Conclusions An Administrative Law Judge with the Division of Administrative Hearings ("DOAH") submitted his Recommended Order of Dismissal to the Department of Environmental Protection ("DEP") in these consolidated administrative proceedings. The Recommended Order of Dismissal indicates that copies thereof were served upon counsel for the Co-Respondent, Escambia County Utilities Authority (“Authority”), and upon pro se Petitioners, Kerry Culligan (*Culligan’ ) Mary Pueschel Studstill (“Studstill’), and Chris Englert Cnglert. A copy. of the Recommended Ofder of Dismissal i is attached hereto as s Exhibit A The matter is now "before the Secretary o of DEP for final agency action. a | BACKGROUND The Authority owns and operates a public water system in Escambia County, Florida. These consolidated cases involve an application fi fi led with DEP seeking a permit to construct fluoridation treatment facilities at six of the Authority’s potable water a supply wells. On September 5, 2000. DEP executed an Intent to Issue and draft permit . } 4 F tor the Applicant’ fluoridation treatment construction project. The Petitioners then fi led “similar petitions with DEP contesting the issuance of the permit to the Applicant and requesting formal administrative hearings. The Petitions, which were forwarded to : r appropriate proceedings, basically questioned the safety and effi icacy of oe DOAH fc fluoridation i in their drinking water. Administrative Law w Judge, Donald R. Alexander, AL, was assigned to “~ insuffi cient to state a cause ofa action for relief f against DEP under the controling ‘provisions of Rule 62- 555. 328, Florida Administrative Code. Rule 62- 555. 325 establishes conditions and requirements for the issuance by of permits to public oO Bo yee ee water systems for the installation and operation of fluoridation treatment equipment. _ sad The ALS J recommended that DEP center a fi ina alorer dismissing, with prejudice, t the wale) eh as ed squares sas chante és antes? CONCLUSION The case law of Florida holds that parties to. formal administrative proceedings ‘must alert agencies to any perceived defects in DOAH hearing procedures or in the findings of fact of administrative law judges by filing exceptions to the DOAH recommended orders. See Couch v. Commission on Ethics, 617 So.2d 1119, 1124 (Fla. 5th DCA 1993); Florida Dept. of Corrections v. Bradley, 510 So.2d 1122, 1124 (Fla. 1st DCA 1987). The ALJ ruled in his Recommended Order of Dismissal that Petitioners’ allegations were legally insufficient to state a cause of action warranting denial of the construction permit for Applicant's proposed fluoridation treatment facilities. Nevertheless, no exceptions were filed by any of the Petitioners objecting to this critical adverse ruling or objecting to the ALJ’s ultimate recommendation that DEP enter a final order dismissing the three petitions with prejudice. Having considered the Recommended Order of Dismissal and other matters of record and faving | reviewed the applicable law, | concur with the rulings and ultimate recommendation of the ALJ. Itis therefore ORDERED: A. The ALJ’s Recommended Order of Dismissal is adopted in its entirety and is incorporated by reference herein. - B. Culligan’s amended petition for administrative hearing and the initial petitions for administrative hearings of Studstill and Englert are dismissed, with prejudice, for failure to state a cause of action upon which a final order can be entered denying the Authority’s requested permit to construct the fluoridation treatment facilities. seals Lae eee es i x A a Mk ii i ie aL C. DEP's Northwest District Office shall ISSUE to the Authority the construction permit for the fluoridation treatment facilities, subject to the terms and conditions of the draft permit issued in DEP File No. 0083021 -001 -WCIMA. Any party to these proceedings has the right to seek judicial review of this Final : pursuant “to Rife 9.110, Florida Rules of Appellate Procedure, ‘with the clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, MS. 35, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal accompanied by the applicable fi iling fees with the appropriate District Court of Appeal. The Notice of ‘Appeal must be fi led within 30 days from the date ‘this Final Order is fi led ; with the clerk of the Department. -DONE AND ORDERED this Z day of January, 2001, in Tallahassee, Florida. bn STATE OF FLORIDA DEPARTMENT . OF ENVIRONMENTAL PROTECTION LS DAVID B. STRUHS Secretary Marjory Stoneman Douglas Building AOS OSU ue SAAS ai head. te 3900 Commonwealth Boulevard ; Tallahassee, Florida 32399-3000 moun i}76lo1 CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy of the foregoing Final Order has-been sent by United States Postal Service to: Kerry Culligan Mary Pueschel Studstill 814 North 13" Avenue 414 North Guillemard Street Pensacola, FL 32501 Pensacola, FL 32501 Chris Englert Robert W. Kievet, Esquire 4121 West Avery Avenue Kievet, Kelly & Odom Pensacola, FL 32501 15 West Main Street Pensacola, FL 32401 Ann Cole, Clerk and Donald R. Alexander, Administrative Law Judge David S. Dee, Esquire Division of Administrative Hearings John T. LaVia, Ill, Esquire The DeSoto Building Landers & Parsons, P.A. 1230 Apalachee Parkway Post Office Box 271 Tallahassee, FL 32399-1550 Tallahassee, FL 32302 and by hand delivery to: Craig D. Varn, Esquire Department of Environmental Protection . . 3900 Commonwealth Blvd., M.S. 35 ° “~~~ Tallahassee, FL 32399-3000 this LStkd ay of January, 2001. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION : “TERRELL WILLIAMS Assistant General Counsel ate ) Mhea 3900 Commonwealth Blvd., M.S. 35 Tallahassee, FL 32399-3000 “Telephone 850/488-9314 ce it 1a ea
The Issue Whether the Respondent violated Florida law regulating the manner in which pesticide chemicals are to be utilized and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with the duty to prosecute administrative complaints against operators, applicators, and licensed pest control businesses pursuant to Section 482.011, et seq., Florida Statutes. Respondent is at all relevant times a licensed operator and applicator, subject to Petitioner's regulatory jurisdiction. On or about February 21, 2004, Respondent was performing preconstruction termite treatment services at a job site at 7750 Okeechobee Boulevard in West Palm Beach, Florida, utilizing a pesticide known as Dursban TC. Label instructions for Dursban TC provide that a 0.5 percent concentration be utilized for preconstruction treatment for the prevention of subterranean termites. Baker admits he did not follow the label instruction; rather, the concentration of pesticide was less than one tenth of the 0.5 percent concentration provided for on the label instructions as regards the pre-construction soil treatment for subterranean termites. Florida Administrative Code Rule 5E-14.106(6) states in pertinent part: Pesticides used for treatment for the prevention of subterranean termites for new construction shall be applied at the specific amounts, concentration, and treatment areas designated by the label. Baker defends his failure to follow the label instructions on the grounds that such instructions call for a higher concentration of pesticide than is actually necessary to accomplish an effective termite treatment. Even if, as Baker contends, the label instructions suggest a higher concentration of pesticide than is actually necessary to accomplish an effective termite treatment, that is not grounds for him, or Petitioner, to disregard the Rule mandating that label instructions be followed. Pesticide usage is highly regulated due to the potential of such chemicals to impact public health, safety and welfare. § 482.011, et seq., Fla. Stat. Changes in the regulations must come from the legislature, and cannot be made on an ad hoc basis by individual operators.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a final order be entered assessing a fine of $400.00 against Respondent for violation of Florida Administrative Code Rule 5E-14.106 (6). DONE AND ENTERED this 5th day of August, 2005, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 2005. COPIES FURNISHED: Howard J. Hochman, Esquire Law Offices of Howard J. Hochman 7695 Southwest 104th Street Suite 210 Miami, Florida 33156 David W. Young, Esquire Department of Agriculture and Consumer Services Mayo Building, Suite 520 407 South Calhoun Street Tallahassee, Florida 32399-0800 Brenda D Hyatt, Bureau Chief Bureau of License and Bond Department of Agriculture and Consumer Services 407 South Calhoun Street, Mail Station 38 Tallahassee, Florida 32399-0800 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810
Findings Of Fact Reimbursement Program The Florida Legislature created the reimbursement program to provide for rehabilitation of as many petroleum contamination sites as possible, as soon as possible. Section 376.3071(12)(a), Florida Statutes. The Legislature intended that those responsible persons who possessed adequate financial ability should conduct site rehabilitation and seek reimbursement in lieu of the state conducting the cleanup. Section 376.3071(12)(c), Florida Statutes (1993). When owners and operators of the site or their designees perform site remediation program tasks under any of the programs created by Chapter 376, Florida Statutes, those entities become entitled to reimbursement from the Inland Protection Trust Fund (IPTF) of their allowable costs at reasonable rates. Section 376.3071(12)(b), Florida Statutes. "Allowable" costs are those which are associated with work that is appropriate for cleanup tasks. Section 376.3071(12)(d), Florida Statutes, requires DEP to: Reimburse actual and reasonable costs for site rehabilitation; and Reimburse interest on the amount of reimbursable costs for applications filed after August 14, 1992, at a rate of 1 percent per month or the prime rate, which- ever is less. Interest shall be paid from the 61st day after an application is filed with the department until the application is paid, provided the department determines the application is sufficient; otherwise, interest shall be paid commencing on the date the application is made sufficient until the application is paid. . . . A site owner or operator may engage the services of firms to perform remediation activities on a site and may designate an entity to receive reimbursement for such work. Section 376.301(14), Florida Statutes. Chapter 17-773, Florida Administrative Code (as revised in April of 1993), contains DEP's rules which were in effect at the time Petitioners submitted the instant applications. This chapter is currently located in Chapter 62-773, Florida Administrative Code. Chapter 17-773, Florida Administrative Code establishes procedures and documentation required to receive reimbursement from the IPTF. Rule 17-773.100(4), Florida Administrative Code. Rule 17-773.100(5), Florida Administrative Code, provides in pertinent part: "review and approval of reimbursement applications shall be based upon the statutes, rules and written guidelines governing petroleum contamination site cleanup and reimbursement which were in effect at the time the work was performed or the records of activities and expenses were generated, as