STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEFENDERS OF THE ) ENVIRONMENT, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 84-1237

)

DEPARTMENT OF NATURAL ) RESOURCES and OCCIDENTAL ) CHEMICAL AGRICULTURAL )

PRODUCTS, INC., )

)

Respondents. )

)

RECOMMENDED ORDER OF DISMISSAL

Respondent, Occidental Chemical Agricultural Products, Inc.'s "First Affirmative Defense" was heard on August 30, 1985, by R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearing in Tallahassee, Florida.

The parties were represented by counsel.

APPEARANCES

For Petitioner: Segundo J. Fernandez, Esquire

2700 Blairstone Road

Tallahassee Florida 32301

J. Alan Cox Esquire

219 South Calhoun Street, Suite 107 Tallahassee Florida 32301

For Respondents: Spiro T. Kypreos, Esquire

Department of 3900 Commonwealth Boulevard, Suite 1003 Natural Resources Tallahassee Florida 32303

Occidental Chemical Roy C. Young, Esquire Agricultural Post Office Box 1833 Products, Inc. Tallahassee, Florida 32303

ISSUE

Whether Respondent Occidental Chemical Agricultural Products, Inc.'s application for approval of its "Conceptual Reclamation Plan" for the Swift Creek (phosphate) Mine has been approved by operation of Section 120.60(2), Florida Statutes (1983), based on Respondent, Department of Natural Resources alleged failure to approve or deny the application within 90 days after receipt of timely requested additional information.

BACKGROUND

By petition dated April 3, 1984, Petitioner, Florida Defenders of the Environment, Inc. ("Petitioner") challenged Respondent, Department of Natural Resources' (DNR) approval of Respondent, Occidental Chemical Agricultural Products, Inc.'s ("Occidental") application for approval of its conceptual reclamation plan for the Swift Creek and Suwannee River (phosphate) Mines in Hamilton County, Florida. Petitioner requested a hearing and on April 4, 1984, DNR forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer.

After Occidental's motion to dismiss was denied, it filed an affirmative defense claiming entitlement to a default permit because DNR "failed to issue or deny the requested approval of Occidental's conceptual reclamation plan within the time prescribed by law, Section 120.60(2). Florida Statutes (1983), for taking such action." DNR's motion to strike the affirmative defense was denied. By order of June 8, 1984, hearing was set for July 9, 1984, for the purpose of receiving evidence and argument on the affirmative defense.

On July 9, 1984, DNR's unopposed motion to continue the hearing was granted and hearing was subsequently reset for September 26, 1984.

On September 24, 1984, the parties filed a "Stipulation" voluntarily dismissing, with prejudice, Petitioner's challenge of Occidental's conceptual reclamation plan for its Suwannee River Mine. The next day, Occidental, joined by all parties, moved to continue the hearing on its affirmative defense, based on settlement negotiations concerning the remaining issue--approval of the conceptual reclamation plan for the Swift Creek Mine. On September 26, 1984, the motion was granted, with hearing to be reset on the request of any party.

Jurisdiction was also partially relinquished so that DNR could take final action on the Suwannee River Mine reclamation plan in accordance with the stipulation.

In response to an April 23, 1985 request for a report on the status of the case, Petitioner stated that negotiations were continuing and requested an additional 30 days to report; on June 7, 1985, it asked for a further delay, until July 1, 1985.

On August 15, 1985, after settlement negotiations failed, Occidental moved to reschedule a hearing on its affirmative defense. The motion was granted and hearing was set for August 30, 1985.

At final hearing, DNR presented the testimony of Jeremy A. Craft, and Occidental presented the testimony of Morris R. Felder. DNR Exhibit Nos. 1 through 20 were received in evidence, as was Occidental's Exhibit No. 1.

The transcript of hearing was filed on September 16, 1985. As agreed, the parties filed their proposed findings of fact and conclusions of law, with replies, by October 8, 1985. Rulings on the proposed findings are contained in the attached Appendix.

