The Issue The issues in these cases include the following: Did Petitioner file completed applications to entitle it to an oil and gas drilling permit? Is the Department's policy of requiring information in support of an offshore oil and gas well drilling permit not specifically set out in existing rules constitute an unadopted rule? If the Department applied an unadopted rule to Petitioner in these cases, does the unadopted rule meet the requirements of Section 120.57(1)(e), Florida Statutes? Is Petitioner entitled to the oil and gas drilling permits it sought by default?
Findings Of Fact The Parties. Petitioner, Coastal Petroleum Company (hereinafter referred to as "Coastal"), is a Florida corporation. Phillip Ware is the current president of Coastal. Respondent, the Florida Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with the responsibility of implementing Florida laws and rules regulating the issuance of oil and gas drilling permits. Intervenors are the Florida Wildlife Federation, Inc., Sierra Club, Florida Chapter, and the Florida Audubon Society, Inc. (hereinafter referred to as the "Environmental Intervenors"), and the Department of Legal Affairs (hereinafter referred to as "Legal Affairs"). The Environmental Intervenors and Legal Affairs filed verified petitions to intervene in this proceeding pursuant to Section 403.412(5), Florida Statutes. Coastal's Offshore Drilling Rights. On or about December 27, 1944, Coastal's predecessor entered into two leases, Drilling Lease Nos. 224-A and 224-B (hereinafter referred to as the "Original Leases"), with the predecessor to the Florida Board of Trustees of the Internal Improvement Fund. The Original Leases gave Coastal the exclusive right to explore for and produce oil and gas on submerged lands of the State of Florida throughout an area extending for a distance of 10.36 statute miles off most of the west coast of Florida. The area extends from approximately Apalachicola, Florida, in the north, to Naples, Florida, in the south. On or about February 27, 1947, the Original Leases were modified to redefine the area covered by the Leases due to claims of the federal government of parts of the area originally covered by the Original Leases (hereinafter referred to as the "Modified Leases"). In 1990 the Legislature enacted Chapter 90-72, Laws of Florida (1990), expressing the current policy of the State concerning offshore drilling. Pursuant to Chapter 90-72 the Legislature prohibited all offshore leasing and drilling. Recognizing Coastal's rights pursuant to the Modified Leases, an exception for drilling in areas governed by the Modified Leases was included in Chapter 90-72. Coastal is currently the only person entitled to explore for, and produce oil and gas on State submerged lands. Coastal's working interests under the Modified Leases were, as a result of litigation between the State and Coastal, subsequently reduced to the width of the area covered by the Modified Leases to between 7 miles and 10.36 miles from the coast. The litigation began during the late 1960's and ended with a settlement in 1976. Following the execution of the Original Leases and continuing through 1968, Coastal was involved with obtaining permits for, and drilling, approximately 9 wells in the area covered by the Original and/or Modified Leases. No permits were obtained by Coastal to drill in the area covered by the Modified Leases after 1968 due to the ongoing litigation between Coastal and the State. After the settlement of the dispute in 1976, Coastal was involved in litigation with Mobil Oil until the 1980's. Due to that litigation, Coastal did not pursue any other drilling operations under the Modified Leases until the 1980's. Because of the significant changes in the state of offshore drilling technology since Coastal had last applied for a permit to drill offshore in Florida, it took Coastal until the early 1990's to file a new application to drill offshore. Permit 1281. In March 1992 Coastal filed five separate applications with the Department seeking permits to drill exploratory oil and gas wells at five separate locations in the Gulf of Mexico within the area of the Modified Leases. Two applications were for proposed sites offshore from northwest Florida and three were for proposed sites offshore from southwest Florida. The applications were designated permit application numbers 1277 through 1281 by the Department. The applications filed by Coastal included a completed one-page Department form (Form 3), a location plat for the proposed drilling sites, and a filing fee. Coastal subsequently withdrew four of the applications. Only permit application 1281 remained. Pursuant to permit application 1281, Coastal sought approval to drill offshore from Franklin County, Florida, near St. George Island. In August 1996 the Department, after protracted negotiations with Coastal, issued notice of its intent to issue Permit 1281. The protracted negotiations involved, among other things, a request of the Department for additional information concerning the proposed location and drilling plans of Coastal. The additional information requested by the Department was essentially the same as the information requested by the Department in these cases. While Coastal provided the information concerning permit application 1281, it did so under protest. The Department's proposed decision to issue Permit 1281 was challenged. Following an administrative hearing, a Recommended Order was entered recommending that the permit be issued. The Department rejected the recommendation by Final Order issued May 22, 1998. That Final Order has been appealed by Coastal. Coastal's Applications for Permits 1296 through 1307. On or about February 25, 1997, Coastal simultaneously filed twelve separate applications (hereinafter referred to as the "Twelve Applications") with the Department seeking permits to drill exploratory oil and gas wells at twelve separate locations in the Gulf of Mexico within the area of the Modified Leases. Coastal Exhibits 49 through 60. The Twelve Applications were designated permit application numbers 1296 through 1307 by the Department. All of the proposed drilling sites are located between 8 and 9 miles offshore in water depths ranging between 50 to 75 feet. The general location of the twelve proposed drilling sites is as follows: Permit applications 1296 and 1297: offshore from St. George Island and Franklin County; Permit application 1298: offshore from the St. Marks River, Wakulla County; Permit application 1299: offshore from the mouth of the Steinhatchee River, Taylor County; Permit applications 1300 and 1301: offshore from Anclote Island, Pasco County; Permit application 1302: offshore from Longboat Key, Sarasota County; Permit applications 1303, 1304, and 1305: offshore from Gasparilla Island, Charlotte County; Permit application 1306: offshore from Sanibel Island, Lee County; and Permit application 1307: offshore from Naples, Collier County. The locations of the proposed exploratory wells are depicted on Coastal Exhibit 27, which is incorporated into this Recommended Order by reference. The Twelve Applications filed by Coastal consisted of the following: A completed Application For Permit to Drill, Form 3, for each well; A check payable to the Petroleum Exploration Bond Trust Fund as performance security for the twelve proposed wells; A navigation chart published by the U.S. Department of Commerce, National Oceanic and Atmospheric Administration, with the location (latitude and longitude) of each proposed drilling site and the area of Coastal's lease designated on the chart. The scale of the chart provided by Coastal is 1:20,000. A surveyor's report of the coordinates of each proposed drilling site was also included; and A single check in the amount of $24,000.00 in payment of the $2,000.00 application fee for each permit application. Form 3 requires that an applicant provide information concerning the name, phone number, and address of the applicant, the well name and its location, ground elevation, acres assigned to the well, the "field/area" of the well, the county and specific location of the well, proposed depth of the well, and the applicant's mineral interests in the drilling unit. Coastal provided all of this information. Form 3 also requires that the applicant answer a series of questions concerning whether the proposed location of the well will be located within: a municipality; tidal waters within 3 miles of a municipality; an improved beach; submerged land located in any bay or estuary; one mile seaward of the Florida coastline or the boundary of any state, or a local or federal park, or aquatic or wildlife preserve; on the surface of a freshwater body; within one mile inland from the shoreline of the Gulf of Mexico, the Atlantic Ocean or any bay or estuary; or within one mile of any freshwater body. Coastal answered all of the foregoing questions "no" on the Twelve Applications. Coastal did not provide a copy of its Organization Report (Department "Form 1") because it had already provided one to the Department. As provided in the Department's rules, Coastal informed the Department that its Organization Report was on file with the Department. Coastal did not initially provide casing and cementing plans or a contingency plan for hydrogen sulfide with the Twelve Applications. Ultimately, casing and cementing plans were provided by Coastal. Finally, Coastal requested that the Department conduct a preliminary site inspection, pursuant to the requirement of Rule 62C-26.003(4), Florida Administrative Code. The Department's Notice of Incompleteness. By letter dated March 26, 1997, the Department informed Coastal that the Twelve Applications were incomplete. The Department requested that Coastal provide additional information which it listed under eleven general categories: Location Plat; Environmental and Site Assessments; Zero Discharge; Accidental Pollutant Discharges; Drilling Platform; Hurricane Plan; Geologic Data; Transportation; Test Oil and Gas Plan; Drilling Plan; and H2S Contingency Plan. Coastal's Response to the Department's Notice of Incompleteness and Request for Additional Information. By letter dated September 22, 1997, Mr. Ware, on behalf of Coastal, responded to the Department's March 26, 1997, notice of incompleteness and request for additional information. In general, Coastal provided some of the requested information but indicated that it did not believe the Department had the authority to request most of the information. Therefore, Coastal informed the Department that most of the requested information was not being provided. Despite the fact that Coastal did not provide most of the requested information, Mr. Ware stated the following in the first paragraph of the September 22, 1997, letter: In fact, no statutory or regulatory authority was cited for any request. If Coastal is mistaken on any such request, please inform us of the specific authority allowing the department to require such information and Coastal will respond. [Emphasis added]. The Department's Answer to Coastal's Request for Specific Authority. Coastal's request for citations of specific authority and Coastal's representation that it would provide the information if such authority were given, was reasonably interpreted by the Department as an expression of Coastal's willingness to continue to discuss whether the Twelve Applications were in fact complete. As a consequence, the Department proceeded to respond to Coastal's request rather than proceeding to treat the Twelve Applications as complete and review them on their merits. After extensive research, the Department responded to Coastal's request for authority by letter dated December 16, 1997. The Department provided Coastal with citations to statutes and rules which the Department believed supported the additional information it had requested in its March 26, 1997, letter. See Coastal Exhibit 76. The Department also pointed out inconsistencies in the information Coastal had provided in support of the Twelve Applications. In particular, the Department asked why Coastal's H2S contingency plan referred to a drilling rig different than the one that Coastal had indicated it intended to use. The Department also asked Coastal how it planned to drill twelve wells within the time allowed after a permit is issued with only the one drilling platform that Coastal had indicated it planned to use for all twelve wells. Coastal's First Notice of Completeness. By letter dated December 26, 1997, Coastal informed the Department that it was not convinced that the authorities cited by the Department in its December 16, 1997, letter required that it provide the additional information sought by the Department. Mr. Ware, therefore, informed the Department in the December 26, 1997, letter of the following: As a result of the Department's insistence that Coastal provide such information, Coastal is left with no alternative but to file a petition for administrative hearing concerning whether the materials submitted by Coastal were sufficient to complete the applications so that they should have been processed by the Department. Twelve separate Petitions for Formal Administrative Hearing were filed by Coastal with the December 26, 1997, letter. Pursuant to the petitions, Coastal challenged the Department's request for additional information and sought approval of the Twelve Applications by default. Coastal's December 26, 1997, letter and the petitions filed simultaneously with the letter were the first indication from Coastal that it considered the Twelve Applications complete. On January 22, 1998, the Department entered an Order Dismissing Petitions, dismissing the twelve petitions filed by Coastal. The petitions were dismissed without prejudice to the filing of amended petitions alleging how the Department's December 16, 1997, letter constituted "agency action." No amended petitions were filed by Coastal. The Department also concluded in the Order Dismissing Petitions that Coastal's December 26, 1997, letter constituted Coastal's first notice that it considered the Twelve Applications complete and directed that staff grant or deny the Twelve Applications within 90 days from Coastal's notice. In support of the Department's conclusion that the Twelve Applications should not be considered as complete until Coastal filed its December 26, 1997, letter, the Department noted in its order that Coastal, in response to the Department's December 16, 1997, letter, had requested specific authority for the Department's request and had represented that it would provide the additional information sought by the Department if it were satisfied with authority cited by the Department. I. The Department's Denial of Coastal's Applications. On March 24, 1998, the Department entered a "Final Order" denying the Twelve Applications. It is this Final Order that is the subject of these proceedings. The Department's decision to deny the Twelve Applications was explained as follows: The applications as submitted do not provide the Department with assurance that the issuance of the permits would be in compliance with the standards and criteria of Chapter 377, Part I, F.S., and Rules 62C-25 through 62C-30, F.A.C. The Department cannot determine based on the information submitted, that the proposed drilling activities do not threaten public safety and the state's natural resources. Information critical to making such a determination remains absent. . . . The Department's Final Order denying the Twelve Applications was entered within 90 days after Coastal notified the Department that it did not intend to provide any additional information to support the Twelve Applications and that it considered the applications complete. The Department's decision to deny the Twelve Applications was based solely on the Department's conclusion that it had not been provided sufficient information to review the merits of the Twelve Applications. The Department's Specific Authority Over Oil and Gas Drilling Permits. Part I, Chapter 377, Florida Statutes (hereinafter referred to as the "Act"), establishes the law in Florida governing oil and gas resources of the State. Section 377.06, Florida Statutes, sets out the general public policy of the State concerning oil and gas: It is hereby declared to be the public policy of the state to conserve and control the natural resources of oil and gas in said state, and the products made therefrom; to prevent waste of said natural resources; to provide for the protection and adjustment of the correlative rights of the owners of the land wherein said natural resources lie and the owners and producers of oil and gas resources and the products made therefrom, and of others interested therein; to safeguard the health, property, and public welfare of the citizens of said state and other interested persons and for all purposes indicated by the provisions herein. . . . The Department is designated as one of the agencies of the State authorized to carry out the powers, duties, and authority of the Act. Section 377.07, Florida Statutes. The Department's authority includes the authority to adopt rules and enter orders it deems necessary to implement and enforce the provisions of the Act. Section 377.22, Florida Statutes. In particular, the Department has been given broad authority to regulate the drilling for oil and gas in Florida in Sections 377.22(2)(a) through (x), Florida Statutes. Pursuant to this broad authority, the Department has promulgated Chapters 62C-25 through 62C-30, Florida Administrative Code. Rule 62C-25.006, Florida Administrative Code, sets out the general rule concerning the exploration for oil and gas in Florida: Each person who conducts geophysical surveys (unless exempted by Rule 62C-26.007), drills an oil or gas related well (62C-26.003), or operates an oil or gas related well . . . (62C-26.008) shall first obtain a permit from the Department. Each of these activities requires a separate permit. [Emphasis added]. Ordinarily a single permit will be issued for drilling a well and either transporting test oil or injecting test fluids for a period of 90 days after testing is commenced. . . . In these cases, Coastal is seeking a permit to drill an oil or gas-related well and must, therefore, comply with Rule 62C-26.003, Florida Administrative Code, titled "Drilling Applications" (hereinafter referred to as the "Drilling Application Rule"). The Drilling Application Rule establishes certain specific requirements concerning specific information which, by the clear terms of the rule, must be provided by all applicants for oil and gas drilling permits in Florida. Applicants for drilling applications are required to be provide the following: All Applications to Drill (Form 3) shall include an Organization Report (Form 1; 62C- 25.008), performance security (62C-25.008, 62C- 26.002), location plat (62C-26.003(7)), site construction plans (62C-26.003(9)), casing and cementing program (62C-26.003(5)), contingency plan if appropriate (62C-27.001(7)), and application fee (62C-26.003(8)). In addition to these items, an application to drill a nonroutine well shall include a lease map or document and a letter of justification, both as described in 62C-26.004(6)(d). Any of these items already on file with the Department may be included by reference. The application to drill shall be considered incomplete until the applicant requests a preliminary inspection be made by the Department. . . . A proposed casing and cementing program must be included with the application to drill. This program shall at a minimum include setting depths, specified minimum yield strength, grade of pipe, class of cement to be used, cement additives, cement quantity, intended interval to be cemented, hole size, displacement method, special tools to be used, and calculated percent excess cement to be used. . . . . Each application shall be accompanied by a location plat surveyed and prepared by a registered land surveyor licensed under Chapter 472, FS. All such plats shall meet the minimum technical standards for land surveys as specified in Chapter 61G-17-6, FAC, and must: Be drawn to a scale sufficient to show the required detail, preferably 1 inch = 1,000 feet. Show and provide a legal description of all mineral acreage within the drilling unit which is not under lease to the applicant. Show the exact well location (both surface and bottom if different) and unit acreage within the drilling unit and indicate distances to adjacent wells, drilling unit boundaries, quarter-section corners, rivers and other prominent features. With prior notice and explanation to the Department, other established lines, reference points, or methods may be used when section corners are unavailable and an inordinate amount of preliminary surveying would have to be done to establish section corners or other standard reference points. In any case, a standard survey or equivalent with plat shall be made prior to obtaining an operating permit. Show ground elevation, with tolerances, at the drill site. State whether the proposed drilling unit is routine on nonroutine and specify the applicable subsection of s. 62C-26.004 under which the well is located. Each application to drill shall be accompanied by a $2,000 processing and regulatory fee . . . for costs incurred by the Department through well completion or plugging. . . . . . . . The applicant shall describe the provisions made for locating and constructing roads, pads, utility lines and other facilities needed for drilling operations and shall make every effort to minimize related impacts. Applications for permits in wetlands, submerged lands, and other sensitive areas shall be reviewed in accordance with 62C-30.005, FAC. Coastal provided all of the specific information applicable to the Twelve Applications required by the Drilling Application Rule. Much of the information required by the Drilling Application Rule, however, pertains to drilling operations on land and not drilling operations on submerged, offshore lands. The Department's Offshore Drilling Policy. Although Coastal provided all of the specific information required by the Drilling Application Rule, the Department required that a significant amount of additional supporting information be provided in support of the Twelve Applications. The additional information is generally described in Section E of this Recommended Order and is more specifically described, infra. Through the incompleteness letters issued by the Department in these cases, the Department expressed a statement of general applicability which "implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency . . . ." Section 120.52(15), Florida Statutes. The Department's statement of general applicability is, in effect, that all applicants for offshore oil and gas wells must provide the information described in the Department's letters of incompleteness to Coastal; information not specifically listed in the Drilling Application Rule. This state of general applicability will hereinafter be referred to as the "Offshore Drilling Policy." The Offshore Drilling Policy is of recent origin. It was not applied during the 1940's, 1950's, and 