Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Respondent was licensed as an Installer A-Installation, Service and Repair of LP Gas Appliances and Equipment in the state of Florida. At all times material to this proceeding, Respondent was an Independent Contractor working for Peoples Gas Systems, Inc. (Peoples Gas) pursuant to an Agreement For Contracted Work dated April 16, 1990, executed by the Respondent and Peoples Gas on May 9, 1990. Under this agreement the work to be performed by the Respondent, among other things, was to turn on gas for customers of Peoples Gas using procedures found in Peoples Gas Safe Job Procedure Manual. On January 31, 1991 in accordance with the above referenced agreement, and pursuant to a written work order from Peoples Gas, Respondent proceeded to the residence of Steven J. and Debra J. Fernaays, Jr. located at 4336 20th Street, St. Petersburg, Florida for the purpose of conducting a Liquefied Petroleum Gas (LP Gas) service which consisted of turning the gas on at the residence. The gas had been turned off by Peoples Gas in August 1990 at the request of the previous owners. Upon arriving at the Fernaays' residence at 2:15 p.m. the Respondent: (a) determined what gas appliances were in the home; (b) determined that all gas valves to the stove burners and oven were closed and that the stove had no pilot lights (stove had electronic ignition); (c) determined that the gas valve to the water heater was closed; (d) determined that the main valve on the outside tank was closed (at this point it was discovered that there was no test-tee located in back of the regulator for use in performing the manometer test); (e) loosened the nut on the first coupling to the rear of the regulator to remove the bonnet (a bonnet is a plug-like device used to prevent gas from escaping a tank after a "turn-off"). There was no bonnet in place so the nut was retightened on the coupling; (f) turned on the gas by opening the main valve and heard the system "lock-up", but did not hear the regulator "singing" (which indicates that the system is filled with gas and there are no noticeable gas leaks in the system); (g) attempted to light the burners on the stove but could not because there was no gas getting to the stove, so the stove burners were turned off and the main valve at the tank was turned off; (h) followed the gas line from the tank checking each coupling until the bonnet was located and removed, retightened all couplings that had been loosened; (i) turned the gas back on at the tank, heard the system "lock-up" but did not hear the regulator singing. Checked all couplings around the tank, those on the lines going to the house and inside the house up to the water heater for leaks with soapy water but no leaks were found; (j) lit the pilot light and main burner on water heater and found the flame height and color to be normal which indicated proper gas pressure at water heater; (k) checked the balance of fittings inside the house that were visible for leaks with soapy water but found no leaks; (l) lit all stove burners and oven and found flame height and color to be normal which indicated proper gas pressure at the stove; (m) advised Debra Fernaays, who was present in the house during the "turn-on", that the control knob on the oven valve was missing and that she should not use oven until it was replaced. Also, brought Debra Fernaays' attention to the odor of the gas that had escaped while purging the lines of air so she could recognize the odor of the gas in the event of a leak and; (n) went outside to write ticket. After clearing nose of gas odor came back in the house to make a "sniff-test" but did not detect any odor of gas. The Respondent then left the Fernaays' residence at approximately 3:00 p.m. Within a few minutes (4-5) of leaving the Fernaays' residence, Respondent contacted Peoples Gas to advise the service department that he had not performed the water manometer test on the gas system at the Fernaays residence because there was no test tee. Respondent was placed on hold and because the telephone was not covered and there was a hard rain, he hung-up. Respondent then proceeded to find another telephone out of the rain which took approximately 20-30 minutes. This time Respondent was put through to Robert Louth, Service Manager Supervisor thereupon Respondent explained what he had done to check the gas system at the Fernaays but had not performed the water manometer test because of the missing test-tee, and asked for instructions. Louth advised Respondent that the matter would be taken care of the next morning. The telephone conversation between Louth and Respondent occurred at approximately 3:30 p.m. on January 31, 1991 and at approximately 6:30 p.m. that same day the Fernaays' residence was destroyed by an explosion as a result of gas leaking from the system and being ignited. The Fernaays were in the home at the time of the explosion and both suffered burns to their bodies as a result of the explosion. The Respondent always carried two manometers in his service truck and had those manometers with him when he arrived at the Fernaays' residence on January 31, 1991 but because the type work Respondent had contracted for with Peoples Gas did not require him to carry extra fittings, such as a test tee, he did not have a test tee with him on that day. This was the first instance that Respondent could remember where he did not perform a manometer test in connection with numerous turn-ons for Peoples Gas. The procedures used by the Respondent in turning on the gas at the Fernaays's residence on January 31, 1991 was in accordance with the Peoples Gas Safe Job Procedural Manual. The method used by the Respondent to check for gas leaks in the Fernaays' gas system is not as accurate as the manometer test for testing a gas system for gas leaks, particularly where small or minor leaks are concerned. However, the Respondent's method is an acceptable and appropriate method that is acceptable within the industry just as the test described in Appendix D, b.(2), Suggested Method For Checking Leakage, of NFPA No. 54, 1988 edition adopted by Rule 4B-1.001, Florida Administrative Code, and incorporated by reference in Rule 4B-1.023, Florida Administrative Code, which is also not as accurate as the manometer test described in Appendix D, b.(1), NFPA No. 54, 1988 edition where there may be small or minor leaks but it is a suggested method under the rule for checking gas leakage. During the evening of January 31, 1991 after the explosion and again during the day of February 1, 1991, Martin Brett employed by the Department as an LP Gas Inspector, several employees from Peoples Gas (Department has filed an Administrative Complaint against Peoples Gas in this matter) and Bill Buckley, owner S.E.A., Inc. were involved in rummaging through the debris at the site of the Fernaays' residence and extracting the different parts of Fernaays' gas system, particularly the piping, which was ultimately delivered to the S.E.A. warehouse by either S.E.A. or Peoples Gas. After delivery of the pipe to the S.E.A. warehouse, S.E.A. attempted to reconstruct the configuration of the pipe lines as they existed before the explosion. Under this reconstructed configuration there was a gas pipe line of approximately 1/2 inch in diameter that terminated in either the closet or in the ceiling of the area around the closet that was not capped. It was the Department's contention, based on the reconstructed configuration, that this pipe was uncapped at the time of turn-on by Respondent and that it was the gas leaking from this uncapped line that eventually ignited and destroyed the Fernaays' home. There was insufficient evidence to show that Brett or anyone from the Department exercised any control over the removal, transporting, storing or reconstruction of the configuration of the pipe. Neither Bill Buckley as an individual or as the owner of S.E.A. nor the employees of Peoples Gas were working for the Department in regard to removing, transporting, storing or reconstructing the pipe. None of the employees of Peoples Gas, Bill Buckley or Martin Brett testified at the hearing in regard to the removal, transporting, storing or reconstructing the pipe. The only witness called by the Department to testify was Edgar Lee Martin, Jr., employed by the Department as an LP Gas Inspector/Supervisor, who did not become involved in the investigation until February 5, 1991, which was after the removal, transporting, storing and reconstruction of the pipe had been completed. Martin relied solely on what he heard from Brett and Buckley in reaching the conclusion that there was an uncapped gas line pipe in the Fernaays' gas system on January 31, 1991 at the time of the turn-on, and it was gas leaking from the uncapped pipe that ignited and destroyed the Fernaays' home. Roger Owens, the Respondent's expert witness in the area of analysis of explosions caused by gas, opined that assuming there was a "lock-up" of the system and no singing of the regulator after the "lock-up" at the time Respondent turned on the gas at the Fernaays on January 31, 1991 and that the flames were of proper height when the stove burners and water heater were lit, there could not have been such a significant leak (open pipe 1/2 inch diameter) at the time of the turn-on by Respondents as alleged by the Department. There was insufficient evidence to show that the configuration of the gas lines as reconstructed by S.E.A., Inc. was of the same configuration as existed in the Fernaays' gas system on January 31, 1991 at the time Respondent turned on the gas at the Fernaays' residence. Likewise, there was insufficient evidence to show that there were any fittings within the gas line configuration as existed in the Fernaays gas system on January 31, 1991 that Respondent failed to check for leaks. There was insufficient evidence to show that there was an open fitting in the Fernaays' gas system at the time Respondent turned on the gas on January 31, 1991 as indicated by the reconstructed configuration of the gas lines by S.E.A., and as alleged by the Department. The uncontroverted testimony of Respondent that when he turned the gas on for the second and last time he heard the system "lock-up", and although close enough to hear the regulator "sing", did not hear the regulator sing is credible. This testimony along with the testimony of Roger Owens supports the position that there was no leaks in the system at the time Respondent turned the gas on at the Fernaays' residence on January 31, 1991, and specifically no open fitting of approximately 1/2 inch in diameter in the system as alleged by the Department.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department enter a Final Order dismissing the administrative complaint against the Respondent, Norman J. Smith. DONE and ENTERED this 26th day of August, 1991, in Tallahassee, Florida. WILLIAM R. CAVE 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 26th day of August, 1991. APPENDIX TO RECOMMENDED ORDER The following contributes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in substance in Finding of Fact 3. Other than that the Respondent did not perform a manometer test which is adopted in Findings of Fact 5 and 8, proposed finding of fact 3 is rejected as not being supported by substantial competent evidence in the record. Adopted in Findings of Fact 4 and 8. Adopted in substance in Finding of Fact 6 except for that portion concerning an "uncapped pipe" which is rejected as not being supported by substantial competent evidence is the record. Not stated as a finding of fact but what the expert witness testified to, however, see Findings of Fact 4, 10 and 17. Rejected as not being supported by substantial competent evidence in the record. Rulings on Proposed Finding of Fact Submitted by the Respondent Respondent's proposed finding of fact are set out in unnumbered paragraphs which shall be referred in this Appendix as numbers 1 through 19. Covered in the Preliminary Statement, otherwise unnecessary as it goes to the credibility of the witness rather than being a finding of fact. - 6. Adopted in substance in Findings of Fact 11, 12, 13, 14 and 15. 7. - 8. More of an argument than a finding of fact, otherwise subordinate, or unnecessary, or not material or relevant. Adopted in substance in Findings of Fact 3, 7 and 8. - 15. Adopted in substance in Finding of Fact 4. 16. - 17. Adopted in substance in Finding of Fact 5. Not stated as a finding of fact by what Martin testified to, otherwise unnecessary or subordinate or not material or relevant. Adopted in Finding of Fact 4. COPIES FURNISHED: Lisa S. Santucci, Esquire Department of Insurance and Treasurer 412 Larson Building Tallahassee, FL 32399-0300 Zala L. Forizs, Esquire Blasingam, Forizs & Smiljanich, P.A. P.O. Box 1259 St. Petersburg, FL 33731 Tom Gallagher, State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300 Bill O'Neil, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, FL 32399-0300
The Issue Whether Respondent is unable to practice nursing with reasonable skill and safety by reason of illness or use of alcohol, in violation of section 464.018(1)(j), Florida Statutes (2020); and, if so, the appropriate penalty.
Findings Of Fact Based upon the credibility of witnesses and evidence presented at the final hearing and stipulated facts, the following Findings of Fact are found: 1 Respondent objected to Petitioner’s admission of Exhibit 7, which was a close-captioned television video recording of Respondent and others on July 2, 2020. Respondent argued that Petitioner only offered a portion of the recordings from that day, and, thus, Petitioner should offer the complete video. To address Respondent’s objection, Petitioner was instructed to contact Mr. Anderson to verify whether additional recordings were available for July 2, 2020. However, Mr. Anderson was not available. Given the location of the camera and the area of treatment, the video camera may have captured Respondent leaving the emergency room. After considering the record, however, additional recordings would not have changed the outcome of the undersigned’s findings in this matter. 2 Respondent indicated at hearing that he was offering the reference letter as his sole exhibit. He was permitted to file the exhibit with DOAH after the hearing. Instead, Respondent filed a copy of a certificate of completion for nursing continuing education courses. The reference letter was not filed and, thus, is not a part of the record. Stipulated Facts At all times material to this complaint, Respondent was licensed as a registered nurse within the State of Florida, having been issued license number RN 3349322. Respondent’s address of record is 805 Sunday Road, Chipley, Florida 32428. At all times material to this complaint, Respondent was employed by Doctors Memorial Hospital (DMH), located in Bonifay, Florida. Respondent submitted to a blood alcohol test, which returned positive at a level of 0.2637 g/dl. Facts Related to the Events on July 2, 2020 On July 2, 2020, several colleagues of Respondent observed Respondent’s behavior at work, which raised questions regarding whether Respondent was impaired. Janet Smith, a registered nurse, worked at DMH. She had worked with Respondent for approximately 10 years before July 2, 2020. Ms. Smith arrived to work at 8:00 a.m. She observed Respondent at the emergency room desk from a distance of 10 feet for approximately 10 to 15 minutes. She testified that Respondent’s speech was “different, it was drawn out, and he was talkative, more friendly than usual.” Ms. Smith had more than 30 years of experience working in the emergency room and was familiar with the behavior of persons under the influence of alcohol. Based on her experience, she believed that “[Respondent] appeared drunk.” Concerned about Respondent’s behavior, Ms. Smith shared her concerns with other staff members, including Ashley Hall, Debra Smitty, Rohan Anderson, and Dr. Contini. Dr. Contini and Ms. Smitty were not offered as witnesses at the final hearing. Although Ms. Smith had concerns about Respondent’s behavior on July 2, 2020, she otherwise believed he was a strong nurse. Rohan Anderson also observed Respondent on July 2, 2020, after Debra Smitty shared her concerns about Respondent’s behavior. Mr. Anderson works at DMH as the Chief Operating Officer and Director of Information Technology. Mr. Anderson had also worked with Respondent at another hospital and did not recall any prior impairment issues. Similar to Ms. Smith, Mr. Anderson observed Respondent from a distance of 10 to 15 feet near the emergency room desk. He also noticed that Respondent’s speech was different than usual. Mr. Anderson testified that Respondent was “slurring his words … the way he was controlling the pitch of his voice. And I knew something was going on based on that.” Mr. Anderson then shared his concerns about Respondent’s behavior with Dr. Ulhaq, the emergency room director. Mr. Anderson unequivocally testified that Respondent was known for being a good nurse and was used as an example for training purposes. Loyd Simmons, an advanced registered nurse practitioner, was working in the emergency room on July 2, 2020. At Dr. Ulhaq’s request, Mr. Simmons evaluated Respondent based on the reports of suspected alcohol use. Mr. Simmons noted that Respondent was not acting like his “normal” self and he appeared to be unsteady on his feet. Respondent experienced difficulty with upward gaze. However, he was alert, oriented, with clear speech. Mr. Simmons performed a physical examination of Respondent, where he did not find any bruises or signs of a recent fall. He also conducted a neurological examination with Dr. Ulhaq, which revealed a positive Babinski. A positive Babinski result may be an indicator of a problem in the central nervous system. It may, however, also be related to alcohol use. Mr. Simmons interpreted findings of Respondent’s EKG and CT scan as within normal limits. Mr. Simmons found Respondent’s EKG and CT scan results did not indicate a condition that would affect his blood alcohol level. The hematology results returned normal results. The blood alcohol level test returned a result of 263.7 mg/dc, meaning .263 g/dcl.3 The chemical analyzer machine used to perform the blood alcohol test was working properly, calibrated properly, and the machine properly reported correct blood alcohol test results for Respondent. Based on his findings, Mr. Simmons diagnosed Respondent with alcohol intoxication. There was no evidence deduced from the tests performed that Respondent suffered from liver complications or COVID-19 that would cause his significantly high alcohol level results. Mr. Simmons testified that he had no prior personal knowledge of Respondent being impaired at work. Ms. Hall worked with Respondent on July 2, 2020. She observed Respondent for approximately 30 minutes while working together. She testified that he was more “jolly” than usual on that day and his mannerisms were exaggerated. She then shared her belief with the Director of Nursing that Respondent appeared to be impaired. Ms. Hall was present during Respondent’s evaluation in the emergency room. She assisted with placing an IV catheter to withdraw a blood sample from Respondent. She followed the standard process by cleaning the insertion site with isopropyl alcohol, and allowing the area to dry before inserting the catheter. She withdrew the blood sample and then delivered the sample to the lab drop-off window for testing. She had no further contact with the blood sample. Although Ms. Hall primarily worked a different shift than Respondent, she had never witnessed Respondent exhibiting similar behavior as he exhibited on July 2, 2020. Overall, each witness who worked with Respondent on July 2, 2020, reported that he was not behaving like normal and his behavior was consistent with alcohol impairment. Evaluation on January 14, 2021 Respondent was placed on administrative leave and ultimately, terminated for “being at work while under the influence of alcohol.” He was 3 The legal limit in Florida for intoxication is considered a blood alcohol level of .08 or above. presented with the option to voluntarily report to Intervention Project for Nurses (IPN) in lieu of a complaint filed with the Department, and he agreed to contact IPN. Respondent subsequently elected not to voluntarily participate in IPN because he could not “afford it.” The Department then issued an Order requiring Respondent to undergo an evaluation with Dr. Reeves. Dr. Reeves, a licensed medical doctor in the State of Florida since 1994, has specialized in addiction medicine since 2010. Dr. Reeves is board certified in addiction medicine and a member of several professional organizations for addiction treatment providers. Dr. Reeves serves as the Medical Director for two treatment facilities, South Walton Medical Group and Sacred Heart Hospital of the Emerald Coast. Prior to practicing addiction medicine, he worked as a vascular surgeon. Dr. Reeves has written articles and delivered presentations on the topic of addiction medicine. Dr. Reeves has testified in other legal proceedings within the past 10 years and has never been disqualified as an expert. Dr. Reeves was accepted as an expert on addiction medicine in this matter. Dr. Reeves performed an independent medical examination (IME) of Respondent on January 14, 2021. Dr. Reeves routinely conducts IMEs of health care professionals to determine whether an individual has an issue with addiction or addictive substances, including alcohol. Dr. Reeves follows a process for conducting an IME. He reviews the available records, any medical history, and witness statements. Dr. Reeves then meets with the individual to conduct an in-person evaluation, which includes assessment tests and screening exams. Dr. Reeves testified that he understood that Respondent was referred to him for alleged alcohol intoxication while at work. Dr. Reeves was concerned as alcohol is a depressant and directly affects the judgement and decision-making functions in the brain. Dr. Reeves discussed the events that gave rise to the Department’s complaint and subsequent referral for evaluation. Respondent explained to Dr. Reeves that he began drinking more often while he was quarantined with COVID-19. Respondent told Dr. Reeves that he had increased his drinking from two to three beers a night to three to four beers per night, four to five times per week. Respondent stated that he drank several drinks the night before he returned to work to help him sleep. He did not believe that he drank a lot and was surprised that his test results reflected a significantly elevated alcohol level. He denied being intoxicated at work on July 2, 2020. Respondent completed a questionnaire after he arrived for his evaluation, which Dr. Reeves reviewed with him during the evaluation. Respondent suggested in his questionnaire that perhaps the alcohol level was because he had taken Nyquil4 while driving to work. Respondent later retracted that statement. Regarding assessments, the evaluation included an ethyl glucuronide (ETG) test, which was performed upon Respondent’s arrival to Dr. Reeves office. An ETG test is a urine test that measures the level of ethyl glucuronide in the body. An ETG test would generally yield positive results within two to five days after alcohol is ingested. Respondent’s test was negative. Dr. Reeves testified that the negative test results suggest Respondent had not drank alcohol within the prior three to five days. Dr. Reeves also asked Respondent to undergo a phosphatidylethanol (PEth) test, which tests a blood sample to measure intake of alcohol. The PEth test has a longer timeframe for measurement than the ETG test, as it measures alcohol in the system for up to 14 days after ingestion. To maintain the validity of the test, it must be completed within 48 hours of the request. 4 Dr. Reeves testified that a dose of Nyquil contains approximately the same amount of alcohol as a glass of wine. He estimated that a person would need to consume 10 to 15 doses of Nyquil to achieve a result of .2637 gm/dcl (Respondent’s test results). Respondent did not complete the test within that timeframe. Thus, there were no PEth test results for Dr. Reeves to consider. Dr. Reeves testified that the PEth test was not a necessary factor for diagnosing an alcohol-use disorder, as he had sufficient objective data from his evaluation to make a diagnosis. Expert Opinion Based upon his evaluation, Dr. Reeves diagnosed Respondent with moderate alcohol disorder. Dr. Reeves relied upon the criteria established in the Diagnostic Statistic Manual-5 (DSM-5), which sets out the standard of care for diagnosis of psychiatric disorders. The DSM-5 includes alcohol-use disorder as a psychiatric diagnosis. Dr. Reeves testified that if you meet two or more of 11 alcohol-use disorder criteria used in the DSM-5, the individual meets the criteria for that level of the disorder. Applying objective factors identified during his evaluation of Respondent, Dr. Reeves determined that Respondent met four of the 11 criteria for moderate alcohol-use disorder. Specifically, Dr. Reeves identified the following criteria in making his assessment: Alcohol is often taken in larger amounts or over a longer period than was intended; * * * 5. Recurrent alcohol use resulting in a failure to fulfill major role obligations at work, school, or home; * * * 8. Recurring alcohol use in situations in which it is physically hazardous; and * * * 10. Tolerance is defined by (a) a need for markedly increased amounts of alcohol to achieve intoxication or desired effect, or (b) a markedly diminished effect with continued use of the same amount of alcohol. Dr. Reeves testified that a nursing professional is considered a safety sensitive occupation, which requires good decision-making ability. Since alcohol significantly impairs judgement and decision-making ability, an individual who is impaired by alcohol is not safe to practice as a nurse. Dr. Reeves credibly opined that Respondent is not safe to practice as a nurse due to his diagnosis of moderate alcohol-use disorder. Dr. Reeves’ opinion is accepted. Dr. Reeves recommended a course of intensive outpatient treatment for a specified period of time. Even if Respondent indicated he stopped drinking, without treatment, Dr. Reeves maintains that Respondent is not safe to practice nursing. Based on his review of the records obtained from DMH, Dr. Reeves concluded that Respondent’s records reflected no symptoms to demonstrate that he suffered from a transient ischemic attack (TIA)5 as Respondent suggested. There was no evidence offered at hearing that Respondent harmed patients while he was impaired. Other than his behavior exhibiting impairment, the testimony overwhelmingly supported that he was considered a good nurse. Ultimate Findings of Fact Petitioner presented clear and convincing evidence to demonstrate that Respondent was impaired while at work on July 2, 2020. 5 A TIA is a temporary period of symptoms similar to a stroke. Petitioner presented clear and convincing evidence to demonstrate that Respondent is unable to practice nursing with reasonable skill and safety to patients due to his moderate alcohol-use disorder and alcohol use.
