 - hour emission rate 0.85 NOx - lb/million Btu heat input 30-day rolling average 0.17 PM/PM10 - lb/million Btu heat input lb/MBtu lb/hr PM 0.02 85.7 PM10 0.02 85.7 CO - 0.15 lb/million Btu heat input, 643 lb/hour. VOC - 0.015 lb/million Btu heat input, 64 lb/hour. H2SO4 - 0.033 lb/million Btu heat input 140 lb/hour. Be - 5.2 x 10-6 lb/million Btu heat input, 0.022 lb/hour. Hg - 1.1 x 10-5 lb/million Btu heat input, 0.046 lb/hour. Pb - 1.5 x 10-4 lbs/million Btu heat input, 0.64 lb/hour. Fluorides - 4.2 x 10-4 lb/million Btu heat input, 1.8 lb/hour. The height of the boiler exhaust stack for CHSEC Unit 2 shall not be less than 550 ft. above grade. Particulate emissions from the coal, lime and limestone handling facilities: All conveyors and conveyor transfer points will be enclosed to preclude PM emissions (except those directly associated with the coal stacker/reclaimer or emergency stockout, and the limestone stockout for which enclosure is operationally infeasible). Inactive coal storage piles will be shaped, compacted and oriented to minimize wind erosion. Water sprays or chemical wetting agents and stabilizers will be applied to storage piles, handling equipment, etc. during dry periods and as necessary to all facilities to maintain an opacity of less than or equal to 5 percent, except when adding, moving or removing coal from the coal pile, which would be allowed no more than 20%. Limestone day silos and associated transfer points will be maintained at negative pressures during filling operations with the exhaust vented to a control system. Lime will be handled with a totally enclosed pneumatic system. Exhaust from the lime silos during filling will be vented to a collector system. The fly ash handling system (including transfer and silo storage) will be totally enclosed and vented (including pneumatic system exhaust) through fabric filters; and Any additional coal, lime, and limestone handling facilities for Stanton Unit 2 will be equipped with particulate control systems equivalent to those for Stanton Unit 1 Particulate emissions from bag filter exhausts from the following facilities shall be limited to 0.02 gr/acf: coal, lime, limestone and flyash handling systems excluding those facilities covered by II/I.A.3.c above. A visible emission reading of 5% opacity or less may be used to establish compliance with this emission limit. A visible emission reading greater than 5% opacity will not create a presumption that the 0.02 gr/acf emission limit is being violated. However, a visible emission reading greater than 5% opacity will require the permittee to perform a stack test for particulate emissions, as set forth in Condition II/I.C. Compliance with opacity limits of the facilities listed in Condition II/I.A. will be determined by EPA referenced method 9 (Appendix A, 40 CFR 60). Construction shall reasonably conform to the plans and schedule given in the supplemental application. The permittee shall report any delays in construction and completion of the project which would delay commercial operation by more than 90 days to the DER Central District office in Orlando. Reasonable precautions to prevent fugitive particulate emissions during construction shall be to coat the roads and construction sites used by contractors, regrass or water areas of disturbed soils. Coal shall not be burned in the unit unless the electrostatic precipitator and limestone scrubber and other air pollution control devices are operating as designed except as provided under 40 CFR Part 60, Subpart Da. The fuel oil to be fired in Stanton Unit 2 and the auxiliary boiler shall be "new oil" which means an oil which has been refined from crude oil and has not been used. On-site generated lubricating oil and used fuel oil which meets the requirements of 40 CFR 266.40 may also be burned. The quality of the No. 2 fuel oil used by the auxiliary boiler shall not contain more than 0.5% sulfur by weight and cause the allowable emission limits listed in the following table to be exceeded. Such emissions may be calculated in accordance with AP-42. Allowable Emission Limits Pollutant lb/MMBtu PM 0.015 S02 0.51 NOx 0.16 Visible emissions Maximum 20% Opacity The flue gas scrubber shall be put into service during normal operational startup, and shut down when No. 6 fuel oil is being burned. The No. 6 fuel oil shall not contain more than 1.5% sulfur by weight. No fraction of flue gas shall be allowed to bypass the FGD system to reheat the gases exiting from the FGD system, except that bypass shall be allowed during startup and shutdown. All fuel oil and coal shipments received shall have an analysis for sulfur content, ash content, and heating value either documented by the supplier or determined by analysis. Coal sulfur content shall be determined and recorded on a daily basis. Records of all the analysis shall be kept for public inspection for a minimum of two years after the data is recorded. Within 90 days of commencement of operations, the applicant will determine and submit to FDER the pH level range in the scrubber reaction tank that correlates with the specified limits for SO2 in the flue gas. Moreover, the applicant is required to operate a continuous pH meter equipped with an upset alarm to ensure that the operator becomes aware when the pH level of the scrubber reaction tank falls out of this range. The pH monitor can also act as a backup in the event of malfunction of the continuous SO2 monitor. The value of the scrubber pH may be revised at a later date provided notification to FDER is made demonstrating the emission limit is met. Further, if compliance data show that higher FGD performance is necessary to maintain the emission limit, a different pH value will be determined and maintained. The applicant will comply with all requirements andprovisions of the New Source Performance standard for electric utility steam generating units (40 CFR 60 Part Da). The Licensee shall submit to the Department at least 120 days prior to start of construction of the NOx control system, copies of technical data pertaining to the selected Nox control system. These data, if applicable to the technology chosen by the Licensee, should include but not be limited to design efficiency, guaranteed efficiency, emission rates, flow rates, reagent injection rates, or types of catalysts. The Department may, upon review of these data, disapprove the use of any such device or system if the Department determines the selected control device or system to be inadequate to meet the emission limits specified in l.b. above. Such disapproval shall be issued within 90 days of receipt of the technical data. B.Air Monitoring Program A flue gas oxygen meter shall be installed for Stanton Unit 2 to continuously monitor a representative sample of the flue gas. The oxygen monitor shall be used with automatic feedback or manual controls to continuously maintain air/fuel ratio parameters at an optimum. The flue gas manufacturing oxygen monitor shall be calibrated and operated according to established procedures as approved by DER. The document "Use of Flue Gas Oxygen Meter as BACT for Combustion Controls" may be used as a guide. The permittee shall install and operate continuous monitoring devices for Stanton Unit 2 main boiler exhaust for sulfur dioxide, nitrogen oxides, oxygen, and opacity. The monitoring devices shall meet the applicable requirements of Section 17-2.710, FAC., and 40 CFR 60.47a. The opacity monitor may be placed in the duct work between the electrostatic precipitator and the FGD scrubber. The permittee shall operate one continuous ambient monitoring device for sulfur dioxide in accordance with DER quality control procedures and EPA reference methods in 40 CFR, Part 53, and one ambient monitoring device for PM10, and one continuous NOx monitor. The monitoring devices shall be specifically located at a location approved by the Department. The frequency of operation of the particulate monitor shall be every six days commencing as specified by the Department. During construction and operation the existing meteorological station will be operated and data reported with the ambient data. The permittee shall maintain a daily log of the amounts and types of fuel used. The log shall be kept for inspection for at least two years after the data is recorded. Fuel analysis data including sulfur content, ash content, and heating values shall be determined on an as received basis and kept for two years. The permittee shall provide stack sampling facilities as required by Rule 17-2.700(4) F.A.C. The ambient monitoring program shall begin at least one year prior to initial start up of Unit 2 and shall continue for at least one year of commercial operation. The Department and the permittee shall review the results of the monitoring program annually and determine the necessity for the continuation of or modifications to the monitoring program. Stack Testing Within 60 calendar days after achieving the maximum capacity at which Unit 2 will be operated, but no later than 180 operating days after initial startup, the permittee shall conduct performance tests for particulates, SO2, NOx, and visible emissions during normal operations near (+ _ 10%) 4286 MMBtu/hr heat input and furnish the Department a written report of the results of such performance tests within 45 days of completion of the tests. The performance tests will be conducted in accordance with the provisions of 40 CFR 60.46a and 48a. Compliance with emission limitation standards mentioned in specific Condition No. II/I.A. shall be demonstrated during the initial performance test using appropriate EPA Methods, as contained in 40 CFR Part 60 (Standards of Performance for New Stationary Sources), or 40 CFR Part 61 (National Emission Standards for Hazardous Air Pollutants), or any method as proposed by the Applicant and approved by the Department, in accordance with F.A.C. Rule 17- 2.700. EPA Method For Determination of Selection of sample site and velocity traverses. Stack gas flow rate when converting concentrations to or from mass emission limits. Gas analysis when needed for calculation of molecular weight or percent 02. Moisture content when converting stack velocity to dry volumetric flow rate for use in converting concentrations in dry gases to or from mass emission limits. Particulate matter concentration and mass emissions. 201 or 201A PM10 emissions. 6, 6C, or 19 Sulfur dioxide emissions from stationary sources. 7, 7C, or 19 Nitrogen oxide emissions from stationary sources. 9 Visible emission determination of opacity. At least three one hour runs to be conducted simultaneously with particulate testing for the emissions from dry scrubber/baghouse, and ash handling building baghouse. At least one lime truck unloading into the lime silo (from start to finish). 10 Carbon monoxide emissions from stationary sources. 12 or 101A Lead concentration from stationary sources. 13A or 13B Fluoride emissions from stationary sources. 18, 25, 25A Volatile organic compounds concentration. or 25B 101A or 108 Mercury emissions. 104 Beryllium emission rate and associated moisture content: The permittee shall provide 30 days written notice of the performance tests for continuous emission monitors or 10 working days written notice for stack tests in order to afford the Department the opportunity to have an observer present. Stack tests for particulates, NOx and SO2 and visible emissions shall be performed annually in accordance with Conditions C.2 and .3 above. Reporting For Stanton Unit 2, a summary in the EPA format of stack continuous monitoring data, fuel usage and fuel analysis data shall be reported to the Department's Central District Office and to the Orange County Environmental Protection Department on a quarterly basis commencing with the start of commercial operation in accordance with 40 CFR, Part 60, Section 60.7, and 60.49a and in accordance with Section 17-2.710(2), F.A.C. Utilizing the SAROAD or other format approved in writing by the Department, ambient air monitoring data shall be reported to the Bureau of Air Quality Management of the Department quarterly. Such reports shall be due within 45 days following the quarterly reporting period. Reporting and monitoring shall be in conformance with 40 CFR Parts 53 and 58. Beginning one month after certification, the permittee shall submit to the Department a quarterly status report briefly outlining progress made on engineering design and purchase of major pieces of air pollution control equipment. All reports and information required to be submitted under this condition shall be submitted to the Siting Coordination Office, Department of Environmental Regulation, 2600 Blair Stone Road, Tallahassee Florida, 32301. Malfunction or Shutdown In the event of a prolonged (thirty days or more) equipment malfunction or shutdown of air pollution control equipment, operation may be allowed to resume or continue to take place under appropriate Department order, provided that the Licensee demonstrates such operation will be in compliance with all applicable ambient air quality standards and PSD increments. During such malfunction or shutdown, the operation of Stanton Unit 2 shall comply with all other requirements of this certification and all applicable state and federal emission standards not affected by the malfunction or shutdown which is the subject of the Department's order. Exceedances produced by operational conditions for more than two hours due to upsets in air pollution control systems as a result of start-up, shutdown, or malfunctions as defined by 40 CFR 60 need not be reported as specified in Condition I/XII. Identified operational malfunctions which do not stop operation but prevent compliance with emission limitations shall be reported to DER as specified in Condition I/XII. Open Burning Open burning in connection with initial land clearing shall be in accordance with Chapter 17-256, F.A.C., Chapter 5I-2, F.A.C., Uniform Fire Code Section 33.101 Addendum, and any other applicable County regulation. Any burning of construction generated material, after initial land clearing that is allowed to be burned in accordance with Chapter 17-256, F.A.C., shall be approved by the DER Central District Office in conjunction with the Division of Forestry and any other County regulations that may apply. Burning shall not occur unless approved by the jurisdictional agency or if the Department or the Division of Forestry has issued a ban on burning due to fire safety conditions or due to air pollution conditions. Federal Annual Operating Permits and Fees DER Responsibilities The Department of Environmental Regulation shall implement the provisions of Title V of the 1990 Clean Air Act for Stanton 2 developing Conditions of Certification requiring submission of annual operating permit information and annual pollutant emission fees in accordance with Federal Law and Federal regulations. OUC Responsibilities OUC shall submit the appropriate annual operating permit application information as well as the appropriate annual pollutant emission fees as required by Federal Law to the Department as specified in Condition 3. below. Annual Operating "Permit" Application and Fee (Reserved) II/II. WETLANDS RESOURCE MANAGEMENT The proposed transmission line from the Stanton Energy Center to the Mud Lake transmission line and the proposed alternate access road to the Stanton Energy Center from the south shall be routed as shown in the supplemental application. Prior to construction, the permittee shall submit drawings on 8.5" by 11" paper, showing the final design, including plan views and cross-sections for each area of filling or clearing in wetlands. The drawings shall show the existing and proposed ground elevations and all existing and proposed structure locations, sizes and invert elevations. All clearing and construction activities shall be confined to the limits of the clear zone necessary for the transmission line as shown on Figures 6.1-5 and 6.1-6 of the application drawings. Within 30 days of the completion of construction, the permittee shall arrange a site visit by DER District personnel from the Central District office in Orlando to verify that no wetland damage has occurred outside the transmission line clear zone. If wetland damage occurs outside the transmission line clear zone during construction, the permittee shall submit to the Bureau of Wetland Resource Management for review a plan to restore the wetland area which was damaged and to provide mitigation for the damage. The plan shall be implemented with 30 days of the Department approving the restoration and mitigation plan. This condition does not preclude the Department from taking enforcement action if unauthorized activities occur. Prior to initiating construction, the permittee shall submit a map and aerial photographs showing the location of all staging areas for the transmission line and alternate access road construction to the Bureau of Wetland Resource Management for review and written approval. These areas shall be upland areas which are not currently providing red-cockaded woodpecker nesting or foraging habitat. The staging areas shall not be used prior to receiving DER approval. Drainage structures shall be placed in the transmission line ROW and under the alternate access road at the same locations where drainage structures currently exist under the CSX Railroad berm. The drainage structures shall provide at least the same efficiency as the corresponding drainage structure currently existing in the CSX Railroad berm. The forested areas to be cleared shall be cleared using low-impact equipment so as to minimize soil disturbance. The rootmats and tree stumps shall be left in place to provide soil stabilization. During construction, best management practices, including but not limited to staked hay bales and filter cloth, shall be utilized to control erosion and turbidity. All side slopes shall be seeded and mulched within 72 hours of the final grading. Construction of the transmission line and alternate access road will result in the filling of 4.12 ac. of herbaceous wetlands the permanent clearing of 13.19 ac. of forested wetlands. The permittee shall provide mitigation to offset the wetland loss and habitat degradation resulting from the construction of this project. Prior to construction, the permittee shall propose a mitigation plan and shall provide the following information to the Bureau of Wetland Resource Management to allow the Department to review the proposed mitigation plan: detailed description of each wetland impact area; acreage of the type and quality of wetland being impacted at each site; narrative, drawings and aerial photographs showing and explaining the proposed mitigation; detailed description of the existing conditions at the mitigation area; acreage of the proposed mitigation by mitigation and wetland type; documentation providing reasonable assurance that the proposed mitigation will be successful. If the mitigation submittal is deemed by the Department to provide insufficient information for review, additional information requested by the Department shall be submitted. Upon receiving complete information, the Department will assess the mitigation plan within 90 days. If the Department, upon review of the proposed mitigation, determines that the proposed mitigation is inadequate to offset the wetland loss and habitat degradation from this project, the permittee shall propose additional mitigation. II/III. ELECTRIC AND MAGNETIC FIELDS The associated transmission line shall comply with the requirements of Ch. 17- 274, F.A.C. II/IV. OTHER For wastewater treatment, sanitary waste treatment, public water supply, surface water monitoring, and ground water monitoring see Unit 1's Conditions of Certification. For air and water monitoring programs, quality assurance plans shall be submitted by OUC within 90 days of certification. Such QA plans shall be submitted in conformance with Chapter 17-160, F.A.C. Part III Conditions Recommended by the Game and Fresh Water Fish Commission III/I. WILDLIFE SURVEY Prior to the construction of the proposed facility, a wildlife survey, consistent with methodology prescribed by the FGFWFC, shall be conducted for the presence of listed species (endangered, threatened, or species of special concern) and suitable habitat for same within the site. The results of said survey shall be submitted to the DER, the FGFWFC, and the United States Fish and Wildlife Service. If construction of the proposed facility will impact any listed species, other than the previously identified impact on the foraging habitat of the red-cockaded woodpecker resulting from the clearing of the transmission line right-of-way, the Permittee shall consult with the DER and the FGFWFC to determine the appropriate steps to avoid, minimize, mitigate, or otherwise appropriately address any adverse impacts within each agency's respective jurisdiction. III/II. NESTING SANDHILL CRANES Nesting sandhill cranes shall be avoided by limiting installation of transmission lines over wetlands utilized by nesting cranes to periods outside of the nesting season, which runs from January through June. III/III. MANAGEMENT PLAN Before construction, a management plan for the preserved areas shall be presented to the FGFWFC for review and approval. At a minimum, this plan shall include a statement of what habitat function the preserve is expected to provide; a schedule of fire management through a certified burn specialist and including, but not limited to, burn conditions, burn frequency, and measures taken to avoid spread of wildfire; measures taken to remove exotic vegetation from both wetlands and uplands; and the responsible entity. Part IV Conditions Recommended by the South Florida Water Management District IV/I. LEGAL/ADMINISTRATIVE CONDITIONS These conditions also incorporate by reference the conditions contained in Part I, Administrative Conditions, of the Recommended Supplemental