STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DAVIS REFINING CORPORATION, )
)
Petitioner, )
)
vs. ) CASE NO. 91-5140
) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )
)
Respondent. )
) DAVIS REFINING CORPORATION, )
)
Petitioner, )
)
vs. ) CASE NO. 92-1560
) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this matter before the Division of Administrative Hearings, by its duly designated Hearing Officer, Diane Cleavinger, on January 11, 1993, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Dr. S. K. Nayak
3512 Shirley Drive
Tallahassee, Florida 32301
For Respondent: Candi Culbreath, Esquire
Assistant General Counsel
Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
STATEMENT OF THE ISSUES
Whether the Petitioner's applications for (1) a general permit to operate a used oil refining facility and 2) an operation permit to operate an industrial waste water treatment system, at the same facility, in conjunction with the used oil refining operation, should be granted.
PRELIMINARY STATEMENT
Petitioner, Davis Refining Corp., applied to the Department of Environmental Regulation (Department) for permits to operate both a used oil recycling facility and an industrial waste water treatment system. The Department denied both applications.
The Department received two petitions for hearing challenging denial of each of Petitioner's applications. The petitions were forwarded to the Division of Administrative Hearings for purposes of formal hearing.
On August 14, 1992, the Department filed a motion to consolidate the two cases. The Department's motion was granted and the cases were consolidated.
At the hearing, Dr. S. K. Nayak, a professional engineer, upon the request and representations made by George I. Davis, was accepted as Petitioner's qualified representative. Petitioner called two witnesses and introduced twenty-five (25) exhibits into evidence. Respondent called two witnesses and introduced sixteen (16) exhibits into evidence.
Petitioner and Respondent filed Proposed Recommended Orders on January 26, 1993. The parties' Proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order, except where such findings were not shown by the evidence, or were immaterial, irrelevant, cumulative or subordinate. Specific rulings on the parties' Proposed Findings of Fact are contained in the appendix to this Recommended Order.
FINDINGS OF FACT
Sometime in the 1950's George Davis, the owner and operator of Davis Refining Corporation, became interested in used oil recycling and refining. From that time on, Mr. Davis worked towards his dream of operating a used oil recycling and refining center by gradually accumulating the land and equipment to operate such a facility. In order to further his goal, Mr. Davis acquired property located at 2606 Springhill Road in Tallahassee, Florida. Eventually, Mr. Davis applied for a permit to construct an industrial waste water treatment system in conjunction with a used oil refining facility on the Springhill Road property.
On January 21, 1986, the Department issued a construction permit to the Petitioner to modify and construct an industrial waste water treatment system. The construction permit was subsequently extended on three different occasions. The last extension, granted May 30, 1989, extended the construction permit to its full statutory limit of five (5) years. The final expiration date of the construction permit was January 20, 1991. Petitioner was notified of the expiration date by the Department.
During the time of the construction permit, Mr. Davis constructed an industrial waste water treatment system and an oil recycling and refining facility on his property on Springhill Road.
Less than sixty days prior to expiration of the construction permit for the industrial waste water treatment system, the Petitioner submitted an application for renewal of an operation permit. The Department received the application on January 10, 1991. Unfortunately, the application for renewal of an operation permit was not the correct form since the Petitioner never had an
operation permit. The application was rejected by the Department because it was the incorrect form and did not have the required permit fee.
In March of 1991, after the expiration of Petitioner's industrial waste water treatment construction permit, Petitioner filed the correct application for an industrial waste water treatment operation permit and submitted the required fee.
The industrial waste water operation permit application was denied by the Department because it was incomplete and lacked the required reasonable assurances that the system would not be a source of pollution in violation of water quality standards or contrary to the public interest.
On October 29, 1990, Petitioner submitted a Used Oil Recycling Facility General Permit Notification to the Department.
By letter dated November 28, 1992, the Department timely denied use of a general permit to operate a Used Oil Recycling Facility because the application lacked the requisite reasonable assurances that the proposed operation of the facility would not discharge, emit, or cause pollution so as to violate water quality standards or be contrary to the public interest.
Even though the construction permit has expired and no additional permits have been issued by the Department the Petitioner continues to accept used oil and oily industrial waste water from outside sources for treatment.