1960's. The policy was only recently developed because only a few offshore drilling permits have been applied for until recently and the technology applied in offshore drilling has changed significantly in the past fifty years. Between the 1960's and 1992, when Coastal filed five applications for permits, only one offshore drilling permit was issued by the Department. That permit was issued in the late 1970's or early 1980's to Getty Oil Company (hereinafter referred to as "Getty") for a test well approximately three miles offshore from Santa Rosa County, Florida. The Offshore Drilling Policy was not applied by the Department to Getty, although most of the information required in these cases was eventually provided by Getty. Getty provided the information not because of Department policy, however, but in an effort to settle a challenge to the Department's proposed decision to issue the permit. Although much of the Department's knowledge concerning offshore drilling was developed as a result of the Getty permit, the Department did not receive another permit application for offshore drilling for ten to twelve years or more. Since 1992, however, the Department has required the same additional information it requested Coastal to provide in these cases for seventeen different proposed well locations located from offshore sites off the northwest coast of Florida near St. George Island and extending to the southwest coast of Florida near Naples. The Offshore Drilling Policy has been adopted by the Department because existing rules were adopted primarily to govern drilling operations on land and not offshore. As a consequence, those rules inadequately address offshore wells. The Department, however, is charged with broad authority under Chapter 377, Florida Statutes, to govern oil and gas drilling operations on and offshore. That authority includes the broad authority to carry out the public policy of the State expressed in Section 377.06, Florida Statutes, to "conserve and control the natural resources of oil and gas . . . ; to prevent waste of said natural resources; . . . to safeguard the health, property and public welfare of the citizens . . . ." When the intent of existing rules is considered in the context of offshore drilling, it is apparent that Drilling Application Rule does not adequately address all the reasonable concerns with offshore drilling. The Department has developed the Offshore Drilling Policy to the point where it has become more than a mere interpretation and application of existing law to offshore drilling applications. The Offshore Drilling Policy has become a uniform statement of policy describing a significant amount of particular information which the Department will require for any application for an offshore drilling permit. The Offshore Drilling Policy has passed the point in its development that it can be considered the Department's reaction to a particular set of circumstances. The Scope of the Department's Application of the Offshore Drilling Policy. The Offshore Drilling Policy has been applied to the last seventeen applications for offshore wells filed with the Department. The first five applications were filed in March 1992. Although four of those applications were withdrawn, the Department developed the Offshore Drilling Policy and applied it to permit application 1281 prior to August 1996 when the Department issued its notice of intent to issue Permit 1281. Although the evidence failed to prove exactly when the Department decided to apply the Offshore Drilling Policy to permit application 1281, the policy had been applied before the Twelve Applications were filed in February 1997. The Offshore Drilling Policy was applied uniformly to the Twelve Applications from the date they were filed through the date of the hearing in these cases. The Offshore Drilling Policy was also sufficiently formulated for the Department to publish notice of its intent to adopt the Offshore Drilling Policy as a rule. That notice was published on November 24, 1998. Therefore, the Offshore Drilling Policy was sufficiently formulated to be proposed for adoption as a rule prior to the commencement of this de novo proceeding. It is apparent that the Department intends to apply the Offshore Drilling Policy to all applications for oil and gas wells proposed for location offshore in the waters of the State. At present, only Coastal has the right to drill in the sovereign submerged lands of the State and Section 377.242(1)(a)5, Florida Statutes, currently prohibits granting drilling permits within the boundaries of the Florida's territorial seas to any person other than Coastal. The evidence failed to prove, however, that Coastal cannot assign its right to drill to other persons, which it has done in the past. Even though Coastal may currently be the only applicant for oil and gas well drilling permits, the Department is at liberty to modify the Offshore Drilling Policy at any time to require different or additional information, without prior notice to Coastal. Coastal has the right to some certainty as to what information the Department may require for approval of an offshore drilling permit. Section 120.57(1)(e), Florida Statutes; De Novo Review of the Offshore Drilling Policy. Section 120.57(1)(e), Florida Statutes, requires a de novo review of any unadopted rule which formed the basis of any agency action. The Department's denial of the Twelve Applications in these cases was based solely on its application of the Offshore Drilling Policy. The Offshore Drilling Policy has not been adopted as a rule, although the Department has instituted rule- making procedures. Therefore, if the Offshore Drilling Policy constitutes a rule, the Offshore Drilling Policy must meet the requirements of Section 120.57(1)(e), Florida Statutes. Each category of information required by the Department pursuant to the Offshore Drilling Policy must be examined in determining whether some of the requirements of Section 120.57(1)(e), Florida Statutes, have been met. The other requirements of Section 120.57(1)(e), Florida Statutes, can be considered generally without an examination of each category of information required by the Department. Location Plat Information. The Department requested that Coastal provide the following information concerning the location of the proposed wells: For each proposed location, submit a plat on an original nautical chart showing each drilling site relative to the shore. This map should include at least the following surface and bottom hole locations including satellite navigation coordinates so the site can be re-occupied by a preliminary inspection team, boundaries of the working interest area, location of nearby reefs or sensitive aquatic wildlife areas, wildlife migration routes, proposed routing of supply ships, discharge barges, pipelines, helicopter routes, and commonly used shipping lanes. Also submit a diagram showing the orientation of the rig and the location of its major components. Coastal provided only standard nautical charts with a surveyed site location and the lease boundaries noted. The charts did not contain any of the information requested by the Department. Nor did the charts note whether the plotted points were surface or bottom hole locations. The Department relied upon the following authority in requesting the Location Plat information: Section 377.22(2)(h), Florida Statutes, and Rule 62C-26.003(7), Florida Administrative Code, quoted, supra. Section 377.22(2)(h), Florida Statutes, provides the following: (2) The department shall adopt such rules and regulations, and shall issue such orders, governing all phases of the exploration, drilling, and production of oil, gas, or other petroleum products in the state . . . as may be necessary for the proper administration and enforcement of this chapter. Rules, regulations, and orders promulgated in accordance with this section shall be for, but shall not be limited to, the following purposes: . . . . (h) To require the making of reports showing the location of all oil and gas wells; the making and filing of logs; the taking and filing of directional surveys; the filing of electrical, sonic, radioactive, and mechanical logs of oil and gas wells; if taken, the saving of cutting and cores, the cuts of which shall be given to the Bureau of Geology; and the making of reports with respect to drilling and production records. . . . The Department's purpose in requiring the information concerning the Location Plat was to allow it to place the proposed drilling site into context with the surrounding environmental and other features of the area. Without the requested information, the Department could not ensure that sensitive resources and significant features would not be damaged by the proposed drilling operations. Rule 62C-26.003(7), Florida Administrative Code, does not directly authorize the Department to request the Location Plat information. That rule was drafted with onshore drilling operations in mind. Requiring the Location Plat information in these cases is not a mere application of that rule. Rule 62C-26.003(7), Florida Administrative Code, however, does support the conclusion that the requested information is needed for offshore, as well as onshore drilling. More importantly, it demonstrates the broad authority of the Department under the Act to require assurances from an applicant for offshore drilling that the proposed drilling will not be detrimental to the environment. The information provided by Coastal concerning archaeological sites, underground sea cables, and sensitive environmental features on the bottom was not sufficient for the Department to fulfill its responsibilities under the Act. The Act in general and the specific cites provided by the Department in support of its request for Location Plat information give the Department sufficient authority to request the information. The Department's request did not enlarge, modify, or contravene its grant of authority. The Department's exercise of its authority in requesting Location Plat information was not arbitrary or capricious. Environmental and Site Assessment. The Department requested that Coastal provide the following information concerning environmental features of the proposed well sites: Submit a professional ecological/biological survey and report for each proposed drill site. Wildlife habitats including living coral reefs, artificial reefs, patch reefs, benthic infauna, sea grasses, and associated communities shall be identified and located if present. Photodocumentation consisting of television and color still photography shall be included with each report. . . . The Department's request included an outline format for the photodocumentation survey report. Coastal provided no information in response to the Department's request for Environmental and Site Assessment information. Instead, Coastal suggested that the Department obtain the information it requested through the preliminary site inspection required by the Department's rules. The Department relied upon the following authority in requesting the Environmental and Site Assessment information: Sections 377.21(2), 377.22(2)(i), 377.241(1), and 377.371(1), Florida Statutes, and Rule 62C-26.003(10), Florida Administrative Code. While Section 377.21(2), Florida Statutes, gives the Department little authority concerning the protection of the environment, the other statutory provisions cited by the Department do. Section 377.22(2)(i), Florida Statutes, authorizes the Department to take into consideration the impact of drilling operations on surrounding leases or property. Section 377.241(1), Florida Statutes, requires the Department to take into consideration the nature, character, and location of lands on which drilling will occur and those involved with the drilling. Finally, and most significantly, Section 377.371(1), Florida Statutes, requires that drilling not cause pollution to land or water, "damage aquatic or marine life, wildlife, birds, or public or private property " Rule 62C-26.003(10), Florida Administrative Code, provides, in part, that "[a]pplications for permits in . . . submerged lands, and other sensitive areas shall be reviewed in accordance with 62C-30.005," a rule governing applications for drilling in the Big Cypress Watershed. Rule 62C-30.005(2)(b), Florida Administrative Code, sets out the requirements for drilling sites. Among other things, Rule 62C-30.005(2)(b)2, Florida Administrative Code, requires that topographical and engineering surveys of the drill site, along with aerial photography, must be prepared. While this rule does not specifically authorize the Environmental and Site Assessment information the Department has requested, the statutory authority that supports the rule does. Aerial photography is normally required as an aid to the Department in identifying the proposed site and the surrounding area. Obviously, aerial photography would be of little assistance for a submerged site. Therefore, in order for the Department to carry out its responsibility to protect the environment, including sensitive environmental features such as "live bottom areas" as defined in Rule 62C-25.002(49), Florida Administrative Code, the Department requested photodocumentation of the proposed sites. The Department's request that Coastal provide it with an environmental assessment of the proposed drilling sites was also made to give the Department the necessary information for it to ensure that the environmental impacts of the proposed wells would not be detrimental. Such information also relates to the ability of an applicant to ensure that it has adopted adequate plans to deal with possible oil spills and other accidents. By fully considering the environmental features of an area, the applicant will be better able to draft and adopt contingency plans. Unlike onshore drilling, an offshore well entails a relatively large drilling rig with large feet that rest on the bottom to support the drilling platform above the surface of the water. Those feet, if placed on live bottom, can cause significant damage to marine biota which live in crevices, cracks, and permeable portions of some rocks that may be found on the bottom. The preliminary site inspection conducted by the Department is not an adequate substitute for the information requested by the Department. That inspection is only intended to verify the assurances which the applicant is first required to give. After all, it is the applicant that is seeking permission to drill. As a consequence, the applicant should first determine what impact its proposed drilling will have and, if satisfied on its findings, provide assurances to the Department to support its application. The Act in general and the specific cites provided by the Department in support of its request for Environmental and Site Assessment information give the Department sufficient authority to request the information. The Department's request did not enlarge, modify, or contravene its grant of authority. The Department's exercise of its authority in requesting Environmental and Site Assessment information was not arbitrary or capricious. Zero Discharge. The Department requested that Coastal provide the following information concerning a "zero discharge" plan for the proposed wells: Submit a plan which ensures zero discharge operation for each proposed well. The plan must include an environmental monitoring plan which provides for filed sampling around the drill site such that pre-drilling, drilling, and post- drilling sediments may be compared. Coastal, in response, only stated that it intended to use a zero discharge drilling rig at all the proposed sites. A copy of a brochure generally describing the rig was provided. No description of systems for containing discharges was provided. Nor did Coastal provide monitoring and sampling plans. The Department relied upon the following authority in requesting a zero discharge plan: Sections 377.21(2), 377.22(2), 377.22(2)(c) and (i), 377.241(1), 377.243, 377.371, and 377.371(1), Florida Statutes, and Rule 62C-26.003(10), Florida Administrative Code. A zero discharge plan is the written plan that an applicant is supposed to follow in the event of the discharge of any pollutant into the surrounding environment of a well site. The plan must cover not only discharges from the well shaft, but also from all equipment used, located, or traveling to the site. The purpose of the plan is to prevent spills and, where an accidental spill occurs, to minimize the impact of the spill. While the use of a zero discharge rig may be a significant part of a zero discharge plan, its use alone is not sufficient. The use of zero discharge rig does not provide assurances concerning the operation of other vessels and equipment which may be used at a site. Nor does its use provide assurances as to what will be done to ensure that the rig works properly or what will be done if it does not. Section 377.22, Florida Statutes, provides authority for the Department to ensure that all precautions are taken to prevent pollutants entering the area of a drilling site or any area associated with the well. Section 377.22(2)(a), Florida Statutes, authorizes the Department to require that drilling operations are done in such a manner as to prevent pollution of the waters, including salt water, and property of the State. Section 377.22(2)(c), Florida Statutes, authorizes the Department to require safety equipment to minimize the possibility of an escape of oil and other petroleum products. Finally, Section 377.22(2)(i), Florida Statutes, authorizes the Department to prevent drilling operations that will cause injury to neighboring property. Section 377.243(2), Florida Statutes, also provides the Department with the authority to require assurances concerning an applicant's efforts to protect against discharges into the environment of oil and other pollutants: (2) As a condition precedent to the issuance or renewal of a permit, the division shall require satisfactory evidence that the applicant has implemented or is in the process of implementing, programs for control of pollution related to oil, petroleum products or their byproducts, and other pollutants and the abatement thereof when a discharge occurs. Finally, Section 377.371(1), Florida Statutes, prohibits persons drilling for oil and gas from polluting land or water and from damaging marine or aquatic life. A spill of oil or gas and other pollutants can have a devastating impact on the environment regardless of whether the spill occurs on land or at sea. Such damage could result in loss of tourism in Florida and severe economic damage. The oil industry has progressed significantly in its ability to prevent spills and, where spills occur, to minimize the impacts of the spill on the environment. In order to minimize the chance of spills and the impacts which could occur from a spill, however, an applicant must take the steps necessary to plan ahead of time and provide the Department with the assurances that the applicant has done so. The Act in general and the specific cites provided by the Department in support of its request for zero discharge information give the Department sufficient authority to request the information. The Department's request did not enlarge, modify, or contravene its grant of authority. The Department's exercise of its authority in requesting zero discharge information was not arbitrary or capricious. Accidental Pollutant Discharges. The Department requested that Coastal provide a spill contingency plan for each of the proposed well sites. The requested plan was to include Coastal's plans for dealing with escaped pollutants, modeling of how projected spills might react, plans for deployment of cleanup equipment, inventories of equipment available for dealing with spills, designation of the individuals responsible for cleanup, and general clean-up plans. In response to the request for the spill contingency information the Department insisted it needed, Coastal stated the following: With respect to Coastal's implementation of a program for control of pollution related to oil, petroleum products and their byproducts, and other pollutants, see the letter of Dr. Tom Herbert, and his curriculum vita, as well as the ISO 14,000 Program on file in Permit #1296. With respect to Coastal's implementation of a program for the abatement of pollution discharges related to oil, petroleum products and their byproducts and other pollutants, see attached letter of Shaw Thompson, and his resume on file in Permit #1296. Coastal did not provide the Department with a specific, written oil-spill contingency plan. Dr. Herbert was involved with ensuring compliance of the Getty well off of Santa Rosa County with environmental protection requirements. Dr. Herbert had not, however, reviewed information concerning the Twelve Applications other than the nautical charts showing the location of the wells. In a letter from Dr. Herbert submitted by Coastal to the Department, Dr. Herbert represented the following concerning Coastal's proposed operations: Coastal Petroleum has used the Getty operations as a "template" for designing operations for the permit number 1281 well and for all subsequent drilling permits pending (numbers 1296 through 1307). We have been retained to assist with the development of plans and procedures and to insure that the operations are carried out in an environmentally safe and conscientious manner. . . . . Coastal Petroleum Company has adopted the ISO 14000 standard as the method for implementing long-term environmental compliance for drilling and production operations off Florida's coast. As the issuance date for the 1281 permit draws near we will begin implementing the ISO 14000- program beginning with training provided by the University of Florida TREEO Center. The implementation of the environmental program will extend from Coastal's own employees to others who may be service companies or contractors. Dr. Herbert's representations to the Department in his letter and at hearing do not constitute an actual oil-spill contingency plan for any of the specific proposed well sites. At best, his representations constitute a commitment to deal with the manner in which Coastal will comply with environmental requirements in the future. It does not constitute a commitment to actually draft and implement an oil-spill contingency plan. Dr. Herbert and Coastal also failed to explain how the Getty site, which was located in 11 to 12 feet of water, is sufficiently similar to the proposed sites of the Twelve Applications, which are all located in much deeper waters. Nor did Coastal explain how it would deal with the fact that the Getty site was not in the open waters of the Gulf of Mexico. More importantly, no specific oil-spill contingency plan was provided for the twelve proposed sites. Mr. Thompson is an expert in oil-spill containment and cleanup. Coastal provided a letter from Mr. Thompson providing assurances that he would be working with Coastal during any drilling of the twelve proposed wells. At hearing, Mr. Thompson had little knowledge of the proposed sites. More importantly, Mr. Thompson did