Conclusions For Petitioner: Ellen LeGendre Carlos, Esquire Dirlie Anna McDonald, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 For Respondent: Benjamin Dallas Stoe, pro se 805 Sunday Road Chipley, Florida 32428
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order finding: Respondent violated section 464.018(1)(j), Florida Statutes (2020); and suspending Respondent’s registered nursing license, until such time that Respondent enters into IPN and complies with any and all terms and conditions imposed by IPN. DONE AND ENTERED this 26th day of August, 2021, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 2021. COPIES FURNISHED: Ellen LeGendre Carlos, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Dirlie Anna McDonald, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399 Benjamin Dallas Stoe 805 Sunday Road Chipley, Florida 32428 Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399 Deborah McKeen, BS, CD-LPN Board of Nursing Department of Health 4052 Bald Cypress Way, Bin D02 Tallahassee, Florida 32399
The Issue Whether Florida Administrative Code Rule 11D-8.003(2) is an "invalid exercise of delegated legislative authority" for the reasons alleged in the petition filed by Petitioners.
Findings Of Fact Petitioners are defendants in various pending prosecutions in Brevard County, Florida. They all were charged with driving with an unlawful breath alcohol level, after having taken breath tests pursuant to the implied consent requirement of section 316.1932(1)(a)1.a., Florida Statutes, which presently provides, in pertinent part, that "[a]ny person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages."2/ They have also been charged under the alternative theory of driving under the influence of alcohol to the extent their normal faculties were impaired. Under this theory of prosecution, the State can argue that with a breath alcohol level in excess of .08, a defendant is presumed to have been under the influence of alcohol to the extent his or her normal faculties were impaired.3/ The state of Florida intends to offer evidence in each of these cases that the defendant had an unlawful breath alcohol level at the time of the charged offense. In offering such evidence, the state will argue that it has complied with all statutory and rule prerequisites to the evidence's admissibility. Among other things, it will allege that each defendant took an "approved" infrared breath test on an Intoxilyzer 8000. Section 316.1932(1)(a)2. presently provides, in pertinent part, as follows: The Alcohol Testing Program within the Department of Law Enforcement is responsible for the regulation of the operation, inspection, and registration of breath test instruments utilized under the driving and boating under the influence provisions and related provisions located in this chapter and chapters 322 and 327. . . . The program shall: * * * g. Have the authority to approve or disapprove breath test instruments and accompanying paraphernalia for use pursuant to the driving and boating under the influence provisions and related provisions located in this chapter and chapters 322 and 327. * * * l. Promulgate rules for the administration and implementation of this section, including definitions of terms. Florida Administrative Code Rule 11D-8.003 is an existing rule of FDLE that was adopted pursuant to the rulemaking authority granted by section 316.1932(1)(a)2. It is entitled, "Approval of Breath Test Methods and Instruments," and provides as follows: The Department has approved the following method(s) for evidentiary breath testing: Infrared Light Test, also known as Infrared Light Absorption Test. The Department approves breath test methods and new instrumentation to ensure the accuracy and reliability of breath test results. The Department has approved the following breath test instrumentation for evidentiary use: CMI, Inc. Intoxilyzer 5000 Series - including any or all instruments using one of the following programs: 5000 Basic Software Program; Florida Software Program; R-Software Program; and CMI, Inc. Intoxilyzer 8000 using software evaluated by the Department in accordance with Instrument Evaluation Procedures FDLE/ATP Form 34 - Rev. March 2004. The Department has approved the following options for use with Intoxilyzer 5000 Series instruments: keyboard; simulator recirculation; sample capture; pressure switch setting at no less than two inches and no more than six inches of water. A Department inspection performed in accordance with Rule 11D-8.004, F.A.C., validates the approval, accuracy and reliability of an evidentiary breath test instrument. The Department shall conduct evaluations for approval of new instrumentation under subsection (2) in accordance with Instrument Evaluation Procedures FDLE/ATP Form 34 - Rev. March 2004. The availability or approval of new instruments, software, options or modifications does not negate the approval status of previously approved instruments, software, options or modifications. Since 2001, rule 11D-8.003 has been amended twice--in 2002 and, most recently, in 2004. Before its amendment in 2002, the rule provided as follows: The Department has approved the following method(s) for evidentiary breath testing: Infrared Light Test, also known as Infrared Light Absorption Test. The Department has approved the following breath test instrument(s) for evidentiary use: CMI, Inc. Intoxilyzer 5000 Series – including any or all instruments using one of the following programs: 5000 Basic Software Program; Florida Software Program; R-Software Program. The Department has approved the following options for use with Intoxilyzer 5000 Series instruments: keyboard; simulator recirculation; sample capture; pressure switch setting at no less than two inches and no more than six inches of water. The determination to evaluate an evidentiary breath test instrument for use in the State of Florida will be made by the Department. Upon notification by the Department that an evidentiary breath test instrument will be evaluated, the instrument's manufacturer shall submit the following to the Department: The method of analysis upon which the instrument is based; The instrument's model designation; At least two (2) instruments for evaluation and a certificate of calibration for each instrument; A description of the instrument; The operator's/technician's manual; A schematic design of the instrument; The instrument's maintenance manual, if published; Any accessories and materials necessary to use the instrument for breath testing; The maximum and minimum temperatures at which the instrument provides accurate results; The name and description of the software used. A manufacturer whose instrument has been previously approved by the Department shall notify the Department in writing prior to making any modification or adding a new option to such instrument. The Department shall evaluate such modifications or options to an approved breath test instrument and determine whether they affect the instrument's method of analysis or analytical reliability. The Department shall conduct evaluations for approval under sections (4) and (5) in accordance with Instrument Evaluation Procedures FDLE/ATP Form 34 – Rev. March 2001. The Instrument Evaluation Procedures FDLE/ATP Form 34 – Rev. March 2001 (Form 34) referred to in subsection (6) of the pre-2002 version of rule 11D-8.003 read as follows: The following procedures will be used to evaluate breath test instruments for approval for use in Florida, and to evaluate any changes, modifications or new options to a previously approved breath test instrument. Only breath test instruments listed on the US Department of Transportation Conforming Products List of Evidential Breath Measurement Devices will be evaluated. All materials, equipment and supplies necessary to evaluate an instrument must be received and recorded prior to beginning the evaluation process. New instrument evaluation requirements are outlined in Rule 11D-8.003(4), FAC, and requirements for evaluations of changes, modifications, or new options will be determined by the Department based on the nature of the change, modification or new option. Results of all evaluations shall record: The purpose for and subject of the evaluation. The personnel involved and their specific role. The make, model and serial number of the instrument. The software which controls the instrument and the options and settings available. The make, model and serial numbers, and the operating conditions of any external equipment and instrumentation (such as simulators) used in the evaluation process. The testing location and operating conditions (such as room temperature). All options, changes and modifications involved in the evaluation. A conclusion to approve, disapprove, or withhold approval as inconclusive pending additional information, and the reasons for such conclusion. Each instrument evaluated must be properly calibrated by the manufacturer prior to evaluation, and a certificate of calibration must be submitted by the manufacturer. Each instrument evaluated must be operated in accordance with the manufacturer's operator/technician manual. Each instrument will be evaluated at each of the following alcohol concentrations: 0.020g/210L, 0.050g/210L, 0.080g/210L, 0.150g/210L, 0.300g/210L, and 0.400g/210L. Each instrument will also be evaluated for its capability to detect acetone interference and mouth alcohol as prescribed by the manufacturer, and for its capability to properly analyze an alcohol free sample (0.00g/210L). Each instrument evaluated will be subjected to at least fifty (50) repetitions of an alcohol free test, an acetone interference test, and a mouth alcohol test. The alcohol free test will be conducted by analyzing a 500 mL of deionized or distilled water. The water will be analyzed by gas chromatography prior to the test to verify that it contains no alcohol. All results must be 0.000g/210L; The acetone interference test will be conducted by analyzing an alcohol free simulator (deionized or distilled water) containing 3 mL of acetone stock solution. The acetone stock solution will be prepared using distilled or deionized water and adding 77 mL of reagent grade acetone per liter of water, and will be analyzed by gas chromatography prior to the evaluation to verify that it contains only acetone. The results must be 0.000g/210L and the acetone detected by the correct instrument response(s) prescribed by the manufacturer to denote the interferent. The mouth alcohol test will be conducted by first analyzing an alcohol free subject's breath sample, and another breath sample after the subject has rinsed their mouth with an alcohol solution. The first breath sample result must be 0.000g/210L, and the mouth alcohol breath sample must be detected by the correct instrument response(s) prescribed by the manufacturer to denote mouth alcohol. Each instrument evaluated will be subjected to at least fifty (50) repetitions analyzing the following concentrations of either an alcohol reference solution or an alcohol stock solution: 0.020g/210L, 0.050g/210L, 0.080g/210L,, 0.150g/210L, 0.200g/210L, 0.300g/210L, and 0.400g/210L. In order to establish the accuracy of an evaluated instrument, the results of each analysis must fall within the following ranges: 0.020g/210L range is 0.015 to 0.025g/210L; 0.050g/210L range is 0.045 to 0.055g/210L; 0.080g/210L range is 0.075 to 0.085g/210L; 0.150g/210L range is 0.145 to 0.155g/210L; 0.200 range is 0.190 to 0.210g/210L; 0.300g/210L range is 0.285 to 0.315g/210L; and the 0.400g/210L range is 0.380 to 0.420g/210L. In order to establish the precision of an evaluated instrument, the average standard deviation for the above results will be calculated and must not exceed the manufacturer's specifications for precision. Each lot of alcohol reference solution or alcohol stock solution will be analyzed by gas chromatography in accordance with the procedures in Rule 11D-8.0035(2)(a), FAC, before being used in the evaluation process. Any option that is available with the instrument will be evaluated according to the manufacturer's recommendation for utilizing that option. If an option can be evaluated according to the methods stated above, then those procedures will be followed. If an option cannot be evaluated according to the methods stated above, the manufacturer must provide the information necessary to evaluate that option, and that option will be evaluated according to the manufacturer's recommendation. The procedure for evaluating the option and the results of the evaluation will be recorded. The Department will determine whether to conduct additional tests or studies necessary to properly evaluate an instrument or any of its options, or additional evaluations for quality assurance or research purposes. The Department will record the procedures used and the results obtained. In 2001, U.S. Department of Transportation's National Highway Traffic Safety Administration (NHTSA) determined that CMI, Inc.'s Intoxilyzer 8000 met all of the requirements for placement on its Conforming Products List of Evidential Breath Measurement Devices (CPL) referenced in the Instrument Evaluation Procedures FDLE/ATP Form 34 – Rev. March 2001. On October 3, 2002, an amendment to the CPL was published in the Federal Register (at 67 Fed. Reg. 620191).4/ Among the "[e]vidential [b]reath [m]easurement [d]evices" added to the CPL by this amendment was the Intoxilyzer 8000. A Form 34 evaluation of the Intoxilyzer 8000 was conducted by FDLE's Alcohol Testing Program on April 30, 2002 (April 2002 Evaluation).5/ Two Intoxilyzer 8000s--one bearing Serial Number 80-000208 and the other bearing Serial Number 80- 000209--were assessed. The testing was not successfully completed. A written report of the evaluation was generated on or about July 29, 2002. It described the following "exceptions" that had occurred during the evaluation: INSTRUMENT 80-000208: The breath test affidavit failed to print completely on the first evidential breath test with external printer attached. On the second test, the affidavit printed correctly. Probable cause: software. 3. Three exceptions occurred during the mouth alcohol tests. On sample #5, the sample was introduced at the wrong time, on sample #12, the sample was introduced improperly, and on sample #35, a cell phone was used next to the instrument, causing a radio interference flag. 3. During the 0.20 simulator tests, the results were noted to be consistently dropping in value. After the 20th sample, a 0.40 simulator was attached. The results for this simulator were low and erratic. All connections were checked. It was then noted that air was being taken from the simulator. Blocking the breath tube resulted in closer to target values. This is symptomatic of a failed one-way valve. Testing was terminated at this point. INSTRUMENT 80-000209 One exception occurred during the mouth alcohol tests. On sample #48, the sample was introduced improperly. During the 0.02 simulator tests, the instrument reported interferent at simulator sample #42. During simulator sample #44, the instrument reported interferent and an alcohol reading during the subsequent airblank. Testing was suspended and the room checked for sources of interferents. The instrument was purged for 15 minutes. The instrument reported interferent when none was known to be present for two more 0.02 samples and for three 0.05 simulator samples. Mr. Toby Hall, CMI Inc., was contacted for guidance. He attributed the exceptions to software failure. Testing was terminated. Shortly after the April 2002 Evaluation, FDLE published in the May 17, 2002, edition of Florida Administrative Weekly a Notice of Development of Proposed Rules, advising that it was proposing to make the following changes to rule 11D-8.003 (with the underlined language representing proposed additions to the rule), as well as changes to other rules in rule chapter 11D-8: 11D-8.003 Approval of Breath Test Methods and Instruments. No change. The Department has approved the following breath test instrument(s) for evidentiary use: CMI, Inc. Intoxilyzer 5000 Series – including any or all instruments using one of the following programs: 5000 Basic Software Program; Florida Software Program; R-Software Program; and CMI, Inc. Intoxilyzer 8000 using software approved by the Department in accordance with Instrument Evaluation Procedures FDLE/ATP Form 34 – Rev. March 2002. through (4)(e) No change. A schematic design and a mechanical drawing of the instrument; through (j) No change. (5) through (6) No change. (7) The availability or approval of new instruments, software, options or modifications does not affect the approval status or reliability of previously approved instruments, software, options or modifications. The notice indicated that, "if requested in writing and not deemed unnecessary by the agency head, a rule development workshop [would] be held [at] 10.00 a.m. [on] June 4, 2002." On May 29, 2002, while the rulemaking process was still ongoing, FDLE's Alcohol Testing Program conducted another Form 34 evaluation of the Intoxilyzer 8000 (May 2002 Evaluation), using the same two instruments (bearing Serial Numbers 80-000208 and 80-000209) that had been the subject of the April 2002 Evaluation, but they were newly calibrated by the manufacturer (CMI, Inc.) and had different software. The testing of the Intoxilyzer 8000 bearing Serial Number 80-000209 was aborted due to an "electrical short circuit" which caused it to emit smoke. The assessment of the Intoxilyzer 8000 bearing Serial Number 80-000208, however, "proceeded to completion as outlined in the Report based on work done on that date,"6/ as the parties stipulated in Admitted Fact 13 set forth in their Pre- Hearing Stipulation. That "Report" indicated, among other things, that the testing yielded the following "Analytical Results" and "Conclusion": Analytical Results All results met the requirements of FDLE/ATP Form 34 Instrument Evaluation Procedures for accuracy, and all instrumentation performed within the manufacturer's specification for precision of 0.003. All results for the acetone interferent test were 0.000g/210L and acetone was detected by the correct instrument response prescribed by the manufacturer to denote the interferent. Mouth alcohol was correctly determined by the instrumentation. Conclusion The results of this evaluation establish that the CMI, Inc. Intoxilyzer 8000 instrumentation produces accurate and reliable breath alcohol test results. Based on the results of this evaluation, the Florida Department of Law Enforcement Alcohol Testing Program approves the infrared light absorption method as it exists in the CMI, Inc. Intoxilyzer 8000 instrumentation using software version 8100.10. The CMI, Inc. Intoxilyzer 8000 instrumentation is approved for use as evidentiary breath instrumentation in the State of Florida. Pursuant to FDLE's interpretation of the version of rule 11D- 8.003 then in effect (an interpretation with which Petitioners have, in this proceeding, expressed their disagreement), the successful completion of Form 34 testing on one of the two Intoxilyzer 8000s that CMI (as required by subsection (4)(c) of the rule) had submitted was sufficient to warrant FDLE's approval of the Intoxilyzer 8000 under the then-existing version of the rule. By letter dated July 8, 2002, William Harrold, the Joint Administrative Procedures Committee's (JAPC's)7/ Chief Attorney, advised Fern Rosenwasser of FDLE's Office of General Counsel that he had "completed a preliminary review of [the proposed amendments to rule chapter 11D-8][8/] and ha[d] . . . comments for [her] consideration" regarding proposed rules 11D- 8.003(7) and 11D-8.017 (and no other matters), which comments were set forth in the letter. Significantly, Mr. Harrold did not request any further information concerning FDLE's justification for amending rule 11D-8.003(2) to list the Intoxilyzer 8000 as an FDLE-approved breath test instrument. On July 18, 2002, Ms. Rosenwasser sent Mr. Harrold the following letter in response to his July 8, 2002, letter: I write in reference to the preliminary review of [FDLE's proposed amendments to rule chapter 11D-8]. I have included FDLE's comments in each individual rule section to facilitate your review. 11D-8.003(7) This rule provision states: The availability or approval of new instruments, software options or modifications does not affect the approval status or reliability of previously approved instruments, software, options or modifications. [Comment by Mr. Harrold:] Under the "map tack" provisions of § 120.536, F.S., a specific law implemented is required for each rule provision. Provide citation to the statutory authority that authorizes this rule provision. The statement in the rule appears overly broad. If all of the new instruments, software, options or modifications were examined since the breathalyzers were first used there is a high probability that the approval status of previously approved instruments, software, options and modifications have been affected. Response: The approval of another instrument does not affect the "approval status" of a previously approved instrument. If the previously approved instrument['s] reliability is in question, then there are tests and procedures to determine such and to terminate approval status. This section merely reaffirms that approval of a new instrument does not invalidate the approval of a previous instrument. Language revised to read: (7) The availability or approval of new instruments, software, options or modifications does not negate the approval status of previously approved instruments, software, options or modifications. 11D-8.017 [Comment by Mr. Harrold:] This rule provision incorporates various forms. FDLE/ATP Form 14, Breath Test Result Affidavit was not submitted with the rule package and must be supplied. Response: Form submitted in Notice of Proposed Rulemaking package. Eight days later, FDLE published in the "Proposed Rules" section of the July 26, 2002, edition of the Florida Administrative Weekly its proposed amendments to rule chapter 11D-8, as revised in the manner described in Ms. Rosenwasser's July 18, 2002, letter to Mr. Harrold (2002 Proposed Rules). The "full text of the [2002] [P]roposed [R]ules" was published, accompanied by, among other things, a statement that, if requested within 21 days, a hearing on the 2002 Proposed Rules would be held on August 21, 2002. On October 16, 2002, JAPC issued a Certification concerning the 2002 Proposed Rules, certifying that: The adopting agency has responded in writing to all material and timely written comments or written inquiries made on behalf of the Committee regarding the [2002 Proposed Rules]; That all statutory rulemaking requirements of Chapter 120, F.S. have been complied with; There is no administrative determination under subsection 120.56(2), F.S. pending on any rule covered by this certification; All rules covered by this certification are filed within the prescribed time limitations of paragraph 120.54(3)(e), F.S. They are filed not less than 28 days after the notice required by subsection 120.54(3)(a), F.S.; and [a]re filed not more than 90 days after the notice.[9/] The Certification noted that the 2002 Proposed Rules "remain[ed] subject to committee review pursuant to the provisions of section 120.545." That same day (October 16, 2002), FDLE filed with the Secretary of State the 2002 Proposed Rules, along with the following Summary of Proposed Rule[s], Justification of Proposed Rule[s], Federal Comparison Statement, and Summary of Hearing: SUMMARY OF PROPOSED RULE[S] Proposed revisions to Chapter 11D-8, F.A.C. pertain to the regulation and implementation of Florida's implied consent and alcohol testing program. The proposed revisions govern definitions based on scientific and common usage; standards for issuance and regulation of permits; evaluation and approval of breath and blood alcohol analysis methods; approval, use, and inspection of breath test instruments and records; and training requirements and qualifications. JUSTIFICATION OF PROPOSED RULE[S] The proposed revisions are necessary to accommodate approval of a new breath test instrument for use in the State of Florida that employs new technology with expanded capabilities, to implement certification of breath test instructors and approval of breath test courses by the Criminal Justice Standards and Training Commission, and to ensure the qualifications and proficiency of blood alcohol analysts. FEDERAL COMPARISON STATEMENT There are no federal requirements dealing with this topic. SUMMARY OF HEARING The proposed rules were noticed in the Florida Administrative Weekly on July 26, 2002, for a hearing to be held on August 21, 2002, if requested. FDLE received no requests for a public hearing and none was conducted. One written comment was submitted and is summarized below. Stuart I. Hyman, P.A., objects to the proposed revision because information relating to breath test instrumentation software and technical components are confidential and exempt from public records disclosure. FDLE's response restated the exemption and provided the applicable statutory authority. The Justification of Proposed Rule[s] that FDLE filed with the Secretary of State had previously been submitted to JAPC for its review and consideration. The 2002 Proposed Rules became effective November 5, 2002.10/ On November 12, 2002, the Department of State received the following letter from Ms. Rosenwasser: Please accept this request from [FDLE} for a technical change to Rule 11D-8.003(6). The change is necessary since FDLE/ATP Form 34 does in fact reflect a March 2002 revision date, and is referenced as such throughout the rules. Effective November 5, 2002, the 2001 version was replaced by the 2002 version. Information concerning the April and May 2002 Evaluations was not requested by, nor shared with, JAPC during the rulemaking process in 2002. FDLE engaged in rulemaking in 2004 to again make changes to rule 11D-8.003, including subsection (2) of the rule. These changes became effective December 9, 2004. The rule has not been amended since. Accordingly, the existing version of rule 11D-8.003 is the version that emerged from the rulemaking process in 2004.
