The Issue The issue is whether the Department of Environmental Protection's (Department's) proposed award of a contract to Intervenor, CDM Constructors, Inc. (CDM), is contrary to the Department's governing statutes, rules or policies, or the solicitation's specifications.
Findings Of Fact Based on all of the evidence, the following findings of fact are made: Background Piney Point is an abandoned fertilizer manufacturing plant adjacent to Port Manatee in Manatee County. In the fertilizer manufacturing process, phosphate rock is converted into soluble phosphorus by adding sulfuric acid to the phosphate rock to produce phosphoric acid. A by-product of this activity is phosphogypsum. For every ton of phosphoric acid produced, approximately five tons of phosphogypsum are produced. The phosphogypsum is stored in stacks like the ones at Piney Point. Federal and state regulations require that the phosphogypsum be managed in stack systems. (Stack systems are large impoundments containing contaminated water that has come into contact with the phosphogypsum.) This is accomplished by using process water to "slurry" the phosphogypsum to the stacks where the phosphogypsum settles out. The process water becomes extremely polluted as a result of the manufacturing activities and is typically very acidic. It contains heavy metals, such as arsenic, cadmium, chromium, and fluoride, in addition to high levels of nutrients, nitrogen, and total dissolved solids. It is also slightly radioactive. The process water is stored in impoundments surrounded by the phosphogypsum stacks, in cooling ponds, and in the seepage ditches around the stacks. The Piney Point site is located south of Tampa, approximately one mile inland from Bishops Harbor, which is a portion of Tampa Bay. The site encompasses a total of approximately six hundred acres. There are two phosphogypsum stacks located at Piney Point; each of these is divided into two compartments or ponds. Today, the old gypsum stack rises to a height of eighty feet. The site previously held around 1.4 billion gallons of process water with 800 million gallons stored in the various ponds and 600 million gallons stored in the pores of the gypsum stacks as pore water. The site is currently estimated to have 500 to 550 million gallons of process water of which about 350 million gallons is pore water. All of this water must be treated and removed in order to close and remediate the site. To close one of these phosphogypsum stack systems, all of the water must be removed from the ponds. The surface is allowed to dry and is then graded. A polyethylene liner is placed over the surface and than a soil cover is placed on top of the liner. The liner prevents any additional rainfall from infiltrating into the gypsum stack and creating additional process water. The pore water underneath the liner is then allowed to drain from the stack and is collected in seepage ditches, where the water will ultimately be treated. A thick layer of grass is grown on the steep slopes of the gypsum stacks to help prevent infiltration of rainwater back into the stacks. The ultimate goal is to convert this site into a freshwater reservoir for the residents of Manatee County. Until early 2001, Piney Point Phosphates, Inc., which was a subsidiary of Mulberry Phosphate Company (Mulberry), owned and operated a fertilizer manufacturing complex at Piney Point. (Mulberry also operated another fertilizer manufacturing complex in Mulberry, Florida). In February 2001, Mulberry filed a petition for protection from creditors in the United States Bankruptcy Court in Tampa, Florida. At the same time, Mulberry notified the Department that it did not have the resources to maintain the site. (The Department was also advised by Mulberry that it did not have the resources to maintain the stack system at the Mulberry site.) Because there existed the potential for release of the contaminated waters from Piney Point into Tampa Bay, the Department immediately assumed financial responsibility for Piney Point and in May 2001, a state court appointed a Receiver for Piney Point to take "all reasonable steps and action to preserve the Property's environmental integrity and its compliance with environmental regulations." To execute these duties, the Receiver entered into a contract with the Department. Pursuant to that contract, it retained the services of Ardaman, an international engineering consulting firm in Orlando, Florida, as its engineer of record to design a plan to close Piney Point and to ensure that the plan was properly implemented. At about the same time, the Receiver contracted with IT Corporation, the predecessor to Shaw, to begin some of the site closure work on an emergency basis. Since that time, the Department has spent $63 million at Piney Point, with Shaw receiving a majority of that amount. Based on the Department’s experience at the Mulberry site, it believed that it could realize a significant savings to the State through the Invitation to Negotiate (ITN) process and the use of a lump sum contract, rather than continuing to contract out the work for Piney Point on a time and materials basis. Further, the Department's Inspector General had recommended a lump sum contract as an incentive to the contractor selected to conduct the closure work. The ITN Under Section 403.4154(3)(a), Florida Statutes (2004),1 "[t]he department may take action to abate or substantially reduce any imminent hazard caused by the physical condition, maintenance, operation, or closure of a phosphogypsum stack system." Pursuant to this provision, on July 16, 2004, the Department issued ITN No. 2005002C (the ITN) entitled "Closure of the Piney Point Phosphogypsum Stack System." The contract called for a contractor to provide services at the Piney Point site in three primary areas: continued operation and maintenance of the site; water consumption; and closure of the phosphogypsum stack system. Water consumption consists of treating the process water and pore water and removing it from the site by evaporation, irrigation, discharge, or other methods. Closure of the stacks includes draining water from the stacks, grading the banks, and installing liners, clean soil, and sod. The contract is estimated to be worth approximately $51.2 million to the successful vendor. The contract was intended to replace the Receiver's existing contract with Shaw, although Shaw was free to compete for the new contract. A number of individuals were involved with developing the ITN. First, Gwenn D. Godfrey, who is the Department's Procurement Administrator, assisted with the original ITN. Also, Phil Coram, who is the Department's Chief of the Bureau of Mine Reclamation, was heavily involved with the ITN and assumed a major role on technical issues such as operation and maintenance as well as water management planning. Although the Department does not normally use private consultants in the procurement process, due to the complex technical issues involved, it retained Ardaman to assist with the procurement process. Ardaman, who was then serving as engineer of record on the project, does approximately 90 to 95 percent of all work performed in Florida in the area of phosphogypsum stack systems and has special expertise in that area. (As noted above, Ardaman designed the complex closure plan for the facility.) One of its employees, Dr. Nadim Fuleihan, a senior vice president and principal engineer, has served as the chief engineer for the Piney Point project since 2001 and has worked closely with Mr. Coram, who has been the Department's coordinator on the project since 2002. According to Mr. Coram, Dr. Fuleihan "knew more about that site, especially the closure aspects, . . . than anyone." This observation was undisputed. For that reason, Dr. Fuleihan was requested to assist in the procurement process. Mr. Coram was asked by Department management to identify individuals to serve as evaluators for the ITN process. Besides Dr. Fuleihan, management wanted the evaluators to consist of Department employees within the Bureau of Mine Reclamation, the Division of Waste Management, the Office of General Counsel, and representatives from other agencies that had been involved with Piney Point. The seven ITN evaluators consisted of Mr. Coram; Dr. Fuleihan; Sam Zamani, Administrator for the Department's Phosphate Management Program; John Wright, a professional engineer in the Department's Division of Waste Management; Jon Alden, a Department attorney who has represented the Department in the Mulberry bankruptcy case; Robert Brown, a Senior Environmental Administrator for Manatee County; and Richard Eckenrod, Executive Director of the Tampa Bay Estuary Program (TBEP). Before the evaluation process began, the Department required all members of the evaluation team to sign a certification that if "at any time during [their] participation on the contractor selection committee, that a potential conflict of interest exists," they agreed to notify the Department's Procurement Section of the circumstances surrounding the potential conflict of interest. By doing so, the Department complied with Section 287.057(20), Florida Statutes, which requires that if the procurement costs more than $25,000.00, "the individuals taking part in the development or selection of criteria for evaluation, the evaluation process, and the award process shall attest in writing that they are independent of, and have no conflict of interest in, the entities evaluated and selected." A requirement that the certification form be executed by each team member is also found in the solicitation instructions. Significantly, the certification form imposed a continuing obligation on the evaluators to notify the Department should any "potential conflict of interest arise." Prior to submitting responses, three potential vendors, Shaw, Compass, and CDM, contacted Dr. Fuleihan and asked him to participate on their respective teams in the ITN process. Dr. Fuleihan declined to work with any of them on an exclusive basis. Tetra Tech, Inc., which is Ardaman's parent company, also considered preparing a response to the ITN but Dr. Fuleihan advised it not to do so since Ardaman's status as engineer of record could raise a conflict of interest. On September 10, 2004, CDM, Compass, Shaw, and Coburn Construction (Coburn) submitted replies to the ITN. The Department subsequently deemed the reply by Coburn to be non- responsive for its failure to comply with the requirements of the ITN. Coburn did not challenge this determination. The other proposals were independently reviewed, scored, and ranked. The results were given to Mr. Coram, who computed an average rank for each of the firms. The final average rankings were very close with Shaw being ranked first, followed by Compass and CDM, who were tied. After the initial replies were filed, Mr. Eckenrod became concerned that he had a potential conflict of interest with Craig A. Kovach, President of QuietEarth Consultants, Inc., which was identified as a CDM subcontractor and team member. Mr. Kovach's wife served on the TBEP Board of Directors and had hiring and firing authority over Mr. Eckenrod. Accordingly, Mr. Eckenrod emailed the Department's Office of General Counsel for a determination of whether a conflict existed. Under the Department's Code of Ethics, which is also known as Administrative Directive DEP 202 (DEP 202), "[e]mployees should avoid any conduct . . . which might undermine the public trust, whether