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General Information
Note: What follows is a plain
language description of the Power Plant Siting process.
It should not be considered a substitute for the applicable
Statutes or Rules. Should differences exist between this
description and a Statute or Rule, the Statute or Rule is to
be considered as over-riding and correct.
The Power Plant
Siting Act (PPSA), ss.
403.501-.518, F.S.,
is the State’s process for the licensing of large power plants. A certification
constitutes the sole license of the state and any agency as to the approval of
the location of the site and any associated facility, as well as the
construction and operation of the electrical power plant, except for the
issuance of licenses required under any federally delegated or approved permit
program and any other exemptions provided in
403.511(4). The PPSA was
designed to provide a streamlined process for the development of energy
infrastructure, which is necessary for the health, welfare, and protection of
the citizens of the state, while protecting the public and the environment from
the impacts of the infrastructure. While most facilities need to get any number
of permits or approvals from local and state agencies, large power plants in the
State are treated differently. All local and state permits or approvals are
pre-empted, and only one license is issued, called a “certification”. However,
all of the local governments or state agencies within whose jurisdiction the
power plant is to be certified participate in the process, to assure that the
issues normally subject to regulatory approval or other authorizations are
addressed. Therefore, the PPSA is a centralized licensing process encompassing
the permitting, land use and zoning, and property interests of all state,
regional, and local agencies which have jurisdiction over an area where an
electrical power plant is or potentially will be located.
The Act was revised by the
2008 Legislature in order to further streamline and provide distinct timeframes
for the hearing provide, while at the same time and provide increased
opportunities for
public interaction. This webpage is undergoing revision to incorporate
the changes made.
Ch. 62-17, Part I, (62-17.011
- .62-17.293), Florida Administrative Code, is the procedural Rule
implementing the PPSA. This rule is currently under review for changes
necessary to reflect the 2006 Legislative revisions. Note that only Part I
pertains to Power Plant Siting. The
Application Guide is also available electronically. This "guide" is
a narrative resembling the requirements for an Environmental Impact Statement,
and indicating the nature of the information which must be provided, but is not
a "fill-in-the-blank" type form. As with Ch. 62-17, Part I, the guide is under
review for updating.
The PPSA provides for
certification of any electric power plant as defined in
403.503(14),
which generates 75 megawatts (MW) or more in capacity, and was constructed after
October 1, 1973. The Act applies to nuclear power in addition to coal, gas, and
waste to energy facilities, although certain licensing functions are preempted
by the federal government. Power plants may have operational lives of 40 or more
years, and certification is a “life-of-the facility” approval.
Certification may include
a power plant's associated facilities. Such facilities are those
which are necessary (either directly or indirectly linked) for the construction
and operation of the power plant, such as a natural gas pipeline supplying the
plant's fuel, rail lines for bringing in coal to the site, roadways, and the
electrical transmission lines carrying the power to the electrical grid, among
others. These facilities may be located both onsite and offsite of the
electrical power plant facility. For linear features, the applicant can propose
certification of a corridor, within which a right-of-way will be located. The
applicant can propose multiple alternate corridors for certification as well, in
order for the public to have knowledge of multiple potential possibilities.
These corridors can be up to a mile in width, whereas the rights-of-way are
typically more on the order of 100-200 feet in width, depending on the facility
type.
Certification is issued by
the Siting Board (Governor & Cabinet), or, under the revised law, by the
Secretary of DEP on behalf of the Siting Board in non-contested case. In either
instance, DEP is the lead agency for coordination of the siting process, and has
its own jurisdiction for many of the activities which the certification is in
lieu of, just like any other agency. Thus, it wears "two hats". One is for the
coordination role and supporting the "Siting Board" --- this task has been
assigned to the Siting Coordination Office (SCO), with legal support from the
Office of General Counsel. The other "hat" is for its standard jurisdiction,
including wetlands permits, state lands oversight, coastal protection, and so
forth, as administered by the other Divisions and District Offices of the
Department. The SCO also internally coordinates with federally approved or
delegated permit program matters that may affect the certifiability of the
proposed power plant.
The Act was created by the
Legislature in 1973, leaving many older power plants in use in the state licensed under regular permitting rather than the
PPS-certification. Some sites have generation units which were permitted prior
to the passage of the Act, and some after, so different procedures and
coordination contacts may apply for the same site's differing units. See the
"Power Plant/Transmission Line Siting Status Chart"
for a listing of those
units or sites which fall under the PPSA.
The PPSA allows the filing
of applications for:
-
alternate corridors for related facilities
at the option of
the applicant
-
a site at which one or more units will be
constructed commencing upon certification, and the others will be
constructed some time in the future ("ultimate site capacity")
-
supplemental units to be added to a site
which has been certified for "ultimate site capacity"
-
certification of a power plant site existing
prior to the creation of the Power Plant Siting Act at which the utility
wants to make changes which will result in an increase in generating
capacity, or at which the applicant wants to roll all existing individual
permits into a unified certification.
