The Issue Whether Respondent violated Pinellas Count Water and Navigation Control Authority Regulations (PCWNCAR) as more specifically alleged in the Administrative Complaint dated September 12, 1990.
Findings Of Fact John C. Lombardi, Respondent, is a certified marine specialty contractor and was so licensed at all times here relevant. He holds license C- 4097. Respondent at all times relevant hereto was the qualifying contractor for Myron Gibson Marine Construction Corporation. He also is the owner of Myron Gibson Marine Construction Corporation. Respondent entered into an oral contract with Larry Mickelson to install two tie poles off the dock at 809 Bay Point Drive and into a written contract with the property owner of this property to install two tie poles. Under the terms of the written contract, Respondent contracted to install these tie poles 25 feet off the dock with a minimum penetration of 10 feet. Due to an error on the part of the contractor, the initial tie poles were installed too close to the dock and had to be relocated. Respondent contracted with Mickelson to jet the poles to the required penetration. However, at the location 25 feet off the dock, the construction crew encountered a hard clay and shell mixture some four feet below the water bottom sand and silt and could get less than 8 feet penetration. When Mickelson attempted to tie up his boat to these tie poles, he noted they moved and called Gibbon Marine to correct the situation. In resetting the piles, Gibson Marine cut one of the piles in a point to facilitate driving the pile to a greater penetration. A drop hammer was used to drive the piles further into the clay and shell mixture. Respondent's crews made four visits to the site to correct the problem, and final payment was made on March 13, 1990 (Exhibit 8). Mickelson still was not satisfied, and Respondent advised him of the difficulty encountered in attempting to get 10 feet penetration and offered Mickelson three options, all at extra costs. These were (1) install sister piles, (2) relocate piles in hopes of finding less dense material in which to drive the piles, and (3) call in another contractor with equipment to drill the holes for the piles. Mickelson had another marine contractor come out to reset the piles to a greater depth, but this contractor was also unsuccessful. Mickelson then employed Ress Marine Construction who had drilling equipment with which to drill holes in which to set the tie poles. Ress Marine removed the piles installed by Respondent and drilled holes into which two tie poles were installed to a minimum depth of 10 feet. The removed piles which had been installed by Gibson Marine showed discoloration on the bottom three feet of these piles. One of Petitioner's witnesses (Ress) testified that he told Mickelson the piles appeared to have obtained only 3 to 3 1/2 feet penetration. Two of Respondent's witnesses who were on the scene doing the work when the piles were initially installed both testified the piles were driven to a penetration depth of not less than 7 to 8 feet. Respondent has owned Gibson Marine for the past 5 years, and this is the first customer complaint he had received, and these are the only charges ever filed against his certificate by Petitioner or any other regulatory authority.
The Issue The ultimate issue to be resolved in this proceeding is whether the Department of Environmental Regulation should issue a permit to Broward County authorizing construction of the proposed Cell 14 extension of the Broward County landfill located in the Town of Davie, Florida. Broward County and the Department of Environmental Regulation contend that Broward County has provided reasonable assurance that the proposed facility will meet the requirements of the Department's rules and regulations and not cause pollution in contravention of the Department's standards. The Town of Davie contends that the proposed facility will not meet the Department's requirements and will result in pollution in contravention of the Department's standards.
Findings Of Fact Broward County presently operates a landfill known as the Davie Landfill on a tract of land comprising 200 acres within the Town of Davie, Broward County, Florida. The existing sanitary landfill includes 13 cells which cover approximately 20 acres on the northeastern portion of the site. The landfill had an original design elevation of50 feet. The Department of Environmental Regulation, in a separate permitting proceeding, has authorized an increase to the height of the existing landfill to 90 feet. The permit authorizing increasing the height of the existing landfill has been challenged by the Town of Davie and is the subject of a separate proceeding before the Division of Administrative Hearings. The site which includes the landfill also has a sludge lagoon and trash landfill located in close proximity to the sanitary landfill. The sludge lagoon was used until sometime in 1981 for disposal of septic tank clean-out, sludges, grease trap waste, and wastewater treatments. The trash landfill was designed primarily for disposal of yard trash. The existing landfill has vertical side slopes of 3.5 to l. In other words, the height of the landfill increases along sides by i foot for every 3.5 feet traveled horizontally. Through this application, Broward County is seeking approval to expand its sanitary landfill by adding a proposed Cell 14. Cell 14 would constitute a Class I landfill since it will receive in excess of 20 tons of solid waste per day. The proposed Cell 14 would be constructed along the existing western face of Cells 1 through 13. It would ultimately be constructed to a height of 90 feet and would be capped with an impervious substance. The western side slope of the proposed cell would also be 3.5 to 1. Cell 14 would cover approximately 11 acres, bringing the total size of the sanitary landfill to just over 30 acres. With Cell 14, the sanitary landfill would continue to operate until approximately 1986. Containing leachate and preventing it from entering surface or ground waters is a most important consideration in determining whether to permit sanitary landfills. Leachate is water that has passed through refuse and been contaminated by the refuse. If significant amounts of leachate from Cell 14 enters into surface and ground waters, violations of the Department's water quality standards would be likely. Several features have been designed into Cell 14 to prevent introduction of leachate into surface and ground waters. The base of the cell would have a high density polyethylene liner to prevent percolation of Leachate that collects at the bottom of the cell into groundwater. A leachate collection system consisting of pipes and manholes has been devised. As leachate collects at the base of the cell, it will be dumped into tank trucks and carried to nearby wastewater disposal plants where it will be treated. A stormwater collection system has been designed so that initial stormwater runoff will be pumped to the leachate collection system and tested. If significant pollutants are contained in the stormwater runoff, it can continue to be pumped into the leachate collection system and ultimately removed to off-site treatment plants. If there are not significant pollutants in the runoff, runoff will be collected in a swale system and ultimately percolate into groundwater. Water that leaves the site in this manner is not likely to cause violations of Department of Environmental Regulation standards either in surface or ground waters. Numerous technological advances have occurred since Cells 1 through 13 of the Davie Landfill were designed and constructed. These cells have a designed-in leachate collection system. The system presently functions adequately, except that the liners under the earlier cells appear to be breaking down. It is apparent that the liner under Cells 1 through 4 has deteriorated to the extent that all leachate from these cells is not collected in the leachate collection system, but enters the groundwater below the landfill. Leachate from a landfill of this sort and magnitude that enters groundwater is likely to cause pollution in violation of the Department's standards. Leachate is presently entering the groundwater from Cells 1 through 4. The nature of the liner under the remaining original cells is not known. It is thought to be made of asphalt. Many forms of asphalt, obviously including the kind that was used to line Cells 1 through 4, are not capable of containing Leachate for an extended period of time. If the liner breaks down, the leachate collection system under all of the original cells will no longer function, and leachate will enter the groundwater, causing violations of Department of Environmental Regulation standards. There will not be an impervious liner between the existing cells of the Davie Landfill and the proposed Cell 14. It has been estimated that the cost of such a liner would be prohibitive. There will be limerock placed between the existing cells and the proposed cell; however, limerock is permeable. Some Leachate from Cell 14 will seep into the existing cells. Some of the leachate from the proposed Cell 14 that enters the existing Cells 1 through 4 will find its way into groundwater under the landfill. Leachate that enters the remaining cells will also find its way into groundwater if the liner under these cells breaks down as the liner under Cells 1 through 4 has broken down. If Leachate from the proposed Cell 14 enters groundwater under the site of the landfill, it is likely to cause pollution in violation of Department of Environmental Regulation standards. Groundwater in the area of the Davie Landfill flows generally from the northwest to the southeast. Some of the groundwater from the site of the sanitary landfill is likely to find its way into a canal which is located just to the south of the site. this is the C-11 Canal. If leachate from the proposed Cell 14 enters groundwater under the site of the landfill, it is likely to ultimately cause violations of Department of Environmental Regulation standards in the C-11 Canal. Except for the fact that the liners under the existing cells of the sanitary landfill are subject to deterioration, the leachate collection system can function appropriately. The leachate collection system for the proposed Cell 14 can also function without allowing introduction of leachate into surface and ground waters. The leachate collection systems utilize pipes that are presently buried under the existing landfill and will be further buried by the construction of Cell 14. The pipes that are presently being used, and are proposed to be used, are designed to withstand pressure greater than would be imposed on them. Furthermore, they are being placed in such a manner (surrounded by rock and utilizing ball joints) as to reduce the pressure imposed upon them. It is possible that one of the pipes could break and that leachate could thus escape from the Leachate collection system. This possibility is not a likely one, however, given the design parameters of the pipes and the nature of their installation. The fact that the leachate collection system for existing cells of the Davie Landfill would be buried under the proposed Cell 14 does not raise a significant danger that the system will break down. Again, the design parameters of the pipes and the nature of their installation render breakage unlikely. The sludge pit that is located just to the southwest of the sanitary landfill and the trash landfill that is located just to the south of the sanitary landfill offer potentially severe threats to the integrity of ground and surface waters on and off of the site. The sludge pit is a hazardous waste site. The trash landfill is not designed to prevent substances placed on the landfill from percolating into groundwater. It does not appear that construction of the proposed Cell 14 addition to the sanitary landfill would increase the risk of pollution that the sludge pit and trash landfill present. It does not appear that construction of the proposed Cell 14 would cause significant additional surface or ground water flows that would increase the risk of material from the sludge pit or the trash landfill from entering surface or ground waters. The applicant has failed to provide reasonable assurance that its proposed addition to the Davie Landfill will not result in violations of Department of Environmental Regulation standards contained in Chapters 17-3, 17- 4, and 17-7, Florida Administrative Code. While the proposed cell has been designed with appropriate liners and with an appropriate leachate collection system, its location abutting an existing landfill which does not have an adequate liner preventing percolation of leachate into groundwater increases the risk of that occurring. It appears that the only means of preventing or reducing that risk is either to close off the existing cells, or to place a liner between the existing cells and any addition in order to prevent flows of Leachate from new landfill activities into the existing cells.