applicable. . . . In order to be reimbursable, an applicant must break charges in an application into applicable units and rates. Rule 17-773.100(5), Florida Administrative Code. DEP has a predominate rate schedule to determine whether an allowable cost is reasonable. DEP bases its predominate rates on a study of average rates that contractors charge for a particular task. Requests for reimbursement must apply to costs which are "integral" to site rehabilitation. Rule 17-773.100(2), Florida Administrative Code. "Integral" costs are those which are essential to completion of site rehabilitation. Rule 17-773.200(2)(11), Florida Administrative Code. After integral costs have been identified and incorporated on a units and rates basis in an invoice, the invoice may be marked up at two levels. These markups are subject to certain limitations established by DEP rule: There can be no more than two levels of markups or handling fees applied to contractor, subcontractor or vendor invoices (Rule 17-773.350(9), F.A.C.); There can be no markups or handling fees in excess of 15 percent for each level of allowable markup applied to contractor, subcontractor or vendor invoices (Rule 17-773.350(10), F.A.C.); and There can be no markups or handling fees applied to invoices between any two entities which have a financial, familial, or beneficial relationship with each other (Rule 17-773.350(11), F.A.C.). In order to be reimbursable, costs must have been actually "incurred." Rule 17-773.700, Florida Administrative Code. "Incurred" means that allowable costs have been paid. Rule 17-773.200(9), Florida Administrative Code. When the "person responsible for conducting site rehabilitation" (PRFCSR) has no financial interest in the site, DEP considers the following costs as incurred when the program task is complete: Reasonable rates, including profits associated with the work performed, claimed for the use of their own personnel or equip- ment with documentation pursuant to Rule 17-773.700(7), F.A.C.; and Allowable markups or handling fees applied to their paid contractor, subcontractor, or vendor invoices pursuant to Rule 17-773.350(9), (10), and (11), F.A.C. Rule 17-773.200(9), Florida Administrative Code. Other rules reference limitations on the ability of an entity to take a markup. Rule 17-773.600(2)(d), Florida Administrative Code, provides in pertinent part: . . . If the person responsible for conducting site rehabilitation manufactured the [capital expense item], or a markup is otherwise prohibited under Rule 17-773.350(9), (10) or (11), Florida Administrative Code, no markup of the equipment shall be allowed. Rule 17- 773.700(5), Florida Administrative Code, provides in pertinent part: Costs claimed in a reimbursement application for the employees, equipment or materials of the site owner, site operator or any entity which has a financial interest in the site or a familial or other beneficial relation- ship with the site owner or operator shall be considered to be in house and reimburse- ment shall be limited to actual costs only. No fee, markup, commission, percentage or other consideration shall be allowed. . . . Rule 17-773.700(7), Florida Administrative Code, provides in pertinent part as follows: Pursuant to Rule 17-773.200(9), Florida Administrative Code, reasonable rates, including profits, may be claimed for the personnel and equipment or other allowable expenses of the person responsible for conducting site rehabilitation as well as allowable markups on paid contractor subcon- tractor and vendor invoices and shall be considered incurred for the purpose of reimbursement provided: The person responsible for conducting site rehabilitation does not have a financial interest in the site pursuant to Rule 17-773.200(7), Florida Administrative Code, or a familial or other beneficial relationship with the site owner or operator; The activities performed were integral to the program task claimed pursuant to Rule 17-773.500, Florida Administrative Code; and Detailed invoices are provided by the person responsible for conducting site rehabilitation that include all subcon- tractor and vendor invoices . . . [which] must identify the person responsible for conducting site rehabilitation and clearly distinguish their costs from those for paid subcontractors or vendors. There are no other provisions in the applicable rules which pertain to markups. A contractor must pay all invoices generated by a subcontractor at 100 percent of their face value prior to submission of an application in order to qualify those invoices for reimbursement. When a contractor pays a subcontractor's invoices, the contractor paying those invoices normally may take one of the allowable levels of markup. Prior to submitting a reimbursement application, a funder or PRFCSR involved in the reimbursement chain must pay the contractor for its invoices and markup. Then, the funder may apply the second allowable markup and submit the reimbursement application for review by DEP and payment from the IPTF. DEP does not contest the second level of markup in these applications. DEP rules restrict reimbursement when parties within the usual "chain" of reimbursement (PRFCSR or funder, contractor and subcontractor) have financial, beneficial or familial relationships with each other or the site owner. The application form requires disclosure of such relationships through the Program Task and Site Identification Form. Rule 17-773.200(1), Florida Administrative Code, provides as follows: "Beneficial relationship (interest)" means a connection or association, excluding an arm's length contractual relationship, which benefits a person or company by yielding a profit, advantage or benefit, or entitlement thereto, exceeding five percent of the person's or company's annual gross income. Rule 17-773.200(6), Florida Administrative Code, provides in pertinent part: "Familial relationship (interest)" means a connection or association by family or relatives, in which a family member or a relative has a material interest. . . . Rule 17-773.200(7), Florida Administrative Code, provides as follows: "Financial relationship (interest)" means a connection or association through a material interest or sources of income which exceed five percent of annual gross income from a business entity. Banks, lending institutions, and other lenders that provide loans for site rehabilitation activities are not considered to have a financial interest in the site on that basis alone. However, as of the effective date of this rule, guarantors of loans to or co-makers of loans with persons signing as responsible party are considered to have a financial interest if the amount of the loan exceeds five percent of the net worth of either company. As used in this definition, sources of income shall not include any income derived through arm's- length contractual transactions. Rule 17-773.200(13), Florida Administrative Code, states as follows: "Material interest" means a direct or indirect interest or ownership of more than five percent of the total assets or capital stock of any business entity. The rules and written guidelines of DEP do not address activities, including financing arrangements, occurring outside of the usual chain of reimbursement, so long as an applicant does not include charges for such activities in an application. Heretofore, DEP has not deducted finance costs that an applicant does not include as a line item in a reimbursement application. Pursuant to Section 376.3071(l2)(m), Florida Statutes, DEP must perform financial audits "as necessary to ensure compliance with this rule and to certify site rehabilitation costs." Rule 17-773.300(1), Florida Administrative Code. DEP performs this audit function: (a) to establish that the PRFCSR incurred the cost; (b) to determine that adequate documentation supports the claimed costs as incurred; and (c) and to review the reasonableness and allowance of the costs. The audit staff interprets the term "incurred" to mean that the applicant paid the costs included in the reimbursement application. Pursuant to Rule 17-773.350(4)(e), Florida Administrative Code, "[i]nterest or carrying charges of any kind with the exception of those outlined in Rule 17-773.650(1), F.A.C." are not reimbursable. The exceptions to the payment of interest set forth in Rule 17-773.650(1), Florida Administrative Code, are not at issue here. An interest rate charge on short-term borrowed capital from an unrelated third-party source is a "cost of doing business." DEP's predominate rates are fully loaded. They include a variable for all direct and indirect business overhead costs such as rent, utilities and personnel costs. DEP includes the cost of short-term borrowed capital in the direct and indirect overhead components of DEP's fully-loaded personnel rates. Rule 17- 773.700(5)(a), Florida Administrative Code. However, DEP never intended for its predominate rate schedule to create an entitlement to reimbursement of claims which are not otherwise actual and reasonable costs of site rehabilitation. Petitioners PRFCSRs are entitled to make application for reimbursement of allowable markups and costs of site rehabilitation that they incur. In these consolidated cases, the site owners or operators designated either Petitioner ET or Petitioner SEI as PRFCSR. The PRFCSR is typically referred to as the "funder" in the reimbursement chain. Petitioner ET is a trust formed in 1993 and domiciled in Bermuda. It acts as a conduit for funds that finance activities associated with Florida's petroleum contamination site cleanup program. The named beneficiaries of the trust are those contractors and subcontractors entitled to payment of costs for activities integral to site rehabilitation and for allowable markups of such costs. The sole trustee of ET is Western Investors Fiduciary, Ltd. (WIFL). WIFL is also the owner and a beneficiary of ET. Any profit that ET derives from funding cleanup projects flows through WIFL to investors who provide funds to finance site rehabilitation. American Environmental Enterprises, Inc. (AEE discussed below) provided the investment funds for the reimbursement applications at issue here. WIFL is a limited liability corporation created and domiciled in Bermuda. The officers of WIFL are: William R. Robins, President; John G. Engler, Vice-President; and Peter Bougner, Secretary. The directors of WIFL are: William R. Robins, John G. Engler, Paul H. DeCoster, Alec R. Anderson and Nicholas Johnson. WIFL's directors are also its shareholders. Petitioner SEI is a corporation incorporated and operating under Florida law. Organized in 1994, SEI acts as a conduit for funds to finance activities associated with Florida's petroleum contamination site cleanup program. The officers and directors of SEI are: William R. Robins, President; John G. Engler, Executive Vice President; and Paul H. DeCoster, Secretary. William R. Robins is the sole shareholder of SEI. SEI was specifically created to meet the needs of American Factors Group, Inc.'s (AFG discussed below) Florida investors. Respondent DEP is the agency charged with the duty to administer the IPTF and Chapter 376, Florida Statutes. Financing Entities American Factors Group, Inc. (AFG) is a privately