The Issue The issues remaining in this case are: (1) whether New River Solid Waste Association (NRSWA) requested that its permitted bioreactor landfill system be included as part of its application for renewal of its operating permit for the New River Regional Landfill in Union County, Florida; (2) whether Petitioner participated in this proceeding for an improper purpose under Section 120.595(1); and (3) whether the prevailing party is entitled to an award of attorney fees and costs under Section 403.412(2)(f). (Citations to sections are to the 2000 codification of Florida Statutes. Rule citations are to the current Florida Administrative Code.)
Findings Of Fact NRSWA is comprised of Union, Baker, and Bradford Counties and was formed to share the costs associated with solid waste disposal. NRSWA owns and operates the New River Regional Landfill in Union County. The landfill was initially permitted in 1990 and was expanded and the original permit renewed in 1995 for an additional five years, expiring on November 6, 2000. The landfill now has a permit for disposal of Class I waste in three cells, with a fourth under design; it also has a permit for disposal of Class III waste and a permit for a waste tire collection center. Cells 1 and 2 were retired, and in July 1999 NRSWA applied to modify its operating permit (Permit No. SC63-271982) to allow construction and operation of a bioreactor landfill system on retired cells 1 and 2. On June 26, 2000, DEP gave notice of its intent to issue NRSWA a permit modification to construct and operate the bioreactor system. On July 11, 2000, Petitioner, Paul Still, timely filed a Petition for Administrative Hearing to challenge DEP's proposed agency action. On August 15, 2000, DEP referred the matter to DOAH, which gave it DOAH Case No. 00-3448 and assigned an ALJ. On August 28, 2000, NRSWA filed a Motion to Dismiss the Petition for Administrative Hearing for lack of standing. On September 8, 2000, NRSWA applied to DEP for renewal of Permit No. SC63-271982 for continued operation of its landfill. The renewal application requested that all landfill permits be consolidated into the renewal permit as a single operating permit. However, at the time Case No. 00-3448 on the bioreactor modification application remained pending, and the renewal application did not specify the bioreactor modification as part of the renewal application. Frank Darabi, NRSWA's professional engineer, signed a transmittal letter on September 7, 2000; arranged for delivery of the application to DEP's Northeast District office in Jacksonville, Florida; and thought it was delivered and left there after-hours on September 7, 2000. But NRSWA did not prove that the renewal application was submitted to DEP before September 8, 2000, when it was filed-stamped. The renewal application was submitted on DEP FORM 62- 701.900(1). The application was signed on the behalf of NRSWA by Darrell O'Neal, its Executive Director. By this signature on the form, O'Neal swore that all statements in the application were true, correct, and complete and agreed on behalf of NRSWA to comply with applicable statutes and DEP rules. The application was also signed, sealed and dated by Frank Darabi, as professional engineer. Darabi's signature certified that all engineering features in the application were "designed/examined by me and found to conform to engineering principals [sic] applicable to such facilities." On September 18, 2000, the ALJ in Case No. 00-3448 entered an Order Granting Motion to Dismiss with Leave to Amend. The ALJ held that the allegations in the Petition for Administrative Hearing failed to demonstrate that the Petitioner "ha[d] sustained, or [wa]s in the immediate danger of sustaining some direct injury as a result of the proposed agency action." The ALJ granted Petitioner leave to amend as to standing. On September 26, 2000, Petitioner filed an Amended Petition for Administrative Hearing in Case No. 00-3448, which included new allegations in an attempt to address the question of Petitioner's standing. On October 5, 2000, NRSWA filed a Motion to Dismiss the Amended Petition for Administrative Hearing. NRSWA asserted that the Amended Petition for Administrative Hearing failed to sufficiently allege Petitioner's standing. On October 6, 2000, DEP issued a Request for Additional Information (RAI) as to the renewal application. The RAI did not ask for any information concerning the pending bioreactor modification application. On October 20, 2000, the ALJ in Case No. 00-3448 granted NRSWA's motion to dismiss Petitioner's amended petition in that case, finding that the amended petition "ha[d] set forth no new allegations sufficient for a presumption of standing to initiate and sustain these proceedings." On November 3, 2000, NRSWA submitted its response to DEP's RAI, which included the statement: Please note the permit modification application for the bioreactor construction and operation, DEP File Number 0013500-004-SC, is currently under review by Department. It is understood that the previously submitted bioreactor information is to be incorporated in the renewed permit. This statement was included after Darabi asked DEP and was told that it would be appropriate to include information about the pending bioreactor modification application in the response to RAI although not asked for in the RAI. NRSWA's response to RAI was signed by Darabi, with a copy to O'Neal. Darabi's signature did not make representations or certifications like those provided for in DEP FORM 62- 701.900(1). However, Darabi had been NRSWA's professional engineer since its inception, had signed numerous application submissions on behalf of NRSWA over the years, and clearly had authorization to submit the response to RAI. DEP entered its Final Order dismissing Case No. 00-3448 on December 4, 2000. On December 12, 2000, DEP issued Permit Number 001-3500004-SC to NRSWA for the bioreactor modification. This permit provided in pertinent part: This modification shall remain in effect as long as the underlying permit, SC63-271982, is in effect. The underlying permit will remain in effect until final agency action is taken on the renewal application of that permit . . . . Petitioner did not appeal the Final Order in Case No. 00-3448. Following review of the additional information submitted by NRSWA on its renewal application, DEP deemed the permit application complete as of November 3, 2000. Additional information was submitted in January 2001, including a request submitted on January 11 that the bioreactor modification part of the renewal permit address specific conditions omitted from the modification permit issued on December 12, 2000. On February 15, 2001, DEP gave notice of intent to renew NRSWA's permit for continued operation of its landfill. DEP's draft permit incorporated specific conditions addressing the construction and operation of the bioreactor system, as well as all other permitted landfill activities. The evidence is clear that, since November 3, 2000, NRSWA consistently has taken the position that the bioreactor system modification was included in its renewal application. Alleged Improper Purpose The evidence did not prove that Petitioner participated in this proceeding for an improper purpose--i.e., primarily to harass or to cause unnecessary delay or for frivolous purpose or to needlessly increase the cost of licensing or securing the approval of NRSWA's permit renewal applications. To the contrary, the evidence was that Petitioner participated in this proceeding in an attempt to raise justifiable issues as to why NRSWA's permit renewal application, with bioreactor landfill system in cells 1 and 2, should not be granted. Petitioner failed in his attempts in large part because several issues he wanted to litigate were outside the scope of a permit renewal application and because he had no expert testimony on issues he was allowed to raise. At that point, Petitioner announced he was dropping all issues but one. The sole remaining issue after Petitioner's announcement might be viewed as a procedural technicality bordering on being frivolous. But it arose out of the complex (as DEP described it, "muddled") procedural history. Under these circumstances, it is not found that Petitioner's continued litigation of his sole remaining issue was frivolous.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order: (1) dismissing the verified Petition for Administrative Hearing; (2) granting NRSWA's application to renew Permit No. SC63-271982, as set forth in the draft permit--i.e., for merger and continued operation of all existing landfill operations, including NRSWA's Class III waste disposal permit, its permit for a waste tire collection center, and its permit for the bioreactor landfill system on cells 1 and 2; and (3) denying NRSWA's request for attorney fees and costs from Petitioner under Section 120.595(1) and Section 403.312(2)(f). Jurisdiction is reserved to enter a final order on NRSWA's Motion for Attorney Fees and Costs under Section 120.569(2)(e), to the extent that it has been preserved. DONE AND ENTERED this 7th day of August, 2001, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 7th day of August, 2001. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Paul Still Route 4 Box 1297H Starke, Florida 32091 Jonathan F. Wershow, Esquire Post Office Box 1260 Gainesville, Florida 32602 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 David B. Struhs, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building Tallahassee, Florida 32399-3000
Findings Of Fact At all times pertinent to the issues herein, Respondent, Cargill, a Delaware corporation authorized to do business in Florida which owned and operated a phosphate mine near Fort Meade, located in Polk County Florida. Petitioner, Gloria Elder, owns residential property adjoining the Fort Meade Mine on which she maintains an individual water well for domestic and other purposes. The Respondent, District, has the responsibility for regulating the consumption and conservation of ground and surface water within its jurisdictional limits, including the well in question. For a period prior to December, 1990, Cargill had been operating under consumptive use permit No. 202297.04, issued by the District, which provided for average daily withdrawals of 12.0 MGD from wells on its property. In addition to the 12.0 MGD, Cargill also was utilizing an additional 3.3 MGD for mine pit and surficial aquifer dewatering activities which did not have to be reflected in the permit but which were lawful uses. In December, 1990, Cargill submitted its application to renew the existing water use permit with a modification including the 3.3 MGD previously being used but not officially permitted. No additional water would be drawn from the permitted wells as the newly applied for 15.3 MGD was the total of the 12 MGD and 3.3 MGD previously permitted and lawfully used. After reviewing the additional information requested of Cargill pertaining to this application, the District published its Notice of Proposed Agency Action for approval of the permit. The proposed permit authorizes withdrawal of the amount requested in the application, 15.3 MGD, the exact same amount actually withdrawn under the prior permit. As a part of the proposed permit the District imposed two special conditions. These conditions, 12 and 13, require Cargill to conduct its dewatering activities no closer than 1,500 feet to any property boundary, wetlands, or water body that will not be mined or, in the alternative, to mitigate pursuant to conditions 12 and 13 any activities conducted within the 1,500 foot setback. There are no reasonable alternatives to Cargill's request. The mining process in use here utilizes a water wash of gravel-size phosphate ore particles out of accompanying sand and clay. The water used for this purpose is recycled and returned to the washer for reuse. The resulting phosphate ore mix, matrix, is transported with water in slurry form to the refining plant. This system in the standard for phosphate mining in the United States. Once at the plant, the slurry is passed through an amine flotation process where the sand and phosphates are separated. This process requires clean water with a constant Ph balance and temperature which can be retrieved only from deep wells. Even though the permit applied for here calls for an average daily withdrawal of 15.3 MGD, typically the Cargill operation requires about 10.08 MGD from deep wells. This is a relatively standard figure within the industry. Approximately 92 percent of the water used at the site in issue is recycled. However, recycled water is not an acceptable substitute for deep well water because it contains matters which interfere with the ability of the chemical reagents utilized in the process to react with the phosphate rock. Therefore, the quantity sought is necessary and will support a reasonable, complete mining operation at the site. The Cargill operation is accompanied by a strenuous reclamation operation. Land previously mined near the Petitioner's property has been reclaimed, contoured, re-grassed and re-vegetated. This project was completed in 1990. No evidence was introduced showing that Cargill's operation had any adverse effect on the Elders' well. Water samples were taken from that well at the Petitioner's request in May, 1991 in conjunction with the investigation into a previous, unrelated complaint. These samples were submitted to an independent laboratory for analysis which clearly demonstrated that the minerals and other compounds in the water from the Petitioner's well were in amounts well below the detection level for each. Only the iron level appeared elevated, and this might be the result of deterioration of the 18 year old black iron pipe casing in the well. Another possible explanation is the fact that iron is a common compound in that part of the state. In any case, the installation of a water softener would remove the iron, and there is no indication the water would have any unacceptable ecological or environmental impacts in the area either on or off the site. No other residents in the area have complained of water quality problems. Petitioner claims not only that Cargill's operation would demean her water quality but also that its withdrawal will cause a draw down in the water level in her well. This second matter was tested by the District using the McDonald-Haurbaugh MODFLOW model which is well recognized and accepted within the groundwater community. The model was applied to the surficial, intermediate, and upper Floridan aquifers and indicated the draw down at the property boundary would be less than one foot in the surficial aquifer and less than four feet in the intermediate aquifer. The model also showed the draw down at the Petitioner's well would be less than three feet, which is well within the five foot criteria for issuance of a consumptive use permit under the appropriate District rules. This evidence was not contradicted by any evidence of record by Petitioner. All indications are that the water use proposed is both reasonable and beneficial, is consistent with the public interest, and will not interfere with any existing legal use of water.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that WUP Permit No. 202297.05 be renewed as modified to reflect approval of 15.3 MGD average daily withdrawal. Jurisdiction will remain with the Hearing Officer for the limited purpose of evaluating the propriety of an assessment of attorney's fees and costs against the Petitioner and the amount thereof. RECOMMENDED this 29th day of April, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1993. COPIES FURNISHED: Joseph N. Baron, Esquire 3375-A U.S. Highway 98 South Lakeland, Florida 33803 Rory C. Ryan, Esquire 200 South Orange Avenue Suite 2600 Post office Box 1526 Orlando, Florida 32801 Martin D. Hernandez, Esquire Richard Tschantz, Esquire 2379 Broad Street Brooksville, Florida 34609 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue Whether Respondent John M. Williams deposited fill in waters of the state without a permit from the Department of Environmental Protection. If so, what is the appropriate corrective action and penalty?
