STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BLACKHAWK QUARRY COMPANY )
OF FLORIDA, INC., )
)
)
)
Petitioner, )
)
vs. ) CASE NO. 91-1658RP
) DEPARTMENT OF TRANSPORTATION, )
)
)
)
Respondent. )
)
FINAL ORDER
On April 15 and 19, 1991, a formal administrative hearing was held in this case in Tallahassee, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.
APPEARANCES
For Petitioner: Harold F.X. Purnell, Esquire
Oertel, Hoffman, Fernandez & Cole, P.A.
2700 Blair Stone Road Suite C
Post Office Box 6507 Tallahassee, Florida 32301
For Respondent: Pamela S. Leslie, Esquire
Chief, Administrative Law William H. Roberts, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, MS-58 Haydon Burns Building Tallahassee, Florida 32399-0458
STATEMENT OF THE ISSUES
At issue in this case, generally, is the validity of aspects of Department of Transportation (DOT) proposed F.A.C. Rule Chapter 14-103, which essentially proposes to promulgate as a rule existing DOT standard operating procedures (SOPs) for preapproval of sources of aggregate base material for DOT road construction.
Specifically, the Petitioner, Blackhawk Quarry Company of Florida, Inc. (Blackhawk), contends that aspects of the proposed rules are invalid because
they exceed "FDOT's delegated legislative authority," because they are "arbitrary and capricious" and because they "do not prescribe specific requirements or standards, because they vest FDOT with arbitrary power and unbridled discretion, because they are unconstitutionally vague, because they are in contravention of administrative and judicial orders and directives, and because they violate Petitioner's due process rights." Blackhawk also contends that the DOT's attempt to incorporate the Mineral Aggregate Manual into the proposed rules by reference is invalid "because such manual is not an ordinance, standard, specification or similar material as required in Rule 1S-1.005(1), Florida Administrative Code." Finally, Blackhawk contends that the proposed rules are invalid because the economic impact statement for the proposed rules does not comply with the requirements of Section 120.54(2), Fla. Stat. (1989).
Both parties contend that, under the doctrine of res judicata, some of the issues have been conclusively resolved in prior litigation between the parties-- specifically, the litigation resulting in the appellate judicial decisions cases of Dept. of Transp. v. Blackhawk Quarry Co. of Fla., Inc., 528 So. 2d 447 (Fla. 5th DCA 1988)(Blackhawk I), and Blackhawk Quarry Co. of Fla., Inc. v. Dept. of Transp., 538 So. 2d 941 (Fla. 1st DCA 1989)(Blackhawk II).
As part of its response, the DOT calls into question Blackhawk's standing to challenge the proposed rules. The DOT also seems to contend that the proposed rules only are intended to establish a procedure for preapproval of sources of aggregate material but are not intended to, and do not, contain specific standards and criteria. The DOT specifically denies that the proposed rules incorporate by reference DOT's Standard Specifications for Road and Bridge Construction (the Standard Specs) or a carbonate content requirement for cemented coquina shell base material from the Mineral Aggregate Manual. 1/ The DOT also seems to contend that, even if there is incorporation by reference, the DOT's Standard Specs (which are referred to in the Mineral Aggregate Manual) are insulated from challenge by Blackhawk in this case for two reasons: first, in accordance with the Fifth District's decision in Blackhawk I, they are contract terms, not rules that would be subject to challenge; and, second, under Sections
and 336.045 and Chapter 471, Fla. Stat. (1989), and F.A.C. Rule 21H- 26.001, only a Florida licensed professional engineer can approve the DOT's Standard Specs. As to the economic impact statement, the DOT maintains that it is legally sufficient.
PRELIMINARY STATEMENT
The Petition to Determine the Invalidity of a Proposed Rule that commenced this proceeding was filed on March 15, 1991. The case was assigned to this Hearing Officer by Order of Assignment entered on March 19, 1991. The next day, it was scheduled for final hearing on April 15, 1991.
The parties agreed to expedite discovery but then the DOT filed two motions: the Respondent's Motion for Protective Order; and the Respondent's Motion in Limine. (Blackhawk filed the Petitioner's Motion to Discover Matters Regarding Experts Who May Not Be Called to Testify.) In its motions, the DOT contended that factual issues regarding the carbonate content requirement for cemented coquina shell material found in Section 915 of the DOT Standard Specs was not properly part of the rule challenge. The DOT contended that those factual issues were irrelevant, and it sought to block the Petitioner's discovery on those factual issues and eliminate them from the factual issues to be heard in this proceeding. A motion hearing was held and, after consideration of the parties' written and oral arguments, the DOT motions were denied, and Blackhawk was permitted to proceed with discovery.
On April 10, 1991, Blackhawk filed and served a Motion for Continuance seeking more time to complete discovery and preparations for final hearing. The DOT objected, and a hearing was held on the motion on April 12, 1991. After consideration of the written and oral arguments of the parties, the motion was denied, and the case went to final hearing as scheduled on April 15, 1991. When testimony could not be concluded on April 15, the remainder of the testimony and evidence was taken on April 19, 1991.
At the final hearing, Blackhawk called two witnesses and had Petitioner's Exhibits 1-10 and 12-18 admitted in evidence. 2/ In addition, Blackhawk's request to have official recognition taken of the Final Order and Recommended Order in the case of Blackhawk Quarry Co. of Fla., Inc. v. Dept. of Transp., DOAH Case No. 85-4366, entered March 14, 1988, which was affirmed on appeal in Blackhawk II, was granted. The DOT called three witnesses and had Respondent's Exhibit 3 admitted in evidence. 3/
At the conclusion of the final hearing, the DOT ordered the preparation of a transcript of the final hearing, and the parties' request to be given 15 days from the filing of the transcript in which to file proposed final orders was granted.
The transcript was filed on June 7, 1991, but the DOT requested an additional 30 days to file proposed final orders. Blackhawk agreed to an additional 15 days but opposed any further extension. A 15-day extension of time was granted, making the proposed final orders due July 8, 1991. Explicit rulings on the proposed findings of fact contained in the parties' proposed final orders may be found in the attached Appendix to Final Order, Case No. 91- 1658RP.
FINDINGS OF FACT
General Background and History.
For many years, the DOT has had Standard Specifications for Road and Bridge Construction (the Standard Specs). The Standard Specs are not promulgated as rules and are not contained in the Florida Administrative Code. They are, however, published and made available to the public. The Standard Specs are revised from time to time, and revised Standard Specs are published and made available to the public. The Standard Specs are made part of DOT contracts for construction of roads and bridges in the State of Florida. 4/ As deemed necessary for particular construction projects, the Standard Specs are waived, departed from or added to on a case-by-case basis.
Among many other things, the Standard Specs have included specifications for aggregate material used for roadway bases. 5/ As will be seen, until 1985 the part of the specifications requiring a specific carbonate content for cemented coquina shell material routinely was waived.
In the mid-1970s, the DOT instituted Standard Operating Procedure (SOPs) under which suppliers of certain materials for incorporation in DOT construction projects were required to control quality, cooperate with DOT quality assurance programs and independent quality assurance programs, meet quality standards, and obtain preapproval as a supplier for DOT construction projects. The general purpose of the SOPs was twofold: to avoid the delay and cost that resulted when materials were rejected after on-site inspections during construction; and yet also to afford the DOT the requisite degree of confidence
that materials incorporated in DOT construction projects met DOT requirements for quality, including that they met the Standard Specs. The specifications were incorporated in the SOPs by reference so that the carbonate content requirement was one of the criteria for preapproval under the SOPs.
In the early 1980s, Blackhawk started mining for cemented coquina shell material in Brevard County, Florida, for use as base material for road construction, among other uses. Cemented coquina shell material for road bases was covered both by the DOT Standard Specs and by the SOPs. Since supplying the material for DOT construction projects would be a significant part of Blackhawk business, Blackhawk sought and received DOT preapproval. As a practical matter, DOT preapproval was a requirement for most of Blackhawk's county and municipal business as well. Many counties and municipalities do not have their own preapproval and quality control procedures and rely on the DOT procedures; in addition, some county and municipal projects tie in to DOT roads and are required to meet DOT specifications.
Cemented Coquina Shell Material.
Cemented coquina shell material is essentially coquina shells and shell fragments mixed with sand (silica). The components of the material are held together by a combination of both the mechanical stabilization from the physical interlocking of the shells, shell fragments and sand and from the cementation effect of carbonate that forms on the shell material and, to some extent, on sand.