Based on the evidence and argument adduced at hearing, the following facts are determined:

FINDINGS OF FACT

1. On October 7, 1981, Occidental filed with DNR an application for approval of its conceptual reclamation plan for its Swift Creek Mine located in Hamilton County, Florida. (DNR Exhibit #1)

   
   

2. On November 5, 1981, within 30 days of receipt of the application, DNR sent Occidental a request for additional information. On February 23, 1983, Occidental filed and DNR received Occidental's responses to this request for additional information. (DNR Exhibit Nos. 2, 7)

   
   

3. On March 21, 1983, within 30 days of DNR's receipt of Occidental's response to DNR's first request, DNR sent Occidental a second request for additional information. On May 12, 1983, Occidental filed and DNR received Occidental's response to DNR's second request. (DNR Exhibit Nos. 8, 9)

   
   

4. On June 14, 1983, 33 days after receiving Occidental's response to its second request, DNR sent Occidental a third request for additional information. On August 19, 1983, Occidental mailed its response to DNR's third request. The response, received by DNR on August 22, 1983, was accompanied by a letter asserting that Occidental's application was deemed approved by operation of Section 120.60, Florida Statutes, in that DNR had failed to approve or deny the application within 90 days of May 12, 1983--the date DNR received Occidental's response to its second request for additional information. (DNR Exhibit Nos. 10, 11, 12)

   
   

5. By letter dated September 26, 1983, DNR notified Occidental that the application "was complete as of August 22, 1983, and that "[t]he 90-day [application] review period began on August 23, 1983." (DNR Exhibit No. 13)

   
   

6. On three subsequent occasions, DNR sought 30-day extensions of the 90- day review period. Each time, Occidental agreed to the extension, but reserved any right it might have to a default permit, first asserted in its August 19, 1983 transmittal letter. The last extension requested by DNR was granted by Occidental in December of 1983. (DNR Exhibit Nos. 16, 17, 20)

   
   

7. During this extended [application] permit review period, Occidental submitted several revisions of its application documents to DNR in response to criticism and suggestions by permitting officials in DNR's Bureau of Mine Reclamation. On October 14, 1983, Occidental submitted a revised "Pre-mining Drainage Pattern Maps" and asked that it be substituted for maps previously submitted in connection with the pending application. On November 14, 1983, Occidental submitted revisions or additions to Part II, Items 4, 5 and 6, of the application. (DNR Exhibit Nos. 15, 19)

   
   

8. DNR never sought a renewal of the 90-day application review period on grounds that Occidental had substantially modified or revised its application. Neither did it recant its earlier notice that the application was complete and that the 90-day period (for grant or denial of the application) began on August 23, 1983.

   
   

9. On March 20, 1984, DNR presented Occidental's application to the Governor and Cabinet, sitting as agency head, and the application was approved with conditions. On April 3, 1983, Petitioner filed its petition for hearing, resulting in this proceeding.

   II

   
   

10. Petitioner and DNR contend that the statutory 90-day time-clock for granting or denying Occidental's application never began to run because several of the items timely requested by DNR (within 30 days of receipt of the application) were never submitted. Occidental counters that its February 23, 1983, response to DNR's first (admittedly timely) request for additional information was both adequate and complete; that the 90-day period thus began to run on February 24, 1983; and that a default permit was granted by operation of Section 120.60(2), Florida Statutes, because DNR failed to grant or deny the application within 90 days--on or before May 25, 1983. Occidental's contention is sustained by the greater weight of the evidence.

    
    

11. In support of their position, DNR and Petitioner contend that additional information requested on November 5, 1981 (concerning Part I, Item 6; Part II, Items 3, 4 and 6; and Part III, Items 4, 5 and 8 of the application), were never submitted though DNR did not notify Occidental of this assertion until hearing on August 30, 1985; and the assertion is not consistent with DNR's September 26, 1983 notice that the application was "complete." The information requested and received is described below.

    
    

    1. Part II, Items 3 and 4. These application items elicit information on water bodies, and surface drainage patterns for affected lands and 1/4 mile beyond, as such lands existed prior to phosphate mining and would exist after reclamation. In its application, Occidental (on pp. 9 and 10) provided information based on State of Florida reports, U.S. Geological Survey quadrangle maps and personal inspection. In response to DNR's first request for more information on items 3 and 4, Occidental stated that the information initially submitted was correct, and provided extensive additional information on these subjects including maps showing drainage patterns before mining and after reclamation. Notably, DNR neither sought further clarification of Occidental's response in its subsequent requests for additional information, nor advised DNR that the response was deficient. (DNR Exhibit Nos. 1,7)

       
       

    2. Part II, Item 6. Part II, Item 6 of the application requires a description of endangered or threatened species and their habitat, and a description of planned restoration. Occidental's initial submittal stated that according to a Florida Game and Fresh Water Fish Commission ("Commission") publication, the mine area did not include critical habitat for any endangered or threatened species. Occidental also listed possible species with historic range in the area and described how the planned reclamation would benefit these species. In its first request for additional information, DNR (by check-off- sheet) seemingly disregarded Occidental's submittal and restated the requirement of Part I, Item 6. It noted that Occidental should describe the critical habitats though Occidental had already stated that there was no critical habitat in the mine area. In its response to DNR's first request, Occidental stated simply that the information initially submitted on this item was correct; given its initial submittal, this was a reasonable response to DNR's first request.