Since certification is a
life-of-the facility authorization, the considerations involved in the
application review are extensive, and the applications themselves may be many
volumes in size. The application process for a new facility is discussed below,
and should provide guidance on how the statutes and rules interweave, and who is
responsible for what tasks. The process for supplemental units at the same
site, or certification of an existing site is quite similar, albeit with a few
omitted steps or with shorter timeframes. A modification process is provided
for in the PPSA (see further below) to accommodate the numerous changes that may
occur during the operational period.
Electric Utilities are
allowed to obtain separate licenses, permits, or approvals for certain pre-construction
infrastructure without first
obtaining certification under this act if the utility intends to locate,
license, and construct a proposed or expanded electrical power plant that uses
nuclear materials as fuel. These facilities may include access and onsite roads,
rail lines, electrical transmission facilities to support construction, and
facilities necessary for waterborne delivery of construction materials and
project components. This exemption applies regardless of whether the facilities
will be used in operation of the power plant. The applicant has to keep the
Department of Environmental Protection up to date on necessity of these
facilities for construction of the power plant, and the status of these
applications. Any approvals or permits provided to the utility for these
facilities will be incorporated into the certification of the power plant. The
facilities may be located on or offsite of the proposed power plant.
Note: For those
interested in following long-range planning for power plants, The Public Service
Commission (PSC) oversees the submission of “Ten-year
Site Plans” (TYSPs) by the utilities. The plans describe current
generation capacity and anticipated need for more capacity. The TYSPs also
provides generic information on future sites for power plants to accommodate the
anticipated need. This information includes land use data, environmental
factors, and similar topics which allows other state and local agencies to
comment on the Plans to the PSC. These comments may range from suggestions on
how to improve utilization of the site, and on site problems, to recommendations
that the site not be considered at all for various reasons. Based on this
information and its own conclusions, the PSC will determine the suitability of
the plan and issue an Annual Review (2007
Review).
I.
Pre-application filing activities
A. Notice of Intent
403.5063
A potential applicant may
elect to file a Notice of Intent (NOI) to indicate that it plans to submit an
application, and then work with the reviewing agencies on what information
should be included in the application. If a NOI is to be filed, this must be
done at least 6 months prior to application filing. Although the NOI process is
a formal activity, pre-application discussions of the same nature typically
occur informally.
B.
Need Determinations
Need Determination is a
formal process required under s.
403.519, F.S., and is conducted by the Public Service Commission (PSC).
The PSC reviews the need for the generation capacity which would be produced by
the proposed facility in relation to the needs of the region, and to the state
as a whole. The PSC also looks at:
-
the need for
electric system reliability and integrity,
-
the need for adequate electricity at
a reasonable cost,
-
the need for fuel diversity and
supply reliability,
-
whether the proposed
plant is the most cost-effective alternative available,
-
the conservation
measures taken by or reasonably available to the applicant or its members which
might mitigate the need for the proposed plant,
-
other matters within
the PSC’s jurisdiction which it deems relevant.
If the proposed power
plant will use nuclear materials as fuel, the PSC must look at matters within
the PSC’s jurisdiction which it deems relevant, including whether the nuclear
plant will:
-
Provide needed
base-load capacity.
-
Enhance the
reliability of electric power production within the state by improving the
balance of power plant fuel diversity and reducing Florida's dependence on fuel
oil and natural gas.
-
Provide the most
cost-effective source of power, taking into account the need to improve the
balance of fuel diversity, reduce Florida's dependence on fuel oil and natural
gas, reduce air emission compliance costs, and contribute to the long-term
stability and reliability of the electric grid.
The Need Determination
process can occur prior to the filing of a certification application, or
afterwards; however, it is usually recommended that it be commenced beforehand.
An applicant is required to have an affirmative determination of need from the
PSC in order to obtain a certification.
If the PSC makes a
negative determination prior to the submittal of the certification application,
or recommends that an alternative approach is more suitable, then either the
pending application will not be submitted, or should be revised. If the
application has already been submitted, and the PSC makes a negative
determination, then the certification application process comes to a halt.
C. Federally
Delegated or Approved Permits
As noted above, PPSA certification pre-empts all State and local government
permitting requirements. However, permits that the DEP administers
pursuant to federal permit programs are handled separately from PPSA
certification, and those separate federal permits must still be issued.
Submittal of applications for these permits can occur prior to the filing of a
certification application, or afterwards; however, it is recommended that they
be submitted prior to the certification application. These permits are
integral to the authorization for construction and operation of a power plant.
Currently, these permits are the:
The review of these
permits is ongoing at the same time the certification process, but does not
operate under the same time schedules as certification. (Note: The splitting of
the review of these permits out from under the certification process “umbrella”
was a change in the 2006 Legislation. The reason was to delete conflicts between
the procedures and authorities for the permits and PPSA.) In the instance of
disputes regarding these permits, petitions for hearings are handled independent
of the certification process. However, to facilitate coordination between these
integral aspects of a power plant review, when possible, any hearings may
be conducted in conjunction with the administrative hearing on certification.
The final approval body for federal permits is not the Siting Board, but the
Department of Environmental Protection via its authority granted by the US
Environmental Protection Agency. In the remainder of this discussion, unless
otherwise specified, use of the term "application" and the procedures outlined
refer to the certification side of the process.