that conduct is unethical or may give the appearance of ethical impropriety." See Compass Exhibit 32, DEP 202, paragraph 7.a. In addition, another document known as DEP 315 establishes Department policy for the purchase of contractual and professional services. See Compass Exhibit 61. Paragraph 26 of DEP 315 adopts the standards of conduct for public officers and employees which are codified in Section 112.313(3) and (7)(a), Florida Statutes. While not specifically applicable to Mr. Eckenrod's situation, among other things, that paragraph prohibits Department employees from having an "employment or contractual relationship with any business entity . . . which is . . . doing business with" the Department. Teresa L. Mussetto, a Department attorney who then served as a Department Ethics Officer on behalf of the General Counsel, issued an opinion on September 29, 2004, stating in part that even though Mr. and Mrs. Kovach had never sought to influence Mr. Eckenrod, his professional association with a member of the CDM team "may be perceived as a conflict of interest," and that if the contract were ultimately awarded to CDM, the transaction might "reasonably give rise to the 'appearance of impropriety.'" See Shaw Exhibit 21. Ms. Mussetto also determined that even though Mr. Eckenrod was not a Department employee, he acted as an integral part of the procurement team and that DEP 202 was applicable to him. (It follows that DEP 315 would likewise apply.) Because DEP 202 requires that every aspect of the procurement process be conducted in a manner which would not undermine the public trust or lead a reasonable person to question its fairness and impartiality, Mr. Eckenrod's potential conflict with CDM's subcontractor was a sufficient basis for his removal from the evaluation team, and he did not participate further in the process. On October 12, 2004, the Department gave notice of its rankings of the vendors and informed them that it intended to exercise its right to conduct oral discussions with all three vendors. The firms would then be asked to submit Best and Final Offers (BAFOs) which would be scored anew. This was consistent with the ITN, which provided that the Department "reserves the right to short list respondents deemed to be in the competitive range to conduct oral discussions prior to the final determination of contract award." The decision to conduct oral discussions was made by senior management in the Department at the time scores were posted for the replies to the ITN. The Secretary of the Department, along with other senior management, determined oral discussions would be conducted with all three vendors to assist in formulating the BAFO Instructions (Instructions) and then the Department would proceed to score the BAFOs. No one has challenged this process. Development of the BAFO Instructions Before drafting the Instructions, the Secretary of the Department met with Earl Black, a Department of Revenue attorney, and Barbara F. Phillips, a Purchasing Analyst with the same agency. Both individuals had substantial experience with procurements and were asked to participate in the BAFO process. They agreed and were added to the evaluation team. As finally formed, the team consisted of two attorneys, four engineers, and two persons with significant procurement experience. Six of the eight had considerable prior knowledge of the Piney Point site. In an effort to refine the Instructions, CDM, Compass, and Shaw each made oral presentations to the Department's evaluators and other Department staff on November 3, 2004. All of the evaluators, including Mr. Black and Ms. Phillips, attended the oral presentation. As part of this process, the vendors were able to ask questions of the evaluators, and the evaluators were able to ask questions of the vendors. Following the oral discussions, another round of discussions was held with each vendor. These discussions were referred to as "negotiation sessions." The purpose of these discussions was to better understand the cost elements and facts of each vendor’s initial proposal in order to develop the Instructions. Mr. Alden, Dr. Fuleihan, Mr. Black, and Ms. Phillips conducted these discussions with each vendor. The Instructions were drafted by a group of individuals including Dr. Fuleihan, Mr. Black, Ms. Phillips, Ms. Godfrey, Mr. Alden, and Mr. Coram. Dr. Fuleihan gave input on the sections relating to technical issues primarily in the scope of work, which included the process water consumption section. He was also involved in revising the pricing summary and developing the evaluation criteria. Neither Shaw nor Compass challenged any part of the Instructions. After the Instructions were completed, but before the BAFOs were submitted by the three vendors, the Department again required each evaluator to complete a second conflict of interest certification. The form was similar to the earlier certification in the procurement process and required that the members certify that they had "no conflict of interest" with the "entities being considered for the contract award." Like the earlier form, it imposed a continuing obligation on the evaluators to notify the Department should any potential conflict of interest arise. The form listed CDM, Compass, and Shaw as the relevant entities. Each member, including Dr. Fuleihan, executed the certification. At that time, Dr. Fuleihan was not aware of any projects that Ardaman was doing for Shaw or Compass, and he did not believe that Ardaman was doing any work for CDM because of a past disagreement with one of the CDM entities that resulted in no work between the companies for many years. Section 1.19 of the Instructions provides that the Department reserves the right to waive minor informalities or irregularities in the offers received where such are merely a matter of form and not substance and the correction of which are not prejudicial to other vendors. Evaluation of the BAFOs On November 15, 2004, the Department issued the Instructions, which required that responses be filed by the three vendors no later than Wednesday, December 1, 2004. The Instructions also informed the vendors that negotiations with the top-ranked vendor would begin immediately after the posting of the scoring results. CDM, Compass, and Shaw timely submitted their BAFOs on December 1, 2004. CDM's response indicated that it proposed to use a specific water treatment process relying on The Mosaic Company (Mosaic) as its subcontractor. This company was formed when the phosphate operations of the Cargill Companies and IMC Global, Inc. were combined in October 2004, or shortly before the BAFOs were filed. The evaluators located in Tallahassee were individually given the responses submitted by CDM, Compass, and Shaw on Thursday, December 2, 2004. For those evaluators located outside of Tallahassee, the responses were given on Friday, December 3, 2004. Pursuant to a specific set of instructions provided by the Department, each evaluator, acting independently, then individually ranked the BAFO responses. In order to determine the responsiveness of the BAFOs, Ms. Godfrey used a checklist to review the individual submittals and found that all three were complete. Also, Dr. Fuleihan, who served as the subject matter expert, reviewed each proposal to ensure that the qualifications of the persons identified in the responses met the minimum qualifications listed in the Instructions. He determined that all three vendors met the minimum qualifications. Therefore, the Department considered all three vendors responsive to the Instructions and qualified to perform the work. (If an evaluator considered a particular item in the response to be incomplete or defective, the evaluator could reflect that by assigning a lower score to that response.) The BAFO Scoring Process For scoring purposes, each BAFO response was divided into approximately fifteen identified subcategories. A one-to- five scale (with five being the highest score) was used to evaluate each subcategory of the vendor’s response. The raw scores for a given subcategory would be multiplied by a weight factor that corresponded to that subcategory to arrive at a weighted score for each subcategory. To obtain a total score for each vendor, the weighted scores for each subcategory would then be added together. The total weighted scores could range between 0 and 220. Each vendor was then assigned a ranking based on its weighted total score. The vendor with the highest score received a rank of one, the second highest score received a rank of two, and the third highest score received a rank of three. If two or more vendors had identical weighted total scores the ranks were added together and divided by two. (For example, if Vendor A received a 175 and Vendors B and C each received a 170, the vendors would be ranked as follows: Vendor A - 1.0, Vendor B - 2.5, and Vendor C - 2.5.) After all the scores had been submitted, the ranks of each vendor were averaged to determine the best proposal for the State. Average ranks were used in order to normalize the evaluations so that an especially generous or especially hard grader would not skew the outcome. Each of the eight evaluators conducted an individual, objective, and impartial review of the three responses to the Instructions. They all spent four to five days, including a weekend, reviewing each of the responses. (There is some confusion regarding the actual amount of time that Mr. Zamani spent reviewing the BAFOs. Documents offered by Shaw reflect that he received the BAFOs on December 3 and returned his rankings the following day, December 4. Testimony offered by the Department reflects that he spent several days reviewing the filings. Even if Shaw's time frame is correct, there is no evidence that Mr. Zamani evaluated the BAFOs in an improper or arbitrary manner.) The evaluators did not have any discussions during the evaluation process about their evaluations. Outside one phone call from Mr. Brown to Mr. Coram to clarify what the vendors had received with the Instructions, the evaluators had no contact with one another. Mr. Alden ranked CDM first with a score of 177, Compass second with a score of 174, and Shaw third with a score of 172. Mr. Black ranked CDM first with a score of 140, Compass second with a score of 137 and Shaw third with a score of 106. Mr. Brown ranked CDM first with a score of 205, Compass second with a score of 183 and Shaw third with a score of 182. Mr. Coram ranked Compass first with a score of 180, Shaw second with a score of 175 and CDM third with a score of 170. Dr. Fuleihan ranked CDM first with a score of 192, while Compass and Shaw tied with scores of 189. Ms. Phillips originally submitted her evaluations with Compass ranked first with a score of 144, and Shaw and CDM tied with a score of 141. Due to an error when she transposed her scores from her notes to her score sheet, she corrected her evaluations at the hearing. With the corrected scores Compass was still ranked first with a score of 144, but CDM was now second with a score of 143, and Shaw third with a score of 139. However, this correction did not change the final results of the evaluation process. Mr. Wright ranked Shaw first with a score of 183, Compass second with a score of 181, and CDM third with a score of 166. Mr. Zamani ranked CDM first with a score of 218, Compass second with a score of 210, and Shaw third with a score of 191. After the evaluators submitted their score sheets, the ranks