Findings Of Fact Petitioner provides electric, gas and water utility service at various Florida locations. During the 1979 test year, its Fernandina Beach Water Division served an average of 2,500 residential customers, 523 general service customers and nine private fire line customers. In addition, it maintained 210 fire hydrants for the City of Fernandina Beach. Service The Utility is providing satisfactory water service. There were no service complaints presented at the public hearing, nor were there any citations or corrective orders outstanding. Rate Base The Utility seeks recognition of a $1,332,178 rate base. This amount includes $82,128 for an office building completed in the last month of the test year, a $7,600 chlorinator building completed after the test year (March, 1980) , and a pumphouse still under construction at an estimated completed cost of $106,000. Neither the amounts nor their completion dates are in dispute. However, the Commission seeks to utilize a 13-month average year rate base which would result in the exclusion of all the above facilities except for the office building investment during the final month of the test year. Both parties cite Citizens of Florida v. Hawkins, 356 So.2d 254 (Fla. 1978) in support of their positions. Although the Court discusses the various methods of computing a utility rate base, it concludes that unusual or extraordinary growth is a prerequisite to use of a year end rate base. The Utility did not demonstrate unusual or extraordinary growth. Rather, customer growth during the test year was only about two percent, mandating use of an average rate base. The Utility suggests that construction of the chlorinator was required by the federal government under the provisions of the Safe Drinking Water Act. If so, the Utility would be permitted to include this Investment in its rate base. 1/ However, the Utility was in compliance with the Safe Drinking Water Act prior to construction of the pumphouse and made no showing that it was required to undertake this project by government authority. Capitalization of interest on the funds used in construction of new facilities should be authorized. However, this amount will not be subject to inclusion in the rate base until the facility itself is included. The Utility plant was shown to be 100 percent used and useful in the public service. In view of this, and the adjustments discussed above, the Utility's average rate base for the test year is $1,103,201. See Schedule 1 for detail. Operating Revenues The Utility seeks a test year revenue authorization of $581,037 based on expenses of $456,184 and a 9.39 percent return on its proposed rate base. It seeks to include an expense item of $2,400 for tank maintenance, basing this amount on the five-year amortization of a projected $12,000 expenditure. Although this procedure is proper, since tank maintenance is periodically required, the $12,000 is the anticipated cost of future maintenance rather than an actual cost. Therefore, this figure must be adjusted to one-fifth of the last actual maintenance cost, or $1,105. Prior to December, 1979, when its office building was completed, the Utility rented the required space. Since the new building was not recognized for rate making purposes until the final month of the test year, it is proper to include the rent expense actually involved during the preceding 11 months. Therefore, an upward adjustment in expenses of $1,524 is required. Authorized expenses should also include $45,281 proposed by the Utility to meet known increases in the cost of purchased electrical power. The limitation on test year expenses is not the same as that on test year investment. Rather, Chapter 367, Florida Statutes, specifically provides for recognition of outside test year increases in electrical power costs. See Section 367.081(4)(b), Florida Statutes (1980). The Utility supported its proposed rate case expense of $5,100 by late filed exhibit. Neither the amount nor the proposed three-year amortization period were opposed by the Commission and are appropriately included herein. In view of the above findings and a 9.10 percent return on investment (discussed below) , the Utility is entitled to revise its rates to produce annual revenue of $536,970. See Schedule 2 for detail. Cost of Capital The parties agreed that 15 percent is an appropriate return on equity investment. This amount, when weighed against the current cost of debt, supports an overall 9.10 percent rate of return. Rate Structure The parties propose adoption of a base facility charge rate structure. This rate design includes a fixed charge to each customer served based on that customer's share of fixed operating costs. The second element of the base facility charge represents -- the variable cost of water actually used. This rate structure provides an equitable method of allocating service costs and is consistent with statutory requirements that rates be just and nondiscriminatory. See Section 307.081(2), Florida Statutes (1980). The Utility proposes to increase its fire hydrant charge from $8 to $12 monthly and to include this amount in its regular service rates to all customers rather than as a separate charge to the City of Fernandina Beach. The amount of the increase is consistent with overall revenue needs and was not opposed by the Commission. The procedure to include fire hydrant charges in customer charges was requested by the City Commission of Fernandina Beach and would not discriminate against any customer or group of customers, since all benefit from the fire protection represented by these charges.
Recommendation Based on the foregoing Findings of Fact and Conclusions A, of Law, it is RECOMMENDED that Florida Public Utilities Company be authorized to file revised rates structured on the base facility charge concept, designed to generate annual gross revenue of $536,970 based on the average number of customers served during the test year. DONE and ENTERED this 18th day of December, 1980, in Tallahassee, Leon County, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact On September 16, 1983, respondent/applicant, Brevard County (County), filed an application for a permit with respondent, Department of Environmental Regulation (DER), seeking authorization to modify and expand its Fortenberry Road wastewater treatment plant from 0.80 million gallons per day (MGD) to 1.40 MGD, which is designed to provide treatment necessary to meet effluent limits based on receiving water quality. The facility is located on Fortenberry Road in Merrit Island, Florida, and is classified as a Class B, Level II treatment plant. On October 14, 1983, DER acknowledged receipt of the application, plans and related material and requested certain additional items to be filed within 30 days. These items were subsequently submitted by the County. On or about January 11, 1984 DER issued its proposed agency action in the form of a draft permit wherein it gave notice that it intended to issue Permit/Certification No. DC0S-75483 and authorize the proposed activity subject to fifteen general and ten specific conditions. These are set forth in detail in the draft permit which has been received in evidence as DER Exhibit 2. Generally, the permit would authorize the County to construct ". . .a 1.40 MGD design activated sludge wastewater treatment plant with chemical additives, a tertiary sand filter, disinfection by chlorination and effluent disposal to a drainage canal and thence to Newfound Harbor." The permit will expire on July 15, 1985. On January 18, 1984, notice of intended agency action to issue the permit was published by the County in Today, a newspaper publication in Brevard County. Upon reading that notice, petitioners, Craig Zabin, Judy Ryan and Robert B. Sampson, all homeowners in Merritt Island, filed petitions requesting a hearing to contest the permit. In their petitions, petitioners generally contended the proposed construction would result in the discharge of effluent containing toxic substances into an Outstanding Florida Water (Newfound Harbor) in violation of Rule 17-4.242, Florida Administrative Code, that the plant has no operating permit, that the plant has violated "discharge standards" for the last three years, and that the plant's present discharge is harmful to human health and aquatic life in violation of various DER rules. The draft permit indicates that the plant effluent will continue to be discharged into a ditch which eventually intersects Newfound Harbor. At that point the Harbor waters are classified as Class III waters within the meaning of Chapter 17-3, Florida Administrative Code. A portion of the Harbor, well to the south of the discharge point, is classified as an Outstanding Florida Water. Uncontradicted expert testimony established that the discharge would not have an impact that was technically measurable on the portion of Newfound Harbor classified as an Outstanding Florida Water. At the present time the County has no valid temporary operating permit (TOP) or operation permit authorizing the operation of the Fortenberry Plant. Although the County applied for such a permit, DER has issued a notice of intent to deny the most recent application for a TOP and that case remains pending before the Division of Administrative Hearings (Case No. 82-2850) According to Specific Condition No. 9 of the draft permit, the County must meet the following flow requirements: 9. Initial flows shall be limited to 1.0 MGD. Additional flows, in the 0.10 MGD increments, may be authorized upon receipt of written assurance from the permittee, based on actual test data, that the treatment plant will achieve the required level of treatment at such higher flows. Therefore, upon completion of construction activities, the County will be authorized a maximum flow of 1.0 MGD at the facility which is a 0.20 MGD increase over the most recently expired TOP. This approximates the current average flows of almost 1.0 MGD. Additional increases, in increments of 0.10 MGD, may be earned by the County by demonstrating with test data that the plant will continue to comply with the effluent limitations established by Specific Condition No. 10 of the draft permit. 2/ The latter limitations are based on a waste load allocation study that was completed in the late 1970s. The draft permit does not increase the allocation of the plant--rather the limits are the same that were formulated when the waste load study was originally completed. The existing facility consistently violates the limits of its allocated waste load. Construction of the additional treatment systems should bring the effluent from this plant into compliance with its waste load allocation. The amount of nitrogen, phosphorus and total suspended solids contributed to Newfound Harbor will be significantly reduced if the additional treatment facilities are constructed. Failure to improve and expand the existing facility will result in the plant continuing to contribute the same poor quality effluent to the waters of Newfound Harbor. Testing by the Department and the County has revealed the presence of high levels of lindane and malathion in the plant's effluent. These substances are spawned by insecticides and are highly toxic to aquatic organisms and invertebrates. Despite considerable investigation by the County, the source of these toxic chemicals is not known. The County is now a party to an enforcement action instituted by the Department on February 28, 1983, and it is in that proceeding, rather than the case at bar, that the appropriate steps to rid the effluent of these prohibitively high levels of malathion and lindane should be determined. In this regard, the Department has represented that it will take all reasonable steps in the enforcement action to insure that the toxic chemicals are eliminated or reduced to tolerable levels by the County, including the requirement that specially designed improvements be made to the plant. 3/ This action should be completed at the very earliest possible date since additional flows from the plant may be authorized at a later date thereby increasing the amount of toxic chemical discharge assuming all other variables remain constant. While the petitioners' concerns about the chemicals are well- founded and legitimate, the issuance of the permit should not be delayed since the plant is currently violating its wastewater load allocation and polluting the waters of Newfound Harbor. The applicant has provided reasonable assurance that the proposed construction would comply with the standards of Chapter 17-6, Florida Administrative Code, and not emit or cause pollution in contravention of Department standards or rules. Such assurances were not controverted by petitioners.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a permit be issued to Brevard County for its Fortenberry Plant in accordance with the terms and conditions of the draft permit. DONE and ENTERED this 4th day of April, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1984.
