STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CAPELETTI BROTHERS, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 79-891
) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION , )
)
Respondent. )
)
RECOMMENDED ORDER
After notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. The purpose of this hearing was to consider the necessity for and entitlement to an environmental permit for the benefit of the Petitioner, Capeletti Brothers, Inc., with the Respondent, State of Florida, Department of Environmental Regulation, being the permitting agency. The majority of the installments of the hearing were conducted in Miami, Florida, on September 19: September 21, 1979; bind December 20 and 21, 1979.
The concluding installment of the hearing was conducted in Tallahassee, Florida, on March 5, 1980.
In view of the nature of this dispute in which the Petitioner disagreed with the Respondent's authority to require an environmental permit and in view of the particular circumstances involved in this case, in which the Respondent has been found to have acted inconsistently in evaluating this Petitioner's case when contrasted with the permit jurisdiction and review process used for similar installations, the hearing was bifurcated. The initial phase of the hearing considered the Respondent's jurisdiction to require a permit and an order was issued on December 7, 1979, which dealt with the jurisdictional issue and held that the only permit necessary would be that class of permit required by Section 403.087, Florida Statutes. Other potentially applicable permit classes were not felt to be applicable and a recommendation was made to dismiss those other claims of permit authority.
The present Recommended Order deals with the second phase of the bifurcated hearing in which findings of fact are made and a conclusion of law is reached on the question of the Petitioner's entitlement to a stationary installation permit under the terms of Section 403.087, Florida Statutes, followed by a recommendation directed to the ultimate disposition of the stationary installation permit question. It is intended that this Recommended Order be read in conjunction with the jurisdictional order and recommendation of December 7, 1979.
APPEARANCES
For Petitioner: Robert H. Blank, Esquire
Paul H. Amundsen, Esquire
PEEPLES, EARL, SMITH, MOORE & BLANK, P.A.
One Biscayne Tower, Suite 3636 Two South Biscayne Boulevard Miami, Florida 33131
For Respondent: Randall E. Denker, Esquire
William H. Thite, Esquire
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301 ISSUE
The issue to be determined by this Recommended Order considers the question of the Petitioner's entitlement to the issuance of a stationary installation permit in keeping with the terms and conditions of Section 403.087, Florida Statutes; Rule 17-4.03, Florida Administrative Code, and those other provisions of Chapter 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code, designed to implement the above-referenced provisions of law and code.
FINDINGS OF FACT
The Petitioner in this matter is Capeletti Brothers, Inc., a Florida corporation.
.The Respondent is the State of Florida, Department: of Environmental Regulation, an agency of the State of Florida with regulatory authority granted pursuant to Chapter 253, Florida Statutes, and Chapter 403, Florida Statutes, and those rules attendant thereto.
Through its Petition as received by the State of Florida, Department: of Environmental Regulation, the present: Petitioner has filed a formal proceeding pursuant to Subsection 120.57(1), Florida Statutes, and through this Petition has challenged the Department's assertion of jurisdiction to require an-environmental permit and in the alternative has requested that the permit be granted if it is determined that a permit is necessary. (The jurisdictional question was ruled on by order dated December 7, 1979.)
The Petitioner's activity which fostered the current dispute between the parties involved the Petitioner's intention to excavate certain property in Broward County, Florida, and through such excavation remove rock fill material constituted primarily of limestone and leave in place a quarry containing water.
The Petitioner holds an option to purchase the property in question subject to the granting of necessary environmental permits to conduct the excavation. The terms and conditions of that option to sell may be found in the Petitioner's Exhibits 10 and 11, admitted into evidence. The Petitioner had intended to use the fill material in the furtherance of a road building project by contract entered into between the Petitioner and the State of Florida, Department of Transportation, the contract award being made on February 23, 1977. The parties to that contract terminated the contract prior to any permit for dredging having been granted; however, Petitioner still desires to excavate
at the site for the purpose of obtaining fill material for future building projects and the nature of the option to purchase would allow the Petitioner to continue to pursue its efforts at obtaining a permit, notwithstanding the termination of the original agreement between Capeletti Brothers, Inc., and the State of Florida, Department of Transportation.
The Respondent has issued a Notice of Intent to Deny the permit by a letter dated March 26, 1979, and a copy of the Notice of Intent to Deny may be found as Exhibit "A" to the Petition. This Notice of Intent to Deny followed the receipt and review of Capeletti Brothers, Inc.'s application for permit dated October 18, 1978. In addition, the Respondent has asserted permit jurisdiction based upon grounds not set forth in the Notice of Intent to Deny. This claim for jurisdiction is a claim for jurisdiction under the provisions of Chapters 253 and 403, Florida Statutes, and their associated rules.
A copy of the application for permit may be found as Petitioner's Exhibit No. 1 admitted into evidence and this application contains sketches showing the location of the proposed project with reference to the surrounding terrain and other features.