not provide a specific oil-spill contingency plan for the twelve proposed sites. The ISO 14000 Guide provided by Dr. Herbert consists of a book containing a generic template suggested by the author for use by any business concerned with environmental impacts. The Guide is not specific to the oil and gas industry. More importantly, it is not specific to Coastal nor any of the proposed well locations. Finally, the Guide would be of little assistance in dealing with an actual emergency. The Guide is not a specific oil-spill contingency plan. The Department relied upon the following authority in requesting the oil-spill contingency plan: Sections 377.22, 377.22(2)(c), 377.243, and 377.371, Florida Statutes. The same statutory authority that supports the request for a zero discharge plan, supports the oil-spill contingency plan requested by the Department. Especially Section 377.243(2), Florida Statutes, quoted, supra. While Section 377.243(2), Florida Statutes, allows an applicant to implement or be in the process of implementing an abatement program, merely indicating the intent to implement a program is insufficient. The Department must ensure that an applicant has taken sufficient steps to prevent the pollution of land or water, as well as damage to aquatic or marine life, wildlife, and birds. The environmental damage from a spill or a well blow-out can be significant. One of the worst oil well blow-outs occurred at an exploratory well. Site specific information must be considered by the applicant in its planning and such information must be provided to the Department for it to make its statutorily required evaluation. The Act in general and the specific citation provided by the Department in support of its request for an accidental pollutant discharge plan give the Department sufficient authority to request the plan. The Department's request did not enlarge, modify, or contravene its grant of authority. The Department's exercise of its authority in requesting the accidental pollutant discharge plan was not arbitrary or capricious. Drilling Platforms. The Department requested that Coastal provide information concerning the drilling platform(s) Coastal intended to use at each proposed site. In particular, the Department requested information concerning rig impacts, rig designation, scheduling, commitment from rig owners, zero discharge, auxiliary power equipment, and safety plans concerning karst hazards, including a shallow seismic program to rule out the existence of sinkholes or bottom caverns. In response to the request for the drilling platform information the Department sought, Coastal provided only a brochure for the Nobel Drilling Company's rig, the Paul Wolff. Coastal also indicated that the rig would face north. The Department relied upon the following authority in requesting the drilling platform information: Sections 377.22(2)(c), (d), and (i), Florida Statutes; and Rules 62C- 26.003(10), 62C-27.001(4), (5), (6) (cited as 62C-26001(5) and 62C-26001(6) by error in the Department's December 16, 1997, letter), and 62C-28.004(8), Florida Administrative Code. Section 377.22, Florida Statutes, provides authority for the Department to ensure that all precautions are taken to prevent pollutants entering the area of a drilling site and to protect surrounding property. Section 377.22(2)(a), Florida Statutes, authorizes the Department to require that drilling operations are done in such a manner as to prevent pollution of the waters, including salt water, and property of the State. Section 377.22(2)(c), Florida Statutes, authorizes the Department to require safety equipment to minimize the possibility of an escape of oil and other petroleum products. Section 377.22(2)(d), Florida Statutes, authorizes the Department to ensure that drilling is performed in a manner that will prevent the escape of oil from one stratum to another. Finally, Section 377.22(2)(i), Florida Statutes, authorizes the Department to prevent drilling operations that will cause injury to neighboring property. The rig Coastal proposed to use sits on three large feet, each with a diameter of over 93 feet. Each foot sits 235 feet from the other two. The entire rig is extremely heavy and, therefore, each foot has a great deal of weight placed on it. The Department requested information concerning rig impacts in order to avoid adverse impacts on the sea bottom. The Department requested information on rig designation, scheduling and owner commitment because of the Department's concern that a single rig could not drill all twelve wells within the limited one-year period of time a permit is valid for. Coastal had also provided some inconsistent information in its hydrogen sulfide plan concerning what rig would be used. Without knowing what rig would be used at each location, the Department could not fully evaluate the possible impacts of the rig on the environment. The seismic survey and the sink hole and karst formation safety plans were requested because of concerns that a rig could collapse if it were placed on such a formation. A karst formation is a geologic formation caused by increased porosity and permeability of underground limestone formations. As limestone is eaten away, the potential for a sinkhole or cavern collapse increases. Sinkholes and karst formations are not uncommon in the area of Coastal's proposed wells. If a rig collapsed on a karst formation, it is possible that a blow out or other oil spill could occur. The potential for such a catastrophe is greater in this instance because the rig that Coastal is proposing to use is a tripod design which could tip over if one foot were placed in a sinkhole or karst formation that collapses. A shallow seismic survey would provide information concerning possible karst formations at the sites where Coastal plans to drill its test wells. The Act in general and the specific cites provided by the Department in support of its request for rig impact information give the Department sufficient authority to request the information. The Department's request did not enlarge, modify, or contravene its grant of authority. The Department's exercise of its authority in requesting rig impact information was not arbitrary or capricious. Hurricane Response Plan. The Department requested that Coastal provide a hurricane preparation and response plan for each site. Coastal provided none of the requested information. The Department relied upon the following authority in requesting the hurricane response plan: Section 377.22(2)(c), Florida Statutes, and Rules 62C-27.001(5) and 62C-27.006(1), Florida Administrative Code. Section 377.22(2)(c), Florida Statutes, authorizes the Department to require safety equipment to minimize the possibility of an escape of oil and other petroleum products in the event of a natural disaster. Although not cited by the Department, Section 377.371, Florida Statutes, gives the Department broad authority to ensure that oil and gas wells do not pollute. The entire area where Coastal proposed to drill is subject to hurricanes for a significant part of every year. Such storms can have a devastating impact on any structure, including an oil rig, which is in its path. Requiring that an applicant for drilling permits anywhere in the coastal waters of Florida plan ahead of time to respond to an approaching hurricane is abundantly reasonable. The Act in general and the specific citation provided by the Department in support of its request for a hurricane preparation and response plan give the Department sufficient authority to request the plan. The Department's request did not enlarge, modify, or contravene its grant of authority. The Department's exercise of its authority in requesting a hurricane preparation and response plan was not arbitrary or capricious. Geologic Data. The Department requested that Coastal provide the following information concerning the geology of each location of its proposed well sites: Submit material in the form of studies, data, cross sections, or maps which support or explain your decision for locating each well as proposed. All interpreted geologic data must be certified by a geologist licensed in Florida. Coastal provided none of the requested information. For applications 1296 and 1297, Coastal referred the Department to its application for Permit 1281. The Department relied upon the following authority in requesting the geologic information: Section 377.075(4)(g), 377.21(2), and 377.241(3), Florida Statutes, and Rule 62C- 26.004(6)(d), Florida Administrative Code. Section 377.075(4)(g), Florida Statutes, requires that the Department maintain maps identifying information concerning oil and gas activities in Florida. This provision does not, however, authorize the Department to request the geologic information it requested from Coastal. Section 377.21(2), Florida Statutes, gives the Department the authority and the duty to make inquiries to determine whether "waste" exists or is imminent. "Waste" is defined in Section 377.10(10), Florida Statutes. Based upon the definition of "waste," Section 377.21(2), Florida Statutes, gives the Department the authority to request the information it requested concerning the geology of Coastal's proposed locations. Finally, Section 377.241(3), Florida Statutes, requires that the Department take into consideration the "proven or indicated likelihood of the presence of oil, gas or related minerals in such quantities as to warrant the exploration and extraction of such products . . ." before issuing any permit. This provision alone is sufficient for the Department to request the geologic information it requested from Coastal. Oil and gas wells are not drilled without first considering the geology of an area and the likelihood that oil or gas may be found. The determination of a likely successful well is made by a consideration of relevant geologic information such as that requested by the Department. Without such information, the Department would not be able to reasonably carry out its duty under Section 377.231(3), Florida Statutes. Coastal did not dispute the reasonableness of the requested information in determining whether a well should be placed at a proposed location. Instead, Coastal suggested that the Department has all the information it needs to make the determination and, therefore, Coastal shouldn't be required to provide any further information. The information available to the Department, however, is too general in nature. It does not deal with specific locations such as those proposed by Coastal. More importantly, it is Coastal that is seeking permission to drill. Coastal should, therefore, have already gathered and considered the geologic information requested by the Department in deciding where to place its exploratory wells. There have been relatively few wells drilled in Florida offshore waters. None have been productive. One offshore well located near Franklin County was drilled in 1968 and was dry. The only producing offshore well was located off the southern tip of the Florida Keys. Given these facts, the Department was reasonable in seeking assurances from Coastal concerning the possibility that its proposed wells were reasonably placed. Finally, the information Coastal referred to with regard to Permit 1281 was submitted during the formal administrative hearing on that case and was not as part of Coastal's permit application. That information, therefore, was not available to the Department to review. Nor was it provided during the formal hearing on these cases. The Act in general and the specific cites provided by the Department in support of its request for geologic information give the Department sufficient authority to request the information. The Department's request did not enlarge, modify, or contravene its grant of authority. The Department's exercise of its authority in requesting geologic information was not arbitrary or capricious. Transportation. The Department requested that Coastal provide the following information concerning transportation to and from the proposed wells of the drilling rig(s), a description of onshore facilities and the traffic to the rig(s), and a description of, and route to be taken by, transport vessels and helicopters. In response to the Department's request for the transportation information demanded by the Department, Coastal merely stated that no helicopters would be used at any of the proposed sites except in case of an emergency. The Department relied upon the following authority in requesting information concerning transportation: Section 377.22(2)(s), Florida Statutes, and Rules 62C-26.006(1) and 62C- 26.003(10), Florida Administrative Code. Section 377.22(2)(s), Florida Statutes, allows the Department to require "certificates of clearance or tenders in connection with the transportation or delivery of oil or gas, or any product." Section 377.371, Florida Statutes, authorizes the Department to ensure that a drilling operation is not harmful to the environment. This provision alone gives the Department sufficient authority to request information from Coastal concerning how it intends to deal with transportation issues concerning the proposed wells. Pursuant to the Department's statutory authority, the Department has adopted Chapter 62C-30, Florida Administrative Code, which, among other things, provides rules governing transportation issues for wells located in Big Cypress. Although those rules do not specifically deal with offshore wells, they do support the conclusion that assurances concerning transportation issues surrounding any well can be required by the Department. Accidents, and the resulting damage to the environment, often occur during the transportation of oil and other equipment and supplies used for a rig. The Department needs to be provided with assurances that every effort is made by an applicant to avoid such damage. If provided sufficient information, the Department may be able to require that an applicant use a different route between a rig and an onshore facility in order to avoid a sensitive reef and thereby reduce the potential adverse impacts of an accident to the reef. A different route may also be required due to safety concerns. In addition to the legitimate concerns of the Department about accidental spills of oil, gas, and cuttings, the Department is concerned about the transportation of other noxious or hazardous materials used in drilling operations. Mixed saltwater and oil byproducts of drilling also must be transported away from a well site. Spills of these materials can have adverse impacts on the environment and, therefore, steps must be taken to reduce those impacts. The Act in general and the specific citations provided by the Department in support of its request for transportation information give the Department sufficient authority to request the information. The Department's request did not enlarge, modify, or contravene its grant of authority. The Department's exercise of its authority in requesting transportation information was not arbitrary or capricious. Test Oil and Gas Plan. The Department requested that Coastal provide the following information concerning plans to test for oil and gas at each of the proposed wells: Submit a plan for safely producing, transporting, and storing test oil and gas. What mode of transportation is anticipated? Tankers? Barges? Pipelines? Where will produced test oil/gas be taken? Where will landfall occur? Include a statement from each appropriate local government assuring that all proposed facilities for oil and gas transportation and storage, both onshore and offshore, will be in compliance with local comprehensive plans. Indicate any leasehold interest or other property interests which will need to be secured to transport test oil or gas. Will test gas be vented, flared, or stored? Discuss why. Coastal provided no test oil and gas plan or other information in response to this request. The Department relied upon the following authority in requesting the test oil and gas plan: Sections 377.06, 377.22(2)(c) and (s), Florida Statutes, and Rules 62C-25.006(1) and 62C-28.001, Florida Administrative Code. For all the reasons previously discussed concerning the Department's authority to regulate oil and gas wells, the Department's statutory authority is broad enough to require the test oil and gas plan it requested from Coastal. The testing of fluids, their transport, and their storage all can have adverse impacts on the environment. The Act in general and the specific citations provided by the Department in support of its request for a test oil and gas plan give the Department sufficient authority to request the plan. The Department's request did not enlarge, modify, or contravene its grant of authority. The Department's exercise of its authority in requesting a test oil and gas plan was not arbitrary or capricious. Drilling Plan. The Department requested that Coastal provide information concerning drilling plans for the proposed wells, including a blow-out prevention plan. In response, Coastal provided all of the requested information, including a casing plan, cementing plan, and drilling plan, but refused to provide a blow-out prevention plan. The Paul Wolff brochure provided to the Department included a list of blow-out preventers that are standard equipment on the rig, but there was no information concerning how a blow-out would be dealt with. The Department relied upon the following authority in requesting the blowout prevention plan: Sections 377.22(2)(a), (c), (d), (e) and (l), Florida Statutes, and Rules 62C-26.003(5), 62C-26.007, and 62C-27.005, Florida Administrative Code. Section 377.22(2)(l), Florida Statutes, authorizes the Department to adopt rules to prevent blow-outs. That authority, coupled with other provisions of the Act giving the Department the authority to protect the environment from oil and gas well drilling operations, is sufficient authority for the Department to require the requested blow-out prevention plan. A blow-out can cause the release of oil and gas into the environment with serious consequences to the environment. Preventing a blow-out is, therefore, of paramount importance. Proper prevention of blow-outs depends upon the geology of each drilling site. Different sites may require different equipment or different measures to prevent a blow-out. Consequently, a separate plan for each site is reasonable and necessary. The Act in general and the specific citations provided by the Department in support of its request for a blow-out prevention plan give the Department sufficient authority to request the plan. The Department's request did not enlarge, modify, or contravene its grant of authority. The Department's exercise of its authority in requesting a blow-out prevention plan was not arbitrary or capricious. H2S Contingency Plan. The Department requested that Coastal provide a hydrogen sulfide (H2S) contingency plan, including a site specific air dispersion model for each site predicting the transport of any hydrogen sulfide accidentally released into the air. Coastal provided a single hydrogen sulfide contingency plan. No air dispersion modeling was provided. The Department relied upon the following authority in requesting individual plans and modeling: Sections 377.22 and 377.243(2), Florida Statutes, and Rule 62C-27.001(7), Florida Administrative Code. Hydrogen sulfide is a toxic gas which can be released during drilling operations. The gas is colorless. It is also denser than air. If not handled properly, a release can be fatal to anyone coming into contact with the gas. For an offshore well, a release of hydrogen sulfide can injure workers on the rig and boaters or fishermen in the area. Contact with hydrogen sulfide at a concentration of 100 parts per million can kill a person's sense of smell in 3 to 15 minutes. At a concentration of 300 parts per million, it can be fatal, and at 500 parts per million breathing will cease in only a matter of a few seconds. Because hydrogen sulfide is heavier than air, it will remain just above the surface of the water, where people are normally located on the Gulf. Individuals on the Gulf cannot escape to higher ground to avoid the gas like they may be able to do on land. While modeling cannot provide certainty as to how a cloud of hydrogen sulfide might act, it can at least give information concerning the prevailing wind direction of each site, which may be beneficial in being prepared to deal with an accident. Without such information it is difficult to determine whether plans to deal with an accident are adequate. Section 377.243(2), Florida Statutes, provides adequate authority for the Department to require that Coastal provide modeling for each proposed site. The Act in general and the specific citations provided by the Department in support of its request for hydrogen sulfide modeling give the Department sufficient authority to request the modeling. The Department's request did not enlarge, modify, or contravene its grant of authority. The Department's exercise of its authority in requesting modeling was not arbitrary or capricious. Section 120.57(1)(e)2.c., Florida Statutes. None of the required information is vague, establishes inadequate standards, or vests unbridled discretion in the Department. All of the information requested by the Department was understood by Coastal. Coastal knew what the Department was requested because it had already provided the requested information in support of its 1281 permit application. Section 120.57(1)(e)2.e., Florida Statutes. Coastal received adequate notice of the Department's Offshore Drilling Policy. Coastal had been requested to provide the information in support of its 1281 permit application. It was given written notice of the Offshore Drilling Policy in these twelve cases through the March 26, 1997, notice of incompleteness and the December 16, 1997, explanation of authority for the requested information. AA. Section 120.57(1)(e)2.g., Florida Statutes. While there are costs which Coastal would be required to pay in order to provide the information required by the Department, those costs are not excessive; not when the rationale for requesting the information is considered. Coastal did not consider the costs associated with providing the information sought by the Department to be too excessive for it to refuse to provide the information in seeking Permit 1281. On the contrary, Coastal incurred those costs. Although there was testimony that the costs of providing the information for Permit 1281 was in excess of a million dollars, the weight of the evidence failed to support the testimony. The evidence proved that the costs of providing all of the information requested by the Department would be well below a million dollars for each well. As to considering less costly alternatives, Coastal never gave the Department an opportunity to do so. Coastal simply refused to provide the requested information, to propose less-costly alternatives, or to discuss the matter further with the Department. Nor were any, less costly, methods of obtaining the information necessary for the Department to carry out its responsibilities under the Act proved at hearing.