The carbonate cementation occurs over geologic time. When the coquina shell material on the sea bottom is saturated with water, calcium and magnesium dissolve into the water. Calcium and magnesium also enters the sea water from other sources. At certain pH levels, calcium and magnesium precipitate out of the water as calcium carbonate and magnesium carbonate. The carbonates act as cement that binds the shells and shell fragments to each other. To some extent, the carbonate cementation also acts to bind the sand to the shell material and other sand particles, but the cementation effect is not as strong on the sand as it is on the shell material. The carbonate cement does not adhere as well to sand.
Pertinent Specifications for Cemented Coquina.
Pertinent among the specifications the DOT has used through the years for cemented coquina shell material used for construction of roadway bases have been the Limerock Bearing Ratio (LBR) specification and the carbonate content specification.
For the LBR test, 50 pounds of cemented coquina shell material is halved and quartered, resulting in samples of 12 to 14 pounds. The sample is put in the open top of a cylinder approximately 6 inches in diameter and 4.59 inches high. A specific amount of constant pressure is then applied to a piston placed on the sample from the open top of the container. The piston is approximately 1.95 inches in diameter. The test measures how much displacement of the material is achieved by the piston.
To measure carbonate content, a one gram 6/ sample of pulverized cemented coquina shell material is analyzed. The measured carbonate content comes from, and is a measurement of, both the shell material and the carbonate cementation in the sample. What remains of the sample is sand. The carbonate content test is unable to isolate and measure carbonate content that comes from
the carbonate cement, as opposed to the carbonate content that comes from the shells and shell fragments.
Enforcement of the Carbonate Content Specification.
The DOT first adopted specifications for cemented coquina shell material in July, 1966. Cemented coquina shell material from a mine on Merritt Island in Brevard County was tested and yielded an LBR value of 92 and a carbonate content of 82.4%. The DOT concluded that the material was not quite equivalent to the limerock being used by the DOT for construction of roadway bases at the time. The DOT then adopted specifications for the material that included a minimum 80% carbonate content and an LBR value of 75.
As a result of a study of test roads constructed in Brevard County using a cemented coquina shell material base, the DOT found that satisfactory results were obtained with a lower carbonate content and reduced the carbonate content specification to 75%. After a 1969 study of another test road, the DOT further reduced the specification to 70%.
However, when the Merritt Island mine was approved for DOT contracts in 1969, it was producing material with carbonate content lower than the DOT specification but with LBR values above 137. The DOT concluded at that time that the LBR was a much better indicator of quality and approved the mine.
In approximately November, 1969, the DOT approved a mine located in Rockledge in Brevard County. Testing prior to approval revealed that the cemented coquina shell material from the mine had even higher LBR values (up to and above 300) but that the carbonate content specification would have to be further reduced to 45% for the mine to be approved. Instead, the DOT reduced the carbonate content specification to 50% but provided for an exception to the specification that allowed the State Material Engineer to "waive the minimum carbonate content provided the material is determined to be equally suitable for its intended use and the Limerock Bearing Ratio value is not less than 100."
The Rockledge mine operated through 1977. It remained on approved status, based on the exception written into the specification, despite producing cemented coquina shell material with carbonate content below 50%. In tests run on four samples in September and October, 1972, carbonate contents of 70%, 40%, 40% and 36% were achieved; LBR values ranged from 141 to 180. In December, 1972, eleven samples yielded carbonate contents ranging from 35% to 53%, with only one sample exceeding 50%. The LBR was 170. 7/
It is not clear from the evidence what was in the Standard Specs in effect before 1973 pertaining to aggregate material for use in constructing road beds. The 1973 version of the Standard Specs included the 50% carbonate content requirement, the waiver provision, and no LBR minimum; however, the waiver of the carbonate content requirement was conditioned on an LBR of not less than 100.
In 1978, a cemented coquina shell material mine was opened in Ft. Pierce. The DOT waived the carbonate content requirement and approved the mine based on high LBR values. Test samples had carbonate contents of 41%, 45% and 42% with corresponding LBR values of 188, 154 and 190.
Blackhawk first received DOT approval as a cemented coquina shell material mine in 1983 based on three test samples showing 59%, 56% and 46% carbonate content and LBRs of 178, 225 and 190. In July and August, 1984,
Blackhawk material yielded some LBR test results of less than 100. On October 31, 1984, the DOT suspended Blackhawk, citing a test result showing an LBR of
Blackhawk determined the cause for and corrected the LBR problem and sought reinstatement. The DOT conditioned approval on, in pertinent part, the requirement that material intended for DOT use have a minimum carbonate content of 50%. Blackhawk requested that the DOT remove the carbonate content requirement on the ground that there is no correlation between carbonate content and LBR test results. The DOT denied the request.
On or about July 23, 1985, Blackhawk's conditional approval expired, and Blackhawk was suspended. Subsequently, Blackhawk and the DOT met to discuss Blackhawk's status. DOT refused to waive the 50% carbonate requirement it had imposed, and Blackhawk insisted that the requirement was not necessary. On or about November 12, 1985, the DOT notified Blackhawk that it had "no evidence to confirm the cemented coquina shell material produced from [Blackhawk's] quarry having a percentage of carbonates of calcium and magnesium less than 50% is equally suitable for use as a base material as cemented coquina shell material having carbonates of calcium and magnesium content equal or greater than 50%.
We cannot justify accepting the risk involved with waiving the carbonate content specification as set forth in Article 915-2.2 of our specifications. At this time, we intend to continue to enforce the specification."
The evidence suggests that the LBR specifications that the DOT used from 1969 through 1985 as a criterion for approval of cemented coquina shell material was a minimum average requirement (i.e., test results had to average at least the specification value). The evidence is not clear but suggests that the carbonate content specification was either a minimum requirement (i.e., one test result below the specification value was cause to change a mine's status) or a minimum average requirement (i.e., test results had to average at least the specification value).
The Prior Litigation.
Eventually, Blackhawk initiated formal administrative proceedings challenging the DOT's imposition of the 50% carbonate content requirement on the ground that the carbonate content requirement was arbitrary and capricious. At the same time, Blackhawk filed a rule challenge seeking a determination that both Section 915 of the Standard Specs (the part providing for a carbonate content requirement for cemented coquina shell material) and the SOPs directed to cemented coquina shell material 8/ met the definition of a rule and were invalid because they were not promulgated.
In the rule challenge case, a hearing officer held that both the Standard Specs and the SOPs were invalid. On appeal, the District Court of Appeal, Fifth District of Florida, in the case of Dept. of Transp. v. Blackhawk Quarry Co. of Fla., Inc., 528 So. 2d 447 (Fla. 5th DCA 1988)(Blackhawk I), reversed in part and affirmed in part. In part, the court held that Section 915 of the DOT Standard Specs was not a rule and therefore was not subject to a rule challenge by Blackhawk. Blackhawk I stated:
[S]ection 915 simply sets out specifications for acceptable coquina material as part of the comprehensive standards for state road and bridge construction. It is more in the nature of a contract term between the contractor and DOT as opposed to a rule. See San Marco Contracting Co. v. State, 386 So.
2d 615, 617 (Fla. 1st DCA 1980). This
provision has at most an indirect effect on Blackhawk. Blackhawk may be able to obtain qualifying coquina material from other sources, or from its own mine, after additional refining efforts.
Blackhawk I, at 450. Blackhawk I affirmed the part of the Final Order that invalidated the SOPs as unpromulgated rules.
In the Section 120.57(1) proceeding on Blackhawk's challenge to the imposition of the 50% carbonate content requirement, the hearing officer found that the DOT did not prove its case and that the 50% carbonate content requirement was "arbitrary and capricious." The DOT Final Order accepted that part of the hearing officer's findings but added a finding that the evidence supported a 45% carbonate content requirement. The Final Order waived the 50% carbonate content requirement in place at the time and reinstated Blackhawk to the list of approved sources of cemented coquina rock, but with the condition "that Blackhawk's material contain not less than 45% carbonates of calcium and magnesium." Final Order, Blackhawk Quarry Co. of Fla., Inc. v. Dept. of Transp., DOAH Case No. 85-4366, entered March 14, 1988.