The Issue The issue is whether the Department of Environmental Protection's (Department's) proposed award of a contract to Intervenor, CDM Constructors, Inc. (CDM), is contrary to the Department's governing statutes, rules or policies, or the solicitation's specifications.
Findings Of Fact Based on all of the evidence, the following findings of fact are made: Background Piney Point is an abandoned fertilizer manufacturing plant adjacent to Port Manatee in Manatee County. In the fertilizer manufacturing process, phosphate rock is converted into soluble phosphorus by adding sulfuric acid to the phosphate rock to produce phosphoric acid. A by-product of this activity is phosphogypsum. For every ton of phosphoric acid produced, approximately five tons of phosphogypsum are produced. The phosphogypsum is stored in stacks like the ones at Piney Point. Federal and state regulations require that the phosphogypsum be managed in stack systems. (Stack systems are large impoundments containing contaminated water that has come into contact with the phosphogypsum.) This is accomplished by using process water to "slurry" the phosphogypsum to the stacks where the phosphogypsum settles out. The process water becomes extremely polluted as a result of the manufacturing activities and is typically very acidic. It contains heavy metals, such as arsenic, cadmium, chromium, and fluoride, in addition to high levels of nutrients, nitrogen, and total dissolved solids. It is also slightly radioactive. The process water is stored in impoundments surrounded by the phosphogypsum stacks, in cooling ponds, and in the seepage ditches around the stacks. The Piney Point site is located south of Tampa, approximately one mile inland from Bishops Harbor, which is a portion of Tampa Bay. The site encompasses a total of approximately six hundred acres. There are two phosphogypsum stacks located at Piney Point; each of these is divided into two compartments or ponds. Today, the old gypsum stack rises to a height of eighty feet. The site previously held around 1.4 billion gallons of process water with 800 million gallons stored in the various ponds and 600 million gallons stored in the pores of the gypsum stacks as pore water. The site is currently estimated to have 500 to 550 million gallons of process water of which about 350 million gallons is pore water. All of this water must be treated and removed in order to close and remediate the site. To close one of these phosphogypsum stack systems, all of the water must be removed from the ponds. The surface is allowed to dry and is then graded. A polyethylene liner is placed over the surface and than a soil cover is placed on top of the liner. The liner prevents any additional rainfall from infiltrating into the gypsum stack and creating additional process water. The pore water underneath the liner is then allowed to drain from the stack and is collected in seepage ditches, where the water will ultimately be treated. A thick layer of grass is grown on the steep slopes of the gypsum stacks to help prevent infiltration of rainwater back into the stacks. The ultimate goal is to convert this site into a freshwater reservoir for the residents of Manatee County. Until early 2001, Piney Point Phosphates, Inc., which was a subsidiary of Mulberry Phosphate Company (Mulberry), owned and operated a fertilizer manufacturing complex at Piney Point. (Mulberry also operated another fertilizer manufacturing complex in Mulberry, Florida). In February 2001, Mulberry filed a petition for protection from creditors in the United States Bankruptcy Court in Tampa, Florida. At the same time, Mulberry notified the Department that it did not have the resources to maintain the site. (The Department was also advised by Mulberry that it did not have the resources to maintain the stack system at the Mulberry site.) Because there existed the potential for release of the contaminated waters from Piney Point into Tampa Bay, the Department immediately assumed financial responsibility for Piney Point and in May 2001, a state court appointed a Receiver for Piney Point to take "all reasonable steps and action to preserve the Property's environmental integrity and its compliance with environmental regulations." To execute these duties, the Receiver entered into a contract with the Department. Pursuant to that contract, it retained the services of Ardaman, an international engineering consulting firm in Orlando, Florida, as its engineer of record to design a plan to close Piney Point and to ensure that the plan was properly implemented. At about the same time, the Receiver contracted with IT Corporation, the predecessor to Shaw, to begin some of the site closure work on an emergency basis. Since that time, the Department has spent $63 million at Piney Point, with Shaw receiving a majority of that amount. Based on the Department’s experience at the Mulberry site, it believed that it could realize a significant savings to the State through the Invitation to Negotiate (ITN) process and the use of a lump sum contract, rather than continuing to contract out the work for Piney Point on a time and materials basis. Further, the Department's Inspector General had recommended a lump sum contract as an incentive to the contractor selected to conduct the closure work. The ITN Under Section 403.4154(3)(a), Florida Statutes (2004),1 "[t]he department may take action to abate or substantially reduce any imminent hazard caused by the physical condition, maintenance, operation, or closure of a phosphogypsum stack system." Pursuant to this provision, on July 16, 2004, the Department issued ITN No. 2005002C (the ITN) entitled "Closure of the Piney Point Phosphogypsum Stack System." The contract called for a contractor to provide services at the Piney Point site in three primary areas: continued operation and maintenance of the site; water consumption; and closure of the phosphogypsum stack system. Water consumption consists of treating the process water and pore water and removing it from the site by evaporation, irrigation, discharge, or other methods. Closure of the stacks includes draining water from the stacks, grading the banks, and installing liners, clean soil, and sod. The contract is estimated to be worth approximately $51.2 million to the successful vendor. The contract was intended to replace the Receiver's existing contract with Shaw, although Shaw was free to compete for the new contract. A number of individuals were involved with developing the ITN. First, Gwenn D. Godfrey, who is the Department's Procurement Administrator, assisted with the original ITN. Also, Phil Coram, who is the Department's Chief of the Bureau of Mine Reclamation, was heavily involved with the ITN and assumed a major role on technical issues such as operation and maintenance as well as water management planning. Although the Department does not normally use private consultants in the procurement process, due to the complex technical issues involved, it retained Ardaman to assist with the procurement process. Ardaman, who was then serving as engineer of record on the project, does approximately 90 to 95 percent of all work performed in Florida in the area of phosphogypsum stack systems and has special expertise in that area. (As noted above, Ardaman designed the complex closure plan for the facility.) One of its employees, Dr. Nadim Fuleihan, a senior vice president and principal engineer, has served as the chief engineer for the Piney Point project since 2001 and has worked closely with Mr. Coram, who has been the Department's coordinator on the project since 2002. According to Mr. Coram, Dr. Fuleihan "knew more about that site, especially the closure aspects, . . . than anyone." This observation was undisputed. For that reason, Dr. Fuleihan was requested to assist in the procurement process. Mr. Coram was asked by Department management to identify individuals to serve as evaluators for the ITN process. Besides Dr. Fuleihan, management wanted the evaluators to consist of Department employees within the Bureau of Mine Reclamation, the Division of Waste Management, the Office of General Counsel, and representatives from other agencies that had been involved with Piney Point. The seven ITN evaluators consisted of Mr. Coram; Dr. Fuleihan; Sam Zamani, Administrator for the Department's Phosphate Management Program; John Wright, a professional engineer in the Department's Division of Waste Management; Jon Alden, a Department attorney who has represented the Department in the Mulberry bankruptcy case; Robert Brown, a Senior Environmental Administrator for Manatee County; and Richard Eckenrod, Executive Director of the Tampa Bay Estuary Program (TBEP). Before the evaluation process began, the Department required all members of the evaluation team to sign a certification that if "at any time during [their] participation on the contractor selection committee, that a potential conflict of interest exists," they agreed to notify the Department's Procurement Section of the circumstances surrounding the potential conflict of interest. By doing so, the Department complied with Section 287.057(20), Florida Statutes, which requires that if the procurement costs more than $25,000.00, "the individuals taking part in the development or selection of criteria for evaluation, the evaluation process, and the award process shall attest in writing that they are independent of, and have no conflict of interest in, the entities evaluated and selected." A requirement that the certification form be executed by each team member is also found in the solicitation instructions. Significantly, the certification form imposed a continuing obligation on the evaluators to notify the Department should any "potential conflict of interest arise." Prior to submitting responses, three potential vendors, Shaw, Compass, and CDM, contacted Dr. Fuleihan and asked him to participate on their respective teams in the ITN process. Dr. Fuleihan declined to work with any of them on an exclusive basis. Tetra Tech, Inc., which is Ardaman's parent company, also considered preparing a response to the ITN but Dr. Fuleihan advised it not to do so since Ardaman's status as engineer of record could raise a conflict of interest. On September 10, 2004, CDM, Compass, Shaw, and Coburn Construction (Coburn) submitted replies to the ITN. The Department subsequently deemed the reply by Coburn to be non- responsive for its failure to comply with the requirements of the ITN. Coburn did not challenge this determination. The other proposals were independently reviewed, scored, and ranked. The results were given to Mr. Coram, who computed an average rank for each of the firms. The final average rankings were very close with Shaw being ranked first, followed by Compass and CDM, who were tied. After the initial replies were filed, Mr. Eckenrod