Currently, the facility consists of a used oil refining plant, industrial waste water treatment system, and separator (coalescer) system and water treatment pond. Munson Slough separates the facility into two parts.
The used oil refining portion of the facility together with the industrial waste water treatment system input and separator (coalescer) system are located on the east side of Munson Slough. The refining portion of the facility is immediately adjacent to the slough. The industrial waste water treatment pond is located on the west side of Munson Slough. The industrial waste water treatment pond is likewise immediately adjacent to the slough.
The industrial waste water treatment system is an integral part of the used oil recycling operation. Used oil and oily waste water are accepted from outside sources and are put through the separator system to separate the oil from the water and other contaminants. The separated oil is then re-refined at the refinery. The remaining industrial wastewater contains oily materials, solids, and volatiles. The separated water is pumped through a pipe underneath Munson Slough to the industrial waste water treatment pond. Additionally, the surface and stormwater runoff from the refining facility on the east side of Munson Slough also goes through the same industrial waste water treatment system and is pumped into the waste water treatment pond. Runoff from the refinery contains various pollutants as well as pollutants from any spills occurring at the refinery. Both the general permit for the refining facility and the operation permit for the industrial waste water treatment system depend on the ability of the waste water treatment system and pond to adequately handle the waste water and runoff water from the refining facility without permitting leaks of the wastewater into the environment.
The industrial waste water treatment pond is lined with soil cement. Soil-cement is not a common material used in the construction of industrial waste water pond liners and the Department's personnel is not familiar with the
material and its ability to function as an adequate liner for an industrial waste water pond.
The soil-cement is a sand-cement mix (10 percent). The sand-cement was intended to be layered to a depth of six inches on the sides and bottom of the pond. The evidence showed that portions of the liner achieve a six inch depth. However, the evidence did not show that the soil-cement's depth is consistent throughout the liner since no as-built plans or certification for the facility were submitted to the Department and the engineer for the project at the time of its construction was not called to testify on whether the pond was constructed according to the construction plans.
The sand cement liner overlays a high clay content pond bottom. The estimated (not established) permeability rate of the sand-cement pond liner is 1/100,000,000 centimeters per second and is within the Department's parameters for the adequacy of a lining material if that material is shown to actually have such a permeability rate by the time the operation permit is applied for. No materials data was submitted to the Department which demonstrated that the sand- cement liner of the pond actually achieved the permeability rate of 1/100,000,000 centimeters per second or the deterioration rate of such a liner. Likewise, no expert witness was called to establish such facts. The small amount of information given the Department on the sand-cement liner in Petitioner's application for its construction permit for the facility is inadequate to establish the actual performance of the sand-cement liner for purposes of the operation permit.
Water from the industrial waste water treatment pond is discharged to the City of Tallahassee's waste water treatment system.
The City of Tallahassee requires the industrial waste water treatment pond water to be tested for water quality prior to discharge to the City's waste water treatment system. The City requires that the waste water pond be aerated for approximately four (4) hours before discharge to the City waste water treatment system. One function of the aeration is to "blow off" the volatile contaminants from a used oil refining operation which might be present in the ponds water prior to aeration. However, the results of one water quality test indicated the presence of volatile substances and nonvolatile substances consistent with petroleum product contamination. Unfortunately, the results of only one water quality test were presented at the hearing. No conclusions either for or against the Petitioner can be drawn from the results of one testing period. Therefore, such test results cannot be used to affirmatively establish reasonable assurances that the pond is not leaking.
In an unprecedented effort to aid the Petitioner in getting approval of his applications, the Department agreed to accept Petitioner's submittals and assertions regarding the integrity of the pond's liner as reasonable assurance if several soil borings and their subsequent analyses did not reveal any indication of contamination from the pond to soil or ground water. One soil boring was obtained by Dr. Nayak and six soil borings were obtained jointly by Dr. Nayak and the Department from locations around the industrial waste water treatment pond for chemical analysis. Unfortunately, chemical analysis of the soil borings revealed the presence of contaminants consistent with contamination parameters for waste oil recyclers. Therefore leakage or improper discharge from the pond could not be ruled out and it fell to the Petitioner to demonstrate that the contamination found in the soil was not the result of leaks or discharge from the pond.