On appeal in the case of Blackhawk Quarry Co. of Fla., Inc. v. Dept. of Transp., 538 So. 2d 941 (Fla. 1st DCA 1989)(Blackhawk II), the court upheld the DOT's final order. The court ruled:
Giving DOT every benefit of every doubt, and considering its long experience in the use of this material as a road base and its special knowledge and expertise in the field, we affirm.
Blackhawk II, at 942. The court continued to say:
However, we feel it necessary to advise the DOT that our review of the record reveals so little evidence to support the minimum 45 percent carbonate requirement that in another proceeding, if expert testimony should be adduced as to the minimum amount of carbonates necessary, a different decision might be reached. . . . In the event the DOT intends
to continue requiring a minimum carbonate content instead of relying only on the LBR [limerock bearing ratio] to measure the suitability of cemented coquina for use in road beds, then the DOT should establish, by expert testimony and experience, the proper minimum carbonate content, if one is necessary, and that it be applied uniformly to all suppliers of cemented coquina without waiver or discrimination.
Id.
During the pendency of the administrative and appellate litigation,
the 1986 version of the Standard Specs required an LBR of not less than 100, 50%
carbonate content and a waiver of the carbonate content "provided the material is determined to be equally suitable for its intended use." Another 1986 amendment removed the waiver provision.
The Proposed Rules.
After Blackhawk I and Blackhawk II, the DOT initiated the process of promulgating the SOPs as a rule. In addition, at Blackhawk's suggestion, the DOT considered the possibility of changing the Standard Specs and a publication called the Mineral Aggregate Manual so as to proportionately reduce the carbonate content requirement for cemented coquina shell material the higher the material's LBR. The rest of the road base material industry, largely suppliers of limerock, opposed the change, and the DOT decided not to change the Standard Specs or the Mineral Aggregate Manual in accordance with Blackhawk's suggestion.
As the SOPs did before them, the proposed rules at issue in this proceeding (Petitioner's Exhibit 5) do not contain specific standards and criteria but rather refer to DOT specifications, requirements and the like. See Proposed F.A.C. Rules 14-103.001 ("source approval recognizes . . . facilities capable of producing specified aggregate meeting Department specification requirements"); 14-103.002(2) (a purpose of the rule chapter is to "require producers . . . to certify to the Department compliance of their product with applicable standard and contract specifications"); 14-103.004(1)(b) (producers must identify specific products that "meet Department standards and requirements" under tests "found in Sec. (I)(A) of the Mineral Aggregate Manual"); 14-103.004(5) (shipments must be certified "as being produced under [the producer's] Q[uality] C[ontrol] program and meeting all applicable specifications"); 14-103.007(2)(a) (sources not eligible for full approval will be approved conditionally, provided "the source can maintain consistent production of aggregate meeting Department specifications within the limits set forth in Sec. (II)(B) of the Mineral Aggregate Manual"); 14-103.009(1)(a) (an approved source will be suspended for "[f]ailure of material to meet specification requirements"); 14-103.009(2) (approval is revoked if the source fails "to correct its problems within 90 days," if a source conditionally approved after a suspension period "fails to qualify for Full Approval within six months," or for "[d]eliberate shipping of non specification aggregate"); 14- 103.009(4) (a request for approval of a source will be denied for an "[i]ncomplete or inadequate Quality Control Program" or for "[f]ailure of material to meet specification requirements"); and 14-103.011(1) ("[s]ampling, sample preparation and testing shall be in accordance with methods approved by the Department as published . . . in . . . the Mineral Aggregate Manual").
It is not clear from the evidence whether the Mineral Aggregate Manual predates the proposed rules. It establishes "Aggregate Compliance Limits and Standards" for full and conditional approval. For full approval, it states:
Most recent data must have greater than 95.0% probability of complying with all pertinent specifications and Department standards (30 most recent data). (Exception - Limerock Bearing Ratio Test - lot averages greater than 100 and all individual test values above
90. For cemented coquina shell material, the minimum percentage of carbonates of calcium and magnesium shall be as specified in the Departments's specification and frequency of
sampling and testing set in accordance with Appendix 19A).
For conditional approval, the manual states:
A 90-95% probability of complying with all pertinent specifications and Department standards (30 most recent data). (Exception
- Limerock Bearing Ratio Test - lot averages below 100 but no two (2) consecutive lot averages less than 100, or an individual test value below 90 but no individual test values below 90 on consecutive lots. For cemented coquina shell material, the minimum percentage of carbonates of calcium and magnesium shall be as specified in the Departments's specification and frequency of sampling and testing set in accordance with Appendix 19A).
Appendix 19A is an "Illustration of Minimum Sampling and Testing Frequencies for Carbonate Content for Cemented Coquina Shell Base Material Using FDOT Standard Specifications for Road and Bridge Construction Section 915." Besides establishing the required frequency of sampling and testing, it clearly requires that test samples of cemented coquina rock have average carbonate content of at least 45% and, depending on the standard deviation between samples, perhaps higher. The illustration would indicate that material would be considered "unacceptable" if testing did not demonstrate a probability of at least 95%, using a standard deviation analysis, that samples would test out with a carbonate content of at least 45%. It also contains the comment that, in the statistical probability range labeled "90% Compliance," "sources having no individual test results less than 40.0[% carbonate] in the most recent 30 results will remain in Full Approval status, but shall increase their sampling frequency to a minimum of one per day."
Appendix 17 of the Mineral Aggregate Manual is an "Illustration of Minimum Sampling and Testing Frequencies for Limerock Bearing Ratio for Base Materials Using FDOT Standard Specifications for Road and Bridge Construction Sections 911, 913, and 915." Besides establishing the required frequency of sampling and testing, it would appear on its face to require that test samples have mean LBR of at least 100 and, depending on the standard deviation between samples, perhaps higher. Although the illustration itself does not label the probabilities resulting from the various possible combinations of mean LBR values and standard deviations, it would indicate that material would be considered "unacceptable" if testing did not demonstrate a probability of at least 70%, using a standard deviation analysis, that samples would test out with an LBR value of at least 100. However, as reflected in Finding 27, above, the body of the Mineral Aggregate Manual makes an exception for LBR tests.
Despite the many general references in the proposed rules to specifications, standards, requirements and the like, the DOT attempts to deny that the proposed rules are intended to, or do, incorporate the Standard Specs into the proposed rules by reference. The DOT contends that the proposed rules are intended to establish a procedure but do not contain specific standards and criteria. It contends that, in this way, the Standard Specs remain insulated from attack in this proceeding as standards or criteria for preapproval. Citing Blackhawk I, the DOT contends that, as a matter of law, the Standard Specs themselves cannot be challenged in a rule challenge proceeding. There is indeed
little or no indication that the DOT intends to comply with the necessary procedures for adoption of the Standard Specs themselves by reference in the proposed rules challenged in this case. See F.A.C. Rules 28-3.035 and 1S-1.005. On the other hand, the proposed rules are replete with references, in various forms, to the Standard Specs as part of the criteria for preapproval, and the record, including the evidence presented at final hearing, is clear that the DOT does intend to utilize the Standard Specs, including the part specifying a carbonate content requirement for cemented coquina shell material, as part of the criteria for preapproval.
On the other hand, it does seem clear at least that the DOT intends to comply with the necessary procedures for adoption of the Mineral Aggregate Manual, which itself sets forth a carbonate content requirement that purports to be identical to the one in the Standard Specs, Section 915. See Proposed F.A.C. Rule 14-103.011(1). But even the Mineral Aggregate Manual refers to unspecified "pertinent specifications and Department standards."
There is no evidence that any version of the carbonate content specification in existence prior to the proposed rules in issue in this case was written in the form of a requirement that a mine demonstrate a particular probability that the material it produced would test out at a particular carbonate content, as does Appendix 19A of the Mineral Aggregate Manual incorporated in the proposed rules by reference. Cemented coquina shell material is inherently variable. As a result of the provisions of the Appendix 19A of the Mineral Aggregate Manual, and the standard deviation analysis it employs, it is quite possible for tests that average 45% carbonate content to demonstrate less than a 95% probability of achieving 45% results. Indeed, it is possible for all samples to test out at 45% or more and yet not demonstrate a 95% probability of achieving 45% results. For example, all of Blackhawk's 30 most recent test samples tested out at 45% carbonate content or greater. The final four samples tested out at 61%, 68%, 59% and 57%, raising the average of the last 30 samples from 51.5% to 52.8%. Yet, as a result of the high carbonate content percentages achieved on the last four samples, the standard deviation among the last 30 samples increased from 3.2 to 4.78. As a result, whereas Blackhawk was able to demonstrate a 98% probability of achieving 45% results before the last four samples, after the last four samples were tested, Blackhawk could only just barely demonstrate a 95% probability of achieving 45% results.