Findings Of Fact Mr. Williams and the Cowford Subdivision Petitioner John M. Williams is a retired mechanic. In 1992, he became acquainted with the Cowford subdivision in Walton County, near Bruce, Florida. The subdivision fronts the Choctawhatchee River. Mr. Williams purchased lot 29 of the subdivision. Three or four years later, he bought lot 30. All told, Mr. Williams paid approximately $47,000 for the lots, an electric power line and an "above-ground" septic tank. The purchase price of the lots was $38,000. Running an electric line and installation of an electric light pole cost about $4,000. Mr. Williams paid about $5,000 for the septic tank and its installation. Mr. Williams' ultimate goal in purchasing the lots and adding the improvements was to build a house on the property for use in his retirement. Attempt to Obtain the Necessary Permits The septic tank was not purchased by Mr. Williams until after he had obtained a permit for its construction. At the county offices where he went to obtain the necessary permit, he was "sent over to the power company." (Tr. 216). At hearing, he described what happened there: I paid my money to get my power and they -- well, they informed me . . . once I got my power on I had 6 months to get my septic tank in the ground or they would turn my lights off. So here I had a $3,500 light pole put up and I couldn't very well see this thing going down. So, I went ahead to the Health Department. (Id.) Mr. Williams' testimony is supported by a Walton County Environmental Health Notice dated March 8, 1999, that states, "The Walton County Building Department will not be issuing approval for power for any residence until final approval of the septic system is obtained from the Walton County Environmental Health Office." P7, the first page after Page 3 of 3, marked in the upper right hand corner as PAGE 10. At the Health Department, on April 12, 1999, Mr. Williams applied for an "Onsite Sewage Treatment and Disposal System" permit on a form bearing the following heading: STATE OF FLORIDA DEPARTMENT OF HEALTH ONSITE SEWAGE DISPOSAL SYSTEM APPLICATION FOR CONSTRUCTION PERMIT Authority; Chapter 381, FS & Chapter 10D-6, FAC P7, page 1 of 3. According to the form, he paid the $200 fee for the permit on April 29, 1999. The payment was made within a month or so after the installation of the power line. An attachment to the "Walton County Environmental Health Onsite Sewage Treatment and Disposal System Application," made out by Mr. Williams on April 12, 1999, contains the following warning: OTHER AGENCY PERMITS: As the owner or agent applying for an OSTDS permit it is my responsibility to determine if the proposed development is in compliance with the zoning requirements of Walton County. I further assume responsibility to obtain any applicable permits from other State and Local Government Agencies. P15, page 2. (emphasis supplied) (See also P7, the second page after Page 3 of 3, marked in the upper right hand corner as PAGE 11). On May 5, 1999, about three weeks after Mr. Williams submitted the construction permit application, the site where the septic tank would be installed was evaluated by an EH Specialist, an inspector. On the same day, an Onsite Sewage Treatment and Disposal System Construction Permit was issued for an "above-ground" 900-gallon septic tank. Installation With county personnel present and under county supervision, the septic tank was installed on a ridge on Mr. Williams property about 17 feet above mean sea level. Fill dirt was brought onto the site and placed on top of the tank to create a septic tank mound. No dredging of the property was done in connection with the installation. Chance Discovery After a complaint was registered with DEP about dredge and fill activity on one of the lots near Mr. Williams, Gary Woodiwiss, then an environmental specialist in the Department assigned to conduct inspections in Walton and Holmes Counties, visited the Cowford subdivision in July 2000. During the visit, Mr. Woodiwiss noticed the septic tank mound on Mr. Williams' property and that the mound, in part, consisted of fill dirt. Being of the opinion that the both the fill dirt and the septic tank system constituted "fill" and that the fill may have been deposited in jurisdictional wetlands, that is, "waters of the state," Mr. Woodiwiss consulted with DEP personnel about the status of the site and DEP jurisdiction. Ultimately, DEP determined that the site of the septic tank mound, within the flood plain of the Choctowhatchee River, was jurisdictional wetlands. The Department took action. DEP Action On November 16, 2000, Mr. Woodiwiss issued a memorandum to the DEP file with regard to "John Williams. Unauthorized Fill in Flood Plain." The memo states: Site is located next to Charles Riley who is the subject of Department action for filling jurisdictional wetlands. Williams was erroneously given a permit by Walton County health Dept. to install a septic system in 1999, which he subsequently installed. I visited the site with the administrator for the septic tanks program in Walton and she indicated that they would pay for the installation of a new system on a new lot for Mr. Williams. I recommend that the removal of the system and relocation of the inhabitants of the lot to an area outside of the immediate flood plain. P6. (emphasis supplied) Five days later, on November 21, 2002, a warning letter was generated by Mr. Woodiwiss under the signature of Bobby A. Cooley, Director of District Management for DEP. The letter advised Mr. Williams as follows: Recent Department survey data established at your property has determined that your entire lot is below the mean annual flood line of the Choctawhatchee River and is subject to dredge and fill jurisdiction of the Department. Any construction on the property including placement of a mobile home, septic tank and drainfield or other structures must first receive a dredge and fill permit from the Department. Preliminary assessment of your proposed development of the property indicates that you may not meet the public interest criteria of Chapters 403 and 373 Florida Statutes for qualifying for a permit. R5. By this letter the Department informed Mr. Williams both that he was in violation of the law by not having secured a permit for the filling of the site and warned that, on the basis of a preliminary assessment, it was not likely that he would be eligible for an after-the-fact permit. The assessment of whether the site was eligible for a permit was re-stated in writing again, but with added certainty in a Compliance Assessment Form (the Form) prepared by DEP personnel. In Section V. of the form, there appears, together with the signature of the "Section Permit Processor and a date of "11/09/2000", the following: Project is not permittable due to type of wetland system being impacted and project must not be "Contrary to the Public Interest". The project could affect the public health, safety and welfare and property of others. The project is of a permanent nature. P13. Although the permit processor entered her assessment on November 9, 2000, and other sections of the form were entered on November 1, 2000, by Mr. Woodiwiss, the Compliance Assessment Form bears a final date of February 1, 2001. The Form shows the "Event Chronology" that led to the issuance of the NOV. The chronology, consistent with the testimony at hearing, reveals the following: 25 Jul.00. Complaint inspection for fill in wetlands on adjacent lot. Found isolated fill areas in a slough and adjacent to an apparent upland area. Vegetation is 100% jurisdictional but soil is composed of alluvial deposits in ridge like configurations, one of which the respondent wished to live on. Solicited the jurisdictional team for a district assist in determining jurisdiction. 21 Aug.00. District assist. Hydrologic indicators and vegetation present in sufficient quantities to establish jurisdiction. John Tobe PhD. Requested that the mean annual flood be established on the site in order to augment his determination. October 11, 2000. District assist by Bureau of Survey and mapping and the establishment of a survey line of the 2.33 year (16.42 feet above MSL) mean annual flood elevation on the adjacent violation site. The whole site is clearly under the MAF, which extends approximately 200 meters up grade towards SR 20. The elevation of the MAF is consistent with hydrological indicators (porella pinnatta) that indicate such a flood elevation, as reported in previous studies. November 7, 2000. Met with Crystal Steele and Mike Curry of Walton County DOH to establish why Mr. Williams has a septic tank permit. They indicated that the permit was issued in error and that they would require the system to be moved. Ms. Steele stated that the County would pay for Mr. Williams to have a new system installed on another site because of the oversight. There are currently two moveable vehicles on the site, one of which is connected to the system, the other has a contained service for sewage. November 21, 2000. WLI [presumably Warning Letter Issued] November 27, 2000. Call to Mr. Williams. He wants to get money back or swap property for higher. I advised him to approach the owner Mr. Martin and make his situation known. January 22, 2000. Mr. Williams has refused to remove the fill and requests an NOV. P13, (emphasis supplied) MAF and Wetland Delineation There was considerable testimony introduced at hearing about establishment of the mean annual flood ("MAF") line for the purpose, among others, of its relationship to the elevation of the septic tank mound. The issue stemmed, no doubt, from Dr. Tobe's request that MAF be established in order to "augment his determination" with regard to DEP jurisdiction based on employment of the methodology in DEP's wetland delineation rule, see paragraph 13, above. Resolution of the issue is not necessary to augment the determination that all of lots 29 and 30 of the Cowford subdivision are located in wetlands that constitute "waters of the state." That the septic tank and the fill dirt were deposited on wetlands under the jurisdiction of DEP was clearly established by Dr. Tobe in his testimony at trial and the evidence in support of it. Petitioner concedes as much in his Proposed Final Order. Environmental Harm and Human Health Exposure Wetlands whose surface area is covered by the septic tank mound have been filled. The filling has caused environmental damage. An assessment of the damage was not offered at hearing but it appears from this record that the damage is minimal. During the time the septic tank has been on Mr. Williams' property, it has never been below the flood waters of the Choctawhatchee River and therefore has not yet caused direct hazard to human health. Corrective Action and Penalty It will be expensive to remove the septic tank; the expense will be more than the cost of installation. Petitioner fears, moreover, that it will render his property worthless. There is no evidence that Petitioner's violation of Department permitting requirements was willful. He has no history of violations previous to this one. Options to continued retention of a septic system through use of a portable wheeled waste remover or use of an upland drain field on another property are either not viable or so problematic as to be impractical. DEP Modification of its Position At the outset of the hearing, DEP announced that it no longer intended to seek civil penalties of $1,500 as it had intended when the NOV was issued. All that is sought by DEP by way of corrective action or penalty is removal of the septic tank and monetary reimbursement for the cost of the investigation of $250 (see Tr. 9, lls. 17-25, and Tr. 10, lls. 1-5.)
The Issue At issue in this proceeding is whether a citation and imposition of a $1,500.00 fine for installing a septic tank without a permit was properly imposed on Respondent, Paul Ware, a/k/a Paul Montgomery-Ware, by Petitioner, the Department of Health, Polk County Health Department (the "Department").
Findings Of Fact Respondent is the owner of three contiguous lots in Polk County (Bevington Manor, PB 20 PG 47, Lots 100 through 102), purchased via tax deed recorded on October 21, 2003. Respondent's lots are surrounded by property owned by Irma Walker, whose son, William Walker, testified at the hearing. Respondent apparently intended to develop his lots as a commercial enterprise and had erected a Quonset-type structure on the property. From his mother's adjoining property, Mr. Walker regularly observed Respondent's activities. Mr. Walker testified that Respondent was using his property to operate a motorcycle repair shop. On June 4, 2004, Mr. Walker observed Respondent using a backhoe on his property. Mr. Walker testified that Respondent was installing a septic tank. Mr. Walker told his mother, who then initiated inquiries as to whether Respondent had a permit to install a septic tank. When her inquiries met with a negative response, Ms. Walker called in a complaint to the Department. On June 7, 2004, the Department sent environmental specialist Susan Patlyek to the site. Ms. Patlyek observed infiltrator chambers on the site. Infiltrator chambers are used only in connection with OSTD systems. Ms. Patlyek also observed a recently excavated area and a rented backhoe, commonly used to dig out areas for septic tank installation. It was obvious to Ms. Patlyek that a septic tank and drainfield had been installed on Respondent's property, though no permit had been issued by the Department allowing installation of an OSTD system. Installation of an OSTD system without a permit constitutes a sanitary nuisance. The Department sent a letter to Respondent dated June 8, 2004, advising him of the need to abate the nuisance by obtaining a permit. With the letter, the Department enclosed a blank application form that Respondent could have completed and returned to the Department's permitting office. Respondent replied by contending that the Department lacked jurisdiction over activities on his land and suggested that the Department initiate court action. Respondent also returned the application form in its original blank form. The Department then issued Respondent a citation for violations of Subsection 381.0065(4), Florida Statutes (2003), and Florida Administrative Code Rule 64E-6.003(1), constructing an OSTD system without a permit; and for a violation of Subsection 386.041(1)(b), Florida Statutes (2003), maintaining a sanitary nuisance. The citation provides for a $1,500.00 fine. The Department's citation also informed Respondent of his right to a hearing pursuant to Chapter 120, Florida Statutes (2003). Respondent contends that the relegation of this matter to an administrative forum is unconstitutional.
Recommendation RECOMMENDED that Petitioner, the Department of Health, Polk County Health Department, enter a final order imposing a $500.00 fine for the violations described in the above Findings of Fact and Conclusions of Law. DONE AND ENTERED this 30th day of November, 2004, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2004. COPIES FURNISHED: Roland Reis, Esquire Polk County Health Department 1290 Golfview Avenue, Fourth Floor Bartow, Florida 33830-6740 Paul Ware 6557 Crescent Lake Drive Lakeland, Florida 33813 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Quincy Page, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issues in these cases include the following: Did Petitioner file completed applications to entitle it to an oil and gas drilling permit? Is the Department's policy of requiring information in support of an offshore oil and gas well drilling permit not specifically set out in existing rules constitute an unadopted rule? If the Department applied an unadopted rule to Petitioner in these cases, does the unadopted rule meet the requirements of Section 120.57(1)(e), Florida Statutes? Is Petitioner entitled to the oil and gas drilling permits it sought by default?