Conditions of Certification. GENERAL Compliance Requirements This project must be constructed, operated and maintained in compliance with and meet all non-procedural requirements set forth in Chapter 373, F.S., and Chapter 40E-4 (Surface Water Management), F.A.C. Off-Site Impacts It is the responsibility of the Permittee to ensure based on information provided that adverse off-site water resource related impacts do not occur during the construction, operation, and maintenance of the transmission line and associated transmission line access roads within SFWMD. Post Certification Information Submittals Information submitted to the SFWMD subsequent to Certification, in compliance with the conditions of this Certification, shall be for the purpose of the SFWMD determining the Permittee's compliance with the Certification conditions and the non-procedural criteria contained in Chapter 40E-4, F.A.C., as applicable, prior to the commencement of the subject construction, operation and/or maintenance activity covered thereunder. PROCESSING OF INFORMATIONAL REQUESTS Right-of-way Modifications At least ninety (90) days prior to the commencement of construction of any portion of the transmission line, the Permittee shall submit any proposed modifications to the transmission line right-of-way, identified on Exhibits 2, 3 and 4 (Figures 6.1-2, 6.1-3, and 6.1-4), to the SFWMD staff for review and approval. If the SFWMD staff does not issue a written request for additional information and/or an objection to the proposed right-of-waymodification within thirty (30) days, the modification shall be presumed to be complete and acceptable. Completeness and Review At least ninety (90) days prior to the commencement of construction of any portion of the linear facilities located in the SFWMD, the Permittee shall submit to SFWMD staff, for a completeness and sufficiency review, any pertinent additional information required under the SFWMD's Conditions of Certification for that portion proposed for construction. If SFWMD staff does not issue a written request for additional information within thirty (30) days, the information shall be presumed to be complete and sufficient. Compliance Review and Confirmation Within sixty (60) days of the determination by SFWMD staff that the submitted information is complete and sufficient, the SFWMD shall determine and notify the Permittee in writing whether the proposed activities conform to SFWMD criteria, as required by Chapter 40E-4, F.A.C., and the Conditions of Certification. If necessary, the SFWMD shall identify what items remain to be addressed. No construction activities shall begin until the SFWMD has determined either in writing, or by failure to notify the Permittee in writing, that the activities are in compliance with the applicable SFWMD criteria. Revisions to Site Specific Design Authorizations The Permittee shall submit, consistent with the provisions of Condition IV/I.B, any proposed revisions to the site specific design authorizations specified in this Certification to the SFWMD for review and approval prior to implementation. The submittal shall include all the information necessary to support the proposed request, including detailed drawings, topographic maps, average wet season water table elevations, calculations and/or any other applicable data. Such requests may be included as part of the appropriate additional information submittals required by this Certification provided they are clearly identified as a requested modification to the previously authorized design. Dispute Resolution Since this Certification is the only form of permit required from any agency, it is understood that the Permittee and the SFWMD shall strive to resolve disputes by mutual agreement. Objections Objections to modifications of the terms and conditions of this Certification shall be resolved through the process established in Section 403.516, F.S. Changes to Information Requirements The SFWMD and the Permittee may jointly agree to vary the informational requirements. IV/II. SURFACE WATER MANAGEMENT CONDITIONS GENERAL CONDITIONS Professional Engineer Certificate The operation of the surface water management system authorized under this certification shall not become effective until a Florida Registered Professional Engineer certifies, upon completion of each phase, that these facilities have been constructed in accordance with the design approved by the SFWMD. Within 30 days after completion of construction of the surface water management system, the Permittee or authorized agent shall submit the engineer's certification and notify the SFWMD Field Engineering Division that the facilities are ready for inspection and approval. Such notification shall include as-built drawings of the site which shall include elevations, locations, and dimensions of components of the surface water management system. Impacts on Fish, Wildlife, Natural Environment Values and Water Quality The Permittee shall prosecute the work authorized under this Certification in a manner so as to minimize any adverse impacts of the authorized works on fish, wildlife, natural environment values, and water quality. The Permittee shall institute necessary measures during the construction period, including necessary compaction of any fill materials placed around newly installed structures and/or the use of silt screens, hay bales, seeding and mulching, and/or other similar techniques, to reduce erosion, turbidity, nutrient loading and sedimentation in the receiving waters. Correction of Water Quality Problems The Permittee shall be responsible for the correction of any sedimentation, turbidity, erosion, shoaling and/or maintenance of the works authorized under this Certification. Off-site Conveyances All off-site conveyances during construction and development of the transmission line and associated access roads shall be made only through the conveyance facilities authorized by this Certification. No roadway or structure pad construction shall commence on-site unless in conjunction with the construction of the permitted conveyance facilities and any associated detention areas. Water conveyed from the project shall be through facilities having a mechanism suitable for regulating upstream water stages. Stages may be subject to operating schedules satisfactory to the SFWMD. Additional Water Quality Requirements The Permittee may be required to incorporate additional water quality treatment methods into the surface water management system if such measures are shown to be necessary. Access Roads The Permittee shall, whenever available, utilize adjacent existing roads for access to the transmission line right of way for construction, operation and/or maintenance purposes. Finger roads connecting the existing roads to the structure pads and access roads which must be constructed in areas where an existing road is not available shall be constructed in a manner which does not impede natural drainage flows and minimizes impacts to on-site and adjacent wetlands. Correction of Drainage Problems The Permittee shall be responsible for the correction of any adverse on-site, upstream, and/or downstream drainage and/or wetland impacts which may occur as a result of the construction of the proposed access road and/or structure pads. These may include the placement and/or removal of culverts and/or other structures to remedy the impact. Modifications Subsequent modifications to the drawings and supporting calculation submitted to the SFWMD which may alter the quantity and/or quality of waters discharged off- site shall be made pursuant to Section 403.516, F.S., and Rule 17-17.211, F.A.C. They shall also be submitted to the SFWMD for a determination that the modifications are In compliance with the non-procedural requirements of Chapters 40E-2 and 40E-4, F.A.C., prior to the commencement of construction. SITE SPECIFIC DESIGN AUTHORIZATIONS Access/Maintenance Road and Structure Pads The Permittee is authorized to construct an access/maintenance road and associated conveyance facilities for the transmission line in the areas specifically identified on Exhibits 2, 3, and 4 (Figures 6.1-2, 6.1-3, and 6.1- 4). Areas where an access/maintenance road is not proposed will be accessed from existing roads. Authorized Receiving Water (Transmission Line Access Maintenance Roads only) Adjacent Wetlands ADDITIONAL INFORMATION REQUIREMENTS Access/Maintenance Road and Structure Pad Construction Plans Prior to the commencement of construction of any portion of the transmission line which affects the movement of waters, the Permittee shall submit plans for any construction activities for that portion of the transmission line which may obstruct, divert, control, impound or cross waters of the state, either temporarily or permanently, to the SFWMD, consistent with the provisions of Condition IV/I.B, for a determination of compliance with the non-procedural requirements of Chapter 40E-4, F.A.C., in effect at the time of submittal. "Construction activities" in this situation shall include the placement of access/ maintenance roads, culverts, and/or fill materials, excavation activities, and any related activities. All plans, detail sheets and calculations shall be signed and sealed by a Florida Registered Professional Engineer. For all construction activities, the following information, referenced to NGVD, shall be submitted: A centerline profile of existing topographic features along the proposed access/maintenance road(s); A design of the proposed access/maintenance and finger road(s) with finished elevations marked; A typical cross-section of the proposed access/maintenance and finger road(s), including relative dimensions and elevations; A cross-section of each stream or creek at the point(s) to be crossed by the proposed access/maintenance and finger road, and/or other facility; Identification of wet season water table elevations for each basin in which facilities will be located; Specifications, including supporting assumptions and calculations, showing the type and size of water control structures (pipe, culvert, equalizer, etc.) to be used, with proposed flowline elevations marked, drainage areas identified, and design capacity verified; A cross-section of any proposed excavation areas showing the proposed depth of excavation; Calculations and supporting documentation which demonstrate that the proposed construction and/or excavation activities associated with the transmission line will not have an adverse water quantity and/or water quality impact on adjacent wetlands and/or permitted surface water management systems; If construction of the transmission line contributes to the necessity for future modifications to adjacent/existing roads, water quality treatment requirements of the requested road modifications must be addressed in the surface water management system design for the transmission line. IV/III. ENVIRONMENTAL CONDITIONS GENERAL Wetland Avoidance The Permittee shall avoid impacting wetlands within the transmission line corridor wherever practicable. Where necessary and feasible, the location of the structure pads, other related facilities and/or the transmission line alignment shall be varied to eliminate or reduce wetland impacts. The Permittee shall work in accordance with the submitted plans in the supplemental site certification application as supplemented by final approved construction plans. Clearing and construction activities shall be confined to the limits of the clearing zone. Fill Materials No fill materials shall be obtained from excavated wetlands or within 200 feet of functional wetlands, unless in accordance with a mitigation plan submitted in compliance with the conditions of this Certification. Additional Wetlands Mitigation The Permittee may be required to provide additional mitigation and/or other measures if wetland monitoring and/or other information demonstrates that adverse impacts to protected, restored, incorporated, and/or mitigated wetlands have occurred as a result of project-related activities. Additional Environmental Review The Permittee shall submit any proposed changes in land use, project design, and/or the treatment of on-site wetlands to the SFWMD for additional environmental review in order to determine whether any additional mitigation activities will be required. Mitigation Areas Mitigation credits shall be given for mitigation areas within both the SFWMD and the SJRWMD. Mitigation credits shall be given for acreages and activities which have also been accepted by the DER as mitigation for impacts in areas of joint jurisdiction. Any acreages or activities proposed by the mitigation plan and its addendum which exceed the mitigation requirements of the SJRWMD, and meet the non- procedural requirements for wetland mitigation of the SFWMD, shall be credited as mitigation for impacts within the SFWMD. If required by SFWMD, OUC agrees to provide additional acreages and activities to offset impacts within SFWMD not credited by the Mitigation Plan (June 1991) and its addendum (Sept 1991). SITE SPECIFIC DESIGN AUTHORIZATIONS Authorized Wetland Impacts The Permittee is authorized to construct an access/maintenance road and associated conveyance facilities for the transmission line and structure pads in the wetland areas specifically identified on Exhibits 2, 3, and 4 (Figures 6.1- 2, 6.1-3, and 6.1-4). Sandhill Crane Nest Protection The Permittee shall protect the active sandhill crane nest located in the 0.58 acre marsh situated between stations 125 and 126 in accordance with the following requirements: The transmission line poles and structure pads shall be positioned so that the transmission line spans the marsh; Construction shall be scheduled to avoid the nesting season for sandhill cranes; The marsh shall not be disturbed in any way; The access road shall be located in the swale adjacent to the railroad rather than in the marsh. ADDITIONAL INFORMATION REQUIREMENTS Wetlands Protection Prior to the commencement of construction of any portion of the transmission line which will be located adjacent to the wetlands identified for preservation, the Permittee shall: Stake and rope off the protected wetlands and buffer zones to prevent encroachment during construction. The stakes and ropes shall remain in place until all adjacent construction activities have been completed. Verification of staked areas by SFWMD staff shall be required prior to the commencement of and upon completion of any construction activities. Install silt screens, turbidity barriers and/or hay bales prior to any construction in or alteration of any wetlands within the project site in order to prevent adverse water quality impacts to wetlands. These barriers shall remain in place until fill material is stabilized and turbidity has returned to background levels. Mitigation Plan Prior to the commencement of construction of any portion of the transmission line which may affect wetlands, the Permittee shall submit a mitigation and monitoring plan to the SFWMD for a determination of compliance with the non- procedural requirements of Chapter 40E-4, F.A.C., including Appendix 7 (Isolated Wetlands Rule) of the Basis of Review for Surface Water Management Permit Applications in the SFWMD, in effect at the time of submittal. At a minimum, the plan shall include the following information: Locations and sizes of all proposed mitigation areas, species to be planted, planting densities, details of the proposed hydrologic regime, cross- sections showing the proposed elevations and water depths, and an estimated time schedule for completion of the construction of the mitigation areas. A wetland mitigation and/or restoration work schedule which details each specific mitigation task (e.g. grading to proper elevation, mulching, planting, regularly scheduled maintenance and monitoring, etc.) and the calendar dates for the start and completion of each task. Provisions for both quantitative and qualitative observations of wildlife utilization and the vegetative community, monthly water level readings, panoramic photographs documenting the condition of the mitigation areas, and evaluation of the success of the mitigation effort, and an annual report incorporating this information and any other relevant information. The water level readings will be taken weekly for sampling points that are accessable until demonstrated to the appropriate agency that less frequent water level readings are sufficient to demonstrate compliance. Documentation that sufficient areas have appropriately worded conditions of certification within the SFWMD and/or the SJRWMD to compensate for the proposed wetland impacts with both the water management districts. Part V Conditions Recommended by the St. Johns River Water Management District V/I. WATER SHORTAGES Nothing in this certification shall be construed to limit the authority of the SJRWMD to declare a water shortage and issue orders pursuant to Section 373.175, Florida Statues or to formulate a plan for implementation during periods of water shortage, pursuant to Section 373.246, Florida Statutes. Pursuant to Section 403.516, Florida Statutes, in the event of a water shortage as declared by the SJRWMD, DER may seek a modification of the terms and conditions of this certification to implement the water shortage declaration. V/II. WELL CONSTRUCTION, MODIFICATION, OR ABANDONMENT Prior to the construction, modification, or abandonment of a well, OUC, et al., must obtain approval from the SJRWMD and meet the requirements of Chapter 40C-3, Florida Administrative Code. V/III. WELL MAINTENANCE Leaking or inoperative well casings, valves, or controls must be repaired or replaced as required to put the system back in an operative condition acceptable to the SJRWMD. Failure to make such repairs will be cause for deeming the well abandoned in accordance with Subsection 17-532.200(1), Florida Administrative Code and Section 373.309, Florida Statutes. V/IV. MITIGATION OF WITHDRAWAL IMPACTS ON EXISTING LEGAL USERS OUC, et al., must mitigate any adverse impact caused by withdrawals permitted herein on legal uses of water existing at the time of the Supplemental Site Certification Application for Stanton 2. If unanticipated significant adverse impacts occur, the DER has the right to curtail permitted withdrawal rates or water allocations unless the impacts can be mitigated by OUC, et al. Adverse impacts are exemplified by, but not limited to: Reduction of well water levels resulting in a reduction of 10% in the ability of an adjacent well (other than one owned by OUC) to produce water; Reduction of water levels in an adjacent surface water body resulting in a significant impairment of the use of water (other than a use by OUC) in that water body; Saline water intrusion or introduction of pollutants into the water supply of an adjacent water use (other than a use by OUC) resulting in a significant reduction of water quality; or Change in water quality resulting in either impairment or loss of use of a well or water body (other than a use by OUC). V/V. MITIGATION OF IMPACTS ON ADJACENT LAND USES OUC, et al., must mitigate any adverse impact caused by withdrawals permitted herein on an adjacent land use which existed at the time of Supplemental Site Certification Application for Stanton 2. If unanticipated significant adverse impacts occur, the DER has the right to curtail permitted withdrawal rates or water allocations unless the impacts can be mitigated by OUC, et al. Adverse impacts are exemplified by, but not limited to: Significant reduction in water levels in an adjacent surface water body; Land collapse or subsidence off-site caused by a reduction in water levels; or Damage to crops and other types of off-site vegetation. V/VI. IDENTIFICATION TAGS A SJRWMD-issued identification tag must be prominently displayed at each withdrawal site by permanently affixing such tag to the pump, headgate, valve or other withdrawal facility as provided by Section 40C-2.401, Florida Administrative Code. OUC, et al., must notify the SJRWMD in the event that a replacement tag is needed. V/VII. MAXIMUM ANNUAL WITHDRAWALS Maximum annual withdrawals from the Floridan aquifer must not exceed 321.20 million gallons. V/VIII. MAXIMUM DAILY WITHDRAWALS Maximum daily withdrawals from the Floridan aquifer must not exceed 2.00 million gallons. V/IX. LIMITATION ON USE OF WATER Withdrawals from the Floridan aquifer wells must not be used directly for cooling tower make-up water. Reclaimed wastewater in an allocated amount of 10.19 million gallons/day on an annual average basis from the Orange County Easterly Wastewater Treatment Facility, stormwater runoff, on-site reuse water and direct precipitation shall be the source of cooling tower make-up water. V/X. DEWATERING All withdrawals from the surficial aquifer for dewatering to facilitate construction must be retained on-site within the recycle basin or the make-up water supply pond (#20 and #22, respectively, OUC, et al.'s Figure 3.2-1). V/XI. OFF-SITE DISCHARGES No off-site discharges are approved from this facility, except as provided for by the overflow structure in the make-up water supply pond (#20, OUC, et al.'s Figure 3.2-1), and the natural drainage patterns indicated on SCA Figure 3.10-1 for the duration of this certification. V/XII. DISCHARGES FROM MAKE-UP WATER SUPPLY POND All off-site discharges, as provided for by the overflow structure in the make- up water supply pond (#20, OUC, et al.'s Figure 3.2-1), must be in compliance with water quality standards as set forth in Chapters 17-4, and 17-302, F.A.C., or such standards as issued through a variance by DER. V/XIII. WELL WATER QUALITY SAMPLING Water quality samples must be taken in April and October of each year from each production well. The samples must be analyzed for the following parameters: Calcium Chloride Magnesium Sulfate Sodium Carbonate Potassium Bi-Carbonate (or alkalinity if pH is 6.9 or lower) All major ion analyses must be checked