II.
Certification Process
(See
also flowchart)
[It is recommended that the
reader print out the flowchart to better follow along with the process described
below]
In the application review
process, there are initially five “tracks” that commence once the application is
filed (see flowchart). These “tracks” are (a) the “application
completeness determination” process, (b) the “Informational
Public Meetings”, (c) the “Local
Government Consistency Determination”, (d) “Need
Determination” process which was previously described, and the (e) “Federally
Delegated or Approved Permit” review process, which was previously
described. Eventually these tracks merge at varying points.
A.
Application Filing and
Distribution
403.5064
The application must be
submitted along with the appropriate fee in order to initiate the review
process. The initial distribution is to the DEP’s Siting Coordination Office
(SCO) and statutorily named agencies**. Other agencies may later be requested to
review the application as well. The application is supposed to contain all
information that would otherwise be required by the individual agencies to
obtain regulatory permits, authorizations, or proprietary usage permissions.
[**Department of Community Affairs, Fish and Wildlife Conservation Commission,
Department of Transportation, the jurisdictional Water management District(s),
the jurisdictional Regional Planning Council(s), the jurisdictional county(s)
and the jurisdictional city(s).]
The applicant may also
include a statement affirming that the applicant has opted to allow
consideration of alternate corridors for an associated transmission line
corridor. If the applicant chooses this option the portion of the application
addressing associated transmission line corridors is processed under the
schedule set forth in F.S. 403.521-403.526, 403.527 (4), and 403.5271, including
the opportunity for the filing of alternate corridors by 3rd parties.
Filing of alternate corridors will not result in the rescheduling of the
certification hearing.
When possible, a copy of
the application will be published to the Siting website. See "Applications
in Process".
Once an application has
been properly filed, the DEP Office of General Counsel's Siting attorney will
request the assignment of an Administrative Law Judge by the Division of
Administrative Hearings (DOAH). This immediately shifts the review into a formal
litigation proceeding, requiring assistance from legal staff at the outset,
including legal staff from all the agencies. DOAH assigns a Docket number to
the case, and information about legal filings can be found on
DOAH’s website. A link to the Docket can be found on the “Applications
in Process” website described above.
Note to Agencies regarding Fees:
Under the PPSA, agencies required to prepare reports, or which were requested to
prepare reports are eligible for reimbursement of agency expenses on the project
from the fee (up to a limit based on the fee amounts available; if available
amounts are insufficient, then a pro-rata disbursement will be made).
Additionally, under the Power Plant Siting Act the unexpended portion of the fee
reserved for the affected agencies is refunded if the application is withdrawn.
Therefore, the staff of all the affected/reimbursable agencies are encouraged to
track their time and expenses from the beginning of the process. (Refer to s.
403.518(2)(c), F.S., and Ch.
62-17.293, F.A.C.)
Within 21 days of the application filing, notice must be published about the
application. The applicant is required to have a newspaper notice is
required that must be at least 1/2 page in size; often, these are as large as 1
to 2 pages in size. The DEP must have notice published in the State’s
Official notice publication site, the
Florida Administrative Weekly
(F.A.W.).
403.5115
The newspaper notice will
contain a map of the proposed project, including any associated facilities,
briefly describe the process, and provide information about becoming Parties to
the proceeding.
B. Public Involvement
and “Parties to the Proceeding
Entities and persons that
are affected by the proposed project may become involved in the process in two
types of roles: one is simply as a “person”, who can attend the hearings and
provide comments on their own behalf, and the other is as a “Party”. There are
several requirements for becoming a Party to the Proceeding, and
responsibilities associated with this role. Parties typically are represented
by attorneys, must exchange copies of legal filings with each other, and may
cross-examine witnesses at the hearing. There are deadlines for becoming a
Party to the certification proceeding, as follows:
-
Certain state,
regional and local agencies [see s.
403.508(3)(a), F.S. for a complete list] are automatically parties , but
will waive their rights to remain as parties if they fail to file a notice of
intent to be a party by the 90th day prior to the certification hearing, so long
as they file a notice on intent with the Administrative Law Judge to this
effect.
-
An agency not named
in the statutory list above, or non-profit organizations formed for specific
purposes** can file a notice of intent to be a party with the Administrative Law
Judge, but this must be done no later than 75 days after the application was
filed. [**These groups can be “Any domestic nonprofit corporation or
association formed, in whole or in part, to promote conservation or natural
beauty; to protect the environment, personal health, or other biological values;
to preserve historical sites; to promote consumer interests; to represent labor,
commercial, or industrial groups; or to promote comprehensive planning or
orderly development of the area in which the proposed electrical power plant is
to be located”.]
-
Any person/entity
who has not filed a notice intent to be a party by the deadlines identified
above but who can demonstrate that the project substantially affects them may be
allowed by the Administrative Law Judge to become a Party, but this request to
intervene must be submitted to the Administrative Law Judge no later than 30
days before the commencement of the certification hearing.