The proposed project site consists of approximately forty-four acres of land located south of Andytown, Florida, and west of State Road 25 (U.S. 27). The site is surrounded by Alligator Alley to the north; State Road 25 to the east, with a contemplated borrow canal to be constructed between State Road 25 and the project location, immediately adjacent to State Road 25; to the west by Florida Power and Light patrol road, with a borrow canal running north and south located west of the patrol road and Levee 37 further west of the borrow canal, this levee being maintained by the South Florida Water Management District. To the south of the project is an access road which grants access to the Florida Power and Light patrol road. The quarry which is to be dug on the acreage in question will not intersect either of the borrow canals referred to above.
Upon completion, the pit area will consist of approximately twenty-two acres of open excavation approximately forty feet deep with a littoral zone constituted of sawgrass.
At the conclusion of the project, all fill material that has been excavated will have been removed from the project site and the access road to the project site destroyed. The pit will be left full of water that has entered the pit at the excavation during the dredging. That water will be constituted primarily of groundwater located immediately below the surface in pockets found in the limestone fill material. The displacement of limerock will allow the groundwater to fill the void. Although the water which enters the excavation site will be primarily groundwater, the waters within its boundaries will eventually have the characteristics of surface waters due to the design of the activity being much like a natural pond.
Approximately four thousand feet south of the project site is an abandoned rock quarry with an access road from State Road 25 and approximately two miles south of the project site is an active rock quarry operated by Rosen, Rosen and Tupler. The nature of the Rosen, Rosen and Tupler quarry is similar to that as contemplated by the Petitioner's plan. There are other rock quarries of similar nature located in the vicinity of the project site.
The project site does not receive surface flows or sheet flows from adjacent properties due to the fact that the project site is surrounded by dykes and borrow canals which block surface flows or sheet flows from any adjacent
properties. The surface water flow on the property is in a more or less southeasterly direction.
The rainfall that occurs at the project site causes the project site to be inundated at times with standing water as deep as six or eight inches. This water will not exit the property except in times of high incidence of rain, when the water may overflow the Florida Power and Light access road and make entry into the borrow canal adjacent to State Road 25, gaining such access at the southeast of the project site. At present, part of the borrow canal east of the project site and adjacent to State Road 25 has been filled in. As stated before, this area will be replaced by a future excavation of a borrow canal in the area now covered.
The surface water which stands on the project site normally percolates into the ground or evaporates into the atmosphere.
The primary vegetation at the project site is sawgrass. The project: as contemplated would remove some of these grasses and attached heavy muck soils, but there would remain a sawgrass zone between the contemplated borrow canal located east of the project and the Levee 37 borrow canal located west of the project.
The borrow canals located to the east and west of the project site flow south to the South New River Canal, which runs generally east and west.
The waters collected in the South New River Canal are subject to being pumped through the pumping station S-9 which distributes water to the west or the water may be carried through the South New River Canal in an easterly direction, eventually entering the South New River, a natural waterway subject to navigation. The South New River is approximately twenty miles from the project site. The South New River empties into the Atlantic Ocean. Those waters which are pumped westerly through pumping station S-9 may enter other natural waterways and eventually the Gulf of Nexico by transportation through a series of artificial canals and natural water connections.
Although the Petitioner does not intend to introduce contaminants at the proposed project site during the preparation stage; stage of excavation and stage of evacuation, the testimony concerning the project site and an active quarry of similar nature in the immediate vicinity, and other similar quarries, establishes that it could be reasonably expected that oils, greases and lead would be dispersed in the area of the quarry pit, the immediately adjacent wetlands and at times of high incidence of rainfall, into the borrow canals adjacent to the property. However, before the contaminants reach the borrow canals by overland sheet flow, they will be filtered out by the wetlands.
The contamination into the pit would find its way into the Biscayne Aquifer, the Aquifer at the project site being only a foot or so beneath the surface., The introduction of contaminants into the Biscayne Aquifer at the project site will eventually lead to the direct mixing of those contaminants with portions of the Biscayne Aquifer adjacent to the project site, in particular west of the project site in the containment area which is part of the system of submerged lands of the state and to the borrow canal east of the project site.
There is also the possibility of copper, zinc, iron, chromium, manganese, dieldrin and polychlorinated biphenyls contaminants being introduced into the pit (quarry). in association with the project, though this possibility is more remote than in the case of the substances previously mentioned and the
possibility is so remote that it is not reasonably expected to occur. Therefore, these are not substances for which the Petitioner must do actual testing to show that they do not exceed water quality standards in order to establish necessary reasonable assurances. The facts presented did not give rise to even a potentiality for the presence of other regulated substances that might exceed applicable water quality standards, with the exception of phenols which are reported next.
Phenolic-type compounds were found in the active and inactive quarry pits similar to the proposed installation These compounds as detected in the sample and reasonably expected at the project are naturally occurring phenomena and not the direct product of the mining activity.
The mining will create turbid conditions and there will be fluctuations in dissolved oxygen concentrations and BOD values and changes in pH values in the pit.
The above-referenced contamination and variations in values would be injurious to human health or welfare, animal and plant life and property and, as a consequence, interfere with the enjoyment of life and property, if found to exceed the Respondent's applicable water quality standards.