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 permit applications 1296 through 1307 for failure to file complete applications. DONE AND ENTERED this 26th day of March, 1999, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 26th day of March, 1999. COPIES FURNISHED: Robert J. Angerer, Esquire Robert J. Angerer, Jr., Esquire Angerer and Angerer Post Office Box 10468 Tallahassee, Florida 32302 Andrew Baumann, Assistant General Counsel John W. Costigan, Deputy General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Monica K. Reimer, Assistant Attorney General Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 S. Ansley Samson, Esquire David G. Guest, Esquire Earthjustice Legal Defense Fund Post Office Box 1329 Tallahassee, Florida 32302 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 David B. Struhs, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing and the prehearing stipulation filed by the parties, the following relevant facts are found: Kerr-McGee Chemical Corporation, a subsidiary of the petitioner, conducts phosphate mining operations. It is involved in a joint venture with Brewster Phosphate, which operates two phosphate mines south of Lakeland, Florida. In phosphate mining operations, it is possible during times of seasonal high rains or hurricanes for the water in the system to exceed the available containment areas. In such instances, water must be released outside the system and a discharge permit from the Department of Environmental Regulation is necessary. In approximately 1964, petitioner received five prospecting permits to explore for mineral deposits in the Osceola National Forest. Pursuant to 30 U.S.C. Section 211(b), the Mineral Leasing Act, petitioner filed applications for preference right leases based on commercial discoveries of phosphate on portions of the same land. Section 211(b) provides in pertinent part: [I]f prior to the expiration of the permit the permittee shows to the Secretary that valuable deposits of phosphate have been discovered within the area covered by his permit, the permitee shall be entitled to a lease. The applications for preference right leases cover areas within the drainage basins of Deep Creek, Robinson Creek and Falling Creek within the Osceola National Forest. On March 28, 1969 and December 11, 1970, the United States Geological Survey, as designee of the Secretary of the Interior, certified that petitioner had made valid discoveries of valuable mineral deposits on these lands. In a proceeding filed with the United States District Court for the District of Columbia, petitioner sought an order compelling the Secretary of the Interior to issue it a preference right lease pursuant to 30 U.S.C. Section 211(b) for the purpose of mining phosphate in the Osceola National Forest. The Court took under consideration an affidavit of Russell G. Wayland, then Chief of the Conservation Division of the United States Geological Survey. This affidavit noted that valuable deposit determinations had been made on March 28, 1969 and December 11, 1970, but further stated that it had been determined that the criteria upon which such determinations were based are insufficient to meet the requirements of 30 U.S.C. Section 211 (1970), and the new regulations which had been promulgated in May of 1976. In an opinion filed on September 29, 1976, the United States District Court, Judge Barrington D. Parker, held that petitioner had "an acquired and vested interest" and a "statutory entitlement" to the preference right leases, and that the recently implemented regulations of May, 1976 could not void that interest. Accordingly, the Court mandated the Secretary of the Interior to immediately issue the preference right leases to Kerr-McGee Chemical Corporation. Kerr-McGee Chemical Corp. v. Thomas S. Kleppe, et al., Civil Action No. 76-0608 (D.D.C. 1976). The opinion of Judge Parker was appealed to the United States Court of Appeals for the District of Columbia Circuit. That Court, in a judgment entered on March 28, 1978, reversed the United States District Court's order of September 29, 1976, holding that The ongoing administrative proceedings before the Secretary of the Interior were aborted by the issuance of the writ of mandamus by the District Court. Appellees should have exhausted its administrative remedies before seeking the writ or petitioning for judicial review. As of the time of the administrative hearing in the instant rule challenge proceeding, the Department or Secretary of the Interior still had not yet completed its review of Kerr-McGee's preference lease applications under the new regulations. Petitioner currently has no lease to conduct phosphate mining operations in the Osceola National Forest. The proposed Rule being challenged in this proceeding reclassifies certain bodies of water within three National Forests from Class III waters to Outstanding Florida Waters. The parties have stipulated that petitioner's applications for preference right leases cover only those areas within the drainage basins of Deep Creek, Robinson Creek and Falling Creek located within the Osceola National Forest. Thus, petitioner has no standing to challenge the Outstanding Florida Water (OFW) classifications of those waters within the Apalachicola or Ocala National Forests or the Ocean Pond and Middle Prong of St. Mary's River within the Osceola National Forest. As to the three remaining water bodies--Deep Creek, Robinson Creek and Falling Creek located within the Osceola National Forest--it is concluded that petitioner is substantially affected by the proposed rule only if it can demonstrate that it is presently entitled to mine for phosphate in those areas, and is thus subject to compliance with the criteria and standards relating to OFW classifications. The record in this case does not adequately demonstrate that petitioner is presently entitled to conduct phosphate mining operations within the drainage basins of Deep Creek, Robinson Creek or Falling Creek in the Osceola National Forest. It has simply applied to the federal government for a permit to conduct such activities. The evidence illustrates that valuable deposit determinations were made in 1969 and 1970, but that, in 1976, the criteria upon which such determinations were based were determined to be insufficient and that a new determination was necessary prior to the issuance of a preference right lease under 30 U.S.C. Section 211. While the United States District Court did not agree, ruling that petitioner had an entitlement to the phosphate mining leases and mandating their issuance, that decision was reversed by the Circuit Court of Appeals for the District of Columbia. Thus, the District Court's pronouncements of entitlement are of no legal force or effect. As of the hearing date, the Interior Department had not yet completed its review of petitioner's preference lease applications. The facts of this case distinguish it from the holding in the case of Natural Resources Defense Council v. Berklund, 609 F. 2d 553 (D.C. Cir., 1979). In Berklund, the Court held that the Department of Interior had no discretion to reject a coal lease application by a prospecting permittee who had satisfied the commercial quantities requirement of federal law--a requirement similar to the valuable deposit determination of 30 U.S.C. Section 211(b). In the instant case, there has been no such satisfaction of requirements. Instead, there has been a specific finding that the prior determinations of valuable deposits were based upon insufficient criteria and that a new determination under the new regulations was necessary. As such, petitioner has not demonstrated that it is presently entitled to mine for phosphate in the Osceola National Forest since no valuable deposit determination has been made. Without this determination and present entitlement to the leases, petitioner's interest in the classification of the water bodies within the Osceola National Forest is speculative, at best. A mere interest in a proposed rule cannot confer standing to challenge its validity. An immediate, nonspeculative and substantial effect is required to allow a person to challenge a proposed agency rule. It must be remembered that the challenged Rule does not prohibit phosphate mining in the Osceola National Forest. It simply reclassifies certain waters, thus affecting the degree of assurances required issuance of a discharge permit. Having no current property interest or present entitlement to mining leases in the Osceola National Forest, petitioner has no immediate or present interest of a substantial nature in the contents of any rules setting standards for the waters in said Forest. Petitioner has simply failed to demonstrate that if the rule were adopted, it would sustain any injury in fact. The rule may be challenged by petitioner after it takes effect if petitioner can illustrate that it is substantially affected by its contents. Petitioner failed to make such a showing in the instant proceeding, and has not demonstrated its standing to challenge proposed Rule 17-3.041(1)(i) or (4)(k), Florida Administrative Code.
The Issue =================================================================
Findings Of Fact Petitioner Davis applied for licensure as a professional geologist pursuant to the "grandfathering provision" in Section 492.105(2)(c), Florida Statutes. This provision exempts qualifying applicants from taking and passing the examination required of other applicants. The Board has stipulated that Petitioner Davis is in all respects qualified for licensure, except for the educational requirements contained in Section 492.105(1)(d)2., Florida Statutes. Petitioner Davis received a B.S. degree in 1969 and a M.S. degree in 1972 from the Department of Soils, Water and Engineering at the University of Arizona. His major for both degrees was in the area of agricultural engineering. Generally, this discipline integrates engineering and the plant and soil sciences. It is directed towards the creation of the proper environment for the optimum production of plants and animals. Petitioner's individualized education in the area included the study of hydrology, the soils, the geological processes and their relationship to crop production, and the utilization of water resources. Prior to hearing, the Board agreed that Petitioner's transcripts contain four courses of study which are clearly geological courses within the meaning of Section 492.105(1)(d)2., Florida Statutes. When the Board responded to the Requests for Admissions filed by Petitioner, they admitted all four courses were third or fourth year or graduate level courses in a university curricula. These admissions are given greater weight than the transcript legend which describes Physical Geology as a lower lever course. The four courses which are not in dispute are: Course Title Hours Physical Geology 3 Semester Hours Geology of Ground Water 3 Semester Hours Aquifer Mechanics 3 Semester Hours Development of Ground 3 Semester Hours Water Resources In order to meet the minimum educational requirements which would enable Petitioner Davis to qualify for licensure without examination, he must demonstrate that he completed 18 additional semester hours of geological courses, 12 of which must be at the third or fourth year or graduate level. Petitioner attended a two-part series of courses at the University of Arizona entitled "Physical Geography 3A" and "Physical Geography 3B", respectively. There were sequentially completed in the first and second semesters of the 1968-1969 school year. Petitioner successfully completed the two companion courses for a total of six semester hours of lower level credit. The textbook used in the two courses is entitled, "Introduction to Physical Geography." It was written by Arthur N. Strahler, a geologist who has training in geography. The Board did not give Petitioner Davis credit for these courses in its review of his transcripts because it was presumed that this particular course was more concerned with the economic and social implications of geography than physical geology. The Application Committee's familiarity with the author's textbook entitled "Physical Geography" tended to strongly support this presumption. The university catalog description of the two courses, together with Petitioner's testimony regarding course content and a detailed review of the textbook utilized, establish that the two lower division courses are "geological courses" which satisfy the educational requirement in Section 492.105(1)(d)2., Florida Statutes. The textbook emphasizes that this course focuses on the study of the earth's planetary zone in which most human beings have lived. Contrary to the presumption of the Application Committee, these courses did not deal with the economic and social implications of geography. Those topics were covered in a different two-part series of courses at the University of Arizona entitled "Economic Geography." During the first semester of 1968-1969 at the University of Arizona, Petitioner attended a course entitled "Structural Properties of Soil A CH 205", within the Department of Agricultural Chemistry and Soils. According to the university catalog, this course was identical to a course entitled "Hydrographic Properties of Soils HYDR 205", within the university's graduate programs in Hydrology and Water Resources Administration. A review of the course notes for this class, the catalog description and Petitioner's testimony regarding the course content all demonstrate the course was an upper level geological course which meets the educational requirements set forth in Section 492.105(1)(d)2., Florida Statutes. Petitioner successfully completed the course for three semester hours. During the time period in which the Petitioner took the course designated as both "Structural Properties of Soil ACH 205" and "Hydrographic Properties of Soils HYDR 205", the university had developed a number of different hydrology programs. A Masters of Science Degree with a major in hydrology was available in any of the following department's during this time period: Agricultural Chemistry and Soils, Agricultural Economics, Agricultural Engineering, Civil Engineering, Geology, Meteorology, and Watershed Management. Many of these graduate degree programs were interrelated. For example, one of the committee members on the Committee on Hydrology and Water Resources was an associate professor in the Geology Department. Another associate professor in the Geology Department taught one of the hydrology courses. Undergraduate programs at the institutions were developed in a way that allowed students from one department to directly enter into hydrology programs sponsored by another department. There was duplication in the teaching of the fundamentals of the earth sciences in many of the departments. This was frequently noted in the course descriptions in the university catalog. Petitioner successfully completed an upper level course in "Physical Climatology MEOR 221" in the second semester of the 1968-1969 school year for three semester hours of credit. Petitioner's recollection of course content, along with the university catalog description, reveal that the following matters were studied: heat and water balance of the earth's atmosphere and its application to problems of physical geography, agrometeorology, and hydrology with particular reference to arid regions. Although this physical climatology course was taught in a meteorology program, it is a geological course which meets the educational requirements of Section 492.105(1)(d)2., Florida Statutes. Petitioner Davis successfully completed an upper level or graduate level course entitled "Hydrology CE 223" at the University of Arizona for three semester hours during his work on his Masters Degree in the first semester of the 1971-1972 school year. The aforemantioned course was taught by a professor within the Department of Civil Engineering. The university, however, recognized the course was duplicated in a upper level or graduate course within an interdisciplinary hydrology program. The catalog noted that it was identical to "Hydrology I-HYDR 223." The text used for the course, along with Petitioner's recollection of the course, demonstrate that the course was primarily concerned with the elementary treatment and basic application of geophysics to major topics in hydrology, including rainfall, evaporation, groundwater and runoff. This hydrology course meets the educational requirement as an upper level geological course for the purpose of Section 492.105(1)(d)2., Florida Statutes. During the same first semester of 1971-1972, Petitioner completed a course identified as "Special Problems AEN 299." This was an independent study course which allowed the Petitioner to complete a research paper in an area of personal interest during his graduate studies. Petitioner studied the difference in sediment yields between brush-covered watersheds and grass-covered watersheds on semi-arid rangelands. Unit-source watersheds were selected to assure that the geological influences to be studied were representive of these rangelands in the area. Petitioner's testimony of the course content, coupled with the research paper he completed for credit in this course, demonstrate that the course was a geological course which meets the educational requirements of the statute. Petitioner received three semester hours of credit for the course in his graduate program. Although all of the other courses presented by Petitioner did have some geological content, they did not meet the statutory definition of a geological course. They were not predominantly geological in nature and content, according to the evidence presented. During the time Petitioner attended the University of Arizona, various Departments at the institution taught courses with identical content. This occurred even though these efforts were duplicative. In addition, various Departments interacted and developed interdisciplinary programs in the earth sciences. As a result, Petitioner's transcripts did not fully or accurately reveal that many of his courses were actually geological course.
Recommendation Based upon the foregoing, it is RECOMMENDED: The application of Phillip R. Davis for licensure as a professional geologist without examination under the grandfathering provisions of Section 492.105(2)(c), Florida Statutes, be granted. DONE and ENTERED this 2nd day of March, 1992, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1992. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-5808 Petitioner's proposed findings of fact related to the formal administrative hearing are found in paragraphs 1-10 and 27-111. These findings of fact are address as follows: 1.-5. Accepted. Rejected. Irrelevant. Accepted. See Conclusions of Law. Accepted. Accepted. Accepted. Accepted. See HO #3. Accepted. See HO #2. Accepted. See HO #2. Rejected. Irrelevant. Accepted. See HO #2. Accepted. Rejected. Irrelevant. Accepted. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #1 and #2. Accepted. Accepted. Accepted. Accepted. See Findings of Fact in 90-4085R. Accepted. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See preliminary statement. Rejected. See HO #2 and Statement of the Issue. Accepted. See HO #4. Accepted. See HO #4. Accepted. See HO #4. Accepted. See HO #4. Accepted. Rejected. Irrelevant. Accepted. Accepted. See HO #7. Accepted. See HO #9. Accepted. Accepted. Accepted. See HO#6-#9. Accepted. See HO #17. Accepted. See HO #19-#20. Accepted. Accepted. Accepted. See HO #19. Accepted. See HO #20. Accepted. Rejected. Contrary to fact. See HO #23. Rejected. Irrelevant. Burden on applicant not met. No rebuttal needed. Rejected. Contrary to fact. Accepted. See HO #10 and #12. Accepted. See HO #10. Accepted. Accepted. See HO #11. Accepted. Accepted. See HO #11. Accepted. See HO #14-#15. Accepted. See HO #15. Accepted. Accepted. Accepted. Accepted. See HO #16. Accepted. See HO # 21. Accepted. See HO #21-#22. Accepted. See HO #22. Accepted. Accepted. Accepted. Rejected. Contraty to fact. See HO # 23. Rejected. Irrelevant. Burden on applicant not met. No rebuttal needed. Accepted. Rejected. Contrary to fact. See HO #23. Accepted. Rejected. Contrary to fact. See HO #23. Rejected. Irrelevant. Burden on applicant not met. No rebuttal needed. Accepted. Rejected. Contrary to fact. See HO #23. Accepted. Rejected. Contrary to fact. See HO #23. Rejected. Irrelevant. Burden on applicant not met. No rebuttal needed. Accepted. Rejected. Contrary to fact. See HO #23. Accepted. See HO #24. Accepted. Rejected. Contrary to fact. He has education in both. Rejected. Irrelevant to issue in dispute. See HO #2. Rejected. Irrelevant to issues. See HO #2. Rejected. Weight and sufficiency issue as opposed to credibility issue. Rejected. Weight and sufficiency issue as opposed to credibility issue. Rejected. Weight and sufficiency issue as opposed to credibility issue. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #3. Rejected. Contrary to fact. :Survey Soil and Water Eng AGE" is a lower level course that could not be used. Otherwise accepted. Rejected. Redundant. Accepted. Rejected. In this case the Board used the rule, so the pre-rule policy is irrelevant. Accepted. Accepted. Rejected. Contrary to fact. Petitioner has an education in both. Rejected. Contrary to fact. Applies to licensure with examination. Rejected. Contrary to fact. Rule invalidated for licensure without examination. Accepted. See HO #23. Accepted. Rejected. Contrary to fact. COPIES FURNISHED: DAVID M CALDEVILLA ESQ de la PARTE & GILBERT 705 E KENNEDY BLVD PO BOX 172537 TAMPA FL 33672 0357 ARTHUR R WIEDINGER ESQ ASST ATTORNEY GENERAL DEPT OF LEGAL AFFAIRS SUITE 1603 - THE CAPITOL TALLAHASSEE FL 32399 1050 ANGEL GONZALEZ - EXECUTIVE DIRECTOR BOARD OF PROFESSIONAL GEOLOGISTS NORTHWOOD CENTRE - SUITE 60 1940 N MONROE ST TALLAHASSEE FL 32399 0794 JACK McRAY ESQ - GENERAL COUNSEL DEPT OF PROFESSIONAL REGULATION NORTHWOOD CENTRE - SUITE 60 1940 N MONROE ST TALLAHASSEE FL 32399 0792
The Issue Whether the Respondent violated Florida law regulating the manner in which pesticide chemicals are to be utilized and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the duty to prosecute administrative complaints against operators, applicators, and licensed pest control businesses pursuant to Section 482.011, et seq., Florida Statutes. Respondent is at all relevant times a licensed operator and applicator, subject to Petitioner's regulatory jurisdiction. On or about February 21, 2004, Respondent was performing preconstruction termite treatment services at a job site at 7750 Okeechobee Boulevard in West Palm Beach, Florida, utilizing a pesticide known as Dursban TC. Label instructions for Dursban TC provide that a 0.5 percent concentration be utilized for preconstruction treatment for the prevention of subterranean termites. Baker admits he did not follow the label instruction; rather, the concentration of pesticide was less than one tenth of the 0.5 percent concentration provided for on the label instructions as regards the pre-construction soil treatment for subterranean termites. Florida Administrative Code Rule 5E-14.106(6) states in pertinent part: Pesticides used for treatment for the prevention of subterranean termites for new construction shall be applied at the specific amounts, concentration, and treatment areas designated by the label. Baker defends his failure to follow the label instructions on the grounds that such instructions call for a higher concentration of pesticide than is actually necessary to accomplish an effective termite treatment. Even if, as Baker contends, the label instructions suggest a higher concentration of pesticide than is actually necessary to accomplish an effective termite treatment, that is not grounds for him, or Petitioner, to disregard the Rule mandating that label instructions be followed. Pesticide usage is highly regulated due to the potential of such chemicals to impact public health, safety and welfare. § 482.011, et seq., Fla. Stat. Changes in the regulations must come from the legislature, and cannot be made on an ad hoc basis by individual operators.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a final order be entered assessing a fine of $400.00 against Respondent for violation of Florida Administrative Code Rule 5E-14.106 (6). DONE AND ENTERED this 5th day of August, 2005, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 5th day of August, 2005. COPIES FURNISHED: Howard J. Hochman, Esquire Law Offices of Howard J. Hochman 7695 Southwest 104th Street Suite 210 Miami, Florida 33156 David W. Young, Esquire Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Brenda D Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture and Consumer Services 407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32399-0800 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
The Issue Whether Petitioner, White Rock Quarries (“White Rock”), is entitled to an award of attorney’s fees to be paid by Respondents, Dorothy Brown-Alfaro and Amilcar Alfaro (“Respondents” or “Ms. Alfaro”), pursuant to section 57.105, Florida Statutes, and an award of attorney’s fees and taxable costs to be paid by Respondents pursuant to section 552.40(9), Florida Statutes; and, if so, the amount of attorney’s fees and taxable costs to which White Rock is entitled.