were added up and averaged to obtain a final ranking for each vendor. The final ranking was as follows: CDM was ranked first with an average rank of 1.688, Compass second with an average rank of 1.813, and Shaw third with an average rank of 2.500. (If Dr. Fuleihan's scores were removed from the final tabulation, as requested by Compass, then Compass would be the highest ranked vendor.) On December 7, 2004, the Department electronically posted a recommended award to CDM as the best- ranked vendor. As predetermined in the Instructions, the announcement also stated that negotiations would immediately begin with CDM, and if those negotiations failed, it would then negotiate with Compass, the second ranked vendor, and if those failed, with Shaw, who was ranked last. Compass and Shaw timely filed their Notices of Protest on December 9, 2004. On December 20, 2004, they timely filed their Formal Written Protests. Both Petitioners have contended that the process was flawed because Mosaic (a listed subcontractor on CDM's proposal) was a client of Ardaman; that Dr. Fuleihan had a conflict of interest which should have been disclosed; and he should have recused himself from the process. Shaw also contends (for the first time in its Proposed Recommended Order) that at least two of the evaluators (Mr. Black and Ms. Phillips) had little, if any, knowledge or experience concerning the scientific and technical requirements sought in the ITN and Instructions and were not qualified to evaluate the responses. It also alleged that a Sunshine Law violation may have occurred; that Mr. Zamani did not have a sufficient amount of time to evaluate the proposals;2 and that the proposals of CDM and Compass were non-responsive in various respects. The other contentions raised in Shaw's formal protest and the Pre-Hearing Stipulation have not been addressed in its Proposed Recommended Order and are deemed to have been abandoned. The remaining contentions are discussed below. Sunshine Law Violation There is no evidence that the evaluators met in closed meetings. Rather than scoring as a group, each of the evaluators scored the BAFOs separately and independently. Therefore, there was no meeting of the evaluators that was required to be conducted in the sunshine. No vendor attended the oral discussion meetings between another vendor and the evaluation team. However, there is no evidence that any of the vendors asked to attend those meetings or that the Department denied the vendors the ability to attend. Qualifications of the Evaluators There was no allegation in the Pre-Hearing Stipulation that any of the evaluators were unqualified. Although Shaw elicited testimony on that issue at hearing, especially regarding the qualifications of Mr. Black and Ms. Phillips, the issue was not timely raised. Even if it was, the evidence does not show that those two individuals, or any other member of the team, were not qualified. Mr. Black and Ms. Phillips were chosen for the team because of their extensive experience in state procurement, and not for their technical or scientific background. Mr. Black, who has been an attorney for thirty-two years, is an Assistant General Counsel and Section Chief for the Department of Revenue (DOR). In this position, he has handled numerous procurement cases for that agency. His duties include handling procurement matters, leasing matters and administrative functions for DOR. Prior to assuming his position at DOR, he worked for fourteen years for the Department of Management Services (DMS) as its primary attorney responsible for contracts dealing with environmental issues. Ms. Phillips is a Purchasing Analyst for DOR with over 28 years of procurement experience with the vast majority involving solicitation evaluations. Her responsibilities involve ensuring proper administration of complex contracts and specifications, Invitations to Bid (ITB), Requests for Proposals (RFP), ITNs, and advertisements. She develops guidelines and procedures to facilitate the ITB/RFP/ITN process and has evaluated procurement policies and procedures for DOR. Conflict of Interest Issue In its response to the ITN, CDM identified IMC Global, Inc., as a subcontractor for water treatment. After CDM's initial reply was submitted, IMC Global, Inc. and a subsidiary of Cargill merged to form a new company known as The Mosaic Company. To conform its BAFO with this corporate merger, CDM changed its response to reflect the new company as a subcontractor for water treatment and consumption. Because Ardaman had a contractual relationship with Mosaic at the time the BAFOs were submitted, Petitioners have contended that Dr. Fuleihan had a conflict of interest, that he should have disclosed this fact, and that he should have withdrawn from the ITN process. They also contend that the Department dismissed another non-employee evaluator, Richard Eckenrod, when it learned that he had a potential conflict of interest and that Dr. Fuleihan's circumstances are no different. When Mr. Coram suggested that Dr. Fuleihan participate as an evaluator, he knew that it would be likely that Ardaman would have contractual relationships with most or all of the phosphate companies over time. He expected Ardaman to continue to have such contractual relationships in the future simply because Ardaman does excellent work. However, he did not hesitate to recommend Dr. Fuleihan because he had worked with him on a daily basis for over the past three years and had known him for at least ten years. Mr. Coram testified that he always found Dr. Fuleihan's actions to be ethical and in the best interests of the State. Dr. Ardaman is a Senior Vice President of Ardaman, a member of its management team, and head of the firm's corporate engineering group. He receives a salary, bonus, and stock options; the bonus and stock options are tied to performance and profitability of Ardaman and its parent company, Tetra Tech, Inc. IMC, The Cargill Companies, and Mosaic have been clients of Ardaman. This is not surprising, however, because Ardaman's clients include "the whole phosphate industry." Indeed, Ardaman does approximately 90 to 95 percent of the engineering work performed in Florida involving phosphogypsum stack systems, a fact well known by virtually all of the players in the phosphate industry, including Petitioners. Over the last five years, Ardaman has represented such clients as Agrico Chemical Company, CF Industries, Inc., the United States Army Corps of Engineers, the Florida Department of Community Affairs, PCS Phosphate, Comanco Environmental Corporation, Moretrench Environmental Services, Inc., Shaw Environmental, Inc. (and its predecessor, IT Corporation), PENN PRO, Inc., and the Florida Department of Transportation. The Department itself is among Ardaman's most significant clients. When the ITN was first posted it was well known that Dr. Fuleihan knew all of the principals of CDM, Compass, and Shaw, including those who testified at the final hearing. In fact, Dr. Fuleihan has worked on numerous occasions with most, if not all, of the subcontractors and the consultants listed by all three vendors in their BAFOs. All three vendors also knew that Dr. Fuleihan had assisted with the ITN and BAFO processes and was serving as an evaluator for the BAFOs. Prior to the issuance of the Instructions, Dr. Fuleihan was present during the oral discussions along with the other evaluators. He also led the "negotiation sessions" where the Department was gathering information to develop the Instructions. Only after the Department proposed to award the contract to CDM on December 7, 2004, did Petitioners challenge Dr. Fuleihan's participation in the solicitation process and express a fear that the process might be tainted. Mosaic is considered an important client for Ardaman. However, there was no evidence that Ardaman would stand to gain anything from Mosaic by it serving as a subcontractor. Under the terms of the ITN, Ardaman will continue working for the Department at Piney Point as the engineer of record regardless of which vendor ultimately contracts with the Department. Ardaman did not receive any additional work from IMC Global, Inc., when it was conducting work at Piney Point in 2003, and Ardaman does not expect to receive any additional work if Mosaic returns to the site to assist with the operation of water treatment equipment. Although it is characterized as an important team member, Mosaic at most will have a limited role on CDM's team and would receive very little financial benefit from this work. Specifically, Mosaic will receive a nominal fee for allowing CDM to use the patents on its reverse osmosis equipment and roughly $50,000.00 for technical support in years three through five of the project, or a total of less than one-tenth of one percent of the estimated $52 million contract. (There is no guarantee that Mosaic will even be used by CDM since the vendor has the right to substitute subcontractors during the post-award negotiation process. In fact, CDM approached Mosaic because, at that time, Dr. Vaughn Astley worked for Mosaic, and CDM wanted his expertise and experience as part of CDM's team. Dr. Astley subsequently retired from Mosaic, as planned.) There is no evidence that, as a result of Mosaic being retained as a subcontractor for CDM, Ardaman or Dr. Fuleihan would be given extra business over and above what they already provide. There is also no evidence that as a result of CDM's being awarded the contract that Dr. Fuleihan would have his salary increased, obtain some sort of bonus, increase his stock options, or be enriched in any way. There is no evidence that Dr. Fuleihan attempted to influence the BAFO process to the advantage of any particular vendor. There is no evidence that he favored one vendor over another when he assisted in the preparation of the Instructions, determined whether the responses to the Instructions satisfied the minimum qualifications, and reviewed the BAFOs. To the contrary, the evidence supports a finding that Dr. Fuleihan scored and ranked the individual BAFOs in a fair and objective manner. Notwithstanding the lack of any evidence to show that Dr. Fuliehan exhibited bias or favoritism during the solicitation process, the facts surrounding the removal of Mr. Eckenrod are essentially the same as those of Dr. Fuleihan. In the case of Mr. Eckenrod, a non-employee, he alerted the Department that he feared that there might be an appearance of impropriety due to the fact that one of the individuals listed in CDM's proposal and his wife held positions on boards of the organization where he worked. Because the boards had the ability to hire or fire him, and determine the program's budget, Mr. Eckenrod was under the impression that this relationship might be perceived as potentially influencing his evaluation of the proposals. Given this impression, it was determined that a reasonable person might come to the same conclusion and therefore Mr. Eckenrod was excused from service. In the case of Dr. Fuleihan, also a non-employee, he had a professional relationship with a subcontractor (Mosaic), which relationship might reasonably give rise to an appearance of ethical impropriety in the event the contract was ultimately awarded to CDM. Therefore, even though there is no evidence that Dr. Fuleihan acted improperly in evaluating the proposals, a reasonable person might question his perceived impartiality. Under the precedent established in Mr. Eckenrod's case, DEP 202 