held corporation incorporated and operating under New Jersey law. AFG is not a party to this proceeding. AFG, acts as the servicing agent for contracts associated with factoring activities and other types of financing operations. AFG, through one of its divisions, Environmental Factors (EF), entered into financing contracts with entities in the reimbursement process: (a) Petitioners ET and SEI, funders; (b) Gator Environmental, Inc. (Gator), general contractor; and (c) Tower Environmental, Inc. (Tower), prime subcontractor. Through these agreements, EF or its assignee bought the rights of ET, SEI, Gator, and Tower to future reimbursement payments at a percentage of the face value of the relevant invoices. The officers of AFG are: William R. Robins, President; John G. Engler, Vice President; and Paul H. DeCoster, Secretary. Bleak House, Inc. (Texas) owns the stock of AFG. American Environmental Enterprises, Inc. (AEE) is incorporated and operating under Nevada law. AEE is not a party to this proceeding. AEE, as the assignee under the EF contracts, is a third-party provider of capital to various entities in the reimbursement process, including Petitioners. The officers of AEE are: William R. Robins, President; John G. Engler, Vice-President; and Paul H. DeCoster, Secretary. Bleak House, Inc., (Nevada) owns the stock of AEE. Bleak House, Inc., (Nevada) is incorporated and operating under Nevada law. Bleak House, Inc. (Texas) is incorporated and operating under Texas law. Officers of both corporations are William R. Robins, President; John G. Engler, Vice President; and Paul H. DeCoster, Secretary. Magazine Funding, Inc. owns the stock of both Bleak House corporations. Magazine Funding, Inc. is incorporated and operating under Nevada law. Officers of Magazine Funding, Inc. are William R. Robins, President; John G. Engler, Vice-President; and Paul H. DeCoster, Secretary. Family Food Garden, Inc. owns the stock of Magazine Funding, Inc. Family Food Garden, Inc. is incorporated and operating under Massachusetts law. Officers of Family Food Garden, Inc., are William R. Robins, President; and Paul H. DeCoster, Secretary. Six shareholders own the stock of Family Food Garden, Inc. None of these shareholders are related by familial ties to the officers or directors of the aforementioned companies or any relative thereof. Each of these companies -- ET, SEI, WIFL, AEE and AFG (including EF) share common officers and directors. Each of the companies maintain their own books and business records, file their own tax returns, and maintain records in accordance with the laws of the jurisdiction in which they were established. They operate pursuant to their respective bylaws or trust agreement. ET, WIFL, and SEI do not have common assets with AEE or AFG (including EF). ET, WIFL and SEI do not have a beneficial, financial, or familial relationship with AEE or AFG (including EF) as Rule 17-773.200, Florida Administrative Code, defines those terms. Despite the facial organizational and structural integrity of ET, WIFL, SEI, AEE and AFG, the officers and directors of AFG and/or AEE created Petitioners, in large part, for the benefit of AFG and/or AEE as a means to invest funds in Florida's petroleum contamination site cleanup program. The primary purpose of each funder is to maximize the profits of AFG and its investors. AFG has other investment vehicles (funders) which it uses at times depending on the needs of its investors. AFG waits until the last instance before deciding which entity it will designate as funder in any particular factoring scenario. AFG usually does not make that decision until the day AFG's designated funder issues a funder's authorization to the general contractor. At the hearing, Mr. Stephen Parrish, a vice president of AFG, testified as the party representative for ET and SEI. WIFL and SEI have no employees. EF or AFG responded to DEP's request for Petitioners to provide additional information about the financing scheme utilized here using stationary bearing EF's or AFG's letterhead. Nineteen of the letters written on ET's behalf refer to ET as an affiliate of AEE. At least five of the letters written on SEI's behalf refer to ET as the funder and AEE as ET's affiliate. The greater weight of the evidence indicates that AFG and/or AEE negotiated less than arms-length contractual agreements with ET, WIFL, and SEI. Petitioners admit that they are "affiliates" of AEE and AFG through contractual agreements. However, there are no written factoring contracts between Petitioners and AFG such as the ones that exist between AFG, Gator and Tower. The only documented evidence of agreements between Petitioners and AFG are transactional based bills of sale representing the sale to AEE of Petitioners' right to receive reimbursement from the IPTF. AFG created these bills of sale for bookkeeping purposes. AFG did not even go to the trouble of tailoring the form for the bills of sale for their stated purpose. For all practical purposes, Petitioners are under the management and control of AEE and AFG. Petitioners and AFG disclosed their affiliation in meetings with DEP staff and through correspondence and other documentation, including but not limited to: (a) letter to DEP dated July 13, 1994 from AFG's counsel; (b) Addendum to Certification Affidavit signed by a Certified Public Accountant in each application; (c) Funder's Authorization; (d) letters sent to DEP between August 14, 1995 and November 19, 1996. Factoring and the Factoring Transactions Factoring is the purchase and sale of an asset, such as an account receivable, at a discount. An account receivable reflects the costs that a business charges after rendering a service but before the entity responsible for payment pays for that service. When a contractor completes a rehabilitation task, the contractor's invoice is an account receivable until it receives payment. In these consolidated cases, AEE provided short-term operating capital to Gator and Tower at an interest rate equal to the discount percentage of the relevant invoice (account receivable). Gator and Tower did not sell their account receivables to AEE. Instead, AEE, as the assignee of EF, purchased a contractual right to receive Gator's and Tower's reimbursement payments. In exchange, AEE advanced Gator and Tower a discounted amount of their invoices. The discounted amount of an invoice represents a loan from AEE to Gator and Tower. The difference between the face amount of the invoice and the discounted amount of the invoice represents interest. A discount percentage and an interest rate are equivalent. The amount of the discount represents interest on the loan or advance provided by AEE. It is an interest expense to the contractor or subcontractor. The Factoring Agreements On or about April 25, 1994, EF and Tower entered into a Prime Subcontractor Factoring Agreement. On or about July 8, 1994, EF and Tower executed an addendum to the Prime Subcontractor Factoring Agreement. The addendum required Tower to sell to EF Tower's right to receive payments from Gator. In return, EF agreed to advance Tower a discounted amount equal to 97 percent of the face amount of Tower's invoices. Tower agreed to repay EF 100 percent of the face amount of the invoices upon receipt of payments from Gator. The discounted amount of each invoice represents a loan from AEE to Tower. A bill of sale evidenced the sale of Tower's right to receive payment on each application. On or about July 8, 1994, EF and Gator entered into a General Contractor Factoring Contract. On or about July 13, 1994, EF and Gator entered into an Addendum to General Contractor Factoring Agreement. This addendum required Gator to sell EF Gator's right to receive payments from ET or SEI. In return, EF agreed to advance Gator a discounted amount equal to 88 percent of the face amount of Gator's invoices. Gator agreed to repay EF 100 percent of the face amount of the invoices upon receipt of payments from the funder. The discounted amount of each invoice represents a loan from AEE to Gator. A bill of sale evidenced the sale of Gator's right to receive payment on each application. The financing of the pending reimbursement applications involved the following interrelated transactions though not necessarily in this order: AEE as the assignee of EF purchased the right of ET, SEI, Gator and Tower to receive reimbursement for their services at a discount. ET, SEI, Gator and Tower agreed to repay AEE in full. Tower prepared and submitted to Gator an invoice for services provided by Tower and its subcontractors. Tower also prepared and submitted to Gator a reimbursement application for the program task. AEE advanced Tower the agreed upon discount amount. Tower used these funds to pay its subcontractors and vendors. AEE advanced Gator the agreed upon discount amount. Gator used these funds to pay Tower. Tower repaid AEE in full. Gator prepared an invoice for services provided by Gator, Tower and Tower's subcon- tractors including a 15 percent markup and submitted it with the reimbursement application either to ET or SEI. AEE advanced ET or SEI the discounted amounts as agreed. ET or SEI paid Gator in the full amount of Gator's invoice plus markup. Gator repaid AEE in full. ET or SEI prepared an invoice for its services plus the services of Gator, Tower, and Tower's subcontractors and a 15 percent markup. ET or SEI submitted the reimbursement application to DEP. When ET or SEI receives reimbursement from the IPTF, they will remit the total payment to AEE. The on-site work on each project was complete or substantially complete prior to Gator's involvement. In regards to some applications, the relevant dates on the subcontract/purchase order, Gator invoice, and Tower invoice are the same. The amount of time between AEE's payment of the advances and Gator's and Tower's subsequent remittance of 100 percent of the face amount of their invoices to AEE varied from a few days to a few weeks. The Agency Statement--Factoring Petitioners submitted the subject applications to DEP between July 18, 1994 and February 17, 1995. The financing scheme utilized in these applications was unique. Prior to the receipt of these applications, DEP never had reviewed reimbursement applications using the type of factoring scheme at issue here. In fact, the instant cases present a scenario never contemplated by DEP when it promulgated its rules and written policies. In the instant applications, the "chain of reimbursement" included: ET and SEI as funders or PRFCSRs, Gator as the named general contractor, Tower as prime subcontractor, and numerous subcontractors and vendors. As stated above, DEP was also aware that AFG and AEE (including EF) were "affiliated" with ET and SEI and would ultimately receive all reimbursement payments from the IPTF. 56 When Petitioners submitted the subject applications, no rule or written policy disallowed reimbursement for the face amount of contractors' and subcontractors' invoices when they sold their right to payments, i.e. the receivables, at a discount. When Petitioners submitted the subject applications, DEP had rules that restricted the ability of an entity to apply markups on invoices when a familial, financial or beneficial affiliation