05-004347EPP In Re: Hillsborough County Resource Recovery Facility Expansion Power Plant Siting Application No. Pa 83-19a vs. * Status: Closed Recommended Order on Wednesday, August 2, 2006.

Summary: The expansion of the Resource Recovery Facility met the Electrical Power Plant siting and certification criteria.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: HILLSBOROUGH COUNTY )

RESOURCE RECOVERY FACILITY )

EXPANSION POWER PLANT SITING ) Case No. 05 - 4347EPP

APPLICATION NO. PA 83 - 19A )

)

LAND USE RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its Administrative Law Judge, J. Lawrence Johnston,

held a land use hearing in the above - styled case on July 12,

2006, in Hillsborough County, Florida.

APPEARANCES

For Petitioner Hill sborough County (the “County”):

David S. Dee, Esquire

Young van Assenderp, P.A.

225 South Adams Street, Suite 200

Tallahassee, Florida 32301 - 1720

For the Florida Department of Environmental Protection

(“Department” or “DEP”):

Scott A. Goorland, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard, M.S. 35

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

Pursuant to Section 403.508(2), Florida Statutes, the sole

issue for determina tion in this hearing is whether the proposed

site for the expansion of the Hillsborough County Resource

Recovery Facility “is consistent and in compliance with existing

land use plans and zoning ordinances.”

PRELIMINARY STATEMENT

Hillsborough County o wns the Hillsborough County Resource

Recovery Facility (“Facility”), an existing electrical power

plant that burns municipal solid waste (“MSW”) to generate

electricity. The Facility currently consists of three municipal

waste combustor (“MWC”) units. On November 21, 2005, the County

filed an application with DEP for certification to authorize the

construction and operation of an additional MWC unit at the

Facility (the “Project”).

The County’s application is subject to review under the

Florida Electri cal Power Plant Siting Act (“PPSA”), Sections

403.501 - .518, Florida Statutes. 1

The Department transmitted the County’s application to the

Division of Administrative Hearings (DOAH) for appropriate

proceedings under the PPSA. In compliance with Section

4 03.508(1), Florida Statutes, see pp 10 and 11 e.g. , the land

use hearing (the “Land Use Hearing”) in this case was scheduled

for July 12, 2006.

On June 30, 2006, a “Prehearing Stipulation for Land Use

and Certification Hearings” (“Prehearing Stipulation”) was filed

by the County, DEP, the Florida Department of Community Affairs

(“DCA”), the Florida Department of Transportation, the Florida

Public Service Commission (“PSC”), the Florida Fish and Wildlife

Conservation Commission, the Southwest Florida Water Management

District, and the Tampa Bay Regional Planning Council (“TBRPC”).

In the Prehearing Stipulation, all of the signatories either

agreed with, did not dispute, or took no position concerning the

County’s assertion that the site of the proposed Proj ect is

consistent and in compliance with existing land use plans and

zoning ordinances.

At the Land Use Hearing, the County called two witnesses,

Jason Gorrie (accepted as an expert concerning solid waste

management systems and resource recovery facilit ies) and Paula

Harvey (accepted as an expert concerning land use planning and

zoning issues). The County introduced Exhibits 1 – 8 (A, B, C

and D), 9, 10 (A and B), 11 - 50, and 52 - 60 into evidence, without

objection.

By order dated July 6, 2006, the Ad ministrative Law Judge

granted the County’s request to take official notice of various

documents. These documents were included with the County’s

exhibits and were introduced into evidence at the Land Use

Hearing.

No one contested the evidence presen ted by the County at

the Land Use Hearing. None of the signatories to the Prehearing

Stipulation participated at the Land Use Hearing, except the

County and DEP. No one from the public attended, testified or

proffered any exhibits at the Land Use Hearing .

The Transcript of the Land Use Hearing was filed with DOAH

on July 18, 2006, and the parties were allowed until July 21,

2006, to submit proposed recommended orders. The County and DEP

timely filed a Joint Proposed Recommended Order on July 19,

2006. No other party filed a proposed recommended order.

Based on all of the evidence of record, the following

findings of fact are determined:

FINDINGS OF FACT

The Applicant

1. The Applicant, Hillsborough County, is a political

subdivision of the State of Fl orida. The County owns the

existing Facility and will own the proposed Project. The

Facility was designed, built, and is operated by a private

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

anticipated that a private company will design , construct, and

operate the Project for the County.

The Site

2. The Facility is located next to Falkenburg Road in an

unincorporated area in the County. The Facility is southeast of

the City of Tampa, west of Interstate 75 (“I - 75"), and north of

th e Crosstown Expressway and State Road 60.

3. The Facility was built on a 50.4 - acre site (“Site”),

which is in the southern portion of a 353 - acre tract of land

owned by the County.