       In its second request for further information, DNR did not ask for clarification or additional information on this item. (However, in its third request, DNR referred to an April 5, 1983, letter from the Commission addressing concerns about endangered plant and animal species, to which Occidental provided a detailed response in the August 22, 1983 submittal. (DNR Exhibit Nos.

       2,7,10,12)

       
       

    3. Part III, Items 4 and 5. These application items seek maps depicting land uses, water bodies, and surface drainage patterns for affected lands and

       1/4 mile beyond, both before mining and after reclamation. The requested maps were submitted as part of Occidental's original application. In its first request for additional information, DNR again sought maps for surface drainage patterns and demarcation of watershed boundaries. Occidental provided the additional maps requested. (In its second request for additional information, as to Item 4, DNR suggested the plan should be revised to eliminate drainage pattern changes. Alternatively, DNR asked for an explanation as to why the changes must occur. As to Item 5, DNR sought a revision to the conceptual plan. In this and subsequent requests, DNR did not notify Occidental that the maps were deficient. Rather, the thrust of its criticism was directed at the change drainage patterns depicted by the maps.) (DNR Exhibit Nos. 1, pp.17,18,23-30; 7,8)

       
       

    4. Part III, Item 8. These application items seek a map of the critical habitat for endangered species. Occidental initially indicated that none were present and referred DNR to the Part II, Item 6 discussion. In its first request (much like the request relating to Part II, Item 6), DNR seemingly overlooked or disregarded Occidental's statement that no critical habitats existed in the reclamation area, and asked for a map of the critical habitat. In its response, Occidental simply stated that the information previously submitted on this item was correct. No maps of critical habitat were ever submitted, as it was Occidental's position that no such habitats existed on the site. Given its earlier statement on the application, Occidental's response to DNR's first request was reasonably responsive. DNR was apparently satisfied as it did not again ask for clarification or additional information on this item. (DNR Exhibit Nos. 2,10)

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Florida Statutes (1983).

    
    

13. Approval of phosphate mining conceptual reclamation plans are licenses as defined by Section 120.52(8), Florida Statutes (1983). Applications for such appeals are subject to the default licensing strictures of Section 120.60(2), Florida Statutes (1983). No party to this proceeding contends otherwise.

14. Section 120.60(2), Florida Statutes (1983), provides in relevant part: (2). . . Within 30-days after receipt of an

    application for a licensed the agency shall examine the application, notify the applicant of any apparent errors or omissions, and request any additional information the agency is permitted by law to require. Every

    application for license shall be approved or denied within 90-days after receipt of the original application or receipt of the timely requested additional information or correc- tion of errors or omissions unless a shorter period of time for agency action is provided by law. . .. Any application for a license not approved or denied within the 90-day or shorter time period, . . . shall be deemed approved and, subject to the satisfactory completion of an examination, if required as

    a prerequisite to licensure, the license shall be issued. (e.s.)

    In Attorney General's Opinion 077-41, the Attorney General of Florida opined: The effect of s. 10, Ch. 76-131, Laws of

    Florida [later codified as Section 120.60(2), F.S.] is to require the licensing agency to do certain things and to make certain deci- sions by a time certain. The law deems or considers the failure to so act the equiva- lent of an approval of the application and requires the issuance of the license forth- with. Section 10, Ch. 76-131, does not repose or vest any discretion in the licens- ing agency with respect to the issuance of the license in the statutorily specified circumstances.

    
    

    The obvious legislative intent in rewording

    s. 120.60(2), F.S., to impose additional re- quirements and time limitations associated therewith upon licensing agencies was to ensure that said agencies acted in a pre- scribed manner upon applications for licenses within specified time limitations or their authority to deny the license, subject to the designated exception with respect to the satisfactory completion of any required examination for licensing, would be fore- closed and, upon the agency's failure to so act, to require the license to be issued forthwith.

    
    

    Once an application is deemed approved by operation of the default provision of Section 120.60(2), agency discretion is foreclosed. To impose a permit condition subsequent to a default approval is impermissible. See, World Bank v. Lewis, 425 So.2d 77 (Fla. 1st DCA 1982). As indicated by the title of Ch. 76-

    131 Laws of Florida, which added the default provision to Section 120.60(2), a default approval requires the "automatic" issuance of a license. A third party's request for a hearing on an application does not enable an agency to avoid this result; neither does such a request cut off an applicant's substantive right to a default approval granted by Section 120.60(2). To hold otherwise would defeat the mandatory effect of the statute. As stated in World Bank, supra at 79:

    
    

    In [this] statute . . . the legislature has made its intent as to the consequence of a violation abundantly clear: the application shall be deemed approved. . ..