existed between a contractor, subcontractor, PRFCSR and the site or site owner, or when such relationships existed amongst those entities in the chain of reimbursement. However, there were no rules or written guidelines restricting reimbursement, based upon financial transactions occurring outside of the chain of reimbursement, if the applicant did not pass the costs of such transactions to DEP in an reimbursement application. In that regard, DEP usually dealt only with what was apparent in an application. If an application had a line-item claim for interest, DEP would not pay that claim under the rule limiting the payment of interest. Otherwise, DEP generally did not deal with costs, including interest, for which the applicant did not seek reimbursement. The applications in the subject cases did not contain line-item claims for interest. However, the difference between the face value of the invoices and the amount for which Gator and Tower sold their right to receive reimbursement for those invoices clearly represents interest. Tower's invoices appear to represent work that was integral to site remediation which was broken down into appropriate Eunits and rates. There is no evidence that the prime subcontractor, subcontractors and vendors intentionally inflated their invoices to cover the cost of financing. However, they did agree to accept a lesser amount then the face amount of their invoices for their services prior to the filing of the applications. In September and October of 1993, Paul DeCoster wrote letters to DEP describing a proposed financing scheme in which AFG would purchase the account receivables of contractors engaged in site rehabilitation. Mr. DeCoster wrote a follow-up letter dated October 4, 1993. In this letter, Mr. DeCoster proposed that AFG would charge the contractor a finder's fee which would be in addition to the 15 percent financing "markup" taken by the investor providing the financing. This proposal referenced a funder, FEC, whose parent was AFG. The transactions between the entities in the instant applications did not involve a finder's fee or a funder identified as FEC. In October of 1993, Will Robins met with DEP staff to discuss the manner in which the reimbursement program would apply to a proposed financing scheme. In this proposal, AFG would charge contractors an application/initiation fee and/or a commitment fee. The transactions between the entities in the instant applications did not involve an application/initiation fee and/or a commitment fee. After that meeting, counsel for AFG sent DEP a letter dated November 4, 1993. The letter acknowledges that the existing rules did not "specifically address the types of situations that arise when providing capital for cleanup activities through funding groups such as AFG." The letter identifies ET as the proposed funder through which AFG would finance cleanups. AFG would receive the ultimate reimbursement payment from the IPTF. At that time DEP was concerned that the proposed application/initiation fee was a "kickback" which DEP should deducted from the funder's markup. In January of 1994, counsel for AFG wrote a letter to DEP describing a financing scheme which differs in some respects from the financing scheme at issue here. This letter states that AFG intended to purchase receivables of the funder and the general contractor at a discount. Under this plan, the general contractor and the funder would claim the two markups. The subcontractors would pay AFG a finder's fee. The letter reveals that AFG, its affiliates, and investors would recover the cash equivalent of both levels of markups plus a fee from subcontractors for funding the high costs or risky projects. The transactions between the entities in the instant applications did not involve a finder's fee. On July 13, 1994, counsel for AFG wrote DEP to explain some modifications in the details to the proposed plan for the purchase and sale of receivables at a discount. This letter informed DEP that AFG would have a financial affiliation with the funder (ET) which would exist outside the chain of reimbursement and which would have no effect on either the markups or the overall reimbursement amount reflected in any application. All contracts within the chain of reimbursement (between ET, SEI, Gator, Tower, and its subcontractors) would be negotiated in arms-length transactions. The letter states: In this plan the subcontractors will perform their work on the site and will prepare their invoices in a manner consistent with any publicly or privately financed cleanup. Those invoices will be complied and forwarded to the general contractor for its review and the general contractor will add on the markup allowed by rule to the subcontractor's bills. The reimbursement application will then be forwarded to the funder who will ensure that all bills have been paid and who will be identified as the "person responsible for conducting site rehabilitation" on the reimbursement application. The funder will take the second markup allowed by rule, and will submit the reimbursement application to the Department of Environmental Protection for processing. Reimbursement will ultimately be paid by the Department to the funder in accordance with the reimbursement application. At no step in this process will the Department relinquish any authority to review and approve either the scope and nature of the clean-up or the rates charged by the contractors and subcontractors. Commencing on August 31, 1994, DEP began to develop a policy regarding the use of factoring as a financing mechanism in the reimbursement program. DEP personnel exchanged numerous documents regarding the subject of factoring. In one of those memoranda dated September 2, 1994, Charles Williams, DEP's Reimbursement Administrator, indicated that "we absolutely need to have a Big Meeting to decide what to do once and for all." In November 1994, DEP provided AFG's counsel with an informal opinion of how DEP would handle a factored application as described by Will Robins of AFG in an earlier meeting with DEP staff. The statement was that the difference between the amount that a contractor accepted in payment for his services, which was a discounted amount after factoring, . . . and the face value of the invoice which was claimed and marked up in the application was determined to be a carrying charge or interest, which is specifically disallowed for reimbursement in the reimbursement rule. American Factors Group. Inc. and the Environmental Trust v. Department of Environmental Protection, DOAH Case No. 95-0343RU, Final Order issued July 24, 1995. DEP advised AFG's counsel that it would deal with factored applications involving other entities on a case by case basis. On December 20, 1994, John Ruddell, DEP's Director of the Division of Waste Management, sought permission from DEP's Policy Coordinating Committee to promulgate a rule amendment to Chapter 62-773, Florida Administrative Code (formally Chapter 17-773). A draft rule accompanied the request. Mr. Ruddell developed the draft rule in compliance with Chapter 94-311, Section 6, Laws of Florida, which required DEP to revise its reimbursement rule. The draft rule provided that nothing in this Chapter shall be construed to authorize reimbursement for the face amount of any bill or invoice representing incurred costs when the receivable has been sold at a discount. In all such cases, reimbursement shall be limited to the actual discounted amount accepted by the provider of the goods or services. . . . The draft rule had the effect of prohibiting factoring as a mechanism for financing site rehabilitation work. The draft rule did not single out any other financing mechanism. DEP did not promulgate that draft rule. DEP requested that Petitioners furnish additional information regarding the instant applications. Between March 1, 1995 and November 17, 1995, Petitioners responded to DEP's requests with letters bearing AFG's or EF's letterhead. The letters state that prior to filling the applications, ET (and in some cases SEI) paid Gator for the face amount of the invoices plus Gator's markup. Gator then paid the subcontractors for the face amount of their invoices. Prior to these payments, AEE, an affiliate of ET, purchased the right to receive the amount due to Gator from ET or SEI and the right to receive the amount due to subcontractors from Gator. In each case, AEE bought the right to receive at a discount. According to the financing scheme, ET or SEI received sufficient funds from AEE to make the payments to Gator. ET, in turn, was obligated to pay AEE following its receipt of the funds claimed in the reimbursement application. On or about April 21, 1995, Bruce French, Environmental Manager in DEP's Bureau of Waste Cleanup, developed a memorandum discussing the proper handling of factored and/or discounted reimbursement applications. Mr. French initially sent the memorandum to Charles Williams, DEP's Reimbursement Administrator in DEP's Bureau of Waste Cleanup. The memorandum states that: invoices from subcontractors, vendors, suppliers and/or the general contractor which were paid a factored (e.g., discounted) amount by a third party capital participant (e.g., funder) represents the actual amount incurred by that entity and subsequently by the general contractor. DEP subsequently disseminated the memorandum to all application reviewers to acquaint them with DEP's policy on invoices or applications involving factoring as the financing mechanism. DEP did not direct the policy on factoring towards any individual company. DEP intended it to apply to "any combination of a general contractor, management company, funder and responsible party" in any situation in which a third party capital provider paid those program participants or suppliers a factored (discounted) amount of their invoices. The policy memorandum directed DEP reviewers to deduct costs from an application in an amount equal to the difference in the face value of an invoice and the amount paid for the right to receive payment under that invoice. The language of the policy set forth in the April 21, 1995 memorandum was broad and did not condition DEP's position on factoring on any affiliation between any parties. Between August 14, 1995 and February 2, 1996, DEP took action on the 45 applications at issue here. As reflected in those notices, DEP denied reimbursement of costs claimed in those applications because of the factoring of the supporting invoices and because "the difference between the face amount of the supporting invoices and the amount factored represents interests or carrying charges which are specifically excluded from reimbursement pursuant to Rule 62- 773.350(4), F.A.C." DEP deducted from the cost of each application an amount equal to the amount of the discount on each relevant invoice. When DEP issued the denial letters, it had not adopted the policy against factoring by the rulemaking procedure required in Section 120.54, Florida Statutes. The notices reflected a basis of denial of costs that was consistent with DEP's policy as reflected in the December 20, 1994 Draft Rule and the April 21, 1995 memorandum. This non-rule policy, which generally applied to all factoring schemes was not