Findings Of Fact White Rock engages in construction materials mining activities in Miami-Dade County, Florida. Specifically, White Rock utilizes explosives to procure construction materials (i.e., limestone) from quarries that are located in northwest Miami-Dade County, Florida. Respondents reside in a single-family, one-story home located at 14699 Southwest 47th Street, Miramar, Broward County, Florida 33027. Respondents are the third owners of the home, which was built in 1981. Respondents have resided in the home since 1998. The home is approximately 3,000 square feet “under air,” and is composed of concrete block with stucco finishes, a shallow slab-on-grade foundation system, wood-framed interior walls, and ceramic tile flooring. The subject quarries are located within various geographic areas identified by different sections in close proximity to Respondents’ home. Of particular relevance to the instant matter are sections 7, 6, and 4/5. Section 7 is approximately 2.6 or 2.7 miles from Respondents’ home. Section 6 is approximately 2.3 or 2.4 miles from Respondents’ home. Section 4/5 is approximately 1.6 miles from Respondents’ home.1/ In the underlying case, Respondents asserted that White Rock’s quarrying activities caused damages to their home. Respondents alleged damages centered on “cracks” that exist throughout the home--specifically, cracks throughout the tile flooring inside the home; cracks on the cement flooring of the garage; cracks in the interior and exterior walls and ceilings; cracks in the semi-circular, stamp-concrete driveway and patio; and cracks around the surface of the windows. It is undisputed that cracks exist throughout Respondents’ home and that Respondents’ home is damaged because of the cracks. However, the issues to be determined in the underlying proceeding were whether the cracks were caused by White Rock’s blasting activities, and, if so, the amount Respondents should be compensated for the damages. Section 552.40(1) provides, in pertinent part, that: A person may initiate an administrative proceeding to recover damages resulting from the use of explosives in connection with construction mining materials mining activities by filing a petition with the Division of Administrative Hearings by electronic means through the division’s website on a form provided by it . . . . Pursuant to section 552.40(2)(c) and (d), the petition must include: The approximate time, date, and place of the use of explosives which is alleged to have resulted in damage to the petitioner; and A description of the damage caused and the amount sought for recovery. On December 14, 2015, Respondents’ former counsel filed an Amended Petition Under the Florida Construction Materials Mining Activities Administrative Recovery Act. In the amended petition prepared and filed by Respondents’ former counsel pursuant to sections 552.40(1) and (2), Respondents claimed they were entitled to the following items of damages caused by White Rock’s blasting activities: Floor ($24,000) Foundation ($100,000) Walls ($50,000) Ceiling ($20,000) Patio ($50,000) Driveway ($75,000) Windows ($45,000)2/ The final hearing in the underlying proceeding lasted two days. At that hearing, Respondent Dorothy Brown-Alfaro (who appeared pro se at the final hearing), presented photographs and a home inspection report showing cracks throughout the home. She described new, worsening, and expanding cracks throughout the home resulting from White Rock’s blasting activities. In addition, Ms. Alfaro submitted into evidence a blasting log, which documented the date, time, and intensity of White Rock’s ongoing blasting activities since 1999 Respondents claimed they felt at their home. The blasting log was also an exhibit to Respondents’ amended petition. At the hearing, Ms. Alfaro testified to White Rock’s frequent blasting and the effects on her home from the blasts. According to Ms. Alfaro, when White Rock’s blasting activities occur, the house “sways,” “everything shakes,” and “the entire structure of my house moves.” According to Ms. Alfaro, “when it shakes, my ceiling, my roof, my walls, my floor, everything shakes.” She testified that items fall off the shelves and she described the feeling from the blasts as a “vibration similar to an earthquake.” Ms. Alfaro presented the additional testimony of Barbara Hagan, Paul Ingelmo, and Ismailia Rashid. Mr. Ingelmo is a structural engineer who performed a visual inspection of Respondents’ residence. Ms. Rashid is a general and roofing contractor. Neither Mr. Ingelmo, Ms. Rashid, nor Ms. Hagan could opine that the damages to Respondents’ home were caused by White Rock’s blasting activities. Ms. Alfaro is an electrical contractor. She is not a licensed general contractor or structural engineer. At hearing, Ms. Alfaro conceded that she does not have experience as a general contractor or seismologist. She has not had any training in seismology or blasting activities. The undersigned found Ms. Alfaro’s testimony regarding the purported cause of the cracks not to be credited or persuasive. Ms. Alfaro regularly provides construction estimates in her business. Ms. Alfaro testified that the damages she requested in the amended petition were based upon her estimate of the repair costs she would incur to correct the damages caused by White Rock’s blasting activities. She testified, without objection, that she obtained material costs and calculated the amount of materials needed (i.e. per cubic yard of concrete and drywall) and labor to complete the repairs. In response to the evidence presented by Ms. Alfaro at the hearing, White Rock presented the testimony of Jeffrey A. Straw, a seismologist; David L. Teasdale, a civil structural engineer; and Michael Schraeger, a general contractor and building inspector. As a seismologist, Mr. Straw was responsible for monitoring the impacts and vibration from White Rock’s blasting activities and analyzing their effects on structures. At the hearing, he described the concept of peak particle velocity (“PPV”), the speed at which a particle of ground oscillates as the vibration wave moves through the ground following a blast. Mr. Straw testified that according to seismographs located within the vicinity of Respondents’ home, at no time have any of White Rock’s blasting activities reached or exceeded the PPV limit of 0.5 inch per second established by the state of Florida. Mr. Straw also visited Respondents’ home twice: in April 2006 and January 2016. On both occasions, Mr. Straw brought a camera and notepad with him to catalog the defects identified by Respondents. Mr. Straw took extensive and comprehensive photographs detailing the cracks throughout Respondents’ home and driveway. Mr. Straw also testified that 90 percent of the alleged defects he observed in 2016 were items that he also observed in some format in 2006.3/ While at Respondents’ home in January 2016, Mr. Straw experienced the effects of a blast. He described it as “[r]elatively minor based on blasts that I felt,” and indicated the blast lasted about three to five seconds at most. However, Mr. Straw further testified that he could feel the impact of the blast under his feet, and he could hear it, “there was some general vibration of the structure,” and some “dish rattling.” Mr. Teasdale is extensively familiar with seismographs and has extensive experience installing and using them. At the hearing, he was accepted by the undersigned as an expert in structural behavior from ground motion and normal service loads, the influence of construction practices and environmental conditions on building features, soils and hardscape, the causes and conditions documented at Respondents’ residence, and lot features including the suitability of existing safe blasting standards in the state of Florida. Mr. Teasdale explained the substantial differences between an earthquake and quarry blasting. Mr. Teasdale testified that for blasting to cause damage to a structure, distortion must occur. According to Mr. Teasdale, distortion occurs where the foundation of a structure is accelerated laterally and causes the under part of the building to lag in response, which causes the building to shift back and forth and mimic a parallelogram shape. He explained that when distortion occurs, cracks will emanate from the corner of the walls and that those cracks will be mirrored on the opposite walls (inside and outside the structure). Mr. Teasdale testified there was no damage to the foundation of Respondents’ home, and the foundation and floor of a home would not experience distortion at 0.5 PPV or below because those limits are too low to produce the energy necessary to cause a structure to become mobilized. According to Mr. Teasdale, Respondents’ home exhibited a variety of horizontal and vertical cracks and separations in the finishes, which are typical of environmental stresses in those materials. Mr. Teasdale also testified that distortion causes diagonal cracks, while thermal environmental stresses cause cracks vertically and horizontally. He explained that cracks caused by environmental conditions do not correlate on the inside and outside, while cracks caused by distortion do correlate on the inside and outside. He emphasized that the absence of corresponding cracks on the inside and outside of the structure generally precludes blasting as the cause of damages. Mr. Teasdale explained that from the moment the concrete is cast, it begins to shrink and develop cracks. Mr. Teasdale further explained that stucco, which is essentially the same material as concrete, is also prone to cracks due to normal environmental conditions. Based on his review and analysis of Respondents’ home, Mr. Teasdale concluded that he would exclude blasting to a reasonable degree of scientific certainty as the cause of damages to Respondents’ home. Mr. Schraeger has been licensed as a general contractor for 22 years and specializes in repairs, remodeling, and renovations of commercial and residential structures. He has 20 years of experience performing inspections of buildings relating to determination of material, construction failure, and defects. At the hearing, Mr. Schraeger was accepted by the undersigned as an expert in construction practices and environmental effects on materials and structures. Mr. Schraeger inspected Respondents’ home in 2006 and 2016. He testified that 90 to 95 percent of the alleged defects he observed in the home in 2016 existed when he inspected the home in 2006. Mr. Schraeger testified that the cracks that he observed on the tile floor inside Respondents’ home are very typical in a South Florida home because concrete typically cracks within all concrete structures. These types of cracks can be caused by poor installation of the tile or shrinkage of the monolithic slab over time. He opined there was no evidence of foundation damage. Mr. Schraeger further testified that in his professional opinion, some of the cracks in Respondents’ home are the result of poor construction practices. For example, he explained that most of the cracks in the interior of the home are due to poor construction practices because of the use of an inappropriate method for finishing the joints in the drywall. During his 2016 inspection, Mr. Schraeger observed tape on some of the joints, which either had no joint compound under them, or the tape was applied after the compound started to dry, causing a bond failure. Some of the cracks generating from the corners of openings appeared to be from improperly secured corner bead. During his 2016 inspection, Mr. Schraeger also observed a crack in the master bedroom approximately eight feet in length, which appeared to be a joint in the drywall. This was apparent to Mr. Schraeger because the crack was visible on both sides of the joint tape, which had failed. According to Mr. Schraeger, the cause of this failure was moisture from a roof leak. Staining due to moisture on the ceiling in the area and a repair of the roof above this area indicated a previous leak. Notably, other areas of the home indicated roof leaks, including stains on the ceiling of the office area and staining around the skylight in the hallway. Mr. Schraeger further testified that the patio tile and driveway lack sufficient control joints, thereby making the stamped-concrete driveway and patio prone to crack. Mr. Schraeger also identified issues of poor maintenance by Respondents. For example, he noted that the caulking around the windows was brittle and almost nonexistent. At the hearing, Mrs. Alfaro acknowledged that in the 17 years she has owned the home, the windows have never been re-caulked. According to Mr. Schraeger, several cracks were observed on the stucco exterior walls of the home. With the exception of a severe crack on the wing wall on the rear of the patio, he opined that all of the cracks in the exterior walls of the home were attributed to common aesthetic cracks caused by the lack of control joints, dissimilar materials, bond failure, and improper maintenance. According to Mr. Schraeger, the crack on the wing wall of the patio, which ran along the bottom of a large tie beam, was attributable to poor construction methods. At the hearing, Mr. Schraeger disputed Ms. Alfaro’s cost of repair testimony. However, Mr. Schraeger was not asked to give an expert opinion regarding the amount of damages, and he provided only “ballpark” or “rough” estimates of the cost of repair. For example, Mr. Schraeger testified that the cost to repair the flooring would be “approximately $11,000.”4/ As to the foundation, he estimated the cost to be $0.00 because he found no damage. As to the walls, Mr. Schraeger estimated a figure of $16,000. As to the ceiling, Mr. Schraeger estimated a figure of $5,000. As to the patio, Mr. Schraeger estimated a figure “well within the high end of six thousand.” As to the driveway, Mr. Schraeger estimated a range between “roughly” $17,000 and $20,000--the high end of the range resulting from “material fluctuation” construction costs. As to the windows, Mr. Schraeger estimated $12,000. Clearly, Mr. Schraeger acknowledged there are actual damages throughout much of the home, and there are actual costs associated with the repair of the damages. That the parties disagreed as to the amount of damages as to each item of alleged damages does not mean that the amount of damages claimed was unsupported by the material facts necessary to establish the claim. In sum, based on the evidence adduced at the hearing, the undersigned found that Respondents failed to prove by a preponderance of the evidence that the damages to their home were caused by White Rock’s blasting activities. Rather, the preponderance of the evidence presented at hearing established that the damages to Respondents’ home were not caused by White Rock’s blasting activities. In reaching this conclusion, the undersigned credited and found persuasive the testimony of Mr. Straw, Mr. Teasdale, and Mr. Schraeger. Although the undersigned was not persuaded in the underlying case by the evidence presented by Respondents, this does not mean that Respondents’ claims were not supported by the material facts necessary to establish the claims. There was competent, substantial evidence introduced by Respondents at hearing showing that: (1) Respondents’ home was in close proximity to White Rock’s frequent blasting activities; (2) when the blasting occurs, the house “sways,” “everything shakes,” “the entire structure of [the] house moves,” items fall off the shelf, and Ms. Alfaro feels a vibration similar to an earthquake; and (3) there are cracks throughout the home--some of the cracks are new, worsening, and have expanded as a result of White Rock’s frequent blasting activities. White Rock is the prevailing party in Dorothy Brown- Alfaro and Amilcar Alfaro v. White Rock Quarries, DOAH Case No. 15-6014CM. However, White Rock has failed to establish it is entitled to an award of attorneys’ fees pursuant to sections 57.105 and 552.40(9). On page 16 of its proposed final order, White Rock also claims it is entitled to recover taxable costs under section 552.40(9), totaling $9,287, as the prevailing party in the underlying case. The amount of taxable costs claimed is based on Exhibits 12A through 12G. In Respondents’ Proposed Final Order, Respondents do not dispute that White Rock is entitled to “recover costs totaling $9,287.15 (all the costs claimed except for the cost of lunches totaling $62.65) as costs reasonably necessary to defend the claims asserted in the underlying case.” The undersigned has examined White Rock’s Exhibits 12A through 12G, which constitute the universe of taxable costs sought, and the total of the costs is $9,287. There is no cost of lunches included within Exhibits 12A through 12G. All of the costs identified in Exhibits 12A through 12G are taxable costs or incidental administrative costs directly associated with the case, and therefore, are recoverable under section 552.40.
