The Florida Senate

403.508  Land use and certification proceedings, parties, participants.--

(1)  The designated administrative law judge shall conduct a land use hearing in the county of the proposed site within 90 days after receipt of a complete application for electrical power plant site certification by the department. The place of such hearing shall be as close as possible to the proposed site.

(2)  The sole issue for determination at the land use hearing shall be whether or not the proposed site is consistent and in compliance with existing land use plans and zoning ordinances. The designated administrative law judge's recommended order shall be issued within 30 days after completion of the hearing and shall be reviewed by the board within 45 days after receipt of the recommended order by the board. If it is determined by the board that the proposed site does conform with existing land use plans and zoning ordinances in effect as of the date of the application, the responsible zoning or planning authority shall not thereafter change such land use plans or zoning ordinances so as to affect the proposed site unless certification is subsequently denied or withdrawn. If it is determined by the board that the proposed site does not conform, it shall be the responsibility of the applicant to make the necessary application for rezoning. Should the application for rezoning be denied, the applicant may appeal this decision to the board, which may, if it determines after notice and hearing that it is in the public interest to authorize the use of the land as a site for an electrical power plant, authorize a variance to the adopted land use plan and zoning ordinances. In the event a variance is denied, no further action may be taken on the complete application by the department until the proposed site conforms to the adopted land use plan or zoning ordinances.

(3)  A certification hearing shall be held by the designated administrative law judge no later than 300 days after the complete application is filed with the department; however, an affirmative determination of need by the Public Service Commission pursuant to s. 403.519 shall be a condition precedent to the conduct of the certification hearing. The certification hearing shall be held at a location in proximity to the proposed site. The certification hearing shall also constitute the sole hearing allowed by chapter 120 to determine the substantial interest of a party regarding any required agency license or any related permit required pursuant to any federally delegated or approved permit program. At the conclusion of the certification hearing, the designated administrative law judge shall, after consideration of all evidence of record, submit to the board a recommended order no later than 60 days after the filing of the hearing transcript. In the event the administrative law judge fails to issue a recommended order within 60 days after the filing of the hearing transcript, the administrative law judge shall submit a report to the board with a copy to all parties within 60 days after the filing of the hearing transcript to advise the board of the reason for the delay in the issuance of the recommended order and of the date by which the recommended order will be issued.

(4)(a)  Parties to the proceeding shall include:

1.  The applicant.

2.  The Public Service Commission.

3.  The Department of Community Affairs.

4.  The Fish and Wildlife Conservation Commission.

5.  The water management district.

6.  The department.

7.  The regional planning council.

8.  The local government.

(b)  Any party listed in paragraph (a) other than the department or the applicant may waive its right to participate in these proceedings. If such listed party fails to file a notice of its intent to be a party on or before the 90th day prior to the certification hearing, such party shall be deemed to have waived its right to be a party.

(c)  Upon the filing with the administrative law judge of a notice of intent to be a party at least 15 days prior to the date of the land use hearing, the following shall also be parties to the proceeding:

1.  Any agency not listed in paragraph (a) as to matters within its jurisdiction.

2.  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.

(d)  Notwithstanding paragraph (e), failure of an agency described in subparagraph (c)1. to file a notice of intent to be a party within the time provided herein shall constitute a waiver of the right of that agency to participate as a party in the proceeding.

(e)  Other parties may include any person, including those persons enumerated in paragraph (c) who have failed to timely file a notice of intent to be a party, whose substantial interests are affected and being determined by the proceeding and who timely file a motion to intervene pursuant to chapter 120 and applicable rules. Intervention pursuant to this paragraph may be granted at the discretion of the designated administrative law judge and upon such conditions as he or she may prescribe any time prior to 30 days before the commencement of the certification hearing.

(f)  Any agency, including those whose properties or works are being affected pursuant to s. 403.509(4), shall be made a party upon the request of the department or the applicant.

(5)  When appropriate, any person may be given an opportunity to present oral or written communications to the designated administrative law judge. If the designated administrative law judge proposes to consider such communications, then all parties shall be given an opportunity to cross-examine or challenge or rebut such communications.

(6)  The designated administrative law judge shall have all powers and duties granted to administrative law judges by chapter 120 and this chapter and by the rules of the department and the Administration Commission, including the authority to resolve disputes over the completeness and sufficiency of an application for certification.

(7)  The order of presentation at the certification hearing, unless otherwise changed by the administrative law judge to ensure the orderly presentation of witnesses and evidence, shall be:

(a)  The applicant.

(b)  The department.

(c)  State agencies.

(d)  Regional agencies, including regional planning councils and water management districts.

(e)  Local governments.

(f)  Other parties.

(8)  In issuing permits under the federally approved new source review or prevention of significant deterioration permit program, the department shall observe the procedures specified under the federally approved state implementation plan, including public notice, public comment, public hearing, and notice of applications and amendments to federal, state, and local agencies, to assure that all such permits issued in coordination with the certification of a power plant under this act are federally enforceable and are issued after opportunity for informed public participation regarding the terms and conditions thereof. The department shall accept written comment with respect to an application for, or the department's preliminary determination on, a new source review or prevention of significant deterioration permit for a period of no less than 30 days from the date notice of such action is published. Upon request submitted within 30 days after published notice, the department shall hold a public meeting, in the area affected, for the purpose of receiving public comment on issues related to the new source review or prevention of significant deterioration permit. If requested following notice of the department's preliminary determination, the public meeting to receive public comment shall be held prior to the scheduled certification hearing. The department shall also solicit comments from the United States Environmental Protection Agency and other affected federal agencies regarding the department's preliminary determination for any federally required new source review or prevention of significant deterioration permit. It is the intent of the Legislature that the issuance of such permits be closely coordinated with the certification process established under this part. In the event of a conflict between the certification process and federally required procedures contained in the state implementation plan, the applicable requirements of the implementation plan shall control.

History.--s. 1, ch. 73-33; s. 6, ch. 76-76; s. 1, ch. 77-174; s. 134, ch. 79-190; s. 9, ch. 81-131; s. 36, ch. 81-167; s. 37, ch. 83-55; s. 26, ch. 86-186; s. 11, ch. 90-331; s. 9, ch. 93-94; s. 386, ch. 94-356; s. 140, ch. 96-410; s. 1008, ch. 97-103; s. 207, ch. 99-245.