The Issue Whether disciplinary action should be taken against Respondent's license to practice as a physician, license number ME 67443, based on a two-count violation, Sections 458.331(1)(m) and (t), Florida Statutes, as alleged in the Administrative Complaint filed against Respondent in this proceeding.
Findings Of Fact Based on the evidence and the testimony of witnesses presented in this proceeding, the following facts are found: Respondent is, and has been at all times material hereto, a licensed physician, having been issued license number ME 67443 by the State of Florida. At all times material hereto, Respondent practiced as an emergency room physician. When treating a patient, an emergency room physician has a duty to rule out the most serious life- threatening conditions. Pulmonary embolism is a blood clot, which forms in or travels to the lungs. It is a life-threatening condition. A thrombus is a blood clot that forms at a particular site, while an embolus is a piece of a thrombus that breaks off and wedges itself in another artery. The most common type of thrombus that causes pulmonary embolism is a deep vein thrombus, which originates in the lower extremities (legs). Once a thrombus forms in the leg, an emboli can break off from the thrombus, travel through the bloodstream and wedge itself in the lungs, creating a pulmonary embolism. On June 13, 1995, Patient R.D. presented to the emergency room of the Daytona Beach Medical Center in Daytona Beach, Florida, at approximately 7:35 p.m. Patient R.D. was a 41 year-old obese male who weighed 305 pounds. Patient R.D. presented to the emergency room complaining of chest pain (rated 3-4 on a scale of 10) and shortness of breath beginning at 8:30 a.m. that day. The patient was seen by a nurse who prepared a "triage nursing assessment." The nurse documented the following about Patient R.D.: Chief complaint of nausea and diaphoresis (cold sweat) earlier in the day; pulse rate of 112, which indicated tachycardia; elevated respiratory rate of 28; labored breathing; clear breath sounds; and trace pedal edema. The "Implementation: Nursing Action" noted that Patient R.D. had marked dyspnea (labored breathing). He was immediately placed on oxygen. At 7:40 p.m., Respondent, the emergency room physician on duty, examined Patient R.D. During Respondent's subjective examination of Patient R.D., Respondent documented: Chest pain all day, heaviness in the center of the chest with some nausea, negative vomiting; negative numbness and sweating; negative history of this [sic]; positive shortness of breath all day with chest pain, but can work; negative history of asthma; negative history of heart disease; family history positive for cardiac disease (mother in her 60's); social history (smoked a joint 24 hours ago). The patient reported that despite his complaints, he was still able to work. Patient R.D. was obese and had recently smoked marijuana, two of the secondary risk factors associated with pulmonary embolism. Patient R.D. did not present to Respondent with the classic signs and symptoms of pulmonary embolism. While taking Patient R.D.'s history, Respondent did not document any history of cholesterol levels, cigarette smoking, recent leg injury, prior blood clots, or sedentary time periods. Respondent failed to document important aspects of Patient R.D.'s family and social history. Respondent failed to adequately document the history taken. Respondent performed a complete physical examination of the patient, including an examination of his legs. During Respondent's objective examination of Patient R.D., Respondent documented: lungs clear to auscultation (no rattles or wheezing) with good alveolar BS bilaterally; cardiac S1S2 and distant; abdomen obese and negative tender; legs with 1+ pedal edema; negative CVA tender (no tenderness over kidneys); no nuchal rigidity (no neck stiffness). The patient had no diaphoresis in the emergency room. Respondent then ordered a chest X-ray, an electrocardiogram (EKG), blood work (CBC), and electrolyte panel and cardiac enzymes. Respondent also had a pulse oximetry performed. Major risk factors of pulmonary embolism include: history of malignancy, recent leg injury, prior blood clots including deep vein thrombosis, and sedentary time periods. Secondary risk factors include: obesity and smoking, including marijuana smoking, and elevated cholesterol levels. The signs and symptoms of pulmonary embolism include, but are not limited to, shortness of breath, chest pain or pressure, diaphoresis (sweating), increased respiratory rate, and tachycardia (abnormal rapid heart rate). Although Respondent testified that he considered pulmonary embolism as one of his top five differential diagnoses, the patient's clinical signs and symptoms were insufficient for Respondent to have to rule out a pulmonary embolism. As the signs and symptoms of a pulmonary embolism can wax and wane, it is not an easy diagnosis to make. When examining the legs of a patient suspected of having a pulmonary embolism, the standard of care requires a physician to look for swelling, edema, tenderness and a cord, which would be a clotted vein. In order to determine tenderness, a physician must palpate the legs of the patient. Also, when examining the legs, a physician should perform an examination by stretching the calf to look for tenderness (called Homan's sign). Respondent performed a palpation of the patient's legs, but did not perform an examination for Homan's sign. Respondent's physical examination of Patient R.D. was adequate under the circumstances. The standard of care requires that a physician document pertinent positives and negatives in the medical records. Swelling, edema, tenderness and results of palpation are pertinent positives and negatives. Although Respondent performed an adequate physical examination of Patient R.D., Respondent failed to adequately document the physical examination. In this case, the pertinent positives or negatives should have included the results of the leg examination including, but not limited to, swelling, tenderness, palpation for cords and tenderness, and motion of the foot. Specifically, Respondent did not document whether he palpated the legs of Patient R.D., or whether the examination revealed any swelling or tenderness in the legs. Moreover, Respondent did not document Patient R.D.'s respiratory status. Also, Respondent did not document any history of deep vein thrombosis (DVT), which is a pertinent positive or negative. An EKG reveals the rhythm of the heart. Respondent ordered an EKG and reviewed the computer printout of the EKG results, which revealed non-specific ST changes. Respondent noted the non-specific ST changes in his notes. The EKG also revealed sinus tachycardia and S1-Q3-T3 changes. Tachycardia on an EKG is abnormal, unless the cause is determined. In order to treat tachycardia, a physician must determine the underlying cause, which directs the physician to the appropriate treatment plan. Respondent did not determine the underlying cause of Patient R.D.'s tachycardiac condition. S1-Q3-T3 reveals a strain on the right side of the heart. Respondent did not document the tachycardia or S1-Q3-T3 changes, or determine their underlying cause. Respondent did not recommend admission for Patient R.D. even though Patient R.D. had an abnormal EKG. Respondent also ordered blood work, a chest X-ray, and a pulse oximeter test. Respondent and the Radiologist interpreted the chest X-ray as negative. The patient's pulse oximeter initially revealed a 91 percent rating, a subsequent pulse oximeter revealed a 92 percent. A 91-92 percent pulse oximeter is low in a 41 year-old male, unless the patient has a long standing history of chronic lung disease. Respondent did not order arterial blood gases or a lung scan for Patient R.D. An arterial blood gas test is more accurate than a pulse oximeter. Respondent should have ordered an arterial blood gas only if the pulse oximeter did not improve. After the breathing treatment, Patient R.D.'s pulse oxmeter was 96 percent, which is a significant improvement. A physician must order a lung scan after looking at a constellation of all factors put together, including increased heart rate, low pulse oximeter, increased respiratory rate, abnormal EKG and symptoms of chest pain and shortness of breath. Respondent did not order a lung scan for Patient R.D., even though it could have been ordered. A lung scan is the standard regimen for diagnosing a pulmonary embolism. At approximately 8:00 p.m., Patient R.D. was nauseated and vomited light green bile. Respondent treated Patient R.D. with Proventil, a nebulizer, which is used to treat and relieve bronchospasms. Patient R.D. felt better after the Proventil treatment. Respondent diagnosed Patient R.D. with Hyperactive Airway Disease and Diabetes. Although an emergency room physician does not admit patients, an emergency room physician can recommend to the private physician that a patient be admitted for further evaluation. A private physician relies heavily on the information presented by the emergency room physician. If the private physician disagrees with the emergency room physician recommendation, then the private physician must come to the hospital to personally examine and discharge the patient. Respondent contacted the patient's family physician, advised him of the patient's condition, but did not recommend Patient R.D. be admitted. In the early morning hours of June 14, 1999, Patient R.D. died as a result of a bilateral pulmonary embolism. Respondent's care and treatment of this patient was supported by the testimony of two experts. They indicated that the major risk factors for pulmonary embolism are malignancy, surgery or any trauma to the long bones; none of which were present in this case. The secondary risk factors are pregnancy, cigarette smoking and obesity. Pulmonary embolism is seen most often in orthopaedic surgery patients and, secondarily, in patients with fractured long bones or multiple trauma including the lower extremities. The only sign and symptom that is seen with any regularity in the presentation of pulmonary embolism patients is shortness of breath. Other signs and symptoms occur with such infrequent regularity as to be non-specific and can occur in a plethora of other illnesses. Patient R.D. did not have any of the primary risk factors for pulmonary embolism and any reasonable physician would not think of pulmonary embolism as a primary diagnosis or even as a conceivable diagnosis in a patient with these present symptoms. The experts agree that Patient R.D.'s relatively minor complaints of shortness of breath would have even given Respondent a clinical suspicion of pulmonary embolism. When examined, Patient R.D. was not diaphoretic or apprehensive, had normal color, with skin warm to the touch. The patient simply did not present as one in acute distress secondary to sudden pulmonary embolism as the Petitioner contends. At discharge the patient had improved so significantly that his oxygen saturation rate was near normal and respiration rate near normal. Dr. R. Latanae Parker had reviewed the autopsy and drew several conclusions from it. He interpreted the medical examiner's microscopic examination of the clot to indicate that they were "fresh" and mobilized within minutes of death. Dr. Parker testified that this patient died of a sudden death by a sudden pulmonary embolism that was massive enough to occlude blood flow such as there was not adequate profusion to the coronary system and to the cerebral system. Based on Patient R.D.'s condition before discharge from the emergency department, Dr. Parker testified it was not necessary for Respondent to have pulmonary embolism as one of his differential diagnoses or to have otherwise ruled out that condition. Petitioner has presented no credible testimony which would establish that the deep vein thrombosis (DVT) seen on autopsy was diagnosable in the emergency room by gross exam, palpation or otherwise. The DVT seen on autopsy was silent and, therefore, undiagnosable in the emergency room as Patient R.D. did not have a history of trauma, swelling, inflammation or discoloration of his lower extremities. The autopsy supports Dr. Parker's testimony because the leg circumferences were found to be equal and there was no indication of swelling, discoloration or evidence of trauma. Petitioner's standard of care expert, Dr. Jay Edelberg, provided testimony which actually refutes several allegations in Petitioner's complaint. Specifically, Dr. Edelberg agreed that Respondent's initial assessment of Patient R.D.'s heart was adequate and that Respondent did not ignore Patient R.D.'s cardiac status. Dr. Edelberg also agreed that it was not inappropriate for Respondent to have provided this patient with the Proventil breathing treatment and that a diagnosis of a chronic airway condition was unnecessary in order to treat with such nebulizer. Dr. Edelberg also agreed that Respondent accurately interpreted the EKG and chest X-ray and his findings were properly recorded in the chart. Respondent appropriately diagnosed Patient R.D.'s condition and pursued the appropriate plan of treatment of the patient's condition. Respondent appropriately evaluated the patient's history and complaints which the patient had provided to the triage nursing staff. Respondent performed an appropriate assessment of the patient in the emergency room including obtaining a history of his subjective complaints; his pertinent medical history; and an objective physical evaluation of the patient while in the emergency room. Respondent appropriately ordered the necessary tests to evaluate the patient's condition, based on his examination including an EKG, portable chest X-ray, blood chemical profile, complete blood count, cardiac enzymes and pulse oximeter test. Respondent appropriately interpreted the aforementioned diagnostic studies and tests in establishing his diagnosis and treatment of the patient. Respondent appropriately diagnosed the patient with hyperactive airway disease (i.e., bronchospasm) and properly treated that condition with Proventil while in the emergency room. Respondent appropriately diagnosed the patient with diabetes based on his elevated blood sugars and appropriately coordinated the treatment of that condition with the patient's family practitioner on the following day. Respondent appropriately assessed the patient's risk factors for pulmonary embolism, including his examination of the patient's legs to determine the presence of any signs of deep vein thrombosis. Respondent did consider the patient's report to the triage nurses that he had been diaphoretic earlier in the day. Respondent did consider the patient's complaints of chest pain and appropriately treated him for that condition. Respondent appropriately considered the patient's cardiac status and fully assessed the possibility that the patient's condition was of cardiac origin. Respondent appropriately interpreted and considered the non-specific changes in the patient's EKG in the course of his diagnosis and treatment of Patient R.D. Respondent did not violate Section 458.331(1)(t), Florida Statutes, by not referring the patient to a cardiology or pulmonary specialist. Respondent appropriately discharged the patient from the emergency room, as admission to the hospital was not indicated under the circumstances based on the patient's significant improvement. Respondent's treatment plan for Patient R.D. was appropriate for his presenting complaints. Respondent did not violate Section 458.331(1)(t), Florida Statutes, by gross or repeated malpractice or the failure to practice medicine with that level of care, skill or treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances in the case of Patient R.D. Respondent did not adequately maintain medical records which justified his plan of treatment for Patient R.D. to include the history; examination results; test results; drug prescribed, dispensed and administered; and documentation of his having conferred with Patient R.D.'s reported primary care physician.