for anion-cation balance and must balance within 5% prior to submission. It is recommended that duplicates be taken to allow for laboratory problems or loss. The sample analyses must be submitted to the SJRWMD by May 15 and November 15 of each year. Prior to sample collection, a minimum of 3-5 casing volumes must be removed from each well. All sampling and water quality analyses shall be performed by organizations with approved comprehensive or generic quality assurance plans on file with the DER or a laboratory having HRS certification. V/XIV. WATER TREATMENT PLANT REPORTS By January 31 of each year, OUC, et al., must submit to the SJRWMD copies of the previous year (12 months) DER monthly water treatment plant operating report data showing total flow from the 2 Floridan wells going to the potable water treatment plant on-site. The project name and certification number must be attached to all reports. V/XV. WELL WATER FLOW MONITORING OUC, et al., must maintain the continuous recorder on the Floridan aquifer monitor well. Copies of the previous year (12 months) recorder charts must be forwarded to the SJRWMD on a yearly basis. The charts must be submitted by January 31 of each year. V/XVI. CONSERVATION PLAN OUC, et al., must implement the conservation plan submitted to the SJRWMD in accordance with the schedule contained therein. V/XVII. WELL WATER FLOW METERS All Floridan aquifer production wells must be equipped with totalizing flow meters throughout the duration of this certification. Such meters must maintain a 95% accuracy, be verifiable and be installed according to the manufacturer's specifications. V/XVIII. CALIBRATION OF FLOW METERS OUC, et al., must have all flow meter(s) calibrated once every 3 years within 30 days of the anniversary date of certification issuance, and recalibrated if the difference between the actual flow and the meter reading is greater than 5%. SJRWMD form EN-51 must be submitted to the SJRWMD within 10 days of the inspection/calibration. V/XIX. MAINTENANCE OF FLOW METERS OUC, et al., must maintain the required flow meter(s). In case of failure or breakdown of any meter, the SJRWMD must be notified in writing within 5 days of its discovery. A defective meter must be repaired or replaced within 30 days of its discovery. V/XX. DELINEATION OF LIMITS OF CONSTRUCTION Prior to construction, OUC, et al., must clearly delineate the limits of construction on-site. OUC, et al., must advise the contractor that any work within the Riparian Habitat Regulation Zone outside the limits of construction, including clearing, is a violation of this certification order. V/XXI. BACKGROUND ASSESSMENT PLAN Prior to commencement of construction, a Background Assessment Plan of the areas to be enhanced or mitigated must be submitted to the SJRWMD, DER, and SFWMD for review and joint approval. Data obtained through the Background Assessment Plan must include the following: (a) site specific topographic survey information referenced to NGVD; (b) survey of historic and existing ordinary high, normal or chronic pool water elevations referenced to NGVD based upon biological/physical wetland indicators; (c) a narrative describing the species composition, health and extent of pre-enhanced areas; and (d) quantitative information regarding the species composition including coverage and composition of understory, midcanopy and canopy species. V/XXII. COMPLETION OF BACKGROUND ASSESSMENT The background assessment must be completed pursuant to the approved Background Assessment plan prior to construction. V/XXIII. INITIATION AND COMPLETION OF ENHANCEMENT MITIGATION PLAN Following completion of the background assessment, and prior to the commencement of construction associated with the transmission line or the access roads, planting and construction associated with the approved Enhancement Mitigation Plan must be initiated, and then must be completed within 12 months after initiation. V/XXIV. CRITERIA FOR SUCCESS OF ENHANCEMENT AND MITIGATION Following completion of the background assessment, before any planting in the mitigation and enhancement areas, OUC, et al., must submit for the joint approval of SJRWMD, DER, and SFWMD a plan setting forth appropriate criteria for determining success of all wetland and upland enhancement and mitigation areas. OUC, et al., shall implement and maintain the mitigation and enhancement areas to ensure that the success criteria are achieved. V/XXV. MONITORING PLAN FOR ENHANCEMENT AND MITIGATION Within 30 days of completion of the initial planting, OUC, et al., must submit to the SJRWMD, DER, and SFWMD for review and joint approval, two copies of a monitoring plan detailing the site specific methods to be used for monitoring the enhancement and mitigation areas, so that the achievement of the success criteria can be quantitatively and qualitatively demonstrated. The monitoring plan must include the location, size and number of monitoring quadrants or transect lines, the location and number of photographic stations, the location of the wetland(s) to be enhanced and mitigated, the location of staff gauges and/or piezometers, and other pertinent factors. OUC, et al., shall monitor the enhancement and mitigation areas until the approved success criteria has been achieved. V/XXVI. SURVEY OF ENHANCEMENT AREAS OUC, et al., must submit to the SJRWMD, DER, and SFWMD two (2) copies of an as- built survey of the enhancement areas certified by a registered surveyor or professional engineer showing dimensions of all planted areas, invert(s) elevation of the proposed culvert in enhancement area 3.6(A), and the final grade of all plugged ditches. An inventory of the planted species within the wetland enhancement areas will be shown on the survey. In areas where planting occurs, the inventory must include the type, number, distribution, and size of the planted vegetation, and must be referenced to the as-built survey. The as- built survey must be submitted to the referenced agency parties within thirty (30) days of completion of the initial planting. V/XXVII. MONITORING REPORTS FOR THE ENHANCEMENT AND MITIGATION AREAS Following joint approval of the plan referenced in Condition No. 26, OUC, et al., must furnish the SJRWMD, DER, and SFWMD with two copies of all Monitoring Reports for the enhancement and mitigation areas describing the status of the mitigation and enhancement areas until the enhancement and mitigation areas achieve the success criteria. V/XXVIII. REVISIONS TO ENHANCEMENT AND MITIGATION If it is determined that successful enhancement is not occurring based on the monitoring reports or trends, OUC, et al., must, within 30 days, provide the SJRWMD, DER and SFWMD with a narrative describing the type and causes of failure with a complete set of plans for the redesign and/or replacement planting of the mitigation and enhancement areas demonstrating that the success criteria can be achieved. Within 30 days of joint agency approval of the amended plans, OUC, et al., must implement the redesign and/or replacement planting. Following completion of such work, the success criteria as stated above or as modified by subsequent approval of the plan must again be achieved. In addition, the monitoring required by the conditions of this permit must be conducted. V/XXIX. EROSION AND SEDIMENT CONTROL DURING CONSTRUTION OUC, et al., must select, implement, and operate all erosion and sediment control measures required to retain sediment on-site and to prevent violations of water quality standards as specified in Chapters 17-302 and 17-4, F.A.C. OUC, et al., is encouraged to use appropriate Best Management Practices for erosion and sediment control as described in the "Florida Land Development Manual: A Guide to Sound Land and Water Management" (DER, 1988). All erosion and sediment control measures must remain in place at all locations until construction is completed and the soils are stabilized. Thereafter, OUC, et al., will be responsible for the removal of the control measures (except for the control measures in the areas of fill for the unpaved access road which shall be permanent). V/XXX. EROSION AND SEDIMENT CONTROL DURING OPERATION Following the completion of construction, OUC, et al., must construct and maintain a permanent protective vegetative and/or artificial cover for erosion and sediment control on all land surfaces exposed or disturbed by construction or alteration of the certified project. A permanent vegetative cover must be established within 60 days after planting or installation. V/XXXI. INCORPORATION OF MITIGATION PLAN The proposed mitigation plan submitted to SJRWMD by OUC for the Curtis H. Stanton Energy Center, Unit 2, dated June 21, 1991, July 20, 1991, September 11, 1991, September 18, 1991, and September 19, 1991 is incorporated as a condition of this certification except where specifically superseded by certification conditions. V/XXXII. COMPLETION OF SURFACE WATER MANAGEMENT SYSTEM Construction or alteration of the surface water management system must be completed and all disturbed areas must be stabilized in accordance with the submitted plans and certification conditions prior to use of the infrastructure for its intended purpose. V/XXXIII. RETENTION/DETENTION STORAGE AREAS At a minimum, all retention/detention storage areas must be constructed to rough grade prior to the placement of impervious surface within the area to be served by those facilities. To prevent reduction in storage volume and percolation rates, all accumulated sediment must be removed from the storage areas prior to final grading and stabilization. V/XXXIV. ACCESS ROAD AND TRANSMISSION LINE CONSTRUCTION PLANS Final Access Road and Transmission Line construction plans must be submitted to the SJRWMD at least 30 days prior to commencement of construction. The final plans must be consistent with the plans and calculations received by the SJRWMD on July 22, 1991, such that the requirements of Chapters 40C-4, 40C-41 and 40C- 42, F.A.C. continue to be met. V/XXXV. ACCESS ROAD FILL The fill material for the access roads must satisfy the soil properties assumed in the calculations received by the SJRWMD on July 22, 1991. If fill is to be acquired on site, a plan depicting the location of the area to be used for fill for the Access Roads must be submitted to the SJRWMD at least 30 days prior to commencement of construction. Access to the on-site fill material must be shown on the plan. V/XXXVI. CONTRACTOR REVIEW AND POSTING OF CONDITIONS OF CERTIFICATION OUC, et al., must require the contractor to review and maintain a copy of this document, complete with all conditions, attachments, and exhibits, in good condition and posted on the construction site. Part VI Conditions Recommended by the Florida Department of Transportation VI/I. CONSTRUCTION IMPACT MITIGATION PROGRAM OUC shall develop and implement at its own expense a construction traffic impact mitigation program after consultation with DOT, and report that will be submitted to DOT prior to commencement of construction of Stanton Unit 2. The program will detail the actions that OUC will take to reduce the impacts of construction traffic, which report shall address the following actions: OUC shall actively promote and encourage car-pooling by construction companies and workers, including contractors and subcontractors, from whom it obtains construction services, and OUC shall further explore with appropriate public mass-transportation providers in the area the possibility of park-and- ride service to the site. OUC shall utilize to the extent practicable the existing railway access to the Stanton site for the delivery of equipment and materials needed for the project construction. OUC will explore with its contractors and subcontractors the practicability of staggering construction employee work schedules, and encourage the staggering of shifts to the extent feasible to mitigate peak hour traffic congestion problems. OUC will consult with the appropriate Winter Park DOT personnel regarding the practicality of providing temporary traffic control devices and alteration of signal times to assist in maintaining proper traffic flow at the most affected intersections which are the intersections of Alafaya Trail with both the East-West Expressway and State Road 50. OUC shall suggest and encourage the use by construction personnel of alternate public road access to the Stanton site as appropriate to alleviate traffic congestion. Part VII Conditions Stipulated for the Red-Cockaded Woodpecker Management Area VII/I. RED-COCKADED WOODPECKER MANAGEMENT AREA IDENTIFICATION All lands depicted on Figure 4.2 (attached hereto) of the August 1981 red- cockaded woodpecker (RCW) Management Plan, except for the area specifically identified as "construction impact of proposed generating Units 1, 2, 3, and 4" constitute the red-cockaded woodpecker management area subject to the Management Plan specified in Condition XXXI of the Site Certification granted OUC by the Siting Board on December 14, 1982. (DOAH Case No. 81-1431) VII/II. USE AND LIMITATIONS OF THE RCW AREA With regard to the RCW management area, in addition to Condition XXXI of the December 14, 1982 Order of the Florida Siting Board: OUC may conduct activities within the RCW management area described in Condition XXXI which are provided for in the Siting Board's certification orders for Units 1 and 2, including without limitation the execution of habitat restoration, enhancement, and creation required as mitigation. OUC may conduct management, including maintenance in their existing configuration and condition, of existing unpaved private roads utilized by OUC, maintenance of existing water and sewer lines, of existing transmission lines and substation, and other maintenance and management activities within the area of Condition XXXI which are consistent with its purposes. OUC shall take appropriate action to manage the RCW management area to achieve the purposes required by Condition No. XXXI with regard to the red- cockaded woodpecker, and in general to preserve the natural conditions of the area, including other protected species of native wildlife, vegetation, wetlands, and particularly the tributaries and headwaters of the Econlockhatchee River. OUC may act to implement the red-cockaded woodpecker management plan, to monitor its effectiveness, and to react to fire, flood, or other unforeseeable natural or manmade disturbances. Any reports generated by OUC concerning activities within or management of the RCW management area shall be provided to the Florida Game and Fresh Water Fish Commission. OUC shall allow only those activities of others within the RCW Management Area which are consistent with its management in a natural state. Such activities shall be limited to environmentalrestoration, scientific research, habitat management (such as controlled burning) and nature study. Unless specifically authorized by an order of the Siting Board, dredging, filling, construction of buildings, road-ways, dumping of debris, excavation, and clearing of native vegetation shall be prohibited in the area defined by Condition XXXI. The provisions of Sections 403.516(1) (a) and (b) notwithstanding, OUC agrees that any activity prohibited in this paragraph within the area described in the RCW management area shall be authorized only by affirmative vote of the Siting Board. OUC hereby stipulates as a factual matter, which shall be binding on it, and all of its officers, agents, attorneys, and employees, that the "alternate access road" authorized by this supplemental certification completes the necessary roadway access for Units 1 and 2, to allow the full development thereof. Any additional access for electric power generation, and any additional facilities necessary for the construction of Units 3 and 4 will be the subject of a comprehensive Supplemental Certification application or applications for Units 3 and 4. If OUC determines to pursue a modification of its certification with regard to the easement recorded December 30, 1987, at ORB 3946, Page 3187, Orange County, Florida, it shall do so as a ministerial act only and shall not actively utilize its resources, funds or personnel to support such an application. [Final page of conditions of certification is a map "areas of construction impacts of red-cockaded woodpeckers" which is attached to all hard copies of this order.] APPENDIX B TO RECOMMENDED ORDER, CASE NO. 91-1813EPP The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by the Applicants, OUC, et al. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4(4); 6(1); 8(2); 9(3); 10(7); 14(8); 15(9); 20-22(10-12); 24-28(13-17); 40-61(18-40); 70-82(41-53); 84- 86(54-56); 89(57); 90(58); 97-100(60-63); 109(59); 110(64); 112(70); 115-117(71- 73); 120(83&84); 121 & 122(85); 123(86); 124(87-91); 125(92);136-148(93-105); 149(108); 151(111); 191-201(114-124); 203 & 204(125 & 126); 206-209(127-130); 212(131); and 215-223(132-140). 2. Proposed findings of fact 1-3, 5, 11, 12, 16-19, 23, 29-33, 38, 39, 62-69, 83, 101-108, 111, 113, 114, 118, 119, 127, 128, 150, 152, 202, 205, 210, and 211 are subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 7, 13, 87, 88, 91-96, 126, 129-135, 153-190, 213, and 214 are unnecessary. 4. Proposed findings of fact 34-37 are irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Department of Environmental Regulation 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-104(1-104) and 105- 127(114-136). Specific Rulings on Proposed Findings of Fact Submitted by St. Johns River Water Management District 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(4); 4-6(1-3); 9(8); 10- 13(10-13); 23(93); 34-36(93-95); 39(98); 41-44(99); 47(100); 49(102); 52(104); 53-55(105-107); 56(109); 58(109); 67-72(41-46); 73-84(46-52); 86(55); 87(39 & 40); 88(125); 90(128); and 91(40). 2. Proposed findings of fact 2, 3, 7, 8, 14-22, 24-33, 37, 38, 40, 46, 48, 50, 51, 62, 63, 85, and 92 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 57 is unnecessary. Proposed findings of fact 45, 59-61, 64, 65, and 93 are irrelevant. Proposed finding of fact 66 is unsupported by the credible, competent and substantial evidence. COPIES FURNISHED: Richard Donelan, Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Thomas B. Tart, General Counsel Orlando Utilities Commission 500 South Orange Avenue Orlando, FL 32801 Kenza Van Assenderp, Attorney at Law C. Laurence Keesey, Attorney at Law Young, van Assenderp, Varnadoe & Benton P. O. Box 1833 Tallahassee, FL 32302-1833 Fred Bryant, Attorney at Law Moore, Williams, Bryant & Peoples 306 East College Avenue Tallahassee, FL 32302 James Antista, General Counsel Florida Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, FL 32399-1600 Ken Plante, General Counsel Florida Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, FL 32399 Kathryn Mennella Senior Assistant General Counsel St. Johns River Water Management District P. O. Box 1429 Palatka, FL 32178-1429 G. Stephen Pfeiffer, General Counsel Kathryn Funchess, Assistant General Counsel Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 Cliff Guillet East Central Florida Regional Planning Council 1011 Wymore Road, Suite 105 Winter Park, FL 32789 Tom Wilks, Attorney at Law Orange County 201 South Rosalind Avenue 6th floor Orlando, FL 32801 John Fumero, Attorney at Law South Florida Water Management District 3301 Gun Club Road P. O. Box 24680 West Palm Beach, FL 33416-4680 Michael Palecki Bureau Chief, Electric and Gas Division of Legal Services Florida Public Service Commission 101 East Gaines Street Fletcher Building, Room 212 Tallahassee, FL 32399-0850 Hamilton S. Oven, P.E., Administrator Siting Coordination Office Division of Air Resources Management Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Charles Lee Senior Vice President Florida Audubon Society 460 Highway 435, Ste. 200 Casselberry, FL 32707 William H. Roberts Assistant General Counsel Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, FL 32399-0458 Honorable Lawton Chiles Governor State of Florida The Capitol Tallahassee, FL 32399 Honorable Robert A. Butterworth Attorney General State of Florida The Capitol Tallahassee, FL 32399-1050 Honorable Bob Crawford Commissioner of Agriculture State of Florida The Capitol Tallahassee, FL 32399-0810 Honorable Betty Castor Commissioner of Education State of Florida The Capitol Tallahassee, FL 32399 Honorable Jim Smith Secretary of State State of Florida The Capitol, PL-02 Tallahassee, FL 32399-0250 Honorable Tom Gallagher Treasurer and Insurance Commissioner State of Florida The Capitol Tallahassee, FL 32399-0300 Honorable Gerald A. Lewis Comptroller State of Florida The Capitol, Plaza Level Tallahassee, FL 32399-0350
The Issue The ultimate issue is whether Florida Power Corporation (FPC) engaged in an unlawful employment practice by discriminating against James A. Brand on account of handicap in violation of Section 760.10, Florida Statutes (1989)