The Petitioner, if allowed to carry out the project, has given specific reasonable assurance that it will not violate the Respondent's applicable water quality standards related to the turbidity, dissolved oxygen, BOD, lead, oils and greases, and pnenols. See Rule 17-3.05(2), Florida Administrative Code. Other substances-and conditions found in that subsection of the rule not being reasonably expected to occur, necessary reasonable assurance has been established for those. There will be no discharges of heated water. See Rule 17-3.05(3), Florida Administrative Code.
The project site does not involve outstanding Florida waters within the meaning of Rules 17-3.041 and 17-4.242(1), Florida Administrative Code.
Testimony offered in the course of the hearing shoes that in similar projects in terms of their location and purpose, the State of Florida, Department of Environmental Regulation, has at times disclaimed its jurisdiction to require a permit and at other times granted permits.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.
The Respondent has permit jurisdiction pursuant to Section 403.087, Florida Statutes. This conclusion is reached based upon the fact that the project is a stationary installation that is reasonably expected to be a source of water pollution in all phases, and absent some specific exemption by Department rule, a stationary installation permit is required. No such exemption exists for the benefit of this Petitioner. See, otsc, Subsections 403.031(2), (3), (4), (5), (8), and (10), Florida Statutes.
Having established a permit requirement for stationary installations, Section 403.087, Florida Statutes, further mandates that the Respondent establish rules, regulations, and standards for the issuance, denial and revocation of these permits. To this end, the Department of Environmental Regulation has enacted Rule 17-4.03, Florida Administrative Code, which sets
forth as an initial requirement that the Department issue a stationary installation permit after it has been assured that the installation would not cause pollution in violation of Chapter 403, Florida Statutes, or rules and regulations promulgated thereunder and found in the Florid Administrative Code. The type of assurance necessary is further explained in Rule 17-4.07, Florida Administrative Code, in which an applicant for permit is required to affirmatively provide reasonable assurance to the Department based on its plans, test results and other information that the installation will not discharge, emit, or cause pollution in - convention of the Department's standards, rules and regulations in any of the project phases. This necessary affirmative reasonable assurance on the part of this applicant should be viewed with regard for the analysis of that standard which was made in the case of Estuary Properties, Inc., v. Askew, So.2d , 1 Fla. L. Weekly,32 (Fla. 1st DCA, opinion filed December 17, 1979). This case removed the necessity for a permit applicant to overcome every doubt or potentiality raised by the agency on the subject of violating permit standards and, instead, required only that showing necessary to promote reasonable assurance that violations would not occur. The effect of this determination was to relieve the applicant from unnecessary expense in the permit process in order to prove to the agency beyond a reasonable doubt that violations would not occur, in contrast to the requisite reasonable assurance. Estuary is not a Chapter 403 case; however, the discussion and treatment of the meaning of reasonable assurance would have equal application to the case sub judice. This reading of Estuary is further supported by the language of Section 403.087, Florida Statutes, which requires the permitting only of those stationary installations which will reasonably be expected to be a source of air or water pollution. It does not require the permitting of stationary installations based upon a mere potentiality of those installations as a source of air or water pollution.
From the discussion thus far, it can be seen that a permitting process for stationary installations pursuant to Section 403.087, Florida Statutes, is intended to protect against water pollution by requiring necessary reasonable assurance by the applicant that the Department's water quality standards related to the protection against potentially injurious agencies related to human health or welfare, animal and plant life, or property, or related to unreasonable interference with the enjoyment of life and property, including outdoor recreation will be met. See Subsection 403.031(2), Florida Statutes. To effect the specific purposes of the mandate, the Department has for its use substantive rules related to water quality and these rules are found in Chapter 17-3, Florida Administrative Code. In some instances, the waters in question are further protected by a water classification scheme.
Of the former category of water quality standards related to all waters, see Subsection 403.031(3), Florida Statutes; Rule 17-3.05(2), Florida Administrative Code, encompasses ground water/underground water through its standards on pollution concentrations for the delineated substances and conditions found in that subsection of the rules. Because he stationary installation to be constructed by the Respondent can be reasonably expected to introduce pollutants into the Biscayne Aquifer, which is a ground water body owned by the state, it is necessary that the Petitioner give reasonable assurance that the designated water quality substances and conditions will not reasonably be expected to be a part of this pattern of pollution and to the extent that they can be reasonably expected to be a part of the pattern of pollution that sufficient tests have been conducted to give the necessary reasonable assurance that the amounts of the designated substances or conditions shall not exceed standards. (Some of those standards set forth in Rule 17- 3.05(2), Florida Administrative Code, refer to surface water considerations;
however, the design of the project is such that the ground water which shall make up the predominant component of the waters in the quarry pit are similar in nature to surface waters in fresh water ponds and this would be sufficient reason to apply the water quality standards as criteria for pollution in the present case. This refers to those standards dealing with turbidity, dissolved oxygen and BOD.)