Findings Of Fact Petitioner herein, Kristina V. Tignor, took the Professional Engineers Examination for the State of Florida in Orlando on April 9 and 10, 1987. On July 22, 1987 she was advised by the Department of Professional Regulation's Office of Examination Services that she had failed the examination and was given a cummulative score of principles and practice of 69.1 percent. In her initial request for review and reconsideration, Petitioner objected to the points assigned to her solutions for three problems on the test, Numbers 425, 421, and 124. She contended that as a working engineer, certain criteria and assumptions must be made in approaching any engineering problem and, because the portion of the examination in issue is graded subjectively, her answered should be reconsidered and evaluated in that light. At the hearing, Petitioner contested only the grading of questions number 124 and 421, thereby accepting the grade given for question 425. With regard to Question 124, Ms. Tignor was awarded a score of 5 on her solution to this problem. The National Council of Engineering Examiners, in its Standard Scoring Plan Outline awards a "qualified" evaluation to scores from 10 down to 6 on this question. Scores from 5 to 0 are rated, "unqualified." A score of 5 indicates the applicant has failed to demonstrate adequate knowledge in one aspect of one category. Specifically, a rating of 5 in this question indicates that the examinee displayed an inadequate knowledge of weight/volume and concrete mix design. Her computations were displayed and an incomplete or erroneous solution was arrived at which gave a generally unrealistic result. Dr. Bruce A. Suprenant a civil engineer registered in four states and who teaches engineering at the University of South Florida, reviewed the question, the Petitioner's solution, the solution proposed by the examiners, and the grading scheme for this problem and found a number of illogical items in Petitioner's solution which, to him, were difficult to understand. He found several items which had no basis and which were possibly assumed. As to Part a of Petitioner's answer, a mixture of answers, (correction for moisture), which should have been in Part b, was located in Part a. As to density, the value used by Petitioner does not appear to be reasonable based on information provided in the problem. In Dr. Suprenant's opinion, there are at least three approaches to this problem. One is the water/cement ration method. Another is the weight method. The third is the absolute volume method. The water/cement ratio method would be difficult to apply here and neither Petitioner nor the examiners used it. As to the weight method, much the same problem exists. There is insufficient information provided to satisfactorily apply this method and while the examiners did not use it, Petitioner did. Petitioner's answer has a correction for moisture in the absolute volume method on the first page of the solution form at the top. The calculations by Petitioner are assumed information not known, (volume). In addition the correction for moisture in the second part of page one is included on the top of page two. It is not a part of the solution for subpart a and should not be there. Petitioner used 150 pounds per cubic foot for concrete density in her solution and this choice is not explained. Most publications utilized by engineers suggest using tables which were not provided to the examinees and it is, therefore, illogical to assume concrete density with no history for that assumption. Petitioner's answer of 5.41 cubic yards is only slightly off the suggested answer of 5.44 cubic yards but the fact that the answers are close does not justify her assumption. It might well not come so close in other cases. As to Part b of the question calling for the water/cement ratio, the corrections for moisture of fine and coarse aggregate on page one are acceptable. On the second page, a problem arises in when the correction for moisture should decrease. Petitioner got the right factor but applied it in the wrong manner. As a result, her answer to Part b of the examination question is wrong. Her answer was 4.40 as opposed to the correct answer of 4.34. This small degree of error can be attributed to the smallness of the amount in question. Were the amounts greater, the error would be greater. As to part c of the question, which deals with the cement factor in a yard of concrete, Petitioner's approach of dividing sacks of cubic yards is correct, but the cubic yard content was determined from Part a of the question, and Dr. Suprenant does not agree with how she got her solution. He therefore questions her carryover. The standard weight of a sack of concrete is 94 pounds. The individual grading Petitioner's response to Question 124 indicates she displayed inadequate knowledge and reached a solution which gives "unrealistic results." Dr. Suprenant agrees, contending that Petitioner's performance in regard to this question indicates inadequate knowledge of weight/volume relationship. She made inadequate assumptions in formulating her answer to the question. The fact that in this problem she arrived at a solution close to the correct one does not indicate that in other problems, she would achieve the same closeness using the same procedure. In his opinion, Petitioner showed some confusion regarding the basis for solving this problem and Dr. Suprenant believes that a grade of 5 as awarded by the examiner is correct. Petitioner questioned the fact that the various technical weights and volumes, such as 94 pounds in a sack of concrete, 8.33 pounds for a gallon of water, and 27 cubic feet in a cubic yard do not appear in the problem statement. This, in the opinion of Dr. Suprenant, compounds the gravity of Petitioner's deficiency. They are routine "givens" generally accepted in the practice by engineers and it would be difficult to assume that anyone familiar with the practice of engineering would use different "givens" for these specifics. Petitioner's employer, Mr. Bishop, himself a registered civil engineer in Florida since 1958, also reviewed Petitioner's solution to Question 124. He admits that on the first page of the answer sheet, Petitioner began solving the problem in an inappropriate way. Her calculations for moisture content were correct, however. On the second paged the correction factor was put in with the wrong sign and the aggregate was given the wrong factor. As a result, the answer was off. In his practice, however, the error committed by Petitioner in these regards is both minimal and acceptable. Her choice of 150 pounds per square foot is reasonable and produced a close result, and while it is true that if the project were of a greater scale, the error might be significant for a test question, as here, the error, in his opinion, is insignificant. He feels much the same way regarding the error in Part c of the examination question. While the factors used by petitioner were wrong, the process used was correct and the answer was not unreasonably incorrect for a test solution. In an examination situation, the calculations are not being done on a continuous basis, and he feels the grade of 5 awarded is unduly harsh since the error was numerical rather than operational. In his opinion, a more reasonable grade would have been a 6 or 7. Petitioner began her solution to this problem by using one similar to that used by the examiners in their publications. Shortly, however, she realized she would not get the answer she needed by doing so and abandoned her solution. She forgot to cross it out, however, and now recognizes she should have done so. She thereafter began to accomplish a series of new calculations on the first page of the answer sheet but did not necessarily utilize that data for her solution to Part a. She admits she made an error in calculation for moisture on the second page. In that calculation, she used the study manual and admits now that she should have cited the figure she used. As to Parts b and c, her use of some figures from Part a may have thrown her answer off somewhat. However, the 5 awarded her, indicating her solution was unrealistic, is, in her opinion unfair as she considers her answer to be quite realistic. The problem did not state what solution method to use and she feels her use of givens from recognized manuals such as the 150 pounds, should not be held against her. 94 pounds for a sack of cement used by the grader was also not given and her use of other accepted numbers should not, she contends, be held against her. Petitioner believes a grade of 7 would more accurately describe the quality of her answer. A 7 means that the examinee obtained an appropriate solution but chose a less than optimum approach. The solution is, therefore, awkward but nonetheless resonable. Ms. Tignor believes that while her approach may have been awkward, she achieved reasonable solution demonstrated by the fact that it was only slightly off the correct figure. Therefore, she believes a grade of 6 would be appropriate. This examination was an open book examination and Petitioner had her manuals with her. She could have easily determined the appropriate weights an "givens" from these manuals without choosing those she used. Ms. Tignor's conclusions that her results are realistic are contradicted by the Board's expert. Realistic results are, in engineering practice, not only the figure reached but also the method used in arriving at that figure. Here, though Petitioner's results are close, the approach utilized in arriving at her solution is unrealistic. Her approach showed an inadequate knowledge of weight/volume and calculations. Consequently it is found the grade is valid and was not arbitrarily assigned. According to the Standard Scoring Plan Outline, each score from 10 through 6 has an indispensable criteria that all categories must be satisfied. Since Ms. Tignor's examination response did not satisfy all categories, the best she can be given is a 5 and that award appears to be justified by the evidence presented. Question 421 was a four part drainage problem. Petitioner used as a part of her solution calculations based on a 100 year storm and this was determined by the examiners to be inappropriate. Ms. Tignor was awarded a grade of 8 and contends she was not given appropriate credit. She relates that even Mr. Smith, the Executive Director of the Board of Professional Engineers, advised her she may not have been given full credit for her answer. She was given full credit for Part a but lost two points for part c which included a calculation error to which Petitioner admits. She contends however, it was so minor, only one point should have been deducted. Were Petitioner to receive an additional one point on this question, she would pass the examination which she failed by only one point. However, this issue must be resolved on the basis of lawfully admitted evidence and Mr. Smith's comment, being unsupported hearsay evidence, cannot itself sustain the rasing of the grade. The Standard Scoring Plan Outline for this question reflects that to receive an 8, the examinee must demonstrate that all categories are satisfied, that errors are attributable to misread tables or calculating devices, and that errors would be corrected by routine checking. The results must be reasonable if not correct. For a 9, the examinee must demonstrate that all categories are satisfied; that a correct solution is arrived at but the examinee has been excessively conservative in the choice of working values; and that examinee's presentation is lacking in completeness or equations diagrams or orderly steps in solution, etc. Subqualifications for a 9 indicates that the answer is correct but that the organization of the solution is not logical. One error in calculation in any of the Parts from a to d, which does not affect the other parts of the solution, is acceptable. Mr. Kenneth Weldon, the Assistant State Drainage Engineer for the Department of Transportation, an expert in the area of drainage to which this problem relates, reviewed the question and the Petitioner's answer thereto and would award a grade of 8 to her answer. He found various numerical mathematical errors which led to the wrong solution. In addition, Petitioner made various assumptions that, though supposedly supported, were, he felt, in error through her misinterpretation. In general, none of the actual solutions she arrived at were correct. Specifically, that portion of the problem to determine the cross sectional area of the waterway for establishing normal depth flow was done incorrectly. Because the Petitioner used incorrect equations throughout the problem, the depth flow computed is high. Petitioner did no analysis to determine whether or not any of the several situations relating to flow control were pertinent. Mr. Weldon initially felt Petitioner's answer to the question merited a grade of 6. This means that the examinee knew all the proper steps but failed to interpret some of the criteria properly. He could not award her a grade of 9 which would indicate all categories were satisfied and the solution was correct, if conservative. Petitioner's solutions were incorrect. He subsequently changed his award to an 8, however, on the basis that the Petitioner's errors were attributable to a misread table or calculating device and would be corrected by routine checking. The result was reasonable, though not correct. Mr. Weldon did not like this question even though he believed it appropriate for a one-hour exam. As written, it involves establishing and making judgements beyond what someone minimally competent would be expected to do. It requires materials that are beyond what are normally available to someone taking the exam. However, Petitioner failed to make proper provision to protect herself in a case where the question is inappropriate or incomplete. If she felt something was wrong with the question, she should have clearly stated the assumption she was making to solve the problem. This was her responsibility and she failed to do so. In Mr. Weldon's opinion, Petitioner's answer might merit a grade slightly higher but not significantly higher. His reasoning is that Petitioner misinterpreted the criteria she stated for writing the problem. Her comment that the Department of Transportation uses 100 year storm criteria was incorrect even though that statement is made in outdated Department of Transportation publications. The basis for her answer is not well established or correct, or based on engineering calculations or judgement, and at best he could award no more than an 8.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered affirming the score awarded to Petitioner on questions 124 and 421, respectively, of the Civil Engineering Examination administered to her in April, 1987. RECOMMENDED this 10th day of June, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 10th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5110 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. For the Petitioner None For the Respondent Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated except for the characterization of several assumptions as guesses. No evidence exists to support such a characterization even though they are incorrect. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. COPIES FURNISHED: Kristina V. Tignor, pro se 2160 North Oval Drive Sarasota, Florida 34239 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Jr. Executive Director DPR, Board of Professional Engineers 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue for determination is whether Petitioner is eligible for licensure by the Board of Professional Engineers.
Findings Of Fact In October 1997, Jamal Jamilzadeh (Petitioner) took the Principles and Practice part of the Environmental Engineering Examination (Examination). The minimum score required to pass the Examination was The Department of Business and Professional Regulation, Board of Professional Engineers (Respondent) notified Petitioner that he had not successfully completed the Examination, having received a score of 68. The Examination is a national examination and is graded by national examiners, i. e., the National Council of Examiners for Engineering and Surveying (NCEES). A scoring plan is used for grading each question. Each person sitting for the Examination is referred to as a candidate. By letter dated April 8, 1998, Petitioner notified Respondent that he was challenging questions numbered 320 and 323 on the Examination. In his letter, Petitioner indicated the basis for the correctness of his answers to both questions. For question numbered 323, Petitioner included together with his letter a supporting statement, regarding the correctness of his answer, from a Certified Environmental Trainer (CET). At hearing, Petitioner withdrew his challenge to question numbered 320. Only question numbered 323 was now being challenged by Petitioner. For question numbered 323, the highest score achievable was 10. Petitioner received a score of 2. Petitioner's Examination was returned to the NCEES for review and rescoring. NCEES' rescorer used the same scoring plan that was used for the Examination. NCEES' rescorer had, for review and consideration, Petitioner's letter dated April 8, 1998, including the supporting statement of Petitioner's CET. NCEES' rescorer did not have access to and had no knowledge of Petitioner's original score for question numbered 323. NCEES' rescorer recommended that Petitioner receive no additional points for question numbered 323. Question numbered 323 contains three parts regarding an underground storage tank. The first part required a candidate to justify whether the underground storage tank was a confined space. NCEES' rescorer recommended that Petitioner receive full credit for this part. At hearing Petitioner's CET agreed that Petitioner should receive full credit for the first part. However, Respondent's expert disagreed and opined that Petitioner should not receive full credit because Petitioner provided only one of the three necessary requirements for a correct response. Petitioner correctly answered the first part.2 Petitioner should receive full credit for the first part. The second part required a candidate to list seven confined space program elements for initial entry and inspection of the underground storage tank. NCEES' rescorer found Petitioner's answer to be partially correct in that Petitioner failed to address three major procedural elements. At hearing, Petitioner's CET opined that Petitioner addressed five of the seven elements. However, Respondent's expert opined that, even though Petitioner addressed six elements, the elements addressed by Petitioner were different variations of two of the seven elements. Petitioner correctly addressed five of the seven elements.3 Petitioner should receive additional credit for part two. The third part required a candidate to specify the correct type of respiratory protection and to justify the answer. In reviewing this part, NCEES' rescorer also used the caveats or conditions specified in the supporting statement of Petitioner's CET, which was included with Petitioner's letter dated April 8, 1998. NCEES' rescorer found Petitioner's answer to be incorrect in that Petitioner failed to completely justify his answer. At hearing, Petitioner's CET opined that Petitioner's answer contained the concept, the intent, and the basis needed, which showed that Petitioner had the knowledge to answer the question presented, but that Petitioner's answer was not as detailed as it could or should have been. Respondent's expert opined that Petitioner failed to reference any monitoring with respect to the use of an air purifying respirator. Petitioner's CET agreed that monitoring was required but opined that monitoring was contained in Petitioner's answer. Petitioner failed to completely justify his answer in part three.4 Petitioner should receive no additional credit for part three. Petitioner's answers were not arbitrarily or capriciously graded. The grading process was not devoid of logic and reason, except for part two of question numbered 323.5 The scoring plan was properly used. The evidence presented was insufficient to warrant additional credit to Petitioner on question numbered 323. According to the scoring plan, Petitioner is entitled to 2 additional points, bringing his total score to 4 for question number 323. Petitioner's score on the Examination should be 70. Petitioner has obtained the minimum score required to pass the Examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Board of Professional Engineers enter a final order finding Jamal Jamilzadeh eligible for licensure. DONE AND ENTERED this 30th day of April, 1999, 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 (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 30th day of April, 1999.
Findings Of Fact In 1987, the Respondent DOT began its review of the public roads within Glades County in order to assign maintenance and jurisdictional responsibility in accordance with the current functional classification of each road. By law, the DOT is required to conduct such a review every five years. Section 05040 of State Road 78 is located within the unincorporated area of Glades County. This paved, two-lane road segment is 14.8 miles in length, and predominantly runs in an east-west direction. Approximately two miles of the eastern portion veers to the north, where the segment then connects with State Road 25 (U.S. Highway 27). The western terminus of this road segment adjoins State Road 29, and the eastern terminus as mentioned previously, adjoins State Road 25 (U.S. Highway 27). There is a radical change in direction at both ends where the segment connects with the two adjacent roads. At the western terminus, State Road 29 runs in a southwesterly to northeasterly direction. The southwesterly portion of State Road 29 runs in a southwesterly to northeasterly direction. The southwesterly portion of State Road 29 enters into Hendry County and extends to LaBelle, the county seat. At the eastern terminus, State Road 25 (U.S. Highway 27) runs for approximately five miles before it reconnects with another portion of State Road 78 which runs in a northeasterly direction around the border of Lake Okeechobee into Okeechobee County, and onto the City of Okeechobee, the county seat. Through the use of approximately four miles of the southwesterly portion of State Road 29 and approximately five miles of the easterly portion of State Road 25 (U.S. Highway 27), State Road 78 becomes a transportation corridor which connects Hendry County, Glades County, and Okeechobee County. This corridor is used by members of the Gulf Citrus Growers Association in Hendry County to transport citrus to market in other parts of the state. State Road 29 and State Road 25 (U.S. Highway 27) are functionally classified as arterial roads on the state highway system. During the functional classification evaluations within Glades County, Section 05040 of State Road 78 was reviewed by DOT. As part of the process, an inventory worksheet was used to determine how the road would be classified under the current scoring system. A Rural Arterial Inventory Worksheet (Respondent's Exhibit 15) was used to determine the roadway's System Attribute Score (SAS). As part of the evaluation process, the system element coefficient must be located within Table Number 4 of Chapter 14-12, Florida Administrative Code. The Administrator of Transportation Data for District 1 correctly determined that the system element coefficient was 5, and the rural element number was 12. The first attribute reviewed on the worksheet in order to obtain the SAS was the Traffic Factor. Under the definitions found in Table 1 of Chapter 14-12, Florida Administrative Code, the Traffic Factor is calculated by multiplying the Average Daily Traffic Count by the county's normalizing coefficient Tpd of 1.73. Again, the administrator correctly assessed the value of 2,782 on the worksheet. Usually, a score below 3,000 under the Traffic Factor results in an evaluation score of "zero" on the Rural Arterial Inventory Worksheet. However, Table Number 1 of Chapter 14-12, Florida Administrative Code, notes that when 50% of traffic volume is non-local traffic, a score of "one" is placed on the worksheet instead of a "zero." Competent and credible testimony presented at hearing from local citizens, who had the opportunity to know the composition of the traffic on the road segment, revealed that a relatively small percentage of Section 05040 of State Road 78 traffic was local. The majority of the traffic was comprised of out-of-county motorists. Based upon this testimony, the Traffic Factor score on the worksheet should be changed from "zero" to "one." The second attribute reviewed on the worksheet was the Access Factor. This score is calculated by dividing the average daily traffic (ADT) by the number of access points per mile. Instead of using available information with the DOT or asking for information from local authorities regarding this attribute, the administrator grossly overestimated that the road segment contained twenty access points per mile. No reasonable basis was presented at hearing by the administrator for his "estimate" of twenty access points per mile on a rural segment in one of the more remote and under populated areas within his district. The videotape presented at hearing clearly demonstrates that there are not twenty access points per mile on this roadway. Unrefuted testimony presented at hearing revealed that approximately twenty-five families reside along this 14.8 mile stretch of road. There is also a large rock mine, a cemetery, and the county landfill. Respondent's Exhibit 5, the General Highway Map of Glades County, shows that a DOT facility is located on this road segment. There are four roads which intersect the road segment and one railroad grade crossing. A locked gate at the Caloosahatchee Rock Mine has a driveway which connects to the road. To deny the road segment the minimum score of "one" on the access factor, the DOT would have to estimate in its calculation that there are more than ten access points per mile on this road. Based upon the evidence presented at hearing, there are far less than ten access points per mile on this road segment. Therefore, the Access Factor score on the worksheet should be changed from "zero" to "one." The Trucks and Network Factor attributes which each received a score of "one" from the administrator. These scores were not challenged by Petitioner. The Extent of Road attribute was not properly tested by the administrator. Under Rule 14-12.015(2), Florida Administrative Code, the entire State Road 78, along with the southwesterly portion of State Road 29, and the eastern portion of State Road 25 (U.S. Highway 27) should be utilized for the Extent of Road (miles) measurement. As the entire length of the extended transportation corridor exceeds twenty miles, the score should be "one" instead of "zero." The Mobility Attribute was not properly assessed. Rule 14-12.015(2), Florida Administrative Code, allows the extended transportation corridor to be used to determine the total number of counties in which the road is located. Testimony presented at hearing regarding the use of the road segment as part of the transport route of citrus from Hendry County through State Road 78 in Glades County to Okeechobee County supports the finding that the road is located in three counties. The score as to the Mobility Attribute should be changed from "zero" to "one." Section 05040 of State Road 78 is in an overall physical condition which is at least commensurate with contemporary roads of like age and existing functional classification (rural major collector) within Glades County.
