02-004573EPP In Re: Lee County Solid Waste Energy Facility, Unit 3, Power Plant Siting Supplemental Application No. Pa90-30sa1 vs. * Status: Closed Recommended Order on Tuesday, August 19, 2003.

Summary: Supplemental application to build third unit of solid waste Energy Recovery Facility met certification requirements under Electrical Power Plant Siting Act.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: LEE COUNTY SOLID WASTE )

ENERGY FACILITY, UNIT 3, POWER )

PLANT SITING SUPPLEMENTAL ) Case No. 02 - 4573EPP

APPLICATION NO. PA90 - 30SA1. )

)

RECOMMENDED ORD ER

Pursuant to notice, the Division of Administrative Hearings,

by its duly - designated Administrative Law Judge, Richard A.

Hixson, held a certification hearing in the above - styled case on

July 29, 2003, in Fort Myers, Florida.

APPEARANCES

For the Appli cant, Lee County:

David S. Dee, Esquire

Landers & Parsons

310 West College Avenue

Post Office Box 271

Tallahassee, Florida 32302 - 0271

For the Department of Environmental Protection:

Scott A. Goorland, Esquire

Department of Environmental Protection

3900 C ommonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

The issue to be determined in this case is whether a

supplemental site certification should be issued to Lee County

for the construction and operation of Unit N o. 3 at Lee County's

Solid Waste Energy Recovery Facility (Facility), in accordance

with the provisions of the Florida Electrical Power Plant Siting

Act (PPSA), Sections 403.501 - .518, Florida Statutes. (All

statutory references are to the 2002 codificat ion of the Florida

Statutes.)

PRELIMINARY STATEMENT

On November 18, 2002, Lee County filed a supplemental

application (Supplemental Application) for site certification

with the Florida Department of Environmental Protection

(Department or DEP), pursuant to Section 403.517, Florida

Statutes. The County seeks authorization to construct and

operate a third municipal waste combustor unit and ancillary

equipment (Project or Unit No. 3) at the Facility. Lee County's

application is subject to the requirements of the Florida

Electrical Power Plant Siting Act. On November 25, 2002, the

Department transmitted Lee County's Supplemental Application to

the Division of Administrative Hearings for appropriate

proceedings under the PPSA.

Prior to the transmittal of the s upplemental application,

the Florida Public Service Commission (PSC) on December 11, 2001,

issued Order No. PSC - 01 - 2390 - DS - EQ (Order Granting Petition of

Lee County, Florida, for Declaratory Statement) concerning the

proposed Project. The PSC determined t he Project was exempt from

the PSC's "determination of need" process, pursuant to Section

377.709(6), Florida Statutes. The PSC's order has not been

challenged and is now final.

On April 11, 2003, the DEP issued its written Staff Analysis

Report (Staff An alysis) concerning the Project, in compliance

with Section 403.507(4), Florida Statutes. The DEP's Staff

Analysis included reports from other agencies and proposed

conditions of certification (Conditions of Certification) for the

Project. DEP subsequentl y issued a revised Staff Analysis and

Conditions of Certification (effective July 11, 2003). 1

On July 18, 2003, a Prehearing Stipulation for Certification

Hearing (Prehearing Stipulation) was filed by Lee County, DEP,

the Florida Department of Transportati on (DOT), the Florida

Department of Community Affairs (DCA), the PSC, the Florida Fish

and Wildlife Conservation Commission (FWCC), the South Florida

Water Management District (SFWMD), and the Southwest Florida

Regional Planning Council (SWFRPC). As refle cted in the

Prehearing Stipulation, all of the signatories either recommended

certification of the Project or took no position concerning the

certification of the Project, provided that the Project is built

and operated in compliance with the Conditions of Certification.

On July 29, 2003, a certification hearing (Certification

Hearing) was conducted in compliance with Section 403.508(3),

Florida Statutes. At the Certification Hearing, Lee County

called three expert witnesses: Paul C. Chrostowski (accepted as

an expert concerning environmental science and engineering,

including the health and ecological impacts resulting from the

operation of resource recovery facilities); Donald F. Elias

(accepted as an expert concerning air pollution and air pollution

con trol systems); and Samuel M. Rosania (accepted as an expert

concerning solid waste programs and facilities, including

resource recovery facilities). Lee County offered Exhibits 1 - 59,

which were received into evidence without objection. The

Department cal led one expert witness: Steve Palmer, P.E.

(accepted as an expert concerning electrical power plant site

certification in Florida). The Department offered DEP Exhibits 1

and 2, which were received into evidence without objection.