Rational Basis for the Carbonate Content Requirement.
The DOT's contention that the higher the carbonate content of cemented coquina shell material, as measured by the conventional DOT test methods, the quicker and better the material will cement and recement is rejected, as it was in Case No. 85-4366. As far as recementation, the evidence is that the cementation process occurs over geologic time, not over the life of a road bed. As far as cementation at the source (i.e., in the ground), the DOT has made admissions in this record that there is no correlation between carbonate content results and LBRs. But, contrary to those admissions, the evidence is that logically there is some correlation. Carbonate content of cemented coquina shell material is inversely proportionate to sand content in the material. When carbonate content is 40%, 60% of the mixture is sand. Depending on how much of the 40% carbonate material represents cement, 40% carbonate might be enough to provide a sufficient amount of carbonate cement. But, regardless of how much carbonate cementation is present, the evidence is that sand in the mixture in proportions of approximately 60% or above causes problems. Carbonate does not adhere to sand as well as it adheres to shell material. Also, if there is too much sand in the mixture, as opposed to shells and shell fragments, there will
be less mechanical stabilization and resulting rigidity expected from the physical interlocking of the shells and shell fragments. Expressed another way, the more sand, the more potential for displacement caused by the movement of sand particles in the mixture (as opposed to crushing of shells and shell fragments--the main way in which displacement of excessive shell and shell fragments occurs).
At the same time, its relation to LBR is not the only significance of the carbonate content test results. Although LBR is a valid predictor of initial and long-term modulus 9/ strength and rigidity of a road base, as found in Case No. 85-4366, it is not the exclusive predictor of long-term performance. Low carbonate content means high sand content. Apart from the expected downward effect of high sand on LBR values, high sand content can cause other problems in "constructability" and road performance not directly accounted for by the LBR. The coating applied directly to the surface of the road base during construction, over which the asphalt is laid, does not adhere to the base as well if there is a lot of loose sand in and on the surface of the base. Paving equipment, which requires a solid footing on the road base, also can be hampered by significant quantities of loose sand on the surface of the base. These aspects of the qualities of a road base material are legitimate DOT concerns that are more directly related to sand content (the converse of carbonate content), than to LBR.
Neither party was able to prove the precise point at which the carbonate content of cemented coquina shell material, as measured by the conventional DOT test methods, will cause problems in the performance of a road base constructed from this material. But the evidence presented by both parties concurs that there does exist a point at which low carbonate content (or, conversely, high sand content) will cause problems in the performance of cemented coquina shell material road base. While careful to maintain that neither he nor anyone else had yet determined the precise point at which the carbonate content of cemented coquina shell material, as measured by the conventional DOT test methods, will cause problems in the performance of a road base constructed from this material, Blackhawk's own witness stated that his studies would indicate that point may well be at or about 40% carbonate content.
Although the evidence did not prove any particular carbonate content above 40% at which the performance of cemented coquina shell as a road base material would suffer, given the parameters of the facts established by the evidence, it cannot be said that the DOT's decision to establish, by rule, a carbonate content requirement of 45% has no rational basis (i.e., that it is arbitrary or capricious).
Blackhawk also contends that, because the results of the carbonate content test are inherently variable, it is arbitrary and capricious for preapproval as a supplier of cemented coquina shell material to be conditioned on the ability to achieve, with a 95% probability, carbonate content test results of 45% or higher. Blackhawk points to the LBR tests, under which samples that average an LBR of 100 pass muster regardless of the probability that a particular sample will fall below an LBR of 100.
The evidence proves that the results of the carbonate content test are inherently variable. The variability comes primarily from the variability inherent in the material itself and from the small size of the sample tested.
As a result, a mine will almost always have to average more than 45% carbonates to meet the requirement for 95% probability of compliance. Sometimes, depending on the standard deviation between samples, a mine would have to average
significantly higher than 45%. As demonstrated by Blackhawk's last 30 test results, a mine can average 52% to 53% carbonates, and have no results under 45%, and yet be only just barely able to demonstrate a 95% probability of compliance.
Based on the evidence, it is arbitrary and capricious to require a 95% probability of compliance with the carbonate content specification while only requiring a minimum average LBR.
Regardless of the reasonableness of the carbonate standard, as written in the Mineral Aggregate Manual, if it tracks the Standard Specs, it would seem that the intent and purpose of the proposed rules would be to provide assurances that preapproved sources of aggregate material will be able to supply material that is capable of meeting the Standard Specs, including the carbonate content specification, which are incorporated by reference in all DOT contracts as part of the contract terms. Cf. Blackhawk I. Since neither party put the Standard Specs in evidence, it is not clear from the evidence whether the carbonate content requirement, as written in the Mineral Aggregate Manual, is the same as the carbonate content requirement contained in the Standard Specs.
Economic Impact Statement.
The proposed rule chapter contains the DOT's summary of the estimated economic impact. It contains an estimate of the cost to the DOT to implement the proposed rules, an estimate of the cost or the economic benefit to persons directly affected by them, an estimate of their impact on competition, and a statement of the data and method used in making the estimates. It also makes reference to the history of the preapproval program for sources of aggregate material and states that the proposed rules basically promulgate procedures that have been used by the DOT since 1981. The statement goes on to list 12 items that, as a result of relatively minor changes in the procedures contained in the rules, may represent some economic impact different from the impact of the preexisting procedures. Dollar amounts of economic impact are not given, nor can the precise dollar amount of the economic impact be calculated from the information given in the economic income statement. However, the record reflects that the DOT did consider the pertinent economic impact factors, including how the proposed rules' impact would differ from the economic impact of the preexisting procedures.
CONCLUSIONS OF LAW
Section 120.54(4), Fla. Stat. (1989), provides in pertinent part:
Any substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority.
* * *
(c) . . . The hearing officer may declare the proposed rule wholly or partly invalid. The proposed rule or provision of a proposed ruled declared invalid shall be withdrawn from the committee by the adopting agency and shall not be adopted.
Section 120.52(8), Fla. Stat. (1989), sets out the following definition:
"Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:
The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;
The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);
The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);
The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or
The rule is arbitrary or capricious.
Res Judicata and Collateral Estoppel.
Focusing on the court's treatment of Section 915 of the Standard Specs, the DOT argues that the decision of the District Court of Appeal, Fifth District of Florida, in the case of Dept. of Transp. v. Blackhawk Quarry Co. of Fla., Inc., 528 So. 2d 447 (Fla. 5th DCA 1988)(Blackhawk I) is res judicata, or that it collaterally estops Blackhawk from asserting either that Blackhawk has standing or that the content of the Standard Specs, particularly the carbonate content requirement for cemented coquina shell road base material, properly is the subject of this proposed rule challenge. Meanwhile, focusing on the court's treatment of the SOPs, Blackhawk argues that Blackhawk I is res judicata, or that it collaterally estops the DOT from asserting either that Blackhawk does not have standing or that the proposed rules are not properly the subject of this proceeding. Blackhawk also argues that the Final Order in the case of Blackhawk Quarry Co. of Fla., Inc. v. Dept. of Transp., DOAH Case No. 85-4366, entered March 14, 1988, and the decision of First District in Blackhawk II are res judicata, or that they collaterally estop the DOT from asserting in this proceeding that the carbonate content requirement is not arbitrary and capricious.
The doctrine of res judicata requires for its application, among other things, that the cause of action in the earlier proceeding be identical to the cause of action in the case at issue. Albrecht v. State, 444 So. 2d 8 (Fla. 1984). The earlier cases, on which the parties to this case seek to invoke the doctrine of res judicata, were: (1) a case challenging both DOT's Standard Specs and DOT's SOPs for preapproval of mineral aggregate base material sources as being unpromulgated rules (Blackhawk I); and (2) an action by the DOT to suspend or revoke Blackhawk's preapproval as a source of cemented coquina shell material (the Final Order in DOAH Case No. 85-4366 and Blackhawk II). The pending case is a challenge to proposed rules essentially promulgating the DOT's SOPs for preapproval of mineral aggregate base material sources. The causes of action are not identical. Therefore, res judicata does not apply.
