05-001492EPP In Re: Florida Municipal Power Agency Treasure Coast Energy Center Power Plant Siting Application No. Pa 05-48 vs. * Status: Closed Recommended Order on Thursday, March 30, 2006.

Summary: Application for certification to place site a new power plant in St. Lucie County met all siting requirements.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: FLORIDA MUNICIPAL POWER )

AGENCY TREASURE COAST ENERGY )

CENTER POWER PLANT SITING ) Case No. 05 - 1492EPP

APPLICATION NO. PA05 - 48. )

____________________ ____________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this

matter on February 8, 2006, in Fort Pierce, Florida, before the

Division of Administrative Hearings, by its assigned

Administrative Law Judge, Donald R. Alexander.

APPEARANCES:

For Florida Douglas S. Roberts, Esquire

Municipal Power Hopping Green & Sams, P.A.

Agency: Post Office Box 6526

Tallahassee, Florida 32314 - 6526

For Department Scott A. Goorland, Esquire

of Environmental Dep artment of Environmental Protection

Protection: 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

For St. Lucie Heather Young, Esquire

County: 2300 Virginia Avenue

Third Floor Annex

Fort Pierce, Florida 34982 - 5632

STATEMENT OF THE ISSUE

The issue to be resolved in this portion of the power plant

site certification proceeding is whether the site for the

proposed Treasure Coast Energy Center (TCEC) is consistent and

in compliance with the applicable land use plans and zoning

ordinances of St. Lucie County (County), Florida, pursuant to

Section 403.508(2), Florida Statutes (2005) 1 .

PRELIMINARY STATEMENT

This proceeding was conducted pur suant to the Florida

Electrical Power Plant Siting Act (PPSA), codified in Part II of

Chapter 403, Florida Statutes, and Florida Administrative Code

Chapter 62 - 17 to consider Florida Municipal Power Agency's

(FMPA) application for power plant site certific ation of the

TCEC Project. On April 14, 2005, FMPA filed with the Department

of Environmental Protection (Department) an application for site

certification for the Project. By agreement of the parties,

this land use hearing was scheduled to be held on Fe bruary 8,

2006, as part of the final certification hearing also held on

the same date. However, separate Recommended Orders are being

rendered as to the land use and certification portions of the

hearing. This Recommended Order addresses the land use iss ues.

After appropriate notice by the Applicant and the

Department, the consolidated land use and certification hearing

was held on February 8, 2006, in Fort Pierce, Florida. The

hearing was conducted, in part, for the purpose of receiving

evidence as to whether the Project site was in compliance with

the local land use plans and zoning regulations of the County.

On February 6, 2006, FMPA and the County filed a

Stipulation addressing land use and zoning issues. The

Stipulation indicated that the County a nd FMPA agreed that the

site for the Project is consistent and in compliance with the

County's future land use map designations and zoning ordinances

and approvals.

At the hearing, FMPA presented four expert witnesses who

offered testimony in the follow ing areas: James Hay, Project

overview; Stanley A. Armbruster, design of plant and associated

facilities; J. Michael Soltys, Project site conditions; and

Dennis J. Murphy, land use planning. Also, it offered FMPA

Exhibits 1 through 15, which were receive d in evidence.

The Department presented Hamilton S. Oven, Jr., who is the

Department Administrator for the Siting Coordination Office and

was accepted as an expert. Also, it offered Department Exhibits

1 and 2, which were received in evidence.

A sing le set of exhibits was tendered and used at the

hearing for both the land use and certification portions of the

hearing; however, as noted above, separate Recommended Orders

are being rendered.

The County presented no witnesses and no exhibits. No

other party participated in this hearing.

Opportunity was afforded for members of the general public

to appear. One member of the public, Elie J. Boudreaux, III,

who is Director of the Fort Pierce Utilities Authority, offered

sworn oral comments in support of the Project. No party or

member of the public offered testimony or evidence contrary to

the conclusion that the site for the Project is consistent and

in compliance with local land use plans and zoning ordinances of

the County.

Notice of the consolidated land use and site certification

hearing was published by FMPA in the Fort Pierce Tribune , a

local newspaper of general circulation, on December 22, 2005.