At the Certification Hea ring, Lee County's request for

official recognition of documents was granted, which included:

(1) the final order (dated June 17, 1992) of the

Siting Board granting certification of the Facility;

(2) the final order (dated May 16, 1991) of the Siting

Bo ard finding the Facility to be consistent and in

compliance with local land use plans and zoning

ordinances; and

(3) the "Order Granting Petition of Lee County,

Florida, for Declaratory Statement" (dated December 11,

2001) of the Florida Public Service C ommission,

determining that the Project is exempt from the PSC's

determination of need process.

These documents were included with Lee County's exhibits at the

Certification Hearing.

The evidence presented by Lee County and DEP at the

Certification Hearin g was uncontested. None of the other

signatories to the Prehearing Stipulation appeared or otherwise

participated at the Certification Hearing. Except for Lee County

and DEP, the parties to this proceeding did not call any

witnesses or proffer any exhibi ts.

Members of the public were given the opportunity to provide

oral and written comments about the Project at the Certification

Hearing; however, no members of the public testified at the

hearing, and no written comments from any member of the public

we re presented. No one testified or proffered any exhibits in

opposition to the Project at the Certification Hearing.

Following the conclusion of the Certification Hearing, a

transcript was filed with the Division of Administrative Hearings

on August 4, 200 3. Pursuant to the agreement of the parties at

the conclusion of the Certification Hearing, the parties were

allowed until August 8, 2003, to submit proposed recommended

orders. The DEP and Lee County jointly filed a timely Proposed

Recommended Order on August 7, 2003, which has been considered

and largely adopted in the rendition of this Recommended Order.

No other party filed a Proposed Recommended Order.

Based on all of the evidence of record, the following

findings of fact are determined:

FINDINGS O F FACT

The Applicant

1. The Applicant, Lee County, is a political subdivision of

the State of Florida. Lee County owns the existing Facility and

will own Unit No. 3. The Facility was designed, built and is

operated by a private company, Covanta Lee, In c. (Covanta),

pursuant to a long - term contract with Lee County. It is

anticipated that Covanta or another private company will design,

construct and operate Unit No. 3 for the County.

History of the Project

2. In 1985, the Florida Legislature enacted the Lee County

Solid Waste Disposal and Resource Recovery Act (the Act), which

authorized Lee County to construct, operate, and maintain a solid

waste disposal and resource recovery system for the benefit of

Lee County's residents. In 1989, pursuant to the A ct, Lee County

adopted an Integrated Solid Waste Management Master Plan (Plan),

which established a comprehensive plan for the management, reuse,

recycling and/or disposal of the solid waste generated in Lee

County. Lee County's Plan was based on the deve lopment of: (a)

an aggressive recycling program to reduce the quantity of

materials requiring disposal; (b) a waste - to - energy facility for

waste reduction and energy recovery from those materials that are

not recycled; and (c) a landfill for the disposal of ash and by -

pass waste ( i.e. , materials that are not recycled or processed in

the waste - to - energy facility).

3. Lee County has implemented its Integrated Solid Waste

Management Plan with innovative approaches and state of the art

technology. Lee Coun ty has a comprehensive recycling program

that handles a wide array of materials, including: (a) waste

from residential, commercial, governmental, and institutional

facilities; (b) household hazardous waste; (c) yard waste;

(d) recovered materials; (e) con struction and demolition debris;

and (f) electronic waste. Lee County established a recycling and

materials separation goal of 40 percent for its residents, even

though the State of Florida's goal is 30 percent. From 1993

through 2000, Lee County exceede d the State's 30 percent goal.

In 1998, Lee County's recycling rate was approximately 38

percent, which was higher than that of any other county in

Florida.

4. Consistent with its Plan, Lee County built a modern

landfill, which is equipped with two syn thetic liners, two

leachate collection systems, and a network of groundwater

monitoring wells to ensure the protection of the environment.

Lee County's landfill is located in Hendry County, pursuant to an

interlocal agreement between Lee County and Hendry County. Under

this agreement, the solid waste from both counties is taken to

Lee County's Facility for processing and then the ash and by - pass

waste are taken to the landfill for disposal. This cooperative,

regional approach to solid waste management is sues has enabled

Lee County and Hendry County to provide environmentally sound,

cost - effective programs for the residents of both counties.

5. In 1992, the Governor and Cabinet, sitting as the Siting

Board, approved the construction and operation of Uni ts No. 1 and

No. 2 at the Facility, and certified an ultimate site capacity of

60 megawatts (MW), based on the operation of three municipal

waste combustor (MWC) units. Units No. 1 and No. 2 have been in

commercial operation since 1994.

6. Despite Lee County's comprehensive recycling program,

the amount of solid waste delivered to the Facility has increased

each year since the Facility began operation, primarily due to

population growth. In 1999, Lee County's solid waste deliveries

were equal to the Fa cility's guaranteed processing capacity

(372,300 tons). In 2000, the Facility processed more than

392,000 tons of solid waste, but the County still had to dispose

of nearly 44,000 tons of processible waste in its landfill.