Petitioner points to the fact that the pond is supposedly setting on an impermeable layer of clay. However, it is not unusual for the geological features of a site such as the one upon which the treatment pond is located to vary within the limited site area. The different sites of the soil borings around the pond revealed that the substrata differed between the bore sites.
The Department's geological expert testified that, based upon his observation at the site, including observing and participating in the taking of soil samples from the borings, that groundwater contamination was likely.
In short, it is impossible to determine the geological composition of the entire site by the one soil boring taken by Dr. Nayak or even by the six borings performed jointly by the parties. Dr. Nayak's testimony that he is able to determine the geological features of the pond site with one boring is not credible nor is Dr. Nayak qualified to make such an assessment even if such were an acceptable scientific method for making such determinations. Therefore, the evidence failed to demonstrate that the waste water pond is sited over an impermeable layer of clay. Moreover, even if it were, then any contaminated water improperly discharging through the bottom layer of the pond would migrate along the top of the clay until it reached Munson Slough and still be a pollution problem for water quality purposes.
The Petitioner has not, at any time prior to or during the hearing, obtained any environmental background of the site. Nor was any such information introduced at the hearing. The on-site observation of the taking of soil bores, visual inspection of the site, and the chemical analysis of the soil samples taken from the borings are consistent with petroleum contamination resulting from the industrial waste water pond. There are procedures and courses of action which the Petitioner can pursue to address the apparent contamination problems and to demonstrate the reasonable assurances necessary to qualify for the required Department permit to operate the used oil recycling facility. The Department has made many suggestions to the Petitioner as to various methodologies that the Petitioner might employ in order to endeavor to provide reasonable assurances that the waste water treatment pond does not leak. These suggestions include emptying the pond and examining the liner, performing a materials balance calculation, or performing more soil borings sampling and testing, together with assembling additional hydrological data. However, other than chemical analysis of the soil borings, the Petitioner has not opted to pursue any suggested procedure for obtaining the desired permit and did not submit sufficient competent, substantial evidence of any credible or scientifically reasonable alternative explanations for the presence of indicator chemicals in the soil borings.
In short, The Petitioner has not submitted sufficient evidence nor provided any reasonable assurance that the operation of the used oil recycling facility will not discharge, emit or cause pollution. The Petitioner also has not provided reasonable assurance that the operation of the used oil recycling facility will not violate water quality standards or be contrary to the public interest. Similarly, there was insufficient evidence and no reasonable assurance submitted or offered by the Petitioner that the industrial waste water treatment system could be operated without violating water quality standards or being contrary to the public interest. Therefore Petitioner is not entitled to either a general permit for a used oil recycling facility or an operation permit for the industrial waste water treatment system used in conjunction with the used oil facility.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57, Florida Statutes.
The Department has permitting authority over the used oil recycling facility and the industrial waste water treatment system in the subject permit applications under Chapter 403, Florida Statutes. Specific requirements for issuance of a used oil recycling facility and a waste water treatment system operation permit are set forth in Chapter 403, Florida Statutes, and Rule Chapters 17-4, 17-301, 17-302, 17-520 (formerly 17-3), 17-660 and 17-710, Florida Administrative Code. Section 403.087(1), Florida Statutes, states, in part:
[n]o stationary installation which will reasonably be expected to be a source of air or water pollution shall be operated
. . . without an appropriate and currently valid permit issued by the department. . . .
and Section 403.021(2), Florida Statutes, states, in part:
. . . no wastes be discharged into any waters of the state without first being given the degree of treatment necessary to protect the beneficial uses of such water.
Rule 17-660.400(1)(n), Florida Administrative Code, sets forth the requirements for minimum treatment of "[a]ll sources of industrial waste reasonably expected to be sources of water pollution. "
Rule 17-660.400(1)(o), Florida Administrative Code, specifically requires that ". . . industrial wastes discharged into ground waters shall receive secondary treatment or such other treatment as deemed necessary by the Department."
[Emphasis added].
Rule 17-710.800, Florida Administrative Code, sets forth the requirement that used oil recycling facilities can only be operated pursuant to a general permit and that such facility ". . . shall meet the applicable general permit requirements in Rules 17-4.510 through 17-4.540, F.A.C., . . .", in addition to the other requirements of 17-710, Florida Administrative Code.