Findings Of Fact The Parties. Petitioner, Coastal Petroleum Company (hereinafter referred to as "Coastal"), is a Florida corporation. Phillip Ware is the current president of Coastal. Respondent, the Florida Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with the responsibility of implementing Florida laws and rules regulating the issuance of oil and gas drilling permits. Intervenors are the Florida Wildlife Federation, Inc., Sierra Club, Florida Chapter, and the Florida Audubon Society, Inc. (hereinafter referred to as the "Environmental Intervenors"), and the Department of Legal Affairs (hereinafter referred to as "Legal Affairs"). The Environmental Intervenors and Legal Affairs filed verified petitions to intervene in this proceeding pursuant to Section 403.412(5), Florida Statutes. Coastal's Offshore Drilling Rights. On or about December 27, 1944, Coastal's predecessor entered into two leases, Drilling Lease Nos. 224-A and 224-B (hereinafter referred to as the "Original Leases"), with the predecessor to the Florida Board of Trustees of the Internal Improvement Fund. The Original Leases gave Coastal the exclusive right to explore for and produce oil and gas on submerged lands of the State of Florida throughout an area extending for a distance of 10.36 statute miles off most of the west coast of Florida. The area extends from approximately Apalachicola, Florida, in the north, to Naples, Florida, in the south. On or about February 27, 1947, the Original Leases were modified to redefine the area covered by the Leases due to claims of the federal government of parts of the area originally covered by the Original Leases (hereinafter referred to as the "Modified Leases"). In 1990 the Legislature enacted Chapter 90-72, Laws of Florida (1990), expressing the current policy of the State concerning offshore drilling. Pursuant to Chapter 90-72 the Legislature prohibited all offshore leasing and drilling. Recognizing Coastal's rights pursuant to the Modified Leases, an exception for drilling in areas governed by the Modified Leases was included in Chapter 90-72. Coastal is currently the only person entitled to explore for, and produce oil and gas on State submerged lands. Coastal's working interests under the Modified Leases were, as a result of litigation between the State and Coastal, subsequently reduced to the width of the area covered by the Modified Leases to between 7 miles and 10.36 miles from the coast. The litigation began during the late 1960's and ended with a settlement in 1976. Following the execution of the Original Leases and continuing through 1968, Coastal was involved with obtaining permits for, and drilling, approximately 9 wells in the area covered by the Original and/or Modified Leases. No permits were obtained by Coastal to drill in the area covered by the Modified Leases after 1968 due to the ongoing litigation between Coastal and the State. After the settlement of the dispute in 1976, Coastal was involved in litigation with Mobil Oil until the 1980's. Due to that litigation, Coastal did not pursue any other drilling operations under the Modified Leases until the 1980's. Because of the significant changes in the state of offshore drilling technology since Coastal had last applied for a permit to drill offshore in Florida, it took Coastal until the early 1990's to file a new application to drill offshore. Permit 1281. In March 1992 Coastal filed five separate applications with the Department seeking permits to drill exploratory oil and gas wells at five separate locations in the Gulf of Mexico within the area of the Modified Leases. Two applications were for proposed sites offshore from northwest Florida and three were for proposed sites offshore from southwest Florida. The applications were designated permit application numbers 1277 through 1281 by the Department. The applications filed by Coastal included a completed one-page Department form (Form 3), a location plat for the proposed drilling sites, and a filing fee. Coastal subsequently withdrew four of the applications. Only permit application 1281 remained. Pursuant to permit application 1281, Coastal sought approval to drill offshore from Franklin County, Florida, near St. George Island. In August 1996 the Department, after protracted negotiations with Coastal, issued notice of its intent to issue Permit 1281. The protracted negotiations involved, among other things, a request of the Department for additional information concerning the proposed location and drilling plans of Coastal. The additional information requested by the Department was essentially the same as the information requested by the Department in these cases. While Coastal provided the information concerning permit application 1281, it did so under protest. The Department's proposed decision to issue Permit 1281 was challenged. Following an administrative hearing, a Recommended Order was entered recommending that the permit be issued. The Department rejected the recommendation by Final Order issued May 22, 1998. That Final Order has been appealed by Coastal. Coastal's Applications for Permits 1296 through 1307. On or about February 25, 1997, Coastal simultaneously filed twelve separate applications (hereinafter referred to as the "Twelve Applications") with the Department seeking permits to drill exploratory oil and gas wells at twelve separate locations in the Gulf of Mexico within the area of the Modified Leases. Coastal Exhibits 49 through 60. The Twelve Applications were designated permit application numbers 1296 through 1307 by the Department. All of the proposed drilling sites are located between 8 and 9 miles offshore in water depths ranging between 50 to 75 feet. The general location of the twelve proposed drilling sites is as follows: Permit applications 1296 and 1297: offshore from St. George Island and Franklin County; Permit application 1298: offshore from the St. Marks River, Wakulla County; Permit application 1299: offshore from the mouth of the Steinhatchee River, Taylor County; Permit applications 1300 and 1301: offshore from Anclote Island, Pasco County; Permit application 1302: offshore from Longboat Key, Sarasota County; Permit applications 1303, 1304, and 1305: offshore from Gasparilla Island, Charlotte County; Permit application 1306: offshore from Sanibel Island, Lee County; and Permit application 1307: offshore from Naples, Collier County. The locations of the proposed exploratory wells are depicted on Coastal Exhibit 27, which is incorporated into this Recommended Order by reference. The Twelve Applications filed by Coastal consisted of the following: A completed Application For Permit to Drill, Form 3, for each well; A check payable to the Petroleum Exploration Bond Trust Fund as performance security for the twelve proposed wells; A navigation chart published by the U.S. Department of Commerce, National Oceanic and Atmospheric Administration, with the location (latitude and longitude) of each proposed drilling site and the area of Coastal's lease designated on the chart. The scale of the chart provided by Coastal is 1:20,000. A surveyor's report of the coordinates of each proposed drilling site was also included; and A single check in the amount of $24,000.00 in payment of the $2,000.00 application fee for each permit application. Form 3 requires that an applicant provide information concerning the name, phone number, and address of the applicant, the well name and its location, ground elevation, acres assigned to the well, the "field/area" of the well, the county and specific location of the well, proposed depth of the well, and the applicant's mineral interests in the drilling unit. Coastal provided all of this information. Form 3 also requires that the applicant answer a series of questions concerning whether the proposed location of the well will be located within: a municipality; tidal waters within 3 miles of a municipality; an improved beach; submerged land located in any bay or estuary; one mile seaward of the Florida coastline or the boundary of any state, or a local or federal park, or aquatic or wildlife preserve; on the surface of a freshwater body; within one mile inland from the shoreline of the Gulf of Mexico, the Atlantic Ocean or any bay or estuary; or within one mile of any freshwater body. Coastal answered all of the foregoing questions "no" on the Twelve Applications. Coastal did not provide a copy of its Organization Report (Department "Form 1") because it had already provided one to the Department. As provided in the Department's rules, Coastal informed the Department that its Organization Report was on file with the Department. Coastal did not initially provide casing and cementing plans or a contingency plan for hydrogen sulfide with the Twelve Applications. Ultimately, casing and cementing plans were provided by Coastal. Finally, Coastal requested that the Department conduct a preliminary site inspection, pursuant to the requirement of Rule 62C-26.003(4), Florida Administrative Code. The Department's Notice of Incompleteness. By letter dated March 26, 1997, the Department informed Coastal that the Twelve Applications were incomplete. The Department requested that Coastal provide additional information which it listed under eleven general categories: Location Plat; Environmental and Site Assessments; Zero Discharge; Accidental Pollutant Discharges; Drilling Platform; Hurricane Plan; Geologic Data; Transportation; Test Oil and Gas Plan; Drilling Plan; and H2S Contingency Plan. Coastal's Response to the Department's Notice of Incompleteness and Request for Additional Information. By letter dated September 22, 1997, Mr. Ware, on behalf of Coastal, responded to the Department's March 26, 1997, notice of incompleteness and request for additional information. In general, Coastal provided some of the requested information but indicated that it did not believe the Department had the authority to request most of the information. Therefore, Coastal informed the Department that most of the requested information was not being provided. Despite the fact that Coastal did not provide most of the requested information, Mr. Ware stated the following in the first paragraph of the September 22, 1997, letter: In fact, no statutory or regulatory authority was cited for any request. If Coastal is mistaken on any such request, please inform us of the specific authority allowing the department to require such information and Coastal will respond. [Emphasis added]. The Department's Answer to Coastal's Request for Specific Authority. Coastal's request for citations of specific authority and Coastal's representation that it would provide the information if such authority were given, was reasonably interpreted by the Department as an expression of Coastal's willingness to continue to discuss whether the Twelve Applications were in fact complete. As a consequence, the Department proceeded to respond to Coastal's request rather than proceeding to treat the Twelve Applications as complete and review them on their merits. After extensive research, the Department responded to Coastal's request for authority by letter dated December 16, 1997. The Department provided Coastal with citations to statutes and rules which the Department believed supported the additional information it had requested in its March 26, 1997, letter. See Coastal Exhibit 76. The Department also pointed out inconsistencies in the information Coastal had provided in support of the Twelve Applications. In particular, the Department asked why Coastal's H2S contingency plan referred to a drilling rig different than the one that Coastal had indicated it intended to use. The Department also asked Coastal how it planned to drill twelve wells within the time allowed after a permit is issued with only the one drilling platform that Coastal had indicated it planned to use for all twelve wells. Coastal's First Notice of Completeness. By letter dated December 26, 1997, Coastal informed the Department that it was not convinced that the authorities cited by the Department in its December 16, 1997, letter required that it provide the additional information sought by the Department. Mr. Ware, therefore, informed the Department in the December 26, 1997, letter of the following: As a result of the Department's insistence that Coastal provide such information, Coastal is left with no alternative but to file a petition for administrative hearing concerning whether the materials submitted by Coastal were sufficient to complete the applications so that they should have been processed by the Department. Twelve separate Petitions for Formal Administrative Hearing were filed by Coastal with the December 26, 1997, letter. Pursuant to the petitions, Coastal challenged the Department's request for additional information and sought approval of the Twelve Applications by default. Coastal's December 26, 1997, letter and the petitions filed simultaneously with the letter were the first indication from Coastal that it considered the Twelve Applications complete. On January 22, 1998, the Department entered an Order Dismissing Petitions, dismissing the twelve petitions filed by Coastal. The petitions were dismissed without prejudice to the filing of amended petitions alleging how the Department's December 16, 1997, letter constituted "agency action." No amended petitions were filed by Coastal. The Department also concluded in the Order Dismissing Petitions that Coastal's December 26, 1997, letter constituted Coastal's first notice that it considered the Twelve Applications complete and directed that staff grant or deny the Twelve Applications within 90 days from Coastal's notice. In support of the Department's conclusion that the Twelve Applications should not be considered as complete until Coastal filed its December 26, 1997, letter, the Department noted in its order that Coastal, in response to the Department's December 16, 1997, letter, had requested specific authority for the Department's request and had represented that it would provide the additional information sought by the Department if it were satisfied with authority cited by the Department. I. The Department's Denial of Coastal's Applications. On March 24, 1998, the Department entered a "Final Order" denying the Twelve Applications. It is this Final Order that is the subject of these proceedings. The Department's decision to deny the Twelve Applications was explained as follows: The applications as submitted do not provide the Department with assurance that the issuance of the permits would be in compliance with the standards and criteria of Chapter 377, Part I, F.S., and Rules 62C-25 through 62C-30, F.A.C. The Department cannot determine based on the information submitted, that the proposed drilling activities do not threaten public safety and the state's natural resources. Information critical to making such a determination remains absent. . . . The Department's Final Order denying the Twelve Applications was entered within 90 days after Coastal notified the Department that it did not intend to provide any additional information to support the Twelve Applications and that it considered the applications complete. The Department's decision to deny the Twelve Applications was based solely on the Department's conclusion that it had not been provided sufficient information to review the merits of the Twelve Applications. The Department's Specific Authority Over Oil and Gas Drilling Permits. Part I, Chapter 377, Florida Statutes (hereinafter referred to as the "Act"), establishes the law in Florida governing oil and gas resources of the State. Section 377.06, Florida Statutes, sets out the general public policy of the State concerning oil and gas: It is hereby declared to be the public policy of the state to conserve and control the natural resources of oil and gas in said state, and the products made therefrom; to prevent waste of said natural resources; to provide for the protection and adjustment of the correlative rights of the owners of the land wherein said natural resources lie and the owners and producers of oil and gas resources and the products made therefrom, and of others interested therein; to safeguard the health, property, and public welfare of the citizens of said state and other interested persons and for all purposes indicated by the provisions herein. . . . The Department is designated as one of the agencies of the State authorized to carry out the powers, duties, and authority of the Act. Section 377.07, Florida Statutes. The Department's authority includes the authority to adopt rules and enter orders it deems necessary to implement and enforce the provisions of the Act. Section 377.22, Florida Statutes. In particular, the Department has been given broad authority to regulate the drilling for oil and gas in Florida in Sections 377.22(2)(a) through (x), Florida Statutes. Pursuant to this broad authority, the Department has promulgated Chapters 62C-25 through 62C-30, Florida Administrative Code. Rule 62C-25.006, Florida Administrative Code, sets out the general rule concerning the exploration for oil and gas in Florida: Each person who conducts geophysical surveys (unless exempted by Rule 62C-26.007), drills an oil or gas related well (62C-26.003), or operates an oil or gas related well . . . (62C-26.008) shall first obtain a permit from the Department. Each of these activities requires a separate permit. [Emphasis added]. Ordinarily a single permit will be issued for drilling a well and either transporting test oil or injecting test fluids for a period of 90 days after testing is commenced. . . . In these cases, Coastal is seeking a permit to drill an oil or gas-related well and must, therefore, comply with Rule 62C-26.003, Florida Administrative Code, titled "Drilling Applications" (hereinafter referred to as the "Drilling Application Rule"). The Drilling Application Rule establishes certain specific requirements concerning specific information which, by the clear terms of the rule, must be provided by all applicants for oil and gas drilling permits in Florida. Applicants for drilling applications are required to be provide the following: All Applications to Drill (Form 3) shall include an Organization Report (Form 1; 62C- 25.008), performance security (62C-25.008, 62C- 26.002), location plat (62C-26.003(7)), site construction plans (62C-26.003(9)), casing and cementing program (62C-26.003(5)), contingency plan if appropriate (62C-27.001(7)), and application fee (62C-26.003(8)). In addition to these items, an application to drill a nonroutine well shall include a lease map or document and a letter of justification, both as described in 62C-26.004(6)(d). Any of these items already on file with the Department may be included by reference. The application to drill shall be considered incomplete until the applicant requests a preliminary inspection be made by the Department. . . . A proposed casing and cementing program must be included with the application to drill. This program shall at a minimum include setting depths, specified minimum yield strength, grade of pipe, class of cement to be used, cement additives, cement quantity, intended interval to be cemented, hole size, displacement method, special tools to be used, and calculated percent excess cement to be used. . . . . Each