Recommendation Based on the foregoing, it is RECOMMENDED that the Board of Medicine enter a final order, in which: Respondent is found not guilty of violating Section 458.331(1)(t), Florida Statutes. Respondent is found guilty of violating Section 458.331(1)(m), Florida Statutes. Respondent be disciplined, as follows: Administrative Fine of $500.00. Reprimand. DONE AND ENTERED this 27th day of December, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 27th day of December, 1999. COPIES FURNISHED: Carol A. Lanfri, Esquire Kristy Johnson, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Art C. Young, Esquire Rissman, Wiesberg, Barrett, Hurt, Donahue & McLain, P.A. 201 East Pine Street, 15th Floor Orlando, Florida 32801 Tanya Williams, Executive Director Board of Medicine Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast, Bin A02 Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issues in this case are whether Respondent violated Subsection 464.018(1)(j), Florida Statutes (2006),1 and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Ms. Penansky has been licensed as an A.R.N.P. in Florida, having been issued license number ARNP1302962 in 1982. From 1993 through August 2006, Ms. Penansky was employed as an A.R.N.P. at the Dover Clinic of Suncoast Community Health Centers, Inc. (Suncoast). She was the primary certified nurse midwife at the facility and saw the obstetric/gynecology patients. During 2004, Carmen Laguerra, who was the office manager at the Dover Clinic, smelled alcohol on Ms. Penansky’s breath at work and observed Ms. Penansky’s hands trembling. A couple of times, Ms. Laguerra observed that Ms. Penansky was having trouble walking at work and would put her hand on the walls to support herself. Ms. Penansky came to work at times with bruises on her arms and face. In the fall of 2004, the coordinator of medical records at the Dover Clinic asked Ms. Laguerra to observe Ms. Penansky in the medical records room. Ms. Laguerra observed Ms. Penansky murmuring to herself. Prior to 2004, Ms. Penansky had demonstrated a quiet demeanor. In 2004, Ms. Laguerra observed a change in Ms. Penansky’s demeanor. Ms. Penansky became more outspoken and opinionated. In 2004, Yolanda Guzman, the supervisor of nurses at the Dover Clinic, noticed the smell of alcohol on Ms. Penansky’s breath and body while at work. Ms. Guzman also noticed that Ms. Penansky’s hands were trembling and that Ms. Penansky’s speech was not clear. Ms. Guzman observed bruises on Ms. Penansky’s arms and face. Ms. Guzman reported her observations to Ms. Laguerra and to Subhakrarao Medidi, M.D., who was the associate medical director at the Dover Clinic. Dr. Medidi smelled alcohol on Ms. Penansky’s breath one time in 2004. On multiple occasions, he observed Ms. Penansky’s hands shaking. After receiving patient complaints, Dr. Medidi confronted Ms. Penansky about the smell of alcohol. Ms. Penansky denied the use of alcohol, claiming that the smell resulted from the use of mouthwash. Dr. Medidi also recalled one time, in particular, when Ms. Penansky came to work with bruises. George Hammond, the chief administrative officer at Suncoast, met with Ms. Penansky to discuss the observations of employees at the Dover Clinic. Ms. Penansky denied the use of alcohol at work. He directed Ms. Penansky to get a blood- alcohol test. She did as directed, and the result of the test was negative. Mr. Hammond directed Ms. Penansky to contact the Intervention Project for Nurses (IPN), which is the impaired practitioner program for the Board of Nursing. IPN is an independent program that monitors the evaluation, care, and treatment of impaired nurses. IPN oversees random drug screens and provides for the exchange of information between treatment providers, evaluators, and the Department. Ms. Penansky contacted IPN and was referred to Martha E. Brown, M.D., for an evaluation. As part of the evaluation, Ms. Penansky underwent a drug test, which was negative for drugs and alcohol, but was considered dilute. When a drug test is dilute, it usually means that the individual tested consumed a significant amount of fluids prior to the test. Ms. Penansky advised Dr. Brown that she averaged drinking almost every day, but had stopped drinking about ten days prior to the evaluation. As a result of abstinence, Ms. Penansky told Dr. Brown that she felt better and was able to stay up later and get up earlier. Ms. Penansky advised Dr. Brown that her brother had a problem with alcohol and had not had a drink in 20 years. In a report dated November 8, 2004, Dr. Brown opined that there was suspicion for Ms. Penansky having a substance abuse problem. She recommended that Ms. Penansky enter into an abuse contract with IPN for two years with a one-year review. Ms. Penansky entered into an IPN contract in December 2004. Her participation in the program included random drug screening, joining a support group, attending Alcoholics Anonymous meetings, and being evaluated by her supervisor. During her participation in the program, she was tested for alcohol 17 times, and each time the test was negative. Ms. Penansky completed the program in one year. While Ms. Penansky was participating in the IPN program, employees at Suncoast observed positive changes in her. Ms. Penansky’s appearance and mood improved, and the tremors in her hands disappeared. On July 31, 2006, Ms. Penansky was involved in an automobile accident. As a result of the accident, she sustained some bruises to her body, which were visible to employees at the Dover Clinic. In August 2006, while Ms. Penansky was at work, Ms. Guzman again smelled alcohol on Ms. Penansky’s breath and noticed Ms. Penansky’s hands were shaky, and her speech was not normal. Ms. Laguerra also smelled alcohol on Ms. Penansky while Ms. Penansky was at work during the same time period. In August 2006, Dr. Medidi noticed that Ms. Penansky’s hands were shaking again. Ms. Penansky denies that she had alcohol on her breath at work in either 2004 or 2006. However, both Ms. Guzman and Ms. Laguerra testified credibly that they smelled alcohol on Ms. Penansky’s breath and that the smell was different from the smell that would come from the use of mouthwash, which has a medicinal smell. Additionally, Ms. Penansky testified that in 2006 she was not using the mouthwash prior to going to work because she felt that in 2004 her fellow employees had mistaken the smell of the mouthwash for the smell of alcohol. Thus, the smell could not have come from mouthwash in 2006 because Ms. Penansky was not using it. Ms. Penansky commenced a change in her eating habits in which she had lost 50 pounds. In 2006, she was still losing weight, but not at a very rapid pace. At the final hearing, there were some allegations that the odor that Ms. Guzman and Ms. Laguerra smelled was a result of a release of ketones due to Ms. Penansky’s diet. However, the smell caused by ketones is a “sweet smell,” which is different from the smell of alcohol. Another allegation at the final hearing was that the smell could be a result of Ms. Penansky’s periodontal disease, but the smell that would result from a periodontal disease would be different from the smell of alcohol. Neither Ms. Guzman nor Ms. Laguerra had any conflict with Ms. Penansky that would cause them to make false allegations against her. In fact, both Ms. Guzman and Ms. Laguerra were highly complementary of Ms. Penansky’s work, aside from the use of alcohol and the hand tremors. The evidence is clear and convincing that in 2004 and in 2006, Ms. Penansky came to work at the Dover Clinic with alcohol on her breath while she was practicing as the primary midwife at the facility. In August 2006, the observations of Ms. Guzman and Ms. Laguerra were made known to the management at Suncoast. Suncoast elected not to require Ms. Penansky to undergo a drug screening to determine whether she had ingested alcohol. On August 3, 2006, Ms. Penansky was terminated from her position with Suncoast for her use of alcohol and directed to contact IPN. After Ms. Penansky was terminated from Suncoast, she went to work for a private physician. Her employment was uneventful, and she continued in his employ until the Department suspended her license by emergency order. Ms. Penansky did not contact IPN, and Suncoast filed a complaint with the Department. An investigation ensued. The Department required Ms. Penansky to be evaluated. In January 2007, Ms. Penansky was again evaluated by Dr. Brown. Ms. Penansky advised Dr. Brown that she had returned to drinking occasionally after she completed her program with IPN, but denied drinking on the job or drinking in large amounts. A drug screen was performed on Ms. Penansky, and the result was negative. Dr. Brown diagnosed Ms. Penansky with alcohol abuse, "rule out alcohol dependency." Credibly, Dr. Brown opined that Ms. Penansky appeared “to be either in denial or minimizing the impact alcohol has had on her life and the problems she has had at work with others smelling alcohol on her breathe [sic] multiple time [sic].” It was Dr. Brown’s opinion that in order for Ms. Penansky to be able to practice with reasonable safety and skill that she should minimally complete an intensive outpatient program and have monitoring through IPN. Ms. Penansky was also evaluated by Raymond A. Johnson, M.D., who came to the conclusion that Ms. Penansky did not have an addiction and alcohol problem. He felt that she was safe to practice nursing without treatment or monitoring by IPN. In his report dated January 22, 2007, he stated that Ms. Penansky used mouthwash multiple times a day because of periodontal disease, and he concluded that the use of the mouthwash was the reason for the smell of alcohol on her breath. His argument loses plausibility based on Ms. Penansky’s testimony at final hearing that she was not using the mouthwash in 2006 prior to going to work so that people would not mistake the smell of mouthwash for the smell of alcohol. Dr. Johnson had a psychological evaluation performed on Ms. Penansky by Nicholas Anthony, Ph.D. In his report, Dr. Anthony stated that Ms. Penansky told him that her brother was no longer allowed to use alcohol because he had been diagnosed with diabetes. Based on Ms. Penansky’s representations, he concluded that she did not have a family history for addiction. Ms. Penansky’s account of her brother’s abstinence differed when she related her family history to Dr. Brown. She did not tell Dr. Brown that her brother had stopped drinking because he was a diabetic. At the final hearing, she did not mention that her brother refrained from drinking because of diabetes. At the final hearing, Ms. Penansky testified: Well, what he [her brother] told me, in fact, what he told the whole family was, at one point he said he just felt like he was drinking too much and decided to stop. That was it. He never said anything about being an alcoholic. He never said he was diagnosed by a physician. He made a personal choice. Dr. Anthony tested Ms. Penansky using the Minnesota Multiphasic Personality Inventory-II (MMPI), The Rorschach, and the Million Clinical Multiaxial Inventory-III (MCMI). The Rorschach, otherwise known as the “ink blot” test, is not commonly used in the field of addiction psychiatry to look at substance abuse diagnoses. In the field of psychiatry, alcohol abuse and alcohol dependency are considered Axis I, or primary, diagnoses. The MMPI and the MCMI are more accurate and effective in diagnosing other Axis I disorders such as psychosis than in diagnosing substance abuse or dependency. This is due to the fact that individuals with substance abuse or dependency problems often attempt to present themselves in the best possible light when answering the test questions. The test results themselves for these individuals are often invalid because the test either misses the substance abuse or dependency diagnosis or identifies the individual’s denial or minimization tendencies. The Adult Clinical Interpretive Report for Ms. Penansky’s MMPI test states: [Ms. Penansky] approached the test items in a somewhat defensive manner. Her overcautious approach to the items suggests that she is concerned with making a good impression and is reluctant to disclose much about her personal adjustment. Interpretations of the clinical and content scale profiles should allow for her possible minimization of problems. The Adult Clinical Interpretive Report for Ms. Penansky’s MCMI test states: Unless this patient is a well-functioning adult who is facing minor life stressors, her responses suggest an effort to present a socially acceptable appearance or a resistance to admitting personal shortcomings. Inclined to view psychological problems as a sign of emotional or moral weakness, the patient may protectively deny any unseemly traits or symptoms. This probably reflects either a broad-based concern about being appraised unfavorably by others or an active suspicion of the arcane motives of psychological inquiry. Her MCMI-II scores have been adjusted to compensate for her defensiveness, but the overall profile may remain partially distorted. An interpretation based on standard interpretive procedures is likely to be reasonably valid but may fail to represent certain features of either the patient’s disorders or her character. The BR scores reported for this individual have been modified to account for the defensiveness suggested by the prominence of Personality Patterns Scale 7 (Compulsive). Dr. Anthony interpreted the results of Ms. Penansky’s test scores as being negative for a diagnosis of alcohol abuse or dependency. Dr. Johnson relied on Dr. Anthony’s interpretation of test results in forming his opinion that Ms. Penansky was negative for a diagnosis of alcohol abuse or dependency. Dr. Brown reviewed the Adult Clinical Interpretive Reports of the MMPI and the MCMI performed on Ms. Penansky by Dr. Anthony and opined that the tests are bordering on invalid and that, given Ms. Penansky’s defensiveness on the test in answering questions, she would not use the test results as a total basis for concluding that Ms. Penansky did not have a problem with alcohol. Given Dr. Johnson’s reliance on the use of mouthwash as the explanation for the smell on alcohol on Ms. Penansky’s breath, the lack of credibility in Ms. Penansky’s account of her family history, and the defensive answers given by Ms. Penansky on her psychological testing, Dr. Johnson’s opinion concerning Ms. Penansky’s alcohol abuse lacks credibility. Current and former employees of Suncoast highly regarded Ms. Penansky’s work. Her evaluations were very good. She worked very hard, and the quality of her work was excellent. However, alcohol abuse can affect a nurse’s judgment and ability to practice with reasonable skill and safety. Alcohol may slow concentration and thinking and thereby cause a nurse to miss a diagnosis or symptom while treating a patient. Alcohol abuse may cause tremors, such as those experienced by Ms. Penansky. Although Ms. Penansky’s alcohol abuse may not have resulted in patient harm, it does not mean that it will not result in harm in the future. It is not necessary to wait for a patient to be harmed to determine whether a nurse can practice with reasonable skill and safety by reason of use of alcohol.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that B.J. Penansky, A.R.N.P., violated Subsection 464.018(1)(j), Florida Statutes; imposing an administrative fine of $250; requiring her to undergo an IPN evaluation; suspending her license until such time as she undergoes an IPN evaluation; requiring compliance with all IPN recommendations, if any; and placing her on probation for three years with direct supervision. DONE AND ENTERED this 25th day of September, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 2007.
The Issue The issue in the case is whether certain forms related to inspection and operation of breath test instruments, and which are incorporated by reference into various rules adopted by the Florida Department of Law Enforcement (Respondent), must be published in their entirety in the Florida Administrative Weekly during the rule adoption process.
Findings Of Fact Each of the Petitioners has been arrested and charged with driving under the influence (DUI) in violation of Section 316.193, Florida Statutes (2005). The DUI cases are currently pending. The Respondent is the state agency charged with adoption of rules related to operation of the alcohol testing program, including certification and operation of breath test instruments. Apparently during the arrest process, the Petitioners were administered breath tests using instruments identified as Intoxilyzer breath machines. The machines were allegedly maintained, and the tests administered, pursuant to requirements set forth on various forms incorporated by reference into rules adopted by the Respondent under the provisions of Subsection 316.1932(1)(a)2., Florida Statutes (2005). Florida Administrative Code Chapter 11D-8 sets forth rules applicable to the "Implied Consent Program," including rules related to breath testing administered to persons suspected of DUI. Florida Administrative Code Rule 11D-8.017 includes a list of forms referenced within Chapter 11D-8, which are "hereby incorporated by reference." Florida Administrative Code Rule 11D-8.017 states that all of the incorporated forms could "be obtained by contacting the Florida Department of Law Enforcement, Alcohol Testing Program, P. O. Box 1489, Tallahassee, Florida 32302." Insofar as is relevant to this proceeding, the incorporated forms are as follows: FDLE/ATP Form 14 – Breath Test Result Affidavit – Revised March 2002. FDLE/ATP Form 16 – Agency Inspection Procedures – Revised March 2004. FDLE/ATP Form 24 – Agency Inspection Report – Revised March 2001 FDLE/ATP Form 34 – Instrument Evaluation Procedures – Revised March 2004. FDLE/ATP Form 35 – Department Inspection Procedures – Revised March 2004. FDLE/ATP Form 14 is titled "Breath Test Result Affidavit" and sets forth a series of 16 steps to be followed by a breath test operator in administering a breath test. FDLE/ATP Form 16 is titled "Agency Inspection Procedures" and sets forth a series of 12 steps to be followed in cleaning and testing a breath machine. FDLE/ATP Form 24 is titled "Agency Inspection Report" and is a form to be used by a permitted inspector to report machine inspection results to the Department of Highway Safety and Motor Vehicles. FDLE/ATP Form 34 is titled "Instrument Evaluation Procedures" and sets forth the factors to be considered in evaluating breath testing equipment for approval for use in Florida. FDLE/ATP Form 35 is titled "Department Inspection Procedures" and sets forth a series of 11 steps to be followed in cleaning and testing a breath machine. The Respondent has not published the full text of the cited forms in the Florida Administrative Weekly at any time during the adoption, or subsequent amendment and re-adoption, of Florida Administrative Code Chapter 11D-8. In the Petitioners' DUI cases, the State of Florida is seeking to present evidence of compliance with the rules and forms adopted by the Respondent related to maintenance of the machines and administration of the tests. The Petitioners assert that the rules and forms were improperly adopted and, therefore, are invalid. The Petitioners are substantially affected by the rules and forms at issue in this proceeding. There is no evidence that the Respondent was informed by the Department of State or the Administrative Procedures Committee during the rule adoption process that the process utilized in adopting the referenced rule was improper. There is no evidence that the rules have not been readopted as necessary to accommodate revisions to the forms.
The Issue The issue in this case is whether Petitioner should be issued an air construction permit authorizing its Crystal River steam generating plant Units 1 and 2 to co-fire a five to seven percent blend of petroleum coke with coal.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioner, Florida Power Corporation (FPC), is an investor-owned public utility engaged in the sale of electricity to approximately 1.2 million customers. Among others, it operates the Crystal River Power Plant consisting of five electric-generating units in Citrus County, Florida. Units 1, 2, 4, and 5 are coal-fired, while Unit 3 is a nuclear unit. Respondent, Department of Environmental Regulation (DEP), is a state agency charged with the statutory responsibility of regulating the construction and operation of business enterprises in a manner to prevent air pollution in excess of specified limits. Among other things, DEP issues air construction permits for a limited period of time to undertake and evaluate initial operations of a business enterprise; long- term approval subsequently is available under an air operation permit. As a part of this process, and pursuant to federal law, DEP engages in a Prevention of Significant Deterioration (PSD) review to determine if non-exempt alterations to major facilities result in net emission increases greater than specified amounts. Under certain conditions, however, the use of alternative fuels or raw materials are exempted from PSD review. Intervenor, Legal Environmental Assistance Foundation, Inc. (LEAF), is a non-profit Alabama corporation licensed to do business in the State of Florida. It is a public interest advocacy organization whose corporate purposes include securing environmental and health benefits from clean air and water. Intervenor, Sierra Club, Inc. (Sierra Club), is a public interest advocacy organization incorporated in California and doing business in Florida. Its corporate purposes include securing the environmental and health benefits of clean air and water. On December 26, 1995, FPC filed an application with DEP for an air construction permit authorizing it to burn a blend of petroleum coke and coal in its existing coal-fired Units 1 and 2 at the Crystal River Power Plant in Citrus County, Florida. In the application, FPC did not address PSD review since it believed it qualified for an exemption from PSD permitting under Rule 62- 212.400(2)(c)4., Florida Administrative Code. That rule exempts from PSD review the [u]se of an alternative fuel or raw material which the facility was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975. After reviewing the application, DEP issued an Intent to Deny on June 25, 1996. In that document, DEP stated that [a]ccording to information in Department files, both Units 1 and 2 operated on liquid fuel prior to January 6, 1975. Very substantial modifications of the boilers and pollution control equipment were implemented thereafter by [FPC] to convert the units to coal-firing mode. Therefore the project does not qualify for the exemption from PSD review claimed by the company. Contending that it was entitled to an exemption from PSD review and therefore a permit, FPC filed a Petition for Administrative Hearing on October 4, 1996. In its Petition, FPC generally alleged that petroleum coke is a product with characteristics very similar to coal; Units 1 and 2 were capable of accommodating coal and petroleum coke as of January 6, 1975; and contrary to the statements in the Intent to Deny, any boiler modifications and pollution control improvements to those units were minor and not substantial. The Permitting Program The PSD program is based on similar PSD requirements found in the federal Clean Air Act of 1970, as amended (the Act). The permitting program is a federally required element of DEP's State Implementation Plan (SIP) under Section 110 of the Act. DEP has fulfilled the requirement of administering the federal PSD program by obtaining approval from the Environmental Protection Agency (EPA) of state PSD regulations that meet the requirements of federal law. The requirements of the SIP are found in Chapters 62-204, 62-210, 62-212, 62-296, and 62-297, Florida Administrative Code. Chapter 62-212 contains the preconstruction review requirements for proposed new facilities and modifications to existing facilities. Rule 62-212.400, Florida Administrative Code, establishes the general preconstruction review requirements and specific requirements for emission units subject to PSD review. The provisions of the rule generally apply to the construction or modification of a major stationary source located in an area in which the state ambient air quality standards are being met. Paragraph (2)(c) of the rule identifies certain exemptions from those requirements. More specifically, subparagraph (2)(c)4. provides that a modification that occurs for the following reason shall not be subject to the requirements of the rule: 4. Use of an alternative fuel or raw material which the facility was capable of accommodating before January 6, 1975, unless such change would be prohibited under any federally enforceable permit condition which was established after January 6, 1975. The rule essentially tracks verbatim the EPA regulation found at 40 CFR 52.21(b)(2)(iii)(e)1. Therefore, in order to qualify for an exemption from PSD review, FPC must use "an alternative fuel . . . which [Units and 2 were] capable of accommodating before January 6, 1975." In addition, FPC must show that "such change would [not] be prohibited under any federally enforceable permit condition which was established after January 6, 1975." Contrary to assertions by Respondent and Intervenors, in making this showing, there is no implied or explicit requirement in the rule that FPC demonstrate that it had a subjective intent to utilize petroleum coke prior to January 6, 1975. The Application and DEP's Response In its application, FPC proposes to co-fire a five percent (plus or minus two percent) blend of petroleum coke with coal, by weight. It does not propose to make any physical changes to Units 1 and 2 to utilize petroleum coke. Also, it does not request an increase in any permitted air emission rates for the units because it can meet its current limits while burning the proposed blend rate of petroleum coke with coal. The application included extensive fuel analysis and air emissions data obtained from a DEP-authorized petroleum coke trial burn conducted from March 8 until April 4, 1995. Although it is not proposing to make physical changes to the plant, FPC applied for the air construction permit in deference to DEP's interpretation that such a permit is required when a permittee utilizes an alternative fuel. After completing his initial review, the DEP supervisor of the New Source Review program acknowledged in a memorandum to his supervisor that FPC was "entitled to a permit" but suggested that FPC be asked to "change their minds." Before the permit was issued, however, DEP changed its mind and issued an Intent to Deny on the ground that prior to January 6, 1975, Units 1 and 2 were not capable of accommodating coal or a blend of petroleum coke with coal. The Units Unit 1 has a generating capacity of 400 MW and commenced operation as a coal-fired plant in October 1966. It fired coal until March 1970, fuel oil until October 1978, and then again fired coal from June 1979 to the present. Unit 2 has a generating capacity of 500 MW and commenced operations as a coal-fired plant in November 1969. It fired coal until September 1971, fired fuel oil from December 1971 until October 1976, and then again fired coal from December 1976 to the present. Original equipment installed during the initial construction of Units 1 and 2 included the following: the barge unloader, which removes coal from barges that deliver coal from New Orleans; the stacker/reclaimer, which stacks the coal into piles and then reclaims the coal by directing it from the coal piles to conveyors that deliver it to the units; the crusher house, which has two crushers that crush the coal on the way to units down to nuggets no larger than three-quarters of an inch in diameter; the silos, which store the crushed coal; the feeders, located below the silos, which regulate the flow of coal from the silos to the pulverizers; the pulverizers, which grind the coal in preparation for combustion and then direct the pulverized coal to the burners, which are located on the corners of each unit's boiler; and the boilers, where the fuel is combusted, imparting heat to water contained in the waterwalls and thereby producing steam for electrical generation. The foregoing equipment was reflected in the plant's construction specifications and remains in operation, on site, at the plant. Components and parts of this equipment have been maintained, replaced, and repaired periodically. The original operations manual for the barge unloader, stacker/reclaimer, crushers, and conveyor systems are still kept and utilized on site. The primary fuel utilized in Units 1 and 2 is coal, although these units also co-fire from one to five percent number fuel oil and used oil. The combustion of fuel in Units 1 and 2 results in air emissions. As a result of changing regulatory requirements, there have been substantial improvements to the units' air pollution control capabilities since original construction. Existing Air Permits Unit 1 currently operates under Air Operation Permit Number A009-169341. Unit 2 operates under Air Operation Permit Number A-009-191820. Both permits were amended by DEP on October 8, 1996. Although each air operation permit contains an expiration date that has been surpassed, the permits remain in effect under DEP's regulations during the pendency of the agency's review of FPC's applications for air operation permits under the new Title V program found in Chapter 62-213, Florida Administrative Code. The air operation permits governing Units 1 and 2 contain mass emission rate limitations of 0.1 pounds/million (mm) British thermal units (Btu) or particulate matter (PM), and 2.1 pounds/mmBtu for sulfur dioxide. These mass emission rate limitations restrict the amount of each pollutant (measured in pounds) that is to be released into the atmosphere per million Btu of heat energy by burning fuel. The PM limitation is applicable to Units 1 and 2 under state regulations originally promulgated in 1972. The sulfur dioxide limitation was established in 1978 as a result of a PSD air quality analysis performed in conjunction with the permitting of Units 4 and 5. Prior to 1978, sulfur dioxide limits promulgated early in 1975 imposed a limit of 6.17 pounds/mmBtu on coal-fired operations at Units 1 and 2. Because Units 1 and 2 were subjected to a PSD air quality impact analysis along with Units 4 and 5, the units' sulfur dioxide emission limits were reduced from 6.17 to 2.1 pounds/mmBtu. The 2.1 pounds/mmBtu sulfur dioxide emission limitation applicable to Units 1 and 2 was set with the intention of assuring no adverse air quality impacts. The sulfur dioxide impacts associated with Units 1, 2, 4, and 5, after collectively being subjected to PSD air quality review, were much lower than the sulfur dioxide impacts previously associated with only Units 1 and 2. Is Petroleum Coke an Alternative Fuel? Petroleum coke is a by-product of the oil refining process and is produced by many major oil companies. The oil refineries refine the light ends and liquid products of oil to produce gasoline and kerosene, resulting in a solid material that resembles and has the fuel characteristics of coal. Both historically and presently, it has been common- place for electric utilities to rely on petroleum coke as fuel. For example, during the period 1969 through 1974, regular shipments of petroleum coke were sent to various electric utility companies throughout the United States to be co-fired with coal. In addition, DEP has issued permits for Tampa Electric Company to co-fire petroleum coke with coal. In 1987 and again in 1990, the EPA promulgated air- emission regulations which specifically define "coal" as including "petroleum coke." DEP has incorporated these regulations by reference at Rule 62-204.800(7)(b) 3. and 4., Florida Administrative Code. Given these considerations, it is found that petroleum coke constitutes an alternative fuel within the meaning of Rule 62-212.400(4)(c)4., Florida Administrative Code. Were the Units Capable of Accommodating the Fuel? Petroleum coke and coal are operationally equivalent. Petroleum coke can be handled, stored, and burned with the existing coal handling equipment at Units 1 and 2. The barge unloader, stacker/reclaimer, storage areas, conveyors, silos, crusher house, pulverizers, and burners, all installed prior to 1975, can handle petroleum coke. The equipment comprising Units 1 and 2 does not require any modification in order to burn a blend of petroleum coke with coal. Also, there will be no net impact on steam generator design or operation, and there will be no decline in performance or adverse impacts to the boilers. FPC could have co-fired petroleum coke with coal historically without making physical alterations or derating the units. Similarly, petroleum coke can be fired in Units 1 and 2 now without alterations or derating. These findings are further supported by Petitioner's Exhibits 35 and 36, which are reference books published in 1948 and 1967 by the manufacturer of the equipment installed at Units 1 and 2. They confirm that prior to 1975, petroleum coke was suitable for the manufacturer's boilers and pulverizers. Unrebutted testimony demonstrated that Units 1 and 2 could have co-fired petroleum coke with oil during the oil-firing period. Even when Units 1 and 2 fired oil instead of coal for a period of time in the 1970s, the coal-handling equipment remained in existence on-site and available for use, and both units remained readily convertible to their original, coal-firing modes. Because the plant remained capable of accommodating coal, it also remained capable of accommodating petroleum coke. In light of the foregoing, it is found that co-firing petroleum coke with coal at Units 1 and 2 could have been accomplished prior to January 6, 1975. Are there Post-January 6, 1975, Prohibitions? There is no evidence to support a finding that a federally enforceable permit condition was establshed after January 6, 1975, that prohibits co-firing petroleum coke with coal. I. Miscellaneous By letters dated February 14 and June 2, 1997, the EPA Region IV office replied to inquiries from DEP regarding the instant application. The conclusions reached in those letters, however, were based on a misapprehension of the facts in this case. Therefore, the undersigned has not credited these letters. To prove up its standing, LEAF introduced into evidence a copy of its articles of incorporation and a brochure describing the organization. In addition, it asserted that the air quality for its members would be "at risk" if Units 1 and 2 did not meet PSD standards and air emissions were "increased." Intervenor Sierra Club proffered that a substantial number of members "live, work, or recreate in the vicinity of the Crystal River Units 1 and 2, and in the area subject to the air emissions by those units," and that those members "would be substantially affected by the proposed exemption."