From the testimony revealed, it can be reasonably expected that oils, greases and lead would be introduced into the quarry pit and thereby into the Biscayne Aquifer and into the borrow canals adjacent to the property in times of high incidence of rainfall. In this latter contingency, the pollution would be filtered out by the intervening wetlands before reaching the borrow canals. In connection with the substances mentioned in this paragraph, the necessary reasonable assurances have been given that water quality standards will not be exceeded
Copper, zinc, iron, chromium, manganese, dieldrin and polychlorinated biphenyls might be introduced into the quarry in the course of the project, but these substances are not reasonably expected to be introduced and, consequently, the contemplated reasonable assurances have been given without the necessity for specific testing to detect the presence of these substances and the amounts of the substances. None of the other designated substances found in' Rule 17- 3.05(2), Florida Administrative Code, were indicated as having a potentiality for their presence during the project, excepting phenols. Consequently, reasonable assurances have been given as to those other designated substances, with the exception of phenols which are now discussed.
Phenolic-type compounds can reasonably be expected in the area of the excavation. These are naturally occurring phenomena and are not a direct product of the mining activity They are not expected to exceed water quality standards set forth in Rule 17-3.05(2), Florida Administrative Code.
The project will create turbid conditions and fluctuations in dissolved oxygen concentrations and BOD values, in addition to changes in pH values in the quarry pit. The Petitioner though testing has given reasonable assurances that the water quality standards defined in Rule 17-3.05(2), Florida Administrative Code, related to these conditions and substances shall not be exceeded.
Rule 17-3.06, Florida Administrative Code, sets out a classification scheme for waters of Florida alluded to before. A review of those various classes reveals that these classifications do not consider ground water and, consequently Rules 17-3.07 through 17-3.11, Florida Administrative Code, dealing with the specific water quality standards related to the individual classes of waters would not apply in this case.
The Department had not enacted ground water standrd.'; at the time the Petitioner applied for its permit and for that reason and in view of the stipulation of the parties as reflected in the order of the Hearing Officer dated August 28, 1979, setting forth that stipulation; to the effect that only those rules of the Florida Administrative Code in effect at the time of the application would be utilized in reviewing the permit, any subsequent ground water rules would not pertain to this permit request.
Likewise, those other provisions of Chapter 17-3, Florida Administrative Code, dealing with water quality considerations do not have application.
In entering the jurisdictional order related to this case on December 7, 1979, Rules 17-4.21 through 17-4.27, Florida Administrative Code, were rejected from Use point of view of creating any requirement on the part of the Petitioner to obtain a permit under the terms and conditions of those rules. The rules were not treated by a detailed analysis, because such in-depth analysis was not deemed to be indicated. No comment was made on the subject of
- Section 403.088, Florida Statutes, on the belief that the aforementioned rules were deemed to be an extension of that provision of law in the way of creating requirements in substance for the implementation of the permitting process found in that provision, in those cases where the activity of a person had as its intent the discharge of waste into the waters of the state, in contrast to stationary installations which, though unintentional, could be reasonably expected to be a source of pollution. See Section 403.087. Florida Statutes.
It is now propitious to deal with Section 403.088, Florida Statutes, in a more comprehensive manner, the Respondent having continued to suggest the applicability of that section to the permit question now presented.
Section 403.088, Florida Statutes, has no application to this permit question. This Petitioner does not intend the discharge of waste into the waters of the state. This is not the nature of the activity. Moreover, the activity of the Petitioner is not one in which it has requested a permanent permit to allow for the intentional discharge of waste into the waters of the state and been denied such a permit. Section 403.087, Florida Statutes, creates a form of permit for stationary installations independent of the permit requirements of Section 403.088, Florida Statutes, and it is that provision alone which has application herein. Finally, although Rules 17-4.21 through 17- 4.27, Florida Administrative Code, make reference to the fact that they implement Section 403.087, Florida Statutes, a reading of this provision leads to the conclusion that the rules refer only to the implementation of Section 403.088, Florida Statutes.
The waters affected through the mining activity of the Petitioner do not involve outstanding Florida waters within the meaning of Rules 17-3.041 and 17-4.242(1), Florida Administrative Coded.
In the course of the hearing, the Respondent, in the way of a proffer, has attempted to promote the theory that wildlife considerations should enter into the permit review process, to include the habitats of wildlife. Although Chapter 403, Florida Statutes, would seem to allow for the evaluation of wildlife considerations in protecting against "pollution" and in particular wildlife habitats, the policy statements found in that chapter are not self- executing and it would be necessary for the Department to enact rules designed to address those concerns. Those rules do not exist at present and, consequently, no specific standards are in effect which would create a basis for denying this permit. Absent the necessary written rules, wildlife considerations may not be used as a basis for denying this permit. Permitting is not to be achieved by ad hoc rules. See Sexton Cove Estates, Inc. v. State Pollution Control Board, 325 So.2d 468 (Fla. 1st DCA 1976); Isaac Walton League of America v. Manatee Energy Company, 16 Fla. Admin. L. Rep. 947 and Arlington East Civic Association v. Jacksonville Transportation Authority 11 Fla. Admin. L. Rep. 540, and paragraph six (6) which follows.