Findings Of Fact Florida Power Corporation is an electrical utility engaged in the generation, transmission, and distribution of electricity. FPC operates and maintains electrical generating plants throughout its service area, including Crystal River, Florida, where it operates two fossil generating plants, Crystal River South and Crystal River North, and a nuclear generating plant, Crystal River 3. The maintenance of the plants' equipment is performed by plant maintenance employees and by employees assigned from the System Maintenance Crew (SMC). Both regular and temporary employees work as members of the SMC in the job classifications of mechanic, certified welder mechanic, and electrician. Petitioner, James Brand, was employed by FPC on nine separate occasions during the years 1985 through 1988 as a temporary employee in the job classification of mechanic and certified welder mechanic on FPC's SMC. Temporary employees, such as Mr. Brand, are hired by FPC for the SMC for time periods of less than six months to perform overhaul and maintenance work on boilers, turbines, generators, pumps, fans, and other plant equipment during a unit or plant outage. Temporary employees are laid off and their employment is terminated as the outage work is completed. Mr. Brand had a preemployment physical examination before being initially hired as a temporary employee on the SMC in 1985. Thereafter, he had preemployment physical examinations on two occasions prior to reemployment by FPC. In June 1988, Mr. Brand was notified by letter from his attorney, Alwyn Luckey, that he has an asbestos-related lung disorder known as asbestosis. In June 1988, Mr. Brand received a clinical evaluation from Dr. Lewis J. Rubin, Head, Division of Pulmonary Medicine, University of Maryland School of Medicine, that he has pulmonary asbestosis. In approximately January or February 1989, Kathleen Moyer, a human resources representative in FPC's Crystal River office, contacted Mr. Brand regarding reemployment as a mechanic or certified welder mechanic on the SMC to work during a unit or plant outage. Mr. Brand went to Ms. Moyer's office to update his records and, at that time, provided her with Dr. Rubin's clinical evaluation reflecting that he has pulmonary asbestosis and with a copy of Mr. Luckey's June 21, 1988, letter. Ms. Moyer provided Dr. Rubin's report to Dr. Alex Sanchez, FPC's regional medical director. Mr. Brand was thereafter scheduled for a physical examination with Dr. Sanchez in February 1989. Mr. Brand also provided Dr. Sanchez with copies of Dr. Rubin's clinical evaluation and Mr. Luckey's June 21, 1988, letter. Dr. Sanchez asked Mr. Brand to get a second medical opinion. On March 4, 1989, Mr. Brand went to a physician, Dr. Nikhil Shah, who conducted a pulmonary examination and a pulmonary function or spirometry test. The results were given to Dr. Sanchez. Dr. Sanchez thereafter received a letter dated March 16, 1989, from Dr. Lewis Rubin, who had initially diagnosed Mr. Brand's medical condition as pulmonary asbestosis. Dr. Rubin stated in his March 16 letter that he had reviewed the pulmonary function test performed by Dr. Shah on March 4, and that Mr. Brand's asbestosis "should in no way impair his ability to do his job as long as he is not being exposed to noxious fumes or other environmental irritants." Dr. Ronald S. Kline, Director of Health Services for FPC, thereafter reviewed Mr. Brand's medical records, including Dr. Rubin's clinical evaluation diagnosing Mr. Brand as having pulmonary asbestosis and Dr. Rubin's March 16 letter. As Director of Health Services for FPC, Dr. Kline is responsible for the overall function of the medical department, which includes responsibility for determining whether a person has a physical or mental impairment which might limit his/her activities as they relate to his/her employment. Dr. Rubin's clinical evaluation states that Mr. Brand is at risk for the progression of pulmonary asbestosis even-in the absence of further exposure to asbestos. Dr. Kline did not request that Mr. Brand undergo any additional tests to determine if he suffers from asbestosis nor did Dr. Kline make an independent diagnosis that Mr. Brand has asbestosis. Dr. Kline accepted Dr. Rubin's evaluation and diagnosis of Mr. Brand. Dr. Kline had no reason to disbelieve the diagnosis of Mr. Brand's own physician, especially when the information regarding his medical condition was presented by Mr. Brand to FPC. On April 5, 1989, Dr. Kline issued a guideline to the human resources department placing the following restriction on Mr. Brand's employment activities: "No exposure to irritating gases or fumes, or any other environmental irritant." Dr. Kline based his recommendation on Dr. Rubin's evaluation and assessment. Moreover, Dr. Kline agreed, on the basis of his own medical experience, training, and education, that Dr. Rubin's recommendation of restrictions on Mr. Brand's activities was entirely reasonable. In Dr. Kline's medical opinion, Mr. Brand's continued employment in a position where he would be exposed to noxious fumes, gases, or other environmental irritants would pose a substantial risk of injury or harm to Mr. Brand's health. Dr. Kline does not and did not make decisions or recommendations regarding the hiring or reemployment of employment applicants. At no time did Dr. Rline recommend or otherwise indicate that Mr. Brand should not be reemployed by FPC. Rather, it was Dr. Kline's recommendation that he be employed in jobs in which he would not be exposed to noxious fumes, gases, or environmenta1 irritants. After receiving Dr. Kline's report, a human resources representative contacted Carey Hamilton, senior mechanical supervisor, and asked if he could employ a person in the position of mechanic or certified welder mechanic on the SMC who could not be exposed to irritating gases, fumes, and other environmental irritants. As senior mechanical supervisor, Mr. Hamilton is responsible for hiring and supervising the" regular and temporary mechanics and certified welder mechanics on the SMC. Mr. Hamilton has working knowledge of the environment inside the power plants due to his experience as an employee and supervisor on the SMC. He has been employed by FPC for over fifteen years in the job classifications of temporary mechanic, lab technician, certified welder mechanic, first line supervisor, and senior mechanical supervisor. He has worked as a certified welder mechanic, first line supervisor, and senior mechanical supervisor in all of FPC's power plants. Moreover, approximately ten years of Mr. Hamilton's experience has involved working with the SMC and supervising regular and temporary employees on the SMC, including during unit or plant outages. Based on his experience and firsthand knowledge of the work environment in the plants, Mr. Hamilton determined that he could not employ a person to work as a mechanic or certified welder mechanic on the SMC who could not be exposed to irritating gases, fumes, and other environmental irritants. At the time Mr. Hamilton responded to the human resources employment inquiry, he was unaware of the identity of the individual human resources was inquiring about or that this person has asbestosis. All employees on the SMC are initially hired into the mechanic classification. However, the temporary employees who are hired to work during a plant outage are usually upgraded to the certified welder mechanic position after they pass certain tests. The mechanics and certified welder mechanics working in the plant during an outage are continuously exposed to noxious fumes, gases, and other environmental irritants. Pulverized coal and fly ash, both of which have the consistency of face powder, exist in abundance throughout the plant in areas where the mechanics and certified welder mechanics are assigned to work. They are also exposed to other major irritants including sulfur dioxide gas, flue gases, smoke and dust created by tools, and irritants created by sandblasting and grinding. Mr. Brand was hired as a temporary on the SMC because of his welding and pipe fitting skills. He was qualified and certified to make safety-related pressure welds. FPC expends a significant amount of money in testing and certifying persons employed on the SMC so they can be used as welders. Prior to each period of his employment on the SMC, Mr. Brand was required to take welding certification tests in order to qualify as a certified welder. He always passed the certification tests and therefore was qualified to work as a certified welder mechanic. As a certified welder mechanic, Mr. Brand would work primarily in and around the boiler and boiler cavity. The work that is performed inside the boiler cavity by certified welder mechanics involves inspection, repair, and replacement of boiler tubes, replacement of burner fronts and defusers, and refractory repair. The certified welder mechanics clean the boiler tubes with a grinder prior to inspection. Thereafter, their work typically consists of repairing boiler tube leaks with a weld and replacing sections of the boiler tubes. The performance of this work involves grinding, burning, cutting, and welding, all of which produces fumes, gases, and other airborne irritants. The burner replacement and refractory repair work also exposes the certified welder mechanics to similar fumes, gases ~ and irritants. In addition to the boiler area, the certified welder mechanics perform work on the precipitators. This work involves burning, welding, and cleaning. The bottom ash hopper and the pulverizers that are used to crush coal are cleaned and repaired by certified welder mechanics during an outage. This work involves cutting, burning, grinding, and welding which produces noxious fumes and gases. Working on the water front and in the turbine areas during an outage exposes these SMC employees to fumes and dust particles created by sandblasting. During an outage, the SMC employees will be working on one unit that is out of operation; however, they are working next to a unit that is in operation. The unit that is in operation produces gases, fumes, and airborne irritants. The fact that Mr. Brand might work as a mechanic instead of a certified welder mechanic would not insulate him from exposure to noxious fumes, gases, and other environmental irritants. The duties of a SMC mechanic include sandblasting and grinding dirty or rusty metal, burning with a cutting torch, welding non-safety related welds, and' wire brushing. These activities are performed on a daily basis by mechanics. The sandblasting or grinding work is done with an abrasive disk that creates airborne particulates that contaminate the air. The burning process is used in making repairs such as in the steel ducts that transport air and gases to and from the boilers. Sulfur-based deposits collect in these ducts and when a torch is used in that area, the burning creates sulfur dioxide gas and other fumes. In addition, oxygen blasts are used in the burning process to increase the heat and blow metal out of the weld. This causes fly ash, dust, and other irritants to become airborne. The welding that is performed by mechanics also produces fumes and gases. All of the tools used by the SMC in the power plant are air-driven tools. The air discharged by these tools stirs up the dust, fly ash, gases, and other irritants in the workplace environment. During the time periods that a mechanic is not directly engaged in grinding, burning, or welding, he is working in close proximity to other employees who are performing those tasks, and thus, is exposed to the noxious gases, fumes, and irritants. Mr. Hamilton determined that he could not employ a certified welder mechanic on the SMC with the following restriction: "No exposure to irritating gases or fumes, or any other environmental irritant." He did not know that Mr. Brand was the proposed employee or that Mr. Brand has asbestosis. Mr. Hamilton knew that employing an individual to work as a mechanic or certified welder mechanic would expose that individual to gases, fumes, and other environmental irritants. The only positions supervised by Mr. Hamilton on the SMC are mechanic, certified welder mechanic, and tool room attendant. The tool room is housed in a large trailer parked outside of the plant. The tool room attendant's duties include issuing and receiving tools and repairing tools. These duties are performed in the tool room trailer. Because of his work location, the tool room attendant is not exposed to fumes, gases, and environmental irritants in the same way as the mechanics and certified welder mechanics. Mr. Hamilton later determined that Mr. Brand could be employed in the tool room consistent with the restrictions issued by Dr. Kline. Mr. Hamilton discussed with a human resources representative the possibility of employing Mr. Brand in the tool room. Mr. Hamilton had no objection to employing Mr. Brand in the tool room. However, there were no vacancies in that position and there have been no vacancies since that time. During 1990, Mr. Brand worked in Fluor Constructors Corporation, at Crystal River 3. Fluor Constructors is an independent contractor that is employed by FPC to perform repair and maintenance work. Mr. Brand received the referral to this job site through the Pinellas Park Local of the Pipefitters Union. While working for Fluor at Crystal River 3, he was supervised by Fluor's supervisors and not by FPC's supervisors. Mr. Brand is not seeking back pay for the period from February 23, 1991, through June 6, 1991. He was employed by a number of different employers during the period from January 1989 through May 1991. Such employers include Fluor Contractors, Inc., Teco Electric, Nisco, and a nuclear power plant in Mississippi. Mr. Brand would not be entitled to recover back pay or other monetary relief for the periods while working for other employers insofar as such interim employment periods coincided with SMC outage work periods. The hourly rate as well as other benefits of employment for temporary employees are set forth in the labor agreement between FPC and the International Brotherhood of Electrical Workers. As of December 5, 1988, the hourly wage rate for a mechanic was $16.51 per hour and for a certified welder mechanic was $18.72 per hour.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a Final Order denying the Petition for Relief. DONE and ENTERED this 11th day of July, 1991, in Tallahassee, Florida. DIANE R. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1991. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, James A. Brand 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 1(2); 3(3&4); 475 (5-7); 6(63); 7(8); and 8-16(10-17). 2. Proposed findings of fact 17-19, 21-35, 50-54, 65-70, 76, 77, 84, 85, 91, and 92 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 36-49, 55-64, 82, 83 and 86- 90 are irrelevant. Proposed finding of fact 20 is unnecessary. Proposed findings of fact ,1-75 and 78-81 are unsupported by the credible, competent and substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Florida Power Corporation 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-63(1-62). COPIES FURNISHED: John Barry Relly II Attorney at Law Ray, Kievit & Kelly 15 West Main Street Pensacola, FL 32501 J. Lewis Sapp Sharon P. Morgan Attorneys at Law 800 Peachtree-Cain Tower 229 Peachtree Street, N.E. Atlanta, GA 30303 Ronald M. McElrath, Executive Director Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 Johp Knox Road Tallahassee, FL 32399-1570
The Issue Whether the Governor and Cabinet sitting as the Siting Board should approve (on appropriate conditions) or deny petitioners' application for a certificate authorizing construction and operation of the proposed Cedar Bay Cogeneration Project, an electrical power plant?
Findings Of Fact As far as the evidence showed, petitioners never analyzed the costs of a natural gas facility as compared to those of a coal-fired facility. According to uncontroverted testimony, however, natural gas is not commercially available in the quantities necessary to fire the plant. If fueled by natural gas, instead of by coal as proposed, the Cedar Bay Cogeneration Project would require 50 million cubic feet of natural gas per day, on a firm basis. Natural Gas Availability The Florida Gas Transmission system, a branch of which (the "Brooker lateral") serves People's Gas System, the only local distribution company in Jacksonville, (RT.60) has no transmission capacity not already fully allocated to existing users. Among Florida Gas Transmission Company's customers are other power plants, including some operated by Jacksonville Electric Authority. Florida has "roughly 6,000 megawatts of power [generating capacity] that is primarily gas fired . . . [and] another 5,000 megawatts of power [generating capacity] that uses natural gas as a secondary fuel." RT.62. It would take more than "the entire capacity of the Florida Gas Transmission system to move . . . the fuel required to generate . . . 6,000 megawatts." Id. Jacksonville Electric Authority buys natural gas on an interruptible basis, because it has been unable to obtain a commitment to a constant or "firm" supply. The Florida Gas Transmission Company has plans to expand its transmission capacity by 100 million cubic feet a day to a total of 925 million cubic feet a day in 1991 or early 1992. But allocation of the increase -- an issue in obtaining approval from the FERC -- has already been accomplished, and the expansion will make no firm capacity available to new users. Talk of another expansion has already begun, but so far the company has done little more than collect questionnaires (which suggest demand for double the existing service.) At one time, liquefied natural gas came from Algeria to Elba Island near Savannah, Georgia, by ship. A 20- inch pipeline connects the terminal with the Sonat system on the mainland. But no Sonat pipeline comes within some 150 miles of Jacksonville, and shipments of liquefied natural gas to Elba Island ceased with the decline of oil prices after the mid-l970s. At present, the Florida Gas Transmission Company has a monopoly in Jacksonville and peninsular Florida. But `a system. in southern Georgia "called Mobile Bay" (RT.77) has plans to extend a 12-inch pipeline from an existing line near Live Oak to Jacksonville. With respect to some or all of this planned capacity, "certain commitments have been made." RT.59. Under pressure, the proposed 12-inch pipeline could transmit over 40 million cubic feet of natural gas a day, but only if that much gas reached Live Oak, and "the South Georgia system is constrained during certain parts of the year," RT.59, as it is. From the fact that a pipeline is to be constructed to bring less natural gas to Jacksonville than would be required to fuel the Cedar Bay project it might be inferred that the project itself would justify construction of a pipeline. But the opinion of petitioners' expert, Mr. Van Meter that natural gas is not an available or reasonable fuel for the Cedar Bay Cogeneration Project (RT.65, 74, 79) -- and would not have been even if natural gas had been planned for earlier -- went unrebutted. Likewise unrebutted was the testimony of another of petitioners' experts that, from an economic standpoint, "Base load power plants['] most desirable fuels would be coal and nuclear." RT. 103. Construction Dewatering The applicants have modified their dewatering plan, and now propose new construction techniques for the railcar unloading facility; sequential installation of underground pipes; sequential excavation of pump pits; and an advanced effluent treatment system. (RT. 147, 149-52, 171-76, 178, 185-92; AES Ex. 4R) A cofferdam or groundwater barrier encircling the railcar unloading area would drastically reduce the amount of groundwater seeping into the excavation during construction. (RT. 173; AES Ex. 4R, 7R). Sheet piling is to be driven into perimeter trenches filled with bentonite cement. (RT. 174-75; AES Ex. 4R, 7R, 8R). Using a jet grouting technique, a five- to ten-foot thick seal would be created underneath the planned excavation. (RT. 175-76; AES Ex. 4R, 7R, 9R). Steel tie-back rods would strengthen the cofferdam, and a pump would move seepage to the surface from a sump designed to collect groundwater seeping through the cofferdam and up through the grout into the excavation. (RT. 176-77; AES Ex. 4R, 7R) The modified construction techniques now proposed would reduce maximum groundwater drawdown outside the cofferdam from approximately the 30 feet below grade originally contemplated to a currently anticipated level of approximately 5.5 feet below grade. (RT. 279; AES Ex. 10R). Excavations to install circulating water piping and to create pits to house runoff pumps would be scheduled to keep down the volume of dewatering effluent at any given time. (RT. 178-79, AES Ex. 4R) Installing a cofferdam, jetting in grauting, and sequencing construction, as now proposed, would reduce dewatering effluent flows from the 1000 to 2000 gallons per minute originally contemplated to no more than 200 gallons per minute. (RT. 180, 185; AES Ex. 4R, pp. 1 and 2) In another modification, the applicants now propose an advanced treatment system to improve the quality of (a diminished quantity of) dewatering effluent, prior to its introduction into Seminole Kraft's cooling water system. The proposed treatment system would employ as many as five treatment technologies, if needed, to ensure that cooling water system discharges to the St. Johns River containing dewatering effluent would meet Class III water quality standards. Equipment necessary to bring each technology to bear would be on site and available for use before dewatering began. (RT. 151, 185, 193, 196; AES Ex. 4R) Mixing dewatering effluent with lime would remove dissolved metals from solution. Then a clarifier would precipitate and separate solids. These first two stages of the treatment process now proposed comprise the whole of the treatment process originally proposed. (RT. 149-50, 185-68; AES Ex. 4R) Additional treatment, as needed, would include sand filtering, to eliminate the need for any turbidity mixing zone (RT. 151, 190, 198, 201; AES Ex. 4R); using a carbon filter to remove organic compounds (and some heavy metals), obviating the need for a phenol mixing zone (RT. 190-191, 198, 201; AES Ex. 4R); and, finally, selective ion exchange, to provide additional metals removal, if needed. (RT. 151, 191, 201-02; AES Ex. 4R) The applicants are to ascertain and report the quality of effluent as long as dewatering takes place. They must use a composite sampling method once a week for the first month. Thereafter they may use a single "grab" sample, but must continue assessing effluent quality once a week until dewatering ceases. The proposed monitoring program must be capable of detecting whether water quality standards are being met. (RT. 166, 195, 321-22; AES Ex. 4R). The applicants' modified dewatering plan is an environmental