Recommendation Accordingly, it is RECOMMENDED: That the Department of Transportation enter a Final Order that the Department's functional classification of the road segment was incorrect, that the functional classification of the road as a rural minor arterial be reinstated, and that the jurisdiction over the road remain with the Department. DONE and ENTERED this 2nd day of October 1989, in Tallahassee, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1227 Petitioner's proposed findings of fact are addressed as follows: Accepted. See Preliminary Statement. Rejected. Not a factual finding. Accepted. Accepted. See Preliminary Statement. Accepted. See Statement of the Issues. Accepted. Accepted. Rejected. See HO #19. Accepted Accept the first sentence. The second sentence is rejected as irrelevant. Accepted. Accepted. Accepted. Accepted. Accept that the Hearing Officer found the road to be improperly classified. The rest is rejected as conclusionary. Accepted. See HO #10. Accepted. See HO #4. Accepted. See HO #10. Accepted. See HO #4. Accepted. Rejected. Irrelevant. Rejected. The financial ability provision within the statute was repealed, and a determination cannot be made on the basis of factors outside rule or statute. Respondent's proposed findings of fact are addressed as follows: Accept the first two sentences. The third sentence is rejected. See HO #2. Fourth sentence is accepted. See HO #5. Fifth sentence is accepted. See HO #7. Sixth sentence is rejected. See HO #7-#18. Seventh sentence is accepted. See HO #8. Eighth sentence is rejected. Improper conclusion. Ninth sentence is accepted. See Conclusions of Law. Tenth sentence is accepted. See Preliminary Statement. Accepted. See HO #19. Rejected. The financial ability provision within the statute was repealed, and a determination cannot be made on the basis of factors outside the rule or statute. COPIES FURNISHED: Michael A. Rider, Esquire Post Office Box 608 Lake Placid, Florida 33852 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Ben G. Watts, P.E., Interim Secretary Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 =================================================================
The Issue The issue to be determined in this case is whether CJC Properties, Ltd. (CJC), is eligible for state restoration funding assistance under the Petroleum Contamination Participation Program or the Florida Petroleum Liability and Restoration Insurance Program for one or more discharges of gasoline at DEP Facility No. 378943938 (“the facility”).
Findings Of Fact The Facility CJC is a Florida Limited Partnership. It is the current owner of property located at 5691 U.S. Highway 27 North, in Tallahassee. Prior to CJC’s acquisition of the property, the property was owned by Carolyn J. Chapman, John W. Chapman, Jane Chapman Latina, and Carolyn Chapman Landrum (“the Chapmans”). The property was leased to various entities and operated as a gas station. The tanks and dispensers remained in service until November, 1995. The last operator of the facility was Lake Jackson 76, Inc. There were five underground petroleum storage tanks at the facility. Before 1991, one of the tanks at the facility was used for regular, leaded, gasoline. When leaded gasoline was phased out, the tank was used for unleaded gasoline. Site Assessments and Sampling Data On November 30, 1995, the Chapmans employed Petroleum Contractors, Inc., to remove the five storage tanks. During the tank removal, Environmental and Geotechnical Specialists, Inc. (“EGS”) performed an assessment to determine whether the facility was contaminated with petroleum or petroleum products. The Underground Storage Tank Removal Report prepared by EGS noted that all five tanks appeared to be intact. Soils in the tank pit wall and bottom were not discolored. No significant contamination was observed directly below the tanks. Soil from the tank pit was stockpiled on the site. EGS observed no significant signs of contamination of this soil. The soil stockpile was also screened with a Flame Ionization Detector Organic Vapor Analyzer (OVA). No organic vapors were detected. An OVA detects any organic vapor, but is used as a screening tool to find petroleum vapors. Department rules require that an OVA reading be performed both unfiltered and filtered. The filtered reading screens out everything but methane and is “subtracted” from the unfiltered reading to determine the presence of petroleum vapors. Twenty-four soil samples were taken from various depths at nine locations in the tank pit. These samples were tested using an OVA. Nine of the soil samples, taken from four locations, had corrected OVA readings indicative of petroleum contamination. EGS concluded that “soil contamination detected in the tank pit is likely the result of a leak in the piping” between the dispensers and the tanks. Soil samples were also taken from three borings in the vicinity of the dispenser island and OVA-tested. In boring D-2, organic vapors were detected from the surface to a depth of approximately seven feet. The OVA readings from D-2 declined with depth. EGS reported that “some contamination was detected beneath a dispenser; however, it does not ‘appear’ to significantly extend below six (6) feet.” EGS did not report both filtered and unfiltered OVA readings for the soil samples taken from the dispenser area, as it had done for soil samples taken from the tank pit and the stockpile. For the dispenser area soil samples, EGS reported a single OVA reading for each sample, without indicating whether the reading was “corrected” after filtering. For this reason, the Department contends that these data are unreliable. CJC points out that EGS stated in the text of its report that the soil samples were filtered. CJC also argues that, because the filtered OVA readings for soil samples taken from the tank pit area were not different from their unfiltered readings, the OVA readings for the soil samples from the dispenser area would not have changed after filtering. The preponderance of the evidence is that the contamination in the dispenser area was petroleum. Based on EGS’ findings during the tank removal in November 1995, Petroleum Contractors, Inc., filed a Discharge Reporting Form on December 1, 1995, stating that there had been a discharge of unleaded gasoline at the facility. In January 1996, the Chapmans applied to participate in FPLRIP based on the discharge reported on December 1, 1995. By order dated January 26, 1996, the Department determined that the reported discharge was eligible for state-funded remediation assistance under FPLRIP. In 1997, another consultant, Levine Fricke Recon (LFR) conducted a site assessment at the facility and submitted its Interim Site Assessment Report to the Department. As part of its own soil sampling at the site, LFR collected a “direct push” soil boring in the dispenser island area, near the place where EGS had reported organic vapors. The boring data showed no petroleum vapors until the interval 16-to-20 feet below ground surface. LFR also collected and analyzed groundwater samples from the site. It reported that a sample taken from beneath the former diesel dispenser contained lead. Because lead occurs naturally in soils, its presence in a water sample does not confirm that a discharge of leaded gasoline occurred. In 1998, LFR conducted a second assessment of the facility site. It installed and sampled four shallow monitoring wells, designated MW-1S through MW-4S, and three deep monitoring wells, designated MW-2D through MW-4D. Groundwater samples from MW-3S and MW-3D were analyzed for lead, ethylene dibromide (EDB), and 1,2-Dichloroethane. All three substances are usually detected in a groundwater sample contaminated with leaded gasoline. On August 28, 1998, LFR submitted its Interim Site Assessment II to the Department, which shows lead and EDB were found in a sample taken from MW-3S, but not 1,2-Dichloroethane. LFR did not conclude or express a suspicion in either of its two assessment reports that leaded gasoline had been discharged at the facility. The deadline for submitting a Discharge Reporting Form or written report of contamination was December 31, 1998. A site assessment report received by the Department before January 1, 1999, which contained evidence of a petroleum discharge, was accepted by the Department as a “report of contamination.” The petroleum discharge information received by the Department before January 1, 1999, consisted of the Underground Storage Tank Removal Report, the FPLRIP claim, the Interim Site Assessment Report, and the Interim Site Assessment Report II. Post Deadline Site Assessment Data After the statutory deadline, LFR submitted its Interim Site Assessment III. This report includes January 1999 groundwater sampling data from four monitoring wells which show the presence of low levels of EDB. When EDB is found in a groundwater sample, it is a common practice to re-sample the well from which the sample was taken. Of the wells that showed the presence of EDB, only MW- 10D was re-sampled, after January 1, 1999. There was no EDB present in the groundwater when MS-10D was re-sampled. In June 2000, as part of the remediation of the contamination at the facility, an area of contaminated soil was removed to a depth of 14 feet. The area of soil removed included the former dispenser area. In January 2003, the Department notified CJC that the $300,000 FPLRIP funding cap would soon be reached. In March 2003, CJC signed a Funding Cap Transition Agreement, acknowledging that “At no time will the DEP be obligated to pay for cleanup of this discharge any amount that exceeds the funding cap.” CJC further acknowledged that it “is responsible for completing the remediation of the discharge in accordance with Chapter 62-770, F.A.C.” In 2005, CJC re-sampled one of the monitoring wells for lead and EDB. Neither substance was present. The site is not currently being actively remediated. Periodic groundwater sampling indicates that concentrations of contaminants are dropping. No further active remediation has been proposed. The cost to complete remediation is a matter of speculation. The record evidence is insufficient to make a finding about future remediation costs. Eligibility Determinations On September 2, 2003, CJC submitted a PCPP Affidavit to the Department, seeking state funding under PCPP. On October 30, 2003, the Department denied CJC eligibility for PCPP funding on the basis that the contamination was covered under FPLRIP and, therefore, was excluded from funding under PCPP. The Department has never granted PCPP eligibility for the cleanup of a discharge previously being funded under FPLRIP. Apparently, in 2005, CJC hired Glenn R. MacGraw, an expert in the assessment of petroleum-contaminated sites, to review the EGS and LFR assessments. In a letter to CJC’s attorney dated August 19, 2005, MacGraw expressed the opinion that “at least 2 discharges have occurred on this site, one in the former tank area, and one in the former dispenser area.” MacGraw’s opinion that there had been a discharge of leaded gasoline was based on the detection of EDB and lead in the groundwater. He also thought the presence of methyl tetra-butyl ether (MTBE) in groundwater samples taken from the tank pit area showed a tank leak of unleaded gasoline. CJC requested FPLRIP funding for the other alleged discharges at the facility. On March 23, 2006, the Department issued a letter formally stating its disagreement that there were other reported discharges and denying eligibility for FPLRIP funding. On March 30, 2006, the Department issued an Amended Order of Ineligibility under PCPP. The amended order added a second ground for denial, that the reported discharge was not shown to have occurred before January 1, 1995. Whether There Was A Second Discharge Eligible for Funding CJC argues that the presence of lead and EDB in the groundwater sample taken from MW-3S shows that there was a discharge of leaded gasoline at the facility. However, LFR reported that the well screen for MW-3S had probably been damaged during installation, because a significant amount of filter sand was observed in the purge water. The Department contends, therefore, that the source of the lead detected in the groundwater sample from MW-3S could have been (naturally) in the soil that entered the well. The Department also discounts the detection of EDB in the groundwater sample because EDB is an ingredient of some pesticides and can show up in groundwater when pesticide has been applied to the overlying land. Furthermore, EDB was not detected in the groundwater sample taken from MW-3D, a deeper well located near MW-3S. MacGraw does not think the EDB came from a pesticide application, because the EDB contamination at the site occurs in an elongated “plume,” in the former dispenser area, whereas one would expect to see EDB distributed evenly over the site if the source was a pesticide application. MacGraw mapped the plume of EDB by using data obtained after the discharge reporting deadline. Michael J. Bland, a Department employee and expert in geology and petroleum site assessment, believes the data from the facility are insufficient to confirm the presence of EDB or its distribution. LFR reported in its Interim Site Assessment that no significant soil contamination was found near the dispenser island. Groundwater samples from MW-3D, a deep monitoring well near MW-S3, showed no EDB, lead, or 1,2-dichlorothane. Bland opined that, if the detection of EDB in the shallow well was reliable, EDB would have been detected in the deep well, too, because EDB is a “sinker.” EDB is persistent in groundwater, so when it is not detected when a well is re-sampled, reasonable doubt arises about the detection in the first sample. Of all the wells sampled in 1999 that showed EDB, only MW-10D was re-sampled in 2003. When the well was re-sampled, there was no EDB. CJC contends that EDB was not found in the re-sampling of MW-10D because of the soil removal in 2000, but the Department contends that the soil removal would not have affected the presence of EDB in MW-10D, because the well is significantly down-gradient of the area of soil removal. It was undisputed that the presence of 1,2- dichoroethane in MW-S3 was not reliably determined. There is insufficient evidence in the record to establish that the contamination reported in the dispenser area is the source of contamination which persists at the facility. The reported contamination only affected the top six feet of soil. The soil removal to a depth of 14 feet in that area in 2000 should have fully remediated the reported contamination. The data upon which CJC relies in claiming eligibility under FPLRIP or PCPP for a second discharge are, at best, incomplete and ambiguous. CJC failed to prove by a preponderance of the evidence that a discharge of leaded gasoline occurred. CJC also failed to prove that the reported contamination in the dispenser is associated with a discharge that still exists to be remediated with state assistance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a final order determining that CJC is ineligible to participate in the Petroleum Cleanup Participation Program for the discharge reported to the Department on December 1, 1995, and that CJC has not demonstrated eligibility to participate in the Petroleum Cleanup Participation Program or the Florida Petroleum Liability and Restoration Program for any other discharges. DONE AND ENTERED this 9th day of July, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER 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 9th day of July, 2008.
The Issue The issue is whether to approve an application by Respondent, Dan R. Hughes Company, L.P. (applicant or Hughes), for an oil well drilling permit authorizing the drilling of an exploratory oil well in Collier County, Florida.