application shall be accompanied by a location plat surveyed and prepared by a registered land surveyor licensed under Chapter 472, FS. All such plats shall meet the minimum technical standards for land surveys as specified in Chapter 61G-17-6, FAC, and must: Be drawn to a scale sufficient to show the required detail, preferably 1 inch = 1,000 feet. Show and provide a legal description of all mineral acreage within the drilling unit which is not under lease to the applicant. Show the exact well location (both surface and bottom if different) and unit acreage within the drilling unit and indicate distances to adjacent wells, drilling unit boundaries, quarter-section corners, rivers and other prominent features. With prior notice and explanation to the Department, other established lines, reference points, or methods may be used when section corners are unavailable and an inordinate amount of preliminary surveying would have to be done to establish section corners or other standard reference points. In any case, a standard survey or equivalent with plat shall be made prior to obtaining an operating permit. Show ground elevation, with tolerances, at the drill site. State whether the proposed drilling unit is routine on nonroutine and specify the applicable subsection of s. 62C-26.004 under which the well is located. Each application to drill shall be accompanied by a $2,000 processing and regulatory fee . . . for costs incurred by the Department through well completion or plugging. . . . . . . . The applicant shall describe the provisions made for locating and constructing roads, pads, utility lines and other facilities needed for drilling operations and shall make every effort to minimize related impacts. Applications for permits in wetlands, submerged lands, and other sensitive areas shall be reviewed in accordance with 62C-30.005, FAC. Coastal provided all of the specific information applicable to the Twelve Applications required by the Drilling Application Rule. Much of the information required by the Drilling Application Rule, however, pertains to drilling operations on land and not drilling operations on submerged, offshore lands. The Department's Offshore Drilling Policy. Although Coastal provided all of the specific information required by the Drilling Application Rule, the Department required that a significant amount of additional supporting information be provided in support of the Twelve Applications. The additional information is generally described in Section E of this Recommended Order and is more specifically described, infra. Through the incompleteness letters issued by the Department in these cases, the Department expressed a statement of general applicability which "implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency . . . ." Section 120.52(15), Florida Statutes. The Department's statement of general applicability is, in effect, that all applicants for offshore oil and gas wells must provide the information described in the Department's letters of incompleteness to Coastal; information not specifically listed in the Drilling Application Rule. This state of general applicability will hereinafter be referred to as the "Offshore Drilling Policy." The Offshore Drilling Policy is of recent origin. It was not applied during the 1940's, 1950's, and 1960's. The policy was only recently developed because only a few offshore drilling permits have been applied for until recently and the technology applied in offshore drilling has changed significantly in the past fifty years. Between the 1960's and 1992, when Coastal filed five applications for permits, only one offshore drilling permit was issued by the Department. That permit was issued in the late 1970's or early 1980's to Getty Oil Company (hereinafter referred to as "Getty") for a test well approximately three miles offshore from Santa Rosa County, Florida. The Offshore Drilling Policy was not applied by the Department to Getty, although most of the information required in these cases was eventually provided by Getty. Getty provided the information not because of Department policy, however, but in an effort to settle a challenge to the Department's proposed decision to issue the permit. Although much of the Department's knowledge concerning offshore drilling was developed as a result of the Getty permit, the Department did not receive another permit application for offshore drilling for ten to twelve years or more. Since 1992, however, the Department has required the same additional information it requested Coastal to provide in these cases for seventeen different proposed well locations located from offshore sites off the northwest coast of Florida near St. George Island and extending to the southwest coast of Florida near Naples. The Offshore Drilling Policy has been adopted by the Department because existing rules were adopted primarily to govern drilling operations on land and not offshore. As a consequence, those rules inadequately address offshore wells. The Department, however, is charged with broad authority under Chapter 377, Florida Statutes, to govern oil and gas drilling operations on and offshore. That authority includes the broad authority to carry out the public policy of the State expressed in Section 377.06, Florida Statutes, to "conserve and control the natural resources of oil and gas . . . ; to prevent waste of said natural resources; . . . to safeguard the health, property and public welfare of the citizens . . . ." When the intent of existing rules is considered in the context of offshore drilling, it is apparent that Drilling Application Rule does not adequately address all the reasonable concerns with offshore drilling. The Department has developed the Offshore Drilling Policy to the point where it has become more than a mere interpretation and application of existing law to offshore drilling applications. The Offshore Drilling Policy has become a uniform statement of policy describing a significant amount of particular information which the Department will require for any application for an offshore drilling permit. The Offshore Drilling Policy has passed the point in its development that it can be considered the Department's reaction to a particular set of circumstances. The Scope of the Department's Application of the Offshore Drilling Policy. The Offshore Drilling Policy has been applied to the last seventeen applications for offshore wells filed with the Department. The first five applications were filed in March 1992. Although four of those applications were withdrawn, the Department developed the Offshore Drilling Policy and applied it to permit application 1281 prior to August 1996 when the Department issued its notice of intent to issue Permit 1281. Although the evidence failed to prove exactly when the Department decided to apply the Offshore Drilling Policy to permit application 1281, the policy had been applied before the Twelve Applications were filed in February 1997. The Offshore Drilling Policy was applied uniformly to the Twelve Applications from the date they were filed through the date of the hearing in these cases. The Offshore Drilling Policy was also sufficiently formulated for the Department to publish notice of its intent to adopt the Offshore Drilling Policy as a rule. That notice was published on November 24, 1998. Therefore, the Offshore Drilling Policy was sufficiently formulated to be proposed for adoption as a rule prior to the commencement of this de novo proceeding. It is apparent that the Department intends to apply the Offshore Drilling Policy to all applications for oil and gas wells proposed for location offshore in the waters of the State. At present, only Coastal has the right to drill in the sovereign submerged lands of the State and Section 377.242(1)(a)5, Florida Statutes, currently prohibits granting drilling permits within the boundaries of the Florida's territorial seas to any person other than Coastal. The evidence failed to prove, however, that Coastal cannot assign its right to drill to other persons, which it has done in the past. Even though Coastal may currently be the only applicant for oil and gas well drilling permits, the Department is at liberty to modify the Offshore Drilling Policy at any time to require different or additional information, without prior notice to Coastal. Coastal has the right to some certainty as to what information the Department may require for approval of an offshore drilling permit. Section 120.57(1)(e), Florida Statutes; De Novo Review of the Offshore Drilling Policy. Section 120.57(1)(e), Florida Statutes, requires a de novo review of any unadopted rule which formed the basis of any agency action. The Department's denial of the Twelve Applications in these cases was based solely on its application of the Offshore Drilling Policy. The Offshore Drilling Policy has not been adopted as a rule, although the Department has instituted rule- making procedures. Therefore, if the Offshore Drilling Policy constitutes a rule, the Offshore Drilling Policy must meet the requirements of Section 120.57(1)(e), Florida Statutes. Each category of information required by the Department pursuant to the Offshore Drilling Policy must be examined in determining whether some of the requirements of Section 120.57(1)(e), Florida Statutes, have been met. The other requirements of Section 120.57(1)(e), Florida Statutes, can be considered generally without an examination of each category of information required by the Department. Location Plat Information. The Department requested that Coastal provide the following information concerning the location of the proposed wells: For each proposed location, submit a plat on an original nautical chart showing each drilling site relative to the shore. This map should include at least the following surface and bottom hole locations including satellite navigation coordinates so the site can be re-occupied by a preliminary inspection team, boundaries of the working interest area, location of nearby reefs or sensitive aquatic wildlife areas, wildlife migration routes, proposed routing of supply ships, discharge barges, pipelines, helicopter routes, and commonly used shipping lanes. Also submit a diagram showing the orientation of the rig and the location of its major components. Coastal provided only standard nautical charts with a surveyed site location and the lease boundaries noted. The charts did not contain any of the information requested by the Department. Nor did the charts note whether the plotted points were surface or bottom hole locations. The Department relied upon the following authority in requesting the Location Plat information: Section 377.22(2)(h), Florida Statutes, and Rule 62C-26.003(7), Florida Administrative Code, quoted, supra. Section 377.22(2)(h), Florida Statutes, provides the following: (2) The department shall adopt such rules and regulations, and shall issue such orders, governing all phases of the exploration, drilling, and production of oil, gas, or other petroleum products in the state . . . as may be necessary for the proper administration and enforcement of this chapter. Rules, regulations, and orders promulgated in accordance with this section shall be for, but shall not be limited to, the following purposes: . . . . (h) To require the making of reports showing the location of all oil and gas wells; the making and filing of logs; the taking and filing of directional surveys; the filing of electrical, sonic, radioactive, and mechanical logs of oil and gas wells; if taken, the saving of cutting and cores, the cuts of which shall be given to the Bureau of Geology; and the making of reports with respect to drilling and production records. . . . The Department's purpose in requiring the information concerning the Location Plat was to allow it to place the proposed drilling site into context with the surrounding environmental and other features of the area. Without the requested information, the Department could not ensure that sensitive resources and significant features would not be damaged by the proposed drilling operations. Rule 62C-26.003(7), Florida Administrative Code, does not directly authorize the Department to request the Location Plat information. That rule was drafted with onshore drilling operations in mind. Requiring the Location Plat information in these cases is not a mere application of that rule. Rule 62C-26.003(7), Florida Administrative Code, however, does support the conclusion that the requested information is needed for offshore, as well as onshore drilling. More importantly, it demonstrates the broad authority of the Department under the Act to require assurances from an applicant for offshore drilling that the proposed drilling will not be detrimental to the environment. The information provided by Coastal concerning archaeological sites, underground sea cables, and sensitive environmental features on the bottom was not sufficient for the Department to fulfill its responsibilities under the Act. The Act in general and the specific cites provided by the Department in support of its request for Location Plat information give the Department sufficient authority to request the information. The Department's request did not enlarge, modify, or contravene its grant of authority. The Department's exercise of its authority in requesting Location Plat information was not arbitrary or capricious. Environmental and Site Assessment. The Department requested that Coastal provide the following information concerning environmental features of the proposed well sites: Submit a professional ecological/biological survey and report for each proposed drill site. Wildlife habitats including living coral reefs, artificial reefs, patch reefs, benthic infauna, sea grasses, and associated communities shall be identified and located if present. Photodocumentation consisting of television and color still photography shall be included with each report. . . . The Department's request included an outline format for the photodocumentation survey report. Coastal provided no information in response to the Department's request for Environmental and Site Assessment information. Instead, Coastal suggested that the Department obtain the information it requested through the preliminary site inspection required by the Department's rules. The Department relied upon the following authority in requesting the Environmental and Site Assessment information: Sections 377.21(2), 377.22(2)(i), 377.241(1), and 377.371(1), Florida Statutes, and Rule 62C-26.003(10), Florida Administrative Code. While Section 377.21(2), Florida Statutes, gives the Department little authority concerning the protection of the environment, the other statutory provisions cited by the Department do. Section 377.22(2)(i), Florida Statutes, authorizes the Department to take into consideration the impact of drilling operations on surrounding leases or property. Section 377.241(1), Florida Statutes, requires the Department to take into consideration the nature, character, and location of lands on which drilling will occur and those involved with the drilling. Finally, and most significantly, Section 377.371(1), Florida Statutes, requires that drilling not cause pollution to land or water, "damage aquatic or marine life, wildlife, birds, or public or private property " Rule 62C-26.003(10), Florida Administrative Code, provides, in part, that "[a]pplications for permits in . . . submerged lands, and other sensitive areas shall be reviewed in accordance with 62C-30.005," a rule governing applications for drilling in the Big Cypress Watershed. Rule 62C-30.005(2)(b), Florida Administrative Code, sets out the requirements for drilling sites. Among other things, Rule 62C-30.005(2)(b)2, Florida Administrative Code, requires that topographical and engineering surveys of the drill site, along with aerial photography, must be prepared. While this rule does not specifically authorize the Environmental and Site Assessment information the Department has requested, the statutory authority that supports the rule does. Aerial photography is normally required as an aid to the Department in identifying the proposed site and the surrounding area. Obviously, aerial photography would be of little assistance for a submerged site. Therefore, in order for the Department to carry out its responsibility to protect the environment, including sensitive environmental features such as "live bottom areas" as defined in Rule 62C-25.002(49), Florida Administrative Code, the Department requested photodocumentation of the proposed sites. The Department's request that Coastal provide it with an environmental assessment of the proposed drilling sites was also made to give the Department the necessary information for it to ensure that the environmental impacts of the proposed wells would not be detrimental. Such information also relates to the ability of an applicant to ensure that it has adopted adequate plans to deal with possible oil spills and other accidents. By fully considering the environmental features of an area, the applicant will be better able to draft and adopt contingency plans. Unlike onshore drilling, an offshore well entails a relatively large drilling rig with large feet that rest on the bottom to support the drilling platform above the surface of the water. Those feet, if placed on live bottom, can cause significant damage to marine biota which live in crevices, cracks, and permeable portions of some rocks that may be found on the bottom. The preliminary site inspection conducted by the Department is not an adequate substitute for the information requested by the Department. That inspection is only intended to verify the assurances which the applicant is first required to give. After all, it is the applicant that is seeking permission to drill. As a consequence, the applicant should first determine what impact its proposed drilling will have and, if satisfied on its findings, provide assurances to the Department to support its application. The Act in general and the specific cites provided by the Department in support of its request for Environmental and Site Assessment information give the Department sufficient authority to request the information. The Department's request did not enlarge, modify, or contravene its grant of authority. The Department's exercise of its authority in requesting Environmental and Site Assessment information was not arbitrary or capricious. Zero Discharge. The Department requested that Coastal provide the following information concerning a "zero discharge" plan for the proposed wells: Submit a plan which ensures zero discharge operation for each proposed well. The plan must include an environmental monitoring plan which provides for filed sampling around the drill site such that pre-drilling, drilling, and post- drilling sediments may be compared. Coastal, in response, only stated that it intended to use a zero discharge drilling rig at all the proposed sites. A copy of a brochure generally describing the rig was provided. No description of systems for containing discharges was provided. Nor did Coastal provide monitoring and sampling plans. The Department relied upon the following authority in requesting a zero discharge plan: Sections 377.21(2), 377.22(2), 377.22(2)(c) and (i), 