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting the application of Florida Power Corporation and issuing the requested air construction permit. DONE AND ORDERED this 23rd day of September, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1560 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1997. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 James S. Alves, Esquire Post Office Box 6526 Tallahassee, Florida 32314-6526 W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Gail Kamaras, Esquire 1115 North Gadsden Street Tallahassee, Florida 32303-6327 Jaime Austrich, Esquire Post Office Box 1029 Lake City, Florida 32056-1029 F. Perry Odom, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact The Cutler plant of Respondent, Florida Power & Light Company (FPL), is located in Dade County, Florida, at 14925 Southwest 67th Avenue, approximately 15 miles south of Central Miami on an 80-acre site adjacent to Biscayne Bay. The plant has provided electrical service since 1949. At one time there were six generating units at the plant, but units 1, 2, 3 and 4 have been retired and are no longer in service. Cutler Units 5 and 6 were placed in service in 1954 and 1955, respectively. Both units were placed on extended cold standby in 1976, and were returned to service in 1982. These units are normally used only when other FPL generating units are out of operation or if extremely hot or cold weather creates an unusual electrical demand by FPL's customers. Cutler Unit 5 is a 75 megawatt steam generating unit. Cutler Unit 6 is a 161.5 megawatt steam generating unit. Each unit operates with a combustion engineering design boiler which is capable of burning No. 6 residual fuel, No. 2 distillate fuel, and natural gas. These fuels may be burned independently or in combination with each other. Combustion products from the boilers are exhausted through two separate stacks, each 150 feet in height. When in operation these units emit the following regulated air pollutants: particulate matter, sulfur dioxide, nitrogen oxides, and carbon monoxide. Cutler Units 5 and 6 are "existing fossil fuel steam generators" subject to the emission limiting standards specified in Rule 17-2.600(5)(b), Florida Administrative Code (F.A.C.), the ambient air quality standards specified in Rule 17-2.300(3), F.A.C., and the ambient air quality standards soecified in Section 24-17(1) and (2)(b), Dade County Code. Rule 17-2.600(5)(b), F.A.C., limits: (1) visible emissions to 20 percent opacity, (2) emission of particulate matter to 0.1 pounds per million Btu heat input, maximum 2-hour average, and (3) sulfur dioxide emissions to 1.1 pounds per million Btu heat input. Rule 17-2.300(3), F.A.C., establishes the maximum permitted levels of sulfur dioxide, particulate matter, carbon monoxide and nitrogen dioxide, as follows: sulfur Dioxide. Maximum three hour concentration not to be exceeded more than once per year-- 1300 micrograms per cubic meter (0.5 ppm). Maximum 24-hour concentration not to be exceeded more than once per year--260 micrograms per cubic meter (0.1 ppm) Annual arithmetic mean--60 micro- grams per cubic meter (0.02 ppm). Particulate Matter. Maximum 24-hour concentration not to he exceeded more than once per year-- 150 micrograms per cubic meter. Annual geometric mean--60 micrograms per cubic meter. Carbon Monoxide. Maximum one hour concentration not to be exceeded more than once per year--40 milligrams her cubic meter (35 ppm). Maximum eight hour concentration not to be exceeded more than once per year--10 milligrams per cubic meter (9 ppm). * * * Nitrogen Dioxide. Annual arithmetic mean--100 micrograms per cubic meter (0.05 ppm). Section 24-17(1) and (2)(b), Dade County Code, establishes the following ambient air quality standards and emission standards for maximum sulfur dioxide concentrations: Ambient air quality standards. . . . Annual arithmetic mean-8.6 micro- grams per cubic meter (0.003 parts per million); Twenty-four-hour concentration-- 28.6 micrograms per cubic meter (0.010 parts per million); Four-hour concentration-57.2 micro- grams per cubic meter (0.020 parts per million); One-hour concentration-286 micrograms per cubic meter (0.100 parts per million). Emission standards... Existing sources on the effective date of this section [Ordinance Nos. 76-52]: 1.1 pounds per million Btu heat input, maximum two-hour average, when liquid fuel is burned; On June 23, 1983, FPL submitted its application for renewal of the operating permits for Cutler Units 5 and 6 to DER. FPL's initial application contemplated burning No. 6 fuel oil containing up to one percent sulfur content to provide up to 25 percent of the heat input to each unit, with natural gas constituting the remaining 75 percent. During 1982 and 1984 several tests were performed at Units 5 and 6 to determine the level of particulate matter and visible emissions. Particulate and visual emissions testing was conducted at Unit 5 on June 30, 1982, and at Unit 6 on July 9, 1982, with the units burning a mixture of 75 percent natural gas and 25 percent fuel oil containing one percent sulfur. The results of these tests indicate the average particulate emission rate from each unit to be 0.04 pounds per million Btu head input, as compared to the applicable emission limit of 0.1 pound per million Btu input established by Rule 17-2.600(5)(b), F.A.C. Visual emissions were established as 6 percent for Unit 5 and one percent for Unit 6, as compared to the capacity limit of 20 percent established by Rule 17- 2.600(5)(b), F.A.C. Additional visual emission tests were conducted at Units 5 and 6 on August 10, 1983. The results of these tests indicted visible emissions to be less than 5 percent. While FPL's permit application was pending, residents of the neighborhood in the vicinity of the plant expressed concern to DER regarding "plume down wash." "Down wash" is a term used to describe an aerodynamic effect that, at higher wind speeds, causes reduction in pressure on the leeward side of the building or structure resulting in turbulent air flow around and within the cavity. If the exhaust plume from the stack of an air pollution source is near enough to the low pressure cavity, it is drawn into the turbulence and follows the air flow down to the leeward side of the building, thereby increasing the impact of emissions at ground level in the surrounding area. Air quality dispersion modeling is a method of predicting the impact of emissions from an air pollution source upon ground level air quality in the surrounding area. Inputs to the model include local meteorological data (wind speed, direction and mixing depth, and atmospheric stability and pressure) and source-specific information regarding stack height and diameter, exhaust gas temperature and velocity, and pollutant emission rate. The model provides a prediction of the ground level concentration of an air pollutant that will result from an emission source at any geographic point. The maximum point of impact from a particular source, under the "worst case" meteorological conditions, can therefore be identified and the resulting pollutant concentration predicted. Air quality di spersion modeling is a well-accepted technique in the field of air quality control, and specific models have been developed and approved by the United States Environmental Protection Agency. A screening analysis performed by DER meteorologist, Thomas Rogers, indicated that the configuration of the Cutler Units 5 and 6 and their exhaust stacks could create plume down wash. In order to address the potential effects of down wash from Units 5 and 6, FPL retained Environmental Science and Engineering, Inc. (ESE) to perform an air quality dispersion study. The initial ESE study, submitted to DER on February 14, 1984, evaluated the effects of emissions of sulfur dioxide from Units 5 and 6 on ground level air quality in the surrounding area, under both down wash and non- down wash conditions. As was contemplated in FPL's permit applications, this modeling study assumed that up to 25 percent of the heat input to each unit would be provided by No. 6 residental fuel oil containing one percent sulfur, with 100 percent fuel oil being burned during start-up until the unit achieved 25 percent load. The ESE study concluded that, under the worst-case emission and down wash conditions, the sulfur dioxide concentration at the point of maximum impact in the area surrounding the Cutler site would be a: (1) maximum three-hour concentration of 410 micrograms per cubic meter, (2) maximum 24-hour concentration of 114 micrograms per cubic meter, and (3) annual arithmetic mean of 9 micrograms per cubic meter. ESE performed an additional study to evaluate the maximum inpact of emissions of three other pollutants (nitrogen dioxide, carbon monoxide, and total suspended particulate) from Units 5 and 6, based on the same fuel assumptions. The predicted ambient air concentrations of these pollutants at the point of maximum impact, and under worst-case down wash and emission conditions, were: Nitrogen dioxide - annual arithmetic mean of 8.7 micrograms per cubic meter. Carbon monoxide - Maximum one-hour concentration of annual 23.3 micrograms per cubic meter. Maximum eight-hour concentration of annual 13.9 micrograms per cubic meter. Total suspended particulate - Maximum 24-hour concentration of annual 10.9 micrograms per cubic meter. Annual geometric mean - 0.8 micrograms per cubic meter. ESE subsequently performed a third analysis to determine the sulfur dioxide emission rate from Cutler Units 5 and 6 that would demonstrate compliance with the ambient air quality standards for sulfur dioxide established in the Metropolitan Dade County Pollution Control Ordinance. ESE's analysis concluded that under worst-case building down wash conditions, the maximum 1- and 4-hour sulfur dioxide concentrations from Units 5 and 6 were predicted to be 662 and 248 micrograms per cubic meter. These maximum concentrations were higher than the 1- and 4-hour standards established by the Dade County Code. Based on these results, ESE concluded that compliance with the Dade County ambient air quality standards would require that the maximum sulfur content of fuel oil burned during start-up would have to be limited to 0.23 percent. Additional particulate and visible emissions tests were conducted at Unit 5 on March 1, 1984, and at Unit 6 on February 29, 1984, with the units burning 100 percent natural gas. Unit 5 demonstrated an average particulate emission of 0.02 pounds per million Btu and Unit 6, of 0.01 pounds per million Btu, with neither unit exhibiting any visual emissions. During all compliance testings at Units 5 and 6, the units were operating at a capacity of at least 90 percent maximum load, in accordance with the testing requirements and policy of DER. Based on the results of ESE's third modeling study, FPL amended its permit applications to include a restriction requiring Units 5 and 6 to burn 100 percent natural gas except during start-up, and to limit the sulfur content of the oil burned during start-up to a maximum 0.2 percent. The air quality dispersion modeling performed by ESE utilized the only model currently approved by the United States Environmental Protection Agency and DER that is capable of taking aerodynamic down wash into consideration. DER's expert in air dispersion modeling found no fault with the conclusions reached in the ESE modeling studies. Possible differences between the actual Cutler plant building dimensions and configurations and those assumed in the modeling studies would not significantly change any of the conclusions reached. The draft permits for Units 5 and 6 would require the burning of 100 percent natural gas, except during periods of unit start-up when fuel oil may contribute up to 170 million Btu per hour of heat input to Unit 5 and 290 million Btu per hour heat input to Unit 6 (approximately 22 percent of each unit's maximum heat input). In addition, the draft permits limit total sulfur dioxide emissions from Units 5 and 6 to 41.3 pounds per hour and 70.1 pounds per hour, respectively. These sulfur dioxide emission limitations will insure compliance with the Dade County ambient air quality standards for sulfur dioxide, based upon the results of the ESE modeling studies. In order to meet the sulfur dioxide emission limits in the draft permits, the maximum sulfur content of fuel oil burned for Units 5 and 6 would be restricted to 0.23 percent. Operation of Cutler Units 5 and 6 in compliance with the conditions of the draft permits will provide reasonable assurance that the units will not cause any violation of the Dade County ambient air quality standards for sulfur dioxide, or the Florida ambient air quality standards. Use of 100 percent natural gas, except during start-up when residual fuel oil with maximum sulfur content of 0.23 percent is burned, will insure compliance with the emission limiting standards for particulate matter, opacity and sulfur dioxide established for existing fossil fuel steam generators by Rule 17-2.600(5)(b), F.A.C. The use of high quality, "clean", fuel as required by the draft permits, constitutes the most effective air pollution control strategy for Units 5 and 6. The primary concerns expressed by the Petitioners regarding Cutler Units 5 and 6 relate to noise, odors, down wash, and fumes they attribute to operation of the Cutler plant. Although the testimony and evidence on these points related to past experience of Petitioners, they were unable to specify what operating conditions and fuels resulted in the incidences of concern. On at least three of the occasions Jean Guthrie recorded objectionable odors or other effects felt to be attributable to the Cutler plant, neither Unit 5 nor Unit 6 was in operation. The record of complaints registered with the Dade County Consumer Advocate, from the time Cutler Units 5 and 6 were reactivated until two weeks before the final hearing, shows that there have been no complaints regarding the plant since June 3, 1983. No evidence was presented demonstrating that any past problems that may have been caused by operation of the Cutler plant will continue under the stringent restrictions on emissions, fuel type, and fuel quality imposed by the draft permit conditions. No violations of ambient air quality standards or emission limitations have been discovered and documented by DER with respect to Cutler Units 5 and 6. Neither Petitioners nor the members of the public that testified produced any evidence that Cutler Units 5 and 6 will be unable to comply with the conditions of the draft permits issued by DER. Nor was any evidence produced demonstrating that operation of Cutler Units 5 and 6 in compliance with the draft permits will result in emissions in excess of the emission limits prescribed under DER's rules, or will cause or contribute to any violations of the Florida or Dade County ambient air quality or emissions standards. Petitioner, Walter Guthrie, presently resides in Phoenix, Arizona, where he is employed in a permanent position with American West Airlines, a carrier servicing the southwestern and midwestern United States. He has been employed by American West Airlines, and has resided in Phoenix, for approximately 15 months, is registered to vote in the State of Arizona, and has an Arizona driver's license. Walter Guthrie holds no ownership interest in the home located at 6960 Southwest 144 Street, Miami, Florida, which home is owned by his parents, William L. and Jean Guthrie. Walter Guthrie has only visited his parents' home approximately three weeks in the year immediately preceding the final hearing in this case, and while some of his personal property is kept at that location, there is no certainty that Walter Guthrie will at any time in the future take up residence at his parents' home.
The Issue The issue to be resolved in this proceeding concerns whether certification should be issued to the City of Tallahassee for approval to construct and operate a two hundred fifty (250) megawatt combined-cycle generating unit to be located at the city's Samuel O. Purdom Generating Station in St. Marks, Florida, in accordance with the pertinent provisions of Sections 403.501 through 403.518, Florida Statutes.