The Respondent espoused a further theory for permit review referred to as the "cumulative impact" review standard. Roughly speaking, this theory is one in which permits can be denied on the basis of a review of the subject
project being mindful of environmental considerations within the geographical region of the project site and would also involve examination of future potential uses of the project site, once the Petitioner's activities have been concluded. The "cumulative impact" theory of review may only be utilized to the extent that the term may be equated with "public interest" considerations related to the review process and then only to the extent that the permit is sought under Section 403.088, Florida Statutes, as contrasted with a permit applied for under Section 403.087, Florida Statutes, and in no event does it extend to an overview of the surrounding region, except to the degree that the events within that region effect the immediate project site. Future utilization has never been a topic in considering "public interest," such future utilization in itself being subject to possible permit requirements. More importantly, Section 403.087, Florida Statutes, makes no mention of "public interest" as a consideration in the permit process. Consequently, if reasonable assurances have been given related to applicable water quality standards, as is the case in this instance, they shall suffice.
The Petitioner had offered its Exhibit No. 28, and ruling was reserved on the entry of that exhibit. Exhibit No. 28 is now admitted.
The Petitioner was given an opportunity to reply by exhibit to Respondent's Exhibits Nos. 24, 25 and 26 and that response has been made and may be found as an attachment to the Petitioner's Notice of Supplement to Respondent's Exhibits Nos. 24, 25 and 26.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That the stationary installation permit required by Section 403.087, Florida Statutes, as applied for by the Petitioner, be GRANTED subject to the placement of necessary pollution control facilities needed to abate or prevent pollution. See Subsection 403.087(4), Florida Statutes.
DONE AND ENTERED this 6th day of May, 1980, in Tallahassee, Florida.
CHARLES C. ADAMS,
Hearing Officer
Division of Administrative Hearings
101 Collins Building Tallahassee, Florida 32301 (904) 488-9675
APPENDIX
The Respondent has offered Proposed Findings of Fact, Conclusions of Law and a Recommendation, and this presentation has been reviewed prior to the entry of this Recommended Order. To the extent that this presentation is not inconsistent with this Recommended Order, it has been utilized. To the extent that it is inconsistent, it is hereby rejected.
COPIES FURNISHED:
Robert H. Blank, Esquire Paul H. Amundsen, Esquire PEEPLES, EAEL, SMITH, MOORE
& BLANK, P.A.
One Biscayne Tower, Suite 3636 Two South Biscayne Boulevard Miami, Florida 33131
Randall E. Denker, Esquire William H. White , Esquire Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
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AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CAPELETTI BROTHERS, INC.,
Petitioner,
vs. CASE NO. 79-891
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondent.
/
FINAL ORDER
On May 6, 1980, the Division of Administrative Hearings' hearing officer assigned to conduct a Section 120.57, Florida Statutes, hearing in the above case submitted to the Department his Recommended Order, as well as a Order and Recommendation on Jurisdiction, the latter dated December 7, 1979. Copies of the Recommended Order and Order and Recommendation on Jurisdiction are attached as Exhibit 1 and Exhibit 2. Subsequent to submittal of the Recommended Order, exceptions were submitted by both parties, pursuant to Section 120.57(1)(b)4., Florida Statutes. Oral argument was held on June 24, 1980, before me as head of the Department. Both parties stipulated on the record that I would have until July 7, 1980, to issue a final order in this case and waived the licensing times of Section 120.30, Florida Statutes, until that date.
The findings of fact of the hearing officer are adopted and the conclusions of law are adopted in part and rejected in part as more specifically discussed below.
DISCUSSION OF CONCLUSIONS OF LAW
A. BURDEN OF PROOF
The conclusions of law of the hearing officer dealing with burden of proof are rejected. The Department again reaffirms its previous decisions that the burden of proof in licensing proceedings is on the applicant. The Department gives specific notice that reversal or remand of the cases back to the Division of Administrative Hearings will follow in cases where the burden of proof is not applied in accordance with this order. The Department has clearly stated its interpretation of applicable rules in a number of recent cases including: Freeport Sulphur Company v. Agrico Chemical Company and the Department of Environmental Regulation, Case No. 78-315; Department of Transportation v. J. W.
C. Company, Inc. and Department of Environmental Regulation, Case No. 76-832; Strazzulla Brothers Company, Inc., et al., v. Department of Environmental Regulation, Case No. 78-1287. The Department concludes that not only does the applicant have the burden of proof of showing entitlement to a permit, but the applicant, if it elects to challenge the jurisdiction of the Department, has the burden of proof of showing that the activities contained in the application are outside the agency's jurisdiction.
Rule 17-1.59, Florida Administrative Code, states:
Burden of Proof. In license and variance proceedings before the Department, the person requesting a hearing, variance, license, or other relief, shall have the burden of proof to establish, by a preponderance of the
evidence, entitlement to the requested license, variance, or other relief.
Rule 28-6.08, Florida Administrative Code, Model Rules of Procedure, provides:
Denial of License. Any hearing on the denial of a license shall be conducted in accordance with Section 120.57, and unless otherwise provided by law the applicant shall have the burden of establishing entitlement to the license.