became concerned that he had a potential conflict of interest with Craig A. Kovach, President of QuietEarth Consultants, Inc., which was identified as a CDM subcontractor and team member. Mr. Kovach's wife served on the TBEP Board of Directors and had hiring and firing authority over Mr. Eckenrod. Accordingly, Mr. Eckenrod emailed the Department's Office of General Counsel for a determination of whether a conflict existed. Under the Department's Code of Ethics, which is also known as Administrative Directive DEP 202 (DEP 202), "[e]mployees should avoid any conduct . . . which might undermine the public trust, whether that conduct is unethical or may give the appearance of ethical impropriety." See Compass Exhibit 32, DEP 202, paragraph 7.a. In addition, another document known as DEP 315 establishes Department policy for the purchase of contractual and professional services. See Compass Exhibit 61. Paragraph 26 of DEP 315 adopts the standards of conduct for public officers and employees which are codified in Section 112.313(3) and (7)(a), Florida Statutes. While not specifically applicable to Mr. Eckenrod's situation, among other things, that paragraph prohibits Department employees from having an "employment or contractual relationship with any business entity . . . which is . . . doing business with" the Department. Teresa L. Mussetto, a Department attorney who then served as a Department Ethics Officer on behalf of the General Counsel, issued an opinion on September 29, 2004, stating in part that even though Mr. and Mrs. Kovach had never sought to influence Mr. Eckenrod, his professional association with a member of the CDM team "may be perceived as a conflict of interest," and that if the contract were ultimately awarded to CDM, the transaction might "reasonably give rise to the 'appearance of impropriety.'" See Shaw Exhibit 21. Ms. Mussetto also determined that even though Mr. Eckenrod was not a Department employee, he acted as an integral part of the procurement team and that DEP 202 was applicable to him. (It follows that DEP 315 would likewise apply.) Because DEP 202 requires that every aspect of the procurement process be conducted in a manner which would not undermine the public trust or lead a reasonable person to question its fairness and impartiality, Mr. Eckenrod's potential conflict with CDM's subcontractor was a sufficient basis for his removal from the evaluation team, and he did not participate further in the process. On October 12, 2004, the Department gave notice of its rankings of the vendors and informed them that it intended to exercise its right to conduct oral discussions with all three vendors. The firms would then be asked to submit Best and Final Offers (BAFOs) which would be scored anew. This was consistent with the ITN, which provided that the Department "reserves the right to short list respondents deemed to be in the competitive range to conduct oral discussions prior to the final determination of contract award." The decision to conduct oral discussions was made by senior management in the Department at the time scores were posted for the replies to the ITN. The Secretary of the Department, along with other senior management, determined oral discussions would be conducted with all three vendors to assist in formulating the BAFO Instructions (Instructions) and then the Department would proceed to score the BAFOs. No one has challenged this process. Development of the BAFO Instructions Before drafting the Instructions, the Secretary of the Department met with Earl Black, a Department of Revenue attorney, and Barbara F. Phillips, a Purchasing Analyst with the same agency. Both individuals had substantial experience with procurements and were asked to participate in the BAFO process. They agreed and were added to the evaluation team. As finally formed, the team consisted of two attorneys, four engineers, and two persons with significant procurement experience. Six of the eight had considerable prior knowledge of the Piney Point site. In an effort to refine the Instructions, CDM, Compass, and Shaw each made oral presentations to the Department's evaluators and other Department staff on November 3, 2004. All of the evaluators, including Mr. Black and Ms. Phillips, attended the oral presentation. As part of this process, the vendors were able to ask questions of the evaluators, and the evaluators were able to ask questions of the vendors. Following the oral discussions, another round of discussions was held with each vendor. These discussions were referred to as "negotiation sessions." The purpose of these discussions was to better understand the cost elements and facts of each vendor’s initial proposal in order to develop the Instructions. Mr. Alden, Dr. Fuleihan, Mr. Black, and Ms. Phillips conducted these discussions with each vendor. The Instructions were drafted by a group of individuals including Dr. Fuleihan, Mr. Black, Ms. Phillips, Ms. Godfrey, Mr. Alden, and Mr. Coram. Dr. Fuleihan gave input on the sections relating to technical issues primarily in the scope of work, which included the process water consumption section. He was also involved in revising the pricing summary and developing the evaluation criteria. Neither Shaw nor Compass challenged any part of the Instructions. After the Instructions were completed, but before the BAFOs were submitted by the three vendors, the Department again required each evaluator to complete a second conflict of interest certification. The form was similar to the earlier certification in the procurement process and required that the members certify that they had "no conflict of interest" with the "entities being considered for the contract award." Like the earlier form, it imposed a continuing obligation on the evaluators to notify the Department should any potential conflict of interest arise. The form listed CDM, Compass, and Shaw as the relevant entities. Each member, including Dr. Fuleihan, executed the certification. At that time, Dr. Fuleihan was not aware of any projects that Ardaman was doing for Shaw or Compass, and he did not believe that Ardaman was doing any work for CDM because of a past disagreement with one of the CDM entities that resulted in no work between the companies for many years. Section 1.19 of the Instructions provides that the Department reserves the right to waive minor informalities or irregularities in the offers received where such are merely a matter of form and not substance and the correction of which are not prejudicial to other vendors. Evaluation of the BAFOs On November 15, 2004, the Department issued the Instructions, which required that responses be filed by the three vendors no later than Wednesday, December 1, 2004. The Instructions also informed the vendors that negotiations with the top-ranked vendor would begin immediately after the posting of the scoring results. CDM, Compass, and Shaw timely submitted their BAFOs on December 1, 2004. CDM's response indicated that it proposed to use a specific water treatment process relying on The Mosaic Company (Mosaic) as its subcontractor. This company was formed when the phosphate operations of the Cargill Companies and IMC Global, Inc. were combined in October 2004, or shortly before the BAFOs were filed. The evaluators located in Tallahassee were individually given the responses submitted by CDM, Compass, and Shaw on Thursday, December 2, 2004. For those evaluators located outside of Tallahassee, the responses were given on Friday, December 3, 2004. Pursuant to a specific set of instructions provided by the Department, each evaluator, acting independently, then individually ranked the BAFO responses. In order to determine the responsiveness of the BAFOs, Ms. Godfrey used a checklist to review the individual submittals and found that all three were complete. Also, Dr. Fuleihan, who served as the subject matter expert, reviewed each proposal to ensure that the qualifications of the persons identified in the responses met the minimum qualifications listed in the Instructions. He determined that all three vendors met the minimum qualifications. Therefore, the Department considered all three vendors responsive to the Instructions and qualified to perform the work. (If an evaluator considered a particular item in the response to be incomplete or defective, the evaluator could reflect that by assigning a lower score to that response.) The BAFO Scoring Process For scoring purposes, each BAFO response was divided into approximately fifteen identified subcategories. A one-to- five scale (with five being the highest score) was used to evaluate each subcategory of the vendor’s response. The raw scores for a given subcategory would be multiplied by a weight factor that corresponded to that subcategory to arrive at a weighted score for each subcategory. To obtain a total score for each vendor, the weighted scores for each subcategory would then be added together. The total weighted scores could range between 0 and 220. Each vendor was then assigned a ranking based on its weighted total score. The vendor with the highest score received a rank of one, the second highest score received a rank of two, and the third highest score received a rank of three. If two or more vendors had identical weighted total scores the ranks were added together and divided by two. (For example, if Vendor A received a 175 and Vendors B and C each received a 170, the vendors would be ranked as follows: Vendor A - 1.0, Vendor B - 2.5, and Vendor C - 2.5.) After all the scores had been submitted, the ranks of each vendor were averaged to determine the best proposal for the State. Average ranks were used in order to normalize the evaluations so that an especially generous or especially hard grader would not skew the outcome. Each of the eight evaluators conducted an individual, objective, and impartial review of the three responses to the Instructions. They all spent four to five days, including a weekend, reviewing each of the responses. (There is some confusion regarding the actual amount of time that Mr. Zamani spent reviewing the BAFOs. Documents offered by Shaw reflect that he received the BAFOs on December 3 and returned his rankings the following day, December 4. Testimony offered by the Department reflects that he spent several days reviewing the filings. Even if Shaw's time frame is correct, there is no evidence that Mr. Zamani evaluated the BAFOs in an improper or arbitrary manner.) The evaluators did not have any discussions during the evaluation process about their evaluations. Outside one phone call from Mr. Brown to Mr. Coram to clarify what the vendors had received with the Instructions, the evaluators had no contact with one another. Mr. Alden ranked CDM first with a score of 177, Compass second with a score of 174, and Shaw third with a score of 172. Mr. Black ranked CDM