Current population projections for Lee and Hendry Counties

suggest that the amount of processible solid waste will continue

to increase, reaching almost 550,000 tons by 2010.

7. Lee County has decided that it should expand the

Facility, consistent with Lee County's long - standing Plan , rather

than discard processible waste in a landfill. The Facility was

designed to readily accommodate the construction of a third MWC

unit. If approved and built, the third unit (Unit No. 3) will be

operating at or near its design capacity by 2010 ( i.e . , within

five years after it commences commercial operations).

8. For these reasons, on November 18, 2002, Lee County

filed its Supplemental Application with DEP for the construction

and operation of Unit No. 3.

The Site

9. The Facility is located e ast of the City of Fort Myers,

in unincorporated Lee County. The Facility is approximately 2.5

miles east of the intersection of Interstate - 75 and State Road

82, on the north side of Buckingham Road. The County owns

approximately 300 acres of land at thi s location, but only 155

acres (which constitutes the Site) was certified under the PPSA

for the Facility.

10. The Site currently includes the Facility, a household

hazardous waste drop - off area, a waste tire storage facility, a

horticultural waste proce ssing area, and a recovered materials

processing facility. A solid waste transfer station is under

construction at the Site. Even after the Facility is expanded to

accommodate Unit No. 3, approximately 63 percent of the Site will

be used solely as buffer and conservation areas.

The Surrounding Area

11. There are large buffer areas around the Site. A

Florida Power & Light Company (FPL) transmission corridor,

containing electric transmission lines, is located along the

western boundary of the Site. Approximately three - quarters of a

mile to the west of the Site is a limerock, fill, and topsoil

mining operation. Immediately north of the Site is approximately

145 acres of undeveloped land owned by the County. A 135 - acre

County - owned park is adjacent t o the Site's eastern property

line. Scattered single - family homes are located northeast and

farther east of the Site. An adjacent parcel southeast of the

Site was previously used as a sanitary landfill (which has been

closed and covered), and is now owne d by the City of Fort Myers

and private individuals who use it for livestock grazing. The

land immediately south of the Site is undeveloped. The Gulf

Coast Sanitary Landfill is located three miles directly south of

the Site.

Site Suitability

12. The Si te is well - suited for the addition of Unit No. 3.

The Site has sizable buffer areas on all sides. Potable water,

reclaimed water, and wastewater services are already provided to

the Site through existing pipelines.

13. The Facility is near an existing el ectrical substation

(Florida Power & Light Company's Buckingham Substation). An

existing electrical transmission line connects the Facility to

the substation.

Zoning and Land Use

14. In 1991, the Siting Board determined that the Site and

Facility are co nsistent and in compliance with the applicable

land use plans and zoning ordinances, based on the construction

and operation of three MWC units at the Facility. The Site was

zoned for an Industrial Planned Development, and was designated

as Public Facilit ies in the future land use map of Lee County's

comprehensive land use plan, specifically to allow the Facility

to be built and operated on the Site.

The Existing Facility

15. The Facility currently consists of Units No. 1 and

No. 2, which have been in commercial operation since 1994. Each

MWC unit has a nominal capacity of 600 tons per day (tpd) of

solid waste (660 tpd using a reference fuel with a higher heating

value of 5000 British thermal units per pound (Btu/lb)). The two

MWC units generate steam that is used to drive an electric

turbine generator, which generates approximately 39 MW of

electricity. The Facility also includes an ash management

building, cooling tower, stack, stormwater management ponds,

water treatment system, electrical switchya rd, electrical

transmission lines, and related facilities.

16. Solid waste collection trucks enter the Site from

Buckingham Road. They follow an access road to the County's

scale house, where the trucks are weighed, and then the trucks

are directed to the Facility. The trucks drive inside the

Facility and dump the garbage into a refuse pit. A crane mixes

the garbage in the pit. The crane then places the garbage in a

hopper, which feeds into the combustion chamber where the garbage

is burned. The ai r in the combustion chamber passes through the

Facility's air pollution control equipment, and then out the

stack. Ash from the combustion process is quenched and then is

deposited onto an enclosed conveyor, which takes the ash to an

ash management build ing. The ash then is loaded into trucks and

taken to the County's existing landfill in Hendry County. As a

result of this process, the amount of fill being taken to the

existing landfill is reduced by approximately 90 percent.

The New Project - MWC Unit No . 3

17. The Project involves the construction and operation of

a new MWC unit (Unit No. 3) at the Facility. The new unit will

be substantially the same as the two existing MWC units. The new

unit will have the capacity to process 600 tpd (nominal) of s olid

waste (660 tpd at 5000 Btu/lb). A new electric turbine generator

will be installed and it will generate approximately 20 MW of

additional electricity. In addition, the cooling tower will be

expanded, the ash management building will be expanded, a l ime

and carbon silo will be installed, and the new unit may be

connected with the two existing units.