Rule 17-4.530(2), Florida Administrative Code, states:
proposed project which may be reasonably expected to violate air quality standards, water quality standards, or drinking water standards or which will not meet the public interest requirements set forth in Chapter 403, F.S., shall not be entitled to use of a general permit. [Emphasis added].
Rule 17-710.400(2), Florida Administrative Code, states that "[n]o person may discharge used oil into soils, . . ., surface or ground waters, [or] watercourses "
In a permit proceeding, the applicant for a permit bears the burden of proof to demonstrate entitlement to the subject permit. Rule 17-103.130(1), Florida Administrative Code. Florida Department of Transportation v. JWC Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). In this instance, Petitioner is required to provide reasonable assurances that the pond is not leaking or discharging wastewater to the surrounding environment.
The preponderance of the evidence, the greater weight of the evidence, and competent, substantial evidence clearly establish that the Petitioner has failed to bear its burden of proof and is not entitled to issuance of the requested permits under Chapter 403, Florida Statutes, and the rules of the Department promulgated thereunder.
Based upon the application of the above-stated statutes and rules to the evidence, the Petitioner has failed to sustain its burden of providing reasonable assurances based upon plans, test results, installation of pollution control equipment, or other information, that the operation of the used oil recycling facility and of the industrial waste water treatment system will not emit, discharge, or cause pollution, violate water quality standards and be contrary to the public interest in contravention of Department statutes and rules. Put simply, the evidence demonstrates that the pond may be leaking because chemical pollutants which are associated with an oil recycling facility were found in the soil around the pond. Given this fact, along with the lack of any as built plans, materials data on the soil cement pond liner or background information on the area's pollution it is impossible to conclude that the current pollution did not come from the pond. The burden is on the Petitioner (not DER) to gather such data and information to make such a showing and Petitioner has not done so in this case. Therefore, the Petitioner is not entitled to issuance of General Permit No. 188440 to operate a used oil recycling facility nor is the Petitioner entitled to issuance of Permit No. 194163 to operate the industrial waste water treatment system.
Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly,
RECOMMENDED that a Final Order be entered denying the Petitioner both the general permit to operate a used oil recycling facility and the operation permit for the industrial waste water treatment system without prejudice to reapplying for such permits.
DONE and ENTERED this 9th day of September, 1993, in Tallahassee, Florida.
DIANE CLEAVINGER
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1993.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5140 and 92-1560
The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 12, 13, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28, and 29 of Respondent's Proposed Findings of Fact are adopted in substance insofar as material.
The facts contained in paragraphs 11, 15, 27 and 30 of Respondent's Proposed Findings of Fact are subordinate.
The facts contained in paragraph 10 of Respondent's Proposed Findings of Fact were not shown by the evidence.
Paragraphs 1 and 2 of the Petitioner's Proposed Findings of Fact were introductory and did not contain any factual matters.
The facts contained in the 1st, 2nd and 7th sentences of paragraph 4 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph is subordinate.
The facts contained in the 4th, 5th, 6th and 7th sentences of paragraph
5 of Petitioner's Proposed Findings of Fact are subordinate. The remainder of the paragraph was not shown by the evidence.
The facts contained in paragraphs 3, 6, 7, 10, 12 and 13 of Petitioner's Proposed Findings of Fact were not shown by the evidence.
The facts contained in the 3rd and 5th sentences of paragraph 8 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph is subordinate.
The facts contained in the last sentence of paragraph 11 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph is subordinate.
COPIES FURNISHED:
Virginia B. Wetherell, Secretary Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Daniel H. Thompson, Esquire General Counsel
Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Dr. S. K. Nayak 3512 Shirley Drive
Tallahassee, Florida 32301
Candi Culbreath, Esquire Assistant General Counsel
Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
DAVIS REFINING CORPORATION, )
)
Petitioner, )
) OGC Case No. 91-0031
vs. ) DOAH Case No. 91-5140
) STATE OF FLORIDA DEPARTMENT ) OF ENVIRONMENTAL PROTECTION, )
)
Respondent. )
) DAVIS REFINING CORPORATION, )
)
Petitioner, )
) OGC Case No. 91-2466
vs. ) DOAH Case No. 92-1560
) STATE OF FLORIDA DEPARTMENT ) OF ENVIRONMENTAL PROTECTION, )
)
Respondent. )
)
FINAL ORDER
On September 9, 1993, a Hearing Officer with the Division of Administrative Hearings (hereafter "DOAH"), submitted her Recommended Order to the Petitioner, Davis Refining Corporation (hereafter "Davis"), and to the State of Florida, Department of Environmental Protection, formerly known as the Department of Environmental Regulation (hereafter "Department") A copy of the Recommended Order is attached hereto as "Exhibit A".