improvement over the previous plan and would ensure compliance with water quality standards. (RT. 193, 196, 261) DER has recommended and the applicants have agreed to accept modified Conditions III.A.12. (Construction dewatering), III.A.13 (Mixing Zones), and III.A.14. (Variances to Water Quality Standards). (RT. 152; AES Ex. SR as modified by the Joint Recommended Order filed November 1990). Based upon the applicants' modified dewatering plan, a reasonable allocation of water for construction dewatering is a maximum daily withdrawal not to exceed .288 million gallons. Modified Condition V.D. is reasonable and the applicants accept its terms. (RT. 254, 294-295; SJRWMD Ex. IR) Water for Cooling Purposes The applicants now propose to use either reclaimed water or river water for cooling, to the extent practicable, in an effort to avoid using groundwater as the permanent, primary source of cooling water. September drought conditions caused record low readings for the Floridan aquifer at 23 monitoring wells in the northern part of the St. Johns River Water Management "District, including wells in Duval County." RT. 248. The original proposal called for withdrawing four million gallons of water a day from the Floridan aquifer for cooling, when power generation begins. Under the modified proposal, groundwater would still be used as makeup for the steam or power generation system, as service water, and for potable purposes, but (except in emergencies) not for cooling, assuming the applicants obtain the regulatory approval they would be obliged to seek. The applicants have agreed to accept modified Condition XXV (Use of Water for Cooling Purposes). (RT. 155-158, 204-208; AES Ex. 6R, 12R, 13R) Condition IV.C. has been modified to reflect the reduced withdrawal of groundwater that would be necessary if groundwater is not used for cooling. For the next seven years, a maximum annual withdrawal from the Floridan aquifer for non- cooling uses of no more than 530.7 million gallons and a maximum daily withdrawal of no more than 1.45 million gallons represent amounts that are considered reasonably necessary and efficient. Unless the City of Jacksonville has agreed, on or before December 1, 1990, to supply reclaimed water for cooling, the applicants will redesign the cooling system so that river water can be used for cooling. Salt in the Broward and St. Johns rivers requires the use of highly corrosion-resistant materials for certain system components. Constructing these system components with such materials would enable the cooling system to use river water, reclaimed water from the City, or Seminole Kraft wastewater. (RT. 155-56, 159-60, 216-17; AES Ex. 6R). If river water is used, existing Seminole Kraft intake and discharge structures would be utilized. In order to reduce ill effects on aquatic organisms, the applicants would install screening and filter systems upstream of the pumps. Brackish river water must be changed or "cycled" more often than groundwater, lest evaporation cause scaling that would clog the system. The volume of river water required for cooling tower makeup is estimated at approximately 14 million gallons per day. Because cooling with river water would require more water, the applicants propose to increase piping and valve sizes for the cooling system. (RT. 155-57, 168, 215-16, 219-20; AES Ex. 6R) Modified Condition XXV specifies a procedure for amending site certification to require use of one of two primary cooling water sources: reclaimed water from the City or surface water from the Broward or St. Johns rivers. The applicants have agreed to apply within six months for modifications concerning design and operation of the plant cooling system. The application must contain information necessary to demonstrate that operation of the cooling system without using groundwater as the primary cooling water source would comply with all relevant non-procedural agency standards or qualify for a variance. The application must also detail the reasons for selection of one requested source over other possible sources. There would be no delegation to DER's Secretary for determinations under Condition XXV. Final authority to render determinations under Condition XXV would remain with the Siting Board. (RT. 207, 269; SJRWMD Ex. 2R) As drafted by the parties, modified proposed Condition xxv provides that groundwater may be utilized for cooling only in the event that neither river water nor reclaimed water from the City of Jacksonville obtains necessary environmental approvals of the preferred primary cooling sources are denied on the grounds of unavailability, or environmental or economic impracticability, as set forth in the condition. (RT. 207, 228-30; AES Ex. 12R) The applicants modified cooling system plans and modified Condition XXV, as drafted by the parties, are designed to ensure that the cooling system will use either river water or reclaimed water, to the extent it is economically and environmentally practicable. Use of either of these sources for this proposed cooling facility is viewed by the SJRWMD as equally appropriate to fulfill its conservation and reuse standards and the state water policy, which require consumptive users to utilize, to the extent practicable, the lowest quality water suitable for the proposed use. (RT. 242-43, 299-300) The applicants have stipulated that it is economically feasible and practicable for them to pay $.18-1/2 per thousand gallons for reclaimed water without phosphorous treatment or $.22 per thousand gallons for treated reclaimed water, unless expenditures have already been made to construct the cooling system to utilize river water. They also stipulated that the river water cooling option is economically feasible and practicable, if the facility is authorized to operate with the same type of cooling tower discharge operation variances granted to the St. Johns River Power Park. (RT. 206, 218, 245, 295j AES Ex. 12R) The St. Johns River Power Park, a power plant in Duval County which was certified under the Florida Electrical Power Plant Siting Act, utilizes river water for cooling tower makeup and discharges its cooling tower blowdown into the St. Johns River. When river water is used for cooling, evaporation increases concentrations of pollutants already in the river. The St. Johns River Power Park's certification conditions include variances from Class III water quality standards which allow the facility to operate its cooling system with river water. These variances have been granted for two-year periods, with the permittee being required to obtain variance renewals every two years in order to continue operation of the cooling system. (RT. 206, 218-19, 288-89). Salt drift as well as concentrations of pollutants in the blowdown are being assessed. RT. 284. Use of Seminole Kraft's current wastewater is not mentioned in modified Condition XXV, as drafted by the parties. By the time the Cedar Bay cogeneration facility needs cooling water, the Seminole Kraft plant may have become a cardboard recycling facility, which would discharge a different and potentially more useful wastewater than is currently being discharged by Seminole Kraft. The precise quality of any such future effluent cannot be predicted with a high degree of certainty at this time. (RT. 222-23, 238-43) But the applicants should "evaluate the practicability under [SJRWMD] rules of utilizing Seminole Kraft wastewater . . . [using] the best information . . . available," (RT. 243) during the post- certification proceeding new Condition XXV calls for, at least if reclaimed water is unavailable from the City of Jacksonville. If a primary source of cooling water other than groundwater proves unavailable or environmentally or economically impractical, as set out in modified Condition XXV, a maximum annual withdrawal from the Floridan aquifer for all facility uses not to exceed 1,990 million gallons and a maximum daily withdrawal not to exceed seven million gallons are reasonable for a period of seven years. (RT. 211,12, 296-97; AES Ex. 14R) In the event groundwater became the primary cooling source, proposed Condition xxv would require the applicants to implement their groundwater mitigation plan. (RT. 207, 229-30; AES Ex. 12R). Under this plan, the applicants would fund a free- flowing well inventory in Duval County. Additionally, they would provide a contribution of $380,000 per year for plugging free- flowing wells to reduce discharges from these wells by seven million gallons a day, if discharges of such magnitude are found. Thereafter, the applicants' annual contributions, which are to continue as long as groundwater is used for cooling, would fund a water conservation and reuse grants program in Duval County. The plan represents not only a water conservation measure but also serves as an economic incentive to the applicants to pursue necessary approvals for use of another primary cooling water source. Overall Evaluation Hamilton S. Oven, Jr. testified without contradiction that the project as now proposed "would produce minimal adverse effects on human health . . . the environment the ecology of the land and its wildlife . . . [and] the ecology of state waters and their aquatic life." RT.277. He also testified that the applicants' proposal would comply "with relevant agency standards." (RT.273) (although the evidence showed variances would be needed for cooling tower blowdown, at least if reclaimed water is not used.) Mr. Oven explained that he used permitting agencies' "criteria as a measuring stick to show compliance and to try to produce the minimal adverse impacts as allowed by regulatory policy." RT.274. Like Mr. Oven, Stephen Smallwood, Director of DER's Division of Air Resources Management interprets "minimal" as used in the Florida Electric Power Plant Siting Act to mean "minimal with respect to the standards of the agencies." DER's Exhibit No. 2R, P. 11. Otherwise, he explained, "[Y]ou'd have to perhaps conclude . . . that you couldn't license any coal-fired units [. T]hey'd either all have to be natural-gas fired or . . . nuclear or . . . solar." Id. DER staff concluded that the proposed Cedar Bay Cogeneration Project effects a reasonable balance between the need for the project and the environmental impacts associated with the project. On this basis, DER recommended that the project be certified subject to recommended conditions of certification.
Recommendation It is, accordingly, RECOMMENDED: That the Siting Board grant the site certification application filed by AES Cedar Bay, Inc. and Seminole Kraft Corporation, as amended, subject to the agreed conditions of certification attached to the recommended order as an appendix, and on condition that the facility use reclaimed wastewater as cooling tower make-up within seven years of beginning operation. DONE and ENTERED this 29th day of May, 1990, in Tallahassee, Leon County, Florida. ROBERT T. BENTON, II 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 29th day of May, 1990. APPENDIX CONDITIONS OF CERTIFICATION When a condition is intended to refer to both AES Cedar Bay, Inc. and Seminole Kraft Corp., the term "Cedar Bay Cogeneration Project or the abbreviation "CBCP" or the term "permittees" will be used. Where a condition applies only to AES Cedar Bay, Inc. the term "AES Cedar Bay, Inc." or the abbreviation "AESCB" or the term "permittee," where it is clear that AESCB is the intended responsible party, will be used. Similarly, where a condition applies only to Seminole Kraft Corp., the term "Seminole Kraft Corp." or the abbreviation "SK" or the term "permittee," where it is clear that SK is the intended responsible party, will be used. The Department of Environmental Regulation may be referred to as DER or the Department. BESD represents the City of Jacksonville, Bio-Environmental Services Division. SJRWMD represents the St. Johns River Water Management District. GENERAL The construction and operation of CBCP shall be in accordance with all applicable provisions of at least the following regulations of the Department Chapters 17-2, 17-3, 17-4, 17-5, 17-6, 17-7, 17-12, 17-21, 17-22, 17-25 and 17-610, Florida Administrative Code (F.A.C.) or their successors as they are renumbered. AIR The construction and operation of AESCB shall be in accordance with all applicable provisions of Chapters 17-2, F.A.C. In addition to the foregoing, AESCB shall comply with the following condition of certification as indicated. Emission Limitations for AES Boilers Fluidized Bed Coal Fired Boilers (CFB) The maximum coal charging rate of each CFB shall neither exceed 104,000 lbs/hr, 39,000 tons per month (30 consecutive days, nor 390,000 tons per year (TPY). This reflects a combined total of 312,000 lbs/hr, 117,000 tons per month, and 1,170,000 TPY for all three CFBs. The maximum wood waste (primarily bark) charging rate to the No. 1 and No. 2 CFBs each shall neither exceed 15,653 lbs/hr, nor 63,760 TPY. This reflects a combined total of 31,306 lbs/hr, and 127,521 TPY for the No. 1 and No. 2 CFBs. The No. 3 CFB will not utilize woodwaste, nor will it be equipped with wood waste handling and firing equipment. The maximum heat input to each CFB shall not exceed 1063 MMBtu/hr. This reflects a combined total of 3189 MMBtu/hr for all three units. The sulfur content of the coal shall not exceed 1.7% by weight on an annual basis. The sulfur content shall not exceed 3.3% by weight on a shipment (train load) basis. Auxiliary fuel burners shall be fueled only with natural gas or No. 2 fuel oil with a maximum sulfur content of 0.3% by weight. The fuel oil with a maximum sulfur content of 0.3% by weight. The fuel oil or natural gas shall be used only for startups. The maximum annual oil usage shall not exceed 160,000 gals/year, nor shall the maximum annual natural gas usage exceed 22.4 MMCF per year. The maximum heat input from the fuel oil or gas shall not exceed 1120 MMBtu/hr for the CFBs. The CFBs shall be fueled only with the fuels permitted in Conditions 1a., 1b and 1e above. Other fuels or wastes shall not be burned without prior specific written approval of the Secretary of DER pursuant to condition XXI, Modification of Conditions. The CFBs may operate continuously, i.e. 8760 hrs/yr. Coal Fired Boiler Controls The emissions from each CFB shall be controlled using the following systems: Limestone injection, for control of sulfur dioxide. Baghouse, for control of particulate. Flue gas emissions from each CFB shall not exceed the following: Pollutant lbs/MMBtu Emission lbs/hr Limitations TPY TPY for 3 CFBs CO 0.19 202 823 2468 NOx 0.29 308.3 1256 3767 SO2 0.60(3-hr avg.) 637.8 -- -- 0.31(12 MRA) 329.5 1338 4015 VOC 0.016 17.0 69 208 PM 0.020 21.3 87 260 PM10 0.020 21.3 86 257 H2SO4mist 0.024 25.5 103 308 Fluorides 0.086 91.4 374 1122 Lead 0.007 7.4 30 91 Mercury 0.00026 0.276 1.13 3.4 Beryllium 0.00011 0.117 0.5 1.5 Note: TPY represents a 93% capacity factor. MRA refers to a twelve month rolling average. Visible emissions (VE) shall not exceed 20% capacity (6 min. average), except for one 6 minute period per hour when VE shall not exceed 27% capacity. Compliance with the emission limits shall be determined by EPA reference method tests included in the July 1, 1988 version of 40 CFR Parts 60 and 61 and listed in Condition No. 7 of this permit or be equivalent methods after prior DER approval. The CFBs are subject to 40 CFR Part 60, Subpart Da; except that where requirements within this certification are more restrictive, the requirements of this certification shall apply. Compliance Tests for each CFB Initial compliance tests for PM/PM10, SO2, NOx, CO, VOC, lead, fluorides, mercury, beryllium and H2SO4 mist shall be conducted in accordance with 40 CFR 60.8 (a), (b), (d), (e), and (f). Annual compliance tests shall be performed for PM. SO2, NOx, commencing no later than 12 months from the initial test. Initial and annual visible emissions compliance tests shall be determined in accordance with 40 CFR 60.11(b) and (e). The compliance tests shall be conducted between 90-100% of the maximum licensed capacity and firing rate of each permitted fuel. The following test methods and procedures of 40 CFR Parts 60 and 61 or other DER approved methods with prior DER approval shall be used for compliance testing: Method 1 for selection of sample site and sample traverses. Method 2 for determining stack gas flow rate. Method 3 or 3A for gas analysis for calculation of percent O2 and CO2. Method 4 for determining stack gas moisture content to convert the flow rate from actual standard cubic feet to dry standard cubic feet. Method 5 or Method 17 for particulate matter. Method 6, 6C, or 8 for SO2. Method 7, 7A, 7B, 7C, 7D, or 7E for nitrogen oxides. Method 8 for sulfuric acid mist. Method 9 for visible emissions, in accordance with 40 CFR 60.11. Method 10 for CO. Method 12 for lead. Method 13B for fluorides. Method 25A for VOCs. Method 101A for mercury. Method 104 for beryllium. Continuous Emission Monitoring for each CFB AESCB shall use Continuous Emission Monitors (CEMS) to determine compliance. CEMS for opacity, SO2, NOx, CO, and O2 or CO2, shall be installed, calibrated, maintained and operated for each unit, in accordance with 40 CFR 60.47a and 40 CFR 60 Appendix F. Each continuous emission monitoring system (CEMS) shall meet performance specifications of 40 CFR 60, Appendix B. CEMS data shall be recorded and reported in accordance with F.A.C. Chapter 17-2, F.A.C., and 40 CFR 60. A record shall be kept for periods of startup, shutdown and malfunction. A malfunction means any sudden and unavoidable failure of air pollution control equipment or process equipment to operate in a normal or usual manner. Failures that are caused entirely or in part by poor maintenance, careless operation or any other preventable upset condition or preventable equipment breakdown shall not be considered malfunctions. The procedures under 40 CFR 60.13 shall be followed for installation, evaluation and operation of all CEMS Opacity monitoring system data shall be reduced to 6-minute averages, based on 36 or more data points, and gaseous CEMS data shall be reduced to 1-hour averages, based on 4 or more data points, in accordance with 40 CFR 60.13(h). For purposes of reports required under this certification, excess emissions are defined as any calculated average emission concentration, as determined pursuant to Condition No. 10 herein, which exceeds the applicable emission limit in Condition No. 3. Operations Monitoring for each CFB Devices shall be installed to continuously monitor and record steam production, and flue gas temperature at the exit of the control equipment. The furnace heat load shall be maintained between 70% and 100% of the design rated capacity during normal operations. The coal, bark, natural gas and No. 2 fuel oil usage shall be recorded on a 24-hr (daily) basis for each CFB. Reporting for each CFB A minimum of thirty (30) days prior notification of compliance test shall be given to DER's N.E. District office and to the BESD (Bio-Environmental Services Division) office, in accordance with 40 CFR 60. The results of compliance test shall be submitted to the BESD office within 45 days after completion of the test. The owner or operator shall submit excess emission reports to BESD, in accordance with 40 CFR 60. The report shall include the following: The magnitude of excess emissions computed in accordance with 40 CFR 60.13(h), any conversion factors used, and the date and time of commencement and completion of each period of excess emissions (60.7(c)(1)). Specific identification of each period of excess emissions that occurs during startups, shutdowns, and malfunctions of the furnace boiler system. The nature and cause of any malfunction (if known) and the corrective action taken or preventive measured adopted (60.7(c)(2)). The date and time identifying each period during which the continuous monitoring system was inoperative except for zero and span checks, and the nature of the system repairs of adjustments (60.7(c)(3)). When no excess emissions have occurred or the continuous monitoring system has not been inoperative, repaired, or adjusted, such information shall be stated in the report (60.7(c)(4)). The owner or operator shall maintain a file of all measurements, including continuous monitoring systems performance evaluations; monitoring systems or monitoring device calibration; checks; adjustments and maintenance performed on these systems or devices; and all other information required by this permit recorded in a permanent form suitable for inspection (60.7(d)). Annual and quarterly reports shall be submitted to BESD as per F.A.C. Rule 17-2.700(7). Any change in the method of operation, fuels utilized, equipment, or operating hours or any other changes pursuant to F.A.C. Rule 17-2.100, defining modification, shall be submitted for approval to DER's Bureau of Air Regulation. AES - Material Handling and Treatment The material handling and treatment operations may be continuous, i.e. 8760 hrs/yr. The material handling/usage rates shall not exceed the following: Handling/Usage Rate Material TPM TPY Coal 117,000 1,170,000 Limestone 27,000 320,000 Fly Ash 28,000 336,000 Bed Ash 8,000 88,000 Note: TPM is tons per month based on 30 consecutive days, TPY is tons per year. The VOC emissions from the maximum No. 2 fuel oil utilization rate of 240 gals/hr, 2,100,000 gals/year for the limestone dryers; and 8000 gals/hr, 160,000 gals/year for the three boilers are not expected to be significant. The maximum emissions from the material handling and treatment area, where baghouses are used as controls for specific sources, shall not exceed those listed below (based on AP-42 factors): Particulate Emissions Source lbs/hr TPY Coal Rail Unloading Coal Belt Feeder neg neg neg neg Coal Crusher 0.41 1.78 Coal Belt Transfer neg neg Coal Silo neg neg Limestone Crusher 0.06 0.28 Limestone Hopper 0.01 0.03 Fly Ash Bin 0.02 0.10 Bed Ash Hopper 0.06 0.25 Ash Silo 0.06 0.25 Common Feed Hopper 0.03 0.13 Ash Unloader 0.01 0.06 The emissions from the above listed sources and the limestone dryers are subject to the particulate emission limitation requirement of 0.03 gr/dscf. However, neither DER nor BESD will require particulate tests in accordance with EPA Method 5 unless the VE limit of 5% opacity is exceeded for a given source, or unless DER or BESD, based on other information, has reason to believe the particulate emission limits are being violated. Visible Emissions (VE) shall not exceed 5% opacity from any source in the material handling and treatment area, in accordance with F.A.C. Chapter 17-2. The maximum emissions from each of the limestone dryers while using oil shall not exceed the following (based on AP-42 factors, Table 1, 3-1, Industrial Distillate, 10/86): Pollutant lbs/hr Estimated TPY Limitations TPY for 2 dryers PM/PM10 0.25 1.1 2.2 SO2 5.00 21.9 43.8 CO 0.60 2.6 5.2 NOx 2.40 10.5 21.0 VOC 0.05 0.2 0.4 Visible emissions from the dryers shall not exceed 5% opacity. If natural gas is used, emissions limits shall be determined by factors contained in AP-42 Table 1. 