377.241(1), 377.243, 377.371, and 377.371(1), Florida Statutes, and Rule 62C-26.003(10), Florida Administrative Code. A zero discharge plan is the written plan that an applicant is supposed to follow in the event of the discharge of any pollutant into the surrounding environment of a well site. The plan must cover not only discharges from the well shaft, but also from all equipment used, located, or traveling to the site. The purpose of the plan is to prevent spills and, where an accidental spill occurs, to minimize the impact of the spill. While the use of a zero discharge rig may be a significant part of a zero discharge plan, its use alone is not sufficient. The use of zero discharge rig does not provide assurances concerning the operation of other vessels and equipment which may be used at a site. Nor does its use provide assurances as to what will be done to ensure that the rig works properly or what will be done if it does not. Section 377.22, Florida Statutes, provides authority for the Department to ensure that all precautions are taken to prevent pollutants entering the area of a drilling site or any area associated with the well. Section 377.22(2)(a), Florida Statutes, authorizes the Department to require that drilling operations are done in such a manner as to prevent pollution of the waters, including salt water, and property of the State. Section 377.22(2)(c), Florida Statutes, authorizes the Department to require safety equipment to minimize the possibility of an escape of oil and other petroleum products. Finally, Section 377.22(2)(i), Florida Statutes, authorizes the Department to prevent drilling operations that will cause injury to neighboring property. Section 377.243(2), Florida Statutes, also provides the Department with the authority to require assurances concerning an applicant's efforts to protect against discharges into the environment of oil and other pollutants: (2) As a condition precedent to the issuance or renewal of a permit, the division shall require satisfactory evidence that the applicant has implemented or is in the process of implementing, programs for control of pollution related to oil, petroleum products or their byproducts, and other pollutants and the abatement thereof when a discharge occurs. Finally, Section 377.371(1), Florida Statutes, prohibits persons drilling for oil and gas from polluting land or water and from damaging marine or aquatic life. A spill of oil or gas and other pollutants can have a devastating impact on the environment regardless of whether the spill occurs on land or at sea. Such damage could result in loss of tourism in Florida and severe economic damage. The oil industry has progressed significantly in its ability to prevent spills and, where spills occur, to minimize the impacts of the spill on the environment. In order to minimize the chance of spills and the impacts which could occur from a spill, however, an applicant must take the steps necessary to plan ahead of time and provide the Department with the assurances that the applicant has done so. The Act in general and the specific cites provided by the Department in support of its request for zero discharge information give the Department sufficient authority to request the information. The Department's request did not enlarge, modify, or contravene its grant of authority. The Department's exercise of its authority in requesting zero discharge information was not arbitrary or capricious. Accidental Pollutant Discharges. The Department requested that Coastal provide a spill contingency plan for each of the proposed well sites. The requested plan was to include Coastal's plans for dealing with escaped pollutants, modeling of how projected spills might react, plans for deployment of cleanup equipment, inventories of equipment available for dealing with spills, designation of the individuals responsible for cleanup, and general clean-up plans. In response to the request for the spill contingency information the Department insisted it needed, Coastal stated the following: With respect to Coastal's implementation of a program for control of pollution related to oil, petroleum products and their byproducts, and other pollutants, see the letter of Dr. Tom Herbert, and his curriculum vita, as well as the ISO 14,000 Program on file in Permit #1296. With respect to Coastal's implementation of a program for the abatement of pollution discharges related to oil, petroleum products and their byproducts and other pollutants, see attached letter of Shaw Thompson, and his resume on file in Permit #1296. Coastal did not provide the Department with a specific, written oil-spill contingency plan. Dr. Herbert was involved with ensuring compliance of the Getty well off of Santa Rosa County with environmental protection requirements. Dr. Herbert had not, however, reviewed information concerning the Twelve Applications other than the nautical charts showing the location of the wells. In a letter from Dr. Herbert submitted by Coastal to the Department, Dr. Herbert represented the following concerning Coastal's proposed operations: Coastal Petroleum has used the Getty operations as a "template" for designing operations for the permit number 1281 well and for all subsequent drilling permits pending (numbers 1296 through 1307). We have been retained to assist with the development of plans and procedures and to insure that the operations are carried out in an environmentally safe and conscientious manner. . . . . Coastal Petroleum Company has adopted the ISO 14000 standard as the method for implementing long-term environmental compliance for drilling and production operations off Florida's coast. As the issuance date for the 1281 permit draws near we will begin implementing the ISO 14000- program beginning with training provided by the University of Florida TREEO Center. The implementation of the environmental program will extend from Coastal's own employees to others who may be service companies or contractors. Dr. Herbert's representations to the Department in his letter and at hearing do not constitute an actual oil-spill contingency plan for any of the specific proposed well sites. At best, his representations constitute a commitment to deal with the manner in which Coastal will comply with environmental requirements in the future. It does not constitute a commitment to actually draft and implement an oil-spill contingency plan. Dr. Herbert and Coastal also failed to explain how the Getty site, which was located in 11 to 12 feet of water, is sufficiently similar to the proposed sites of the Twelve Applications, which are all located in much deeper waters. Nor did Coastal explain how it would deal with the fact that the Getty site was not in the open waters of the Gulf of Mexico. More importantly, no specific oil-spill contingency plan was provided for the twelve proposed sites. Mr. Thompson is an expert in oil-spill containment and cleanup. Coastal provided a letter from Mr. Thompson providing assurances that he would be working with Coastal during any drilling of the twelve proposed wells. At hearing, Mr. Thompson had little knowledge of the proposed sites. More importantly, Mr. Thompson did not provide a specific oil-spill contingency plan for the twelve proposed sites. The ISO 14000 Guide provided by Dr. Herbert consists of a book containing a generic template suggested by the author for use by any business concerned with environmental impacts. The Guide is not specific to the oil and gas industry. More importantly, it is not specific to Coastal nor any of the proposed well locations. Finally, the Guide would be of little assistance in dealing with an actual emergency. The Guide is not a specific oil-spill contingency plan. The Department relied upon the following authority in requesting the oil-spill contingency plan: Sections 377.22, 377.22(2)(c), 377.243, and 377.371, Florida Statutes. The same statutory authority that supports the request for a zero discharge plan, supports the oil-spill contingency plan requested by the Department. Especially Section 377.243(2), Florida Statutes, quoted, supra. While Section 377.243(2), Florida Statutes, allows an applicant to implement or be in the process of implementing an abatement program, merely indicating the intent to implement a program is insufficient. The Department must ensure that an applicant has taken sufficient steps to prevent the pollution of land or water, as well as damage to aquatic or marine life, wildlife, and birds. The environmental damage from a spill or a well blow-out can be significant. One of the worst oil well blow-outs occurred at an exploratory well. Site specific information must be considered by the applicant in its planning and such information must be provided to the Department for it to make its statutorily required evaluation. The Act in general and the specific citation provided by the Department in support of its request for an accidental pollutant discharge plan give the Department sufficient authority to request the plan. The Department's request did not enlarge, modify, or contravene its grant of authority. The Department's exercise of its authority in requesting the accidental pollutant discharge plan was not arbitrary or capricious. Drilling Platforms. The Department requested that Coastal provide information concerning the drilling platform(s) Coastal intended to use at each proposed site. In particular, the Department requested information concerning rig impacts, rig designation, scheduling, commitment from rig owners, zero discharge, auxiliary power equipment, and safety plans concerning karst hazards, including a shallow seismic program to rule out the existence of sinkholes or bottom caverns. In response to the request for the drilling platform information the Department sought, Coastal provided only a brochure for the Nobel Drilling Company's rig, the Paul Wolff. Coastal also indicated that the rig would face north. The Department relied upon the following authority in requesting the drilling platform information: Sections 377.22(2)(c), (d), and (i), Florida Statutes; and Rules 62C- 26.003(10), 62C-27.001(4), (5), (6) (cited as 62C-26001(5) and 62C-26001(6) by error in the Department's December 16, 1997, letter), and 62C-28.004(8), Florida Administrative Code. Section 377.22, Florida Statutes, provides authority for the Department to ensure that all precautions are taken to prevent pollutants entering the area of a drilling site and to protect surrounding property. Section 377.22(2)(a), Florida Statutes, authorizes the Department to require that drilling operations are done in such a manner as to prevent pollution of the waters, including salt water, and property of the State. Section 377.22(2)(c), Florida Statutes, authorizes the Department to require safety equipment to minimize the possibility of an escape of oil and other petroleum products. Section 377.22(2)(d), Florida Statutes, authorizes the Department to ensure that drilling is performed in a manner that will prevent the escape of oil from one stratum to another. Finally, Section 377.22(2)(i), Florida Statutes, authorizes the Department to prevent drilling operations that will cause injury to neighboring property. The rig Coastal proposed to use sits on three large feet, each with a diameter of over 93 feet. Each foot sits 235 feet from the other two. The entire rig is extremely heavy and, therefore, each foot has a great deal of weight placed on it. The Department requested information concerning rig impacts in order to avoid adverse impacts on the sea bottom. The Department requested information on rig designation, scheduling and owner commitment because of the Department's concern that a single rig could not drill all twelve wells within the limited one-year period of time a permit is valid for. Coastal had also provided some inconsistent information in its hydrogen sulfide plan concerning what rig would be used. Without knowing what rig would be used at each location, the Department could not fully evaluate the possible impacts of the rig on the environment. The seismic survey and the sink hole and karst formation safety plans were requested because of concerns that a rig could collapse if it were placed on such a formation. A karst formation is a geologic formation caused by increased porosity and permeability of underground limestone formations. As limestone is eaten away, the potential for a sinkhole or cavern collapse increases. Sinkholes and karst formations are not uncommon in the area of Coastal's proposed wells. If a rig collapsed on a karst formation, it is possible that a blow out or other oil spill could occur. The potential for such a catastrophe is greater in this instance because the rig that Coastal is proposing to use is a tripod design which could tip over if one foot were placed in a sinkhole or karst formation that collapses. A shallow seismic survey would provide information concerning possible karst formations at the sites where Coastal plans to drill its test wells. The Act in general and the specific cites provided by the Department in support of its request for rig impact information give the Department sufficient authority to request the information. The Department's request did not enlarge, modify, or contravene its grant of authority. The Department's exercise of its authority in requesting rig impact information was not arbitrary or capricious. Hurricane Response Plan. The Department requested that Coastal provide a hurricane preparation and response plan for each site. Coastal provided none of the requested information. The Department relied upon the following authority in requesting the hurricane response plan: Section 377.22(2)(c), Florida Statutes, and Rules 62C-27.001(5) and 62C-27.006(1), Florida Administrative Code. Section 377.22(2)(c), Florida Statutes, authorizes the Department to require safety equipment to minimize the possibility of an escape of oil and other petroleum products in the event of a natural disaster. Although not cited by the Department, Section 377.371, Florida Statutes, gives the Department broad authority to ensure that oil and gas wells do not pollute. The entire area where Coastal proposed to drill is subject to hurricanes for a significant part of every year. Such storms can have a devastating impact on any structure, including an oil rig, which is in its path. Requiring that an applicant for drilling permits anywhere in the coastal waters of Florida plan ahead of time to respond to an approaching hurricane is abundantly reasonable. The Act in general and the specific citation provided by the Department in support of its request for a hurricane preparation and response plan give the Department sufficient authority to request the plan. The Department's request did not enlarge, modify, or contravene its grant of authority. The Department's exercise of its authority in requesting a hurricane preparation and response plan was not arbitrary or capricious. Geologic Data. The Department requested that Coastal provide the following information concerning the geology of each location of its proposed well sites: Submit material in the form of studies, data, cross sections, or maps which support or explain your decision for locating each well as proposed. All interpreted geologic data must be certified by a geologist licensed in Florida. Coastal provided none of the requested information. For applications 1296 and 1297, Coastal referred the Department to its application for Permit 1281. The Department relied upon the following authority in requesting the geologic information: Section 377.075(4)(g), 377.21(2), and 377.241(3), Florida Statutes, and Rule 62C- 26.004(6)(d), Florida Administrative Code. Section 377.075(4)(g), Florida Statutes, requires that the Department maintain maps identifying information concerning oil and gas activities in Florida. This provision does not, however, authorize the Department to request the geologic information it requested from Coastal. Section 377.21(2), Florida Statutes, gives the Department the authority and the duty to make inquiries to determine whether "waste" exists or is imminent. "Waste" is defined in Section 377.10(10), Florida Statutes. Based upon the definition of "waste," Section 377.21(2), Florida Statutes, gives the Department the authority to request the information it requested concerning the geology of Coastal's proposed locations. Finally, Section 377.241(3), Florida Statutes, requires that the Department take into consideration the "proven or indicated likelihood of the presence of oil, gas or related minerals in such quantities as to warrant the exploration and extraction of such products . . ." before issuing any permit. This provision alone is sufficient for the Department to request the geologic information it requested from Coastal. Oil and gas wells are not drilled without first considering the geology of an area and the likelihood that oil or gas may be found. The determination of a likely successful well is made by a consideration of relevant geologic information such as that requested by the Department. Without such information, the Department would not be able to reasonably carry out its duty under Section 377.231(3), Florida Statutes. Coastal did not dispute the reasonableness of the requested information in determining whether a well should be placed at a proposed location. Instead, Coastal suggested that the Department has all the information it needs to make the determination and, therefore, Coastal shouldn't be required to provide any further information. The information available to the Department, however, is too general in nature. It does not deal with specific locations such as those proposed by Coastal. More importantly, it is Coastal that is seeking permission to drill. Coastal should, therefore, have already gathered and considered the geologic information requested by the Department in deciding where to place its exploratory wells. There have been relatively few wells drilled in Florida offshore waters. None have been productive. One offshore well located near Franklin County was drilled in 1968 and was dry. The only producing offshore well was located off the southern tip of the Florida Keys. Given these facts, the Department was reasonable in seeking assurances from Coastal concerning the possibility that its proposed wells were reasonably placed. Finally, the information Coastal referred to with regard to Permit 1281 was submitted during the formal administrative hearing on that case and was not as part of Coastal's permit application. That information, therefore, was not available to the Department to review. Nor was it provided during the formal hearing on these cases. The Act in general and the specific cites provided by the Department in support of its request for geologic information give the Department sufficient authority to request the information. The Department's request did not enlarge, modify, or contravene its grant of authority. The Department's exercise of its authority in requesting geologic information was not arbitrary or capricious. Transportation. The Department requested that Coastal provide the following information concerning transportation to and from the proposed wells of the drilling rig(s), a description of onshore facilities and the traffic to