Cabinet Affairs

AGENDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

SEPTEMBER 9, 1997

Item 1 Minutes

Submittal of the minutes of the April 23, 1996 Cabinet meeting.

RECOMMEND ACCEPTANCE

Substitute Item 2 Florida Power & Light Final Order on Remand/Manatee Orimulsion Conversion Project

REQUEST: Consideration of a Final Order on Remand granting certification to Florida Power & Light Company for the location, construction, operation and maintenance of the Manatee Orimulsion Conversion Project subject to the Conditions of Certification recommended by the Hearing Officer.

COUNTY: Manatee

APPLICANT: Florida Power & Light Company (FPL)

LOCATION: The existing plant is located approximately five miles east of Parrish, Florida, and north of SR 62 in the north central portion of Manatee County.

STAFF REMARKS: On May 30, 1997, the District Court of Appeal remanded DOAH Case No. 94-5675EPP to the Siting Board based on its Opinion dated May 14, 1997. In reversing the Siting Board, the Court held as follows:

"The Siting Board's order fails to satisfy the requirements of the APA, and therefore defies judicial review. Accordingly, the appealed order is VACATED, and this case is REMANDED for such further proceedings necessary to produce a final order consistent with this opinion."

Thus, the case is back before the Siting Board in the same posture as it was on April 23, 1996.

The Siting Board may choose among several options: (1) adopt the Final Order on Remand as prepared by the Department of Environmental Protection (DEP) staff; (2) adopt a modified Final Order; (3) direct staff to prepare a new Final Order of Denial; or (4) remand the case to the Division of Administrative Hearings for the limited purpose of clarifying issues not adequately addressed or to consider additional information that has become available since the case originally went to hearing.

The Final Order on Remand submitted by DEP is the same as the Final Order prepared by DEP in 1996. It approves and adopts the Recommended Order submitted by the Hearing Officer, with minor modifications, to grant certification subject to the Conditions of Certification recommended by the Hearing Officer.

FPL has indicated its willingness to bind itself to additional commitments for the project as set forth in FPL's Proposed Addendum to Proposed Final Order Approving Certification (see Attachment 2, pp. 625 et seq.) DEP did not consider these additional commitments in preparing its Final Order on Remand. If the Siting Board chooses to grant certification, DEP recommends consideration of any of FPL's new commitments which would, in the opinion of the Siting Board, serve and protect the broad interests of the public as set forth in the Power Plant Siting Act.

Siting Board

Department of Environmental Protection

Agenda - September 9, 1997 Substitute Page Two

Substitute Item 2, cont.

For your information, attached to this agenda are the following: the April 23, 1996 agenda information as originally submitted by DEP (pages 1-594, note: pages 386-388 were not part

of the record before the Hearing Officer); a proposed Final Order on Remand prepared by DEP staff based on the Recommended Order of the Hearing Officer, approving certification (pages 595-624 ); FPL's Proposed Addendum to Proposed Final Order Approving Certification (pages 625-634); Manasota-88, Inc.'s and Manatee County Save Our Bays Association, Inc.'s Proposed Final Order on Remand denying certification (pages 635-718); and the Opinion of the District Court, and the Siting Board's original Order of Denial (pages 719-759).

(One copy of Attachment 2, Pages 1-759 has been submitted to each Cabinet Office.)

RECOMMEND THE DEP RECOMMENDS THAT THE PROJECT BE CERTIFIED FOR CONVERSION OF THE TWO 800 MEGAWATT UNITS TO BURN ORIMULSION SUBJECT TO THE FINAL CONDITIONS OF CERTIFICATION, PURSUANT TO THE FLORIDA ELECTRICAL POWER PLANT SITING ACT, SECTION 403.501, ET SEQ., F.S. (1995)