Collateral estoppel is a related doctrine. It provides essentially that, once a issue has been tried by two parties and resolved in prior litigation, the issue is conclusively determined as between them (or at least as against the losing litigant) 10/ so as to preclude the retrial of the issue by the parties in a subsequent proceeding. Unlike res judicata, collateral estoppel does not requires identical causes of action. But it does require the prior actual full trial of the identical issue and requires that the parties had the motivation and opportunity in the prior proceeding to fully try the issue. See Mobil Oil Corp. v. Shevin, 354 So. 2d 372 (Fla. 1977); Chesebrough v. State, 255 So. 2d 675 (Fla. 1971); Krug v. Meros, 468 So. 2d 299 (Fla. 2d DCA 1985).
Blackhawk I involved a rule challenge directed to two separate documents on the ground that they were unpromulgated rules: one was Section 915 of the DOT Standard Specs (containing the carbonate content specification); the other was the DOT's Standard Operating Procedure for Evaluation, Approval and Control of Mineral Aggregate Sources: Limerock, Cemented Coquina and Shell Base Materials (the SOP).
The issue in Blackhawk I was framed in terms of standing. Blackhawk I, at 449. But the standing issue was determined based on the court's conclusion that the SOPs constituted a rule and that Section 915 of the Standard Specs did not. In holding that Section 915 of the DOT Standard Specs was not a rule, and therefore not subject to a rule challenge by Blackhawk, the court Blackhawk I stated:
[S]ection 915 simply sets out specifications for acceptable coquina material as part of
the comprehensive standards for state road and bridge construction. It is more in the
nature of a contract term between the contractor and DOT as opposed to a rule. See San Marco Contracting Co. v. State, 386 So.
2d 615, 617 (Fla. 1st DCA 1980). This
provision has at most an indirect effect on Blackhawk. Blackhawk may be able to obtain qualifying coquina material from other sources, or from its own mine, after additional refining efforts.
Blackhawk I, at 450.
Unlike in Blackhawk I, this case involves more than just Section 915 of the Standard Specs standing alone. Rather, it involves proposed rules for preapproval of sources of aggregate material, including cemented coquina material, for use in DOT road construction. Blackhawk I does not collaterally estop Blackhawk from asserting either that it has standing in this proceeding or that the proposed rules are properly the subject of its proposed rule challenge.
To the contrary, Blackhawk I estops the DOT from asserting that Blackhawk does not have standing in this proceeding and that the proposed rules are not properly the subject of its proposed rule challenge. The proposed rules in this case essentially put the DOT's SOPs in rule form. As to the SOPs, Blackhawk I stated:
The SOP however is clearly an agency statement of general applicability
implementing or prescribing agency policy. The SOP [states that it] establishes [DOT's] policy of accepting limerock, cemented coquina and shell base materials produced for Department use through a producer Quality Control (QC) Program. It goes on to set forth specific criteria and requirements
pursuant to which a source of cemented coquina shell will be approved by the agency for placement on its published list of approved sources of supply. By announcing these criteria which will determine entitlement to participation in state projects, the SOP "in and of itself creates certain rights and adversely affects others." Balsam, 452 So.
2d at 977. It has a direct effect on suppliers.
Blackhawk I, at 450. Similarly, in this case, the evidence is clear that Blackhawk is a person who is substantially affected by the proposed rules and has standing to challenge them in this proceeding.
In the other prior proceeding, which ultimately resulted in Blackhawk II, the DOT had to prove the rational basis for imposing on Blackhawk a 50% carbonate content requirement. The hearing officer found that the DOT did not prove its case and that the 50% carbonate content requirement was "arbitrary and capricious." The DOT accepted that part of the hearing officer's findings but entered a final order that waived the 50% carbonate content requirement, stated that the evidence supported a 45% carbonate content requirement, and reinstated Blackhawk on the condition that it comply with a 45% requirement. Deferring to the DOT's expertise, the court in Blackhawk II upheld the DOT's Final Order (although the court cautioned that it did might not reach the same decision in a subsequent case, depending on the evidence presented.)
As stated in the Findings of Fact, above, the evidence in the record is unclear as to whether the carbonate content requirement at issue in DOAH Case No. 85-4366 and in Blackhawk II was a requirement that Blackhawk demonstrate a probability that its material would test out at 50% or higher. The evidence in the record pertinent to those proceedings reflect references both to a "minimum" requirement and to a requirement that the material "average" 50%. It therefore must be concluded that Blackhawk did not prove that the issue whether the criteria for preapproval contained in the Mineral Aggregate Manual was decided in the Final Order in Case No. 85-4366 and in Blackhawk II. Accordingly, the doctrine of collateral estoppel does not apply to establish that the criteria for preapproval contained in the Mineral Aggregate Manual are arbitrary and capricious. (Likewise, and in addition to the explicit cautionary language contained in the appellate opinion, neither did the DOT prove that the Final Order in Case No. 85-4366 and the decision in Blackhawk II estops Blackhawk from asserting in this proceeding that the 45% carbonate content criterion for preapproval contained in the Mineral Aggregate Manual is arbitrary and capricious.) 11/
Statutory Requirement for Professional Engineer Approval of Nonrule Standard Specs.
Section 334.044(10)(a), Fla. Stat. (1989), authorizes and requires the
DOT:
To develop and adopt uniform minimum standards and criteria for the design, construction, maintenance, and operation of public roads pursuant to the provisions of s. 336.045.
Section 336.045, Fla. Stat. (1989), provides in pertinent part: Uniform minimum standards for design,
construction, and maintenance; advisory
committees.
The department shall develop and adopt uniform minimum standards and criteria for the design, construction, and maintenance of all public streets, roads, highways, bridges, sidewalks, curbs and curb ramps, crosswalks, where feasible, bicycle ways, underpasses, and overpasses used by the public for vehicular and pedestrian traffic. . . .
An advisory committee of professional engineers employed by any city or any county in each transportation district to aid in the development of such standards shall be appointed by the head of the department.
Such committee shall be composed of: one member representing an urban center within each district; one member representing a rural area within each district; one member within each district who is a professional engineer and who is not employed by any governmental agency; and one member employed by the department for each district.
* * *
(4) All design and construction plans for projects that are to become part of the county road system and are required to conform with the design and construction standards established pursuant to subsection
(1) must be certified to be in substantial conformance with the standards established pursuant to subsection (1) that are then in effect by a professional engineer who is registered in this state.
Under Chapter 471, Fla. Stat. (1989), and F.A.C. Rule 21H-26.001, only a Florida licensed professional engineer may practice engineering in the State of Florida.
The DOT seems to argue that statutory authority cited in Conclusions of Law 12 through 14, above, override Section 120.54(4), Fla. Stat. (1989), and preclude a challenge to the proposed rules on the theory that only a professional engineer can approve the Standard Specs and that a professional engineer cannot approve plans and specifications with which he or she does not personally concur. But, as explained previously, this is not a challenge to the Standard Specs. It is a challenge to proposed rules that establish procedures and criteria for the preapproval of sources of aggregate base material. It is concluded that the cited statutory authority does not preclude this rule
challenge proceeding and does require any professional engineer to approve Standard Specs or plans and specifications with which he or she does not concur.
Incorporation of Standard Specs by Reference.
Apparently in an attempt to preserve its arguments under Blackhawk I that the Standard Specs are irrelevant to this case and that Blackhawk has no standing, the DOT has attempted to insulate the Standard Specs from the proposed rules in order to attempt to insulate them from inquiry as part of any challenge to the rules. The DOT has advanced the factual position that the Standard Specs are not intended to be, and are not, incorporated in the proposed rules by reference.
As found in the Findings of Fact, the DOT's factual position is two- faced. On the one hand, the DOT professes that the proposed rules are not intended to, and do not, incorporate the Standard Specs themselves in the proposed rules by reference. Indeed, it may not be clear that the DOT intends to comply with the necessary procedures for adoption of the Standard Specs themselves by reference in the proposed rules challenged in this case. See
F.A.C. Rules 28-3.035 and 1S-1.005. On the other hand, the proposed rules are replete with references, in various forms, to the Standard Specs as part of the criteria for preapproval, and the record, including the evidence presented at final hearing, is clear that the DOT does intend to utilize the Standard Specs, including the part specifying a carbonate content requirement for cemented coquina shell material, as part of the criteria for preapproval. Blackhawk I. If the Standard Specs, including the carbonate content specifications, referenced in the proposed rules are not properly adopted by reference in compliance with F.A.C. Rules 28-3.035 and 1S-1.005, they cannot be used, as rules, as criteria for preapproval.