first with a score of 140, Compass second with a score of 137 and Shaw third with a score of 106. Mr. Brown ranked CDM first with a score of 205, Compass second with a score of 183 and Shaw third with a score of 182. Mr. Coram ranked Compass first with a score of 180, Shaw second with a score of 175 and CDM third with a score of 170. Dr. Fuleihan ranked CDM first with a score of 192, while Compass and Shaw tied with scores of 189. Ms. Phillips originally submitted her evaluations with Compass ranked first with a score of 144, and Shaw and CDM tied with a score of 141. Due to an error when she transposed her scores from her notes to her score sheet, she corrected her evaluations at the hearing. With the corrected scores Compass was still ranked first with a score of 144, but CDM was now second with a score of 143, and Shaw third with a score of 139. However, this correction did not change the final results of the evaluation process. Mr. Wright ranked Shaw first with a score of 183, Compass second with a score of 181, and CDM third with a score of 166. Mr. Zamani ranked CDM first with a score of 218, Compass second with a score of 210, and Shaw third with a score of 191. After the evaluators submitted their score sheets, the ranks were added up and averaged to obtain a final ranking for each vendor. The final ranking was as follows: CDM was ranked first with an average rank of 1.688, Compass second with an average rank of 1.813, and Shaw third with an average rank of 2.500. (If Dr. Fuleihan's scores were removed from the final tabulation, as requested by Compass, then Compass would be the highest ranked vendor.) On December 7, 2004, the Department electronically posted a recommended award to CDM as the best- ranked vendor. As predetermined in the Instructions, the announcement also stated that negotiations would immediately begin with CDM, and if those negotiations failed, it would then negotiate with Compass, the second ranked vendor, and if those failed, with Shaw, who was ranked last. Compass and Shaw timely filed their Notices of Protest on December 9, 2004. On December 20, 2004, they timely filed their Formal Written Protests. Both Petitioners have contended that the process was flawed because Mosaic (a listed subcontractor on CDM's proposal) was a client of Ardaman; that Dr. Fuleihan had a conflict of interest which should have been disclosed; and he should have recused himself from the process. Shaw also contends (for the first time in its Proposed Recommended Order) that at least two of the evaluators (Mr. Black and Ms. Phillips) had little, if any, knowledge or experience concerning the scientific and technical requirements sought in the ITN and Instructions and were not qualified to evaluate the responses. It also alleged that a Sunshine Law violation may have occurred; that Mr. Zamani did not have a sufficient amount of time to evaluate the proposals;2 and that the proposals of CDM and Compass were non-responsive in various respects. The other contentions raised in Shaw's formal protest and the Pre-Hearing Stipulation have not been addressed in its Proposed Recommended Order and are deemed to have been abandoned. The remaining contentions are discussed below. Sunshine Law Violation There is no evidence that the evaluators met in closed meetings. Rather than scoring as a group, each of the evaluators scored the BAFOs separately and independently. Therefore, there was no meeting of the evaluators that was required to be conducted in the sunshine. No vendor attended the oral discussion meetings between another vendor and the evaluation team. However, there is no evidence that any of the vendors asked to attend those meetings or that the Department denied the vendors the ability to attend. Qualifications of the Evaluators There was no allegation in the Pre-Hearing Stipulation that any of the evaluators were unqualified. Although Shaw elicited testimony on that issue at hearing, especially regarding the qualifications of Mr. Black and Ms. Phillips, the issue was not timely raised. Even if it was, the evidence does not show that those two individuals, or any other member of the team, were not qualified. Mr. Black and Ms. Phillips were chosen for the team because of their extensive experience in state procurement, and not for their technical or scientific background. Mr. Black, who has been an attorney for thirty-two years, is an Assistant General Counsel and Section Chief for the Department of Revenue (DOR). In this position, he has handled numerous procurement cases for that agency. His duties include handling procurement matters, leasing matters and administrative functions for DOR. Prior to assuming his position at DOR, he worked for fourteen years for the Department of Management Services (DMS) as its primary attorney responsible for contracts dealing with environmental issues. Ms. Phillips is a Purchasing Analyst for DOR with over 28 years of procurement experience with the vast majority involving solicitation evaluations. Her responsibilities involve ensuring proper administration of complex contracts and specifications, Invitations to Bid (ITB), Requests for Proposals (RFP), ITNs, and advertisements. She develops guidelines and procedures to facilitate the ITB/RFP/ITN process and has evaluated procurement policies and procedures for DOR. Conflict of Interest Issue In its response to the ITN, CDM identified IMC Global, Inc., as a subcontractor for water treatment. After CDM's initial reply was submitted, IMC Global, Inc. and a subsidiary of Cargill merged to form a new company known as The Mosaic Company. To conform its BAFO with this corporate merger, CDM changed its response to reflect the new company as a subcontractor for water treatment and consumption. Because Ardaman had a contractual relationship with Mosaic at the time the BAFOs were submitted, Petitioners have contended that Dr. Fuleihan had a conflict of interest, that he should have disclosed this fact, and that he should have withdrawn from the ITN process. They also contend that the Department dismissed another non-employee evaluator, Richard Eckenrod, when it learned that he had a potential conflict of interest and that Dr. Fuleihan's circumstances are no different. When Mr. Coram suggested that Dr. Fuleihan participate as an evaluator, he knew that it would be likely that Ardaman would have contractual relationships with most or all of the phosphate companies over time. He expected Ardaman to continue to have such contractual relationships in the future simply because Ardaman does excellent work. However, he did not hesitate to recommend Dr. Fuleihan because he had worked with him on a daily basis for over the past three years and had known him for at least ten years. Mr. Coram testified that he always found Dr. Fuleihan's actions to be ethical and in the best interests of the State. Dr. Ardaman is a Senior Vice President of Ardaman, a member of its management team, and head of the firm's corporate engineering group. He receives a salary, bonus, and stock options; the bonus and stock options are tied to performance and profitability of Ardaman and its parent company, Tetra Tech, Inc. IMC, The Cargill Companies, and Mosaic have been clients of Ardaman. This is not surprising, however, because Ardaman's clients include "the whole phosphate industry." Indeed, Ardaman does approximately 90 to 95 percent of the engineering work performed in Florida involving phosphogypsum stack systems, a fact well known by virtually all of the players in the phosphate industry, including Petitioners. Over the last five years, Ardaman has represented such clients as Agrico Chemical Company, CF Industries, Inc., the United States Army Corps of Engineers, the Florida Department of Community Affairs, PCS Phosphate, Comanco Environmental Corporation, Moretrench Environmental Services, Inc., Shaw Environmental, Inc. (and its predecessor, IT Corporation), PENN PRO, Inc., and the Florida Department of Transportation. The Department itself is among Ardaman's most significant clients. When the ITN was first posted it was well known that Dr. Fuleihan knew all of the principals of CDM, Compass, and Shaw, including those who testified at the final hearing. In fact, Dr. Fuleihan has worked on numerous occasions with most, if not all, of the subcontractors and the consultants listed by all three vendors in their BAFOs. All three vendors also knew that Dr. Fuleihan had assisted with the ITN and BAFO processes and was serving as an evaluator for the BAFOs. Prior to the issuance of the Instructions, Dr. Fuleihan was present during the oral discussions along with the other evaluators. He also led the "negotiation sessions" where the Department was gathering information to develop the Instructions. Only after the Department proposed to award the contract to CDM on December 7, 2004, did Petitioners challenge Dr. Fuleihan's participation in the solicitation process and express a fear that the process might be tainted. Mosaic is considered an important client for Ardaman. However, there was no evidence that Ardaman would stand to gain anything from Mosaic by it serving as a subcontractor. Under the terms of the ITN, Ardaman will continue working for the Department at Piney Point as the engineer of record regardless of which vendor ultimately contracts with the Department. Ardaman did not receive any additional work from IMC Global, Inc., when it was conducting work at Piney Point in 2003, and Ardaman does not expect to receive any additional work if Mosaic returns to the site to assist with the operation of water treatment equipment. Although it is characterized as an important team member, Mosaic at most will have a limited role on CDM's team and would receive very little financial benefit from this work. Specifically, Mosaic will receive a nominal fee for allowing CDM to use the patents on its reverse osmosis equipment and roughly $50,000.00 for technical support in years three through five of the project, or a total of less than one-tenth of one percent of the estimated $52 million contract. (There is no guarantee that Mosaic will even be used by CDM since the vendor has the right to substitute subcontractors during the post-award negotiation process. In fact, CDM approached Mosaic because, at that time, Dr. Vaughn Astley worked for Mosaic, and CDM wanted his expertise and experience as part of CDM's team. Dr. Astley subsequently retired from Mosaic, as planned.) There is no evidence that, as a result of Mosaic being retained as a subcontractor for CDM, Ardaman or Dr. Fuleihan would be given extra business over and above what they already provide. There is also no evidence that as a result of CDM's being awarded the contract that Dr. Fuleihan would have his salary increased, obtain some sort of bonus, increase his stock options, or be enriched in any way. There is no