apparent from the rules in effect at that time. The Agency Statement--Markup/Value Added Policy Funders and contractors are entitled to take a markup of paid contractor and subcontractor invoices for allowable costs at reasonable rates. The invoices must represent actual and reasonable costs which are integral to site remediation. Contractors usually are entitled to a first-tier 15 percent markup for supervising and/or coordinating on-site remediation, for investing capital while awaiting reimbursement by paying subcontractors' invoices, and for assuming liability for the performance of the subcontractors. Funders normally are entitled to a second-tier 15 percent markup as an incentive to provide funds to finance the work. Markups are expressly subject to limitations set forth in Section 17- 773.350(9), (10) and (11), Florida Administrative Code. There are no other specific or implied limitations on markups in the rules or written guidelines. Requiring each entity that receives a markup in the reimbursement chain to pay contractor, subcontractor, and vendor invoices helps ensure that each level in the reimbursement chain pays the entity at the next lowest level in full. In these cases, each level in the reimbursement application chain "technically" paid the entity at the next lowest level. DEP policy in effect at the time Petitioners submitted the instant applications for reimbursement was to allow markups of paid invoices at two levels. However, DEP was not aware of situations where general contractors claimed markups for work that was complete before they ever became involved in the projects. With regard to all of the pending reimbursement applications, Gator applied a 15 percent markup to all of Tower's invoices including the invoices of Tower's subcontractors and vendors. With regard to a minimum of 30 of the 45 sites, Gator clearly did not supervise, manage or direct any of the on-site remediation activities. In fact, Gator did not become involved until after Tower had undertaken and completed these tasks. In at least 30 of the instant cases, Tower was acting as the general contractor when all of the on-site remediation took place. However, Tower could not apply a 15 percent markup to the invoices for its own services. Gator made it possible for Petitioners to claim the markup on Tower's invoices. As to the 15 sites at which Gator allegedly had some type of involvement with on-site remediation activities, the record contains no evidence regarding the specific activities or the level of Gator's involvement on any particular project. Gator performed some type of minimal due diligence review of Tower's site work. Gator allegedly reviewed Tower's technical and administrative files, cross-referenced technical and administrative files with the applications which Tower prepared, made visits to some job sites, and prepared a deficiency letter to determine the appropriateness of the scope of Tower's work. However, all of these functions were repetitious of the work performed by Tower and the certified public accountant attesting to the Certification Affidavit. Tower was a qualified engineering consulting firm that employed its own engineers and geologists. Gator's employee that reviewed the technical information in Tower's files was not a Florida professional engineer. He was not qualified as a certified public accountant to determine whether a charge was within DEP's reasonable rates. The Gator employee was a Florida professional geologist but he did not sign and seal the deficiency letter as such. There is no reference in DEP's rules or written policies to a deficiency letter. AFG required Gator to prepare the deficiency letter within two days of the date on which EF provided Gator with the opportunity to review a completed task. This two-day turn around time allegedly afforded efficiency of payment. The deficiency letters were limited to the question of whether the scope of Tower's services were reimbursable. Gator did not begin its review of an reimbursement application until after Gator received an invoice from Tower. The relevant subcontract/purchase order issued by Gator to Tower, the Tower invoice and the Gator invoice often were prepared on the same day. Gator "technically" paid the invoices at the next lowest level with money that AEE advanced. When Gator received payments from ET or SEI, it immediately repaid AEE before ET or SEI submitted the applications to DEP or soon thereafter. Pursuant to the addenda to the factoring contracts, Tower, not Gator, contributed to a reserve trust account which AEE will use to cover any reimbursement shortfalls. Gator allegedly indemnified the funder and guaranteed its own work but did not assume a risk of loss on Tower's work. On most if not all of the applications, Gator performed no meaningful management or supervisory functions. Gator's primary purpose in these consolidated cases was not to afford AFG a level of comfort as to the appropriate scope of the individual program tasks but to ensure that third-party investors maximized their profits. On September 1, 1994, Restoration Assistance, Inc., an entity under contract with DEP to review reimbursement applications, issued a memorandum to its reviewers directing them to complete their review and do a "total denial" on "Gator Environmental packages." The memorandum advised the reviewers that "Bruce" was drafting canned language to use in DEP's denial statement. On or about April 21, 1995, DEP presented its reviewers with a memorandum setting forth an initial overview of a "value added" policy for markups taken by a "management company" involved in site remediation activities. The memorandum indicated that DEP would allow reimbursement of claims for actual project management work and value-added services. The memorandum further provided that DEP would allow markups to a management company which only provided cash-flow services for a majority of the program task period even if the management company performed no other service. However, DEP would deny a markup if the management company provided such services during a "one month time period." DEP intended for the April 21, 1995 memorandum to acquaint DEP reviewers with the emerging DEP policy on markups. DEP's rules and written guidelines do not address the distinction made in the April 21, 1995 memorandum regarding the timing during which a management company could provide cash flow services and still be entitled to a markup. On October 20, 1995, Charles Williams issued a DEP policy memorandum for reviewers to use in reviewing reimbursement applications. Through that memorandum, DEP finalized and implemented the "value added" policy. The memorandum states that if the "GC" [general contractor] was involved with the management of the project during the course of the actual work by subcontractors, [DEP] rules do not preclude them from applying a markup. However, if the "GC" came along after the work was completed by other contractors and their involvement was more of a due diligence exercise to faciltiate (sic) a funding arrangement by a third party, then the "GC" markup would not be justified, though a markup by the actual funder listed as the PRFCSR could be allowed." Prior to the establishment of the "value added" policy on October 20, 1995, DEP made no inquiry as to whether a contractor provided value added services which were not reflected in an application in order to be entitled to a markup. DEP applied the "value added" policy to all pending applications (including the ones at issue here) resulting in a deduction of Gator's markup in all of the subject cases. The Department of Banking and Finance reviewed and issued a report (Comptroller's Report) on the Petroleum Contamination Site Cleanup Reimbursement Program on November 29, 1994. This report addressed the issue of markups in the reimbursement program. The Comptroller's Report recognized that DEP found the multiple markup structure to be beneficial in that it "attracts the involvement of companies whose role in cleanup projects is limited to providing funds to finance the work [and] attracts investors who provide funds which might not otherwise be available--thus facilitating cleanup of contaminated sites." The report acknowledges that a prime contractor "might have only limited direct involvement in the cleanup, having engaged subcontractors for most or all of the actual work." The Comptroller's Report did not address whether a contractor would be entitled to a markup if it became involved after all site work was complete. The Petroleum Efficiency Task Force's (PETF) final report concerning financing for reimbursement contractors issued on August 17, 1994. This report discussed DEP's policy of allowing two markups on paid invoices. The report recognized that "funders must be able to rely on the skills and knowledge of contractors to minimize reimbursement shortfalls." The PETF recommended for future consideration that "the Department should provide in rulemaking that contractors who take the first-tier 15 percent markup on subcontracted work must adequately supervise the work." When the PETF issued this final report, there was no existing rule that established any level of on site supervision or any other specific criteria for applying one of the two allowable levels of markup, other than paying invoices for integral site rehabilitation work. DEP's rules and written guidelines did not substantively change with regard to the "value added" policy from the April 22, 1993 revision of Chapter 17-773, Florida Administrative Code, to the October 20, 1995 memorandum which established a non-rule limitation on the ability of an entity to apply a markup to paid invoices. The "value added" policy is not reflected in any rule or written guideline, and would not be made available to a participant in the reimbursement program who requested program information. The "value added" agency statement is a non-rule policy which has the effect of a rule. DEP intends to apply the policy in all cases where a contractor's service adds no value to a project. DEP did not anticipate the need for such a rule when it promulgated the current rules. The Agency Statement Standard During the 1994 Legislative Session, the Florida Legislature directed that "no later than January 1, 1995, DEP shall review and revise rules related to the pollutant storage tanks programs . . . ." Chapter 94-311, Section 6, Laws of Florida. DEP understood that legislative instruction to include rule revisions related to the reimbursement program. On April 7, 1994, the Office of Statewide Prosecution issued a Statewide Grand Jury Report. The final report concerning financing of reimbursement contractors was prepared for the Florida Petroleum Efficiency Task Force on August 17, 1994. The Office of Controller issued its report on the Petroleum Contamination Site Cleanup Reimbursement Program on November 29, 1994. All of these reports offered suggestions for changes to the reimbursement rule. DEP first learned about factoring from presentations by Paul DeCoster and Will Robins in 1993. After these meetings, Petitioner proposed several factoring plans as proposed schemes to finance petroleum contamination site cleanup projects. Petitioners did