the rig(s), and a description of, and route to be taken by, transport vessels and helicopters. In response to the Department's request for the transportation information demanded by the Department, Coastal merely stated that no helicopters would be used at any of the proposed sites except in case of an emergency. The Department relied upon the following authority in requesting information concerning transportation: Section 377.22(2)(s), Florida Statutes, and Rules 62C-26.006(1) and 62C- 26.003(10), Florida Administrative Code. Section 377.22(2)(s), Florida Statutes, allows the Department to require "certificates of clearance or tenders in connection with the transportation or delivery of oil or gas, or any product." Section 377.371, Florida Statutes, authorizes the Department to ensure that a drilling operation is not harmful to the environment. This provision alone gives the Department sufficient authority to request information from Coastal concerning how it intends to deal with transportation issues concerning the proposed wells. Pursuant to the Department's statutory authority, the Department has adopted Chapter 62C-30, Florida Administrative Code, which, among other things, provides rules governing transportation issues for wells located in Big Cypress. Although those rules do not specifically deal with offshore wells, they do support the conclusion that assurances concerning transportation issues surrounding any well can be required by the Department. Accidents, and the resulting damage to the environment, often occur during the transportation of oil and other equipment and supplies used for a rig. The Department needs to be provided with assurances that every effort is made by an applicant to avoid such damage. If provided sufficient information, the Department may be able to require that an applicant use a different route between a rig and an onshore facility in order to avoid a sensitive reef and thereby reduce the potential adverse impacts of an accident to the reef. A different route may also be required due to safety concerns. In addition to the legitimate concerns of the Department about accidental spills of oil, gas, and cuttings, the Department is concerned about the transportation of other noxious or hazardous materials used in drilling operations. Mixed saltwater and oil byproducts of drilling also must be transported away from a well site. Spills of these materials can have adverse impacts on the environment and, therefore, steps must be taken to reduce those impacts. The Act in general and the specific citations provided by the Department in support of its request for transportation information give the Department sufficient authority to request the information. The Department's request did not enlarge, modify, or contravene its grant of authority. The Department's exercise of its authority in requesting transportation information was not arbitrary or capricious. Test Oil and Gas Plan. The Department requested that Coastal provide the following information concerning plans to test for oil and gas at each of the proposed wells: Submit a plan for safely producing, transporting, and storing test oil and gas. What mode of transportation is anticipated? Tankers? Barges? Pipelines? Where will produced test oil/gas be taken? Where will landfall occur? Include a statement from each appropriate local government assuring that all proposed facilities for oil and gas transportation and storage, both onshore and offshore, will be in compliance with local comprehensive plans. Indicate any leasehold interest or other property interests which will need to be secured to transport test oil or gas. Will test gas be vented, flared, or stored? Discuss why. Coastal provided no test oil and gas plan or other information in response to this request. The Department relied upon the following authority in requesting the test oil and gas plan: Sections 377.06, 377.22(2)(c) and (s), Florida Statutes, and Rules 62C-25.006(1) and 62C-28.001, Florida Administrative Code. For all the reasons previously discussed concerning the Department's authority to regulate oil and gas wells, the Department's statutory authority is broad enough to require the test oil and gas plan it requested from Coastal. The testing of fluids, their transport, and their storage all can have adverse impacts on the environment. The Act in general and the specific citations provided by the Department in support of its request for a test oil and gas plan give the Department sufficient authority to request the plan. The Department's request did not enlarge, modify, or contravene its grant of authority. The Department's exercise of its authority in requesting a test oil and gas plan was not arbitrary or capricious. Drilling Plan. The Department requested that Coastal provide information concerning drilling plans for the proposed wells, including a blow-out prevention plan. In response, Coastal provided all of the requested information, including a casing plan, cementing plan, and drilling plan, but refused to provide a blow-out prevention plan. The Paul Wolff brochure provided to the Department included a list of blow-out preventers that are standard equipment on the rig, but there was no information concerning how a blow-out would be dealt with. The Department relied upon the following authority in requesting the blowout prevention plan: Sections 377.22(2)(a), (c), (d), (e) and (l), Florida Statutes, and Rules 62C-26.003(5), 62C-26.007, and 62C-27.005, Florida Administrative Code. Section 377.22(2)(l), Florida Statutes, authorizes the Department to adopt rules to prevent blow-outs. That authority, coupled with other provisions of the Act giving the Department the authority to protect the environment from oil and gas well drilling operations, is sufficient authority for the Department to require the requested blow-out prevention plan. A blow-out can cause the release of oil and gas into the environment with serious consequences to the environment. Preventing a blow-out is, therefore, of paramount importance. Proper prevention of blow-outs depends upon the geology of each drilling site. Different sites may require different equipment or different measures to prevent a blow-out. Consequently, a separate plan for each site is reasonable and necessary. The Act in general and the specific citations provided by the Department in support of its request for a blow-out prevention plan give the Department sufficient authority to request the plan. The Department's request did not enlarge, modify, or contravene its grant of authority. The Department's exercise of its authority in requesting a blow-out prevention plan was not arbitrary or capricious. H2S Contingency Plan. The Department requested that Coastal provide a hydrogen sulfide (H2S) contingency plan, including a site specific air dispersion model for each site predicting the transport of any hydrogen sulfide accidentally released into the air. Coastal provided a single hydrogen sulfide contingency plan. No air dispersion modeling was provided. The Department relied upon the following authority in requesting individual plans and modeling: Sections 377.22 and 377.243(2), Florida Statutes, and Rule 62C-27.001(7), Florida Administrative Code. Hydrogen sulfide is a toxic gas which can be released during drilling operations. The gas is colorless. It is also denser than air. If not handled properly, a release can be fatal to anyone coming into contact with the gas. For an offshore well, a release of hydrogen sulfide can injure workers on the rig and boaters or fishermen in the area. Contact with hydrogen sulfide at a concentration of 100 parts per million can kill a person's sense of smell in 3 to 15 minutes. At a concentration of 300 parts per million, it can be fatal, and at 500 parts per million breathing will cease in only a matter of a few seconds. Because hydrogen sulfide is heavier than air, it will remain just above the surface of the water, where people are normally located on the Gulf. Individuals on the Gulf cannot escape to higher ground to avoid the gas like they may be able to do on land. While modeling cannot provide certainty as to how a cloud of hydrogen sulfide might act, it can at least give information concerning the prevailing wind direction of each site, which may be beneficial in being prepared to deal with an accident. Without such information it is difficult to determine whether plans to deal with an accident are adequate. Section 377.243(2), Florida Statutes, provides adequate authority for the Department to require that Coastal provide modeling for each proposed site. The Act in general and the specific citations provided by the Department in support of its request for hydrogen sulfide modeling give the Department sufficient authority to request the modeling. The Department's request did not enlarge, modify, or contravene its grant of authority. The Department's exercise of its authority in requesting modeling was not arbitrary or capricious. Section 120.57(1)(e)2.c., Florida Statutes. None of the required information is vague, establishes inadequate standards, or vests unbridled discretion in the Department. All of the information requested by the Department was understood by Coastal. Coastal knew what the Department was requested because it had already provided the requested information in support of its 1281 permit application. Section 120.57(1)(e)2.e., Florida Statutes. Coastal received adequate notice of the Department's Offshore Drilling Policy. Coastal had been requested to provide the information in support of its 1281 permit application. It was given written notice of the Offshore Drilling Policy in these twelve cases through the March 26, 1997, notice of incompleteness and the December 16, 1997, explanation of authority for the requested information. AA. Section 120.57(1)(e)2.g., Florida Statutes. While there are costs which Coastal would be required to pay in order to provide the information required by the Department, those costs are not excessive; not when the rationale for requesting the information is considered. Coastal did not consider the costs associated with providing the information sought by the Department to be too excessive for it to refuse to provide the information in seeking Permit 1281. On the contrary, Coastal incurred those costs. Although there was testimony that the costs of providing the information for Permit 1281 was in excess of a million dollars, the weight of the evidence failed to support the testimony. The evidence proved that the costs of providing all of the information requested by the Department would be well below a million dollars for each well. As to considering less costly alternatives, Coastal never gave the Department an opportunity to do so. Coastal simply refused to provide the requested information, to propose less-costly alternatives, or to discuss the matter further with the Department. Nor were any, less costly, methods of obtaining the information necessary for the Department to carry out its responsibilities under the Act proved at hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order denying permit applications 1296 through 1307 for failure to file complete applications. DONE AND ENTERED this 26th day of March, 1999, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1999. COPIES FURNISHED: Robert J. Angerer, Esquire Robert J. Angerer, Jr., Esquire Angerer and Angerer Post Office Box 10468 Tallahassee, Florida 32302 Andrew Baumann, Assistant General Counsel John W. Costigan, Deputy General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Monica K. Reimer, Assistant Attorney General Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 S. Ansley Samson, Esquire David G. Guest, Esquire Earthjustice Legal Defense Fund Post Office Box 1329 Tallahassee, Florida 32302 Kathy Carter, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 David B. Struhs, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether Petitioner's application for renewal of water use permit application #200781.02 should be granted to withdraw a combined average withdrawal of 9,320,000 gallons of water per day and a maximum combined withdrawal rate of 18,600,000 gallons per day, subject to the terms and conditions listed in proposed permit for use at applicant's Haynesworth Mane.
Findings Of Fact IMCF operates a phosphate mining facility known as the Haynesworth Mine located on SR 37 in western Polk County, south of Bradley Junction. IMCF leases this mine from Brewster Phosphates, which is a joint venture of American Cyanamid Corporation and Kerr-McGee Corporation. The mine includes approximately 14,100 acres. IMCF took control of the mine from Brewster in 1986. At the time IMCF took control of this mine, a consumptive water use permit was extant which was due to expire in 1989. It is to renew this permit that the application here being considered was filed. After requesting and obtaining additional information and evaluating the application, Respondent issued its notice of intent to issue the permit. Phosphate ore is extracted by a dragline which opens mining cuts of 30 to 40 feet in depth at this facility. Seepage occurs into the mine cuts which must be removed in order to see and extract the phosphate ore. Dewatering is also necessary to protect the dragline from slope stability problems. Water pumped out of the mining cuts is introduced into the mine water recirculating system where it is used for numerous purposes, such as hydraulically pumping the extracted material to the beneficiation plant where clay and sand is extracted from the phosphate ore. The beneficiation plant uses large quantities of water, utilizing supplies from within the mine system (surface waters) and some from deep wells. It is the water from the deep wells that is the primary concern of the Intervenor. The surface water comes primarily from rainfall, mine cut seepage and make up water from the deep wells. Recycled water is of lower quality than well water due to the presence of organic materials or suspended solids, but it is used for many purposes, such as washing ore before being sent to settling ponds and later decanted from the top of the settling areas and returned to the water recirculating system. By use of recircled water in the beneficiation plant, the quantity of well water needed in later stages of the mining process and for make up due to evaporation and transpiration losses is reduced. Evidence presented shows that IMCF, by improving the recirculation system, has reduced the amount of well water needed in the overall mining process from 1220 gallons of deep well water per ton of phosphate rock produced in 1987 to 775 gallons per ton in 1989. The use here proposed is greater than was approved in the expiring permit; however, this increase is due almost entirely to the inclusion of the water pumped in the dewatering operation and the sealing water wells which were not counted in earlier years in determining the quantity permitted to be pumped. Withdrawal of water from the mine cuts affects only the surficial aquifer and can result in a withdrawal of water from adjoining property. To mitigate this problem, a setback of 1100 feet from adjacent property has been established in which mining cannot be conducted. Additionally, a ditch is to be installed between the mining cut and the property line which is kept full of water to provide recharge to the surficial aquifer. Phosphate mining is a reasonable and beneficial use of water, and is consistent with the public interest. The use here proposed was grandfathered in long before the Intervenor received a consumptive use permit in 1986 and will not interfere with any legal use of water existing at the time of the application. Considerable testimony was presented describing the computer modelling process used by IMCF and SFWMD in determining that the maximum drawdown of the water allowed by this proposed permit would not have a deleterious effect on adjacent property owners or on the Florida aquifer from which much of this water will be drawn. As a result, it is found that the rate of flow in nearby streams or watercourse will not be lowered; the level of the potentiometric surface will not be lowered below the regulatory level established by SFWMD; the drawdown will not induce salt water encroachment; will not cause the water table to be lowered so that lake stages or vegetation will be significantly affected on property not owned by the applicant; will not cause the potentiometric surface to be lowered below sea level; and the granting of this permit is in the public interest. The Intervenor's property consists of a 62 acre orange grove planted on reclaimed phosphate land that was mined more than 30 years ago and is surrounded by the 14,100 acres now controlled by IMCF. Her primary concern is that IMCF's mining operations will withdraw surficial water that would otherwise go to her orange grove, and that sufficient water will be withdrawn from the Florida aquifer that she will not have sufficient water to irrigate her grove. To support this position, Intervenor presented evidence that prior to 1986 her grove prospered with only natural rainfall. However, in 1986 it was found necessary to install a well to provide irrigation to this grove; and a permit was obtained from SFWMD. Subsequently, during a dry spell in April 1988 the surface pressure at Intervenor's pump dropped from 22 psi to less than 15 psi, and she was told the pumps would be burned out if pumping continued and the pressure dropped further. She attributed this low pressure at her pump to IMCF taking water from the aquifer from which her water also was drawn. During the period around April 1988, the ground water level dropped 15 to 20 feet below the average level of the water from which Intervenor drew her irrigation water. This resulted in the submersible pump having to lift water 15 to 20 feet (or more) higher than it had to lift when the pressure of the pump was 22 psi. In other words, Intervenor's pump was completely submerged in the water in the upper Florida aquifer, but the pump was not powerful enough to provide 22 psi pressure at the earth's surface. Changes in the ground water levels vary during each year depending on the amount of rainfall and the demands of those removing water from the aquifer. Spring time usage is normally heavy for agricultural purposes, and, as shown on Exhibit 25, each spring the ground water levels are closer to sea level than at any other time of the year. Intervenor also contended that IMCF should retain all of the water used in the mining process on its land rather than allowing the excess during heavy rainfall periods to be discharged into the Alafia River. No evidence was presented by Intervenor to show this to be a feasible solution; nor was evidence presented that this discharge polluted the Alafia River as contended by Intervenor. The Haynesworth Mine is a stationary installation which is reasonably expected to be a source of water pollution. Accordingly, it is required to obtain a permit from the Department of Environmental Regulation to discharge water into the Alafia River and is subject to various restrictions in so doing. No evidence was presented that IMCF or Haynesworth Mines violated any of the provisions of Chapter 403, Florida Statutes, in this regard.