evidence that Dr. Fuleihan attempted to influence the BAFO process to the advantage of any particular vendor. There is no evidence that he favored one vendor over another when he assisted in the preparation of the Instructions, determined whether the responses to the Instructions satisfied the minimum qualifications, and reviewed the BAFOs. To the contrary, the evidence supports a finding that Dr. Fuleihan scored and ranked the individual BAFOs in a fair and objective manner. Notwithstanding the lack of any evidence to show that Dr. Fuliehan exhibited bias or favoritism during the solicitation process, the facts surrounding the removal of Mr. Eckenrod are essentially the same as those of Dr. Fuleihan. In the case of Mr. Eckenrod, a non-employee, he alerted the Department that he feared that there might be an appearance of impropriety due to the fact that one of the individuals listed in CDM's proposal and his wife held positions on boards of the organization where he worked. Because the boards had the ability to hire or fire him, and determine the program's budget, Mr. Eckenrod was under the impression that this relationship might be perceived as potentially influencing his evaluation of the proposals. Given this impression, it was determined that a reasonable person might come to the same conclusion and therefore Mr. Eckenrod was excused from service. In the case of Dr. Fuleihan, also a non-employee, he had a professional relationship with a subcontractor (Mosaic), which relationship might reasonably give rise to an appearance of ethical impropriety in the event the contract was ultimately awarded to CDM. Therefore, even though there is no evidence that Dr. Fuleihan acted improperly in evaluating the proposals, a reasonable person might question his perceived impartiality. Under the precedent established in Mr. Eckenrod's case, DEP 202 and DEP 315 apply to Dr. Fuleihan's conduct, and he is obligated "to avoid any conduct . . . which might undermine the public trust . . . or give the appearance of ethical impropriety," and to not have a "contractual relationship with any business entity . . . doing business with" the Department. Given these standards, at a minimum, disclosure of this conflict was necessary as soon as the BAFOs were filed. By failing to make such a disclosure, the requirements in Section 287.057(20), Florida Statutes, the corresponding Instructions, and DEP 202 and 315 were contravened. The Department's contention that DEP 202 and DEP 315 do not apply to non-employees has been rejected, especially since the Department applied the same provisions to Mr. Eckenrod. During the course of discovery in this case (and after the solicitation process was over), Dr. Fuleihan learned that Ardaman does have one small contract (valued at $57,000) with CDM's parent company, Camp, Dresser & McKee (located in St. Louis, Missouri), that was entered into in April 2004. That contract calls for Ardaman to serve as a specialty consultant/ subcontractor to Monsanto Company (Monsanto) in providing waste disposal services for Monsanto's elemental phosphorus plant located in Idaho. When Dr. Fuleihan reviewed the BAFOs, he was unaware of this contract. He acknowledged, however, that had he known, he would have disclosed this fact to the Department. Even so, it is fair to infer that a reasonable search of Ardaman's records prior to the commencement of the process would have revealed this conflict, and the Department's Ethics Officer could have then made a determination as to whether Dr. Fuleihan could serve as a team member. Dr. Fuleihan signed two conflict of interest forms certifying that he had no conflict. He did not disclose any conflict with Mosaic because he did not believe that the form applied to subcontractors (as opposed to prime contractors), and because his firm's relationship with a potential subcontractor would not impede his ability to carry out his responsibilities in evaluating the proposals. (If Mosaic had been a prime contractor, Dr. Fuleihan acknowledged that he would have recused himself from the process.) Other Department witnesses (Godfrey and Coram) conceded, however, that the conflict of interest form applies to subcontractors as well as the prime contractor, and that if a conflict with a subcontractor arose, it should be disclosed to the Department. In summary, while there is no evidence that Ardaman's professional relationship with both a prime contractor and a subcontractor caused the evaluator to exhibit bias or favoritism towards any particular vendor, the relationships give rise to an appearance of ethical impropriety so that a reasonable person might question the impartiality of Dr. Fuleihan. By not having those relationships disclosed, the Department's governing statutes, policies, and Instructions were contravened. g. Were the CDM and Compass Proposals Responsive? Shaw also contends that there were "many areas" in which the proposals made by CDM and Compass did not materially comply with the Instructions, and that they should be considered non-responsive. Although Shaw's Formal Written Protest identified a wide range of purported deficiencies, only those items which are discussed in Shaw's Proposed Recommended Order are addressed here. Shaw first contends that even though the vendors were required by the Instructions to demonstrate the reliability of their chosen methods of water treatment, Compass elected to treat half of all water it would treat through an unproven technology that was not demonstrated to be reliable. Compass proposed a water treatment and consumption method consisting of double-liming and air stripping or aeration, followed by reverse osmosis. (Double-liming is a chemical treatment process involving the addition of lime to process water, while reverse osmosis is a physical treatment where process water is forced through a semi-permeable membrane at high pressure to separate the clean and contaminated water.) This was consistent with the Instructions, which specifically allowed a vendor to use double-lime, air-stripping, and reverse osmosis for water treatment. See Joint Exhibit 4, Attachment 3 at pages 20-21. There is no requirement in Attachment 3 that vendors use "proven technology" or demonstrate the reliability and viability of their proposed water treatment methods. There is no credible evidence in the record that the water treatment method proposed by Compass would not work. Shaw also alleged that Compass failed to adequately bid utility services, because on line A2 of its BAFO, Compass bid only $36,200.00 for all five years of electric utility services. In its proposal, Compass also included an assumed prevailing rate for power of $100,922.00 per month. Although only $36,200.00 is shown on line A2, Compass spread the rest of the utility costs (approximately $2.3 million) throughout the lines in Section B of Attachment 4. While this amount was lower than the other vendors, the Department believed that Compass' overall operation and maintenance expenses were reasonable, and if any mistake had been made by Compass by understating the power cost, it was to Compass' detriment and would not adversely affect the interests of the State. Shaw also argues that Compass submitted a drawing that included reinforced geotextile but omitted the cost for that item in that portion of its BAFO entitled "clarifications." (Geotextiles allow for drainage of fluids and provide a basis for bridging over soft, unstable materials). Compass indicated in the clarifications section of its BAFO that "reinforced geotextile would be (as needed). The cost for this reinforced geotextile is not included." Under the terms of the Instructions, there was no requirement that a vendor estimate quantities that are not listed on the Pricing Summary Sheet, so long as it submits a fixed price bid. Here, the Pricing Summary Sheet in the Instructions does not have a line for the "as needed" geotextiles, and Compass submitted a fixed price bid. Therefore, the omission of the cost for that item did not render the BAFO non-responsive. Finally, Shaw has alleged that in its BAFO, Compass limited its exposure for the cost of normal repairs and replacements of pumps and piping and was therefore non- responsive. This argument is based on the fact that Compass included $1.1 million in its cost estimate for normal repairs and replacement of pumps and piping. Shaw asserts, however, that because the plant is very old, the contractor will have to take responsibility for failing equipment in order to keep the plant running, and Compass has essentially capped its replacement costs for transformers, switch gears, and other necessary equipment. Shaw did not present evidence that Compass had actually capped its pump maintenance costs or that the amount shown was inadequate. In fact, Shaw's estimated pump maintenance was between $660,000.00 and $900,000.00, or less than the amount proposed by Compass. Even if the amount shown was underestimated, the Department has made it clear that it wanted a lump sum contract and would hold the vendors to the price stated in the BAFOs. (Like the other vendors, Compass submitted a fixed price bid.) Shaw next contends that CDM's proposal was non- responsive in the areas of spray evaporation, the closure construction schedule, water balance, and spray irrigation. These items will be discussed separately below. Shaw first asserts that CDM overestimated the amount of process water it can treat with spray equipment during the first two years of the contract since the spray equipment CDM proposes to use will not be available until the fifth month of the first year of the contract. During the first two years of the contract, CDM proposes to dispose of 175 million gallons of process water through spray evaporation, which involves spraying water into the air to form a mist of small droplets and enhancing the natural evaporation through various techniques. In doing so, CDM intends to use a new spray system developed by CF Industries, which has achieved a rate of 200 million gallons per year, or twice as much as the amount CDM proposes over a two year period. Therefore, even if the equipment can only be used for twenty months during the first two years, it is reasonable to assume that CDM can evaporate 175 million gallons of process water during the first two years, as projected in its BAFO. Shaw also points out that the Instructions require each vendor to supply a closure schedule including eight "milestones" that must be completed within certain time frames. The eighth milestone is the closure and placement of grass on all lined reservoir slopes at least one year prior to the end of the contract. See Joint Exhibit 4, Attachment 3, page 4, § IV. While it concedes that CDM included a closure schedule for the site, Shaw asserts that CDM failed to indicate when, if ever, it would place grass-protected