Adequacy of Standards and Criteria.
Not only are the proposed rules ineffective to the extent that they attempt to incorporate the Standard Specs (and other less defined standards and requirements) without complying with F.A.C. Rules 28-3.035 and 1S-1.005, they also are invalid. F.A.C. Rules 28-3.035 and 1S-1.005 insure that agency rules that make reference to material outside the four corners of the rule do not violate Section 120.52(8)(d), Fla. Stat. (1989)(making invalid a rule that "is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency.") To the extent that the proposed rules refer to portions of the Standard Specs (and other even less defined specifications) as the standards or criteria for preapproval, without complying with the requirements of F.A.C. Rules 28-3.035 and 1S-1.005, they also run afoul of Section 120.52(8)(d), Fla. Stat. (1989).
Notwithstanding the DOT's protestations that, despite the references to contract specifications in the proposed rules, the DOT does not intend to incorporate the Standard Specs themselves as part of the criteria for preapproval under the proposed rules, it should be noted that it seems clear at least that the DOT intends to comply with the necessary procedures for adoption of the Mineral Aggregate Manual, which itself sets forth a carbonate content requirement. See Proposed F.A.C. Rule 14-103.011(1). To this extent the rule does not run afoul of Section 120.52(8)(d), Fla. Stat. (1989).
In support of its position on this issue, the DOT argues that requiring it to incorporate the criteria and standards, including the Standard Specs, into the proposed rules in accordance with F.A.C. Rules 28-3.035 and 1S-
1.005 would bring road construction in Florida to a halt. It contends that this would require the DOT to promulgate or amend the Standard Specs through the rulemaking process whenever building specifications vary from the Standard Specs, as they almost always do in some respect. For at least two reasons, the DOT's argument has no merit. First, the DOT does not have to incorporate all of the Standard Specs into the proposed rules, just those parts that contain the criteria and standards for preapproval of mineral aggregate sources. Second, the record in this case, and common sense, suggests that the DOT does not amend the Standard Specs in individual road construction project specifications; rather, it waives certain parts, states that certain parts do not apply, or adds specifications, and the Standard Specs themselves remain unchanged. 12/ In any event, the alternative suggested by DOT is unacceptable. 13/
Rational Basis for the Carbonate Content Requirement.
Where lawful rulemaking authority is clearly conferred or fairly implied, and is consistent with the general statutory duties of the agency, a wide discretion is accorded the agency in the exercise of such authority. Florida Comm'n on Human Relations v. Human Dev. Center, 413 So. 2d 1251 (Fla. 1st DCA 1982). Rules will be sustained as long as they are reasonable related to the purpose of the enabling legislation and are not arbitrary or capricious. General Telephone Co. of Fla. v. Fla. Public Serv. Comm'n, 446 So. 2d 1063 (Fla. 1984); Agrico Chem. Co. v. Dept. of Environmental Reg., 365 So. 2d 759 (Fla. 1st DCA 1978), cert. den., 376 So. 2d 74 (Fla. 1979). In a rule challenge, the burden is on the petitioner to "show . . . that the proposed rule or the requirements thereof are arbitrary or capricious." Agrico Chem. Co. v. Dept. of Environmental Reg., 365 So. 2d 759 at 763. "A capricious action is one which is taken without thought or reason or irrationally. An arbitrary decision is one not support by facts or logic, or despotic." Id.
Given the parameters of the facts established by the evidence, the DOT's decision to establish, by rule, a carbonate content standard of 45% had a rational basis (i.e., it was not arbitrary). There is no valid reason for the DOT to be required to pinpoint the precise minimum percentage of carbonate content necessary for satisfactory performance of the material as a road base. Given the evidence in the case on where that minimum percentage may well be (approximately 40%), it cannot be said to be arbitrary or capricious to build in a margin of safety above that figure. DOT should not be required to set the standard closer to the point at which the evidence indicates that road base performance failures would result.
There is no rational basis for the DOT to require a 95% probability of compliance with the carbonate content requirement while requiring a minimum average LBR. As a result of the inherent variability of the material, and the small size of the sample tested, a mine will almost always have to average more than 45% carbonates to meet the requirement for 95% probability of compliance. Sometimes, depending on the standard deviation between samples, a mine would have to average significantly higher than 45%. As demonstrated by Blackhawk's last 30 test results, a mine can average 52% to 53% carbonates, and have no results under 45%, and yet be only just barely able to demonstrate a 95% probability of compliance. Based on the evidence, it is arbitrary and capricious to require a 95% probability of compliance with the carbonate content specification while only requiring a minimum average LBR.
It is not clear, since neither party placed the Standard Specs in evidence, whether the Standard Specs contain the same carbonate content specification as the Mineral Aggregate Manual incorporated in the proposed
rules. The Standard Specs themselves are not subject to rule challenge. Blackhawk I. They merely reflect part of what the DOT requires in a DOT road and bridge construction contract. Assuming that the Standard Specs contain the same carbonate content specification as the Mineral Aggregate Manual incorporated in the proposed rules, it would make perfect sense, and would not be arbitrary or capricious, for the DOT, in setting standards or criteria for preapproval of suppliers of road base material for DOT projects, to base preapproval on the Standard Specs. The DOT should not be required to preapprove sources of road base material that cannot meet the Standard Specs. 14/
Economic Impact Statement.
Proposed rules can be invalid under Section 120.52(8)(a), Fla. Stat. (1989), if the agency materially fails to follow the applicable rulemaking procedures set forth in Section 120.54. Section 120.54(2)(b), Fla. Stat. (1989), requires that an economic impact statement accompany proposed rules. Pertinent to the proposed rules in issue in this proceeding, Section 120.54(2)(b) requires that the economic impact statement include an estimate of the cost to the agency to implement the proposed rules, an estimate of the cost or the economic benefit to persons directly affected by them, an estimate of their impact on competition, and a detailed statement of the data and method used in making the estimates. The proposed rules in issue in this proceeding include an economic impact statement that covers those areas.
Blackhawk complains that the economic impact statement is not sufficiently detailed and specifically that it does not include dollar amounts of the economic impact. But a court will not declare an agency rule to be invalid merely because the economic impact statement may not be as complete as possible; rather, to render the rule invalid, the deficiencies would have to be so grave as to impair the fairness of the proceeding. Health Care and Retirement Corp. v. Dept. of Health and Rehab. Services, 463 So. 2d 1175 (Fla. 1st DCA 1984). The absence or insufficiency of an economic impact statement is harmless error if it is established that the rule has no economic impact, that is, it merely implements already established procedures, or if it is shown that the agency fully considered the asserted economic factors and impact. Dept. of Health and Rehab. Services v. Wright, 439 So. 2d 937 (Fla. 1st DCA 1983). See also Div. of Workers' Compensation, Dept. of Labor v. McKee, 413 So. 2d 805 (Fla. 4th DCA 1982).
DISPOSITION
Based on the foregoing Findings of Fact and Conclusions of Law, the proposed F.A.C. Rule Chapter 14-103 is declared invalid: (1) to the extent that it attempts to incorporate criteria or standards for preapproval of aggregate material sources by reference without complying with F.A.C. Rules 28-3.035 and 1S-1.005; and (2) to the extent that, through incorporation of the Mineral Aggregate Manual, it makes one of the criteria for preapproval the ability to demonstrate, with 95% probability, that the source's material will have 45% or more carbonates. Otherwise, the proposed F.A.C. Rule Chapter 14-103 is declared to be a valid exercise of delegated legislative authority.
DONE AND ORDERED this 2nd day of August, 1991, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1991.
ENDNOTES
1/ At the same time, it is clear from the record in this case, and from the evidence presented at final hearing, that the DOT intends to utilize portions of the Standard Specs as standards or criteria for preapproving sources of road base material.
2/ The Hearing Officer declined to receive, as part of the proffered Petitioner's Exhibits 12 and 13, physical samples of the cemented coquina shell material described in the balance of those exhibits. The physical samples were separated from the rest of the exhibits and were retained by the Petitioner.
3/ Respondent's Exhibit 2, a copy of the Standard Specs, was not offered in evidence by the DOT and later apparently was withdrawn. (DOT did not submit it to the Hearing Officer.) Ruling was reserved on an objection to the admission of Respondent's Exhibit 1, and the objection is sustained.