C. Completeness
403.5066
Once the certification
application is filed, the DEP/SCO determines whether or not the application is
"complete". This is a determination of whether the information provided by the
applicant is adequate for agencies to analyze the impacts of the proposed
project and compliance with applicable regulations. This determination is based
on the recommendations of the affected agencies and the appropriate staff in
DEP’s Bureaus and Divisions. These recommendations are due to the SCO within 30
days of the application filing. The completeness determination must occur within
40 days of application filing.
To simplify the
completeness review, DEP recommends that the agency’s issues be broken down by
subject area and/or geographical area. Some examples are:
Local Government:
-
Associated facility
corridor – corridor delineation not precise enough to determine whether there
may be an impact on “xx” City Park.
-
Primary site – Land
Use Plan information out of date with regards to ordinance on facilities
adjacent to the Regional Airport.
Water Management
District:
-
Primary site – Water
Quantity information -- Wellfield pumping proposal does not show impacts out to
“xx” miles from the draw-down core.
-
Associated facility
corridor –Application does not include information regarding proprietary use of
the “XXX” water control levee.
 If the application is not
complete, the applicant may submit additional information, withdraw the
application, or contest the determination. If the applicant elects to submit
additional information, another completeness determination is made. Two options
for timing of the additional information submittal exist.
(1) If the
applicant submits the information within 30 days of the initial completeness
determination, then the affected agencies have 15 days from the filing of
additional information in which to review the supplemental information and
submit recommendations as to completeness. The second determination by DEP must
be issued within 22 days of the supplemental information submittal. If the
application is determined complete at this time, the process continues on with
no tolling (halting) of the clock [unless it has otherwise been halted by
certain events in the Land Use Consistency determination portion of the process,
explained further below]. The process does not provide a direct role for public
comment in the completeness review process, however, the public is welcome to
submit concerns to the agency with jurisdiction over the matter of concern for
inclusion in that agency’s comments if it feels the item to be applicable.
(2) The
applicant may indicate that it needs more time than 30 days to submit the
initial determination. In this instance, the time frames in the process are
halted until the application is determined complete via the completeness review
process and timing described above.
If the applicant elects
to contest the determination, the applicant files a petition with the
Administrative Law Judge (ALJ), who will schedule a hearing on the matter, to be
held within 21 days of the determination of completeness. DEP, the applicant,
and the jurisdictional agency whose data needs are at issue are the
parties
to this hearing.
D. Land Use Determination
403.50665
Within its application, the applicant includes a
statement on the consistency of the site or any directly associated facilities
that constitute a development as defined in F.S. 380.04, with existing land use
plans and zoning ordinances that were in effect on the date the application was
filed. This information includes an identification of associated facilities the
applicant believes are exempt from the requirements of land use plans and zoning
ordinances. This requirement does not apply to new electrical generation units
being proposed for construction and operation on the site of a previously
certified electrical power plant or on the site of a power plant not previously
certified that will be wholly contained within the boundaries of the existing
site.
Unless
exempted as per above, forty-five
days after the filing of the application (and shortly after the first
completeness determination is issued), each local government within whose
jurisdiction the site and any associated facilities are located is required to
file a determination on the consistency of the proposed project with their land
use plans and zoning ordinances. A copy of this filing must be provided to DEP,
the ALJ, applicant, and all parties. If the local government has raised
completeness issues that affect their determination, they can postpone issuing
the land use determination for 55 days [note: due to space limitations, this
delay is not depicted on the flowchart].
Special Information for Local Governments
No later than 21 days
after the issuance of each determination, the DEP must have Florida
Administrative Weekly notice published regarding each determination must be
published, and the applicant must have published a half-page newspaper notice
(minimum size) of each determination.
The determinations are
subject to dispute by persons who are substantially affected by the
determination. It is likely that this would only occur with a finding of
consistency. If the finding is of inconsistency, the applicant also has an
avenue of relief (described below).
If the initial
determination of the local government is that the power plant site or associated
facility is inconsistent, the applicant can go back to the local government with
a revised proposal intended to be consistent, the same as if the Siting Board
has ratified a determination of inconsistency, as described above. Similarly,
while this is ongoing, all other parts of the application review process comes
to a halt. The local government must review the revisions, and issue another
determination. The determination can either be that the facility in question is
either consistent or inconsistent, but either way, newspaper notice and F.A.W.
notice must again be published, and the steps/options outlined above repeated. The local government must commence a proceeding to consider the application
for land use or zoning approval within 45 days after receipt of the complete
request and will issue a determination within 30 days following the conclusion
of that local proceeding.
If any substantially
affected person wishes to dispute the local government’s determination, they
must file a petition petition stating the basis of the dispute must be filed
with designated administrative law judge no later than 21 days after the
publication of the latest-date notice for that particular determination –-
either the newspaper notice or the F.A.W. notice, whichever comes later.
The dates regarding
the land use consistency determination may be altered upon agreement between the
applicant, the local government, and the Florida Department of Environmental
Protection.