Findings Of Fact The City of Tallahassee is a unit of local government in Leon County which owns and operates the Samuel O. Purdom Power Station located on approximately sixty-three (63) acres lying within the City of St. Marks and Wakulla County, Florida. The proposed Unit 8 will be constructed on approximately four (4) acres of that sixty-three (63) acre existing power station site. The Department of Environmental Protection ("DEP, Department") is an agency of the State of Florida charged, in pertinent part, with jurisdiction over and regulation of the certification of power plant siting and operation, in accordance with the various provisions of Chapter 403, Florida Statutes, and related rules cited and discussed elsewhere herein. Notice of the certification hearing was accorded to all parties entitled thereto as well as to the general public. Notice of the proposed Prevention of Significant Deterioration ("PSD") air construction permit for the Unit 8 project and the draft Title V air operation permit amendment for the Purdom Power Station, including the Unit 8 project, was provided to all persons entitled thereto as well as the general public. The Tallahassee Purdom Power Station is located in the City of St. Marks, Wakulla County, Florida. Unit 8 of that facility will be constructed on approximately four (4) acres contained within the present sixty-three (63) acre site. The site is approximately seven (7) miles north of the Gulf of Mexico on upland immediately adjacent to the St. Marks River, approximately one and one half miles North of the confluence of the St. Marks and Wakulla rivers, and twenty (20) miles southeast of the City of Tallahassee. The station is bounded on the north by the St. Marks Petroleum Storage Facility and Asphalt Refinery. Murphy Oil Company also operates a petroleum storage and distribution facility slightly further North. The power station site and property is bounded on the east by the St. Marks River. It is bounded on the west by State Road 363. Immediately across the St. Marks River from the site is the Aucilla Wildlife Management area, managed by the Florida Game and Fresh Water Fish Commission. There are some business establishments and residences to the west of the power station, generally along State Road 363, and the property is bounded on the South by property of McKenzie Tank Lines, a petroleum storage and distribution operation. The City of St. Marks residential and business areas are primarily located to the south of the power station. The existing power station began operation in 1952. It currently consists of three (3) steam generation units known as Units 5, 6, and 7, and two (2) combustion turbines; an auxiliary boiler; a barge oil unloading facility; a 115KV switch yard; a 69KV switch yard; two (2) wastewater storage ponds; an industrial wastewater treatment facility; an elevated water tank; two (2) surface water intake structures, including one surface water intake canal; two (2) surface water discharge canals; a diesel fuel storage tank; three (3) number 6 fuel oil storage tanks; a de-mineralizer; as well as maintenance shops and a warehouse. The on-site facilities of the Purdom Unit 8 project consist of a new combined-cycle electric generating unit, which includes a gas turbine generator, a heat recovery steam generator, a steam turbine generator, a condenser, an exhaust stack, a cooling tower, a zero discharge wastewater treatment facility, and associated facilities. Additionally, as part of the project, steam-electric generating Units 5 and 6 presently operating at the Purdom Station will be permanently de-activated. The existing wastewater storage pond and industrial wastewater treatment facility will be removed from service. One surface water intake structure will be re-used for Unit 8, and one surface water discharge canal will be removed from service. The elevated water tank will be made available for use by the City of St. Marks and one of the three (3) existing fuel oil storage tanks will be converted to a wastewater storage tank. SITE DETERMINATION The City of Tallahassee has attempted to use existing facilities before having to build on a new site. It began the site selection process by considering both the Purdom Station at St. Marks and the Arvah B. Hopkins Generating Station West of Tallahassee in Leon County. The selection process included a review of technical and environmental assessments of both sites in consideration of Tallahassee's electrical system capacity expansion needs for the future. Based on this analysis the Purdom site was selected because no new transmission capability was needed, compared to the Hopkins Station where additional transmission lines and transmission line corridors would have to be installed and acquired. No additional personnel will be needed at the Purdom Station and the city has the ability to make certain environmental improvements at the Purdom Station by combining the addition of the new Unit 8 with the early retirement of existing Units 5 and 6. PSC NEED DETERMINATION On June 9, 1997, the Public Service Commission issued Order No. PSC-97-0659-FOF-EM, determining the need for an additional two hundred fifty (250) megawatts (MW) of generating capacity at the Purdom Generating Station. CAPITAL COSTS AND SCHEDULING The city will invest approximately $111,000,000.00 in Unit 8 and its related facilities. That number will include the initial capital cost of a zero discharge wastewater system at approximately $6,000,000.00, with annual operating costs of approximately $1,000,000.00, as well as the capital cost of the dry low NOX (Nitrous Oxide) burner control technology system at a cost of approximately $1,000,000.00. No state funds will be used to defray these capital costs. Contractual release of Unit 8 for engineering purposes is expected to occur in the spring of 1998,and procurement and construction to commence in July 1998. Mobilization and physical construction of the Unit are scheduled to begin January 1999, and continue through the late spring of the year 2000 with operation commencing in May of 2000. REGENERATING UNITS A combined-cycle electric generating Unit, like Unit 8, is a highly efficient system that consists of two (2) sequential electrical generating stages. In the first stage the natural gas or diesel fuel is burned to operate the combustion turbine generator. A combustion turbine connected to a generator will produce electricity in its own right and the combustion turbine of Unit 8 would produce approximately 160MW of electricity. When the hot exhaust gas exits from its function of turning the combustion turbine, it is then routed to the heat recovery steam generator (HRSG) to produce steam by heating boiler tubes so as to operate the steam turbine generator. The steam turbine generator will produce approximately 90MW to 95MW of electricity. The nominal 250MW electrical generating capacity represented by proposed Unit 8 will equal approximately one half of Tallahassee's presently owned generating capacity of 490MW, and approximately one half of Tallahassee's prior all-time peak demand of 533MW. Unit 8 will be approximately 30% more efficient than the Arvah Hopkins Unit 2, Tallahassee's newest Unit. It will be approximately 40% more efficient than Tallahassee's existing generating capacity on an average basis, with efficiency measured as fuel used per MW or Unit of output. The existing steam generating Units 5 and 6 are nominal 22MW units each and are fired by natural gas or fuel oil. Existing steam generating Unit 7 is a nominal 44MW Unit and is fired with natural gas or number 6 fuel oil. The existing combustion turbines are nominal 12.5MW units and are fired with natural gas or diesel oil. The existing auxiliary is fired with natural gas and is used to provide supplemental steam at the Purdom Station. With the addition of Purdom Unit 8 and the retirement of Units 5 and 6, the generating capacity at the Purdom Station will almost triple from 120MW to approximately 320MW. All facilities at the current Purdom Station are in compliance with existing and effective permits. TRANSMISSION FACILITIES There are three 115KV transmission lines connecting the Purdom Station with the city's electrical distribution network in Tallahassee. The addition of Unit 8 will not require the construction of any new transmission lines. However, two of the three existing transmission lines will be re-conductored (new wires) as part of the Unit 8 project. A re-conductoring will not require the addition or expansion of existing rights-of-way, which are typically 100 feet wide, nor will it require new structures. Lines 1-A and 2-A will have their existing wire replaced with a different type and size wire. The voltage will remain at 115KV, however. Both lines 1-A and 2-A run from the Purdom Station northward to Tallahassee through lightly populated areas. The existing shield wires, which provide lightening protection on the transmission lines, will also be replaced in conjunction with the re-conductoring of those lines. The re-conductoring may include fiber optic cable which can be used for communication between the Purdom Station and the City of Tallahassee in lieu of the existing microwave tower that will be removed to accommodate the construction of Unit 8. The city plans to re-conductor one of the existing transmission lines in the spring of 1998 and the second one in the fall of 1998, so as to reduce on-site construction conflict and provide for communication between the Tallahassee Control Center and the Purdom Station. Crews and vehicles will access the transmission lines rights-of-way from public roads and travel down the rights-of-way to the various work locations. No clearing of mature trees will be required and no wetlands will be impacted by the re-conductoring operation. Both the electric and magnetic fills for lines 1A and 2A are currently and subsequent to the re-conduction will continue to be well within compliance with all applicable standards of Chapter 62-814, Florida Administrative Code. There has been shown no conclusive scientific proof of adverse health effects from exposure to electromagnetic fills from power lines. There has been no demonstration by competent evidence that the transmission lines, as they presently exist, nor as they will exist after the re-conductoring work will cause any hazardous magnetic fill exposure nor increase magnetic fill exposure. The two (2) transmission lines to be re-conducted are depicted on the future line-use maps of both Wakulla County and Tallahassee and Leon Counties comprehensive plans. They are not otherwise regulated by those plans. The Leon County land development regulations at Section 10-172(c) provide that utility work such as re-conductoring shall be permitted if the work is performed in a manner consistent with the requirements of the Leon County Environmental Management Act. Because the re-conductoring will only require the use of wire pulling equipment within the existing rights-of-way, will not require work in wetlands, will not require clearing, and will not result in alteration to topography, Leon County's Environmental Management Ordinances do not apply. NATURAL GAS PIPELINE LATERAL An existing Florida gas transmission (FGT) natural gas pipeline lateral provides natural gas to the Purdom Station presently. It runs along State Road 363 from a gate station in Leon County. The pipeline lateral enters the Purdom Station along the entrance road and proceeds along that road to a gas metering station. The gas metering station will be upgraded and re-located nearer to the Purdom Station entrance as part of the Unit 8 project. At the northern end of the pipeline in Leon County, the St. Marks pipeline lateral is currently connected to a thirty-inch (30") main gas transmission pipeline. To support the Purdom Unit 8 project, FGT will connect its existing St. Marks pipeline lateral to a thirty-six-inch (36") main gas transmission pipeline that operates at higher pressure and will add new regulator valves. Once the new connection is made, the entire length of the pipeline lateral from the connection in Leon County to the Purdom Station will be hydrostatically tested by FGT for the increased pressure. FGT may install additional twelve-inch (12") piping called a "loop" parallel to a portion of the pipeline lateral. If a loop is added it will be separately permitted, owned, and operated by FGT. RE-CLAIMED WATER PIPELINE A re-claimed water pipeline will be constructed from the existing St. Marks Wastewater Treatment Plant to the Purdom Station for reuse of treated wastewater effluent. Currently, the City of St. Marks discharges treated wastewater effluent to the St. Marks River in the vicinity of the public park and beach. The re-claimed water pipeline from the city's wastewater treatment plant to the Purdom Station will eliminate a present discharge of pollutants to the St. Marks River; relieve the City of St. Marks of the costs of establishing alternate disposal methods, such as discharge to a spray fill in accordance with a permit issued by the trustees of the Internal Improvement Trust Fund; and will reduce the amount of surface water required for cooling at the Purdom Station. Use by the City of Tallahassee of re-claimed water transported by the proposed pipeline will relieve the City of St. Marks of permitting burdens and a potentially burdensome economic impact on its citizens. The re-claimed water pipeline will consist of a lift station to be installed at the St. Marks Wastewater Treatment Plant and a six-inch (6") pvc pipe that will be buried and run from the treatment plant to the Purdom Station. The re-claimed water pipeline corridor will be approximately forty-six hundred (4,600) feet in length. Existing utility and road rights-of-way will be used. The roadways affected will be restored to pre-construction condition, including the use of sod or seed where necessary. The pipeline will not impact wetlands nor any archeological sites of any significance. Construction of the water pipeline will include mechanical trenching or digging to a depth of between 30 and 54 inches and standard siltation and erosion control measures will be implemented for stormwater runoff in those areas. Where the pipeline crosses State Road 363 and the "St. Marks to Tallahassee Rail Trail," the pipeline will be installed by using the jacking and boring methods. No surface waters, wetlands or ecological resources will be affected by construction of the re-claimed water pipeline. Construction of the re-claimed water pipeline is estimated to cost approximately $250,000.00. The City of Tallahassee will perform preventive maintenance on the lift station at the St. Marks Wastewater Treatment Plant and on the re-claimed water pipeline. It will perform any needed repairs. No measurable changes to populations of important species are expected as a result of right-of-way maintenance. By agreement between the City of St. Marks and Tallahassee, the City of St. Marks will provide up to 100,000 gallons per day of treated effluent to Tallahassee and the Purdom Station. The re-claimed water pipeline is consistent with the St. Marks Comprehensive Plan and Land Development Code. WELL FIELD The existing deep wells that currently serve the Purdom plant are permitted by the Northwest Florida Water Management District. When the Purdom Unit 8 commences operation, these wells will be abandoned in accordance with applicable requirements and the associated groundwater use eliminated. On occasion the city will require up to 77 gallons per minute of potable water from the City of St. Marks for the control of NOX emissions when it burns diesel fuel oil in Unit 8. However, that condition is expected to occur only a few days at a time due to the limited availability of low sulfur diesel fuel in the vicinity of the Purdom Station, the facility-wide limits on NOX and sulfur dioxide emissions (SO2) as well as by the higher cost of diesel fuel. FUEL SUPPLY AND STORAGE Fuel for the Purdom Station consists of number 6 fuel oil, natural gas and diesel fuel. Fuel for Unit 8 will consist primarily of natural gas with some use of low sulfur diesel fuel as a secondary fuel. Natural gas will continue to be delivered to the Purdom Station by the FGT pipeline lateral. Diesel fuel will be delivered to the Purdom Station by tanker truck and enough diesel fuel will be stored for approximately 24 to 30 hours of full-load operation of Unit 8. Additional low sulfur diesel fuel is available in the local market area for another 2 to 3 days of full load operation. Number 6 fuel oil is delivered to the Purdom Station by barge where it is stored in tanks for use by the Purdom Station as well as by Tallahassee's Hopkins Generating Station. The Purdom Station's three (3) existing number 6 fuel oil tanks have a combined capacity of 155,000 barrels. These three (3) tanks are enclosed within an earthenberm designed to retain the volume of the largest of the three (3) tanks with sufficient free board for rainfall. As a part of the Unit 8 project one of these tanks with a 55,000-barrel capacity will be converted into a wastewater storage tank. The existing diesel fuel storage tank at the Purdom Station has a capacity of 10,000 barrels. This tank currently stores diesel fuel for use in the existing gas turbines. As part of the Unit 8 project, this tank will also be used to store diesel fuel for use in Unit 8 and at that time the sulfur content of the fuel will not exceed 0.05%. The diesel storage tank has a concrete retention area that is capable of containing 110% of the tank's volume. All four (4) of the fuel oil storage tanks at the Purdom Station have leak detection or overflow detection systems as well as cathodic protection systems. The tanks all comply with Florida's above-ground storage tank rules, including those that will become effective in 1999. The fuel storage tanks meet the American Petroleum Institute Standard 650 for above-ground storage tanks in terms of withstanding a 100 mile-per-hour sustained wind. As part of the Unit 8 project, Tallahassee will install wind girders on the two number 6 fuel oil tanks that will continue to be used for fuel oil storage and will maintain minimum oil levels in one of those tanks and the diesel fuel storage tank. In the last five (5) years Tallahassee has taken nine (9) barge deliveries of fuel oil at the Purdom Station. Tallahassee has in place and will continue to use a spill prevention control and counter-measures plan, as well as specific unloading procedures for the handling of fuel oils. It maintains a spill-response boat with necessary supplies. Prior to unloading a barge, a floating boom is placed around the barge to prevent spreading of any spill that might occur. Tallahassee is also an active participant in the St. Marks Oil Spill Cooperative, a consortium of local industries that work together to share resources and minimize the impacts of any spill. FOUNDATION STABILITY The sub-strates below the Purdom Station are primarily limestone with intermittent layers of sand, clay, and marl for a depth of more than 2,000 feet below the surface. Foundations for Unit 8 will require either spread footings or argured cast in place concrete pilings. The probability for sink-hole development at the Purdom Station is low. If sub-surface voids are encountered during construction they can be mitigated by using argured cast-in-place concrete piling and if necessary, by extending the length of the piling to reach an area with adequate sub-strate support. ARCHEOLOGICAL AND HISTORIC SITES There is no visible or public record evidence that construction of the re-claimed water pipeline from the City of St. Marks Wastewater Treatment Plant or the construction of Unit 8 itself at the Purdom Station will impact archeological or historic sites. The pipeline will be constructed within the right-of-way of existing City of St. Marks roadways where filling, ditching, and grading have already disturbed the upper, potentially artifact-bearing strata of the soil. At the Purdom Station's site there will be some excavation below existing fill deposits; however, there was extensive disturbance of the site prior to the placement of the fill many years ago. Accordingly, there is virtually no likelihood that archeological or historic artifacts will be encountered. Due to the existence of a previously recorded, but insignificant archeological or historic site near the City of St. Marks Wastewater Treatment Plant, and the possibility that excavation of the wet-well of Tallahassee's proposed pumping station for the re-claimed water pipeline could extend beneath existing fill deposits at that location, Tallahassee has agreed to have a professional archeologist monitor any such excavation, to notify the Florida Division of Historic Resources and follow its instructions in the event a historic or archeological find occurs at that location. Tallahassee has agreed that if archeological or historic remains are encountered at any time during construction of Unit 8 or operation of the Purdom Station, activity will be halted in the vicinity, the Division of Historic Resources will be contacted, and its recommendations will be followed. LAND-USE COMPATIBILITY The City of St. Marks historically developed as a port community. That is why it has several petroleum storage and distribution facilities, and once had a rail connection with Tallahassee. The Purdom Station, which has been in use since 1952, relies on the St. Marks River for fuel deliveries for both the Purdom and the Arvah Hopkins power stations and as a source of cooling water. It is a water-dependent use; therefore, according to state policy, it has priority over other uses in marine development. Adjacent land uses north and south of the Purdom Plant are petroleum storage and distribution businesses with their own barge unloading facilities, established in 1954. West of the Purdom Station and along State Road 363 is a mixture of business and residential uses. The developed portion of the City of St. Marks is located south of the Purdom Station. The four (4) acre construction area for Unit 8 is located in the interior of the sixty-three (63) acre Purdom site, approximately five hundred (500) yards from the nearest residence. The future land use map (FLUM) of the Wakulla County Comprehensive Plan designates for agricultural use the property in un-incorporated Wakulla County which is immediately across the St. Marks River from the Purdom Station. Electrical power plants are considered compatible with agricultural uses and are often found in agricultural areas. The Wakulla County Comprehensive Plan allows processing plants, such as sawmills, to be located in agricultural areas. The largest area in Wakulla County designated for industrial use by the Wakulla County FLUM is located just north of the City of St. Marks. It comprises about 2.2 square miles, which is larger than the entire City of St. Marks and is about ten (10) times the size of the area within St. Marks and has been designated for industrial use. The industrial designation of this 2.2 square-mile area shows that Wakulla County has made a land-use decision similar to those of the City of St. Marks. Primex Technologies operates a manufacturing facility on a portion of the 2.2 square-mile area designated as industrial. Portions of that area are within the coastal high hazard area, as designated by Wakulla County and portions are considered flood prone. Similar to the Purdom Station, the 2.2 square-mile industrially-designated area has highway access on State Road 363 and surrounding lands are designated by Wakulla County as "Agricultural, Rural 1, and Rural 2." The area does not have direct shipping access to the St. Marks River, but Primex Technologies does discharge treated wastewater via overland flow to the Wakulla River, which lies to the west. Wakulla County has not, for at least 12 or 13 years prior to this case, notified the City of St. Marks that it considers Tallahassee's Purdom Station or any other industrial facility on the St. Marks River in the vicinity of the Purdom Station to be an inappropriate land-use. The Purdom Station is compatible with surrounding uses. From a land-use standpoint it is an appropriate site for the location of Unit 8. SOCIOECONOMIC IMPACTS The construction of Unit 8 will have a positive impact on the local economy, providing directly approximately 240 jobs at the peak of construction and 160 jobs, on the average, during the 15-month construction period. About half of the construction work force is expected to commute daily from homes to the construction site, while the other half is expected to commute daily from temporary housing in Leon or Wakulla counties, to which they will travel weekly from their homes. Direct construction payroll will be approximately $9.8 million dollars. Additionally, construction of Unit 8 will have a cumulative, multiplier effect in Leon and Wakulla counties, resulting indirectly in approximately 118 additional jobs with wages of approximately $7 million dollars. Operation of Unit 8 will benefit the local, regional, and state economies in the retention of relatively high-paying jobs. Due to the retirement of Units 5 and 6, and the operational efficiency of Unit 8 there will be a staffing reduction by attrition at the Purdom Station from 50 to 37 employees. However, that is 12 more positions than would result if Units 5 and 6 were retired without construction of Unit 8. There will be no long-term increase in demand by the Purdom Station for public services, either directly or indirectly, through any increase in population attributable to increased staffing. The retirement of Units 5 and 6 and the design of Unit 8 will improve the environment as an economic asset of the City of St. Marks, Wakulla County, and the State of Florida. AIR QUALITY Wakulla County has been designated by the U. S. Environmental Protection Agency (EPA and DEP) as an "attainment area" in compliance with all Federal and Florida ambient air quality standards. Regulatory Prevention of Significant Deterioration (PSD) program requirements apply to the Unit 8 project. This program requires a demonstration