Recommendation It is recommended that consumptive use permit #200781.02 be issued to IMC Fertilizer Inc., subject to the conditions contained in the draft permit. ENTERED this 7th day of January, 1991, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1991. COPIES FURNISHED: Robert W. Sims, Esquire Post Office Box 1526 Orlando, FL 32802 Catherine D'Andrea, Esquire 2379 Broad Street Brooksville, FL 34699-6899 Faye Dobbs Post Office Box 3407 Lakeland, FL 33802
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing and the prehearing stipulation filed by the parties, the following relevant facts are found: Kerr-McGee Chemical Corporation, a subsidiary of the petitioner, conducts phosphate mining operations. It is involved in a joint venture with Brewster Phosphate, which operates two phosphate mines south of Lakeland, Florida. In phosphate mining operations, it is possible during times of seasonal high rains or hurricanes for the water in the system to exceed the available containment areas. In such instances, water must be released outside the system and a discharge permit from the Department of Environmental Regulation is necessary. In approximately 1964, petitioner received five prospecting permits to explore for mineral deposits in the Osceola National Forest. Pursuant to 30 U.S.C. Section 211(b), the Mineral Leasing Act, petitioner filed applications for preference right leases based on commercial discoveries of phosphate on portions of the same land. Section 211(b) provides in pertinent part: [I]f prior to the expiration of the permit the permittee shows to the Secretary that valuable deposits of phosphate have been discovered within the area covered by his permit, the permitee shall be entitled to a lease. The applications for preference right leases cover areas within the drainage basins of Deep Creek, Robinson Creek and Falling Creek within the Osceola National Forest. On March 28, 1969 and December 11, 1970, the United States Geological Survey, as designee of the Secretary of the Interior, certified that petitioner had made valid discoveries of valuable mineral deposits on these lands. In a proceeding filed with the United States District Court for the District of Columbia, petitioner sought an order compelling the Secretary of the Interior to issue it a preference right lease pursuant to 30 U.S.C. Section 211(b) for the purpose of mining phosphate in the Osceola National Forest. The Court took under consideration an affidavit of Russell G. Wayland, then Chief of the Conservation Division of the United States Geological Survey. This affidavit noted that valuable deposit determinations had been made on March 28, 1969 and December 11, 1970, but further stated that it had been determined that the criteria upon which such determinations were based are insufficient to meet the requirements of 30 U.S.C. Section 211 (1970), and the new regulations which had been promulgated in May of 1976. In an opinion filed on September 29, 1976, the United States District Court, Judge Barrington D. Parker, held that petitioner had "an acquired and vested interest" and a "statutory entitlement" to the preference right leases, and that the recently implemented regulations of May, 1976 could not void that interest. Accordingly, the Court mandated the Secretary of the Interior to immediately issue the preference right leases to Kerr-McGee Chemical Corporation. Kerr-McGee Chemical Corp. v. Thomas S. Kleppe, et al., Civil Action No. 76-0608 (D.D.C. 1976). The opinion of Judge Parker was appealed to the United States Court of Appeals for the District of Columbia Circuit. That Court, in a judgment entered on March 28, 1978, reversed the United States District Court's order of September 29, 1976, holding that The ongoing administrative proceedings before the Secretary of the Interior were aborted by the issuance of the writ of mandamus by the District Court. Appellees should have exhausted its administrative remedies before seeking the writ or petitioning for judicial review. As of the time of the administrative hearing in the instant rule challenge proceeding, the Department or Secretary of the Interior still had not yet completed its review of Kerr-McGee's preference lease applications under the new regulations. Petitioner currently has no lease to conduct phosphate mining operations in the Osceola National Forest. The proposed Rule being challenged in this proceeding reclassifies certain bodies of water within three National Forests from Class III waters to Outstanding Florida Waters. The parties have stipulated that petitioner's applications for preference right leases cover only those areas within the drainage basins of Deep Creek, Robinson Creek and Falling Creek located within the Osceola National Forest. Thus, petitioner has no standing to challenge the Outstanding Florida Water (OFW) classifications of those waters within the Apalachicola or Ocala National Forests or the Ocean Pond and Middle Prong of St. Mary's River within the Osceola National Forest. As to the three remaining water bodies--Deep Creek, Robinson Creek and Falling Creek located within the Osceola National Forest--it is concluded that petitioner is substantially affected by the proposed rule only if it can demonstrate that it is presently entitled to mine for phosphate in those areas, and is thus subject to compliance with the criteria and standards relating to OFW classifications. The record in this case does not adequately demonstrate that petitioner is presently entitled to conduct phosphate mining operations within the drainage basins of Deep Creek, Robinson Creek or Falling Creek in the Osceola National Forest. It has simply applied to the federal government for a permit to conduct such activities. The evidence illustrates that valuable deposit determinations were made in 1969 and 1970, but that, in 1976, the criteria upon which such determinations were based were determined to be insufficient and that a new determination was necessary prior to the issuance of a preference right lease under 30 U.S.C. Section 211. While the United States District Court did not agree, ruling that petitioner had an entitlement to the phosphate mining leases and mandating their issuance, that decision was reversed by the Circuit Court of Appeals for the District of Columbia. Thus, the District Court's pronouncements of entitlement are of no legal force or effect. As of the hearing date, the Interior Department had not yet completed its review of petitioner's preference lease applications. The facts of this case distinguish it from the holding in the case of Natural Resources Defense Council v. Berklund, 609 F. 2d 553 (D.C. Cir., 1979). In Berklund, the Court held that the Department of Interior had no discretion to reject a coal lease application by a prospecting permittee who had satisfied the commercial quantities requirement of federal law--a requirement similar to the valuable deposit determination of 30 U.S.C. Section 211(b). In the instant case, there has been no such satisfaction of requirements. Instead, there has been a specific finding that the prior determinations of valuable deposits were based upon insufficient criteria and that a new determination under the new regulations was necessary. As such, petitioner has not demonstrated that it is presently entitled to mine for phosphate in the Osceola National Forest since no valuable deposit determination has been made. Without this determination and present entitlement to the leases, petitioner's interest in the classification of the water bodies within the Osceola National Forest is speculative, at best. A mere interest in a proposed rule cannot confer standing to challenge its validity. An immediate, nonspeculative and substantial effect is required to allow a person to challenge a proposed agency rule. It must be remembered that the challenged Rule does not prohibit phosphate mining in the Osceola National Forest. It simply reclassifies certain waters, thus affecting the degree of assurances required issuance of a discharge permit. Having no current property interest or present entitlement to mining leases in the Osceola National Forest, petitioner has no immediate or present interest of a substantial nature in the contents of any rules setting standards for the waters in said Forest. Petitioner has simply failed to demonstrate that if the rule were adopted, it would sustain any injury in fact. The rule may be challenged by petitioner after it takes effect if petitioner can illustrate that it is substantially affected by its contents. Petitioner failed to make such a showing in the instant proceeding, and has not demonstrated its standing to challenge proposed Rule 17-3.041(1)(i) or (4)(k), Florida Administrative Code.
The Issue The issue to be determined by this Order is whether the Petition for Formal Proceedings filed with the Department of Environmental Protection (DEP) on February 4, 2009, was timely 1/ and, if so, whether Petitioners have standing to challenge the DEP?s issuance of the Minor Modification to FDEP Operation Permit 171331-002-UO for IW-1 under 171331-003-UC (the Permit Modification).
Findings Of Fact The Parties The Conservation Alliance is a Florida not-for-profit corporation in good-standing, with its corporate offices currently located at 5608 Eagle Drive, Fort Pierce, Florida. The Conservation Alliance has approximately 200 members. Elaine Romano is a resident of St. Lucie County, Florida. The DEP is an agency of the State of Florida having jurisdiction for permitting UIC facilities and the waste-streams being discharged to such facilities, pursuant to chapter 403, Florida Statutes, and the rules promulgated thereunder. Pursuant to that authority, the DEP issued the Permit Modification that is the subject of this proceeding. FPUA provides utility service to the City of Fort Pierce, Florida. FPUA owns and operates a Class I industrial injection well (IW-1), discharges to which are the subject of the Permit Modification. Allied owns and operates a chlorine bleach manufacturing facility which produces a brine waste-stream that is proposed for disposal to IW-1. Issuance of the Permit Modification On December 19, 2008, the DEP issued a Notice of Permit, Permit Number 171331-002-UO (FPUA operation permit), which authorized the operation of IW-1 at the Gahn wastewater treatment plant. The Gahn wastewater treatment plant and IW-1 are owned and operated by the FPUA. The FPUA operation permit authorized the disposal of concentrate and water treatment by- product from FPUA?s reverse-osmosis water facility at a permitted rate of 2.8 million gallons per day. FPUA also owns and operates water production wells that serve the City of Fort Pierce potable water supply system. IW-1 was constructed within 500 feet of three of the FPUA production wells, which required FPUA to obtain a variance from setback requirements. On July 17, 2008, prior to the issuance of the FPUA operation permit, Allied submitted an application for a major modification of the FPUA operation permit. The application proposed the disposal to IW-1 of up to 21,600 gallons per day of a brine waste-stream that is a by-product of the production of chlorine bleach. The application cover letter provides that “[w]hile we have been notified that this project is only a Minor Permit Modification, we feel by submitting for a Major Permit Modification that the Department will have the ability to review the application and downgrade the application to a Minor Permit Modification, if needed.” On December 30, 2008, the DEP issued the Permit Modification as a minor modification of the FPUA operation permit. The Permit Modification allowed a maximum of 21,600 gallons of brine to be received at the FPUA facility and disposed of in IW-1. Notice of the Permit Modification On or about September 12, 2008, a paralegal for Ruden McClosky, Lucinda Sparkman, requested information from the DEP regarding the procedure for receiving notification of permit applications and DEP action thereon. Her request was subsequently refined to request notice regarding two permits, those being “injection Well Construction, application #171331- 003,” and the other being “Water-Industrial Wastewater, application #FLA017460-004.” DEP File No. 171331-003 is that pertaining to the Permit Modification. At the time of the request, Ruden McClosky represented Odyssey Manufacturing Company (Odyssey), an economic competitor of Allied.3/ On September 24, 2008, Ms. Sparkman asked to be “put on the distribution list for the URIC permit for Fort Pierce.” From September 24, 2008 through December 15, 2008, Ms. Sparkman made periodic requests for information, and received periodic updates from the DEP. On December 19, 2008, the DEP sent Ms. Sparkman an e- mail indicating that the FPUA operation permit had been issued, and later that same day sent Ms. Sparkman an electronic copy of the permit. On December 19, 2008, Ruden McClosky made a public records request to FPUA for, among other items, records pertaining to the disposal of brine to the Gahn Water Plant underground injection well, and any agreements between FPUA and Allied regarding the disposal of brine. The request was made on behalf of Florida Tire Recycling, Inc. (Florida Tire). On December 22, the DEP sent Ms. Sparkman a copy of the notice of intent for the FPUA operation permit. There is no record evidence of further communication or inquiry between Ruden McClosky and the DEP from December 22, 2008 to January 14, 2009. On January 9, 2009, notice of the Permit Modification was published in the Fort Pierce Tribune. The notice was prepared and publication arranged by counsel for Allied. The published notice provides the information required by rule 62-110.106(7)(d), and stated that any challenge to the Permit Modification was required to be received by DEP within 14 days of publication or, for persons that requested actual notice, within 14 days of receipt of such actual notice. On January 14, 2009, Ms. Sparkman called her contact person at the DEP to inquire about the Permit Modification. That call was not returned. On January 21, 2009, Ms. Sparkman again called the DEP to inquire about the Permit Modification. In response to Ms. Sparkman?s inquiry, the DEP sent Ms. Sparkman an electronic copy of the Permit Modification. Ms. Sparkman made further inquiry on January 21, 2009, as to whether the notice of the Permit Modification had been published in a newspaper. On January 22, 2009, the DEP replied that “[e]verything was noticed as required.” On January 22, 2009, the Fort Pierce Tribune prepared an affidavit of publication of the notice. The affidavit of publication was received by counsel for Allied on January 28, 2009, who sent the affidavit to the DEP by certified mail on January 29, 2009. Alleged Defects in the Notice of Permit Modification Petitioners have alleged a number of procedural defects that they contend render the published notice ineffective to establish a deadline of 14 days from the date of the notice to file a challenge to the Permit Modification. Late Proof of Publication Petitioners allege that Allied filed the proof of publication with the DEP more than seven days from the date of publication, and that delay made such publication ineffective to establish a deadline for filing the petition. Although the proof of publication was provided to the DEP on or shortly after January 29, 2009, the evidence demonstrates that Allied provided the proof of publication to the DEP immediately upon receipt from the Fort Pierce Tribune newspaper. The delay in filing was not within the control of Allied, or anyone else associated with the Permit Modification. As established by rule 62-110.106(9), proof of publication is required by the DEP to provide assurance to the DEP that required notice has, in fact, been published, with the sanction being the delay or denial of the permit. The rule does not suggest that a delay in providing proof of publication to the DEP serves to alter or extend the time for filing a petition. There is little case law construing the effect of a delay in providing proof of publication on the petition rights of a person challenging the proposed agency action. However, the undersigned agrees with, and adopts, the following analysis of the issue provided by Administrative Law Judge P. Michael Ruff: . . . the purpose of requiring an applicant to publish notice of agency action is to give substantially affected persons an opportunity to participate in an administrative proceeding. See Section 403.815, Florida Statutes, and Rule 17- 103.150(4), Florida Administrative Code. Consequently, the crucial element in the Department's publication requirement is that the notice be published to trigger the commencement of the time for affected persons to request a hearing. The requirement that proof of publication be provided to the Department does nothing to affect the rights of third parties, but merely is a technical requirement which allows the Department to determine whether a third party has timely exercised its rights to contest a published notice of intended agency action. If an applicant publishes notice of intended agency action, but fails to timely provide the Department with proof of that publication, the deficiency is one which is easily cured. No harm will occur because the permit will not be issued until proof of publication is received by the Department, in any event, because of Rule 17-103.510(4), Florida Administrative Code. Bio-Tech Tracking Systems, Inc. v. Dep?t of Envtl. Reg., Case No. 90-7760, ¶32 (Fla. DOAH Apr. 3, 1991; Fla. DER May 17, 1991). The filing of the notice beyond the seven-day period in rule 62-110.106(5) was, at most, harmless error, did not adversely affect any rights or remedies available to Petitioners, and does not affect the fairness of this proceeding. Notice Prepared by Counsel Petitioners allege that the notice was prepared by Allied?s counsel, rather than the DEP, and that the notice was therefore ineffective to establish a deadline for filing the petition. Publication of the notice of the Permit Modification was not required, since it was a minor modification. Thus, publication was at Allied?s option. Rule 62-110.106(10)(a) provides, in pertinent part, that: Any applicant or person benefiting from the Department?s action may elect to publish notice of the Department?s intended or proposed action . . . in the manner provided by subsection (7) or (8) above. Upon presentation of proof of publication to the Department before final agency action, any person who has elected to publish such notice shall be entitled to the same