soil cover on all lined reservoir slopes. While the Department acknowledged that CDM's BAFO was not as detailed as those of the other two vendors, it points out there is "a lot of flexibility in the BAFO," and that "the covers were not critical for the closure schedule." Because CDM clearly intends to place the soil cover on the lined areas in conformance with the closure schedule, the omission was not material and does not render the BAFO non-responsive. Shaw next contends that even though the Instructions require that a vendor prepare an independent water balance, it is not apparent in the BAFO whether CDM prepared one. See Joint Exhibit 4, page 14, § B. (A water balance is a professional estimate of the volume of water on site, coupled with a projection of how it will fluctuate over time considering rainfall and groundwater inputs, surface and spray system evaporation, groundwater seepage, and other factors.) The Instructions required that CDM independently estimate the water balance for the five-year contract period. Nothing in the Instructions, though, requires that the actual calculation or spreadsheets that support the estimated water balance be shown. With the assistance of its consultants, CDM estimated the total quantity of process water as slightly in excess of one billion gallons, which it rounded off to one billion. This amount was responsive to the Instructions and was similar to the amounts estimated by Shaw and Compass. Accordingly, the estimate by CDM was responsive to the Instructions. Finally, Shaw argues that while "CDM also mentioned the use of spray irrigation," CDM "did not estimate any volume of water to be treated with this method." The contention has been considered and found to be without merit. In summary, the BAFOs submitted by CDM and Compass conformed in all material respects to the solicitation. To the extent that there were any minor deviations, they did not give Compass or CDM an advantage or benefit not enjoyed by Shaw, and under Section 1.19 of the Instructions they could be waived by the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order determining that its proposed award of the contract to CDM Constructors, Inc., which was based upon a review, grading, and ranking of the vendors by an evaluation team that included Dr. Fuleihan, is contrary to its governing statutes, policies, and specifications. DONE AND ENTERED this 21st day of March, 2005, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2005.
Findings Of Fact In December, 1993, Suwannee Farms, through one of its partners, Robert Wight, applied to the Department of Environmental Protection for a wastewater treatment facility permit to be constructed on part of its property in Suwannee County, Florida. The Department of Environmental Protection requested clarification or amendment of the initial application. Suwannee Farms amended its initial application and the Department determined that the applicant had provided reasonable assurances of compliance with Florida Statutes and the Department's rules and regulations. The permittee listed on the initial application is Robert Wight. Suwannee Farms is a partnership consisting of Robert Wight and Joseph Hall. The permit is to be issued in the name of Suwannee Farms. Issuance in the name of the partnership is within the scope of the Department of Environmental Protection's authority. On January 25, 1994, the Department issued its Intent to Issue the permit. The intent to issue provided in part: Pursuant to Section 403.815, F.S. and DER Rule 17-103-150, Florida Administrative Code, you (the applicant) are required to publish at your own expense the enclosed Notice of Intent to Issue Permit. The Notice shall be published one time only within 30 days, in the legal ad section of a newspaper of general circulation in the area affected. For the purpose of this rule, "publication in a news- paper of general circulation in the area affected" means publication in a newspaper meeting the requirements of Sections 50.011 and 50.031, F.S., in the county where the activity is to take place. Where there is more than one newspaper of general circulation in the county, the newspaper used must be one with significant circulation in the area that may be affected by the permit. If you are uncertain that a newspaper meets these require- ments, please contact the Department at the address or telephone number listed below. The applicant shall provide proof of publication to the Department, at Northeast District Office, 7825 Baymeadows Way, Suite B-200, Jacksonville, Florida 32256-7577, within seven (7) days of the publication. Failure to publish the notice and provide proof of publication within the allotted time may result in the denial of the permit. The Notice Of Intent to Issue was published in the Gainesville Sun on February 5, 1994. Proof of publication was timely filed with the Department. The Gainesville Sun is a daily newspaper printed in Alachua County, Florida. The paper is available for purchase by the general public in Suwannee County, Florida and is sold to the general public at newspaper racks. Additionally, the Sun is available to residents of Suwannee County, including the area of the proposed project, through subscription and delivery via newspaper carrier "tubes." The Gainesville Sun is the only newspaper of general circulation delivered on a daily basis to homes in the area affected by the proposed permit. The Gainesville Sun contains national, state and local news stories, including local events in Suwannee County. Additionally, the Sun contains a legal ad section. The information in the Sun is of a public character and of interest and value to the residents of Suwannee County.dd The Sun has been published for more than a year in both Alachua and Suwannee Counties. At least twenty-five percent of the words in the Sun are in the English language and is entered as second class mail at the post office. There is no question that the Gainesville Sun meets the legal requirements of the Department for publication of Notices of Intent to Issue Permits in Suwannee County. Therefore, publication of the Intent to Issue Permit for the proposed wastewater facility involved in this case was appropriate. Through discovery and after an order compelling such answers, the Petitioner listed her objections to the issuance of the permit generally as noncompliance with nitrate level regulations, noncompliance with fencing regulations, noncompliance with set-back regulations and noncompliance with excessive noise and odor regulations. The evidence at the hearing demonstrated that the proposed wastewater treatment facility and land application meet the requirements of Florida Statutes and the Department's rules in the areas specified by the Petitioner as well as other areas of the statutes and rules. Suffice it to say that Petitioner offered no evidence which even remotely demonstrated that the Suwannee Farms permit did not meet these requirements or in some way failed to reasonably assure the Department that the requirements for a wastewater treatment permit with rapid rate land application would be met. Indeed, the only evidence in this case demonstrated that the technology proposed for the wastewater plant and rapid rate land application has been in use for a long time and has historically either met or exceeded the Department's requirements for nitrates (not to exceed 12 milligrams per liter), noise, odor and fecal coliform. There was no evidence submitted that would cause one to conclude that the technology for this facility would not perform as it has in the past at other locations. The plans of the facility clearly show adequate fencing and that the percolation ponds will be set-back at least 500 feet from any wells and at least 100 feet from any property line. Both fencing and pond location meet the requirements of Florida Statutes and Departmental rule. Given these facts, Petitioner has shown its entitlement to a construction permit for its proposed project.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection issue a Final Order granting the application of Suwannee Farms for a wastewater treatment facility and rapid land application permit. DONE and ENTERED this 4th day of May, 1995, in Tallahassee, Florida. DIANE CLEAVINGER 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 4th day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2800 1. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 of Respondent's Proposed Findings of Fact are adopted in substance, insofar as material. COPIES FURNISHED: Stephen C. Bullock P. O. Box 447 Jacksonville, FL 32201 Thomas I. Mayton, Jr. Assistant General Counsel D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400 Frederick L. Koberlein P. O. Drawer 2349 Lake City, FL 32056-2349 Virginia B. Wetherell, Secretary D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400 Kenneth Plante General Counsel D E P 2600 Blair Stone Rd. Tallahassee, FL 32399-2400
Findings Of Fact Upon consideration of the oral and documentary evidence presented at the hearing, the following relevant facts are found: In 1984, the citizens of Pasco County approved a "straw ballot" proposal providing for the establishment of a resource recovery facility financed with non-ad valorem revenue bonds for the purpose of disposing of the County's solid waste in lieu of utilizing sanitary landfills as a primary disposal method. The Board of County Commissioners of Pasco County thereafter commissioned the consulting engineering firm of Camp Dresser and McKee (CDM) to perform a resource recovery feasibility study and to identify a site for the facility. CDM concluded that a resource recovery facility was an economically feasible approach to solid waste management for Pasco County. After evaluating seven sites for such a facility, CDM recommended a 751-acre site on Hays Road in western Pasco County. The County purchased the site at a cost of approximately three million dollars. In 1987, the Legislature adopted a Special Act, Chapter 87-441, Laws of Florida, establishing a solid waste disposal and resource recovery system within Pasco County and giving the County exclusive control over the collection and disposal of solid waste generated or brought within the area affected by the Act. The solid waste disposal and resource recovery system proposed by the County will convert solid waste into electrical power through a process of combustion, utilizing a mass-burn technology, followed by landfilling of the ash residue. Initially, the "waste-to-energy" facility will have three combustion/steam generation units, which will dispose of 900 tons of refuse each day and produce approximately 22 megawatts of electricity. A fourth combustion unit may be added in the future, thus allowing the facility to dispose of 1,200 tons of refuse each day and produce 29 megawatts of