Notice of the land use and certification hearing was also

published by the Department on its Officia l Notices website on

December 16, 2005, pursuant to Section 120.551, Florida

Statutes.

The Transcript of the hearing was filed on March 1, 2006.

On March 20, 2006, a Joint Proposed Recommended Order was filed

by FMPA, the Department, and the County, and it has been

substantially used in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence the following findings of

fact are determined:

1. FMPA is a joint action agency created under Florida law

and comprises twenty - n ine municipal electric utilities across

Florida. It was created to allow its member utilities to

cooperate with each other on the basis of mutual advantage

through the financing, construction, ownership, and operation of

electrical generating resources. FMPA is governed by a Board of

Directors consisting of one representative from each of the

twenty - nine member cities. Within FMPA, the All - Requirements

Project (ARP) was formed in 1986 and currently has fifteen

municipal members serving approximately 280, 000 customers.

Under the ARP, both generating and non - generating members are

required to purchase all of their capacity and electrical energy

needs from the ARP. Additionally, ARP members with generating

plants commit their capacity to FMPA. FMPA will o wn TCEC and

act as the project manager for construction. The Fort Pierce

Utilities Authority will operate the TCEC Unit 1 for FMPA.

2. FMPA filed with the Department a Site Certification

Application (Application) for the TCEC on April 14, 2005. The

Ap plication seeks a certification under the PPSA for the

construction and operation of a 300 - megawatt natural gas - fired

electrical generation facility, including accessory and

ancillary facilities to be located in the County. The

Application also seeks an u ltimate site capacity determination

under the PPSA for 1,200 megawatts of electrical generating

capacity on the proposed site.

3. TSEC is located in an unincorporated portion of the

County. The site is located five miles southwest of Fort Pierce

and ei ght miles northwest of Port St. Lucie and comprises

approximately sixty - nine acres.

4. The site is a greenfield site currently used as active

pasture for cattle and horses. It is located in the Midway

Industrial Park near Fort Pierce. The site is borde red on the

north and west by a rail line along Glades Cut Off Road, and to

the south by an existing electrical transmission line right - of -

way. Land to the east is the undeveloped industrial park. A

wastewater treatment plant is proposed for a land parcel to the

north of the site. Lands surrounding the site are zoned for

industrial uses.

5. The TCEC will consist initially of one nominal 300 -

megawatt combined cycle electrical generating unit and accessory

and ancillary facilities. These additional faci lities include

control and maintenance buildings, water treatment and storage

facilities, ultra low - sulfur light oil storage tanks, cooling

tower, and electrical switchyard. An additional 900 megawatts

of electrical generation facilities and accessory and ancillary

facilities may be constructed on the site in the future subject

to necessary approvals under the PPSA. The proposed units will

be fueled primarily with natural gas with ultra low - sulfur fuel

oil as a backup fuel.

6. The County has adopted it s Comprehensive Plan (Plan)

pursuant to the requirements of Chapter 163, Florida Statutes,

and Florida Administrative Code Chapter 9J - 5. That Plan has

been determined to be in compliance with the requirements of

Florida law. No portion of that Plan mater ial to the Project

and the site is subject to challenge in any proceeding.

7. The site has a future land use designation on the

Plan's Future Land Use Map (FLUM) of Transportation/Utilities.

Electrical generation facilities are an allowed use within tha t

future land use designation.

8. The site is zoned Utilities under the Zoning District

Use Regulations in the County's Land Development Code and is

shown in the Utilities Zoning District on the official Zoning

Map of the County. Electric generation pl ants are a Conditional

Use in the Utilities Zoning District.

9. Conditional Uses are defined in Section 2.00.00 of the

Land Development Code as a "use that is generally compatible

with the use characteristics of a zoning district, but that

requires indi vidual review of its location, design, potential

effect on nearby properties, and configuration in accordance

with Section 11.07.00 [of the Land Development Code] to

determine the appropriateness of the use on any particular site

in the district."

10. O n November 1, 2005, by County Resolution 05 - 388, the

St. Lucie County Board of County Commissioners (Commissioners)

granted a Conditional Use Permit and Major Site Plan Approval

for the site. That Resolution approved the use of the site for

electrical gen erating facilities. As part of its approval of

the Conditional Use Permit and Major Site Plan Approval, the

Commissioners determined that the site and its use for

electrical generating facilities were consistent with the

adopted Plan, including the Future Land Use Element (FLUE) and

accompanying FLUM.