Thus, under the applicable rules of procedure, the burden of proof was on Petitioner. "Burden of Proof" has been defined as the duty of establishing the truth of a given proposition or issue by the quantum of evidence the law demands in a particular case. 13 Fla. Jur., Evidence, Section 59. Department rules cited above specify that the standard of proof is preponderance of the evidence. This standard of proof was recently upheld as the appropriate standard for administrative agencies in Gans v. Department of Professional and Occupational Regulation, So.2d, (Fla. 3rd DCA 1980) 1980 FLW 824. In Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349, 350 (Fla. 1st DCA 1977), it was held that "the general rule is, that as in court proceedings, the burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal." See also Florida Department of Health and
Rehabilitative Services v. Career Service Commission, 289 So.2d 412 (Fla. 4th DCA 1974), Fitzpatrick v. City of Miami Beach, 328 So.2d 578 (Fla. 3rd DCA 1976). The former director of the Division of Administrative Hearings, Kenneth
Oertel, in Fla. Admin. Prac. Forms, Section 6-46, stated:
In an administrative proceeding, as in a trial, the person who asserts the affirmative of an issue has the burden of proving it. This means that a person who applies to the agency for a license and requests a hearing on the application has the burden of affirmatively proving he is entitled to it.
In Yonge v. Askew, 393 So.2d 395 (Fla. 1st DCA 1974), it was held that where a statute requires a dredging and filling in submerged lands be in the public interest to qualify for a permit, the burden is on the applicant to make an affirmative showing.
The Department in the administrative cases cited above, and particularly in Freeport Sulphur, has clearly established its interpretation of its rules and agency practice that an applicant has the burden of proof in administrative hearings. This interpretation will also be followed in cases where an applicant challenges Department jurisdiction. Where the applicant (or other party) initially raises and affirmatively asserts the Department's lack of jurisdiction the applicant (or other party) has the burden of affirmatively proving that assertion.
NECESSITY OF PERMITS UNDER SECTION 403.088 FLORIDA STATUTES
The conclusions of law of the hearing officer in paragraph 3. of the Recommended Order are rejected. The hearing officer found in both the Order and Recommendation on Jurisdiction and in the Recommended Order that Petitioner through its mining activities would discharge both into the mining pit and into adjacent canals. The hearing officer also found that the canals receiving the discharge flow south and eventually enter the South New River. The Department concludes that these canals are waters of the state. The hearing officer seemed to reach the same conclusion, implying that if fill had been deposited in the canals, a dredge and fill permit would have been required. If these canals are waters of the state then there is no logical distinction between the necessity of a permit to discharge to ground waters versus the necessity of a permit for a discharge to the adjacent canals. The hearing officer found a discharge to the canals would occur, although filtered by the remaining sawgrass fringe.
The hearing officer discussed the language of Section 403.088, Florida Statutes, and concluded that because Petitioners were not "intending" to discharge to waters of the state, no permit under that section was required. An equivalent situation would be for an operator of a sewage treatment plant to discharge sewage onto the ground, let it run down hill by natural forces of gravity, and claim that he did not "intend" to discharge to waters of the state. That obviously was not the intent of the legislature in the enactment of that section. This situation at hand is one where the Petitioner is intentionally engaging in mining activities, which incidentally, as found by the hearing officer, will result in the discharge of wastes into waters of the state. It is not an accident that such occurs and by undertaking the mining activity is deliberately causing a discharge. Thus, the hearing officer's conclusion of law is rejected
CONSIDERATION OF PLANT, ANIMAL AND AQUATIC LIFE UNDER CHAPTER 403, FLORIDA STATUTES
The first part of paragraph 5. of the conclusions of law dealing with the authority of the Department to consider habitat of wildlife is adopted. The latter portion of the conclusions of law of the hearing officer dealing with the rules and standards in effect and the ability to consider wildlife in denying the permit is rejected.
Biological considerations are an important part of Chapter 403, Florida Statutes, and the protection of wildlife, fish, and other aquatic life was one of the stated purposes of the legislature in passing Chapter 403, Florida Statutes in 1967. See Section 403.021, Florida Statutes. The predecessor agency of the Department of Environmental Regulation, the Department of Pollution Control, was created for the primary purpose of controlling pollution. Pollution is defined in Section 403.031(2), Florida Statutes, in terms of the presence of substances, contaminants, noise, or man-made or man-induced alteration of the chemical, physical, biological or radiological integrity of air or water in quantities or at levels which are or may be potentially harmful or injurious to human health or welfare, animal or plant life, or property or interfere with the enjoyment of life or property, including outdoor recreation. In Section 403.141, Florida Statutes, the Department is given the authority to sue for damages to the resources of the state, including the authority to collect damages for fish killed and to obtain restoration of the air, waters and property, including animal, plant, and aquatic life of the state, to their former condition. Section 403.161, Florida Statutes, prohibits pollution so as to harm or injure human health or welfare, animal, plant or aquatic life or property.