electricity. The resource recovery facility and landfill/ashfill is designed with the purpose of complying will all applicable environmental regulations. Best available control technology will be utilized to minimize the emissions of air pollutants. The facility will use a baghouse with fabric filters to control particulate emissions and a dry scrubber to control acid gas emissions. The landfill will have two synthetic liner systems and two leachate collection systems to maximize the protection of groundwater resources. Stormwater on the site will be treated in retention/detention basins, and there will be no discharges of wastewater on the site. Ferrous metals in the solid waste will be recovered and recycled. The undeveloped 751 acre parcel of land owned by the County is located in an unincorporated area of northwest Pasco County. It is approximately two and a half miles north of Highway 52 and about four to five miles west of Route The site is accessible by Hays Road, which forms its southern and western boundaries. Shady Hills Road runs to the east of the site and Blue Bird Lane runs along the northern perimeter. The parcel is bisected by Florida Power Corporation power lines, which run in a north/south direction. All development on the site relating to the proposed resource recovery facility will be east of the power lines. The site primarily consists of grasslands and wooded areas. Most of the areas near the site boundaries are wooded. An access road from Hays Road would be constructed to lead to the resource recovery facility, and the site would also contain a landfill/ashfill and several stormwater retention ponds. The resource recovery facility will be located on the southeastern portion of the site, approximately 4,600 feet from the site's northern boundary. The facility will be approximately 2,400 feet from the nearest residence, which is located on Hays Road. There will be at least 250 feet of buffer area between the resource recovery facility and the property boundaries. There will be at least 700 feet of buffer area between the landfill and the northern boundary of the site. The ashfill portion of the project would be developed over a 25 to 35 year period. The areas surrounding the site consist of agricultural and very low density residential developments. The areas to the east, southeast, and southwest are very sparsely populated. There is scattered low density residential development to the north, northeast and northwest, and some scattered residences south and southwest of the site. The subject parcel of land lies within the Pasco County Zoning Code's A-C Agricultural District. According to the Pasco County Zoning Code, Ordinance No. 75-21, the purpose of the A-C Agricultural District is to preserve the rural and open character of various lands within Pasco County. The principal permitted uses within this District include agriculture, general farming and horticulture; single family dwellings; duplexes; home occupations; public and private parks and playgrounds; mineral extraction activities; and residential treatment and care facilities. Accessory uses include private garages and parking areas, private swimming pools and cabanas, and signs. Special exemption uses within the A-C Agricultural District include country club and golf course, aircraft landing fields, cemeteries, animal hospitals, sanitary landfills and public buildings and public utility facilities which do not cause an undue nuisance or adversely affect existing structures, uses and residents. Ordinance Number 82-04, Section 2, amended the Pasco County Zoning Code to exempt from its provisions "development and other activities conducted by Pasco County." (Exhibit No. 3) It was the opinion of Pasco County's Zoning Administrator that the proposed resource recovery facility and landfill/ashfill were exempt from the County's Zoning Code. The County's present Planning Director concurred with this opinion. It was further the opinion of the Zoning Administrator that even if the project were subject to the requirements of the Zoning Code, it could be built as a special exemption use in the A-C Agricultural District. Pasco County has an ordinance, known as the New Development Fair Share Contribution for Road Improvements Ordinance, which requires developers to pay impact fees for transportation purposes. According to the County Planning Director, this ordinance expressly excludes County projects from its provisions. It was the opinion of the County's land use planning and zoning experts that the use of the site for a resource recovery facility would be compatible with surrounding land uses. The project will be designed so as to be barely visible from surrounding areas and to give as pleasing an aesthetic appearance as possible to the site. When a detailed site plan for the facility is prepared, the project will be evaluated by the Pasco County Development Review Committee, composed of County employees from various departments, to ensure that the project is consistent with existing regulations and compatible with surrounding land uses. The Pasco County comprehensive land use plan was adopted in 1982 and is currently being revised. It is a policy document containing various planning elements, with goals, objectives, policies and recommendations. It does not currently include a land use map that specifically identifies the permissible land uses for the site of the proposed resource recovery facility. In the process of updating its comprehensive plan, the County will adopt a future land use map. The Chief Planner for the Pasco County Planning Department testified that the land use map to be submitted for future adoption will designate the proposed site as a resource recovery site. The County's comprehensive plan contains a solid waste and resource recovery element. The plan recognizes waste disposal as a crucial concern, and the goal of this element is to dispose of the County's domestic and industrial waste in the safest and least expensive manner. From an engineering perspective, the project will be designed to comply with applicable state and federal requirements pertaining to air and water pollution. The economic feasibility of a resource recovery facility has been studied, with positive results. Other elements of the Pasco County comprehensive plan relevant to the proposed resource recovery facility include the traffic circulation element, the water element, the conservation/coastal zone protection element, the drainage element and the utilities element. A traffic analysis demonstrated that current levels of service on State Road 52 and on Hays Road will not be diminished as a result of project operations. The use of reclaimed water will promote the objective of water conservation. The proposed site has not been designated for preservation or conservation and the project will have minimal impact on wetland areas. The stormwater management system will be designed so that runoff will not be channelized into any natural surface water body. The retention basins will be of sufficient size to allow adequate settling of suspended solids collected with the stormwater. By producing electrical power as a by-product of solid waste disposal, the project will further the objective of the comprehensive plan's utility element of encouraging the conservation of limited resources in the operations of utility systems. On December 31, 1987, notice of the land use hearing was published in the Pasco Times newspaper, a daily newspaper of general circulation which has been continuously published at Port Richey in Pasco County, Florida, each day for a period in excess of one year preceding the publication of notice in this case. In addition, notice of the land use hearing was published in the Florida Administrative Weekly, Volume 13, Number 53, on December 31, 1987. The Department of Environmental Regulation issued a news release concerning the land use hearing on December 24, 1987. By letters dated December 28, 1987, notice was given by certified mail to the Executive Director of the Tampa Bay Regional Planning Council, the Pasco County Planning Department and the Pasco County Zoning Administrator. Notice of the land use hearing was also posted at the project site. Eight persons, all of whom resided or owned property near the proposed site, testified at the land use hearing as members of the general public. All opposed the construction and operation of a resource recovery facility and landfill/ashfill at that site. Though none of the witnesses claimed to have expertise concerning the subject matter of their testimony, their concerns included the impacts of the proposed project upon the environment; the value and use of their land, homes and businesses; the recreational value of surrounding properties and the general agricultural character and nature of the surrounding land. Concerns were also expressed over the safety features and costs involved in the operation of the facility. These citizens of Pasco County did not believe it was proper for the County to exempt itself from the County's zoning laws and impact fees.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order finding that the use of the site chosen by Pasco County for the location of its proposed solid waste and resource recovery facility is consistent with and in compliance with the applicable land use plans and zoning ordinances. Respectfully submitted and entered this 25th day of March, 1988, in Tallahassee, Florida. DIANE D. TREMOR 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 25th day of March, 1988. APPENDIX "A" TO RECOMMENDED ORDER, CASE NO. 87-5337 Pasco County's proposed findings of fact have been fully considered and are accepted and incorporated in this Recommended Order, with the following exceptions: 16, second sentence: Rejected as speculative. See Finding of Fact Number 10. 22, last sentence: Rejected as improper factual finding, but addressed in the Conclusions of Law. 23, last sentence: Rejected as argumentative and improper factual finding, but addressed in Conclusions of Law. COPIES FURNISHED: David S. Dee Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 Richard T. Donelan, Jr. Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399 C. Lawrence Keesey Rhyne Building 2740 Centerview Drive Tallahassee, Florida 32399 Edward B. Helvenston 2379 Broad Street Brooksville, Florida 34609-6899 Mike Twomey Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Honorable Bob Martinez Governor The Capitol Tallahassee, Florida 32399 Honorable Bob Butterworth Attorney General The Capitol Tallahassee, Florida 32399 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32399 Honorable Gerald Lewis Comptroller The Capitol Tallahassee, Florida 32399 Honorable Bill Gunter Insurance Commissioner The Capitol Tallahassee, Florida 32399 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399