Construction of Unit No. 3

18. The Facility was originally designed and built to

accommodate the addition of a third MWC unit, thus making the

constru ction of Unit No. 3 relatively simple, without disrupting

large areas of the Site. Unit No. 3 will be located adjacent to

the two existing MWC units. The expansion of the cooling tower

will be adjacent to the existing cooling tower.

19. Construction o f Unit No. 3 will occur in previously

disturbed upland areas on the Site. Construction of Unit No. 3

will not impact any wetlands or environmentally sensitive areas

on the Site.

20. No new electrical transmission lines or improvements

will need to be b uilt to accommodate the additional electrical

power generated by Unit No. 3. No new pipelines or other linear

facilities will need to be built for the Project.

Operation of Unit No. 3

21. The basic operation of the Facility will not change

when Unit N o. 3 becomes operational. Solid waste will be

processed at the Facility in the same way it is currently

processed.

22. The Facility has been in continuous operation since

1994, and has an excellent record for compliance with all

applicable regulations, i ncluding regulations concerning noise,

dust, and odors. All of the activities involving solid waste or

ash occur inside enclosed buildings. The refuse pit is

maintained under negative air pressure, thus ensuring that dust

and odors are controlled within the building. Because the

operations at the Facility will remain the same after Unit No. 3

becomes operational, no problems are anticipated due to noise,

dust or odors.

23. The Facility's basic water supply and management system

will remain the same a fter Unit No. 3 becomes operational.

Treated wastewater from the City of Ft. Myers' wastewater

treatment plan (WWTP) will be used to satisfy the Facility's need

for cooling water. Potable water will be provided to the

Facility from the City's water suppl y plant. On - site wells will

be available for emergency water supply purposes; however, the

wells have not been regularly used as a source of back - up cooling

water since the Facility became operational.

24. The County's water supply plan maximizes the use of

reclaimed water and minimizes the use of groundwater. To the

extent feasible, the Project uses all of the reclaimed water that

is available before it relies on groundwater. The Facility also

recycles and reuses water to the greatest extent practic able.

25. Unit No. 3 will not discharge any industrial or

domestic wastewater to any surface water or groundwater. Most of

the wastewater from the cooling tower will be recycled and reused

in the Facility. Any excess wastewater will be discharged to the

City of Fort Myers' WWTP.

26. Stormwater runoff from the Project will be collected

and treated in the existing system of swales and detention/

retention ponds on the Site.

Ultimate Site Capacity

27. The construction of Unit No. 3 will not expand the

Facility beyond the boundaries of the Site certified by the

Siting Board in 1992. The operation of Unit No. 3, together with

the operation of Units No. 1 and No. 2, will not increase the

electrical generating capacity of the Site beyond the 60 MW

cert ified by the Siting Board in 1992.

Air Quality Regulations

28. The County must comply with federal and state New

Source Performance Standards (NSPS) and Best Available Control

Technology (BACT) requirements, both of which impose strict

limits on the Fa cility's airborne emissions. The County also

must comply with Ambient Air Quality Standards (AAQS) and

Prevention of Significant Deterioration (PSD) standards, which

establish criteria for the protection of ambient air quality.

29. The addition of Unit No. 3 must undergo PSD review

because the Project is a new source of air pollution that will

emit some air pollutants at rates exceeding the threshold levels

established under the PSD program. PSD review for the Project is

required for airborne emissions of particulate matter less than

10 microns in diameter (PM 10 ), MWC metals, MWC organic compounds,

MWC acid gasses, sulfur dioxide (SO 2 ), nitrogen oxides (Nox),

carbon monoxide, mercury, fluorides, and sulfuric acid mist

(SAM).

Best Available Control Tec hnology

30. A BACT determination is required for each pollutant for

which PSD review is required. BACT is a pollutant - specific

emission limit that provides the maximum degree of emission

reduction, after taking into account the energy, environmental,

and economic impacts and other costs. As part of the BACT

determination, all available and feasible pollution control

technologies being used worldwide are evaluated.

31. As part of its BACT analyses, DEP determined that a

fabric filter baghouse will cont rol the Facility's emissions of

particulate matter, a scrubber will control acid gases, a

selective non - catalytic reduction system (SNCR) will control NOx,

an activated carbon injection system (ACI) will control mercury

emissions, and proper facility desig n and operating methods will

control other pollutants. These air pollution control

technologies are currently used in Units No. 1 and No. 2, and

they have performed extremely well. Units No. 1 and No. 2 are

among the best operated and controlled MWC unit s currently

operating in the United States. Unit No. 3 will have better,

more modern, and more sophisticated air pollution control systems

than Units No. 1 and No. 2.