benefits under this rule as a person who is required to publish notice. The most logical construction of rule 62-110.106 is that the DEP is responsible for preparing required notices pursuant to rule 62-110.106(7)(c), but that non-required notices may be prepared and published at the applicant?s or beneficiary?s option without direct DEP involvement. In this case, the notice was prepared by an authorized agent of the corporate “person” that benefitted from the Permit Modification. The more salient point regarding the preparation of the notice is whether it contained all of the information required by rule. The evidence demonstrates that it did, and that the notice was sufficient to provide a meaningful and complete point of entry to the public of the Permit Modification and the rights attendant thereto. The fact that the notice was prepared by Allied?s counsel was, at most, harmless error, did not adversely affect any rights or remedies available to Petitioners, and does not affect the fairness of this proceeding. Lack of Actual Notice Petitioners allege error in the notice process because actual notice of the Permit Modification was not provided to Petitioners. The basis for the alleged deficiency was that Mr. Stinnette had, in 2003, asked to be placed on the DEP?s UIC mailing list, but did not receive the notice of the Permit Modification. Rule 62-110.106(2) provides that published notice establishes the point of entry for the public to challenge proposed agency action “except for persons entitled to written notice personally or by mail under Section 120.60(3), Florida Statutes, or any other statute.” Section 120.60(3) provides that a notice of proposed agency action shall be mailed “to each person who has made a written request for notice of agency action.” The preponderance of the evidence demonstrates that Mr. Stinnette was acting solely as an agent of Indian Riverkeeper when he requested to be placed on the UIC mailing list. He was not requesting notices in his personal capacity, or as an agent of the Conservation Alliance or Ms. Romano. Thus, Indian Riverkeeper was entitled to notice of the Permit Modification. Indian Riverkeeper is not a party to this proceeding. The undersigned is not willing to attribute a request for actual notice to any person other than the person requesting such notice. The DEP?s failure to provide written notice of the Permit Modification to Indian Riverkeeper did not adversely affect any rights or remedies available to the Conservation Alliance or Ms. Romano, and does not affect the fairness of this proceeding. Lack of Information Pursuant to Rule 62-528.315(7) Finally, Petitioners argue that the published notice was ineffective because it did not include the name, address, and telephone number of a DEP contact person, citing rule 62- 528.315(7)(d). The provision cited by Petitioners involves DEP notices that are required when the DEP has prepared a draft permit, draft consent order, or has scheduled a public meeting as identified in rule 62-528.315(1). The notice requirement in rule 62-528.315(7) does not apply to a notice of proposed agency action, which is governed by rule 62-528.315(10), and which provides that: “[a]fter the conclusion of the public comment period described in Rule 62-528.321, F.A.C., and after the conclusion of a public meeting (if any) described in Rule 62- 528.325, F.A.C., the applicant shall publish public notice of the proposed agency action including the availability of an administrative hearing under Sections 120.569 and 120.57, F.S. This public notice shall follow the procedure described in subsection 62-110.106(7), F.A.C. (emphasis added). The published notice of the Permit Modification was consistent with the notice described in rule 62-110.106(7), and therefore complied with rule 62-528.315(10). For the reasons set forth herein, there were no defects in the published notice of proposed agency action that serve to minimize the effect of that published notice on the time for filing a petition challenging the Permit Modification, that adversely affect any rights or remedies available to the Conservation Alliance or Ms. Romano, or that affect the fairness of this proceeding. Representation of Petitioners by Ruden McClosky Petitioners were not represented by Ruden McClosky at the time Ruden McClosky requested actual notice of any DEP agency action regarding FPUA. Petitioners were not represented by Ruden McClosky at the time Ruden McClosky requested actual notice of any DEP agency action regarding Allied. The parties stipulated that an attorney-client relationship was formed between the Petitioners and Ruden McClosky on or after January 1, 2009. No further specificity was stipulated. On February 3, 2009, Ruden McClosky sent an engagement letter to the Conservation Alliance regarding governmental and administrative challenges to the Permit Modification. The engagement was accepted by Mr. Stinnette on behalf of the Conservation Alliance on February 4, 2009. The Petition for Formal Proceedings, which named the Conservation Alliance as a party, was filed with the DEP on February 4, 2009. On February 10, 2009, Ruden McClosky sent an engagement letter to Ms. Romano regarding governmental and administrative challenges to the Permit Modification. There is no evidence that the engagement was accepted by Ms. Romano. Ms. Romano testified that she has never spoken or corresponded with anyone from Ruden McClosky, and had no knowledge that she was being represented by Ruden McClosky. Ms. Romano had no input in drafting any of the petitions filed on her behalf, and had no recollection of having ever read the petitions. The Amended Petition for Formal Proceedings, which named Ms. Romano as a party, was filed with the DEP on February 12, 2009. Both of the Ruden McClosky engagement letters reference an “Other Client” that had an interest in challenging the Permit Modification, which “Other Client” would be responsible for paying all fees and costs, and would be involved in the approval of all work performed by Ruden McClosky. The parties stipulated that the “Other Client” was Odyssey. The date of an engagement letter is not dispositive as to the date on which an attorney-client relationship is established. It is, however, evidence that can be assessed with other evidence to draw a conclusion as to the date that the relationship commenced. The preponderance of the evidence demonstrates that requests for notice made prior to January 21, 2009, regarding the FPUA operation permit and the Permit Modification that is the subject of this proceeding were made on behalf of Odyssey or Florida Tire, existing clients of Ruden McClosky. The preponderance of the evidence leads the undersigned to find that Ruden McCloskey commenced its representation of the Conservation Alliance with regard to the instant case no earlier than January 21, 2009, the date on which Ruden McClosky received notice that the Permit Modification had been issued. The preponderance of the evidence leads the undersigned to find that Ruden McCloskey commenced its representation of Ms. Romano with regard to the instant case after January 21, 2009, if at all. Filing of the Petitions The 14th day after publication of the notice of the Permit Modification fell on January 23, 2009. On February 4, 2009, the initial Petition for Formal Proceedings was filed challenging the DEP issuance of the Permit Modification. The Petition named the Conservation Alliance as a party. On February 12, 2009, an Amended Petition for Formal Proceedings was filed that, among other things, added Ms. Romano as a party. Allegations of Standing - Conservation Alliance The Conservation Alliance is a non-profit, Florida corporation incorporated in 1985. It has at least 100 members that reside in St. Lucie County. It was formed for the general purpose of protecting the “water, soil, air, native flora and fauna,” and thus the environment of St. Lucie County. In the Petition for Formal Proceedings, as it has been amended, the Conservation Alliance made specific allegations as to how the issuance of the Permit Modification may affect its substantial interests. Those allegations are related, first, to the effect of the Permit Modification on the FPUA public water supply that serves members of the Conservation Alliance and, second, to the effect of the Permit Modification on the ability of the members to recreate and enjoy the waters of St. Lucie County. FPUA Water Service In its Second Amended Petition for Formal Proceedings, the Conservation Alliance alleged that “[m]embers of the Alliance own real property or otherwise reside within the service area of FPUA, and are, in fact, serviced by FPUA.” As a result, the members “will be adversely affected by the injection of the Allied waste stream into IW-1, which is located within 500 feet of three potable water supply sources, from which . . . Romano and the Alliance?s members are provided with potable water,” resulting in “a potential for those contaminants and hazardous materials to get into Petitioners? source of potable water.” Mr. Brady, the Conservation Alliance?s president, does not receive water service from the FPUA. Mr. Brady did not know how many members of the Conservation Alliance received water service from the FPUA. Persons living in unincorporated areas of Fort Pierce do not receive potable water from the FPUA. A mailing address of “Fort Pierce” does not mean that the person lives in the incorporated City of Fort Pierce. Mr. Brady “assumed” many of the members lived in the City of Fort Pierce, but offered no admissible, non-hearsay evidence of any kind to support that assumption. Mr. Stinnette testified that he was “confident that we have members that receive water from [FPUA]” but was not able to quantify the number of said members. As with Mr. Brady, Mr. Stinnette offered no admissible, non-hearsay evidence of any kind to support his belief. Recreational and Environmental Interests In its Second Amended Petition for Formal Proceedings, the Conservation Alliance alleged that “. . . Romano and the Alliance?s members utilize and protect the waters of St. Lucie County. Petitioners? recreational and environmental interests will be adversely affected if the Allied waste stream leaves the injection well area and flows into the rivers, streams, and or ocean.” Mr. Brady understood that one member of the Conservation Alliance, George Jones, fished in the C-24 canal, although Mr. Brady had not personally fished there for 25 years. Mr. Brady otherwise provided no evidence of the extent to which members used or enjoyed the waters in or around St. Lucie County. Mr. Stinnette has recreated in various water bodies that are tributaries of the Indian River Lagoon system. He indicated that he had engaged in recreational activities in and on the waters of St. Lucie County with “dozens” of people over the past 16 years, some of whom were members of the Conservation Alliance. There was no evidence offered as to how many of those persons were members of the Conservation Alliance, as opposed to members of other organizations or of no organization at all, or whether they were current members during the period relevant to this proceeding. Mr. Stinnette testified that the previously mentioned Mr. Jones said that he kayaked in the waters of St. Lucie County but, as to the recreational activities of other members, testified that “I don't know, I don't keep up with their day-to-day activities to that extent.” Although Mr. Jones testified at the hearing, he provided no information as to the nature or extent of his recreational uses of the waters of St. Lucie County. The only evidence of Mr. Jones? use of the waters of St. Lucie County is hearsay. Thus, the only finding that can be made as to the recreational use of the waters of St. Lucie County by current members of the Conservation Alliance is limited to the recreational use by a single member, Mr. Stinnette. Petitioner, Elaine Romano Ms. Romano is a member of the Conservation Alliance. The allegations regarding Ms. Romano?s substantial interests in this proceeding were the same as those of the Conservation Alliance as set forth above. FPUA Water Service Ms. Romano has her primary residence at 3436 Roselawn Boulevard, Fort Pierce, Florida. Her residence is not served by FPUA. Ms. Romano is the executor of the estate of her mother, Marion Scherer. The estate owns a residence at 1903 Royal Palm Drive, Fort Pierce, Florida that is currently vacant. That residence is served by FPUA. The estate is not a party to this proceeding. Recreational and Environmental Interests Ms. Romano attends certain meetings and functions of the Conservation Alliance, but offered no testimony of her use or enjoyment of any natural resources that could be affected by the Permit Modification. In that regard, her interest in this case was precipitated by a desire to support her mother?s interest in ecology.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that Respondent, Department of Environmental Protection, enter a final order dismissing the Petition for Formal Proceeding as amended. DONE AND ENTERED this 24th day of May, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2013.
The Issue The issues to be determined in this case are whether Petitioner Highway 60 and 301 Center, Inc., has standing to challenge the proposed Environmental Resource Permit issued to Respondent Big Bend Center, LLC, by Respondent Southwest Florida Water Management District ("District"), and, if so, whether Big Bend Center is entitled to issuance of the proposed permit.
Findings Of Fact The Parties Petitioner owns real property located at 105 U.S. Highway 301 South, in Tampa, which Petitioner leases to commercial businesses. Respondent Big Bend Center owns real property located at 110 U.S. Highway 301 South, which is across Highway 301 from Petitioner's property. Big Bend Center is named in the District's agency action and is the permittee. The site affected by the proposed permit modification is about 2.5 acres in size. It is part of a larger development owned by Big Bend Center, encompassing about 30 acres. The 30-acre site was the subject of a permit issued by the District in 1988. The 1988 permit approved a master drainage plan applicable to all 30 acres. The permit modifications discussed herein are modifications to this initial permit. Respondent Enterprise Holdings leases the 2.5-acre site at 110 U.S. Highway 301 South, which Enterprise uses for the operation of a car and truck rental business. When Petitioner filed its petition with the District, it named Enterprise Holdings, Inc., as a Respondent, even though Enterprise Holdings was not named in the permit. Neither Petitioner nor the District ever questioned the right of Enterprise Holdings to participate as a party. Respondent Southwest Florida Water Management District is the administrative agency charged with the responsibility to administer and enforce chapter 373, Florida Statutes, and the rules promulgated pursuant thereto in Florida Administrative Code Chapter 40D. The Permit The petition for hearing challenged the District's approval of a proposed permit designated 44003983.007. The permit authorized the construction of a building over existing pavement and the addition of a dumpster pad. After the petition for hearing was filed, Big Bend Center requested and the District approved a modification, designated .008, which included the .007 changes and, in addition, authorized the construction of a section of sidewalk and landscape islands in the parking lot. Enterprise then requested and the District approved another modification, .009, which authorized all the changes addressed in .008 and, in addition, authorized changes to the paved parking lot. Standing Petitioner contends that proposed permit, modification .009, would injure Petitioner because the authorized changes would result in flooding of Highway 301 that could reach Petitioner's property or, even if it did not reach that far, would interfere with traffic on Highway 301 in a manner that would disrupt Petitioner's business. The sole factual allegation upon which Petitioner bases its claim of flooding is that the previously-installed pipes that convey runoff to a retention pond may be too small; smaller than was required by Big Bend Center's 1988 permit. Petitioner's expert, Clifford Laubstein, stated that a boundary survey in the permit file shows two 18-inch diameter pipes connected to a 24-inch diameter pipe. Big Bend Center's 1988 permit required these pipes to be 24 inches and 30 inches, respectively. Laubstein admitted that the "as built" construction drawings that were submitted to the District by Big Bend Center after the construction of the master drainage system certifies that the pipes are the required, larger size. Laubstein did not have firsthand knowledge of the size of the pipes. He did not know which document was correct, the survey or the as built drawings. His position was simply that if the survey information was correct, Big Bend Center's stormwater system would fail to function properly and flooding could occur. Laubstein did not know whether the system had failed to function properly in the past or had ever caused flooding. Laubstein did not determine what storm event or volume of runoff would result in flooding of Highway 301, or the extent of flooding that would occur under various storm events. Because as built constructions drawings are prepared by an engineer and submitted to the District for the very purpose of certifying that a system has been constructed in accordance with the requirements of the permit, information in the as built drawings about components of the system would generally be more reliable than such information in a survey that was prepared for another purpose. Furthermore, Enterprise's expert witness, Steve Boggs, measured the pipes and determined they were 24 and 30 inches, as required by the permit. By refuting Petitioner's claim that the pipes "may" be undersized, Respondents refuted Petitioner's claim that Highway 301 or Petitioner's property "may" be flooded if the proposed permit modification is issued by the District. The stormwater system for the proposed project is properly sized to handle the stormwater runoff. Petitioner failed to meet its burden to prove by a preponderance of the evidence that it could be injured by the proposed permit modification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District dismiss the petition and issue Environmental Resource Permit 44003983.009. DONE AND ENTERED this 4th day of March, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2013.