11. During that same meeting, FMPA agreed to, and the

Commissioners approved, a Conditional Use Permit and Major Site

Plan Approval for only two of the originally proposed four

units, thereby reducing the Project from a 1200 - megawatt, four -

unit Project to a 600 - megawatt, two - unit Project for purposes of

the County's zoning approvals. FMPA also agreed to obtain

additional zoning reviews and approvals prior to the

construction of the third and fourth units proposed at the site.

By its zoning action, the Commissioners did not disapprove

additional future units.

12. Resolution 05 - 388 contains certain conditions related

to the Project and the site and a site plan for the use of the

site. These conditions relate to an updated landscape plan,

construction traffic mitigation plans, a limitation on the fuels

to be used at the site without further approval by the

Commissioners, and annual contributions by FMPA toward

environmental protection in the County.

13 . FMPA is able to design, construct, and operate the

Project in full compliance with the conditions contained in the

Conditional Use Permit and Major Site Plan Approval.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction of the parties and the subject matter of this

proceeding pursuant to Sections 120.569, 120.57 and 403.508(2),

Florida Statutes.

15. In accordance with Chapter 403, Florida Statutes, and

Florida Administrative Code Chapter 62 - 17, proper public notice

was acc orded all persons, entities, and parties entitled to such

notice. All necessary and required governmental agencies, as

well as members of the public, either participated in or had the

opportunity to participate in the land use hearing.

16. The applicab le land use plans and zoning ordinances

for the Project and its site are those adopted by the County.

For purposes of the land use hearing, under Section 403.508(2),

Florida Statutes, the applicable "land use plan" is the Plan's

FLUE and the accompanying FLUM. The applicable zoning

ordinances for the Project and its site are contained in the

Land Development Code and in the Conditional Use Permit issued

by the Commissioners.

17. Unrebutted evidence at the hearing demonstrates that

the Project and its sit e are consistent and in compliance with

the County's Plan and are consistent and in compliance with the

Land Development Code. Additional zoning reviews will be

necessary prior to the certification of generating capacity

above the initial 600 megawatts.

R ECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Siting Board enter a final order

determining that the Treasure Coast Energy Center Project and

its site, as described by the evidence presented at the hearing,

are consistent and in compliance with existing land use plans

and zoning ordinances and site - specific zoning approvals of the

County, pursuant to Section 403.508(2), Florida Statutes.

DONE AND ENTERED this 30th day of March, 2006, in

Tallaha ssee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

F ax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of March, 2006.

ENDNOTE

1/ All subsequent references are to the 2005 version of the

Florida Statutes.

COPIES FURNISHED:

Lea Crandall, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Douglas S. Roberts, Esquire

Hopping Green & Sams, P.A.

Post Office Box 6526

Tallahassee, Florida 32314 - 6526

Scott A. Goorland, Esq uire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Heather Young, Esquire

2300 Virginia Avenue

Third Floor Annex

Fort Pierce, Florida 34952 - 5632

Kelly A. Martinson, Esquire

Departmen t of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

James V. Antista, General Counsel

Florida Fish and Wildlife Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

Peter Cocotos, Esquire

South Florida Water Management District

Post Office Box 24680

West Palm Beach, Florida 33416 - 4690

Sheauching Yu, Esquire

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 0458

Martha Carter Brown, Esquire

Florida P ublic Service Commission

2450 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 0850

Roger Saberson, Esquire

Treasure Coast Regional Planning Council

70 Southeast Fourth Avenue

Delray Beach, Florida 33483 - 4514

Roger G. Orr, Esquire

City of Port St. Lucie

121 Southwest Port St. Lucie Boulevard

Port St. Lucie, Florida 34984 - 5042

Frank H. Fee, III, Esquire

Fee, Koblegard & DeRoss

401 South Indian River Drive

Fort Pierce, Florida 34950 - 1530

Gregory M. Munson, General Counsel

Department of Environmental P rotection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Heidi M. Hughes, General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

NOTICE OF RIGHT TO FILE EXCEPTIONS

All parties have the right to submit written exceptions within

15 days of the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will render a final order in this matter.