that Unit 8 project emissions will not cause or contribute to any violations of State or Federal Ambient Air Quality Standards or PSD increments. The program further requires an analysis to demonstrate that the Purdom Unit 8 project's impacts on visibility, soils and vegetation, as well as impacts induced by residential, commercial, and industrial growth, are acceptable. The PSD program also generally requires that the new emission units associated with the project (the combustion turbine and cooling tower) comply with all applicable State and Federal Emission Limiting Standards, including New Source Performance Standards (NSPS) and that Best Available Control Technology (BACT) be applied to control emissions of PSD pollutants being increased above applicable PSD significant emission rates. Facility-wide caps will limit Nitrous Oxide and sulfur dioxide emissions to ensure that there will be no increase above recent actual annual emissions for those pollutants. They will indirectly limit emissions of other regulated pollutants. The facility-wide caps will apply to Unit 7 and 8, the existing gas turbines (GT-1 and GT-2), and the auxiliary boiler. The Unit 8 project required PSD review only for particulate matter (total suspended particulates, or TSP), and particulate matter of 10 microns or less (PM10), and carbon monoxide. A PSD review was nevertheless conducted for all PSD- regulated pollutants that may be emitted by the Purdom Unit 8 project, including not only particulate matter (TSP and PM10 ) and carbon monoxide, but NOX, volatile organic compounds, sulfur dioxide, sulfuric acid mist, fluorides, lead, mercury, and beryllium as well. Air emission from the Unit 8 project must not cause or contribute to a violation of Federal and State Ambient Air Quality Standards and PSD increments. Most of Wakulla County is classified as a Class II area for PSD purposes. However, portions of the county are classified as Class I areas. The nearest Class I area to the Purdom Station is the St. Marks National Wilderness area, located approximately 0.4 miles to the south and southeast of the Purdom Station and the Bradwell Bay National Wilderness area, located approximately 18 miles to the west of the Purdom Station. An air quality analysis undertaken in accordance with computer modeling procedures approved in advance by DEP, the U.S. Fish and Wildlife Service, and the U.S. Forest Service, demonstrated that the Purdom Unit 8 project would not cause or contribute to an exceedence of State and Federal Ambient Air Quality Standards for nitrogen dioxide (NO2), sulfur dioxide, PM10, carbon monoxide, and lead, as well as PSD Class I and Class II increments for NO2, sulfur dioxide and PM10. Consistent with Federal guidance, Ambient Air Quality Impact modeling for PM10 was considered for purposes of emissions of particulate matter with a diameter of less than 2.5 microns because PSD permitting requirements, including Ambient Air Quality Impact and PSD increment analysis, are not currently required for PM2.5 and EPA has not yet developed PSD increments or an approved modeling technology for PM2.5. The air quality modeling for Ambient Air Quality Standard purposes was based on conservative assumptions, including background ambient concentrations based upon regional monitors generally located in urban areas or near large point sources, existing major sources in the area at their maximum potential emissions and potential emissions from the Purdom Station. They include emissions from the new Unit 8 combustion turbine and the cooling tower which produced the worst case or highest air quality impact. The two hundred (200) foot stack's height for Unit 8 represents "good engineering practice" (GEP) calculated in accordance with DEP and EPA rules. The Purdom Unit 8 project is not expected to cause an increase in ozone concentrations in the area because NOX emissions, one of the precursors to the formation of ozone, will be held constant and volatile organic compound emissions, the other ozone precursor, will only increase negligibly. In addition, BACT was applied to both NOX and volatile organic compound emissions from the Unit 8 combustion turbine. Impacts of the estimated hazardous air pollutant emissions from the Purdom Station, including the new Unit 8 combustion turbine and cooling tower, were compared to the draft Florida Ambient Reference Concentrations (FARCS). All pollutants are projected to be below the corresponding draft FARCS. Because of the conservatism of DEP's draft FARCS, impacts from hazardous air pollutant emissions from the Purdom Station, including Unit 8, will not pose a significant health risk to the population in the surrounding area. The Purdom Unit 8 project's air emissions are not expected to cause any adverse impacts on vegetation, soil, or wildlife in the Purdom Station vicinity or in the St. Marks and Bradwell Bay National Wilderness areas, the nearest PSD Class I areas. Visibility in the vicinity of the St. Marks and Bradwell Bay National Wilderness areas will not be impaired. Only temporary and very small residential and commercial growth and no significant industrial growth is expected from the construction phase of Unit 8. Any resulting emissions will be very small, well distributed, and will have no measurable impact on ambient air quality. Air emission impacts of the Purdom Unit 8 project on the St. Marks River will be non-detectable for all by two (2) constituents. Detectable changes in those two (2) constituents will cause the water quality of the river to be improved. Because sewage effluent from the St. Marks Wastewater Treatment Plant will have a chlorine contact time in excess of one hour while traveling from the treatment plant to the Purdom Station and because the treated effluent represents only 1.5% of the water going into the cooling tower, the Unit 8 cooling tower emissions will pose no danger of transmission of infectious agents. The operation of Unit 8 will not cause any odor impacts and will have no effect on acid rain because of primary precursors of acid rain, sulfur dioxide and NOX emissions will not be increased. No significant air emission impacts are expected to result from the construction of Unit 8. BACT AND EMISSION RATES A BACT analysis is intended to ensure that the air emissions control system selected for a new project reflect the latest in control technologies used in a particular industry, based on a cost-benefit approach, taking into account technical, economic, energy, and environmental considerations. One purpose of BACT is to minimize consumption of PSD increments and thereby increase the potential for future economic growth without significantly degrading air quality. Regardless of regulatory applicability, BACT review for the Unit 8 combustion turbine was conducted for particulate matter, carbon monoxide, NOX, volatile organic compounds, sulfur dioxide, sulfuric acid mist, fluorides, lead, mercury, and beryllium. BACT was required for particulate matter (TSP and PM10) emissions for the Unit 8 cooling tower. BACT for the Unit 8 combustion turbine for particulate matter (TSP and PM10) emissions is the fuel quality of natural gas and the low sulfur diesel fuel oil, good combustion practices, combustion inlet air filtration, and a 10% opacity limitation, which is the most stringent form of control technology available for the control of particulate matter emissions from combustion turbines. For the Unit 8 combustion turbine BACT for carbon monoxide and volatile organic compounds emissions consists of good combustion practices. The proposed emission limits for carbon monoxide emissions are 25 and 90 parts per million (PPM) while firing natural gas and diesel fuel oil, respectively. The cost per ton of controlling carbon monoxide and volatile organic compound emissions through the use of an add-on emissions control device known as an oxidation catalyst is over seventy-five hundred dollars ($7,500.00) per ton. In addition, the use of an oxidation catalyst would result in a decrease in the generating units electrical output capacity, increase sulfuric acid mist and particulate matter emissions and additional waste generation and disposal. The economic, energy, and environmental impacts associated with an oxidation catalyst were too great based on other recent BACT determinations by DEP for similar units; therefore, BACT is good operating practice. For the Unit 8 combustion turbine, BACT for NOX emissions is the use of advanced, dry, low NOX combustors capable of achieving emissions of 12PPM by volume; dry at 15% oxygen, when burning natural gas and the use of water injection to achieve 42PPM volume; dry at 15% oxygen, when burning diesel fuel oil, based on a thirty (30) day "rolling average," with a fuel-bound nitrogen allowance when burning diesel; and excluding periods of startup, shutdown, malfunction, and fuel switches, up to two (2) hours and twenty-four (24) hours, except during cold start-ups where up to four (4) hours and twenty-four (24) hours are allowed. The economic cost associated with the most stringent technology to control NOX emissions, a selective catalytic reduction (SCR) system combined with combustion controls, was in excess of fifty two hundred dollars ($5,200.00) per ton removed. The use of an SCR system also results in a reduced electrical output and environmental impacts such as ammonia emissions; increased sulfur dioxide and particulate matter emissions; transportation, storage and handling of ammonia; and additional solid waste generation. These environmental, economic, and energy costs associated with an SRC system were too great; therefore, consistent with the recent BACT determinations by DEP, BACT is the use of dry, low NOX burner technology when firing natural gas and water injection when firing diesel fuel oil. DEP has historically used a four thousand dollar ($4,000.00) cost per ton threshold for removal of NOX emissions in determining BACT (i.e., not requiring additional control technology if it would cost more than that amount to reduce emissions further); EPA has recommended a threshold as low as two thousand dollars ($2,000.00) per ton. Manufacturer guarantees, performance data from commercially operating units and laboratory tests, along with professional engineering judgments, provide reasonable assurance that the proposed NOX emission limits are appropriate and achievable. NOX emissions from the Unit 8 combustion turbine while firing natural gas have been guaranteed at 9 parts per million volume, dry ranging from 55% to 100% of full-load operation. This guarantee will provide for reasonable utilization of the other generating units such as the Purdom Station that are also subject to the facility-wide cap on annual NOX emissions; will allow Unit 8 to be operated over a range of load conditions; and will provide Tallahassee with a reasonable operating margin for compliance in the event of degradation or if minor problems are encountered with the combustion control equipment or controls. For the Unit 8 combustion turbine, BACT for sulfur dioxide, sulfuric acid mist, fluorides, lead, mercury, and beryllium emissions is the use of natural gas and low sulfur diesel fuel oil (0.05%). Because "back-end technology" is not applied to further control these emissions from combustion turbines, the use of clean fuels such as natural gas and low- sulfur diesel oil is considered the most stringent form of control technology available. While PSD permitting review, including BACT, is not required for PM2.5, BACT was applied to the Unit 8 combustion turbines emissions of two (2) of the primary precursors of PM2.5, NOX, and sulfur dioxide. For the new cooling tower that is part of the Unit 8 project, BACT for particulate matter (TSP and PM10) emissions is the use of drift eliminators. This control technology is considered the most stringent technology available to control particulate matter emissions from a cooling tower. The Unit 8 combustion turbine will have emission limits considerably below NSPS requirements and no NSPS requirements apply to cooling towers. COMPLIANCE The Purdom Station air emissions units and activities, both new and existing, will comply with all applicable federal, state, and local air quality standards, including the conditions contained in the proposed PSD permit for Unit 8 and the draft Title V permit amendment for the Purdom Station that includes the Purdom Unit 8 project, both as entered into the record of the certification hearing and the recommended conditions of certification. Demonstrations of compliance with the facility-wide caps for NOX and sulfur dioxide, as well as the unit-specific emission limiting standards for the Purdom Station are required under the recommended conditions of certification, the proposed PSD permit and the draft Title V permit amendment. INDUSTRIAL WASTEWATER The Purdom Station currently uses once-through cooling. It removes water from the St. Marks River, uses it to cool the condensers of the existing units, and discharges it back to the river at a slightly elevated temperature. The Purdom Station also currently discharges treated wastewater to the St. Marks River from its low-volume waste and metal cleaning waste ponds. Following the construction of Unit 8 with a closed- cycle evaporative cooling system (considered BACT by EPA) and zero discharge wastewater treatment system and the associated early retirement of Purdom Units 5 and 6, the potential thermal discharge from the Purdom Station will decrease by approximately 50%, and the discharge of treated wastewater from the low volume and metal cleaning waste ponds will cease entirely. The zero discharge wastewater treatment facility installed as part of Unit 8 will produce distilled water that can be used, first, to produce steam and, second, for cooling so as to reduce the amount of water required for cooling from the river. The zero discharge wastewater treatment facility will produce up to 25 tons per day of a solid filter cake, comprised principally of salt from the St. Marks River, which Tallahassee intends to market as a by-product for uses such as cattle feed supplement or dispose of at an off-site, properly licensed landfill. This amount of filter cake will comprise approximately one and one half dump truck loads per day.WASTE DISPOSAL Various types of solid waste, consisting mainly of waste oils from oil/water separators in place to protect surface water and debris from the surface water intake screen (primarily grass), are currently and will continue to be generated by the operation of the Purdom Station and Unit 8 and will continue to be disposed of off-site in accordance with all applicable Federal and State laws. The only new solid waste to be generated from Unit 8 is used inlet air filter elements, which will also be disposed of in accordance with all applicable federal and state laws. Relatively small amounts of hazardous waste, comprised primarily of paints and solvents in amounts of less than 200 pounds per year during recent years, are currently generated at the station and will continue to be generated as a result of Unit 8. Tallahassee will minimize production of hazardous waste and intends to maintain its status as a conditionally exempt, small-quantity generator. Hazardous waste generated at the Purdom Station are stored on-site in a hazardous waste storage facility that includes a secondary containment structure until they are taken off-site for disposal or to be recycled. As a conditionally exempt, small-quantity generator, Tallahassee is not required to use such a storage facility but intends to continue to use the storage facility during the operation of Unit During construction, a safety and environmental program will be implemented to minimize and ensure the proper handling and disposal of all materials such as paints, solvents, and lubricants. SURFACE WATER HYDROLOGY AND WATER QUALITY IMPACTS The Purdom Station is located on a stretch of the St. Marks River classified as a Class III water body. The nearest down-stream outstanding Florida water is approximately 1.5 miles away, at the confluence of the St. Marks and Wakulla Rivers. Localized, limited-duration "de-watering" of excavations will be required during construction in a small percentage of the overall construction site area. The de-watering effluent will be discharged in accordance with a DEP generic permit. It will be tested and discharged onto the ground as surface runoff only if it meets the requirements of the generic permit. Until it has been tested and meets those requirements, it will be stored in either portable tanks or the Number 6 fuel oil tank being converted to a wastewater storage tank and then either retained for use in the cooling tower of Unit 8 or sent to an appropriate off-site wastewater treatment facility. Accordingly, there will be no discharge of de-watering effluent off-site unless it meets all applicable standards. Existing discharges of the Purdom Station and the City of St. Marks Wastewater Treatment Plant are fully permitted by EPA and DEP and meet all of the water quality requirements for Class III water bodies. The St. Marks River in the vicinity of the Purdom Station and upstream as far as Newport approximately 2.5 miles North, is tidally-influenced, with both an upper freshwater layer and a lower brackish layer or "salt wedge." The maximum amount of freshwater withdrawn by Unit 8 from the St. Marks River that is evaporated by the cooling tower and not returned to the river would not result in a measurable change in the ratio of fresh to saltwater in the river. Water quality in the river will improve as a result of the operation of Unit 8 by eliminating the thermal discharge of existing Units 5 and 6, eliminating two (2) existing permitted waste drains at the Purdom Station, and eliminating the existing permitted discharge from the City of St. Marks Wastewater Treatment Plant to the river. Because Unit 7 and the existing gas turbines (GT1 and GT2) will continue to operate, the permitted once-through thermal discharges from these units will also continue. The construction and operational stormwater runoff from Unit 8 will be controlled through the use of Best Management Practices. In addition, operational stormwater runoff from Unit 8 will be treated by a new detention pond designed to retain the first 3/4 inch of runoff and release it to a sand filter within thirty-six (36) hours. By maintaining construction and post-construction stormwater runoff equal to pre-construction flow rates, volumes, water quality and timing of release, the Purdom Station, including Unit 8, will meet all applicable stormwater requirements, which are found in the Purdom Station's stormwater NPDES (National Pollutant Discharge Elimination System) general permit; Chapter 62-25, Florida AdministrativeCode, and Sections 4.03 to .04, 5.0205, and 6.05.00 of the St. Marks Land Development Code. GROUNDWATER HYDROLOGY AND IMPACTS FROM WATER WITHDRAWAL There will be no effect off-site or in the St. Marks River from the limited amount and duration of construction de-watering that will occur. Only one on-site wetland could potentially be affected by a temporary drawdown of the water table at the Purdom Station. However, the potentially affected area is only a marginal wetland and has a clayish component near the surface that could help hold rainwater. Finally, de-watering effluent could be used for recharge to the affected wetland if it is needed and the effluent meets generic permit requirements for discharge. A limited, slightly reduced quantity of potable water from the City of St. Marks will be needed to supply drinking water and other potable water needs for Purdom Station employees. The Purdom Station currently uses groundwater from four (4) wells pursuant to a permit from the Northwest Florida Water Management District. These wells are those that will be shutdown and properly abandoned upon the successful commencement of commercial operation of Unit 8. The cessation of this use will result in an approximate 50% reduction in the potential cone of depression in the area currently affected by the City of Tallahassee's well fill and wells of others, thereby lessening the potential for saltwater intrusion into the Florida aquifer. By ceasing the use of potable groundwater for industrial purposes under normal operating conditions and obtaining make-up water from the City of St. Marks Wastewater Treatment Plant and the river, both of which are sources of non-potable water, Unit 8 will maximize its use of the lowest quality water and help to conserve higher quality, potable groundwater. For occasional short periods of time when potable water might be needed for control of NOX emissions in order to burn diesel fuel in Unit 8, the City of Tallahassee has the right to take up to 77 gallons of potable water per minute from the City of St. Marks water system. However, the short duration of that use makes it unlikely to have any significant effect on groundwater resources. ECOLOGICAL RESOURCES The Purdom Station includes approximately 34 acres of land that is developed (including mowed areas) and under regular maintenance. Approximately 29 acres are relatively undisturbed, consisting of upland and wetland forested components; herbaceous non-forested wetlands, including sawgrass and scrub wetlands; and open-water areas. Unit 8 will be constructed primarily on a portion of the site that has already been disturbed by earlier development. A total of up to approximately four (4) acres will be affected by construction. The U.S. Army Corps of Engineers and DEP have conducted wetland jurisdictional boundary reviews. No construction is planned in such wetland areas and a thirty-five (35) foot boundary zone will be maintained between construction areas and wetlands, unless there is an existing topographic feature, such as a berm or dike which would preclude construction runoff from entering wetlands. Barriers and other soil erosion and siltation control measures will be used to prevent erosion and siltation that would affect wetlands. Tree clearing on-site for the Unit 8 project would total less than an acre. The primary aquatic resource associated with the Purdom Station is the St. Marks River, which is in compliance with Class III water quality standards. The Unit 8 and the retirement of Units 5 and 6 will have an overall long-term positive impact on the aquatic resources of the river and adjacent Apalachee Bay by reducing impingement and entrainment of aquatic organisms in the Purdom Station's cooling systems, by reducing thermal impacts and by eliminating two (2) discharges of treated industrial wastewater by the Purdom Station and eliminating the discharge of treated effluent by the City of St. Marks Wastewater Treatment Plant. Aquatic resources will not be affected by the construction of Unit 8 except positively. Because the river is tidally influenced and has naturally varying salt concentrations in the vicinity of the Purdom Station, there is a naturally lower biological diversity in that area. Any reduction in the freshwater-to-saltwater ratio of the river as a result of the operation of Unit 8 will be too small to have a significant adverse impact, if any, on the aquatic resources of the river and will have even less of an impact downstream in Apalachee Bay. There will be no adverse impact on seagrass from changes in salinity, turbidity or air emissions. A review of threatened and endangered species was conducted based on habitat types that might occur at the Purdom Station, by reviewing lists of threatened and endangered species from the U.S. Fish and Wildlife Service and from the Department of Agriculture and Consumer Services, discussions with representatives from the St. Marks Wildlife Refuge and by contacting the Florida Natural Areas Inventory. No plant species listed as threatened or endangered were found at the site. Listed animal species that could occur at or near the Purdom Station include the alligator, osprey, eagle, little blue heron, snowy egret, tri-colored heron, and Louisiana heron. None of these species will be adversely affected by the Purdom Unit 8 project. The effects of the project on the Manatee should be negligible or positive due to the reduced thermal output to the river resulting from the shutdown of Units 5 and 6. Manatee summering in the St. Marks area will be encouraged to return to their normal southerly migration pattern during the winter. Any members of the species that do winter in the area will be protected from thermal distress when Unit 7 is not operating by being able to migrate to the naturally warmer waters of the nearby Wakulla River. No adverse wetland or upland ecological impacts will result from construction of the proposed re-claimed water pipeline. Positive impacts on wetlands will result from the operation of the water pipeline because it will eliminate the existing discharge by the St. Marks Wastewater Treatment Plant to the St. Marks River. Overall impacts to the existing terrestrial and aquatic ecological resources from the construction and operation of Unit 8 will either be negligible or, in some respects, positive. IMPACTS FROM FLOODING AND HURRICANES The 100-year flood elevation in the City of St. Marks is 12.4 feet above mean sea level, as established by the Federal Emergency Management Agency (FEMA) and made applicable through the St. Marks Flood Damage Prevention Ordinance. The highest recorded flood level at St. Marks identified by FEMA in a 100- year period of record was 11.3 feet, in effect leaving a 1.1-foot safety factor in the 12.4 foot level. Unit 8 and other facilities at the Purdom Station required for its operation will be constructed at or above that elevation or flood-proofed to that elevation. Additionally, the Purdom Station is not in the floodway of the St. Marks River that is reserved for the passing of the 100-year flood. The construction of Unit 8 will not result in any significant loss of floodplain storage. The staff of the Department of Community Affairs (DCA) investigated at length concerning the station site and whether it appears vulnerable to storm-induced flooding. They concluded that there was a small risk