The issue of land use
and zoning consistency for any proposed alternate intermediate electrical
substation which is proposed as part of an alternate electrical transmission
line corridor (which is accepted by the applicant and the department under
403.5271(1)(b), must be addressed in the supplementary report prepared by the
local government on the proposed alternate corridor. It will be considered as an
issue at any final certification hearing. If such a proposed alternate
intermediate electrical substation is determined not to be consistent with local
land use plans and zoning ordinances, that substation will not be certified.
Land Use Hearings
403.508(1)
Within 5 days of a petition for a hearing on land use has been filed pursuant to
s.
403.50665, the designated
Administrative Law Judge will schedule a hearing to be held in the county of the
power plant or associated facility, as soon as possible, but no later than 30
days after the filing of the petition. If there are several disputes in one
county, there will be one hearing, but if there are disputes in multiple
counties, there may be multiple dispute hearings.
The sole issue for determination at the land use hearing is whether or not the
proposed site or nonexempt facility is consistent and in compliance with
existing land use plans and zoning ordinances. If the administrative law judge
concludes that the proposed site or nonexempt facility is not consistent or in
compliance with existing land use plans and zoning ordinances, the
administrative law judge will receive evidence on, and address in the
recommended order any changes to or approvals or variances under the applicable
land use plans or zoning ordinances which will render the proposed site or
nonexempt facility consistent and in compliance with the local land use plans
and zoning ordinances.
For each hearing, there will be
Florida Administrative Weekly notice published by DEP, and a half-page (minimum
size) newspaper notice published by the applicant. Within 30 days of the
conclusion of the hearing(s), the ALJ will issue a Recommended Order.
Within 60 days after receipt of the proposed Order, the Siting Board (Governor &
Cabinet) must rule on whether or not the determination will stand.
The Siting
Board’s decision settles the dispute, whether by ratifying a determination of
consistency, or by issuing a variance overriding the plan or ordinance that is
inconsistent. If the Board ratifies the determination of inconsistency, the
applicant can go back to the local government with a revised proposal intended
to be consistent, but while this is ongoing, all other parts of the application
review process comes to a halt. The Siting Board can also provide a variance or
other necessary approval to the adopted land use plan and zoning ordinances
required to render the proposed site or associated facility consistent with
local land use plans and zoning ordinances IF after notice and hearing it
determined it is in the public interest. Alternatively, Siting Board decisions
may be appealed through the Florida Appeals Court in the manner specified by the
Final Order.
E.
Public Notice by the Applicant
403.5115
Public notices are made by the
applicant for all applications. The many different types of notices are outlined
in the statute. The 2008 Legislative changes created some new obligations for
the utilities regarding the application power plants and transmission line
corridors. Notice of a certification hearing (discussed below in part K) must be
published 65 days prior to the hearing. If alternate corridors have been
accepted for consideration, the notice of certification has to include a map of
all the proposed corridors.
Another major change from the 2008
Legislation is the requirement provided in 403.5115 (6). This requires the
applicant to by a good faith effort, provide direct written notice of the filing
of an application or certification no later than 45 days after the filing of the
application to all landowners whose property and residences are located within
the following distances of the proposed project:
-
3 miles of the main site boundaries of the proposed electrical power
plant
-
0.25 miles of a proposed transmission
line corridor.
-
0.25 miles of all other linear
associated facilities extending away from the main
site boundary except for transmission line
corridors.
No later than 60 days after the
filing of the application, the applicant must provide the Department of
Environmental Protection’s Siting Coordination Office with a list of landowners
and residents who have been notified.
Additionally, any
proponent of an alternate corridor that includes a transmission line must
provide direct written notice of the filing of an alternate corridor for
certification no later than 30 days after the filing to all local landowners and
residents whose property is located within 0.25 miles of the proposed boundaries
of the corridor. Then, no later than 45 days after the filing of an alternate
corridor for certification, the proponent of the corridor must provide the
Department of Environmental Protection’s Siting Coordination Office with a list
of those notified.
For all other public notice
requirements please review the full text of F.S. 403.5115
F.
Informational Public Meetings
403.50663
In order to facilitate
the public’s understanding of the technical details about the project, as well
as about the process, the Local Government within whose jurisdiction the
power plant is proposed to be sited
is encouraged in the Power Plant Siting Act to host an “Information Public
Meeting”. The meeting’s purpose is also for the Local Government to obtain input
from the public, and formulate a recommendation regarding the project.
Essentially, the meeting functions like a community outreach open house. No
votes or positions are required to be taken, and questions are encouraged. If
the Local Government does not choose to hold such a meeting, the Act encourages
the Regional Planning Council to do so. However, there is no penalty for not
conducting one, nor requirement to do so.
The Act recommends a
timeframe for the conduct of this meeting (no later than 70 days after the
filing of the application) such that the information obtained will be available
prior to the deadline for the submittal of Preliminary Statements of Issues (see
further below). The DEP and the applicant must attend these meetings, with the
intended purpose of presenting the technical details and process description.