32. In its PSD analysis for the Project, DEP determined the

emission limits for the P roject that represent BACT. All of the

BACT emission limits determined by DEP for Unit No. 3 are as low

as the limits established by the United States Environmental

Protection Agency (EPA) in the NSPS (40 CFR 60, Subpart Eb) for

new MWC units, based on th e use of Maximum Achievable Control

Technology (MACT). Indeed, DEP's BACT emission limits for Unit

No. 3 are lower than EPA's MACT emissions limits for: (a)

particulate matter; (b) sulfur dioxide; (c) carbon monoxide; (d)

nitrogen oxides; and (e) mercury . The BACT emission limits, as

determined by DEP, are included in the proposed Conditions of

Certification for Unit No. 3.

33. The Facility's proposed air pollution control systems

are proven technologies that can achieve the proposed BACT

emission lim its. The Facility will use an array of continuous

emissions monitors to help ensure that the Facility is

continuously in compliance with the BACT emission limits.

Protection of Ambient Air Quality

34. The EPA has adopted "primary" and "secondary" Natio nal

Ambient Air Quality Standards (NAAQS). The primary NAAQS were

promulgated to protect the health of the general public,

including the most susceptible groups ( e.g. , children, the

elderly, and those with respiratory ailments), with an adequate

margin of safety. The secondary NAAQS were promulgated to

protect the public welfare, including vegetation, soils,

visibility, and other factors, from any known or anticipated

adverse effects associated with the presence of pollutants in the

ambient air. Florida has adopted EPA's primary and secondary

NAAQS, and has adopted some Florida AAQS (FAAQS) that are more

stringent than EPA's NAAQS.

35. Lee County and DEP analyzed the Project's potential

impacts on ambient air quality, using conservative assumptions

tha t were intended to over - estimate the Project's impacts by a

wide margin. These analyses demonstrate that the maximum impacts

from Unit No. 3 will be less than one percent of the amount

allowed by the ambient air quality standards. The maximum impact

from the Facility ( i.e. , all three units) will be less than or

equal to 1.2 percent of the amount allowed by the FAAQS and

NAAQS. Unit No. 3 and the Facility will not cause or contribute

to any violations of the FAAQS or NAAQS.

36. The maximum impacts of Uni t No. 3 and the Facility,

when operating under worst case conditions, will be less than the

regulatory levels that are deemed "significant" ( i.e. , less than

the numerical thresholds set by EPA as "significant impact

levels"). The Facility's impacts on amb ient air quality will be

immeasurably small and will be indistinguishable from ambient

background conditions.

37. Non - criteria pollutants are substances for which there

are no AAQS. The Department's Air Toxics Group has established

non - enforceable guidel ines known as ambient reference

concentrations (ARCs) (also known as "No Threat Levels") for the

non - criteria pollutants. DEP believes there is no health or

environmental threat associated with ambient air impacts less

than the ARCs. In this case, the ma ximum impacts of the Facility

(3 MWC units) will be less than 50 percent of any of DEP's ARCs.

For most parameters, the Facility's maximum impacts are less than

10 percent of the applicable ARCs.

Other PSD Analyses

38. The PSD program provides protection for those areas

that have good air quality. Different areas of Florida have been

designated as PSD "Class I" or "Class II" areas, depending upon

the level of protection that is to be provided under the PSD

program. In this case, the Project is located in a PSD Class II

area. The nearest PSD Class I area is the Everglades National

Park (Everglades), which is approximately 90 kilometers (km)

south - southeast of the Site.

39. The analyses performed by Lee County and DEP

demonstrate that the Project's impac ts on the ambient air quality

in the vicinity of the Site will be insignificant. The analyses

performed by Lee County and DEP also demonstrate that the

Project's impacts on the ambient air quality in the PSD Class I

area at the Everglades will be insignif icant. The Project will

not significantly affect visibility in the Class I area, regional

haze, or other air quality - related values.

Compliance With Air Standards

40. Lee County has provided reasonable assurance that the

Project will comply with all o f the applicable state and federal

air quality standards and requirements. Among other things, Lee

County has provided reasonable assurance that the airborne

emissions from the Project, alone and when operating with the two

existing MWC units at the Facil ity, will not: (a) cause or

contribute to the violation of any state or federal ambient air

quality standard; (b) cause or contribute to a violation of any

PSD increment for any PSD Class I or Class II area; (c) cause any

adverse impacts on human health o r the environment; (d) exceed

any ARC guideline established by DEP for non - criteria pollutants;

or (e) cause any adverse impacts to soils, vegetation or

wildlife. Lee County also has provided reasonable assurance that

Unit No. 3 and the Facility will be a ble to comply with the

Conditions of Certification involving air issues.