The Surrounding Area

4. The Facility is surrounded by a variety of

institutional and industrial land uses. The Facility is

bounded: on the south by the County’s Falkenburg Road

Wastewater Treatment Plant and a railroad track that is owned by

the CSX railroad company; on the west by a 230 kilovolt

transmission line corri dor and easement owned by Tampa Electric

Company; on the north by vacant improved pasture land, the

Falkenburg Road Jail, the Hillsborough County Department of

Animal Services, and the Hillsborough County Sheriff’s Office

(District 2); and on the east by F alkenburg Road and vacant

land.

5. The nearest residential area is approximately one mile

away from the Facility. It is located on the opposite (east)

side of I - 75.

The Existing Facility

6. The Facility currently consists of three MWC units,

which have been in commercial operation since 1987. Each MWC

unit has a nominal capacity of 400 tons per day (“tpd”) of

municipal solid waste (440 tpd when burning a reference fuel

with a higher heating value of 4500 British thermal units

(“Btu”) per pound). T he three MWC units are located inside a

fully enclosed building, which also contains the air pollution

control systems for the MWC units, the “tipping floor” (i.e.,

refuse unloading area), the refuse storage pit, and a turbine

generator. In addition, the Facility includes an ash management

building, cooling tower, stack, stormwater management system,

water treatment system, transformer yard, electrical

transmission lines, and ancillary equipment and facilities.

7. Municipal solid waste (e.g., household and commercial

garbage) is delivered to the Site in trucks, which drive inside

the refuse storage building to the tipping floor, where the

trucks dump the MSW into the refuse storage pit. Two overhead

cranes mix the waste in the refuse storage pit and the n load the

waste into the charging hoppers that feed the three MWC units.

The combustion of the municipal solid waste produces heat, which

is used to produce steam. The steam is used in a turbine

generator to produce approximately 29.5 megawatts (“MW”) o f

electricity.

The Project

8. The Project involves the construction and operation of

a fourth MWC unit at the Facility. The new unit will be

substantially the same as the three existing MWC units, but

larger. The new unit will have the capacity to pr ocess 600 tpd

(nominal) of municipal solid waste (660 tpd @ 5000 Btu/lb). A

new turbine generator will be installed, which will increase the

Facility’s net electrical generating capacity approximately 18

MW to a total of approximately 47 MW. The cooling tower will be

expanded, the refuse and ash management buildings will be

expanded, two lime silos and a carbon silo will be installed, a

new settling basin will be installed, and other related

improvements will be made.

9. The construction and operation of the Project will

occur in disturbed upland areas that are adjacent to the

Facility and already used for industrial operations. Only about

0.3 acres of open space will be used for a building or similar

purpose.

10. The Facility will process more solid waste and

generate more electricity after the expansion Project is

completed, but the basic operation of the Facility will not

change.

Historical Land Use Designations

11. In 1984, the County revised its land use plans and

zoning designations fo r the Site to authorize the construction

and operation of the Facility. As revised, the comprehensive

plan and zoning authorized the immediate construction of three

MWC units and the subsequent expansion of the Facility with a

fourth MWC unit, when needed . The County’s plans for the

Facility were reviewed under the PPSA and in 1984 the Siting

Board concluded that the Site was consistent and in compliance

with the existing land use plans and zoning ordinances. At all

times since 1984, the County has ensur ed that the zoning and

comprehensive plan designations for the Site are consistent with

the County’s long - term plan to construct the Project.

Current Land Use Designations and Zoning Ordinances

12. The Site currently is designated Public/Quasi - Public

(“ P - QP”) under the County’s comprehensive land use plan.

Typical land uses allowed in Public/Quasi - Public areas include:

major existing and programmed government -

owned facilities, and other public uses.

This category also accommodates quasi - public

uses s uch as private establishments

generally available to the public for use;

for example, churches, hospitals, schools,

clubs, major (regional, district or

community) recreation services and related

uses, tourist attractions, and utility and

transportation fac ilities.

The Project is consistent with this land use category because

the Facility is a major government - owned facility and the

Project is part of a long - standing plan (i.e., the Project is

“programmed”) to expand the Facility, when needed.

13. The Site currently is zoned Planned Development (“PD”)

by Hillsborough County. Under the County’s zoning code, all

uses are potentially allowed in a PD district; however, the

specific uses must be approved by the Board of County

Commissioners. In 1984, the Board of County Commissioners

specifically approved the use of the Site for the construction

and operation of the Facility, including the fourth MWC unit.

In 2005 the Board of County Commissioners decided to install

Unit No. 4, consistent with the County’ s longstanding plan, and

specifically authorized the Project to go forward. Accordingly,

the Project is consistent and in compliance with the County’s PD

zoning designation.