4/ Although evidence was taken regarding the general nature and operation of the Standard Specs, the Standard Specs themselves are not in evidence in this case. The DOT had them identified as Respondent's Exhibit 2 but did not seek to introduce the exhibit in evidence and later apparently withdrew it. (It never was submitted to the Hearing Officer.)
5/ Based on the evidence in this case, the version of the Standard Specs in effect in 1973 included specifications for aggregate material used in construction of roadway bases. It is not clear from the evidence whether the specifications for aggregate material that were in effect before 1973 were included in the version of the Standard Specs in effect in those earlier years.
6/ There are 454 grams in a pound.
7/ The evidence is not clear, but this apparently represents an average LBR. 8/ The evidence suggests that, at the time, the SOPs incorporated Section 915
of the Standard Specs by reference. It is not clear from the evidence what else the SOPs may have incorporated by reference.
9/ The LBR test is a "modulus" test. (So is the in-place "plate test" the DOT conducts after construction). This means it measures the displacement that results from the steady application of a constant pressure. Cf. Finding 8,
above. (In the "plate test," the pressure is applied over a larger surface area than in the LBR test.)
10/ Compare Zeidwig v. Ward, 548 So. 2d 209 (Fla. 1989) with Trucking Employees of North Jersey Welfare Fund, Inc., v. Romano, 450 So. 2d 843 (Fla. 1984).
11/ However, the record is clear that some factual issues were fully litigated and decided in the prior proceedings. Some of those facts are reflected in the Findings in this case.
12/ This scenario raised the prospect that DOT could, e.g., waive the carbonate content requirement contained in the Standard Specs and Mineral Aggregate Manual and reduce the percentage requirement for a particular contract such that sources not on the list of preapproved sources could meet the requirements of the particular contract. But the resolution of the issues that might be raised by such a source would have to await resolution in another proceeding.
13/ DOT apparently has rejected or not considered the possibility of an alternative certification procedure under which, instead of preapproving mines, the DOT would grade, certify and label material produced by mines and specify in its construction contract specifications what grade of base material is required.
14/ Again, another issue, to be determined in another proceeding, would arise if, in individual contracts, the DOT waives, modifies or adds to the portions of the Standard Specs that constitute the criteria or standards for preapproval.
See footnote 12, above.
APPENDIX TO FINAL ORDER
To comply with the requirements of Section 120.59(2), Fla. Stat. (1989), the following rulings are made on the parties' proposed findings of fact:
Petitioner's Proposed Findings of Fact.
1.-2. Accepted and incorporated.
3. Rejected as not proven and as argument.
4.-11. Generally accepted as reflecting the Findings of Fact in Case No. 85- 4366; incorporated to the extent necessary and not subordinate or argument.
Rejected in large part as not proven and as argument. Also, in part subordinate. In part, accepted and incorporated to the extent necessary and not subordinate. See Findings 22 and 40.
Accepted but unnecessary and subordinate.
Rejected in part as not proven and as argument. Accepted in part as an accurate excerpt from the opinion in Blackhawk I and incorporated. For the pertinent excerpts from the Blackhawk II, see Finding 23.
Generally accepted as reflecting the Findings of Fact in Case No. 85-4366; incorporated to the extent necessary and not subordinate or argument. For the pertinent excerpts from the Final Order in Case No. 85-4366, see Finding 22.
Accepted and incorporated.
Cumulative.
Rejected in large part as argument and as not proven. Accepted in part that Mr. Smith's testimony was vague and less than direct and, in many cases, not persuasive. Mostly subordinate and unnecessary.
In part rejected as argument and as not proven; in large part accepted. As reflected in the Findings of Fact, some of Mr. Smith's "claims," while
"discredited" by Blackhawk in the prior proceeding, still have some validity. See Findings 33-37 and 40. In large part subordinate and unnecessary; in part incorporated.
Accepted and incorporated that DOT tried to insulate the criteria and standards for preapproval from challenge. Otherwise, rejected as argument and as not proven.
Generally accepted to the extent not argument; incorporated to the extent necessary and not subordinate or argument.
22.-23. Rejected as argument and as conclusion of law.
24. Rejected in part as not proven who was involved in setting the percentage in earlier years, or on what basis it was set, and in part as cumulative (first sentence). Generally accepted in part as reflecting the Findings of Fact in Case No. 85-4366 and incorporated to the extent necessary and not subordinate or argument.
25.-26. Rejected as conclusion of law.
Rejected in part as argument and as not proven; in part accepted. Subordinate and unnecessary.
First sentence, accepted and incorporated. The rest is rejected as argument, as subordinate, and as cumulative.
First and last sentences rejected as argument and as not proven; the rest is accepted and incorporated to the extent necessary and not subordinate.
In part rejected as argument and not proven, but in large part accepted but subordinate to facts found. See Findings 38 and 39.
Last sentence is rejected as not being an accurate representation of the standard deviation analysis. The impact of succeeding high values would depend on the deviation among the resulting 30 data points. Otherwise, in part rejected as argument and not proven, but in large part accepted but subordinate to facts found. See Findings 38 and 39.
In part rejected as argument and not proven, but in large part accepted but subordinate to facts found. See Findings 38 and 39.
In part rejected as argument and in part accepted but subordinate to facts found.
In part rejected as argument and in part accepted but subordinate to facts found. See Findings 38 and 39.
First sentence, not clearly proven but appears to be true based on the evidence and incorporated. Second sentence, generally accepted and subordinate to facts found. See Findings 38 and 39. Third sentence rejected as not proven.
Rejected in part as argument. In part accepted and incorporated to the extent necessary and not subordinate. Although Mr. Smith's testimony was not clear and was deficient in certain other respects, one point he seemed to be trying to make was that LBR measures only the inherent stiffness of a material and that, while inherent stiffness is necessary to satisfactory performance of a material as a road base, explaining the presence of LBR in the specifications, other factors also come into play. See Findings 33-37 and 40.
Rejected in part as contrary to facts found and not proven. Accepted in part and incorporated to the extent necessary and not subordinate. There is a correlation between carbonate content and LBR, albeit not a direct correlation. Either too much carbonate content, if mostly from shell fragments, or too little carbonate content (too much sand) can affect LBR as well as other factors bearing on performance. See Findings 33-37 and 40.
38.-39. Cumulative and argument and subordinate.
40. Cumulative and argument.
41.-47. In part cumulative, argument, subordinate or not proven. In part accepted and incorporated to the extent necessary and not subordinate. See Findings 33-37 and 40.
48. In part argument and subordinate and unnecessary. In part accepted and incorporated. See Findings 33-37 and 40.
49.-52. In part argument and subordinate and unnecessary. In part accepted and incorporated. In part rejected as not proven. (Dr. Bromwell himself testified to the deleterious effect of high sand content on both LBR and performance of the material as a base and guessed that the danger point was in the area of 40% carbonate content.) For the findings on the significance of sand content, see Findings 33-37 and 40.
Rejected in part as not proven and in part as subordinate to facts contrary to those found. See Findings 33-37 and 40.
Accepted in part and rejected in part as not proven. Wet mining can have some impact on sand content although the amount of material in the bucket, the size of the wholes, and the loss of some carbonate material along with the sand (although not as much) limit the impact. There also are other ways of reducing sand content. Subordinate and unnecessary.
In part conclusion of law (the statute); in part accepted and incorporated (the proposed rule excerpts).
Generally accepted and incorporated.
In part rejected as not proven and contrary to facts found. (The finding in Case No. 85-4366 was that the 50% carbonate content requirement imposed on Blackhawk was arbitrary and capricious, not that any carbonate content test was arbitrary and capricious. See Finding 22.) Otherwise, generally accepted and incorporated except as argument, subordinate and unnecessary. See Findings 26 and 30.
First sentence, argument and conclusion of law. Second sentence, accepted but unnecessary.
59.-60. Argument and subordinate to facts found and conclusion of law. See Findings 26 and 30. Also cumulative.
61. Rejected as not proven that the dollar amount of the costs are "easily definable." The rest is generally accepted and incorporated to the extent necessary and not subordinate. See Finding 41.
62.-67. Cumulative and subordinate.
68. Rejected as not proven. One factor motivating the DOT in this matter seems to have been a desire to avoid having to justify its Standard Specs, which help define how DOT wants to build State roads and bridges in Florida. The DOT should not have to approve a material source that cannot satisfactorily demonstrate that it meets DOT's Standard Specs. See Finding 40.