Human Health and Ecological Risk Assessments

41. As indicated above, the County has performed extensive

analyses of the Facility's emissions and impacts to demonstrate

compliance w ith the requirements of state and federal air quality

regulations. In addition, the County has taken other measures to

address public concerns about the potential impacts associated

with the Facility's airborne emissions.

42. In 1992, the County's exp ert consultants conducted a

human health and ecological risk assessment, which evaluated the

potential impacts associated with the airborne emissions of

mercury and dioxin from the County's Facility. The assessment

demonstrated that the operation of the F acility would not

adversely affect humans or threatened or endangered species.

43. At the request of the United States Fish and Wildlife

Service, the County conducted a supplementary risk assessment in

1992, to more thoroughly evaluate the potential impac t of the

Facility's mercury emissions on the Florida panther. Among other

things, the supplementary assessment evaluated the panther's

exposure to mercury through a complex food chain. The County's

supplementary assessment confirmed that the Facility wou ld not

cause adverse impacts to the panther.

44. The County also initiated a biomonitoring program,

which was designed in conjunction with the U.S. Fish and Wildlife

Service to identify background concentrations and trends for

mercury in key indicator spe cies within the local aquatic

environment ( i.e. , largemouth bass, oysters, and mosquitofish).

The County's biomonitoring program was started in 1993, and

continued after the County's Facility commenced operations in

1994. The data collected in the biomon itoring program indicate

that the mercury concentrations in these key species have not

increased as a result of the operation of the Facility.

45. In 2002, the County's consultants completed a new,

large - scale, evaluation of the human health and ecolog ical risks

associated with the Facility's airborne emissions. The County's

2002 risk assessment evaluated the cumulative impacts of the

entire Facility, with all three MWC units in operation.

46. The County's 2002 risk assessment was conducted in

compl iance with current EPA guidance. The risk assessment

considered hypothetical human receptors ( e.g. , infants, children,

and adults) that were engaged in different types of behavior

( e.g. , a typical resident; a beef farmer; a subsistence

fisherman) and were exposed through multiple pathways ( e.g. ,

inhalation; ingestion of soil; ingestion of local produce, beef

and/or fish) to both acute short - term and chronic long - term

impacts from the Facility. The risk assessment was designed to

overestimate the potential impacts of the Project, and thus be

protective of human health and the environment. The risk

assessment relied upon the latest EPA data for mercury, dioxin,

and the other chemicals of concern, as set forth in EPA's 1997

Mercury Report to Congress, EPA's 2000 Dioxin Reassessment, and

other relevant documents.

47. The County's 2002 risk assessment demonstrates that the

Facility's airborne emissions will not measurably increase the

typical concentrations of chemicals in the environment. For

example, even a t the point of maximum impact, the maximum

environmental mercury and dioxin concentrations associated with

the operation of the Facility will be far below the levels that

are typically found in the environment and they will be

immeasurably small. The Coun ty's 2002 risk assessment also

demonstrates that the potential risks associated with the

Facility's emissions will not exceed, and in most cases will be

much less than, the risks that are deemed acceptable by the EPA

and DEP for the protection of human hea lth and the environment.

48. The County's findings are consistent with the findings

in environmental monitoring studies and risk assessments that

have been performed for other modern waste - to - energy (WTE)

facilities in the United States. Indeed, the en vironmental

monitoring studies conducted at similar WTE facilities have shown

that risk assessments, like the ones performed for Lee County,

overestimate the actual impacts.

49. In light of the evidence presented by the County in

this case, the Facility s hould not have any measurable effect on

human health or the environment, even when all three MWC units

are operational.

Other Potential Environmental Impacts

50. The County's 2002 risk assessment primarily focused on

the Facility's maximum impacts under w orst case operating

conditions. The maximum concentrations in the ambient air and

the maximum deposition rates resulting from the Facility's

mercury emissions will occur within 2.5 km (approximately 1.5

miles) of the Site. The ambient air concentrations and

deposition rates at all other locations beyond the Site will be

even lower. EPA studies of similar facilities have shown that

mercury deposition rates decrease at least 100 times ( i.e. , by a

factor of 100) within the first 10 km.

51. In this case, the nearest portions of the Everglades

are approximately 90 km from the Site. Moreover, the generally

prevailing winds at the Site blow toward the Gulf of Mexico, not

toward the Everglades. Approximately 90 percent of the time, the

wind does not blow fro m the Site toward the Everglades. For

these and other reasons, the Facility's mercury emissions will

have an insignificant impact on the Everglades.

52. The Facility's emissions of nitrogen oxides ( i.e. , NOx)

will not cause or contribute to violation s of any water quality

standards in any surface waterbody.