On September 20, 1993, Davis requested an extension of time until October 4, 1993, to file exceptions to the Recommended Order. On October 4, 1993, Davis filed a second request for an extension of time until October 6, 1993, to file its exceptions. These extension requests of Davis were not objected to by the Department conditioned on Davis' stipulation that the time for the entry of a Final Order by the Department would be extended until November 17, 1993. An order was subsequently entered by the Department on October 15, 1993, wherein were embodied these stipulated extended dates for the filing of Davis' exceptions to the Recommended Order and for the entry of an agency Final Order by the Department.
Davis timely filed its Exceptions to Recommended Order on October 6, 1993, but did not furnish the Department with a transcript of the final hearing before the Hearing Officer. On October 18, 1993, the Department timely filed its responses to Davis' exceptions. The matter is now before me as Secretary of the Department for final agency action.
BACKGROUND
Davis applied to the Department for two permits. The first application (number 188440) was for a general permit to operate a used oil recycling facility in Tallahassee, Florida. The second application (number 194163) was to operate an industrial waste water treatment system at the same facility, in conjunction with the used oil recycling operation. The Department issued notices of its intent to deny both permit applications. Davis then timely filed petitions requesting administrative hearings to challenge the Department's notices of intent to deny the two permit applications.
The Department forwarded these two petitions to DOAH for the purpose of assignment of a Hearing Officer to hold a formal hearing under s. 120.57(1), Florida Statutes. The two petitions were assigned DOAH case numbers 91-5140 and 92-1560, respectively, and were subsequently consolidated pursuant to the Department's motion to consolidate filed on August 14, 1992.
A formal administrative hearing was held on January 11, 1993, in Tallahassee, Florida, before DOAH Hearing Officer, Diane Cleavinger. Upon request at the hearing, Dr. S.K. Nayak, a professional engineer, was accepted by the Hearing Officer as Davis' qualified representative. The testimony of witnesses and documentary evidence were introduced into evidence at the hearing on behalf of both Davis and the Department. The testimony of the witnesses at the hearing was reported by a certified court reporter.
The key issues before the Hearing Officer were whether Davis had provided "reasonable assurances" that:
The used oil recycling facility and industrial waste water treatment system would not be a source of water pollution.
The used oil recycling facility and industrial waste water treatment system would not violate applicable water quality standards.
The used oil recycling facility and industrial waste water treatment system would not otherwise be contrary to public interest requirements.
In paragraphs 21 and 22 of the Recommended Order, the Hearing Officer found that Davis had not provided reasonable assurances as to its compliance with the requirements enumerated above. (Exhibit A, pp. 10-11) Consequently, the Hearing
Officer concluded in paragraph 32 that Davis had not established its entitlement to the two permits in question. (Exhibit A, p. 14) The Hearing Officer ultimately recommended that the Department enter a Final Order denying the issuance of both the general permit to operate a used oil recycling facility and the permit to operate the industrial waste water treatment system, without prejudice to Davis reapplying for such permits. 1/ (Exhibit A, p. 14)
STANDARD OF REVIEW
Davis filed various exceptions to the Recommended Order disputing portions of the statement of issues, preliminary statement, findings of fact and conclusions of law. The Department filed its responses in opposition to each of Davis' exceptions. As a preface to my rulings on the various exceptions, it is appropriate that I comment on the standard of review imposed by law on me in reviewing recommended orders submitted by DOAH hearing officers.
Under Section 120.57(1)(b)10, Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the recommended order. However, the agency may not reject or modify findings of fact made by the Hearing Officer, unless a review of the complete record demonstrates that such findings were not based on competent, substantial evidence or that the proceedings on which the findings were based do not comply with the essential requirements of law. (emphasis supplied) See, e.g., Freeze v. Dept. of Business Regulation, 556 So.2d 1204 (Fla. 5th DCA 1990); and Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla.