In addition to the statutory provisions and prohibitions, the Department in its consideration of applications for permits considers the long-range effects upon water quality of the elimination of certain plant communities which are vital to water quality of waters of the state. It considers such functions as the "kidney effect" of the vegetative fringe surrounding a water body.
Scientific evidence shows and it has been found in many cases that the vegetative fringe surrounding a water body performs a crucial water quality function of intercepting and treating stormwater from the uplands, converting otherwise harmful nutrients into detrital material which can be broken down and assimilated by the food chain. Without the water treatment provided by these areas, water bodies in the state would soon be putrid and no longer useful for the beneficial uses which now make these water bodies so valuable. This function was recognized by the hearing officer with his finding that a fringe of sawgrass would be maintained by the applicant and would serve to filter out pollutants prior to discharge to the canals. It is this very function which the Department considers and seeks to protect. Without this interrelated biological function and the continued assimilation of nutrients up the food chain, the waters would be valueless and of poor quality.
Agencies are allowed certain latitude in refining agency policy through adjudication of individual cases. The Florida Supreme Court recently held that "administrative agencies are not required to institute rulemaking procedures each time a new policy is developed...although that form of proceeding is preferable where established industry-wide policy is being altered." Florida Cities Water Company, v. Florida P.S.C., So.2d (Fla. 1980), Case No.
55,722. In MacDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), the First District Court held:
The APA does not chill the open development of policy by forbidding all utterance of it except within the strict rulemaking process of Section 120.54. Agencies will hardly be encouraged to structure their discretion
progressively by vague standards, then definite standards then broad principles, then rules
if they cannot record and communicate a merging policy in those forms without offending Section
120.54. The folly of imposing rulemaking pro cedures on all statements of incipient policy is evident. Id. at 580.
Thus, even if the biological concerns discussed above were first being raised in this case, it would be permissible under the cases cited above and under Chapter 120, Florida Statutes. However, the concerns addressed above are not new policy of the agency. To the contrary, there is a long line of cases which have been litigated before the Division of Administrative Hearings, discussed in final orders, and appealed to the courts. This is a well established, fully discussed and explicated policy. A number of cases in which such concerns have been discussed and upheld include: Flossie H. Manucey v. Department of Environmental Regulation, Case No. 76-1441; Conley P. Glover and W. E. Kirchoff, Jr., v.
Department of Environmental Regulation, Case No. 76-1235; Orange County v. Department of Environmental Regulation, Case No. 77-648; E. F. Guyton v.
Department of Environmental Regulation, Case No. 78-1817, and Vo-Salle Farms, Inc., v. Department of Environmental Regulation, Case No. 76-1179.
The Department adopted rules further establishing this policy. These rules include: 17-3.021(15), (16), (20); 17-3.05(1)(a)1.; 17-3.05(1)(f)(i) ; 17-
3.051(1)(e) ; 17-3.061(1)(o) ; 17-3.091(6); 17-3.111(4); 17-3.121; 17-3.121(7),
Florida Administrative Code.
Thus, it has been a long standing and well explicated policy of the Department that biological considerations may and in fact are required to be considered under Chapter 403, Florida Statutes. The water quality implications of destruction of plant, animal, and aquatic life must be considered and are an integral part of the permitting process of Chapter 403, Florida Statutes.
CUMULATIVE IMPACT AND CONSISTENT AGENCY PRACTICE
Conclusion of law in paragraph 6. which deals with the consideration of the cumulative impact of projects is rejected. Section 120.68(12)(b), Florida Statutes, requires a reviewing court to remand the case to the agency if it finds the agency's exercise of discretion to be inconsistent with an agency rule, an officially stated agency policy, or prior agency practice, if deviation therefrom is not explained by the agency. The courts have interpreted this to mean that agencies are bound to follow their previous decisions and practices unless a good explanation is given for deviation. It has been described as setting up an ever expanding library of precedent which would provide predictability of future agency decisions, based upon actions they have taken in the past. See MacDonald v. Department of Banking and Finance, supra. Further requirements are placed upon agencies by Section 120.53(2), Florida Statutes, which requires an agency to keep a file of all of its final orders available for public inspection as well as a current subject matter index of these orders.
The Department has complied with this requirement. Evidence of the use of this subject matter index and library of administrative case decisions before the
Department is the number of cases cited by Petitioner to support its application and case. The hearing officer recognized this principle of adherence to agency precedent by citing previous decisions of the Department on similar applications.
Consequently, it is difficult to understand why the hearing officer has found in this conclusion of law that the agency may not consider the long-range ramifications of granting this application, when the precedent of granting this permit may require the granting of permits to a number of other similarly situated applicants. The application of this doctrine is recognized specifically in Section 403.141, Florida Statutes, where the Department is granted the authority to take action against several sources of pollution if it cannot prove the degree of contribution by individual applicants. The Department can also consider such combined or cumulative discharges in the preconstruction stages rather than waiting until the problem occurs.
A number of administrative cases have recognized the authority of the Department to consider past and future agency practice in the consideration of Chapter 403, Florida Statutes, permits: Leeson v. Department of Environmental Regulation, Case No. 75-2042; Glover and Kirchoff v. Department of Environmental Regulation, Case No. 76-1235; Lauthain v. Department of Environmental Regulation, Case No. 76-1960; Dowdy v. Department of Environmental Regulation, Case No. 79-219.