not finalize the exact financing scheme they intended to use until July of 1994. Petitioners filed the first applications on July 18, 1994. By that time, DEP was aware that the factoring company was affiliated with the funders. DEP was also aware that the factoring company would receive the difference between the face amount of an invoice and the discount amount of that invoice. However, DEP was not aware of the exact nature of the relationships between AFG, AEE, EF, ET, WIFL, SEI, Gator and Tower. DEP was unable to evaluate all aspects of Petitioners' factoring plan without supplemental information about the details of the purchase and sale of receivables as they related to each application. DEP requested additional information from the applicants to determine if the costs were actually incurred. As a result of the information that DEP received, it reviewed all transactions to determine whether the costs claimed in the applications were actual and reasonable. On December 20, 1994, John Ruddell, Director of DEP's Division of Waste Management, sought permission from DEP's Policy Coordinating Committee to promulgate a rule amendment to Chapter 62-773, Florida Administrative Code (formerly Chapter 17-773, Florida Administrative Code). A draft rule accompanied the request. DEP intended the draft rule to comply with the legislative mandate contained in Chapter 94-311, Section 6, Laws of Florida. By that time, Petitioners had filed 41 of the subject applications. The 1994 draft rule provided that if a program participant sold a receivable at a discount, reimbursement would be limited to the actual discounted amount accepted by the provider of the goods or services rendered. The draft rule eliminated markups of contractor and subcontractor invoices. The December 20, 1994 memorandum to DEP's Policy Coordinating Committee did not indicate any deficiency in the existing delegated legislative authority that would prevent DEP from implementing the changes to the draft rule. DEP policy coordinating committee declined to approve the initiation of rulemaking procedures. Instead, it directed DEP staff to draft a bill for the 1995 legislative session. DEP based this decision on a determination that it would take too long to correct the numerous problems through the rulemaking process. The 1995 Legislative Session made several changes to the reimbursement program, particularly as it related to the direction of future site remediation activities. Chapter 95-2, Laws of Florida, passed the 1995 Legislative Session and changed the program from reimbursement of completed work to requiring pre-approval of work before it commenced. The 1995 Legislative Session did not make any relevant amendment to the reimbursement payment procedures in Section 376.3071(12), Florida Statutes. During the period between adjournment of the 1995 Legislative Session and February 2, 1996, DEP took action on each of the 45 applications that are the subject of this proceeding. Meanwhile, DEP focused its attention on making the necessary changes to switch from a reimbursement program to the new pre- approval program. It is not unreasonable to believe that such a significant change in a large program would take an agency some time to educate itself and the program's participants, prepare documentation and forms, and take steps to begin implementation. On March 22, 1996, approximately six and one-half months (198 days) after the petition for administrative hearing in Case No. 95-4606, and almost 21 months after the effective date of Chapter 94-311, Laws of Florida, DEP published its notice of rule development in the Florida Administrative Weekly. DEP filed the notice of rule development specifically "in response to litigation pending before the Division of Administrative Hearings" in the 45 cases that are the subject of this proceeding. In these consolidated cases, DEP did not have sufficient time prior to March 22, 1996 to acquire the knowledge and experience reasonably necessary to address, through the rulemaking process, the policy statements relative to factoring and markups based on value added services. Certainly, related matters were not sufficiently resolved to enable DEP to initiate rulemaking to address the policies set forth in the March 21, 1995 and October 20, 1995 memoranda until the spring of 1996. DEP is currently using the rulemaking procedure expeditiously and in good faith to adopt rules which address these non-rule policies. Additionally, the record indicates that it was not possible for the agency to initiate rulemaking in time to give Petitioners advance notice of the new policies. Petitioners filed the last applications in February of 1995 before DEP had time to fully evaluate the factoring plan. The time it took DEP to develop the detail or precision in the establishment of the policies set forth in the March 21, 1995 and October 20, 1995 memoranda was reasonable under the circumstances.
The Issue The issue to be determined in this case is whether a supplemental site certification should be issued to Lee County for the construction and operation of Unit No. 3 at Lee County's Solid Waste Energy Recovery Facility (Facility), in accordance with the provisions of the Florida Electrical Power Plant Siting Act (PPSA), Sections 403.501 - .518, Florida Statutes. (All statutory references are to the 2002 codification of the Florida Statutes.)
Findings Of Fact The Applicant The Applicant, Lee County, is a political subdivision of the State of Florida. Lee County owns the existing Facility and will own Unit No. 3. The Facility was designed, built and is operated by a private company, Covanta Lee, Inc. (Covanta), pursuant to a long-term contract with Lee County. It is anticipated that Covanta or another private company will design, construct and operate Unit No. 3 for the County. History of the Project In 1985, the Florida Legislature enacted the Lee County Solid Waste Disposal and Resource Recovery Act (the Act), which authorized Lee County to construct, operate, and maintain a solid waste disposal and resource recovery system for the benefit of Lee County's residents. In 1989, pursuant to the Act, Lee County adopted an Integrated Solid Waste Management Master Plan (Plan), which established a comprehensive plan for the management, reuse, recycling and/or disposal of the solid waste generated in Lee County. Lee County's Plan was based on the development of: (a) an aggressive recycling program to reduce the quantity of materials requiring disposal; (b) a waste-to-energy facility for waste reduction and energy recovery from those materials that are not recycled; and (c) a landfill for the disposal of ash and by- pass waste (i.e., materials that are not recycled or processed in the waste-to-energy facility). Lee County has implemented its Integrated Solid Waste Management Plan with innovative approaches and state of the art technology. Lee County has a comprehensive recycling program that handles a wide array of materials, including: (a) waste from residential, commercial, governmental, and institutional facilities; (b) household hazardous waste; (c) yard waste; (d) recovered materials; (e) construction and demolition debris; and (f) electronic waste. Lee County established a recycling and materials separation goal of 40 percent for its residents, even though the State of Florida's goal is 30 percent. From 1993 through 2000, Lee County exceeded the State's 30 percent goal. In 1998, Lee County's recycling rate was approximately 38 percent, which was higher than that of any other county in Florida. Consistent with its Plan, Lee County built a modern landfill, which is equipped with two synthetic liners, two leachate collection systems, and a network of groundwater monitoring wells to ensure the protection of the environment. Lee County's landfill is located in Hendry County, pursuant to an interlocal agreement between Lee County and Hendry County. Under this agreement, the solid waste from both counties is taken to Lee County's Facility for processing and then the ash and by-pass waste are taken to the landfill for disposal. This cooperative, regional approach to solid waste management issues has enabled Lee County and Hendry County to provide environmentally sound, cost-effective programs for the residents of both counties. In 1992, the Governor and Cabinet, sitting as the Siting Board, approved the construction and operation of Units No. 1 and No. 2 at the Facility, and certified an ultimate site capacity of 60 megawatts (MW), based on the operation of three municipal waste combustor (MWC) units. Units No. 1 and No. 2 have been in commercial operation since 1994. Despite Lee County's comprehensive recycling program, the amount of solid waste delivered to the Facility has increased each year since the Facility began operation, primarily due to population growth. In 1999, Lee County's solid waste deliveries were equal to the Facility's guaranteed processing capacity (372,300 tons). In 2000, the Facility processed more than 392,000 tons of solid waste, but the County still had to dispose of nearly 44,000 tons of processible waste in its landfill. Current population projections for Lee and Hendry Counties suggest that the amount of processible solid waste will continue to increase, reaching almost 550,000 tons by 2010. Lee County has decided that it should expand the Facility, consistent with Lee County's long-standing Plan, rather than discard processible waste in a landfill. The Facility was designed to readily accommodate the construction of a third MWC unit. If approved and built, the third unit (Unit No. 3) will be operating at or near its design capacity by 2010 (i.e., within five years after it commences commercial operations). For these reasons, on November 18, 2002, Lee County filed its Supplemental Application with DEP for the construction and operation of Unit No. 3. The Site The Facility is located east of the City of Fort Myers, in unincorporated Lee County. The Facility is approximately 2.5 miles east of the intersection of Interstate-75 and State Road 82, on the north side of Buckingham Road. The County owns approximately 300 acres of land at this location, but only 155 acres (which constitutes the Site) was certified under the PPSA for the Facility. The Site currently includes the Facility, a household hazardous waste drop-off area, a waste tire storage facility, a horticultural waste processing area, and a recovered materials processing facility. A solid waste transfer station is under construction at the Site. Even after the Facility is expanded to accommodate Unit No. 3, approximately 63 percent of the Site will be used solely as buffer and conservation areas. The Surrounding Area There are large buffer areas around the Site. A Florida Power & Light Company (FPL) transmission corridor, containing electric transmission lines, is located along the western boundary of the Site. Approximately three-quarters of a mile to the west of the Site is a limerock, fill, and topsoil mining operation. Immediately north of the Site is approximately 145 acres of undeveloped land owned by the County. A 135-acre County-owned park is adjacent to the Site's eastern property line. Scattered single-family homes are located northeast