4-1, Industrial 10/86. The maximum No. 2 fuel oil firing rate for each limestone dryer shall not exceed 120 gals/hr, or 1,050,000 gals/year. This reflects a combined total fuel oil firing rate of 240 gals/hr, and 2,100,000 gals/year, for the two dryers. The maximum natural gas firing rate for each limestone dryer shall not exceed 16,800 CF per hour, or 147 MMCF per year. Initial and annual Visible Emission compliance tests for all the emission points in the material handling and treatment area, including but not limited to the sources specified in this permit, shall be conducted in accordance with the July 1, 1988 version of 40 CFR 60, using EPA Method 9. Compliance test reports shall be submitted to BESD within 45 days of test completion in accordance with Chapter 17- 2.700(7) of the Florida Administrative Code. Any changes in the method of operation, raw materials processed, equipment, or operating hours or any other changes pursuant to F.A.C. Rule 17-2.100, defining modification, shall be submitted for approval to DER's Bureau of Air Regulation (BAR). Requirements for the Permittees Beginning one month after certification, AESCB shall submit to BESD and DER's BAR, a quarterly status report briefly outlining progress made on engineering design and purchase of major equipment, including copies of technical data pertaining to the selected emission control devices. These data should include, but not be limited to, guaranteed efficiency and emission rates, and major design parameters such as air/cloth ratio and flow rate. The Department may, upon review of these data, disapprove the use of any such device. Such disapproval shall be issued within 30 days of receipt of the technical data. The permittees shall report any delays in construction and completion of the project which would delay commercial operation by more than 90 days to the BESD office. Reasonable precautions to prevent fugitive particulate emissions during construction, such as coating of roads and construction sites used by contractors, regrassing or watering areas of disturbed soils, will be taken by the permittees. Fuel shall not be burned in any unit unless the control devices are operating properly, pursuant to 40 CFR Part 60 Subpart Da. The maximum sulfur content of the No. 2 fuel oil utilized in the CFBs and the two unit limestone dryers shall not exceed 0.3 percent by weight. Samples shall be taken of each fuel oil shipment received and shall be analyzed for sulfur content and heating value. Records of the analysis shall be kept a minimum of two years to be available for DER and BESD inspection. Coal fired in the CFBs shall have a sulfur content not to exceed 3.3 percent by weight. Coal sulfur content shall be determined and recorded in accordance with 40 CFR 60.47a. AESCB shall maintain a daily log of the amounts and types of fuel used and copies of fuel analysis containing information on sulfur content and heating values. The permittees shall provide stack sampling facilities as required by Rule 17-2.700(4) F.A.C. Prior to commercial operation of each source, the permittees shall each submit to the BAR a standardized plan or procedure that will allow that permittee to monitor emission control equipment efficiency and enable the permittee to return malfunctioning equipment to proper operation as expeditiously as possible. Contemporaneous Emission Reductions This certification and any individual air permits issued subsequent to the final order of the Board certifying the power plant site under 403.509, F.S., shall require, that the following Seminole Kraft Corporation sources be permanently shut down and made incapable of operation, and shall turn in their operation permits to the Division of Air Resources Management's Bureau of Air Regulation, at the time of submittal of performance test results for AES's CFBs: the No. 1 PB (power boiler), the No. 2 PB, shall be specifically informed in writing within thirty days after each individual shut down of the above reference equipment. This requirement shall operate as a joint and individual requirement to assure common control for purpose of ensuring that all commitments relied on are in fact fulfilled. WATER DISCHARGES Any discharges into any waters of the State during construction and operation of AESCB shall be in accordance with all applicable provisions of Chapters 17-3, and 17-6, Florida Administrative Code, and 40 CFR, Part 423, Effluent Guidelines and Standards for Steam Electric Power Generating Point Source Category, except as provided herein. Also, AESCB shall comply with the following conditions of certification: Plant Effluents and Receiving Body of Water For discharges made from the AESCB power plant the following conditions shall apply: Receiving Body of Water (RBW) - The receiving body of water has been determined by the Department to be those waters of the St. Johns River or Broward River and any other waters affected which are considered to be waters of the State within the definition of Chapter 403, Florida Statutes. Point of Discharge (POD) - The point of discharge has been determined by the Department to be where the effluent physically enters the waters of the State in the St. Johns River via the SKC discharge outfall 001, which is the existing main outfall from the paper mill emergency overflow to the Broward River. Thermal Mixing Zones - The instantaneous zone of thermal mixing for the AESCB cooling system shall not exceed an area of 0.25 acres. The temperature at the point of discharge into the St. Johns River shall not be greater than 95 degrees F. The temperature of the water at the edge of the mixing zone shall not exceed the limitations of Section 17-3.05(1)(d), F.A.C. Cooling tower blowdown shall not exceed 95 degrees F as a 24-hour average, nor 96 degrees F as an instantaneous maximum. Chemical Wastes from AESCB - All discharges of low volume wastes (demineralizer regeneration, floor drainage, labs drains, and similar wastes) and chemical metal cleaning wastes shall comply with Chapter 17-6, F.A.C. at OSN 006 and 007 respectively. If violations of Chapter 17-6 F.A.C. occur, corrective action shall be taken by AESCB. These wastewaters shall be directed to an adequately sized and constructed treatment facility. pH - The pH of the combined discharges shall be such that the pH will fall within the range of 6.0 to 9.0 at the POD to the St. Johns River and shall not exceed 6.5 to 8.5 at the boundary of a 0.25 acre mixing zone. Polychlorinated Bipheny Compounds - There shall be no discharge of polychlorinated bipheny compounds. Cooling Tower Blowdown - AESCB's discharge from Outfall Serial Number 002 - Cooling Tower Blowdown shall be limited and monitored as specified below: a. Parameter Discharge Limit Monitoring Frequency Requirement Type Discharge Flow (mgd) Report 1/day Totalizer Discharge Temp (F) Instantaneous Maximum Continuous Recorder Total Residual Instantaneous Continuous Recorder Oxidants Maximum-.05 mg/l Time of Total 120 minutes Continuous Recorder Residual Oxidant per day Discharge (TR) Iron Instantaneous 1/week grab Maximum-0.5 mg/l pH 6-9 1/week grab There shall be no detectable discharge of the 125 priority pollutants contained in chemicals added for cooling tower maintenance. Notice of any proposed use of compounds containing priority pollutants shall be made to the DER Northeast District Office not later than 180 days prior to proposed use. Samples taken in compliance with the monitoring requirements specified above shall be taken at OSN 002 prior to mixing with any other waste stream. Seminole Kraft Corporation (SKC) shall shut down the mill's once thru cooling system upon completion of the initial compliance tests on the AESCB boilers conducted pursuant to Condition II.A.7. SKC shall inform the DER NE District Office of the shutdown and surrender all applicable operating permits for that facility. Combined Low Volume Wastes shall be monitored at OSN 006 with weekly grab samples. Discharge limitations are as follows: Daily Max Daily Avg Oil and Grease 20.0 mg/l 15.0 Copper-dissolved 1.0 mg/l* N/A Iron-dissolved 1.0 mg/l* N/A Flow Report N/A Heavy Metals Report (See Below) The pH of the discharge shall not be less than 7.0* standard units and shall be monitored once per shift, unless more frequent monitoring is necessary to quantify types of nonchemical metal cleaning waste discharged. Serial number assigned for identification and monitoring purposes. Heavy metal analysis shall include total copper, iron, nickel, selenium, and zinc. *Limits applicable only to periods in which nonchemical metal cleaning waste is being discharged via this OSN. Length of composite samples shall be during the periods (s) of nonchemical metal cleaning waste generation and discharge and shall be adequate to quantify differences in sources of waste generated (air preheater vs. boiler fireside, etc.). Chemical Metal Cleaning AESCB's discharge from outfall serial number 007 - metal cleaning wastes discharged to the Seminole Kraft treatment system. Such discharges shall be limited and monitored by the permittee as specified below: a. Effluent Characteristic Discharge Limits Monitoring Requirements Instantaneous Max Measurement Frequency Sample Type Flow - m3/day (MGD) - 1/batch Pump log Copper, Total 1.0 mg/l 1/ grab Iron, Total Batches 1.0 mg/l Report 1/ 1/batch grab logs Chemical metal-cleaning wastes shall mean process equipment cleaning including, but not limited to, boiler tubes cleaning. Waste treated and discharged via this OSN shall not include any stream for which an effluent guideline has not been established (40 CFR Part 423) for total copper and total iron at the above levels. Samples taken in compliance with the monitoring requirement specified above shall be taken at the discharge from the metal-cleaning waste treatment facility(s) prior to mixing with any other waste stream. Storm Water Runoff - During construction and operation discharge from the storm water runoff collection system from a storm event less than the once in ten year twenty-four hour storm shall meet the following limits and shall be monitored at OSN 003 by a grab sample once per discharge, but not more often than once per week:* Discharge Limits Effluent Characteristic Instantaneous Maximum Flow (MGD) Report TSS (mg/l) 50 pH 6.0-9.0 During plant operation, necessary measures shall be used to settle, filter, treat or absorb silT.containing or pollutanT.laden storm water runoff to limit the suspended solids to 50 mg/l or less at OSN 003 during rainfall periods less than the 10-year, 24-hour rainfall. Any underdrains must be checked annually and measures must be taken to insure that the underdrain operates as designed. Permittees will have to modify the underdrain system should maintenance measures be insufficient to achieve operation of the underdrains as designed. AES Cedar Bay must back flush the exfiltration/underdrain system at least once during the first six months of calendar each year. These backflushings must occur no closer than four calendar months from each other. In advance of backflushing the exfiltration/underdrain systems, the permittees must notify BESD and SJRWMD of the date and time of the backflushing. Control measures shall consist at the minimum of filters, sediment, traps, barriers, berms or vegetative planting. Exposed or disturbed soil shall be protected as soon as possible to minimize silt, and sedimenT.laden runoff. The pH shall be kept within the range of 6.0 to 9.0 in the discharge to the St. Johns River and 6.5 to 8.5 in the Broward River. Special consideration must be given to the control of sediment laden runoff resulting from storm events during the construction phase. Best management practices erosion controls should be installed early during the construction period so as to prevent the transport of sediment into surface waters which could result in water quality violations and Departmental enforcement action. Revegetation and stabilization of disturbed areas should be accomplished as soon as possible to reduce the potential for further soil erosion. Should construction phase runoff pose a threat to the water quality of state waters, additional measures such as treatment of impounded runoff of the use of turbidity curtains (screens) in on-site impoundments shall be immediately implented with any releases to state waters to be controlled. It is necessary that there be an entity responsible for maintenance of the system pursuant to Section 17- 25.027, F.A.C. Correctional action or modification of the system will be necessary should mosquito problems occur. AES Cedar Bay shall submit to DER with copy to BESD, erosion control plans for the entire construction project (or discrete phrases of the project) detailing measures to be taken to prevent the offsite discharge of turbid waters during construction. These plans must also be provided to the construction contractor prior to the initiation of construction. All swale and retention basin side slopes shall be seeded and mulched within thirty days following their completion and a substantial vegetative cover must be established within ninety days of seeding. Boiler Blowdown Discharge from boiler blowdown to the cooling tower from outfall serial Number 004 shall be limited and monitored as specified below: Effluent Discharge Limits Monitoring Characteristic Requirements Daily Sample Measurement Maximum Type Frequency TSS 30.0 grab 1/Quarter Oil and Grease 15.0 grab 1/Quarter Flow - Calculation 1/Quarter Construction Dewatering Discharge of construction dewatering to the SKC once-through cooling system from outfall serial number 005 shall be limited and monitored as specified below: Effluent Characteristic Discharge Limits Monitoring Requirements Instantaneous Maximum Measurement Frequency Sample Type Flow - m3/day (MGD) - daily Totalizer Turbidity (NTU) 164 1/week grab Aluminium mg/l 1.5 1/week grab Copper mg/l 0.046 daily composite Iron mg/l 0.3 1/week grab Lead mg/l 0.5 1/week grab Mercury mg/l 0.002 1/week grab Phenol ug/l 35.7 daily grab TSS mg/l 50.0 1/week grab pH 6.0-9.0 1/week grab Variance - In accordance with the provisions of Section 403.201 and 403.511(2), F.S., AES Cedar Bay is hereby granted a variance to water quality standards of Chapter 17- 3.121, F.A.C. for copper subject to the following conditions. AES Cedar Bay shall treat the construction dewatering discharge so as not to exceed 0.046 milligrams per liter for copper in the effluent from the dewatering treatment system. AES Cedar Bay shall do sufficient bench testing to demonstrate that it can meet the above limit for copper. AES Cedar Bay shall notify DER and BESD of the bench testing, and allow DER and BESD to be present if they so desire to observe the bench testing. In addition, AES Cedar Bay shall determine the amount of treatment and removal provided for iron, aluminum and lead by the method of treatment selected for copper. A report shall be submitted to DER and BESD summarizing the results of the bench testing of the proposed treatment technique. The variance shall be valid beginning with the start of dewatering and lasting until the end of construction dewatering but not to exceed a period of two years (not including periods of interruption in the construction dewatering). The Secretary has been delegated the authority to grant additional variances or mixing zones from water quality standards should AES Cedar Bay demonstrate any to be necessary after consideration of comments from the parties, public notice and an opportunity for hearing, pursuant to section 120.57 F.S., with final action by the Siting Board if a hearing is requested. In the absence of such final action by the Secretary, compliance with water quality standards shall be measured at the designated POD to the St. John River unless a zone of mixing is granted. Project discharge descriptions - Dewatering water, outfall 005, includes all surficial groundwater extracted during all excavation construction on site for the purpose of installing structures, equipment, etc. Discharges to the SKC once through cooling water system at a location to be depicted on an appropriate engineering drawing to be submitted to DER and BESD. Final discharge after treatment is to the St. Johns River. The permittee shall report to BESD the date that construction dewatering is expected to begin at least one week prior to the commencement of dewatering. Mixing zones - The discharge of the following pollutants shall not violate the Water Quality Standards of Chapter 17-3, F.A.C., beyond the edge of the designated instantaneous mixing zones as described herein. Such mixing zones shall apply when the St. Johns River is in compliance with the applicable water quality standard. Plant Dewatering Operations for two years from the date construction dewatering commences: Parameter Mixing Zone Aluminum 125,600 m2 31 acres Copper " 31 " Iron " 31 " Lead " 31 " Turbidity 12,868 m2 3.2 " Phenol 12,868 " 3.2 " The permittee shall report the date construction dewatering commences to the BESD. During operation of CBCP for the life of the facility: Iron 125,600 m2 (31 acre) mixing zone Chlorine 0 - not measurable in river Temp 1,013 m2 (0.25 acre) pH 1,013 m2 (0.25 acre) Variances to Water Quality Standards - In accordance with the provisions of Sections 403.201 and 403.511(2), F.S., permittees are hereby granted variances to the water Quality Standards of Chapter 17-3.121, F.A.C. for the following: During construction dewatering for a period not to exceed two years -- copper. The Secretary of DER may authorize variances for aluminum, iron, and lead upon a showing that treatment for copper can not bring these metals into compliance, however, any variance granted shall not cause or allow an exceedance of acute toxicity standards. During Operation -- iron. Such variances shall apply only as the natural background levels of the St. Johns River approach or exceed those standards. In any event, the discharge from the CBCP shall comply with the effluent limitations set forth in Paragraph III.A.12. At least 90 days prior to start of construction, AES shall submit a bioassay program to assess the toxicity of construction dewatering effluent to the DER for approval. Such program shall be approved prior to start of construction dewatering. Sanitary wastes from AESCB shall be collected and discharged for treatment to the SKC domestic wastewater treatment plant. Water Monitoring Programs Necessity and extent of continuation, and may be modified in accordance with Condition No. XXI, Modification of Conditions. Chemical Monitoring - The parameters described in Condition III.A. shall be monitored during discharge as described in condition III A. commencing with the start of construction or operation of the CFBs and reported quarterly to the Northeast District Office: Coal, Ash, and Limestone Storage Areas - runoff from the coal pile, ash and lime stone storage areas shall be directed to the SK waste-water treatment facility for discharge under its existing waste-water permit. Monitoring of metals, such as iron, copper, zinc, mercury silver, and aluminum, shall be done once a month during any month when a discharge occurs at OSC 008 or once per month from the collection pond. The ground water levels shall be monitored continuously at selected wells as approved by the SJRWMD. Chemical analysis shall be made on samples from all monitored wells identified in Condition III.F. below. The location, frequency and selected chemical analysis shall be as given in Condition IV.F. The ground water monitoring program shall be implemented at least one year prior to operation of the CFBs. The chemical analysis shall be in accord with the latest edition of Standard Methods for the Analysis of Water and Waistwater. The data shall be submitted within 30 days of collection/analysis to the SJRWMD. GROUND WATER Prior to the construction, modification, or abandonment of a production well for the SK paper mill, the Seminole Kraft must obtain a Water Well Construction Permit from the SJRWMD pursuant to Chapter 40C-3, Florida Administrative Code. Construction, modification, or abandonment of a production well will require modification of the SK consumptive use permit when such construction, modification or abandonment is other than that specified and described on SK's consumptive use permit application form. The construction, modification, or abandonment of a monitor well specified in condition IV.H. will require the prior approval of the Department. All monitor wells intended for use over thirty days must be noticed to BESD prior to construction or change of status from temporary to permanent. Well Criteria, Tagging and Wellfield Operating Plan Leaking or inoperative well casings, valves, or controls must be repaired or replaced as required to put the system back in an operative condition acceptable to the SJRWMD. Failure