The conclusions of law of the hearing officer in regard to cumulative impact are rejected and it is specifically concluded that the Department may consider cumulative impacts as a part of a review of previous agency practices and future agency actions that may be mandated by the issuance of a particular permit.
MISCELLANEOUS
The conclusion of law relating to Chapter 253, Florida Statutes, in the Recommendation and Order on Jurisdiction is rejected. However, as the hearing officer recommended, the Department will withdraw any claims at this specific site for Chapter 253, Florida Statutes, jurisdiction and no 253 permit will be required of Petitioner.
At the hearing the hearing officer found that the Department under the principles of res judicata and collateral estoppel was estopped from proving the navigability of the waters in question by the decision of a hearing officer in a previous case. However, there is no privity of parties between the parties in the other case and the instant case. Therefore, the conclusions of law that the Department was estopped to assert jurisdiction in this case is rejected.
However, because such claims are withdrawn, such rejection will have no effect on the outcome of this case.
ORDER
The remaining conclusions of law in the Order and Recommendation on Jurisdiction and the Recommended Order are adopted. The hearing officer found that the dredging and filling on this particular site would not be conducted in waters of the state, so based on the specific findings of fact by this hearing officer, no dredge and fill permit will be required.
As recommended by the hearing officer, I find that a permit pursuant to Section 403.087, Florida Statutes, is required for the discharge to the rock
mining pit, which is composed of waters that were previously underground waters of the state. In most cases, once underground waters are allowed to be exposed in a surface water body such as the pit in this case, the Department would find that the underground waters became surface waters and were subject to meeting water quality standards of the Department for surface waters. See Rule 17- 3.021(25), Florida Administrative Code. However, in this case the hearing officer found that the area of immediate work did not constitute surface waters of the state (thus no necessity for a dredge and fill permit) and that the applicant owned the land around the pit. Therefore, under the exception in Section 403.031(3), Florida Statutes, the Department will look at the discharge as a discharge to ground waters of the State rather than surface waters. In addition, it should be pointed out that at the time the applica- tion was filed there were a number of general standards contained in Rule 17-3, Florida Administrative Code, which pertained to all waters of the state, including ground waters. The Department has since adopted ground water standards which would be required to be met by all sources including this source, from an operation standpoint. See Department of Environmental Regulation v. Oyster Bay Estates, So.2d (Fla. 1st DCA 1980) 1980 FLW.
When an applicant wishes to construct an excavation in waters of the state, such as areas that are subject to Rule 17-4.28, Florida Administrative Code, the applicant has the burden of proving surface water standards will be met.
Accordingly, I, therefore ORDER that the District manager issue a permit within twenty (20) days to Petitioner, pursuant to Section 403.087, Florida Statutes, for a permit to discharge to ground water through the rock mining pit. The permit shall contain the standard provisions and, in addition, specify reasonable monitoring to be carried out in the pit and from wells upstream and downstream of the ground water flow to insure ground water standards are being met and no contamination of the aquifer occurs. The parameters to be monitored shall also be specified in the permit.
The permit shall also contain the minimum conditions provided by the application for permit such as the maintenance of the sawgrass fringe around the property. To insure no additional pollutants are discharged into the pit, the permit shall provide that the remaining fill shall be removed from the site when the rock mining activities are completed.
DONE AND ORDERED this 7th day of July, 1980, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
JACOB D. VARN
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
(904) 488-9730
RULING ON EXCEPTIONS
The exceptions of Respondent have been substantially adopted in this Final Order. All other exceptions are rejected as not in accord with the evidence or law.
The exception of Petitioner is rejected as not being in accordance with the evidence or law.
RULING ON MOTION TO STRIKE
The motion to strike Petitioner's Response to Respondent's Exceptions to Recommended Order filed by Respondent is denied.
JACOB D. VARN
Secretary
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. Mail to Mr. Charles C. Adams, Hearing Officer, Department of Administrative Hearings, Room 530 Carlton Building, Tallahassee, Florida 32301; Mr. Chris Bentley, Division of Administrative Hearings, Room 530, Carlton Building, Tallahassee, Florida 32301; Mr. Robert Blank, Esquire, Peeples, Earl, Smith, Moore & Blank, One Biscayne Tower, Suite 3636, Two South Biscayne Boulevard, Miami, Florida 33131 and Randall E. Denker, Esquire, Department of Environmental Regulation, 2600 Blair Stone Road, Tallahassee, Florida 32301, this 7th day of July, 1980.
TERRY COLE
General Counsel
Department of Environmental Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
(904) 488-9730
| Issue Date | Proceedings |
|---|---|
| Jul. 08, 1980 | Final Order filed. |
| May 06, 1980 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 07, 1980 | Agency Final Order | |
| May 06, 1980 | Recommended Order | Applicant provided necessary assurances for a dredge and fill permit. Future use of land not contemplated by present project not at issue. |