and DEP 315 apply to Dr. Fuleihan's conduct, and he is obligated "to avoid any conduct . . . which might undermine the public trust . . . or give the appearance of ethical impropriety," and to not have a "contractual relationship with any business entity . . . doing business with" the Department. Given these standards, at a minimum, disclosure of this conflict was necessary as soon as the BAFOs were filed. By failing to make such a disclosure, the requirements in Section 287.057(20), Florida Statutes, the corresponding Instructions, and DEP 202 and 315 were contravened. The Department's contention that DEP 202 and DEP 315 do not apply to non-employees has been rejected, especially since the Department applied the same provisions to Mr. Eckenrod. During the course of discovery in this case (and after the solicitation process was over), Dr. Fuleihan learned that Ardaman does have one small contract (valued at $57,000) with CDM's parent company, Camp, Dresser & McKee (located in St. Louis, Missouri), that was entered into in April 2004. That contract calls for Ardaman to serve as a specialty consultant/ subcontractor to Monsanto Company (Monsanto) in providing waste disposal services for Monsanto's elemental phosphorus plant located in Idaho. When Dr. Fuleihan reviewed the BAFOs, he was unaware of this contract. He acknowledged, however, that had he known, he would have disclosed this fact to the Department. Even so, it is fair to infer that a reasonable search of Ardaman's records prior to the commencement of the process would have revealed this conflict, and the Department's Ethics Officer could have then made a determination as to whether Dr. Fuleihan could serve as a team member. Dr. Fuleihan signed two conflict of interest forms certifying that he had no conflict. He did not disclose any conflict with Mosaic because he did not believe that the form applied to subcontractors (as opposed to prime contractors), and because his firm's relationship with a potential subcontractor would not impede his ability to carry out his responsibilities in evaluating the proposals. (If Mosaic had been a prime contractor, Dr. Fuleihan acknowledged that he would have recused himself from the process.) Other Department witnesses (Godfrey and Coram) conceded, however, that the conflict of interest form applies to subcontractors as well as the prime contractor, and that if a conflict with a subcontractor arose, it should be disclosed to the Department. In summary, while there is no evidence that Ardaman's professional relationship with both a prime contractor and a subcontractor caused the evaluator to exhibit bias or favoritism towards any particular vendor, the relationships give rise to an appearance of ethical impropriety so that a reasonable person might question the impartiality of Dr. Fuleihan. By not having those relationships disclosed, the Department's governing statutes, policies, and Instructions were contravened. g. Were the CDM and Compass Proposals Responsive? Shaw also contends that there were "many areas" in which the proposals made by CDM and Compass did not materially comply with the Instructions, and that they should be considered non-responsive. Although Shaw's Formal Written Protest identified a wide range of purported deficiencies, only those items which are discussed in Shaw's Proposed Recommended Order are addressed here. Shaw first contends that even though the vendors were required by the Instructions to demonstrate the reliability of their chosen methods of water treatment, Compass elected to treat half of all water it would treat through an unproven technology that was not demonstrated to be reliable. Compass proposed a water treatment and consumption method consisting of double-liming and air stripping or aeration, followed by reverse osmosis. (Double-liming is a chemical treatment process involving the addition of lime to process water, while reverse osmosis is a physical treatment where process water is forced through a semi-permeable membrane at high pressure to separate the clean and contaminated water.) This was consistent with the Instructions, which specifically allowed a vendor to use double-lime, air-stripping, and reverse osmosis for water treatment. See Joint Exhibit 4, Attachment 3 at pages 20-21. There is no requirement in Attachment 3 that vendors use "proven technology" or demonstrate the reliability and viability of their proposed water treatment methods. There is no credible evidence in the record that the water treatment method proposed by Compass would not work. Shaw also alleged that Compass failed to adequately bid utility services, because on line A2 of its BAFO, Compass bid only $36,200.00 for all five years of electric utility services. In its proposal, Compass also included an assumed prevailing rate for power of $100,922.00 per month. Although only $36,200.00 is shown on line A2, Compass spread the rest of the utility costs (approximately $2.3 million) throughout the lines in Section B of Attachment 4. While this amount was lower than the other vendors, the Department believed that Compass' overall operation and maintenance expenses were reasonable, and if any mistake had been made by Compass by understating the power cost, it was to Compass' detriment and would not adversely affect the interests of the State. Shaw also argues that Compass submitted a drawing that included reinforced geotextile but omitted the cost for that item in that portion of its BAFO entitled "clarifications." (Geotextiles allow for drainage of fluids and provide a basis for bridging over soft, unstable materials). Compass indicated in the clarifications section of its BAFO that "reinforced geotextile would be (as needed). The cost for this reinforced geotextile is not included." Under the terms of the Instructions, there was no requirement that a vendor estimate quantities that are not listed on the Pricing Summary Sheet, so long as it submits a fixed price bid. Here, the Pricing Summary Sheet in the Instructions does not have a line for the "as needed" geotextiles, and Compass submitted a fixed price bid. Therefore, the omission of the cost for that item did not render the BAFO non-responsive. Finally, Shaw has alleged that in its BAFO, Compass limited its exposure for the cost of normal repairs and replacements of pumps and piping and was therefore non- responsive. This argument is based on the fact that Compass included $1.1 million in its cost estimate for normal repairs and replacement of pumps and piping. Shaw asserts, however, that because the plant is very old, the contractor will have to take responsibility for failing equipment in order to keep the plant running, and Compass has essentially capped its replacement costs for transformers, switch gears, and other necessary equipment. Shaw did not present evidence that Compass had actually capped its pump maintenance costs or that the amount shown was inadequate. In fact, Shaw's estimated pump maintenance was between $660,000.00 and $900,000.00, or less than the amount proposed by Compass. Even if the amount shown was underestimated, the Department has made it clear that it wanted a lump sum contract and would hold the vendors to the price stated in the BAFOs. (Like the other vendors, Compass submitted a fixed price bid.) Shaw next contends that CDM's proposal was non- responsive in the areas of spray evaporation, the closure construction schedule, water balance, and spray irrigation. These items will be discussed separately below. Shaw first asserts that CDM overestimated the amount of process water it can treat with spray equipment during the first two years of the contract since the spray equipment CDM proposes to use will not be available until the fifth month of the first year of the contract. During the first two years of the contract, CDM proposes to dispose of 175 million gallons of process water through spray evaporation, which involves spraying water into the air to form a mist of small droplets and enhancing the natural evaporation through various techniques. In doing so, CDM intends to use a new spray system developed by CF Industries, which has achieved a rate of 200 million gallons per year, or twice as much as the amount CDM proposes over a two year period. Therefore, even if the equipment can only be used for twenty months during the first two years, it is reasonable to assume that CDM can evaporate 175 million gallons of process water during the first two years, as projected in its BAFO. Shaw also points out that the Instructions require each vendor to supply a closure schedule including eight "milestones" that must be completed within certain time frames. The eighth milestone is the closure and placement of grass on all lined reservoir slopes at least one year prior to the end of the contract. See Joint Exhibit 4, Attachment 3, page 4, § IV. While it concedes that CDM included a closure schedule for the site, Shaw asserts that CDM failed to indicate when, if ever, it would place grass-protected soil cover on all lined reservoir slopes. While the Department acknowledged that CDM's BAFO was not as detailed as those of the other two vendors, it points out there is "a lot of flexibility in the BAFO," and that "the covers were not critical for the closure schedule." Because CDM clearly intends to place the soil cover on the lined areas in conformance with the closure schedule, the omission was not material and does not render the BAFO non-responsive. Shaw next contends that even though the Instructions require that a vendor prepare an independent water balance, it is not apparent in the BAFO whether CDM prepared one. See Joint Exhibit 4, page 14, § B. (A water balance is a professional estimate of the volume of water on site, coupled with a projection of how it will fluctuate over time considering rainfall and groundwater inputs, surface and spray system evaporation, groundwater seepage, and other factors.) The Instructions required that CDM independently estimate the water balance for the five-year contract period. Nothing in the Instructions, though, requires that the actual calculation or spreadsheets that support the estimated water balance be shown. With the assistance of its consultants, CDM estimated the total quantity of process water as slightly in excess of one billion gallons, which it rounded off to one billion. This amount was responsive to the Instructions and was similar to the amounts estimated by Shaw and Compass. Accordingly, the estimate by CDM was responsive to the Instructions. Finally, Shaw argues that while "CDM also mentioned the use of spray irrigation," CDM "did not estimate any volume of water to be treated with this method." The contention has been considered and found to be without merit. In summary, the BAFOs submitted by CDM and Compass conformed in all material respects to the solicitation. To the extent that there were any minor deviations, they did not give Compass or CDM an advantage or benefit not enjoyed by Shaw, and under Section 1.19 of the Instructions they could be waived by the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order determining that its proposed award of the contract to CDM Constructors, Inc., which was based upon a review, grading, and ranking of the vendors by an evaluation team that included Dr. Fuleihan, is contrary to its governing statutes, policies, and specifications. DONE AND ENTERED this 21st day of March, 2005, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2005.