to make such repairs will be cause for deeming the well abandoned in accordance with Chapter 17.21.02(5), Florida Administrative Code, Chapter 373.309, Florida Statutes and Chapter 366.301(b), and .307(a), Jacksonville ordinance code. Wells deemed abandoned will require plugging according to state and local regulations. A SJRWMD issued identification tag must be prominently displayed at each withdrawal site by permanently affixing such tag to the pump, headgate, valve or other withdrawal facility as provided by Section 40C-2.401, Florida Administrative Code. The SK must notify the SJRWMD in the event that a replacement tag is needed. The permittees must develop and implement a Wellfield Operating Program within six (6) months of certification. This program must describe which wells are primary, secondary, and standby (reserve); the order of preference for using the wells; criteria for shutting down and restarting wells; describe AES Cedar Bay and SKC responsibilities in the operation of the well field, and any other aspects of well field management operation, such as who the well field operator is and any other aspects of wellfield management operation. This program must be submitted to the SJRWMD and a copy to BESD within six (6) months of certification and receive District approval before the wells may be used to supply water for the AES Cedar Bay Cogeneration plant. Maximum Annual Withdrawals Maximum annual withdrawals for AESCB from the Floridan aquifer must not exceed 1.99 billion gallons. Maximum daily withdrawals from the Florida aquifer for the AESCB must not exceed 7.0 million gallons. The use of the Floridan aquifer potable water for control of fugitive dust emissions is prohibited when alternatives are available, such as treated discharges, shallow aquifer wells, or stormwater. The use of Floridan aquifer potable water for the sole purpose of waste stream dilution is prohibited. Water Use Transfer The SJRWMD must be notified, in writing, within 90 days of the transfer of this certification. All transfers are subject to the provisions of Section 40C-2.351, Florida Administrative Code, which state that all terms and conditions of the permit shall be binding of the transferee. Emergency Shortages Nothing in this certification is to be construed to limit the authority of the SJRWMD to declare a water shortage and issue orders pursuant to Section 373.175, Florida Statutes, or to formulate a plan for implementation during periods of water shortage, pursuant to Section 373.246, Florida Statutes. In the event of a water shortage, as declared by the District Governing Board, the AESCB shall adhere to reductions in water withdrawals as specified by the SJRWMD. Monitoring and Reporting The permittee shall maintain records of total daily withdrawals for the AESCB on a monthly basis for each year ending on December 31st. These records shall be submitted to the SJRWMD on Form EN-3 by January 31st of each year. Water quality samples shall be taken in May and October of each year from each production well. The samples shall be analyzed by an HRS certified laboratory for the following parameters: Magnesium Sulfate Sodium Carbonate Potassium Bi-Carbonate (or alkalinity if pH is 6.9 or lower) Chloride Calcium All major ion analysis shall be checked for anion-cation balance and must balance within 5 percent prior to submission. It is recommended that duplicates be taken to allow for laboratory problems or loss. The sample analysis shall be submitted to the SJRWMD by May 30 and October 30 of each year. AESCB shall mitigate any adverse impact caused by withdrawals permitted hereinon legal uses of water existing at the time of permit application. The SJRWMD has the right to curtail permitted withdrawal rates or water allocations if the withdrawals of water cause an adverse impact on legal uses of water which existed at the time of permit application. Adverse impacts are exemplified but not limited to: Reduction of well water levels resulting in a reduction of 10 percent in the ability of an adjacent well to produce water; Reduction of water levels in an adjacent surface water body resulting in a significant impairment of the use of water in that water body; Saline water intrusion or introduction of pollutants into the water supply of an adjacent water use resulting in a significant reduction of water quality; or Change in water quality resulting in either impairment or loss of use of a well or water body. The AESCB shall mitigate any adverse impact cause by withdrawals permitted herein on adjacent land uses which existed at the time of permit application. The SJRWMD had the right to curtail permitted withdrawal rates of water allocations if withdrawals of water cause any adverse impact on adjacent land use which existed at the time of permit application. Adverse impacts are exemplified by but not limited to: Significant reduction in water levels in an adjacent surface water body; Land collapse or subsidence caused by a reduction in water levels; or Damage to crops and other types of vegetation. Significant increases in Chloride levels such that it is likely that wells from the plant or those being impacted from the plant, will exceed 250 mg/l. Ground Water Monitoring Requirements After consultation with the DER, BESD, and SJRWMD, AESCB shall install a monitoring well network to monitor ground water quality horizontally and vertically through the aquifer above the Hawthorm Formation. Ground water quantity and flow directions will be determined seasonally at the site through the preparation of seasonal water table contour maps, based upon water level data obtained during the applicant's preoperational monitoring program. From these maps and the results of the detailed subsurface investigation of site stratigraphy, the water quality monitoring well network will be located. A ground water monitoring plan that meets the requirements of Section 17-28.700(d), F.A.C., shall be submitted to the Department's Northeast District Office for review. Approval or disapproval of the ground water monitoring plan shall be given within 60 days of receipt. Ground water monitoring shall be required at AESCB's pelletized ash storage area, each sedimentation pond, the lime mud storage area, and each coal pile storage area. Insofar as possible, the monitoring wells may be selected from the existing wells and piezometers used in the permittees preoperational monitoring program, provided that the wells construction will not preclude their use. Existing wells will be properly sealed in accordance with Chapter 17-21, F.A.C., whenever they are abandoned due to construction of facilities. The water samples collected from each of the monitor wells shall be collected immediately after removal by pumping of a quantity of water equal to at least three casing volumes. The water quality analysis shall be performed monthly during the year prior to commercial operation and quarterly thereafter. No sampling or analysis is to be initiated until receipt of written approval of a site-specific quality assurance project plant (QAPP) by the Department. Results shall be submitted to the BESD by the fifteenth (15th) day of the month following the month during which such analysis were performed. Testing for the following constituents is required around unlined ponds or storage areas: TDS Cadmium Conductance Zinc pH Copper Redox Nickel Sulfate Selenium Sulfite Chromium Color Arsenic Chloride Beryllium Iron Mercury Aluminum Lead Gross Alpha Conductivity shall be monitored in wells around all lined solid waste disposal sites, coal piles, and wastewater treatment and sedimentation ponds. Leachate Zone of Discharge Leachate from AESCB's coal storage piles, lime mud storage area or sedimentation ponds shall not cause or contribute to contamination of waters of the State (including both surface and ground waters) in excess of the limitations of Chapter 17-3, F.A.C., beyond the boundary of a zone of discharge extending to the top of the Hawthorne Formation below the wastelandfill cell or pond rising to a depth of 50 feet at a horizontal distance of 200 feet from the edge of the landfill or ponds. Corrective Action When the ground water monitoring system shows a potential for this facility to cause or contribute to a violation of the ground water quality standards of Chapter 17-3, F.A.C., at the boundary of the zone of discharge, the appropriate ponds or coal pile shall be bottom sealed, relocated, or the operation of the affected facility shall be altered in such a manner as to assure the Department that no violation of the ground water standards will occur beyond the boundary of the zone of discharge. CONTROL MEASURES DURING CONSTRUCTION Storm Water Runoff During construction, appropriate measures shall be used to settle, filter, treat or absorb silT.containing or pollutanT.laden storm water runoff to limit the total suspended solids to 50 mg/1 or less and pH to 6.0 to 9.0 at OSN 003 during rainfall events that are lesser in intensity than the 10-year, 24-hour rainfall, and to prevent an increase in turbidity of more than 29 NTU above background in waters of the State. Control measures shall consist at the minimum of sediment traps, barriers, berms or vegetative planting. Exposed or disturbed soil shall be protected as soon as possible to minimize silT. and sedimenT.laden runoff. The pH shall be kept within the range of 6.0 to 9.0 at OSN 003. Stormwater drainage to the Broward River or St. Johns River shall be monitored as indicated below: Monitoring Point Parameters Frequency Sample Type *Storm water drainage BOD5, TOC, sus- ** ** to the Broward River pended solids, from the runoff turbidity, dis- treatment pond solved oxygen, pH, TKN, Total phosphorus, Fecal Coliform, Total Coliform Oil and grease ** ** *Monitoring shall be conducted at suitable points for allowing a comparison of the characteristics of preconstruction and construction phase drainage and receiving waters. **The frequency and sample type shall be as outlined in a sampling program prepared by the applicant and submitted at least ninety days prior to start of construction for review and approval by the DER Northeast District Office. The District Office will furnish copies of the sampling program to the BESD and SJRWMD and shall indicate approval or disapproval within 60 days of submittal. Sanitary Wastes Disposal of sanitary wastes from construction toilet facilities shall be in accordance with applicable regulations of the Department and the BESD. Environmental Control Program Each permittee shall establish an environmental control program under the supervision of a qualified person to assure that all construction activities conform to good environmental practices and the applicable conditions of certification. A written plan for controlling pollution during construction shall be submitted to DER and BESD within sixty days of issuance of the Certification. The plan shall identify and describe all pollutants and waste generagted during construction and the methods for control, treatment and disposal. Each permittee shall notify the Department's Northeast District Office and BESD by telephone within 24 hours if possible if unexpected harmful effects or evidence of irreversible environmental damage are detected by it during construction, shall immediately report in writing to the Department, and shall within two weeks provide an analysis of the problem and a plan to eliminate or significantly reduce the harmful effects or damage and a plan to prevent reoccurrence. Construction Dewatering Effluent Maximum daily withdrawals for dewatering for the construction of the railcar unloading facility must not exceed 1.44 million gallons, except during the first 30 days of dewatering. Dewatering for the construction of the railcar unloading facility shall terminate no later than nine months from the start of dewatering. Should the permittee's dewatering operation create shoaling in adjacent water bodies, the permittee is responsible for removing such shoaling. All offsite discharges resulting from dewatering activities must be in compliance with water quality standards required by DER Chapters 17-3 and 17-4, F.A.C., or such standards as issued through a variance by DER. SAFETY The overall design, layout, and operation of the facilities shall be such as to minimize hazards to humans and the environment. Security control measures shall be utilized to prevent exposure of the public to hazardous conditions. The Federal Occupational Safety and Health Standards will be complied with during construction and operation. The Safety Standards specified under Section 440.56, F.S., by the Industrial Safety Section of the Florida Department of Commerce will also be complied with. CHANGE IN DISCHARGE All discharges or emissions authorized herein to AESCB shall be consistent with the terms and conditions of this certification. The discharge of any pollutant not identified in the application or any discharge more frequent than, or at a level in excess of, that authorized herein shall constitute a violation of this certification. Any anticipated facility expansions, production increases, or process modification which will result in new, different or increased discharges or expansion in steam generating capacity will require a submission of new or supplemental application to DER's Siting Coordination Office pursuant to Chapter 403, F.S. NONCOMPLIANCE NOTIFICATION If, for any reason, either permittee does not comply with or will be unable to comply with any limitation specified in this certification, the permittee shall notify the Deputy Assistant Secretary of DER's Northeast District and BESD office by telephone as soon as possible but not later than the first DER working day after the permittee becomes aware of said noncompliance, and shall confirm the reported situation in writing within seventy-two (72) hours supplying the following information: A description and cause of noncompliance; and The period of noncompliance, including exact dates and times; or, if not corrected, the anticipated time the noncompliance is expected to continue, and steps being taken to reduce, eliminate, and prevent recurrence of the noncomplying event. FACILITIES OPERATION Each permittee shall at all times maintain good working order and operate as efficiently as possible all of its treatment or control facilities or systems installed or used by the permittee to achieve compliance with the terms and conditions of this certification. Such systems are not to be bypassed without prior Department (Northeast District) after approval and after notice to BESD except where otherwise authorized by applicable regulations. ADVERSE IMPACT The permittees shall take all reasonable steps to minimize any adverse impact resulting from noncompliance with any limitation specified in this certification, including, but not limited to, such accelerated or additional monitoring as necessary to determine the nature and impact of the noncomplying event. RIGHT OF ENTRY The permittees shall allow the Secretary of the Florida Department of Environmental Regulation and/or authorized DER representatives, and representatives of the BESD and SJRWMD, upon the presentation of credentials: To enter upon the permittee's premises where an effluent source is located or in which records are required to be kept under the terms and conditions of this permit; and To have access to and copy all records required to be kept under the conditions of this certification; and To inspect and test any monitoring equipment or monitoring method required in this certification and to sample any discharge or emissional pollutants; and To assess any damage to the environment or violation of ambient standards. SJRWMD authorized staff, upon proper identification, will have permission to enter, inspect, and observe permitted and related CUP facilities in order to determine compliance with the approved plans, specifications, and conditions of this certification. BESD authorized staff, upon proper identification, will have permission to enter, inspect, sample any discharge, and observe permitted and related facilities in order to determine compliance with the approved plans, specifications, and conditions of this certification. REVOCATION OR SUSPENSION This certification may be suspended, or revoked pursuant to Section 403.512, Florida Statutes, or for violations of any Condition of Certification. CIVIL AND CRIMINAL LIABILITY This certification does not relieve either permittee from civil or criminal responsibility or liability for noncompliance with any conditions of this certification, applicable rules or regulations of the Department, or Chapter 403, Florida Statutes, or regulations thereunder. Subject to Section 403.511, Florida Statutes, this certification shall not preclude the institution of any legal action or relieve either permittee from any responsibilities or penalties established pursuant to any other applicable State Statutes or regulations. PROPERTY RIGHTS The issuance of this certification does not convey any property rights in either real or personal property, tangible or intangible, nor any exclusive privileges, nor does it authorize any injury to public or private property or any invasion of personal rights, nor any infringement of Federal, State or local laws or regulations. The permittees shall obtain title, lease or right of use to any sovereign submerged lands occupied by the plant, transmission line structures, or appurtenant facilities from the State of Florida. SEVERABILITY The provisions of this certification are severable, and, if any provision of this certification or the application of any provision of this certification to any circumstances is held invalid, the application of such provision to other circumstances and the remainder of the certification shall not be affected thereby. DEFINITIONS The meaning of terms used herein shall be governed by the definitions contained in Chapter 403, Florida Statutes, and any regulation adopted pursuant thereto. In the event of any dispute over the meaning of a term used in these general or special conditions which is not defined in such statutes or regulations, such dispute shall be resolved by reference to the most relevant definitions contained in any other state or federal statute or regulation or, in the alternative, by the use of the commonly accepted meaning as determined by the Department. REVIEW OF SITE CERTIFICATION The certification shall be final unless revised, revoked, or suspended pursuant to law. At least every five years from the date of issuance of this certification or any National Pollutant Discharge Elimination Control Act Amendments of 1972 for the plant units, the Department shall review all monitoring data that has been submitted to it or it's agent(s) during the preceding five- year period for the purpose of determining the extent of the permittee's compliance with the conditions of this certification of the environmental impact of this facility. The Department shall submit the results of it's review and recommendations to the permittees. Such review will be repeated at least every five years thereafter. MODIFICATION OF CONDITIONS The conditions of this certification may be modified in the following manner: The Board hereby delegates to the Secretary the authority to modify, after notice and opportunity for hearing, any conditions pertaining to consumptive use of water, reclaimed water, monitoring, sampling, ground water, surface water, mixing zones, or variances to water quality standards, zones of discharge, leachate control programs, effluent limitations, air emission limitations, fuel, or solid waste disposal, right of entry, railroad spur, transmission line, access road, pipelines, or designation of agents for the purpose of enforcing the conditions of this certification. All other modifications shall be made in accordance with Section 403.516, Florida Statutes. FLOOD CONTROL PROTECTION The plant and associated facilities shall be construed in such a manner as to comply with the Duval County flood protection requirements. EFFECT OF CERTIFICATION Certification and conditions of certification are predicated upon design and performance criteria indicated in the application. Thus, conformance to those criteria, unless specifically amended, modified, or as the Department and parties are otherwise notified, is binding upon the applicants in the preparation, construction, and maintenance of the certified project. In those instances where a conflict occurs between the application's design criteria and the conditions of certification, the conditions shall prevail. NOISE To mitigate the effects of noise produced by the steam blowout of steam boiler tubes, the permittees shall conduct public awareness campaigns prior to such activities to forewarn the public of the estimated time and duration of the noise. The permittees shall comply with the applicable noise limitations specified in Environmental Protection Board Rules or The City of Jacksonville Noise Ordinance. USE OF RECLAIMED WATER AESCB The AESCB shall design the Cogeneration Facility so as to be capable of using reclaimed and treated domestic wastewater from the City of Jacksonville for use as cooling tower makeup water. Reclaimed water shall be utilized as soon as it becomes available. Ground water may be used only as a backup to the reclaimed water after that time. Before use of reclaimed water from the City by the permittee, it will be treated to a level suitable for use as cooling tower makeup water. Reclaimed water used in the AESCB cooling tower shall be disinfected prior to use. Disinfectant levels in the cooling tower makeup water shall be continuously monitored, prior to insertion in the cooling tower. The reclaimed water shall be treated so as to obtain no less than a 1.0 mg/liter free chlorine residual after fifteen (15) minutes contact time or its equivalent. Chlorination shall occur at a turbidity of 5 Nephlometric