1st DCA 1987). Competent, substantial evidence has been defined by the Florida Supreme Court as such evidence as is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached." DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957)
The agency may not reweigh the evidence, resolve conflicts therein or judge the credibility of witnesses, as those are matters within the sole province of the hearing officer. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). Consequently, if the record of the DOAH proceedings discloses any competent, substantial evidence to support a finding of fact made by the hearing officer, I am bound by such finding. Florida Department of Business Regulation v. Bradley, supra, at page 1123. Parties who seek to dispute a hearing officer's findings of fact are required by Rule 17-103.200(1), F.A.C., to furnish the reviewing agency with a complete transcript of the hearing.
RULINGS ON DAVIS' EXCEPTIONS
Exceptions to Statement of Issues and Preliminary Statement
In these two exceptions, Davis essentially disagrees with the Hearing Officer's specific descriptions and characterizations of the two permits for which it applied to the Department for issuance. The substance of Davis' dispute here pertains primarily to factual evidence presented at the DOAH hearing which, as discussed in more detail below, requires my review of the complete transcript of the hearing testimony that was not furnished to me by Davis. Furthermore, my review of the exhibits introduced by both parties at the hearing reflects that the Hearing Officer's descriptions and characterizations of the two permits applied for by Davis appear to be based on a reasonable construction of the documents of record. (Petitioner's Exhibits 19, 21, 22 and 25; DER Exhibits 5 and 7) Consequently, Davis' exceptions to the Statement of Issues and Preliminary Statement are rejected.
Exceptions to Findings of Fact Numbers 1, 3, 8, 9, 10, 11,
12, 13, 14, 15, 17, 18, 19, 20, 21 and 22
Of particular importance here are the review standards relating to exceptions to findings of fact in Recommended Orders. These sixteen (16) exceptions to the Recommended Order dispute various findings of fact made by the Hearing Officer. However, Davis' exceptions to these factual findings were not accompanied by a transcript of the DOAH hearing. Also, Davis did not separately file a transcript of the hearing with DOAH or with the Department at any other time.
As noted in the above discussion on the standard of review, I am prohibited by the statutory law of Florida from rejecting or modifying findings of fact in a recommended order, unless I review the "complete record" of the proceedings before the Hearing Officer. The controlling case law of this state construing
s. 120.57(1)(b), Florida Statutes, has consistently held that a reviewing agency should not reject the findings of fact of a DOAH hearing officer where the party disputing the findings of fact has failed to furnish to the reviewing agency a complete transcript of the DOAH proceedings. See, e.g., Rabren v. Department of Professional Regulation, 568 So.2d 1283 (Fla. 1st DCA 1990); Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987); and Booker Creek Preservation, Inc. v. Department of Environmental Regulation, 415 So.2d 750 (Fla. 1st DCA 1982).
The Department's rules implementing s. 120.57(1)(b), Florida Statutes, are even more explicit. Rule 17-103.200(1), F.A.C., requires that "[a]ny exception disputing a finding of fact must be accompanied by a complete transcript of the hearing. "The related provisions of Rule 17-103.205(3), F.A.C., also mandate in part that "[a] party filing [an] exception to any finding of fact of the hearing officer must file a complete transcript of the hearing with the exception."
The record before me for review does contain documentary evidence consisting of the various exhibits introduced at the DOAH hearing by both Davis and the Department. However, my review of these sixteen exceptions to the Hearing Officer's findings of facts failed to locate a single direct reference by Davis to any of the exhibits. Thus, Davis' exceptions to the findings of fact also fail to comply with the requirements of Rule 17-103.200(1), F.A.C., providing, in part, that "[e]xceptions shall state with particularity the basis for asserting the the hearing officer erred in making or omitting specific findings of fact, conclusions of law, or a recommendation."
In view of the above discussion and legal authorities, Davis' exceptions to the Hearing Officer's findings of fact numbers 1, 3, 8, 9, 10, 11, 12, 13, 14,
15, 17, 18, 19, 20, 21 and 22 are rejected.