Because of the need for the DEP/SCO and Applicant staff to attend, the Local
Government/ Regional Planning Council (LG/RPC) must give them not less than five
days notice of when and where it would like to host the meeting. The LG/RPC must
also notify all the other parties to the proceeding. Because there may be
several such meetings held if more than one LG/RPC is affected by the project,
which may be the case if associated facilities are involved, scheduling may be
an issue, so early notification is essential.
If a local government
or regional planning council chooses to hold an informational meeting, they must
publish notice of the meeting within a newspaper of general circulation within
the are in which the proposed power plant will be located no later than 7 days
prior to the meeting.
G. Preliminary
Statements of Issues
403.507(1)
Each affected agency is
required to submit this Statement to the DEP/SCO, the Applicant, and parties to
the proceedings. The deadline for this submittal is no later than 40 days after
the application has been determined complete. This Statement is on the order of
a "fatal flaw" analysis, or to highlight various problems with the project as
proposed which have been noted early in the review. A more detailed assessment
will occur in the required agency reports (see further below). Some agencies
elect to provide this information along with their completeness comments. If
they do so, the Preliminary Statements need to be designated as such to separate
them from completeness issues, as there can be major effects on the review
schedule associated with completeness matters.
H. Agency Reports
403.507(2)
The Agency Reports, along
with the internal reports from the DEP Districts and Bureaus, are the equivalent
of Notice of Intended Agency Action on a Permit or Other Authorization.
Reports, other than the report required of the Public Service Commission, must
be submitted to the DEP/SCO and the applicant no later than 100 days after the
application has been determined complete. The Reports (other than the PSC’s)
need to include:
-
an assessment of
jurisdictional issues;
-
a recommendation
whether the agency would approve or disapprove the proposal if the project were
being judged solely on their own jurisdictional authority; if denial is
recommended the reports should state why, and what might be done to correct the
matter, e.g., redesign or relocation for all or any of the project features.
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the Conditions of
Certification (permit provisos or other restrictions) recommended if the project
is certified, whether or not the agency recommends certification. Each proposed
condition must identify the regulatory/authority basis for the condition, i.e.,
the specific statute, rule or ordinance governing the matter.
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an assessment of any
requested variances, exemptions, exceptions or other relief and a recommendation
whether these should be granted. The actual granting authority will be the
Siting Board (or Secretary of DEP if the application is not disputed).
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an assessment of any
variances, exemptions, exceptions or other relief, and variances that would be
required in order to approve certification but which were not
requested in the application, along with a recommendation whether these should
be granted.
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an assessment of
issues related to the use, connection to, or crossing of an agency-owned or
controlled land. The Siting Board has the authority to direct any agency, within
30 days after certification, to execute any necessary license or easement to
allow such usage.
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a summary of the
types of comments received from the public, along with information on how those
comments were addressed, e.g., additional focus was given to an issue, the
matter of concern was addressed in conditions relating to xxx, certain comments
were not a matter under that agency’s jurisdiction and were referred to the
appropriate agency.
If a report does not
contain the information on proposed conditions or variances on the grounds that
the agency does not recommend certification, the agency is considered to be
waiving their rights to have any restrictions imposed, as the Siting Board may
decide that it is in the overall public interest to certify the project,
regardless of a negative recommendation.
The Public Service
Commission’s Report is of a different nature than the other agencies’ reports.
Essentially, all it is required to contain is a copy of the PSC’s Determination
of Need, although the PSC may elect to provide other information. This Report
is due no later than 150 days after the filing of the application, and prior to
the issuance of the DEP Project Analysis on the application (see below). If the
report/Determination is negative, the remainder of the process essentially
becomes moot, and stops.
I. Project
Analysis
403.507(5)
The DEP/SCO takes the
reports and recommendations of the affected agencies, PSC, and DEP-internal
District/Bureaus, and prepares a Project Analysis. The Analysis must be filed
(submitted) with the Administrative Law Judge and all parties no later 130 days
after the application has been determined complete. By this time in the process,
the outcome from a Siting Board hearing on Land Use, if one was necessary,
should be available. Also, the Notice of Intended Agency Action on federally
delegated or approved permits (FDAP) should be available. While these permits
are not a direct part of the PPSA process, the matters at issue have a strong
bearing on whether a project should be recommended for approval. If the
proposed agency action on a FDAP is denial, a recommendation of certification
approval would be problematic.
The Project Analysis must
attempt to interweave all the varying viewpoints and come up with an overall
picture of the issues. It is the State equivalent of an Environmental Impact
Statement. The Project Analysis is required to include the following items:
(a) the nonprocedural
requirements of the affected agencies, as based upon the information provided by
those agencies;
(b) matters within DEP's standard
jurisdiction (e.g., water quality, air quality, proprietary impacts on
state-owned lands, State Park protections, etc.);
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DEP’s recommendation
regarding to the disposition of the application, of variances, exemptions,
exceptions, or other relief identified by any party;
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All proposed
conditions of certification which the department believes should be imposed
[duplicative conditions will be combined, when possible];
J. Notice of the
Certification Hearing
403.508(2)(b) and subsequently
403.5115(e)
Notice of the hearing
must be published in newspapers no later than 65 days before the hearing, and in
the Florida Administrative Weekly no later than 45 days before the hearing.