    
    

15. Finally, the 90-day time period for granting or denying an application can be tolled by an agency's request for additional evaluation only if the request is timely made, i.e. within 30 days after receipt of an application. If repeated, in seriatim, requests for information could toll the 90-day period, the clear legislative intent expressed by Section 120.60(2) would be frustrated. In theory, at least, an agency could delay its decision on an application

    indefinitely. The statute does not preclude an agency from making repeated requests for additional information; it is free to do so, but any requests outside the initial 30 days do not toll the running of the 90-day period. An agency and applicant may extend the time by which an agency would otherwise be required to act if the applicant waives his rights under the 90-day time limitation of Section 120.60(2).

    
    

16. This construction of Section 120.60(2) recognizes that the date marking the beginning of the 90-day time-clock for agency action must, in light of the consequences, be definite and readily ascertainable, not debatable or left to conjecture. When additional information is requested, the statute starts the 90-day time from "receipt of the timely requested additional information." (e.s.) if "timely" is not limited to additional information requested within 30 days of receipt of an application, its meaning would be indefinite and debatable. In support of their respective positions, the parties cite various orders entered by two state agencies--the Department of Environmental Regulation and the Department of Health and Rehabilitative Services. But the interpretation given Section 120.60(2) by these agencies warrants no deference, since this is a procedural provision of the Administrative Procedure Act and not a matter within their particular area of expertise.

    
    

17. The evidence demonstrates that DNR made one timely (within 30 days of receipt of Occidental's application) request for additional information, and that DNR received additional information from Occidental--reasonably responsive to the request--on February 23, 1983. The 90-day permit began to run on February 24, 1983 and ended on May 25, 1983--without DNR either issuing or denying the application. Occidental is therefore entitled to issuance of a default approval of its application, as it existed May 25, 1983, by operation of Section 120.60(2), Florida Statutes (1983). Petitioner's subsequently filed petition for hearing cannot defeat Occidental's substantive right to the default approval, a right conferred by law on May 25, 1983.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That Petitioner's petition for hearing be DISMISSED and that DNR APPROVE Occidental's application for approval of its conceptual reclamation plan for the Swift Creek Mine, as the application existed on May 25, 1983.

DONE and ORDERED this 18th day of December, 1985, in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1985.

APPENDIX

1. RULINGS ON PETITIONER'S PROPOSED FINDINGS OF FACT 1-5. Approved.

   6-8. Rejected. Mr. Craft's opinion is rebutted by examination of the actual requests and responses. It is also inconsistent with DNR's failure to promptly notify Occidental that its February 23, 1983 response was deficient, and its September 26, 1983 notice that the application was "complete" (How could it be complete if the previously requested additional information had not been submitted?).

   
   

2. RULINGS ON DNR'S PROPOSED FINDINGS OF FACT

   
   

   1. Approved.

   2. Approved in substance.

   3. Rejected as recitation of testimony--not a proposed finding. The last sentence is not supported by the evidence.

      4-5. Rejected as argument and as unsupported by the evidence. See, paragraphs 6-8, infra.

      6. Rejected as argument. Further Mr. Craft's opinions are implicitly contradicted by DNR's September 26, 1983 notice to Occidental that the application was "completed as of August 22, 1983."

      
      

3. RULINGS ON OCCIDENTAL'S PROPOSED FINDINGS

1-9. Approved in substance; however, DNR received the application on October 7, 1981, not October 6, 1981. (TR. p.12)

10. Modified to more accurately reflect the letter's statement concerning default.

11-20. Approved in substance.

COPIES FURNISHED:

SEGUNDO J. FERNANDEZ, ESQUIRE 2700 BLAIRSTONE ROAD

TALLAHASSEE, FLORIDA 32301

J. ALAN COX, ESQUIRE

219 SOUTH CALHOUN STREET, SUITE 107 TALLAHASSEE, FLORIDA 32301

SPIRO T. KYPREOS, ESQUIRE 3900 COMMONWEALTH BOULEVARD

SUITE 1003

TALLAHASSEE, FLORIDA 32303

ROY C. YOUNG, ESQUIRE POST OFFICE BOX 1833

TALLAHASSEE, FLORIDA 32303

Docket for Case No: 84-001237

Orders for Case No: 84-001237