and farther east of the Site. An adjacent parcel southeast of the Site was previously used as a sanitary landfill (which has been closed and covered), and is now owned by the City of Fort Myers and private individuals who use it for livestock grazing. The land immediately south of the Site is undeveloped. The Gulf Coast Sanitary Landfill is located three miles directly south of the Site. Site Suitability The Site is well-suited for the addition of Unit No. 3. The Site has sizable buffer areas on all sides. Potable water, reclaimed water, and wastewater services are already provided to the Site through existing pipelines. The Facility is near an existing electrical substation (Florida Power & Light Company's Buckingham Substation). An existing electrical transmission line connects the Facility to the substation. Zoning and Land Use In 1991, the Siting Board determined that the Site and Facility are consistent and in compliance with the applicable land use plans and zoning ordinances, based on the construction and operation of three MWC units at the Facility. The Site was zoned for an Industrial Planned Development, and was designated as Public Facilities in the future land use map of Lee County's comprehensive land use plan, specifically to allow the Facility to be built and operated on the Site. The Existing Facility The Facility currently consists of Units No. 1 and No. 2, which have been in commercial operation since 1994. Each MWC unit has a nominal capacity of 600 tons per day (tpd) of solid waste (660 tpd using a reference fuel with a higher heating value of 5000 British thermal units per pound (Btu/lb)). The two MWC units generate steam that is used to drive an electric turbine generator, which generates approximately 39 MW of electricity. The Facility also includes an ash management building, cooling tower, stack, stormwater management ponds, water treatment system, electrical switchyard, electrical transmission lines, and related facilities. Solid waste collection trucks enter the Site from Buckingham Road. They follow an access road to the County's scale house, where the trucks are weighed, and then the trucks are directed to the Facility. The trucks drive inside the Facility and dump the garbage into a refuse pit. A crane mixes the garbage in the pit. The crane then places the garbage in a hopper, which feeds into the combustion chamber where the garbage is burned. The air in the combustion chamber passes through the Facility's air pollution control equipment, and then out the stack. Ash from the combustion process is quenched and then is deposited onto an enclosed conveyor, which takes the ash to an ash management building. The ash then is loaded into trucks and taken to the County's existing landfill in Hendry County. As a result of this process, the amount of fill being taken to the existing landfill is reduced by approximately 90 percent. The New Project-MWC Unit No. 3 The Project involves the construction and operation of a new MWC unit (Unit No. 3) at the Facility. The new unit will be substantially the same as the two existing MWC units. The new unit will have the capacity to process 600 tpd (nominal) of solid waste (660 tpd at 5000 Btu/lb). A new electric turbine generator will be installed and it will generate approximately 20 MW of additional electricity. In addition, the cooling tower will be expanded, the ash management building will be expanded, a lime and carbon silo will be installed, and the new unit may be connected with the two existing units. Construction of Unit No. 3 The Facility was originally designed and built to accommodate the addition of a third MWC unit, thus making the construction of Unit No. 3 relatively simple, without disrupting large areas of the Site. Unit No. 3 will be located adjacent to the two existing MWC units. The expansion of the cooling tower will be adjacent to the existing cooling tower. Construction of Unit No. 3 will occur in previously disturbed upland areas on the Site. Construction of Unit No. 3 will not impact any wetlands or environmentally sensitive areas on the Site. No new electrical transmission lines or improvements will need to be built to accommodate the additional electrical power generated by Unit No. 3. No new pipelines or other linear facilities will need to be built for the Project. Operation of Unit No. 3 The basic operation of the Facility will not change when Unit No. 3 becomes operational. Solid waste will be processed at the Facility in the same way it is currently processed. The Facility has been in continuous operation since 1994, and has an excellent record for compliance with all applicable regulations, including regulations concerning noise, dust, and odors. All of the activities involving solid waste or ash occur inside enclosed buildings. The refuse pit is maintained under negative air pressure, thus ensuring that dust and odors are controlled within the building. Because the operations at the Facility will remain the same after Unit No. 3 becomes operational, no problems are anticipated due to noise, dust or odors. The Facility's basic water supply and management system will remain the same after Unit No. 3 becomes operational. Treated wastewater from the City of Ft. Myers' wastewater treatment plan (WWTP) will be used to satisfy the Facility's need for cooling water. Potable water will be provided to the Facility from the City's water supply plant. On-site wells will be available for emergency water supply purposes; however, the wells have not been regularly used as a source of back-up cooling water since the Facility became operational. The County's water supply plan maximizes the use of reclaimed water and minimizes the use of groundwater. To the extent feasible, the Project uses all of the reclaimed water that is available before it relies on groundwater. The Facility also recycles and reuses water to the greatest extent practicable. Unit No. 3 will not discharge any industrial or domestic wastewater to any surface water or groundwater. Most of the wastewater from the cooling tower will be recycled and reused in the Facility. Any excess wastewater will be discharged to the City of Fort Myers' WWTP. Stormwater runoff from the Project will be collected and treated in the existing system of swales and detention/ retention ponds on the Site. Ultimate Site Capacity The construction of Unit No. 3 will not expand the Facility beyond the boundaries of the Site certified by the Siting Board in 1992. The operation of Unit No. 3, together with the operation of Units No. 1 and No. 2, will not increase the electrical generating capacity of the Site beyond the 60 MW certified by the Siting Board in 1992. Air Quality Regulations The County must comply with federal and state New Source Performance Standards (NSPS) and Best Available Control Technology (BACT) requirements, both of which impose strict limits on the Facility's airborne emissions. The County also must comply with Ambient Air Quality Standards (AAQS) and Prevention of Significant Deterioration (PSD) standards, which establish criteria for the protection of ambient air quality. The addition of Unit No. 3 must undergo PSD review because the Project is a new source of air pollution that will emit some air pollutants at rates exceeding the threshold levels established under the PSD program. PSD review for the Project is required for airborne emissions of particulate matter less than 10 microns in diameter (PM10), MWC metals, MWC organic compounds, MWC acid gasses, sulfur dioxide (SO2), nitrogen oxides (Nox), carbon monoxide, mercury, fluorides, and sulfuric acid mist (SAM). Best Available Control Technology A BACT determination is required for each pollutant for which PSD review is required. BACT is a pollutant-specific emission limit that provides the maximum degree of emission reduction, after taking into account the energy, environmental, and economic impacts and other costs. As part of the BACT determination, all available and feasible pollution control technologies being used worldwide are evaluated. As part of its BACT analyses, DEP determined that a fabric filter baghouse will control the Facility's emissions of particulate matter, a scrubber will control acid gases, a selective non-catalytic reduction system (SNCR) will control NOx, an activated carbon injection system (ACI) will control mercury emissions, and proper facility design and operating methods will control other pollutants. These air pollution control technologies are currently used in Units No. 1 and No. 2, and they have performed extremely well. Units No. 1 and No. 2 are among the best operated and controlled MWC units currently operating in the United States. Unit No. 3 will have better, more modern, and more sophisticated air pollution control systems than Units No. 1 and No. 2. In its PSD analysis for the Project, DEP determined the emission limits for the Project that represent BACT. All of the BACT emission limits determined by DEP for Unit No. 3 are as low as the limits established by the United States Environmental Protection Agency (EPA) in the NSPS (40 CFR 60, Subpart Eb) for new MWC units, based on the use of Maximum Achievable Control Technology (MACT). Indeed, DEP's BACT emission limits for Unit No. 3 are lower than EPA's MACT emissions limits for: (a) particulate matter; (b) sulfur dioxide; (c) carbon monoxide; (d) nitrogen oxides; and (e) mercury. The BACT emission limits, as determined by DEP, are included in the proposed Conditions of Certification for Unit No. 3. The Facility's proposed air pollution control systems are proven technologies that can achieve the proposed BACT emission limits. The Facility will use an array of continuous emissions monitors to help ensure that the Facility is continuously in compliance with the BACT emission limits. Protection of Ambient Air Quality The EPA has adopted "primary" and "secondary" National Ambient Air Quality Standards (NAAQS). The primary NAAQS were promulgated to protect the health of the general public, including the most susceptible groups (e.g., children, the elderly, and those with respiratory ailments), with an adequate margin of safety. The secondary NAAQS were promulgated to protect the public welfare, including vegetation, soils, visibility, and other factors, from any known or anticipated adverse effects associated with the presence of pollutants in the ambient air. Florida has adopted EPA's primary and secondary NAAQS, and has adopted some Florida AAQS (FAAQS) that are more stringent than EPA's NAAQS. Lee County and DEP analyzed the Project's potential impacts on ambient air quality, using conservative assumptions that were intended to over-estimate the Project's impacts by a wide margin. These analyses demonstrate that the maximum impacts from Unit No. 3 will be less than one percent of the amount allowed by the ambient air quality standards. The maximum impact from the Facility (i.e., all three units) will be less than or equal to 1.2 percent of the amount allowed by the FAAQS and NAAQS. Unit No. 3 and the Facility will not cause or contribute to any violations of the FAAQS or NAAQS. The maximum impacts of Unit No. 3 and the Facility, when operating under worst case conditions, will be less than the