Findings Of Fact The Parties Mosher resides on a three-acre lot at 4695 26th Avenue Southeast, Naples, Florida. His residence is around 2,500 feet west of the proposed wellsite, but Mosher says that the eastern edge of his lot "might be 2,000 feet" from the drilling site. He has not, however, measured the actual distance to confirm this assertion. Preserve is a Florida non-profit corporation whose purpose is to educate the public on issues affecting the preservation and protection of the environment, particularly the environment of south and southwest Florida. It was formed in response to Hughes' intention to drill for oil in the area. The corporation is not a membership organization; rather, it has around 25 non-member, active volunteers, six member directors, and an unknown number of donors. Excluding Mosher, the other member directors live between three and ten miles away from the proposed wellsite. The record does not show where the 25 volunteers reside. The corporate representative testified that four directors, including Mosher, regularly use the Florida Panther National Wildlife Refuge (Refuge) to observe wildlife and habitat. However, the public access point to the Refuge appears to be at least several miles from the wellsite. Based upon an email survey, he stated that a "substantial number [around 36] of donors and volunteers utilize the panther refuge," but he was unaware of when, or how often, this occurred. About every six weeks, meetings are conducted at Mosher's home, which are attended by some, but not all, of the directors and volunteers. Schwartz's primary residence is in Lake Worth (Palm Beach County) where he serves as the unpaid executive director of the South Florida Wildlands Association.3 He sometimes provides paid tours in the Everglades and Big Cypress Swamp and has led "numerous" free hikes into panther habitat to look for signs of panthers. These hikes are limited to the hiking trails in the southeast corner of the Refuge, which is the only area that can be accessed by the public. He represented himself as an advocate for the protection of wildlife habitat in the greater Everglades, with a particular interest in the Florida panther. Hughes is a Texas limited partnership engaged in the business of oil and gas exploration, which is registered to do business in the State of Florida. Hughes has applied for a permit to drill an exploratory well for oil in Collier County. If the well is commercially viable, Hughes must apply for an operating permit at a later time. The Department has jurisdiction to issue permits for the drilling and exploring for, or production of, oil under part I, chapter 377. Pursuant to that authority, the Department reviewed the oil and gas well drilling permit application. The Application and Project After the application was deemed complete by the Department, it was distributed for comment to a number of local, state, and federal agencies. While some commented on the application, no agency had any unresolved concerns at the end of the application process. Hughes met all rule requirements for performance bonds or securities, and it provided all information required by rule. The proposed site is located on the southeast corner of an active farm field in the Big Cypress Swamp watershed, just north of a speedway now used as a test track. Surface holes for oil wells are commonly located on farm land, and farm fields are compatible with oil wells. Based upon a mineral lease between Hughes and the owner of the land, Collier Land Holdings, Ltd., Hughes has the right to locate and drill the well at the proposed surface hole location. The Refuge was established by Congress in 1989 to protect the Florida panther and its habitat and is located approximately 20 miles east of Naples. Around 98 percent of the Refuge is closed to any public activity. The project is consistent with the comprehensive conservation plan for the Refuge prepared by the United States Fish and Wildlife Service (USFWS), in that the plan recommends "slant drilling" off of the Refuge. Although Mosher and Preserve argue that the drill hole should be moved further east into wetlands, and Schwartz contends that it should be moved further west away from the Refuge, the proposed location of the drilling pad and project site is reasonable with respect to the nature, appearance, and location of the proposed drilling site. Likewise, the location is reasonable with respect to the type, nature, and extent of Hughes' ownership. The proposed activity can best be characterized as a "resource play," where an operator drills toward a known resource. This is distinguished from a wildcat operation, where the operator is drilling in an unproven area. Hughes proposes to target the rubble zone (i.e., the lower zone) within the lower Sunniland formation, a geologic formation thousands of feet below the ground surface that runs through southwest Florida. Hughes will first drill a vertical pilot hole and then drill horizontally from the hole bottom in a southeast direction toward a formerly drilled oil well known as the Tribal Well. In order to increase the probability of locating commercially available petroleum, Hughes plans to proceed from west to east in order to arrive at a perpendicular direction of existing limestone fractures as the drilling approaches the Tribal Well. When that well was drilled vertically into the rubble zone in the 1970s, oil rose to the ground surface. Thus, the indicated presence of oil is sufficient to warrant and justify the exploration for oil at this location. The proposed depth of the pilot hole is 13,900 feet measured depth (MD/13,900 feet true vertical depth (TVD)), which will allow assessment of the upper Sunniland, lower Sunniland, and Pumpkin Bay Formations. If the evaluation determines that the well will likely be commercially productive, Hughes will complete a 4,100-foot horizontal leg in the lower Sunniland rubble zone with a landing depth at 12,500 feet MD/12,064 TVD and a total depth of 16,600 feet MD/12,064 feet TVD. The footprint for the drilling pad will be 225 feet by 295 feet, or 2.6 acres, with a two-foot earthen berm around the perimeter of the operating area to contain all water on the site. A secondary containment area within the perimeter of the site will be covered by high-density polyethylene to contain and collect any accidental spills. A drilling rig, generators, and other drilling equipment will be on the pad during drilling operations. A maximum of 20 persons will be at the site, and then only for one day of operations. At all other times, Hughes anticipates there will be a five-person drill crew plus support personnel on site. After drilling, Hughes will remove its equipment. Once the access road is built and the equipment put in place, the drilling activities will take place 24 hours per day, seven days per week, and will be completed in approximately 60 to 70 days. The on-site diesel generators will run simultaneously 24 hours per day while drilling is taking place. The pad will be illuminated at night with lights on the drilling derrick and throughout the pad. Construction of the drilling pad will require trucking around 12,000 to 14,000 cubic yards of fill to the drilling location. Additional traffic for bringing in fill, piping, and related equipment will occur, but the exact amount of traffic is unknown. The South Florida Water Management District (SFWMD) previously approved an environmental resource permit (ERP) to allow the construction and operation of a surface water management system on Camp Keais. The United States Army Corps of Engineers (USACE) also permitted the same system under the Clean Water Act. The latter permit requires mitigation for wetlands and Florida panther habitat compensation. Based on the proposed wellsite, the SFWMD modified the ERP to allow a culvert and access to the proposed wellsite. In addition to the oil drilling permit application, Hughes has applied for two water well drilling permits from the SFWMD, and an injection well drilling permit. Petitioners and Intervenor's Objections The challengers have raised a number of objections that they assert require denial of the application. Conflicting testimony was presented on these issues, which has been resolved in Respondents' favor as being the more credible and persuasive testimony. Mosher and Preserve Mosher and Preserve raise two broad objections. First, they contend that hydrogen sulfide gas (H2S) is likely to be encountered in the drilling of the proposed well. They further contend that the H2S contingency plan submitted by Hughes is not sufficient to evacuate the public in the event of an incident where H2S is uncontrollably released under pressure. Second, they contend that the Committee did not review the application under the process contemplated by section 377.42(2). Except for these two objections, they agree that no other issues remain. See TR., Vol. I, p. 33. Within the petroleum industry, drilling operators create H2S plans when there is reason to believe that the operator may encounter H2S while drilling. This practice is codified in Florida Administrative Code Rule 62C-27.001(7), which requires a contingency plan only when H2S is "likely" to be encountered while drilling. The plan must "meet generally accepted industry standards and practices," and it must contain measures "for notifying authorities and evacuating civilians in the event of an accident." Id. See also rule 62C-26.003(3), which requires a contingency plan "if appropriate." The plan is prepared for two main users: the personnel working at the drilling site; and local emergency management officials, who must plan and train for the implementation of emergency activities. The parties agree that the "generally accepted industry standards and practices" for the oil and natural gas industry are found in the operating standards and recommended practices adopted by The American Petroleum Institute (API), a trade association for the oil and natural gas industry. Recommended Practice 49 (API 49) is the generally accepted industry standard for oil and gas drilling operations likely to encounter H2S and was relied upon by all parties throughout the hearing. The standard includes guidance on personnel protection measures, personnel training, personnel protection equipment, and community contingency planning. API 49 recommends the use of a community warning and protection plan when atmospheric H2S exposures beyond the well site could exceed potentially harmful exposure levels and could affect the general public. Mosher/Preserve's expert opined that H2S might be encountered at levels as high as 21 percent (210,000 parts per million (ppm)) in southwest Florida, and that "it's quite likely" H2S would be encountered at the proposed wellsite. At the same time, however, he agreed with the assessment of Respondents' experts that the likelihood of encountering H2S at this site was merely "possible," "sporadic," and "unlikely," and that there was "zero" potential of a severe H2S release under high pressure. Florida has two major oil producing areas: the Sunniland Trend in southwest Florida and the Smackover formation near Jay, Florida, in the northwest part of the state. Unlike the Smackover formation which has higher temperatures and pressures and a high concentration of H2S, the Sunniland Trend has normal temperatures and pressures and a sporadic presence of H2S. Less than two percent of wells in southwest Florida have been reported to contain H2S, and those reports relate to production wells where bacteria (biological contamination) was likely introduced into the formation during production. Of over 300 oil wells drilled in southwest Florida, only six were reported to have encountered H2S. Notably, the Tribal Well, located 1.5 miles to the southeast of the proposed site, encountered relatively low pressure during drilling and had no H2S, and another well located 12 miles to the north likewise had no high pressure or H2S. It is unlikely that Hughes will encounter high pressure or H2S if it drills at the proposed site. Even though it is unlikely that high pressure or H2S will be encountered during the drilling of this proposed well, Hughes still submitted an H2S contingency plan as part of the drilling application. The Department determined the plan provided an effective design to detect, evaluate, and control any hazardous release of H2S. In response to public concerns, in January 2014 Hughes revised its plan to provide more protections. The revised plan exceeds the guidance provided in API 49. The revised plan clarifies and adds multiple protections, including implementing the plan at a vertical depth of 9,000 feet, which is 2,700 feet before the zone that Mosher claims could contain H2S; clarifying that an H2S alarm notification at 15 ppm would result in an instant well shut-in (i.e., closure of the well) to prevent the escape of H2S; instituting a reverse 911 call system to allow local officials to notify the public by telephone of any incident; creating an air dispersion model to understand the likelihood of public exposure; and adding H2S scavengers to the drilling mud. Adding H2S scavengers in the mud is a protective measure. Specifically, the zinc oxide scavengers will react with H2S to create benign zinc sulfide and water. Even if H2S is present in the formation, the H2S scavengers will neutralize the H2S before it could reach the surface. The H2S scavengers will effectively eliminate the likelihood of H2S escaping from the well during drilling operations. The drilling plan requires the Trinity C formation (which Hughes estimated will begin at a depth of around 11,850 feet) to be cemented off and sealed once drilled. This formation will not be encountered in the first 15 or 20 days of drilling. Once encountered, the formation will be exposed for only four to six days. Even if H2S were encountered during this short exposed duration, all of the protections included in the revised plan would be in place, including overbalanced drilling mud, H2S scavengers, blowout preventers, H2S monitors, and alarms. When wells are drilled, there are numerous personnel monitoring the drilling fluid, or mud, which is designed not only to carry cuttings to the surface, but more importantly to act as a barrier to keep fluids or gasses in the geologic formation. The mud is weighted with additives to combat reservoir pressures. Drill operators want the same amount of mud pumped into the hole as the amount flowing back up. If more fluid is flowing back up, then the mud is not heavy enough to hold back the fluids or gasses encountered. If this imbalance occurs, the well is shut- in immediately and the mud weight is adjusted. A shut-in can be accomplished in just a few seconds. Anything in a shut-in well will stay in the well. Hughes' normal drilling plan is to slightly overbalance the mud weight. This ensures that nothing unintentionally escapes from the reservoir. Mosher and Preserve contend that if H2S is encountered, dangerous concentrations of H2S would leave the wellsite. In response to this type of concern, as part of the revised plan, Hughes conducted an air dispersion model using the methodology provided by API 49. The API 49 model is a Gaussian model with default values reflecting the worst-case exposures. The peer- reviewed and conservative model calculated by Dr. Walker looked at H2S concentrations of 10, 15, and 100 ppm. At the extreme case, a 100-ppm release at the well would be reduced below 10 ppm within about 20 feet from the well and further reduced to one ppm within 60 feet from the well. Although H2S is unlikely to escape the well, 100 ppm was selected as a precautionary level because this level is an immediate danger to human life and health. Reaching 100 ppm is highly unlikely because at an instantaneous reading of 15 ppm, the well is immediately shut-in. The air dispersion model results demonstrate that atmospheric H2S exposures beyond the wellsite could not exceed potentially harmful exposure levels nor could exposures affect the general public. Thus, even though the plan includes a community warning and protection provision, it is not required under API 49. In an abundance of caution, however, the plan provides for a public notification zone of 2,000 feet in case of an H2S release. This zone is two orders of magnitude beyond the 20- foot, 10 ppm distance dispersion of H2S based on the modeled worse case release and exceeds any required notification zones in other states. The notification boundary is conservative, as compared with industry standards. While Mosher's expert recommended more stringent standards than API 49, he knew of no contingency plan for an oil drilling permit in the United States that included his recommended standards. Mosher's expert testified that based on his review of literature, the lowest observable adverse effect from H2S was at concentrations of 2.1 ppm. Based on a worst case scenario release of 100 ppm of H2S, the gas would disperse to a concentration of 2.1 ppm in less than 40 feet from the well. The property boundary abutting the neighborhood to the west is over 800 feet from the well. API 49 expressly provides that wellsite personnel should be provided protection devices if concentrations of H2S exceed 10 ppm for an eight-hour time-weighted average. The revised plan requires wellsite personnel to don a self-contained breathing apparatus if the monitors encounter an instantaneous reading of 10 ppm H2S. Instantaneous readings are more protective of human health than the time-weighted averages proposed by Mosher's expert. Using an instantaneous trigger is another area where the revised plan exceeds the recommendation of API 49. The greater weight of evidence demonstrates that the H2S contingency plan meets or exceeds guidance of API 49. The revised plan requires hands-on training for public officials and fire/rescue staff before reaching the depth of 9,000 feet. The revised plan further requires hands-on training and drills related to the procedures for use, and location of, all self- contained breathing apparatus and evacuation procedures. The plan is a complete and accurate contingency plan that will assist operators and local emergency management in the unlikely event of an H2S escape. It exceeds the degree of caution typically employed in industry standards. Mosher and Preserve contend that the plan fails to include specific instructions and training for nearby residents in the event of an emergency. However, emergency plans are designed for use by operators at the facility and the local emergency management officials rather than nearby residents. Thus, the Department did not require the applicant to provide specific instructions for those residents. Mosher and Preserve also contend that the plan fails to adequately describe the evacuation routes in the event of an emergency. However, evacuation routes and the potential closure of roads are normally in the domain of local governments, as the operator and Department have no control over this action. Mosher and Preserve contend that the plan does not include complete and accurate information for all property owners in the area. This is understandable since some property owners either failed to respond to inquiries by Hughes when it assembled the information for the plan or were reluctant to provide any personal information. Recognizing this problem, the Department reviewed the website of the Collier County property appraiser to complete the information. To the extent information on certain parcels may not be complete, Hughes can update that aspect of the plan on an on-going basis before operations begin. If a permit is issued, the Department will continue to coordinate with Collier County and other local emergency management officials for the purpose of planning to implement the contingency plan. Based on the foregoing, the evidence establishes that the probability of a dangerous release of H2S beyond the wellsite is highly remote and speculative in nature. The revised contingency plan is consistent with industry standards and satisfies the requirements of the rule. Schwartz Like Mosher and Preserve, Schwartz agreed that except for the concerns expressed in his amended pleading, no other issues remain. Schwartz first contends that Hughes did not demonstrate sufficient efforts to select a proposed location for drilling to minimize impacts as required by rule 62C-30.005. Subparagraph (2)(b)1. requires that drilling sites be located "to minimize impacts on the vegetation and wildlife, including rare and endangered species, and the surface water resources." In particular, Schwartz is concerned about the potential impact on the Florida panther, an endangered species. Hughes selected the proposed site primarily because of its proximity to the Tribal Well, which had a significant show of oil. In order to increase the chances for commercial production, the horizontal segment of the well needs to be perpendicular to the natural fractures in the limestone. In this location, Hughes must drill horizontally from west to east in the direction of the Tribal Well. Hughes was unable to locate the well on the automotive test track directly south of the agricultural field and west of the Tribal Well because of objections by Harley-Davidson, then the owner of the track. A second proposed location just east of the test track was considered but Harley-Davidson would not grant access from the track to the upland sites on the adjacent location. A third option was to construct a lengthy access road from the north to one of the upland sites just east of the test track. However, this alternative would have resulted in significant impacts to wetlands and native vegetation. The proposed site offers the least amount of environmental impact. It is 1.5 miles from the Tribal Well. It has no federal or jurisdictional wetlands on the site, and groundwater modeling submitted with an application for a water use permit demonstrated that the proposed use of water will not adversely affect surrounding wetlands. The proposed access road and drilling pad will not impact any cypress-mixed forest swamps, hardwood hammocks, mangrove forests, archeological sites, or native ceremonial grounds. Nor will they adversely affect known red-cockaded woodpecker colonies, rookeries, alligator holes, research sites, or pine uplands. The evidence establishes that Hughes chose a site that minimized environmental impacts. Schwartz also contends that the wellsite activities will directly decrease the recovery chances of the Florida panther. According to Schwartz, this decrease will occur because the activities involve creating an access road, truck traffic, noise, lights, and vibrations. He also asserts that the proposed wellsite will result in a small amount of direct habitat loss when the cattle field is converted to a drilling pad. The USFWS has developed a panther scientific habitat assessment methodology. It relies upon peer-reviewed studies that found that panthers will select land cover types while avoiding others. The methodology ranks the value of land cover types from zero to ten based on the potential for panther selection. Applying the USFWS' scoring to the proposed wellsite, an improved pasture area has a value of 5.2, which means the land cover is neither actively selected nor avoided by panthers. The areas to the south and east of the proposed wellsite are forested wetlands and forested uplands, which have substantially higher values that range from 9.2 to 9.5. If converted to an open water reservoir under the Camp Keais ERP, the site value would be zero, the land cover type most avoided by panthers. The underlying USACE permit specifically required panther habitat compensation. Hughes' expert established that the proposed site minimizes impacts on wildlife by avoiding habitat selected by panthers such as wetlands, forested uplands, saw palmetto thickets, fresh water marshes, prairies, and native habitats. Based on a dozen visits to the site for the purpose of conducting vegetation mapping and wildlife surveys, the expert concluded there are no panthers currently known to be living, breeding, or denning on the site. A home range for a panther is the area providing shelter, water, food, and the chance for breeding. The typical home range for a male panther is 209 square miles, and female home ranges average around 113 square miles. The evidence establishes the proposed drilling activity will not interfere with the panthers' use of the site. Approval of the permit will not remove or push any panthers out of their home range. Hughes' expert opined that the four male panthers, which historically traversed the area within a mile of the proposed wellsite, would only likely move through the area every 15 or 20 months or longer. The temporary nature of the drilling activities means the panthers may not even be near the location during that time. If a panther is near the location and frightened by any activities, it will avoid the area, but will eventually return. Based on the large home range of the panther, the temporary activities will not increase the likelihood of intraspecies aggression or decrease panther survivability. The more persuasive evidence is that panthers are adaptable. They are habituated to the drilling operations in southwest Florida based on over a hundred thousand telemetry data points taken near 93 oil wells in the primary zone. Panthers are not threatened by the presence of humans. In fact, they live and den in and around residential communities and active agricultural operations. Panthers need prey, water, and shelter. The drilling activities will not adversely affect prey availability or impact water resources. The proposed wellsite's location within a disturbed agricultural field will not impact the panther's ability to shelter. During the permit review process, the Department requested input from the USFWS, the Florida Fish and Wildlife Conservation Commission (FFWCC), and other interested parties regarding the proposed drilling permit. No formal comments were offered by the USFWS, and its biologist for conservation planning indicated informally that the surface impacts from an oil well are "very minor." Likewise, the FFWCC offered no formal comments on the application. The evidence supports a finding that the proposed permit activities will not affect the panther's use of, or travel to and from, the Refuge. The activities will not affect the panthers' availability of prey or increase panther competition for food or home range territory. The drilling will not adversely affect the panther's breeding, survivability, or the recovery of the species. The only other threatened or endangered species found in the vicinity of the proposed site was an eastern indigo snake, which was located two and one-half miles away and would not travel to the proposed wellsite, as its home range is up to a maximum of 450 acres. Schwartz further contends that section 377.242 requires that the permit be denied because the proposed wellsite is within one mile from the seaward (western) boundary of the Refuge. The Refuge is located entirely inland and does not have a seaward boundary, as contemplated by section 377.242(1)(a)3. Therefore, no drilling will be located within one mile of the seaward boundary of any state, local, or federal park, aquatic preserve, or wildlife preserve. This is consistent with the Department's routine and long-standing interpretation of the statute. Big Cypress Swamp Advisory Committee Petitioners and Intervenor initially contended that the permit should be denied because a meeting of the Committee was never convened pursuant to section 377.42. The Committee, however, met on March 11 and 31, 2014. Although a majority of the Committee voted to recommend that the Department deny the permit on various grounds, the recommendation of the Committee is not binding on the Department, and after consideration, was rejected. In their Proposed Recommended Orders, the opponents now contend that the permit should be denied because the Committee did not meet before the Department issued its proposed agency action. For the reasons stated in the Conclusions of Law, this contention is rejected.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order issuing Permit No. 1353H, without further modifications. DONE AND ENTERED this 3rd day of June, 2014, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2014.