Respondent's Proposed Findings of Fact.
1.-4. Accepted and incorporated to the extent not subordinate or unnecessary. 5.-6. Rejected as contrary to greater weight of the evidence that Florida Rock and Florida Aggregate exclusively wet mine. Otherwise, accepted but subordinate and unnecessary. But the impact on carbonate content is minimal.
7. Accepted but subordinate and unnecessary.
8.-10. Accepted but subordinate and unnecessary.
Accepted but subordinate and unnecessary. Most of the industry mines limerock.
Accepted and incorporated.
Accepted but subordinate and unnecessary.
Accepted and incorporated to the extent not subordinate or unnecessary.
Accepted and incorporated.
Rejected as contrary to facts found and to the greater weight of the evidence. LBR is one factor used to attempt to predict performance of a road over time. It is not the only factor. See Findings 33-37 and 40.
Accepted and incorporated. But the role relates more to the necessity to maintain an appropriate balance between carbonate content and sand content than to the amount of carbonate per se; it does not relate to recementation.
18.-19. Rejected as contrary to facts found and to the greater weight of the evidence. Only a small amount of carbonate is necessary for cementation, which occurs over geologic time, not over the life of a road base.
Last sentence rejected as contrary to facts found and to the greater weight of the evidence. The rest is accepted but unnecessary and subordinate.
First sentence, accepted and incorporated. Second sentence, rejected in part as contrary to facts found and to the greater weight of the evidence (the Standard Specs are not changed but rather are waived, departed from or added to for a particular contract); otherwise, accepted and incorporated.
Rejected as conclusion of law. Also, subordinate and unnecessary.
Accepted; first sentence, second sentence, incorporated to the extent necessary and not subordinate; third sentence, unnecessary (as there will be no need to promulgate a rule change when the DOT waives, departs from or adds to the Standard Specs for a particular contract.)
Accepted and incorporated to the extent not subordinate or unnecessary.
Accepted but unnecessary (as there will be no need to promulgate a rule change when the DOT waives, departs from or adds to the Standard Specs for a particular contract.)
COPIES FURNISHED:
Harold F.X. Purnell, Esquire Oertel, Hoffman, Fernandez
& Cole, P.A.
2700 Blair Stone Road Suite C
Post Office Box 6507 Tallahassee, Florida 32301
Pamela S. Leslie, Esquire Chief, Administrative Law William H. Roberts, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, MS-58 Haydon Burns Building Tallahassee, Florida 32399-0458
Ben G. Watts Secretary
Department of Transportation Haydon Burns Building
605 Suwannee Street
Tallahassee, Florida 32399-0458
Thornton J. Williams, Esquire General Counsel
Department of Transportation
562 Haydon Burns Building 605 Suwannee Street
Tallahassee, Florida 32399-0458
Carroll Webb, Executive Director Administrative Procedures Committee
120 Holland Building Tallahassee, FL 32399-1300
Liz Cloud, Chief
Bureau of Administrative Code 1802 The Capitol
Tallahassee, FL 32399-0250
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
| Issue Date | Proceedings |
|---|---|
| Jul. 27, 1992 | ORDER (Appeal dismissed per DCA) filed. |
| Dec. 30, 1991 | ORDER (Cross Appeal Dismissed per First DCA) filed. |
| Nov. 13, 1991 | ORDER(First DCA-Appellee's motion for extension of time to answer brief is Granted) filed. |
| Nov. 13, 1991 | Index, Record, Certificate of Record sent out. |
| Oct. 21, 1991 | Payment in the amount of $94.00 filed. |
| Sep. 24, 1991 | Index & Statement of Service sent out. |
| Aug. 26, 1991 | Certificate of Notice of Cross-Appeal sent out. |
| Aug. 26, 1991 | Notice of Cross-Appeal(DOT Filed) filed. |
| Aug. 16, 1991 | Corrected Letter(From DCA) filed. |
| Aug. 06, 1991 | Certificate of Notice of Appeal sent out. |
| Aug. 06, 1991 | Notice of Appeal filed. |
| Aug. 02, 1991 | CASE CLOSED. Final Order sent out. Hearing held 4/15-19/91. |
| Jul. 08, 1991 | Final Order filed. (From Harry Purnell) |
| Jul. 08, 1991 | Proposed Recommended Order filed. (From Pamela S. Leslie et al) |
| Jun. 17, 1991 | Order Extending Time sent out. (proposed Final Order`s due 7/8/91) |
| Jun. 10, 1991 | (Respondent) Motion for Time Extension to File Proposed Findings of Fact and Conclusions of Law filed. (from William H. Roberts) |
| Jun. 07, 1991 | Transcript (Vols I-III) filed. |
| May 14, 1991 | Notice of Filing Transcript of the Hearing on Motion for Continuance w/attached Hearing on Motion for Continuance filed. (From Harold F. X.Purnell) |
| Apr. 26, 1991 | CC Respondent`s Composite Demonstrative Exhibit & cover ltr filed. (From Pamela S. Leslie) |
| Apr. 19, 1991 | CASE STATUS: Hearing Held. |
| Apr. 16, 1991 | Transcript & Notice of Filing filed. (From Pamela S. Leslie & William H. Roberts) |
| Apr. 15, 1991 | CASE STATUS: Hearing Partially Held, continued to 4/19/91; 9:00am; Tallahassee. |
| Apr. 12, 1991 | (Petitioner) Response to Request for Admissions filed. (From Harold F. X. Purnell) |
| Apr. 12, 1991 | Notice of Service of Answers to Interrogatories filed. (from Harold F. X. Purnell) |
| Apr. 11, 1991 | Department of Transportation`s Response to Petitioner`s Motion for Continuance filed. (From William H. Roberts) |
| Apr. 10, 1991 | Order Expediting Discovery sent out. |
| Apr. 10, 1991 | Order Denying DOT's Request to Limit the Issues sent out. |
| Apr. 10, 1991 | (Respondent) Notice of Service of Answers to Interrogatories; Response to Request for Production Documents; Answer to Requests for Admissions filed. (From Pamela S. Leslie & William H. Roberts) |
| Apr. 10, 1991 | (Petitioner) Motion for Continuance filed. (From Harold F. X. Purnell) |
| Apr. 08, 1991 | (Petitioner) Response to Motion in Limine and Motion for Protective Order w/exhibits 1-3 filed. (from Harold F. X. Purnell) |
| Apr. 05, 1991 | (Respondent) Notice of Hearing (April 8, 1991: 2:00 PM: Tallahassee) filed. |
| Apr. 02, 1991 | (Respondent) Motion for Protective Order; Motion in Limine filed. |
| Apr. 01, 1991 | (DOT) Response to Motion to Discovery Matters Regarding Experts Who May Not be Called to Testify filed. |
| Mar. 28, 1991 | (Respondent) Notice of Appearance filed. |
| Mar. 26, 1991 | Notice of Service of Request for Production w/Request for Production;Response to Motion for Expedited Discovery filed. (From Pamela S. Leslie et al) |
| Mar. 26, 1991 | Motion to Expedite Response to Respondent`s Interrogatories, Request for Production and Requests for Admission to Petitioner; Notice of Service of Interrogatories; Notice of Service of Requests for Admission w/ Request for Admissions filed. (from Pamela S |
| Mar. 26, 1991 | Amended Motion to Expedite Discovery filed. (From Harold F. X. Purnell) |
| Mar. 26, 1991 | (Petitioner) Request for Admissions filed. |
| Mar. 25, 1991 | Petitioners First Set of Interrogatories to Respondent; Request for Production of Documents; Motion for Expedited Discovery and to Discover Matters Regarding Experts who May Not be Called to Testify; Notice ofService of Interrogat ories filed. |
| Mar. 20, 1991 | Notice of Hearing sent out. (hearing set for 4/15/91; 9:00am; Tallahassee) |
| Mar. 19, 1991 | Letter to Liz Cloud & Carroll Webb from Marguerite Lockard |
| Mar. 19, 1991 | Order of Assignment sent out. |
| Mar. 15, 1991 | Petition to Determine the Invalidity of a Proposed Rule filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 02, 1991 | DOAH Final Order | Rule for DOT preapproval of sources of aggregate base material (coquina rock) invalid attempt to incorporate standard specs; probab. test arbitrary |