Time-wise, the notice appears in-between the issuance of the agency reports and
the issuance of the Project Analysis. This is to assure ample opportunity for
the public and substantially interested persons to review the Reports and
Analysis and determine whether they wish to attempt to become formal interveners
in the process. See earlier section B. on “Public Involvement and Parties to the
Proceeding”, regarding this.
As with the notice of
application filing, the newspaper notice must be at least 1/2 page in size. The
newspaper notice will contain a map of the proposed project, including any
associated facilities. The notice will indicate the date of the hearing and
location, along with the fact that the hearing may be cancelled if matters in
dispute are resolved beforehand (see further below). If one or more alternate
corridors have been accepted for consideration the notice of the certification
hearing will include a map of all corridors proposed for certification.
K. Certification
Hearing, Cancellation of the Certification Hearing
A "Certification
Hearing", which is conducted by an Administrative Law Judge, must be held if
there are matters in dispute about the proposed project. If there is not a
dispute, the hearing may be cancelled (see further below for description of how
this works).
(1)
Hearing Held 403.508 (2) and (3)
The hearing must
be conducted “in a location in proximity to the proposed site”, although since
many power plants are located in remote areas, the location of the hearing can
be dictated by location and availability of a suitable meeting space near the
power plant. The hearings may last from a day to several weeks.
The hearing
technically must commence no later than 265 days after the filing of the
application is filed, although may be rescheduled if other scheduled items are
postponed, such as if the application is not complete, or the parties are
attempting to resolve disputes without the need for a hearing. Federal permit
program disputes may be combined, where possible, with this hearing, and so
their time schedules may affect the commencement date.
Testimony and
evidence will be presented at the hearing, and agency staff may be called upon
to be witnesses. Prior to the hearing, interrogatories may need to be answered,
and depositions may be taken. Each agency’s attorney should provide staff with
guidance on these matters. At the discretion of the Administrative Law Judge,
the public may speak or submit written comments at this hearing, and oftentimes
a special time is set aside for this purpose, typically in the evening.
Typically, the Administrative Law Judge will swear in commenters, and the
parties have the right to cross-examine this “communication”, or to present
evidence to the contrary.
(2) Hearing
Cancelled 403.508 (6)
In a number of
past cases, it became evident that, so long as the applicant agreed to all the
proposed conditions of certification and other applicable use-of-properties
restrictions, there was no need for a hearing. Public testimony/comments were
of a supportive nature, since these facilities can provide tax benefits to a
community, along with jobs. Because of this, and the expense of conducting an
un-needed hearing, the 2006 Legislature amended the PPSA, allowing for the
cancellation of the hearing before the Administrative Law Judge, as well as the
one before the Siting Board.
In a case where
it appears that no hearing is necessary, a stipulation (legal agreement) is
initiated asserting that there are no disputed issues of fact or law to be
raised at the certification hearing. In order for the hearing to be cancelled,
all parties to the proceeding must agree and sign the stipulation. DEP or the
applicant will then submit this stipulation to the ALJ with a request that the
ALJ “relinquish jurisdiction” – release authority over the case -- which then
drops the case from one considered to be under litigation. The ALJ has five
days to issue an order approving or denying the request.
The approval of
cancellation must be accomplished in enough time for a large newspaper notice
and a Florida Administrative Weekly notice to be published regarding the hearing
cancellation at least three days prior to the date originally scheduled for the
hearing. It is hoped that everyone interested in the case will be apprised of
the notice, and not travel to the previously announced hearing location.
However, some of the utilities have had staff present at the location to
verbally advise such persons, in case this happens.
Once the ALJ has
cancelled the hearing, the DEP prepares the Recommended Order that forms the
basis for a Final Order of Certification signed by the Secretary (agency head)
of DEP. See further below for details of Recommended Orders and Final Orders.
To assist DEP in preparing the Recommended Order, the statute allows parties to
submit proposed Orders to DEP for consideration. The Final Order must be issued
by the Secretary within 40 days of the cancellation of the Certification
Hearing.
L. ALJ Recommended
Order
403.509
If a Certification
Hearing before the ALJ has been conducted, then within 45 days after receipt of
the transcript of the Certification hearing, the Administrative Law Judge must
issue a Recommended Order (RO). This RO (and also the one prepared if the DEP
Secretary will sign the Final Order) must contain finding of facts and
conclusions of law about the matters raised at the hearing or in the
application, along with the proposed Conditions of Certification if approval of
Certification is recommended. The eventual Final Orders, whether by the
Secretary or the Siting Board, must address the criteria set out in s.
403.509(3), F.S. (discussed further below), and thus are discussed in the
Recommended Order to set the basis for the recommendations. The ALJ’s
Recommended Order is submitted to the DEP for transmittal to the Siting Board.
The agencies may file
Exceptions to the ALJ’s Recommended Order with DEP if they feel something has
been overlooked or incorrectly interpreted. Agency staff may be asked to assist
in reviewing the Order and preparing the Exceptions.