Consistency With Land Use Plans and Zoning Ordinances

14. In the Prehearing Stipulation, the Florida Department

of Community Affairs, DEP, the Florida Department of

Transportation, the Florida Fish and Wildlife Conservation

Commission and the Southwest Florida Water Management District

either agreed with or did not dispute the Cou nty’s assertion

that the Site is consistent and in compliance with existing land

use plans and zoning ordinances. The Florida Public Service

Commission and the TBRPC took no position concerning the

County’s assertion that the Site is consistent and in com pliance

with existing land use plans and zoning ordinances.

15. The expert testimony and other evidence presented in

the Land Use Hearing demonstrate that the Site and Project are

consistent and in compliance with Hillsborough County’s

Comprehensive Pl an and zoning ordinances. The Project also is

compatible with adjacent and surrounding land uses. There is no

evidence to suggest the Project is inconsistent with any

applicable local, regional, or state plan.

Public Notice of the Land Use Hearing

16 . On December 19, 2005, the County published a “Notice

of Filing of Application for Electrical Power Plant Site

Certification” in the Tampa Tribune , which is a newspaper of

general circulation published in Hillsborough County, Florida.

17. On May 25, 2006, the County published notice of the

Land Use Hearing in the Tampa Tribune .

18. On December 23 and December 30, 2005, the Department

electronically published “Notice of Filing of Application for

Power Plant Certification.”

19. On May 26, 2006, the Department electronically

published notice of the Land Use Hearing.

20. The public notices for the Land Use Hearing satisfy

the informational and other requirements set forth in Section

403.5115, Florida Statutes, and Florida Administrative Code

Ru les 62 - 17.280 and 62 - 17.281(4).

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

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

Florida Statutes.

22. The County and DEP published timely public notice of

the Land Use Hearing, in compliance with the requirements

contained in the PPSA and Florida Administrative Code Rule

Chapter 62 - 17.

23. Pursuant to Section 403.508(2), Florida Statutes, the

sole issue fo r determination in this proceeding is whether the

proposed Site of the County’s Project is consistent and in

compliance with existing land use plans and zoning ordinances.

24. The competent, substantial, and unrebutted evidence

presented by the County at the Land Use Hearing demonstrates

that the Site and the Project are consistent and in compliance

with the applicable provisions of the existing land use plans

and zoning ordinances.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusion s of

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

the Siting Board, enter a Final Land Use Order in this case

finding that the Site and the proposed expansion of Hillsborough

County’s resource recovery facility are consistent and in

co mpliance with the existing land use plans and zoning

ordinances.

DONE AND ENTERED this 2nd day of August, 2006, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administra tive 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 2nd day of Augus t, 2006.

ENDNOTE

1 / All of the citations herein refer to the 2005 Florida

Statutes. The PPSA was amended during the 2006 Session of the

Florida Legislature, but the 2006 amendments do not apply to the

County’s application. The 2006 PPSA amendments provide that any

application filed under the PPSA “shall be processed under the

provisions of the law applicable at the time the application was

filed,” subject to certain exceptions that are not relevant in

this case . See Ch. 2006 - 230, Laws of Fla. (Fla. SB 888, § 42).

Since the County’s PPSA application was filed in 2005, the 2005

version of the PPSA governs this case.

COPIES FURNISHED :

Lea Crandall, Agency Clerk

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Greg Munson, General Counsel

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 3239 9 - 3000

David Jordan, Interim General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Suite 325

Tallahassee, Florida 32399 - 7018

David S. Dee, Esquire

Young van Assenderp, P.A.

225 South Adams Street, Suite 200

Tallahassee, Florida 323 01 - 1720

Scott A. Goorland, Esquire

Senior Assistant General Counsel

Department of Environmental Protection

3900 Commonwealth Blvd., MS 35

Tallahassee, Florida 32399 - 3000

James V. Antista, Esquire

General Counsel

Florida Fish & Wildlife Conservation Comm ission

620 South Meridian Street

Tallahassee, Florida 32399 - 1600

Roger Tucker, Esquire

Tampa Bay Regional Planning Council

400 Gateway Centre Blvd., Suite 100

Pinellas Park, Florida 33782

Mary Anne Helton, Esquire

Florida Public Service Commission

Gera ld Gunter Building

2450 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 0850

Kelly A. Martinson, Esquire

Assistant General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

Sheauching Yu, Esquire

Ass istant General Counsel

Department of Transportation

605 Suwannee Street, MS 58

Tallahassee, Florida 32399 - 0450

Martha A. Moore, Esquire

Senior Attorney

Southwest Florida Water Management District

2379 Broad Street

Brooksville, Florida 34604 - 6899

Hank E nnis, Esquire

Sr. Assistant County Attorney

Hillsborough County

County Center, 27th Floor

P.O. Box 1110

Tampa, Florida 33602 - 1110

Steven Palmer

Siting Coordination Office

Department of Environmental Protection

2600 Blair Stone Road

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written 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 th e Final Order in this case.