of such an event. The Station has never been inundated by major flooding and, in the past 50 years, the highest level of flooding at the Shields Marina in nearby St. Marks has been approximately 7'8" above mean sea level. The Purdom Station is located at least 2 miles inland from the nearest FEMA designated "V" zone which would be exposed to flood and high velocity wave action in the event of a hurricane. In addition, Unit 8 will be designed to withstand three (3) second wind gusts up to 120 miles per hour, which is a more stringent requirement than the 100-mile-per-hour sustained- wind criteria of the presently applicable building code. These wind criteria are substantially higher and more protective than recorded wind speed at Tallahassee and Apalachicola for periods of record provided in the Site Certification Application. There is no historical record of a Class 4 or Class 5 hurricane striking Northwest Florida. Only 30 hurricanes of any classification have struck all of North Florida in a 93-year period from 1899 to 1992. Consistent with data from historical FEMA studies, the recurrence interval of a maximum Class 2 hurricane surge at St. Marks, as hypothesized by the National Hurricane Center at a height of 17.3 feet above mean sea level, would be 900 years. The recurrence interval of a maximum Class 3 hurricane surge at St. Marks, as hypothesized by the National Hurricane Center at a height of 22.7 feet above main sea level, would be 7,000 years. Even if the Purdom Station were inundated by a hurricane surge, it could be rendered operational again in a period of three (3) weeks, which would be adequate in light of the expected time required to repair Tallahassee's electrical transmission and distribution system following such an event. No state funds will be used in the construction of Unit 8. During the construction period the contractor will be required to ensure the facility with builder's risk insurance. During operation, the facility will be covered by Tallahassee's risk management program, which includes private commercial property insurance that is not obtained through FEMA. NOISE IMPACTS Section 9.01.03(f), of the City of St. Marks Land Development Code exempts from its noise limits construction, maintenance, and testing noise which occurs between the hours of 7:00 a.m., and 10:00 p.m. Steam blowing that will occur near the end of construction of Unit 8 in order to clean scale and debris from the boiler tubes and steam lines for protection of the steam turbine will be the loudest construction-related noise. Each blow will last from 1 to 15 minutes and there could be two-to- three of them per day for a period of several weeks. The noise level would be approximately 82 decibels at the nearest residence, which is not loud enough to harm anyone's hearing but requires persons engaged in outdoor conversation to raise their voices. Despite the exemption for daytime construction, maintenance, and testing noise within the St. Marks Land Development Code, Tallahassee has committed to publicly notify residents of St. Marks prior to commencement of the steam blowing phase of construction to alleviate any concerns. Tallahassee has also committed to direct the steam blowing noise to the East or Northeast away from the St. Marks community. The expected 17% increase in truck traffic associated with construction of Unit 8 will not increase roadway noise in any significant amount. The operation of the station since 1952 has produced low-level noise which is hardly noticeable within St. Marks except for limited periods when the two (2) existing combustion turbines are operating. In addition to silencers which have been installed on steam vents at the Purdom Station and the removal of some public address speakers, Tallahassee is in the process of procuring silencers for the exhaust stacks of the two (2) existing combustion turbines to reduce their noise level. During normal operation of the station following construction of Unit 8 and retirement of Units 5 and 6, the highest predicted continuous noise level will be approximately 45 decibels at the nearest existing residence. That is similar to the present operational noise level and is below the EPA noise guideline, which is the most protective extant agency criterion. Noise from operation of the station after commencement of operation of Unit 8 will comply with the noise limits of the St. Marks Land Development Code and will not adversely affect wildlife or pose a nuisance. TRAFFIC All roadways serving the construction and operational traffic of Purdom Unit 8 have adequate capacity presently. No section of roadway will be impacted adversely. Tallahassee has arranged additional temporary access for construction workers to the station site via a St. Marks Refinery entrance road to the north. Additionally, the construction contractor may rent an open, off-site area at the southwestern side of the Purdom Station site for storage and parking. It would be connected during construction by a temporary foot bridge across an existing ditch. Afternoon peak-hour traffic during construction of Unit 8 will tend to move north opposite the heavy traffic flow south from Leon County, thus avoiding an adverse impact. Based on the volume of truck traffic expected during construction and taking into account the existing low traffic volume in the vicinity of the station, it is unlikely that traffic safety will be adversely affected. Due to the reduction in staff at the Purdom Station expected from retirement of Units 5 and 6, there will be a net long-term reduction in operational traffic to and from the station. The addition of one and one-half truck trips per day for transport of filter cake from the zero discharge wastewater treatment system of Unit 8 will have insignificant traffic impacts. During construction and operation of Unit 8 the existing roadway network will operate at acceptable levels of service as established in the comprehensive plans of St. Marks, Wakulla County, and Leon County. CONSISTENCY AND COMPLIANCE WITH LOCAL COMPREHENSIVE PLANS AND LAND DEVELOPMENT CODES Purdom Unit 8 is consistent with the City of St. Marks Comprehensive Plan. Goals, objectives, and policies from the following elements are applicable to the project: future land use; traffic circulation; sanitary sewer, solid waste, potable water, drainage, and natural ground water aquifer recharge; conservation; coastal management; recreation and open space; and capital improvements. The project complies with all those applicable goals, objectives, and policies. Unit 8 will comply with the applicable standards in the St. Marks Land Development Code. The applicable standards include those related to concurrency, resource protection (including tree protection, wetland protection, and shoreline protection), floodplain and stormwater management, development design and improvement standards (including, for example, lot coverage, setbacks and landscaping standards), and operational performance standards relating to, for example, noise and air quality. Wakulla County does not supervise land use in the City of St. Marks. The Wakulla County Land Development Code does not apply within the City of St. Marks. Unit 8 is consistent with and in compliance with the Wakulla County Comprehensive Plan, taking into account five (5) areas of potential applicability beyond the boundaries of the City of St. Marks: As to land use compatibility along the border between the City of St. Marks and unincorporated Wakulla County, findings 64 through 70, above, show compatibility. As to protection of natural resources, Unit 8 will not adversely impact wetlands, significant wildlife habitat or threatened or endangered species. Water quality in the St. Marks River will be improved. The existing well field will be closed, providing a beneficial effect on groundwater quantity and quality. As to the availability of public services, the City of St. Marks provides water and sewer services to the Purdom Station. There is adequate solid-waste capacity in the Wakulla County landfill for disposal of construction debris. There is adequate solid-waste capacity for the disposal of other types of solid-waste at the Panama City waste-to-energy facility. There is adequate existing roadway capacity to service the project construction and operating traffic. Drainage facilities will be constructed on the site to manage stormwater in compliance with local, state and federal requirements. Other public services such as police, fire, and emergency medical services are available and sufficient to meet the needs at Purdom Station. The estimated impact fee due to Wakulla County for the Unit 8 project is $7,350.00. Concerning coastal management, although the station is located within a coastal high-hazard area designated by Wakulla County, it will meet the requirements of the St. Marks Flood Damage Prevention Ordinance. The project is designed to be elevated or flood-proofed to the 100-year floor elevation. Tallahassee has agreed to a condition of certification requiring it to prepare a hurricane evacuation, preparedness, and recovery plan for the Purdom Station. Under the terms of that condition, preparation of the plan will be coordinated with the Wakulla County Emergency Management Office. Power plants are water- dependent uses, so the Purdom Station location in the coastal area is appropriate. The City of St. Marks historically developed as a port community and there are other port-related uses in and around the Purdom Station. The station will not encourage other development to locate within the coastal high-hazard area, so it is not the type of infrastructure for which public expenditures are meant to be limited in the coastal high-hazard area. Unit 8 will further the goals, objectives, and policies of Wakulla County's economic development element of its comprehensive plan. It allows an existing industry to expand and relatively high-paying jobs at the station will be retained. The environment, which is an important economic asset to Wakulla County, will be protected and improved through the use of clean fuel, clean burning technology and other advance technologies, such as the combined cycle generating equipment itself and the zero discharge wastewater treatment system provision. CONSISTENCY WITH REGIONAL POLICY PLAN Unit 8 is consistent with the Apalachee Regional Planning Counsel's Strategic Regional Policy Plan for the following reasons: It will have an economic benefit in terms of temporary construction job creation and long-term job retention that supports the goal and policies for the economic development section of the plan. The jobs will be relatively high-paying jobs compared with the jobs in the predominant government center in the Wakulla County economy. Tallahassee's commitment to prepare a comprehensive hurricane evacuation, preparedness, and recovery plan supports the Strategic Policy Plan's goals and policies dealing with emergency management. Unit 8 will not have an adverse impact on the regionally significant resources listed in the plan, including the river, the Aucilla Wildlife Management area, the St. Marks National Wildlife Refuge, wetlands and wildlife. The project will not adversely affect the highway system, so it is consistent with the regional transportation goals and policies of the Strategic Policy Plan. CONSISTENCY WITH THE STATE COMPREHENSIVE PLAN Unit 8 is consistent with the applicable goals and policies of the State of Florida Comprehensive Plan, Section 187.201, Florida Statutes, as shown by the following: Concerning the Goal, Section 187.201(7)(a), Florida Statutes, and Policies 24 and 25 related to public safety, Tallahassee has agreed to prepare a hurricane evacuation preparedness and recovery plan for the Purdom Station. Concerning the Goal, Section 187.201(8)(a), Florida Statutes, and Policies 5, 8, 9, 10, 11, 12, 13, and 14, related to water resources, Unit 8 will have adequate supplies of water; it will comply with the Flood Damage Prevention Ordinance of the City of St. Marks; no wetlands will be impacted; withdrawal for once-through cooling will be reduced; and the consumptive use of water from the river would be less than 1% of the seven (7) day, ten (10) year low flow in the river. This is consistent with state policy to use water so that navigation, recreation, and fish and wildlife resources will not be adversely affected. Water quality in the river will be improved. There will be a reduction in existing thermal discharges at the Purdom Station. Existing permitted wastewater discharges to the river will be eliminated with the installation of the zero discharge, wastewater treatment system. Treated wastewater from the City of St. Marks and Purdom Station's own permitted waste streams will be re-used as make-up water to the Unit 8 cooling tower instead of being discharged to the river as it is currently permitted to do. This feature of the project is consistent with state policy that promotes water conservation, re-use of water and the use of water of lowest acceptable quality. As a result of Unit 8's installation, groundwater withdrawals will be eliminated and the existing well field will be closed. Concerning the Goal, Section 187.201(9)(a), Florida Statutes, and Policies 4, 6, 7, and 10, related to coastal and marine resources, there will be no adverse impact to the aquatic and marine environment. Water quality in the river will be improved as a result of Unit 8, which will benefit the aquatic and marine environment. The Purdom Station is a water-dependent use and, therefore, according to state policy, has priority over other uses in marine development. Concerning the Goal, Section 187.201(10)(a), Florida Statutes and Policies, 1, 3, and 7 related to Natural Systems and Recreational Lands, wetlands and wildlife will be conserved and water quality will be improved as a result of Unit 8 being installed and operated. There will be no adverse impact on endangered species. The reduction in thermal discharges will benefit the West Indian manatee by reducing the attraction of artificially warmed waters, encouraging that species to return to its historic migration pattern. Aesthetics for recreational users of the river have already been improved with the removal of old boilers from Units 1 through 4. Tallahassee will install landscaping near the north boundary of the station, and a nearly continuous buffer will be placed along the shoreline, in compliance with landscaping standards of the City of St. Marks Land Development Code. Concerning the Goal, Section 187.201(11)(a), Florida Statutes, and Policies 1, 2, and 3 related air quality, annual emissions of NOX and sulfur dioxide will not increase as a result of Unit 8, even though generating capacity at the site will increase by nearly 200%. Tallahassee has agreed to air permit limits that are considerably lower than current permit limits at the Purdom Station, so the potential emissions of air pollutants will be reduced. Air quality standards will be met. BACT has been applied, this ensures that air pollution is minimized through the installation of the best technology available, considering environmental, energy and cost factors. Concerning the Goal, Section 187.201(12)(a), Florida Statutes, and Policies 5, 6, 7, and 9 related to Energy, Unit 8 has been reviewed by the Public Service Commission, which determined that there were no conservation measures reasonably available to Tallahassee that would have mitigated the need for Unit 8. That agency also found that the city has adequately explored alternatives to Unit 8 and that Unit 8 is the most cost- effective alternative. During the need determination proceeding for Unit 8, Tallahassee entered into a settlement agreement with the Legal Environmental Assistance Foundation that will result in enhancements to Tallahassee's Solar Energy and Energy Conservation Program. Concerning the Goal, Section 187.201(13)(a), Florida Statutes, and Policies 8, 9, and 11 related to hazardous and nonhazardous materials and waste, Tallahassee has adopted an environmentally sound method of wastewater treatment and disposal, the zero discharge wastewater treatment system. The zero discharge wastewater treatment system benefits the environment in two (2) ways: first, by treating, re-using and not discharging to the environment treated wastewater from the City of St. Marks and second, by treating, re-using and not discharging to the environment Purdom Station's own industrial waste streams. Tallahassee has committed to pursue re-cycling of the filter cake by-product of the zero discharge, wastewater treatment system. Tallahassee has a plan in place for the proper handling, storage, and disposal of hazardous waste. It has agreed to a condition of certification requiring it to continue implementation of the current plan. It also uses practices that minimize the production of hazardous wastes. Concerning the Goal, Section 1897.201(16)(a), Florida Statutes, and Policies 1, 3, and 6 related to Land Use, Unit 8 constitutes the re-development of an existing power plant site. There are adequate land, water resources, and service capacity available to support the new development at the Purdom Station site. Unit 8 will enhance the livability of St. Marks by preserving opportunities to work in the community. Concerning the Goal, Section 187.201(18)(a), Florida Statutes, and Policies 1, 2, 3, and 4 related to Public Facilities, Unit 8 will efficiently use and reuse existing structures, buildings, and facilities at the Purdom Station. Potable water and domestic wastewater services will be provided by the City of St. Marks. The project will use the existing transmission network, the existing underground natural gas pipeline infrastructure, the existing highway network, and existing fuel and water storage facility at the Purdom Station. Concerning the Goal, Section 187.201(19)(a), Florida Statutes, and Policy 6 related to Cultural and Historical Resources, the project is not expected to have an adverse impact on historic or archaeological resources. As a precautionary measure, Tallahassee has agreed that construction of the wet well at the City of St. Marks wastewater treatment plant will be monitored by a professional archaeologist if excavation extends below existing fill. Concerning the Goal, Section 187.201(22), Florida Statutes, and Policies 1, 3, and 12 related to the Economy, Unit 8 will allow a job-producing industry to remain in the state; and in addition, its design will protect and improve the environment as an economic asset of the state, the county and the City of St. Marks. Concerning the Goal, Section 187.201(26)(a), Florida Statutes, and Policy 6 related to Plan Implementation, citizen participation has been encouraged and sought throughout the planning and permitting of Unit 8, with special emphasis on communication with individual citizens, interest groups, and government agencies. The Purdom Unit 8 project is on balance and with certain conditions agreed to by the City of Tallahassee, consistent with the State Comprehensive Plan. VARIANCES Tallahassee requires no variances for the operation of the Purdom Station or the construction or operation of Unit 8 and its associated facilities. AGENCY POSITIONS AND STIPULATIONS The DEP, DOT, DCA, the NWFWMD, and the ARPC have recommended certification of the station and the Unit 8 project, including construction and operation of Unit 8 and its associated facilities subject to recommended conditions of certification which have been accepted by the City of Tallahassee. Those conditions or certifications are attached hereto and incorporated by reference herein as Appendix One. The Florida Game and Freshwater Fish Commission determined that Unit 8 would have no significant impact to fish and wildlife resources under its jurisdiction and the Department of Health found that the Unit 8 project would be an improvement over existing conditions. Aside from Wakulla County, no state, regional or local agency has recommended denial of certification. Wakulla County neither requested nor recommended any conditions of certification for or during the certification hearing. The City of St. Marks adopted a resolution supporting the Purdom Unit 8 project and strongly supporting the continued location and operation of the existing Purdom power station. Wakulla County's witness asserted that the county does not expend public funds to establish new infrastructure that would subsidize development in high-hazard coastal areas and that Tallahassee should not be permitted to expend public funds on the Purdom Unit 8 project. Wakulla County, however, has expended state funds during the past two (2) years to construct a fishing pier in the high-hazard coastal area. The purpose of that pier is to make beaches and shores in the area, and recreation, more accessible to the public. The county has also expended public funds to install central sewer lines and a waste treatment facility in a high-hazard coastal area. Additionally, the county expends public funds to maintain roads and utilities built by developers in high-hazard coastal areas.
Conclusions For City of Tallahassee: Gary P. Sams, Esquire Hopping, Green, Sams, and Smith Post Office Box 6526 Tallahassee, Florida 32314 For Florida Public Robert V. Elias, Esquire Service Commission: Division of Legal Services 2540 Shumard Oak Boulevard Tallahassee, Florida 32399 For Division of Forestry: Earl Peterson, Director Department of Agriculture and Consumer Services 3125 Conner Boulevard Suite C-19 Tallahassee, Florida 32399 For City of St. Marks: Faye Simmons, City Manager Post Office Box 1263 St. Marks, Florida 32355 For Department of Charles T. Collette, Esquire Environmental Protection: Scott Gorland 2600 Blair Stone Road Mail Station 35 Tallahassee, Florida 32399 For Game and Fresh James V. Antista, Esquire Water Commission: Bryan Building 620 South Meridian Street Tallahassee, Florida 32399 For Department of Mary S. Miller, Esquire Transportation: Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399 For Department of Andrew S. Grayson, Esquire Community Affairs: 2555 Shumard Oak Boulevard Tallahassee, Florida 32399 For Apalachee Regional Charles Blume Planning Counsel: 314 East Central Avenue Blountstown, Florida 32424 For Office of Siting Hamilton S. Oven Coordination: 2600 Blair Stone Boulevard Mail Station 48 Tallahassee, Florida 32399 For Apalachee Regional Edward F. Blanton, Esquire Planning Council: 825 Thomasville Road Tallahassee, Florida 32303 For Northwest Florida Douglas Stowell, Esquire Water Management District: Stowell, Anton and Kraemer Post Office Box 11059 Tallahassee, Florida 32302 For Florida Department George W. Percy, Director of State, Division of R. A. Gray Building Historical Resources, 500 South Bronough Street Archives and Records: Tallahassee, Florida 32399 For Department of Health: Pepe Menendez, P.E. Environmental Health Service 1317 Winewood Boulevard Tallahassee, Florida 32399 For Wakulla County: Parrish Barwick, Administrator Post Office Box 1263 Crawfordville, Florida 32327 For Leon County: Parwez Alam, Administrator Leon County Courthouse 301 South Monroe Street Tallahassee, Florida 32301 For Wakulla County: Ronald A. Mowrey, Esquire Mowrey, Barrett and Minacci 515 North Adams Street Tallahassee, Florida 32302
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 the City of Tallahassee Florida, be granted certification, pursuant to Chapter 403, Part II, Florida Statutes, for the operation of the existing Purdom Station, including the location, construction, and operation of proposed Unit 8 and its associated facilities, as proposed in the Site Certification Application as modified by the preponderant evidence of record supportive of the above findings of fact and conclusions of law, and in accordance with the attached conditions of certification, which are incorporated herein and made a part hereof by reference. It is further recommended that the City of Tallahassee, Florida, be authorized to use, connect to and cross properties of the Florida Department of Transportation, subject to the above-referenced and attached conditions of certification. DONE AND ENTERED this 9th day of March, 1998, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1998. COPIES FURNISHED: Gary P. Sams, Esquire Hopping, Green, Sams, and Smith Post Office Box 6526 Tallahassee, Florida 32314 Robert V. Elias, Esquire Division of Legal Services Florida Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Earl Peterson, Director Division of Forestry Department of Agriculture and Consumer Services 3125 Conner Boulevard, C-19 Tallahassee, Florida 32399-1650 Faye Simmons, Manager City of St. Marks Post Office Box 1263 St. Marks, Florida 32355 Charles T. Collette, Esquire Scott Goorland, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 James V. Antista, Esquire Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1600 Mary S. Miller, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Andrew S. Grayson, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Suite 315 Tallahassee, Florida 32399-2100 Charles Blume Apalachee Regional Planning Counsel 314 East Central Avenue Blountstown, Florida 32424 Hamilton S. Oven 2600 Blair Stone Road Mail Station 48 Tallahassee, Florida 32399 Edward F. Blanton, Esquire 825 Thomasville Road Tallahassee, Florida 32303 Douglas Stowell, Esquire Stowell, Anton and Kraemer Post Office Box 11059 Tallahassee, Florida 32302 George W. Percy, Director R. A. Gray Building 500 South Brunough Street Tallahassee, Florida 32399 Pepe Menendez, P.E. Environmental Health Service 1317 Winewood Boulevard Tallahassee, Florida 32399 Pepe Menendez, P.E. Environmental Health Service 1317 Winewood Boulevard Tallahassee, Florida 32399 Parrish Barwick, Administrator Post Office Box 1263 Crawfordville, Florida 32327 Parwez Alam, Administrator Leon County Courthouse 301 South Monroe Street Tallahassee, Florida 32301 Ronald Mowrey, Esquire Mowrey, Barrett and Minacci 515 North Adams Street Tallahassee, Florida 32302 Kathy Carter, Agency Clerk Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, Esquire Office of General Counsel 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