Exceptions to Conclusion of Law 23
Conclusion of Law 23 cites the statutory basis for the jurisdiction of DOAH in this proceeding. Conclusion of Law 24 discusses the statutory and regulatory authority of the Department with respect to the two subject permit applications filed by Davis. Davis' exceptions here referring to -Conclusions of Law 23" appear to apply instead to the Hearing Officer's legal conclusions in paragraph
24. In any event, I concur with the legal conclusions of the Hearing Officer in both paragraphs 23 and 24 of the Recommended Order.
I also agree with the Department's contention in its response that these exceptions of Davis are essentially factual in nature, rather than legal. For instance, Davis argues in the exception that his wastewater treatment facility does not have a point of discharge to waters of this state. An informed consideration of this factually based assertion would require a thorough review of the complete transcript of the testimony presented at the hearing. As discussed above, Davis failed to provide a copy of the transcript of the hearing with its exceptions to the Hearing Officer's findings of fact. Thus, Davis' "Exceptions to Conclusions of Law 23" are rejected.
Exceptions to Conclusions of Law 26 and 27
Paragraph 26 of the Recommended Order consists entirely of a quotation of a portion of Rule 17-660.400(1)(o), F.A.C., 2/ dealing with effluent limitations. Paragraph 27 of the Recommended Order consists of a both a paraphrase and a quotation of portions of Rule 17-710.800, F.A.C., pertaining to requirements for general permits for used oil recycling facilities. Davis does not contend that these quotations or the paraphrase of the respective rule provisions are erroneous. Also, Davis failed to cite any legal authorities or offer any other basis to support its assertion that the Hearing Officer erred in making these conclusions of law, as is required by Rule 17-103.200(1), F.A.C. Instead, Davis once again raises factual arguments related to the evidence allegedly presented at the hearing as to its compliance with these rule requirements. For the reasons stated above and in my rulings on Davis' prior exceptions, I reject these exceptions to Conclusions of Law 26 and 27.
Exceptions to Conclusion of Law 32
Here Davis disputes the Hearing Officer's conclusion that it has not provided reasonable assurances of compliance with the applicable environmental requirements necessary for issuance of the permits in question. However, Davis again fails to comply with the requirements of Rule 17-103.200(1), F.A.C., by not citing any legal basis that would arguably support this exception. Davis' bare assertion of its fulfillment of the critical "reasonable assurances" standard of proof without supporting legal authorities or record evidence constitutes, at best, a self-serving conclusory statement.
The conclusions of the Hearing Officer that Davis has not provided the necessary "reasonable assurances" that it has complied with the applicable environmental requirements pertaining to the requested permits constitute "mixed questions of law and fact", where the governing permitting law is applied to the Hearing Officer's findings of fact. Harloff v. City of Sarasota, 575 So.2d 1324 (Fla. 2d DCA 1991). I am not free to reject the Hearing Officer's findings of fact related to these "mixed questions", particularly where the transcript of the DOAH hearing was not provided to me for review. However, I do have the authority to substitute my judgment concerning the legal question of whether those facts establish "reasonable assurances" of compliance with the governing permitting law. Harloff, at page 1328.
Upon reviewing the governing law, I find no basis for rejecting or modifying the Hearing Officer's legal conclusions in paragraph 32. See, eg., sections 403.021, 403.061 and 403.087, Florida Statutes; and Rules 17-4, 17-301,
17-302, 17-520, 17-660 and 17-710, F.A.C. Thus, Davis' exceptions to Conclusions of Law 32 are rejected.
IT IS THEREUPON ORDERED:
The Recommended Order attached as Exhibit A is hereby adopted in its entirety 3/ and is incorporated by reference herein.
The application (number 188440) of the Petitioner, Davis Refining Corporation, for a general permit for a used oil recycling facility in Tallahassee, Florida, is DENIED.
The application (number 194163) of the Petitioner, Davis Refining Corporation, to operate an industrial waste water treatment system in conjunction with the used oil recycling operation is also DENIED.
Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this Order is filed with the clerk of the Department.
DONE AND ORDERED this 17th day of November, 1993, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
Virginia B. Wetherell Secretary
Twin Towers Office Building 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
ENDNOTES
1/ See my comments in footnote 3 at page 10 on the Hearing Officer's recommendation that denial of the permits be "without prejudice."