Environmental Benefits of the Project

53. The addition of Unit No. 3 will provide significant

environmental benefits to Lee County and Hendry County. The

solid waste processed by Unit No. 3 will reduce the volume of

processible solid waste by approximately 90 percent. By reducing

the volume of processible waste, the Facility will significantly

extend the useful life of the Lee County/Hendry County regional

landfill, effectively postponing the ne ed to build a new landfill

in Lee County or Hendry County.

54. The Project will also provide environmental benefits to

the State of Florida. For example, the Facility will produce

approximately 1.88 billion kilowatt - hours of electricity from

discarded ma terials during the next 20 years. In this manner,

Unit No. 3 will reduce the need to use fossil fuels to generate

electricity at traditional power plants. Unit No. 3 will

eliminate the need to use approximately 5.54 million barrels of

oil, and thus will save approximately $150 million in oil

purchases over the next 20 years. In addition, the County will

recover ferrous and non - ferrous metals from the Facility's ash,

thus recycling resources that otherwise would be buried with the

County's solid waste in a landfill.

Socioeconomic Benefits of the Project

55. The local economy and labor market will benefit from

approximately $70 million that Lee County will spend to construct

the Project. A significant amount of construction supplies, such

as concrete, structural steel, glass, piping, fittings, and

landscape materials, are anticipated to be purchased from local

businesses.

56. The Project will provide jobs for over 125 construction

workers during the peak of construction activities. The addition

of Un it No. 3 will also provide approximately nine new permanent

jobs at the Facility, with an increase in the Facility's annual

payroll of approximately $400,000.

WTE Criteria in Section 403.7061

57. Section 403.7061, Florida Statutes, establishes several

cr iteria that must be satisfied before an existing waste - to -

energy facility may be expanded. Lee County has provided

reasonable assurance that the Project will satisfy all of the

standards and criteria in Section 403.7061, Florida Statutes.

Among other thi ngs, the County has demonstrated that Lee County's

waste reduction rate will exceed 30 percent when Unit No. 3

begins operation.

Compliance with Environmental Standards

58. Lee County has provided reasonable assurance that the

Project will comply with all of the nonprocedural land use and

environmental statutes, rules, policies, and requirements that

apply to the Project, including but not limited to those

requirements governing the Project's impacts on air quality,

water consumption, stormwater, and wetla nds. The location,

construction, and operation of the Project will have minimal

adverse effects on human health, the environment, the ecology of

the State's lands and wildlife, and the ecology of the State's

waters and aquatic life. The Project will not unduly conflict

with any of the goals or other provisions of any applicable

local, regional or state comprehensive plan. The Conditions of

Certification establish operational safeguards for the Project

that are technically sufficient for the protection of the public

health and welfare, with a wide margin of safety.

Agency Positions and Conditions of Certification

59. On December 11, 2001, the PSC issued an order

concluding that the Project was exempt from the PSC's

"determination of need" process, pursu ant to Section 377.709(6),

Florida Statutes.

60. DEP, DOT, DCA, and SFWMD all recommend certification of

the Project, subject to the Conditions of Certification. The

SWFRPC determined that the Project is "Regionally Significant and

Consistent with the Regional Strategy Plan," but did not

recommend any conditions of certification for the Project. Lee

County has accepted, and has provided reasonable assurance that

it will comply with, the Conditions of Certification.

CONCLUSIONS OF LAW

61. The Divis ion of Administrative Hearings has

jurisdiction over the parties to, and subject matter of, this

proceeding pursuant to Sections 120.569, 120.57(1), 403.508, and

403.517, Florida Statutes.

62. Lee County and DEP provided timely public notices

concerning t he Project and the Certification Hearing, which

satisfied the notice requirements contained in the PPSA, Chapter

120, Florida Statutes, and Chapter 62 - 17, Florida Administrative

Code. All necessary and required governmental agencies

participated in the ce rtification process, and the required

reports and studies were issued by DEP and the other agencies, in

accordance with their statutory duties.

63. Pursuant to Section 377.709, Florida Statutes, the

Project is a "solid waste facility" and is exempt from the

requirement that the PSC issue a determination of need under

Section 403.519, Florida Statutes.

64. In its order dated May 16, 1991, the Governor and

Cabinet of the State of Florida, sitting as the Power Plant

Siting Board, determined that the Lee County Solid Waste Energy

Recovery Facility is consistent and in compliance with existing

land use plans and zoning ordinances. Pursuant to Section

403.517(3), Florida Statutes, further consideration of

consistency with local land use plans and zoning ord inances is

not required for this Supplemental Application.