The Issue The issue for determination is whether Petitioner is liable for the costs and expenses incurred by Respondent in responding to a pollutant discharge, occurring on November 6, 1992, at the waters off John Lloyd State Park, Dania, Florida, and for damages to natural resources resulting from the pollutant discharge.
Findings Of Fact On November 6, 1992, a DC-7 airplane crashed off the Atlantic Coast of Florida, more particularly, 100 yards from John Lloyd State Park, and one quarter of a mile north of Dania Pier in Dania, Florida. The DC-7 was a chartered cargo airplane and had departed from Miami International Airport. The DC-7 was chartered from Claudio Castillo by Miguel Delpino, United States General Manager of Aerochago Airlines, to carry cargo for Aerochago Airlines. Even though Aerochago Airlines owned aircraft, its aircraft was unavailable due to maintenance work being performed. During the flight from Miami International Airport, the DC-7 developed engine trouble, i.e., two of its engines failed. The aircraft began to lose altitude. In an attempt to regain altitude, the captain of the aircraft dumped 3,000 gallons of aviation fuel. However, the DC-7 failed to regain altitude and crashed. Remaining on the crashed aircraft were 3,000 gallons of aviation fuel and 150 gallons of motor oil. When the DC-7 crashed, only the crew and two passengers were on board. One of the passengers was Mr. Castillo. On the same day of the crash, the Florida Marine Patrol (FMP) of the Department of Natural Resources, now the Department of Environmental Protection (DEP), arrived at the crash scene at 3:20 a.m. and investigated the crash. The DEP had four employees investigating the crash: three FMP officers and one employee from the Office of Coastal Protection. The remaining aviation fuel and motor oil in the crashed DC-7 was discharging into the coastal waters. The DEP employees attempted to abate the discharge. The equipment necessary for the employees' investigation of the crash and abatement of the discharge and the cost for the equipment were the following: (a) a DEP vehicle at a cost of $7.00; (b) a twin engine vessel at a cost of $120.00; (c) an underwater sealant kit at a cost of $16.66; (d) scuba tanks at a cost of $9.00; and (e) photographs at a cost of $24.00. The total hours expended by DEP's four employees were 36 hours, at a cost of $685.84. Due to the DC-7 leaking aviation fuel and motor oil into Florida's coastal waters, removal of the aircraft from the Atlantic Ocean was necessary. DEP contracted with Resolve Towing and Salvage (RTS) to remove the DC-7. RTS is a discharge cleanup organization approved by DEP. RTS' contractual responsibilities included removal of the entire DC-7 aircraft and all debris within 100 yards of the center of the aircraft; disposal of the aircraft; plugging the engines to help stop the leakage; and removal and delivery of the engines which failed to the National Transportation Safety Board (NTSB) and the Federal Aviation Authority (FAA). Because the submerged DC-7 was located in an environmentally sensitive coral and sea-plant area, RTS was required to use extreme care in removing the aircraft. The contractual cost was fixed at $34,000.00 A DEP employee, Kent Reetz, was at the scene of the crash during RTS' cleanup. His responsibility was to monitor the removal of the DC-7 by RTS and to ensure that the aircraft's removal was in compliance with DEP's standards. During the removal of the DC-7 from the water, the fuselage ruptured, scattering debris which was dangerous to the public and to the coral and sea-plants. DEP determined that RTS was not responsible for the fuselage rupturing, but that the rupture was caused by several storms, prior to the aircraft's removal, and by the aircraft being submerged for an extended period in salt water. DEP contracted with RTS to remove the dangerous debris emitted when the fuselage ruptured. The contractual cost was fixed at $9,050.00 The total contractual cost between DEP and RTS was $43,050.00. DEP paid RTS from the Coastal Protection Trust Fund. In responding to the pollutant discharge, DEP incurred a total cost of $43,912.50. DEP assessed damages to the natural resources based upon the amount of pollutants discharged which were 3,000 gallons of aviation fuel and 150 gallons of motor oil. Using the statutory formula, DEP assessed damages to the natural resources in the amount of $57,898.72. Based upon the costs incurred by DEP in responding to the pollutant discharge in the amount of $43,912.50 and the damages to the natural resources in the amount of $57,898.72, DEP sought reimbursement and compensation from Mr. Castillo in the total amount of $101,811.22. DEP invoiced Mr. Castillo for reimbursement of the costs and for compensation for the damages. DEP provided Mr. Castillo with detailed and itemized expense documents for the costs that it had incurred in responding to the pollutant discharge. The documents showed the expenses incurred, what each expense represented, and the formula for computing each expense. Further, DEP provided Mr. Castillo with a document showing the amount of the damages to the natural resources, the formula for computing the damages, and how the damages were computed. The charter of November 6, 1992, was not the first time that Mr. Delpino had chartered the same DC-7 from Mr. Castillo. Prior to and, again, at the previous charter, Mr. Castillo represented to Mr. Delpino that he, Mr. Castillo, was the owner of the DC-7. The owner of a chartered aircraft is responsible for obtaining the aircraft's crew and insurance and for maintaining the aircraft. For the previous charter, Mr. Castillo was responsible for obtaining the DC-7's crew and the insurance and for maintaining the aircraft. Mr. Delpino had no reason to expect the charter for November 6, 1992, to be any different. Furthermore, Mr. Castillo did not inform Mr. Delpino that the responsibilities would be different. For the present charter, as before, Mr. Castillo handled all matters relating to the crew, insurance, and maintenance. Regarding the insurance, Mr. Castillo presented to Mr. Delpino an insurance certificate which, after the crash, was discovered to be false. Also, regarding maintenance, prior to the crash, the two engines which failed were to be removed and repaired, but, although they were removed, they were returned without being repaired. Mr. Castillo was the owner of the DC-7. Also, the crash of the DC-7 was investigated by several federal governmental agencies, including the FAA, the U.S. Coast Guard, and the NTSB. Both the Coast Guard and the NTSB issued reports on the crash, which identified Mr. Castillo as the owner of the DC-7. Mr. Castillo was responsible for the discharge of the 3,000 gallons of aviation fuel and 150 gallons of motor oil from the DC-7 into Florida's coastal waters.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection (DEP) enter a final order assessing Claudio Castillo $43,912.50 for costs related to DEP responding to the pollutant discharge on November 6, 1992, at Florida's coastal waters off John Lloyd State Park, Dania, Florida, and $57,898.72 for damages to natural resources resulting from the pollutant discharge--all totaling $101,811.22. DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1997.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, as well as a personal view of the premises by the Hearing Officer, the following relevant facts are found: In January of 1975, Central Development Company, as the owner of the Mainland Lot 20, Parkers Haven, and the owner of Parker Island, submitted to the Trustees of the Internal Improvement Fund its application for an easement across the sovereignty land between these properties in King's Bay, Crystal River. An application for a permit from the Department of Environmental Regulation to construct a concrete bridge across this land had previously been submitted. By letter dated March 16, 1977, Edward H. Cederholm with the Department of Natural Resources was notified that the Department of Environmental Regulation had determined that the bridge proposed by the applicant would have no significant adverse effect on water quality. Representatives from the Department of Natural Resources had previously concluded, after a biological and hydrographic assessment, that the bridge in itself would not significantly affect aquatic biological resources nor would it have significant adverse hydrographic effects. The Game and Fresh Water Fish Commission had no objection to the bridge itself, but did express concern over the future development of Parker Island. The request for a right-of-way easement for the bridge construction was a scheduled item for the Trustees' Agenda for April 7, 1977. The Staff of the Department of Natural Resources recommended approval of the easement request, noting that "the executed easement will be provided to the applicant upon affirmative permitting action by D.E.R." The Trustees deferred action on the request until a public hearing pursuant to Florida Statutes Section 253.115 could be conducted by the Department of Natural Resources. The Department of Natural Resources thereafter withdrew its recommendation to the Trustees pending the outcome of the public hearing. That public hearing was conducted in Crystal River on September 9, 1977, by the Department of Natural Resources. Having previously submitted an application to the Department of Environmental Regulation for the installation and maintenance of power poles and lines on and between Banana and Parker Island in Citrus County, Florida Power Corporation submitted an application to the Department of Natural Resources for an easement or other form of consent for the same. Presumably, the public hearing held on September 9, 1977, included this issue as well as the proposed bridge issue. No application has been received by the Department of Natural Resources for the construction and maintenance of a boardwalk by the Banana Island Recreation Association, Inc. The petitioners herein attempted to present evidence that it would not be in the public interest for Department of Natural Resources or the Trustees to grant easements for the bridge, power poles and lines, or boardwalk projects for the reasons that said projects would: present a hazard or serious impediment to navigation in the