Turbidity Units (NTU) or less, unless a lesser degree of disinfection is approved by the Department upon demonstration of successful viral kill. Within 120 days following issuance of a modification to the City of Jacksonville's DER wastewater discharge permit allowing Jacksonville, as part of its comprehensive reuse plan, to supply reclaimed water to the Cedar Bay Cogeneration Project, AES Cedar Bay, Inc. shall submit a request for modification to DER for use of reclaimed water for cooling purposes, seeking to make any necessary modifications to their facility and the conditions of certification as may be necessary to allow use of reclaimed water. Its request shall include plans, technical analyses, and modelling needed to evaluate the environmental effects of the proposed modifications. Its request for modification shall also include a financial analysis of the costs of any necessary modifications to its facility, additional operating costs, and the financial impact of these additional costs on AES Cedar Bay, Inc. If DER requires data or analyses concerning the cogeneration facility or its operation, or its discharges or emissions in order to evaluate Jacksonville's application to modify its domestic wastewater discharge permit, AES will supply the necessary information in a timely fashion. The Secretary, as prescribed in Condition XXI, Modification of Conditions, may modify the conditions of certification contained herein as may be necessary to implement the use of reclaimed water. The use of reclaimed water shall be contingent upon a determination of it being financially practicable, and it meeting applicable environmental standards. Prior to any such action by the Secretary, the Secretary shall request and consider a report by the SJRWMD as to the request for modification for the use of reclaimed water by AES Cedar Bay, Inc. Possible Use of Reclaimed Water The use of reclaimed water as described above shall not be limited to cooling tower makeup. Reuse water, if available may be used for fugitive particulate emission control, washdown, and any other feasible use for non-potable water which would not require additional treatment. ENFORCEMENT The Secretary may take any and all lawful actions as he or she deems appropriate to enforce any condition of this certification. Any participating agency (federal, state, local) may take any and all lawful actions to enforce any condition of this certification that is based on the rules of that agency. Prior to initiating such action the agency head shall notify the Secretary of that agency's proposed action. BESD may initiate any and all lawful actions to enforce the conditions of this certification that are based on the Department's rules, after obtaining the Secretary's written permission to so process on behalf of the Department. ENDANGERED AND THREATENED SPECIES Prior to start of construction, AESCB shall survey the site for endangered and threatened species of animal and plant life. Plant species on the endangered or threatened list shall be transplanted to an appropriate area if practicable. Gopher Tortoises and any commensals on the rare or endangered species list shall be relocated after consultation with the Florida Game and Fresh Water Fish Commission. A relocation program, as approved by the FGFWFC, shall be followed. PETROLEUM STORAGE TANKS AES Cedar Bay shall provide clean-up of the #1 underground diesel fuel storage tank site, which is listed under the EDI program, in accordance with F.A.C. Chapter 17-770. AES shall complete an Initial Remedial Action (IRA) in accordance with Rule 17-770.300, F.A.C., prior to construction dewatering. DER and BESD will receive written notification ten working days prior to initiation of the IRA. AES shall determine the extent of contamination. AES Cedar Bay shall then design and install a pump and treatment system at the site, which will create a reverse hydraulic gradient that will prevent the further spread of the contamination by the dewatering operation. This plan shall be submitted to DER and BESD for approval, thirty days prior to the start of construction dewatering, and shall be implemented prior to commencement of the dewatering operation. Furthermore, AES Cedar Bay shall submit a Quality Assurance Report (CAR) and a Remedial Action plan (RAP), in accordance with a F.A.C. Chapter 17-770 to DER for approval with copies to BESD thirty days prior to the start of construction dewatering. AES Cedar Bay shall provide complete site rehabilitation in accordance with F.A.C Chapter 17-770. AES Cedar Bay shall develop a QAPP, CAR, and RAP as required and in accordance with Chapter 17-700, F.A.C. for the site listed in XXVIII, C and D below, and submit these plans to DER for approval with copies to BESD thirty days prior to the start of construction dewatering. Prior to construction dewatering, at the underground diesel fuel storage tank #2 site, AES Cedar Bay shall: Perform an IRA with F.A.C. Rule 17-770.300. Determine the extent of down gradient contamination and submit that information to BESD, and DER prior to installation of the well described in paragraph C.4 below. Establish a series of groundwater level monitoring wells at intervals of approximately 250 feet from the coal unloading site to the #2 tank for determination of the groundwater dewatering cone of influence. Daily groundwater levels shall be recorded for each of these wells during construction dewatering. A background well with a continuous water level recorder shall be installed, at a site that would not be influenced by the dewatering operations, to determine ambient conditions at the site. Install a monitoring well with a continuous water level recorder which will be used to trigger implementation of the RAP. The well will be located 150 feet down gradient from the boundary of the plume of contamination determined above in XXVII C.2. If the epiezometric head in the trigger well drops 6 inches below ambient conditions as compared to the background well, then AES Cedar Bay shall notify DER and BESD of a verified drop of 6 inches or more in the trigger well within three working days and the appropriate portion of the RAP shall be implemented by AES Cedar Bay. AES Cedar Bay shall submit a plan for the location and construction of the monitoring wells described above in paragraph C.3 and C.4 to DER and BESD for approval. AES Cedar Bay shall submit monthly reports of the groundwater level recordings to DER and BESD. Prior to construction dewatering, at each of the following tank sites: underground diesel fuel storage tank #3; underground #6 fuel oil shortage tank #5; above-ground #6 fuel oil storage tank #2: "pitch tank" located North of the lime kilns; AES Cedar Bay shall: Install 2 down gradient monitoring wells. AES Cedar Bay shall submit a plan for location and construction of these 8 wells to DER and BESD for approval. BESD shall have the opportunity to observe the construction of these wells. Sample the above reference wells for parameters listed in 17-770.600(8), F.A.C. In addition, AES Cedar Bay shall sample the monitoring wells at the above-ground tank sites for acetone and carbon disulfide. AES Cedar Bay shall split samples with BESD if BESD so requests and submit a report of the analytical results to DER and BESD within ten days of receipt of analysis by AES Cedar Bay. If contamination is found in the above reference wells in excess of the clean-up criteria referenced in 17- 770.730(5)(a)2., F.A.C., a QAPP, CAR and an RAP will be development and, DER and BESD shall be provide with that information prior to the installation of the well described in paragraph D.4 below. Install a trigger well with a continuous water level recorder which will be located 150 feet down gradient from the boundary of the plume of contamination determined above in XXVIII.D.3. If the piezometric head in the trigger well drops 6 inches below ambient conditions as compared to the background well then AES Cedar Bay shall notify DER and BESD of a verified drop of 6 inches or more in the trigger well within three working days and the appropriate portion of the RAP shall be implemented by AES Cedar Bay. AES Cedar Bay shall submit a plan for the location and construction of the monitoring wells described above in paragraph D.4, to DER and BESD for approval. AES Cedar bay shall submit monthly reports of the groundwater level recordings to DER and BESD. Implementation of the appropriate portion of the RAP shall commence within 14 days of the determination that the construction dewatering cone of depression will reach any of contaminated sites. AES Cedar Bay shall monitor the construction dewatering effluent from their treatment system, once a week during dewatering, for the following criteria: Benzene 1 ugle; Total VOA 40 ug/l Total Naphthalenes (Total-naphthalenes = methyl napthalenes) 100 ugle; and Total Residual Hydrcarbons 5 mg/l. If the concentrations of contaminants in the effluent rise above those in the above list, AES Cedar Bay shall take corrective actions to return concentrations to acceptable levels. If any disagreement arises regarding this condition, the parties agree to submit the matter for an expedited hearing to the DOAH and shall request assignment of the hearing officer who has heard the case, if possible, pursuant to 403.5064, F.S. The informal dispute resolution process shall be used. COPIES FURNISHED: Terry Cole, Esquire Scott Shirley, Esquire Oertel, Hoffman, Fernandez & Cole, P.A. 2700 Blairstone Road Suite C Tallahassee, FL 32301 Betsy Hewitt, Esquire Department of Environmental Regulation 2600 Blairstone Road Tallahassee, FL 32399-2400 Kathryn Mennella, Esquire St. Johns River Water Management District P.O. Box 1429 Palatka, FL 32178-1429 Richard L. Maguire, Esquire Towncentre, Suite 715 421 West Church Street Jacksonville, FL 32202 Katherine L. Funchess, Esquire Department of Community Affairs 2740 Centerview Drive Tallahassee, FL 32399-2100 William C. Bostwick, Esquire 1550-2 Hendricks Avenue Jacksonville, FL 32201 Daniel H. Thompson General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 =================================================================
Findings Of Fact In the fall of 1986, the Respondent, James A. Campbell, and his associate, David Ritchie, were operating a construction business known as Town & Country Construction Corp. of Tampa. Campbell was the company's qualifying contractor. At the same time, Campbell and Ritchie were in the process of starting a new company to be known as Bay City Builders, Inc. In the application for state registration of the new business, Campbell also was listed as the qualifying contractor. Campbell and Ritchie had business forms, including contract forms, printed in the name of Bay City Builders, Inc., so as to be ready to do business upon approval of the pending application. On December 5, 1986, an employee of Campbell's company, a Mr. Earl Mills, responded to a telephone inquiry from a Mrs. Josefina Rodriguez, who was interested in having a room added and some other renovations done to her home at 551 South Lois Avenue in Tampa. Mills erroneously committed Bay City Builders to a bid on the job before its application was approved. In addition, the bid was seriously low and committed to completion of the job in just 60 days, an overly optimistic time frame even on a reasonable bid. Rodriguez accepted the bid, and Mills obligated Bay City Builders to a contract with her on December 5, 1986, with an addendum dated December 18, 1986. When Campbell, who was out of town at the time, and particularly Ritchie found out what Mills had done, they fired Mills. But they decided to honor the contract. Work began timely during the last week of December, 1986. At the outset of the work, the plumbing subcontractor discovered seriously deteriorated pipes all the way to the street. It was agreed that the pipes would be excavated and replaced outside the contract, to be paid directly by Rodriguez. This delayed the performance of the contract for a limited period of time. Nonetheless, work progressed in a timely fashion through January, 1987. By January 12, 1987, Rodriguez had paid $7859 of the $12,300 due under the contract. By some point in January, 1987, the foundation footers for the 15' by 24' addition had been dug and put in, the rough plumbing had been done, the concrete slab for the addition had been poured, the concrete block walls had been laid, and the framing for the roof had been built. But then work stopped for several weeks. Mrs. Rodriguez became very concerned for several reasons. First, she was planning a trip to Puerto Rico from June to August, 1987, and, as she had explained to Mills and Ritchie, she wanted the work done before she left. Second, without a roof over the addition, water began to pool in the addition during rains and leak into the main part of the house. Third, she had had difficulty contacting the entity that had taken her money. Mills was gone, and Bay City Builders seemed to her not to exist. Campbell and Ritchie had withdrawn the application to qualify it after the Rodriguez fiasco, and it never did any business before or since. There never was a telephone listing for it. As early as February, 1987, Rodriguez sought help from the Better Business Bureau, which could not even find Bay City Builders, and filed a complaint with the Petitioner, the Department of Professional Regulation, that the contractor had abandoned the job. In mid-February, 1987, a crew returned to the job site and put plywood and tar paper roofing material on the roof. This stopped the water leakage into the main house. But then work came to a virtual standstill. All of the $7859 had been spent, and work had not progressed far enough for the next draw, $2000, under the contract. Ritchie tried to explain the situation to Rodriguez, starting from Mills' unrealistic bid. As it was, Ritchie explained, the work would be done but it was going to be long and slow. Ritchie wound up having to borrow money personally and prevailed upon sympathetic subcontractors to forebear in collecting their due in order for Ritchie to finish the project. Practically no work was done during the rest of February, any of March or the first part of April, 1987. In late April, 1987, without any prompting from the DPR or the Better Business Bureau, Ritchie managed to get workers to the job site to finish the dry wall in the addition, which would trigger the next $2000 draw under the contract, and to shingle the roof of the house (addition and pre-existing roof.) When this work was finished in May, 1987, Ritchie contacted Rodriguez to ask for the $2000 draw. Mrs. Rodriguez asked to be assured that the work would be finished before she left for Puerto Rico in June. Ritchie apologized but said it would be impossible under the circumstances. He asked her to allow the work to continue in her absence. Rodriguez refused and also refused to pay the $2000. She said if Ritchie couldn't finish the work before she went to Puerto Rico, she would get someone else to do it. That was the last Ritchie or Campbell heard about the Rodriguez job until DPR initiated this proceeding. Rodriguez did not contact another builder about finishing the work until the end of October, 1987.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order dismissing the Administrative Complaint against the Respondent, James A. Campbell. RECOMMENDED this 7th day of July, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1988. COPIES FURNISHED: Belinda H. Miller, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 James A. Campbell 719 South 50th Street Tampa, Florida 33619 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street 6 Tallahassee, Florida 32399-0750
The Issue The issues to be resolved in this proceeding concern whether the Respondent committed the charged violations of Sections 489.127(1)(f) and 489.531(1), Florida Statutes, as set forth in the Administrative Complaint, and, if so, what if any penalty is warranted.
Findings Of Fact On or about December 11, 2006, the Respondent entered into a contract with Ms. Carolyn H. Wilson for remodeling work, at Ms. Wilson's home in St. Petersburg, Florida. The scope of the work included in the Respondent's "Quotation" or their agreement, involved structural work, plumbing, and electrical work. The Respondent presented himself as being properly licensed for the work which he contracted to perform at Ms. Wilson's property. The Respondent had dictated the terms of the agreement or contract to Mr. Caleb Alfred who wrote the terms required by the Respondent into the "Quotation" form provided by the Respondent. Mr. Alfred was paid a $200.00 commission for referring Ms. Wilson and her job to the Respondent. Mr. Alfred is not affiliated in any way with the Respondent, however, and was a coworker at a local school with Ms. Wilson, who was the Assistant Principal. Ms. Wilson understood that she was contracting for work to be done by the Respondent and not by Mr. Alfred. The Respondent and Ms. Wilson signed the "Quotation" form as the contract for the project. The Respondent was never licensed to engage in any category of contracting in the State of Florida at any time material to the facts in this case and to the allegations in the Administrative Complaint. On December 11, 2006, the Respondent was paid $7,000.00, by Ms. Wilson's check no. 1022, the day the agreement was entered into. Thereafter he was paid $11,000.00 on December 19, 2006, by check no. 1024 issued by Ms. Wilson. He was paid on December 21, 2006, $1,400.00 by check no. 1025 and another $3,000.00 on December 22, 2006, by Ms. Wilson's check no. 1026. The Respondent also incurred some additional charges on Ms. Wilson's Home Depot and Lowes accounts for certain tools and items which he kept after he left the job. The Respondent maintains that he kept those tools as a remedy for work that he had performed for which Ms. Wilson had not paid him. The work the Respondent contracted to do required a permit. No permit of any kind for the referenced project was ever obtained. The electrical work to be performed by the Respondent included the installing of 10 recessed lights and two outlets. The lights to be installed, some of which were installed by the Respondent, were plug-in lights. The outlets installed by the Respondent involved merely screwing existing wires into the new outlets. They did not involve the addition of any wiring to the project or the home. The dishwasher to be installed by the Respondent did not actually involve plumbing. The plumbing work was already done and was existing at the site. The Respondent merely had to screw the plumbing outlet on the dishwasher to the standing plumbing or pipe. The installation of the flooring and the installation of the wall in the residence accomplished by the Respondent was structural work and constituted contracting. The wall was installed and was attached to the trusses of the structure. The flooring portion of the project involved installation of the hardwood flooring and the pad beneath, the charge for which totaled approximately $15,400.00 itself. The Respondent is a native of Trinidad. While residing in Trinidad he built houses. He therefore is quite experienced in construction. He has a "handyman" license from the City of Sanford. That handyman license prohibits electrical repair or replacement of any type, roof repair, installation of exterior doors and windows, and any work that requires a permit. The Respondent apparently was of the belief that he was authorized to do the type of work at issue, based on the strength of holding handyman license. Additionally, the handyman exemption from licensure which is provided in Section 489.103(9), Florida Statutes, references contracts under $1,000.00 dollars. It also requires, for an exemption, that the work involved not require any permitting. Neither is the case here, the work involved much more than $1,000.00 and did require permitting, at least in part. The Respondent apparently finished most of the job at issue. It is debatable whether he finished the dishwasher installation which merely involved placing it and screwing it into the already existing plumbing outlet. There is apparently a dispute over whether he was to install cabinets. The Respondent maintains that Ms. Wilson was to purchase and have installed the cabinets. It is therefore debatable, and not clear from the evidence of record, whether the Respondent is indeed still owed money by Ms. Wilson, or whether he charged more money for his work during the course of the project than they had agreed to and therefore owes her a refund. In any event, the monetary dispute is not of direct relevance to the question of the violations charged in the Administrative Complaint. The Department adduced testimony of its investigator concerning investigative costs. She thus testified that she had no recollection of how many hours or how much time she had expended in investigating the case culminating in the Administrative Complaint. She testified that she relied on a computer time-tracking program of the Department. But no such record was offered into evidence, nor the custodian of such record to testify. Consequently, the cost figure asserted by the Department as investigative cost for this proceeding of $520.18 has not been proven by persuasive, competent evidence.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation finding that the Respondent violated Sections 489.127(1)(7) and 489.531(1), Florida Statutes, and imposing an administrative penalty in the amount of $2,000.00. DONE AND ENTERED this 29th day of August, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2008. COPIES FURNISHED: Sorin Ardelean, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Nancy S. Terrel, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Barry Rigby, Esquire Law Offices of Barry Rigby, P.A. 924 North Magnolia Avenue, Suite 319 Orlando, Florida 32803 G.W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