The Recommended Order,
Exceptions, and other pertinent data are then formulated into a Proposed Final
Order that includes suggested action on the Exceptions. An Agenda Package
containing these items is sent to the Siting Board (Governor and Cabinet). This
work is done by the DEP Office of General Counsel and the DEP Cabinet Affairs
Office.
M. Siting Board
Hearing, Criteria for Certification
The Siting Board must
hold a hearing and act upon the application within 60 days of issuance of the
ALJ's Recommended Order. Prior to the full Cabinet hearing (usually the week
preceding it), the Aides of the Governor and the Cabinet members conduct a
meeting to discuss items on the upcoming agenda.
The Siting Board hearing
normally is a subset of a standard
Governor & Cabinet meeting and is normally held in the Capitol. DEP
presents the item, and responds to questions. The Applicant may answer questions
as well. If the Board chooses to do so, they may allow the public to speak. In
making its determination, the Board is limited to considering those matters
raised in the certification hearing before the administrative law judge or
raised in the Recommended Order. The hearing is not a forum to present new
evidence or testimony. Also, once the Board members have received the
Recommended Order, it is forbidden for the parties or affected public to attempt
to communicate directly with the Board members about the case outside of this
proceeding, although the parties may communicate with the Aides.
The criteria for the
Siting Board and the DEP Secretary to use in determining whether an application
should be approved in whole, approved with modifications or conditions, or
denied [see
s. 403.509(3), F.S.] must include consideration of whether, and the
extent to which, the location of the electrical power plant and directly
associated facilities and their construction and operation will:
(a) Provide
reasonable assurance that operational safeguards* are technically sufficient for
the public welfare and protection. [*e.g., will the facility have fire control
systems if a building were to catch on fire, or does the facility have adequate
arrangements made with local fire safety providers.]
(b) Comply with
applicable nonprocedural requirements** of agencies.” [**Non-procedural
requirements are regulatory standards or other terms prescribed and adopted for
an agency authorization. Examples include an air emissions limitation, a water
quality limitation, and a height restriction for smokestacks in relation to an
airport landing zone.]
(c) Be
consistent*** with applicable local government comprehensive plans and land
development regulations. [***The term “consistent” is used, because not all
plans/regulations have terminology specifically addressing power plants, but
might have terminology for industrial uses, of which the plants might be
considered a subset.]
(d) Meet the
electrical energy needs of the state in an orderly and timely fashion. [This
criteria is determined by the findings of the Public Service Commission’s
Determination of Need.]
(e) Effect a
reasonable balance between the need for the facility as established pursuant to
s.
403.519 [PSC’s Need Determination] and the impacts upon air and water
quality, fish and wildlife, water resources, and other natural resources of the
state resulting from the construction and operation of the facility.
If the application is
denied, an explanation must be given as to what could be done to make the
project approvable. If approved, the Order will be accompanied by
Conditions of Certification.
Any transmission line
corridor certified by the board must also satisfy the criteria above. When more
than one transmission line corridor is proper for certification, the board, or
the secretary where applicable, will certify the transmission line corridor that
has the “least adverse impact regarding the criteria” set out above, including
costs.
If the board or the
secretary, where applicable, find that an alternate corridor rejected pursuant
to 403.5271 has the least adverse impacts based on the above criteria, they will
deny the certification or allow the applicant to submit an amended application
to include the alternate corridor.
If the board or the
secretary, where applicable, find that 2 or more of the corridors comply with
the above criteria, and they are substantially equal in terms of adverse
impacts, including costs, the board or secretary will certify the corridor
preferred by the applicant.
N.
Final Order Effective Date
Once the Final Order is
signed, it must be sent to the Clerk of the Siting Board for official entry.
The Clerk of the Department has been designated the Clerk for PPSA proceedings.
The certification will not become effective until "clerked-in". Typically, this
occurs several days after the Cabinet Hearing.
III.
Post-certification Activities
A. Federally
Delegated or Approved Permits (FDAPs)
Final actions on FDAPS in
relation to certification vary per type of permit, as follows:
The department's action
may differ from the actions taken by the Siting Board if the federally approved
permit program requires such a different action to be taken by the department.
The statute states that
the review, processing, and issuance of the above FDAPS (Title V Air Operation
permits are specifically not included) be closely coordinated with the
certification process. However, in the event of a conflict between the
certification process and federally required procedures, the applicable federal
requirements control.
Regarding
Title V Air Operation permits, these are not interwoven with the
certification process, because the certification process is, for the most part,
a construction permit. It may take two to three years for the plant to become
operational, and many intricate engineering details may change. The Air
Operation permits will address any these changes, and eventually all the
restrictions are interwoven into the Conditions of Certification by a
Modification to incorporate the Title-V permit by reference.
B. Agency Lands and
Works
403.509(5)
The Siting Board is given
under the PPSA the authority to decide issues relating to the use, the
connection to, or the crossing of the properties and works of any agency which
is a party to the certification hearing for matters pertaining to the power
plant and directly associated facilities. The Siting Board can direct any such
agency to execute, within 30 days after the entry of certification, the
necessary license or easement for such use, connection, or crossing, subject
only to the conditions set forth in such certification.
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