area; have an adverse effect upon water quality and aquatic resources; endanger an already endangered species - the manatee; and deprive waterfront property owners of their common law riparian rights to an unobstructed view. Additionally, petitioners contend that the applicants and Department of Natural Resources have failed to comply with the provisions of Chapter 253 regarding sales and conveyances of land, the title to which is vested in the Trustees. The Department of Natural Resources forwarded the requests for hearings to the Division of Administrative Hearings, and the undersigned Hearing Officer was duly designated to conduct the hearings. Upon the agreement of all parties, the hearing in this cause was consolidated with the hearings on the Department of Environmental Regulation permit applications for the bridge, the power poles and lines and the boardwalk. The separate recommended orders entered in those cases contain specific findings of fact concerning the evidence presented at the hearing relating to the effect of those projects upon navigation, water quality, aquatic resources, the manatee and riparian rights to an unobstructed view. In summary, it was concluded that the petitioners failed to present sufficient evidence that the public interest in these areas would be harmed by the granting of the Department of Environmental Regulation permits. The reader of this recommended order is specifically referred to the findings of fact and conclusions of law contained in the recommended orders entered in Case Nos. 76- 1102, 76-1103 and 77-849 and 850, all of which are attached hereto.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the Board of Trustees of the Internal Improvement Trust Fund issue to Central Development Company and Florida Power Corporation the required easements or other forms of consent authorizing the proposed usages of sovereignty lands as set forth in their applications for the same. Respectfully submitted and entered this day of September, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida COPIES FURNISHED: Kenneth F. Hoffman, Esquire Post Office Box 1872 Tallahassee, Florida 32302 Alfred W. Clark, Esquire Assistant General Counsel Department of Environmental Regulation 2562 Executive Center Circle, E. Montgomery Building Tallahassee, Florida 32301 Baya Harrison, III, Esquire Post Office Box 391 Tallahassee, Florida 32302 David Gluckman, Esquire 3348 Mahan Drive Tallahassee, Florida 32303 Mr. H. A. Evertz, III Florida Power Corporation Post Office Box 14042 St. Petersburg, Florida 33733 Kent A. Zaiser, Esquire Assistant Department Attorney Department of Natural Resources Crown Building 202 Blount Street Tallahassee, Florida ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF NATURAL RESOURCES TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND STANLEY HARTSON et al., ) ) Petitioner, ) ) vs. ) CASE NO. 77-960 ) DEPARTMENT OF NATURAL RESOURCES, ) et al., ) ) Respondents. ) )
The Issue Whether Petitioner's application for renewal of water use permit application #200781.02 should be granted to withdraw a combined average withdrawal of 9,320,000 gallons of water per day and a maximum combined withdrawal rate of 18,600,000 gallons per day, subject to the terms and conditions listed in proposed permit for use at applicant's Haynesworth Mane.
Findings Of Fact IMCF operates a phosphate mining facility known as the Haynesworth Mine located on SR 37 in western Polk County, south of Bradley Junction. IMCF leases this mine from Brewster Phosphates, which is a joint venture of American Cyanamid Corporation and Kerr-McGee Corporation. The mine includes approximately 14,100 acres. IMCF took control of the mine from Brewster in 1986. At the time IMCF took control of this mine, a consumptive water use permit was extant which was due to expire in 1989. It is to renew this permit that the application here being considered was filed. After requesting and obtaining additional information and evaluating the application, Respondent issued its notice of intent to issue the permit. Phosphate ore is extracted by a dragline which opens mining cuts of 30 to 40 feet in depth at this facility. Seepage occurs into the mine cuts which must be removed in order to see and extract the phosphate ore. Dewatering is also necessary to protect the dragline from slope stability problems. Water pumped out of the mining cuts is introduced into the mine water recirculating system where it is used for numerous purposes, such as hydraulically pumping the extracted material to the beneficiation plant where clay and sand is extracted from the phosphate ore. The beneficiation plant uses large quantities of water, utilizing supplies from within the mine system (surface waters) and some from deep wells. It is the water from the deep wells that is the primary concern of the Intervenor. The surface water comes primarily from rainfall, mine cut seepage and make up water from the deep wells. Recycled water is of lower quality than well water due to the presence of organic materials or suspended solids, but it is used for many purposes, such as washing ore before being sent to settling ponds and later decanted from the top of the settling areas and returned to the water recirculating system. By use of recircled water in the beneficiation plant, the quantity of well water needed in later stages of the mining process and for make up due to evaporation and transpiration losses is reduced. Evidence presented shows that IMCF, by improving the recirculation system, has reduced the amount of well water needed in the overall mining process from 1220 gallons of deep well water per ton of phosphate rock produced in 1987 to 775 gallons per ton in 1989. The use here proposed is greater than was approved in the expiring permit; however, this increase is due almost entirely to the inclusion of the water pumped in the dewatering operation and the sealing water wells which were not counted in earlier years in determining the quantity permitted to be pumped. Withdrawal of water from the mine cuts affects only the surficial aquifer and can result in a withdrawal of water from adjoining property. To mitigate this problem, a setback of 1100 feet from adjacent property has been established in which mining cannot be conducted. Additionally, a ditch is to be installed between the mining cut and the property line which is kept full of water to provide recharge to the surficial aquifer. Phosphate mining is a reasonable and beneficial use of water, and is consistent with the public interest. The use here proposed was grandfathered in long before the Intervenor received a consumptive use permit in 1986 and will not interfere with any legal use of water existing at the time of the application. Considerable testimony was presented describing the computer modelling process used by IMCF and SFWMD in determining that the maximum drawdown of the water allowed by this proposed permit would not have a deleterious effect on adjacent property owners or on the Florida aquifer from which much of this water will be drawn. As a result, it is found that the rate of flow in nearby streams or watercourse will not be lowered; the level of the potentiometric surface will not be lowered below the regulatory level established by SFWMD; the drawdown will not induce salt water encroachment; will not cause the water table to be lowered so that lake stages or vegetation will be significantly affected on property not owned by the applicant; will not cause the potentiometric surface to be lowered below sea level; and the granting of this permit is in the public interest. The Intervenor's property consists of a 62 acre orange grove planted on reclaimed phosphate land that was mined more than 30 years ago and is surrounded by the 14,100 acres now controlled by IMCF. Her primary concern is that IMCF's mining operations will withdraw surficial water that would otherwise go to her orange grove, and that sufficient water will be withdrawn from the Florida aquifer that she will not have sufficient water to irrigate her grove. To support this position, Intervenor presented evidence that prior to 1986 her grove prospered with only natural rainfall. However, in 1986 it was found necessary to install a well to provide irrigation to this grove; and a permit was obtained from SFWMD. Subsequently, during a dry spell in April 1988 the surface pressure at Intervenor's pump dropped from 22 psi to less than 15 psi, and she was told the pumps would be burned out if pumping continued and the pressure dropped further. She attributed this low pressure at her pump to IMCF taking water from the aquifer from which her water also was drawn. During the period around April 1988, the ground water level dropped 15 to 20 feet below the average level of the water from which Intervenor drew her irrigation water. This resulted in the submersible pump having to lift water 15 to 20 feet (or more) higher than it had to lift when the pressure of the pump was 22 psi. In other words, Intervenor's pump was completely submerged in the water in the upper Florida aquifer, but the pump was not powerful enough to provide 22 psi pressure at the earth's surface. Changes in the ground water levels vary during each year depending on the amount of rainfall and the demands of those removing water from the aquifer. Spring time usage is normally heavy for agricultural purposes, and, as shown on Exhibit 25, each spring the ground water levels are closer to sea level than at any other time of the year. Intervenor also contended that IMCF should retain all of the water used in the mining process on its land rather than allowing the excess during heavy rainfall periods to be discharged into the Alafia River. No evidence was presented by Intervenor to show this to be a feasible solution; nor was evidence presented that this discharge polluted the Alafia River as contended by Intervenor. The Haynesworth Mine is a stationary installation which is reasonably expected to be a source of water pollution. Accordingly, it is required to obtain a permit from the Department of Environmental Regulation to discharge water into the Alafia River and is subject to various restrictions in so doing. No evidence was presented that IMCF or Haynesworth Mines violated any of the provisions of Chapter 403, Florida Statutes, in this regard.