2/ The quoted language of Rule 17-660.400(1)(o) was in effect at the time of the DOAH hearing. This rule was subsequently amended effective 4/22/93, but said amendment would have no effect on the disposition of these proceedings.
3/ The Recommendation of the Hearing Officer was that the subject permit applications be denied "without prejudice to [Davis] reapplying for such permits." Any subsequent applications pertaining to the same facility and same system would, of course, have to contain new facts, changed conditions or additional submissions in order to avoid the application of the res judicata doctrine. See Thomson v. Dept. of Environmental Reg., 511 So.2d 989 (Fla. 1987)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing Final Order has been sent by
U.S. Mail to the following listed persons:
George I. Davis, President Dr. S.K. Nayak Davis Refining Corporation 3512 Shirley Dr
Post Office Box 6089 Tallahassee Florida 32301 Tallahassee Florida 32314
and by hand delivery to:
Diane Cleavinger Ann Cole, Clerk
Hearing Officer Division of Administrative Division of Administrative Hearings
Hearings The DeSoto Building The DeSoto Building 1230 Apalachee Parkway
1230 Apalachee Parkway Tallahassee Florida 32399-1550
Tallahassee Florida 32399-1550
Candi E. Culbreath, Esquire
Department of Environmental Protection 2600 Blair Stone Road
Tallahassee Florida 32399-2400 this 17th day of November, 1993.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
TERRELL WILLIAMS
Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Telephone: (904)488-9730
| Issue Date | Proceedings |
|---|---|
| Sep. 09, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held January 11, 1993. |
| Jan. 26, 1993 | Department of Environmental Regulation's Proposed Recommended Order filed. |
| Jan. 26, 1993 | (Petitioner) Findings of Facts Presented During The Final Hearing Recommended for Consideration in Issuing The Final Order filed. |
| Jan. 08, 1993 | Order sent out. (motion denied) |
| Jan. 07, 1993 | Letter to SDC from G. Davis (re: request to use S. Nayak as representative) filed. |
| Dec. 30, 1992 | Respondent Department of Environmental Regulation`s Motion for Protective Order filed. |
| Nov. 23, 1992 | (DER) Amended Notice and Certificate of Service of Interrogatories filed. |
| Oct. 02, 1992 | Order of Continuance and Rescheduling Hearing sent out. (hearing rescheduled for January 11-12, 1993; 9:30am; Tallahassee) |
| Sep. 30, 1992 | Respondent Department of Environmental Regulation`s Motion for Continuance filed. |
| Sep. 21, 1992 | Order of Consolidation sent out. (Consolidated cases are: 91-5140, 92-1560) |
| Aug. 14, 1992 | Respondent Department of Environmental Regulation`s Motion for Consolidation filed. |
| Jun. 10, 1992 | Order Granting Continuance sent out. (hearing rescheduled for October 13-14, 1992; 9:30am; Tallahassee) |
| Jun. 05, 1992 | Respondent`s Motion for Continuance filed. |
| May 18, 1992 | (Respondent) Notice and Certificate of Service of Interrogatories; Department of Environmental Regulation`s First Request for Production of Documents to Petitioner, Davis Refining Corp. filed. |
| Feb. 24, 1992 | Notice of Hearing sent out. (hearing set for June 23-24, 1992; 9:30am; Tallahassee). |
| Feb. 20, 1992 | Respondent`s Response to Order of Abeyance filed. |
| Sep. 25, 1991 | Order of Abeyance (for 120 days) sent out. |
| Sep. 13, 1991 | (Respondent) Motion for Abeyance filed. (From Candi Culbreath) |
| Aug. 30, 1991 | Department of Environmental Regulation's Response to Initial Order filed. (From Candi Culbreath) |
| Aug. 29, 1991 | (Petitioner) Response to Initial Order filed. |
| Aug. 20, 1991 | Initial Order issued. |
| Aug. 14, 1991 | Request for Assignment of Hearing Officer and Notice of Preservation of Record; Petition to Convene Formal Proceedings Pursuant to Section 120.57(1), Florida Statutes filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 17, 1993 | Agency Final Order | |
| Sep. 09, 1993 | Recommended Order | General permit and operating permit for waste water-used oil recycling plant pond made of sand/cement (10%). Petitioner failed to show pond not leaking. |