65. The issue for determination in this case is whether a

supplemental site certification should be granted to Lee County

to construct and operate Unit No. 3 at Lee County's Solid Waste

Energy R ecovery Facility. Under Section 403.502, Florida

Statutes, the following criteria are to be considered when

determining whether an electrical power plant should be certified

under the PPSA:

the state shall ensure through available and reasonable

methods t hat the location and operation of electrical

power plants will produce minimal adverse effects on

human health, the environment, the ecology of the land

and its wildlife, and the ecology of state waters and

their aquatic life and will not unduly conflict w ith

the goals established by the applicable local

comprehensive plans. It is the intent to seek courses

of action that will fully balance the increasing

demands for electrical power plant location and

operation with the broad interests of the public. Suc h

action will be based on these premises:

(1) To assure the citizens of Florida that operation

safeguards are technically sufficient for their welfare

and protection.

(2) To effect a reasonable balance between the need for

the facility and the environ mental impact resulting

from construction and operation of the facility,

including air and water quality, fish and wildlife, and

the water resources and other natural resources of the

state.

(3) To meet the need for electrical energy as

established purs uant to s. 403.519.

The competent, substantial, and uncontested evidence presented by

Lee County and DEP at the Certification Hearing demonstrates that

the Project has met all of the criteria required to obtain

certification under the PPSA. Lee County ha s provided reasonable

assurance that the Project, if constructed and operated in

accordance with the Conditions of Certification, will comply with

all of the non - procedural requirements that are applicable to the

Project. Lee County has also provided reas onable assurance that

the Project will satisfy all of the criteria and standards in

Section 403.7061, Florida Statutes. Certification of the Project

will serve and protect the broad interests of the public, and the

benefits of the Project will outweigh th e negative impacts. Lee

County has accepted, and demonstrated that it will comply with,

the Conditions of Certification.

66. In the PPSA review process and the Conditions of

Certification for the Project, the State of Florida has ensured

through availabl e and reasonable methods that the location,

construction and operation of the Project will produce minimal

adverse effects on human health, the environment, the ecology of

the land and its wildlife, and the ecology of State waters and

their aquatic life. If the Project is built and operated in

accordance with the Conditions of Certification, the Project will

not unduly conflict with the goals in any applicable local,

regional or state comprehensive plan. The Conditions of

Certification establish safeguard s that are technically

sufficient for the protection and welfare of Florida's citizens,

and the Conditions of Certification ensure that the potential

adverse effects of the Project will be minimized.

67. Certification of the Project is consistent with t he

legislative intent to balance the demand for electrical power

with the broad interests of the public. Certification of the

Project reasonably balances the need for the Project with the

environmental and other impacts resulting from the construction

and operation of the Project.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is RECOMMENDED that the Governor and Cabinet, sitting as

the Siting Board, enter a Final Order granting a supplemental

site certification for the construction and operation of Unit

No. 3 at the Lee County Solid Waste Energy Recovery Facility, in

accordance with the Conditions of Certification contained in

Appendix 1 to DEP Exhibit 2.

DONE AND ENTERED this 19th day of August, 2003, in

Tallahassee, Le on County, Florida.

S

_________________________________

RICHARD A. HIXSON

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 19th day of August, 2003.

ENDNOTE

1 / In 1992, the Siting Board adopted Conditions of

Certification for U nits No. 1 and No. 2. The Department has

modified and supplemented the 1992 Conditions of Certification

to address Unit No. 3. Changes to the 1992 Conditions of

Certification which address the addition of Unit No. 3 are

indicated by underlining (addition s) and striking through

(deletions). In addition, changes between the April 11, 2003,

and the final July 11, 2003 versions of the Conditions of

Certification are indicated by shading.

COPIES FURNISHED :

David S. Dee, Esquire

Landers & Parsons

310 West C ollege Avenue

Post Office Box 271

Tallahassee, Florida 32302 - 0271

Scott A. Goorland, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

The Douglas Building, Mail Station 35

Tallahassee, Florida 32399 - 3000

Craig D. Varn, Esquire

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Sheauching Yu, Esquire

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 0458

James V. Antista, General Counsel

Florida Fish and Wildlife Conservation Commission

Bryant Building, Room 108

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

Susan Roeder Martin, Esquire

South Florida Water Management District

3301 Gun Club Road

West Palm Beach , Florida 33406 - 3007

Harold McLean, Esquire

Florida Public Service Commission

2540 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 0850

James Yaeger, Lee County Attorney

David Owen, Chief Assistant County Attorney

Post Office Box 398

Fort Myers, Flori da 33902 - 0398

David Y. Burr

Southwest Florida Regional Planning Council

4980 Bayline Drive

North Fort Myers, Florida 33917 - 3910

Kathy C. Carter, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahasse e, Florida 32399 - 3000

Teri L. Donaldson, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit writ ten exceptions within

15 days from the date of this Recommended Order. Any

exceptions to this Recommended Order should be filed with the

Agency that will issue the Final Order in this case.