Recommendation It is recommended that consumptive use permit #200781.02 be issued to IMC Fertilizer Inc., subject to the conditions contained in the draft permit. ENTERED this 7th day of January, 1991, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1991. COPIES FURNISHED: Robert W. Sims, Esquire Post Office Box 1526 Orlando, FL 32802 Catherine D'Andrea, Esquire 2379 Broad Street Brooksville, FL 34699-6899 Faye Dobbs Post Office Box 3407 Lakeland, FL 33802
Findings Of Fact Application No. 76-00493 is for an existing consumptive use permit for five wells located in the Peace River Basin, Polk County on 608.6 acres. The permit seeks a total average annual withdrawal of 7.2 million gallons per day and a maximum daily withdrawal of 14.97 million gallons per day. Ninety-five percent of the water withdrawal will be used for industrial purposes and five percent will be used for irrigation. The Southwest Florida Water Management District's staff recommends issuance of the permit with the following conditions: That the applicant shall install totalizing flow meters of the propeller-driven type on all withdrawal points covered by the application except that well located at Latitude 28 degrees 03' 13", Longitude 81 degrees 47' 54". That the applicant shall record the pumpage from the above meters on a weekly basis and submit a record of that pumpage quarterly to the district beginning January 15, 1977. That the permit shall expire on December 31, 1980
Recommendation It is hereby RECOMMENDED that a consumptive use permit be granted in the amounts applied for in Application No. 76-00493 subject to the conditions set forth in paragraph 2 above. ENTERED this 13th day of October, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida 33512 Coca Cola Company Post Office Box 247 Auburndale, Florida 33823
Findings Of Fact Petitioner is a corporation which has as its purpose the preservation of air quality in Pinellas County and in the State of Florida. Petitioner has approximately twenty members. The Department of Environmental Regulation has published notice that it is proposing to repeal its Rule 17-2.05(8), Florida Administrative Code. This rule is known as the "Complex Source Rule". It requires that permits be obtained from the Department before a facility which can reasonably be expected to cause an increase in concentrations of air pollutants is constructed. Petitioner is a party in a proceeding in which another party has submitted an application for a complex source permit. Administrative appeals of final agency action adverse to the Petitioner are being pursued. If the "Complex Source Rule" is repealed, the proceeding would be subject to dismissal. The primary focus of the "Complex Source Rule" is to regulate concentrations of pollutants that are generated by automobiles that would use a facility for which a permit is sought. There are other methods for controlling this sort of pollution. These include the Federal Motor Vehicle Control Program, which is designed to decrease the pollutants in automobile emissions; non-attainment plans designed to bring an area where pollutants exist at levels in excess of Respondent's rules into compliance; various federal monitoring programs; and mechanical alteration of motor vehicles, including installation of catalytic converters and greater fuel efficiency. Arguably, the "Complex Source Rule" would augment the desirable impacts of these other means of dealing with automobile related pollution. Petitioner has failed to establish, however, that these other methods and programs are not adequate to deal with the problems.
Findings Of Fact Petitioner, Robert Brown, is the co-owner of Lot 13 and the northern half of Lot 14, Block 7, Lake Addition to Boynton in Boynton Beach, Palm Beach County, Florida. The property consists of a parcel approximately 150 by 150 feet and is located along the western edge of the Intra-coastal Waterway at N.E. 8th Ave. and N.E. 7th Street in Boynton Beach. At all times pertinent to the issues herein, Petitioner was the owner of this property which is vegetated along the Eastern half with mature mangrove trees which extend back from the water's edge approximately one half the depth of the lot. These mangroves include red, black, and white species and the larger are approximately between 18 and 22 years old. The majority of the trees, however, are younger than that. The Western half of the property is sparsely vegetated and in the heavily vegetated half, there is an open area approximately 30 by 30 feet which appears to have been cleared and on which there are no mature mangrove trees. On July 19, 1984, Petitioner filed an application for a permit to construct a 1625 square foot house on pilings together with a 164 by 4 foot boardwalk extending in a west to east direction from the westernmost edge of the mangrove community to the waterside of the proposed dwelling giving access thereto. The eastern half of the property in question appears to be lower in elevation than the western half and experiences some tidal inundation during periods of high tide. Though there is a riprap deposit along the eastern edge of the property and two berms extending along the landward side of the riprap, water from the Intra-coastal Waterway periodically flows through the riprap, over the berms, and onto Petitioner's property. This water is afforded access onto the property also, by a northwest running ditch located south of the southern boundary of the property which ditch is connected to the waterway. It intersects with another ditch which runs due north to an intersection with an east-west depression, also connected to the Waterway, running along the northern boundary of the property. Mangroves of some size are found in and on the edges of this ditch. Petitioner's construction proposal, involving the driving of supporting pilings for the dwelling, is a dredge and fill activity as defined by the Department of Environmental Regulation's (DER), experts and requires the issue of a dredge and fill permit. There is a conflict between the Petitioner's evidence regarding the physical location of his proposed dwelling and boardwalk and that of the agency personnel who, with benefit of a survey, determined that the larger clearing referenced by the Petitioner does not lie on his property and that the indicated cleared cut through the mangrove community to the waterway on Petitioner's property for the walkway does not lie on Petitioner's property but instead is approximately 30 feet south of the southern boundary. Having reviewed the application submitted by Petitioner, DER requested additional information regarding construction techniques and plans. These have not, to this date submitted in a tangible form the information requested. Petitioner's attorney provided some of the information requested orally to DER at some time in the past, giving some assurances that the disruption of water quality during construction would be kept at a minimum and would be only temporary. However, since DER did not have available to it the additional information it requested so as to appropriately evaluate the true proposal by Petitioner and the effect of any modifications, based on the failure of Petitioner to provide adequate assurances that water quality standards would not be violated and that the project was not contrary to public interest as is required of him by Section 403.918, Florida Statutes, on January 23, 1985, the Department issued an intent to deny the permit. As a part of this intent to deny, the agency suggested that the project be relocated to the upland one-half of the Petitioner's property. Construction there would not have involved any mangrove disturbance and would have been consistent with the agency's standards and policies. Historically the property owned by Mr. Brown did not border the open body of water which now constitutes Lake Worth or the Intra-coastal Waterway. As far back as 1872, the property was dry and supported no mangrove growth. Mangroves existing currently on the property have developed there since the construction of the Intra-coastal Waterway and its joinder with Lake Worth and the installation of the inlets which connect this water body with the Atlantic Ocean. On the property directly north of Petitioner's boundary sits a house built on fill approximately one and a half feet above the gradient of Mr. Brown's lot. Immediately south of his property is a condominium building also located on fill bordering the Intra-coastal Waterway. Evaluation of photographs of the area reveals that both pieces appear to have been identical in make-up to that owned by Petitioner in both topography and vegetation prior to being filled for construction. In fact, this parcel lies in a rapidly developing commercial and residential area. Petitioner also presented the testimony of two long time residents of the area who indicate that prior to the widening of the Intra-coastal Waterway, Petitioner's property did not border the open water of Lake Worth or the waterway. Back in the 1940's and before, the property was not covered with mangrove trees and was, in fact, used as farmland by Mr. Pinder, one of these two witnesses, who grew bell peppers and squash there. Mr. Pinder was hired by Palm Beach County during the 1940's and 1950's to dig mosquito control ditches on the property and Petitioner contends that it was these ditches which developed the connection with the Intra-coastal Waterway and thereby created a jurisdictional wetland. The weight of the evidence, however, indicates that though ditches were dug for mosquito control as described by Mr. Pinder and even before, it was not these ditches which changed the character of the property to jurisdictional wetland. Review of the maps submitted by Mr. Brown shows to a very limited degree some reference to ditches on or near the property in question but neither this evidence nor the testimony of both long-time residents is sufficiently clear and convincing to establish to the satisfaction of the Hearing Officer that the character of Mr. Brown's property was so radically changed by the digging of these ditches as to become jurisdictional because of them. Turning to the question of the impact of the proposed construction on the mangrove system, the evidence presented by the agency and to a lesser degree by Petitioner himself shows that there would be some adverse impact on the mangrove system through the direct destruction of some existing trees and saplings, the trimming of some of the overhanging mangrove canopy, and the subsequent shading of immature mangroves by the construction of the dwelling and the boardwalk. The evidence available indicates that the construction of the dwelling itself cannot be contained within the existing clearing and for the construction of the boardwalk, an additional cut and shading will be required. Mangroves play an important part in the water quality and biological considerations of Section 403.918 Florida Statutes. The deterioration of fallen mangrove vegetation constitutes an important part in the food chain of fish and small invertebrates. Existing trees and roots provide habitat for various birds, invertebrates, mammals, and reptiles and the water quality considerations relating to the filtering of run-off water from uplands and the assimilation of pollutants in the passing water is significant. DER was and is concerned that the proposed project does not provide reasonable or adequate assurances that water quality standards will not be violated. Turbidity, transparency, and dissolved oxygen standards may well be violated during the construction phase and the agency's concerns have not been addressed or lessened by Petitioner's unformed proposals for modification. The fourth standard, that involving biological integrity, will be a continuing and ongoing consideration due to the fact that the shading created by the house and boardwalk will be constant. After full consideration of the application and those limited matters submitted in response to the agency's expression of concern, the agency has concluded that the project will adversely impact the conservation of fish and wildlife and their habitats in the area; will adversely affect fishing and recreational values and marine productivity; will adversely effect current and relative values of functions performed in the area; and will be of a permanent nature. The agency has not, however, quantified these negative effects or demonstrated that they will be of any significant magnitude. It is difficult to conceive that in an area already violated by the encroachment of civilization as demonstrated by the unrestrained fill both to the north and to the south of Petitioner's property, that the preservation of a relatively miniscule enclave, on highly valuable waterfront property, will have any substantial beneficial effect on the overall biological, ecological, or water quality considerations of the Intra-coastal Waterway, Lake Worth, or the Atlantic Ocean. The construction disruption will be minimal and for a limited period of time. The effects of shading will be of a longer duration but would appear to be miniscule in comparison to the surrounding area. DER and its subordinate associate, the Palm Beach County Health Department, both recommend that the application be denied because of Petitioner's failure to provide reasonable assurances that the project will not violate water quality standards and will not be contrary to the public interest. The cumulative impact concerns of both DER and the Health Department are valid in theory but inappropriate here. Evidence that the recent mangrove destruction in this area has been been extensive cannot be debated. No doubt it has been. The fact remains, however, that this property is in a highly desirable location. The area has not been preserved by the State in its program for the accumulation and preservation of wetlands under a state umbrella and is of such a small size that the cumulative impact to be felt from the limited destruction of mangroves here would be minimal. There is some evidence to indicate that a permit was issued to a previous owner of this property allowing the destruction of mangrove seedlings in the western section of the community and this action has not been undertaken. This permit has not expired and is transferable to Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Environmental Regulation issue permit number 5008992206 to the Petitioner, Robert 8rown for the construction of the house and walkway as proposed, under the provision of adequate and firm reasonable safeguards to minimize water quality disruption during construction by Petitioner. RECOMMENDED this 11th day of February, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this llth day of February, 1987. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Terrell K. Arline, Esquire 325-C Clematis Street West Palm Beach, FL 33401 Karen A. Brodeen, Esquire Douglas MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By the Petitioner 1 Incorporated in Finding of Fact 1. 2. Incorporated in Findings of Fact 2 & 3. 3 & 4. Incorporated in Finding of Fact 4. Incorporated in Finding of Fact 4. Incorporated in Finding of Fact 10. 7 & 8. Incorporated in Findings of Fact 9 & 11 Incorporated in Finding of Fact 11. Incorporated in Findings of Fact 3 6 13. Accepted and incorporated in Findings of Fact 7 & 8. Accepted and incorporated in Findings of Fact 7 & 8. Not a Finding of Fact but a comment on the evidence. By the Respondent Incorporated in Finding of Fact 1. Incorporated in Finding of Fact 3. 3 & 4. Incorporated in Findings of Fact 2 & 4. 5. Incorporated in Finding of Fact 5. 6. Incorporated in Findings of Fact 3 & 6. 7. Incorporated in Finding of Fact 6. 8. Incorporated in Finding of Fact 7. 9 & 10. Incorporated in Finding of Fact 8. 11 Incorporated in Finding of Fact 13. 12. Incorporated in Finding of Fact 14. 13. Incorporated in Finding of Fact 15. 14-16. Incorporated in Finding of Fact 16. 17. Incorporated in Finding of Fact 15. 18. Incorporated in Finding of Fact 17. 19 & 20. Incorporated in Finding of Fact 11. 21-24 Incorporated in Findings of Fact 11 & 12. 25. Incorporated in Findings of Fact 17 & 18. ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION ROBERT BROWN, Petitioner, DOAH CASE NO. 85-0517 OGC FILE NO. 85-0122 vs. STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION Respondent. /
The Issue Whether Petitioner, Miami Yacht Divers, Inc., is entitled to reimbursement for cleanup costs.
Findings Of Fact The Respondent is the state agency charged with the responsibility of administering claims against the Florida Coastal Protection Trust Fund. Petitioner is a company located in Dade County, Florida, which performs commercial diving operations. Such operations include oil pollution containment and clean-up. At all times material to the allegations of this case, Dan Delmonico was the principal officer or owner for the Petitioner who supervised the operations of the company. In April of 1993, Mr. Delmonico discovered a fuel discharge next door to the premises of Defender Yacht, Inc., a company located on the Miami River in Dade County, Florida. The source of the discharge was an abandoned sunken vessel. This derelict vessel had no markings from which its ownership could be determined. Upon discovering the vessel, Mr. Delmonico did not contact local, state, or federal authorities to advise them of the discharge. Instead, Mr. Delmonico contacted several colleagues whose help he enlisted to assist him to clean up the discharge. In this regard, Mr. Delmonico procured the services of a diver and a crane company to remove the vessel from the water. Additionally, Mr. Delmonico utilized a boom and oil absorbent clean-up pads to remove the discharged fuel from the water. In total, Mr. Delmonico maintains it took four work days to complete the removal of the discharge and the salvage of the derelict vessel. At no time during this period did Mr. Delmonico contact local, state, or federal authorities to advise them of the foregoing activities. No official from any governmental entity supervised or approved the clean-up operation or salvage activity which is in dispute. After the fact Petitioner filed a reimbursement claim with the United States Coast Guard. Such claim was denied. Upon receipt of such denial, Petitioner filed the claim which is at issue in the instant case. In connection with this claim with Respondent, Petitioner submitted all forms previously tendered to the Coast Guard including the standard claim form, labor receipts, rental receipts, supply receipts, trailer and storage receipts, cash expenses, a job summary, and photographs. On or about September 20, 1996, Respondent issued a letter denying Petitioner's claim for reimbursement for expenses associated with the above-described salvage and clean-up activities. The grounds for the denial were the Petitioner's failure to obtain prior approval for the activities and the absence of "good cause" for the waiver of prior approval. Additionally, the Respondent maintained that Petitioner had failed to provide evidence that a pollutant discharge existed and that the removal of the vessel was necessary to abate and remove the discharge. It is undisputed by Petitioner that prior approval for the clean-up activities was not obtained. Petitioner timely disputed the denial and was afforded a point of entry to challenge such decision.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order denying Petitioner's claim for reimbursement. DONE AND ENTERED this 31st day of December, 1997, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathelyn M. Jacques Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 N. Paul San Filippo, Esquire Seidensticker & San Filippo Parkway Financial Center 2150 Goodlette Road, Suite 305 Naples, Florida 34102
Findings Of Fact Petitioner failed to present any evidence in support of her contention that the permit in question should be issued for 10 rather than 5 years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Environmental Protection issue permit no DO29-221380 to Petitioner herein, Vicki L. Woodward, for a period of 5 years. RECOMMENDED this 23rd day of September, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 23rd day of September, 1993. COPIES FURNISHED: Vicki L. Woodward Happy Traveler Campground 2710 Fountain Boulevard Tampa, Florida 33609 Susan Schwartz, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