regulatory levels that are deemed "significant" (i.e., less than the numerical thresholds set by EPA as "significant impact levels"). The Facility's impacts on ambient air quality will be immeasurably small and will be indistinguishable from ambient background conditions. Non-criteria pollutants are substances for which there are no AAQS. The Department's Air Toxics Group has established non-enforceable guidelines known as ambient reference concentrations (ARCs) (also known as "No Threat Levels") for the non-criteria pollutants. DEP believes there is no health or environmental threat associated with ambient air impacts less than the ARCs. In this case, the maximum impacts of the Facility (3 MWC units) will be less than 50 percent of any of DEP's ARCs. For most parameters, the Facility's maximum impacts are less than 10 percent of the applicable ARCs. Other PSD Analyses The PSD program provides protection for those areas that have good air quality. Different areas of Florida have been designated as PSD "Class I" or "Class II" areas, depending upon the level of protection that is to be provided under the PSD program. In this case, the Project is located in a PSD Class II area. The nearest PSD Class I area is the Everglades National Park (Everglades), which is approximately 90 kilometers (km) south-southeast of the Site. The analyses performed by Lee County and DEP demonstrate that the Project's impacts on the ambient air quality in the vicinity of the Site will be insignificant. The analyses performed by Lee County and DEP also demonstrate that the Project's impacts on the ambient air quality in the PSD Class I area at the Everglades will be insignificant. The Project will not significantly affect visibility in the Class I area, regional haze, or other air quality-related values. Compliance With Air Standards Lee County has provided reasonable assurance that the Project will comply with all of the applicable state and federal air quality standards and requirements. Among other things, Lee County has provided reasonable assurance that the airborne emissions from the Project, alone and when operating with the two existing MWC units at the Facility, will not: (a) cause or contribute to the violation of any state or federal ambient air quality standard; (b) cause or contribute to a violation of any PSD increment for any PSD Class I or Class II area; (c) cause any adverse impacts on human health or the environment; (d) exceed any ARC guideline established by DEP for non-criteria pollutants; or (e) cause any adverse impacts to soils, vegetation or wildlife. Lee County also has provided reasonable assurance that Unit No. 3 and the Facility will be able to comply with the Conditions of Certification involving air issues. Human Health and Ecological Risk Assessments As indicated above, the County has performed extensive analyses of the Facility's emissions and impacts to demonstrate compliance with the requirements of state and federal air quality regulations. In addition, the County has taken other measures to address public concerns about the potential impacts associated with the Facility's airborne emissions. In 1992, the County's expert consultants conducted a human health and ecological risk assessment, which evaluated the potential impacts associated with the airborne emissions of mercury and dioxin from the County's Facility. The assessment demonstrated that the operation of the Facility would not adversely affect humans or threatened or endangered species. At the request of the United States Fish and Wildlife Service, the County conducted a supplementary risk assessment in 1992, to more thoroughly evaluate the potential impact of the Facility's mercury emissions on the Florida panther. Among other things, the supplementary assessment evaluated the panther's exposure to mercury through a complex food chain. The County's supplementary assessment confirmed that the Facility would not cause adverse impacts to the panther. The County also initiated a biomonitoring program, which was designed in conjunction with the U.S. Fish and Wildlife Service to identify background concentrations and trends for mercury in key indicator species within the local aquatic environment (i.e., largemouth bass, oysters, and mosquitofish). The County's biomonitoring program was started in 1993, and continued after the County's Facility commenced operations in 1994. The data collected in the biomonitoring program indicate that the mercury concentrations in these key species have not increased as a result of the operation of the Facility. In 2002, the County's consultants completed a new, large-scale, evaluation of the human health and ecological risks associated with the Facility's airborne emissions. The County's 2002 risk assessment evaluated the cumulative impacts of the entire Facility, with all three MWC units in operation. The County's 2002 risk assessment was conducted in compliance with current EPA guidance. The risk assessment considered hypothetical human receptors (e.g., infants, children, and adults) that were engaged in different types of behavior (e.g., a typical resident; a beef farmer; a subsistence fisherman) and were exposed through multiple pathways (e.g., inhalation; ingestion of soil; ingestion of local produce, beef and/or fish) to both acute short-term and chronic long-term impacts from the Facility. The risk assessment was designed to overestimate the potential impacts of the Project, and thus be protective of human health and the environment. The risk assessment relied upon the latest EPA data for mercury, dioxin, and the other chemicals of concern, as set forth in EPA's 1997 Mercury Report to Congress, EPA's 2000 Dioxin Reassessment, and other relevant documents. The County's 2002 risk assessment demonstrates that the Facility's airborne emissions will not measurably increase the typical concentrations of chemicals in the environment. For example, even at the point of maximum impact, the maximum environmental mercury and dioxin concentrations associated with the operation of the Facility will be far below the levels that are typically found in the environment and they will be immeasurably small. The County's 2002 risk assessment also demonstrates that the potential risks associated with the Facility's emissions will not exceed, and in most cases will be much less than, the risks that are deemed acceptable by the EPA and DEP for the protection of human health and the environment. The County's findings are consistent with the findings in environmental monitoring studies and risk assessments that have been performed for other modern waste-to-energy (WTE) facilities in the United States. Indeed, the environmental monitoring studies conducted at similar WTE facilities have shown that risk assessments, like the ones performed for Lee County, overestimate the actual impacts. In light of the evidence presented by the County in this case, the Facility should not have any measurable effect on human health or the environment, even when all three MWC units are operational. Other Potential Environmental Impacts The County's 2002 risk assessment primarily focused on the Facility's maximum impacts under worst case operating conditions. The maximum concentrations in the ambient air and the maximum deposition rates resulting from the Facility's mercury emissions will occur within 2.5 km (approximately 1.5 miles) of the Site. The ambient air concentrations and deposition rates at all other locations beyond the Site will be even lower. EPA studies of similar facilities have shown that mercury deposition rates decrease at least 100 times (i.e., by a factor of 100) within the first 10 km. In this case, the nearest portions of the Everglades are approximately 90 km from the Site. Moreover, the generally prevailing winds at the Site blow toward the Gulf of Mexico, not toward the Everglades. Approximately 90 percent of the time, the wind does not blow from the Site toward the Everglades. For these and other reasons, the Facility's mercury emissions will have an insignificant impact on the Everglades. The Facility's emissions of nitrogen oxides (i.e., NOx) will not cause or contribute to violations of any water quality standards in any surface waterbody. Environmental Benefits of the Project The addition of Unit No. 3 will provide significant environmental benefits to Lee County and Hendry County. The solid waste processed by Unit No. 3 will reduce the volume of processible solid waste by approximately 90 percent. By reducing the volume of processible waste, the Facility will significantly extend the useful life of the Lee County/Hendry County regional landfill, effectively postponing the need to build a new landfill in Lee County or Hendry County. The Project will also provide environmental benefits to the State of Florida. For example, the Facility will produce approximately 1.88 billion kilowatt-hours of electricity from discarded materials during the next 20 years. In this manner, Unit No. 3 will reduce the need to use fossil fuels to generate electricity at traditional power plants. Unit No. 3 will eliminate the need to use approximately 5.54 million barrels of oil, and thus will save approximately $150 million in oil purchases over the next 20 years. In addition, the County will recover ferrous and non-ferrous metals from the Facility's ash, thus recycling resources that otherwise would be buried with the County's solid waste in a landfill. Socioeconomic Benefits of the Project The local economy and labor market will benefit from approximately $70 million that Lee County will spend to construct the Project. A significant amount of construction supplies, such as concrete, structural steel, glass, piping, fittings, and landscape materials, are anticipated to be purchased from local businesses. The Project will provide jobs for over 125 construction workers during the peak of construction activities. The addition of Unit No. 3 will also provide approximately nine new permanent jobs at the Facility, with an increase in the Facility's annual payroll of approximately $400,000. WTE Criteria in Section 403.7061 Section 403.7061, Florida Statutes, establishes several criteria that must be satisfied before an existing waste-to- energy facility may be expanded. Lee County has provided reasonable assurance that the Project will satisfy all of the standards and criteria in Section 403.7061, Florida Statutes. Among other things, the County has demonstrated that Lee County's waste reduction rate will exceed 30 percent when Unit No. 3 begins operation. Compliance with Environmental Standards Lee County has provided reasonable assurance that the Project will comply with all of the nonprocedural land use and environmental statutes, rules, policies, and requirements that apply to the Project, including but not limited to those requirements governing the Project's impacts on air quality, water consumption, stormwater, and wetlands. The location, construction, and operation of the Project will have minimal adverse effects on human health, the environment, the ecology of the State's lands and wildlife, and the ecology of the State's waters and aquatic life. The Project will not unduly conflict with any of the goals or other provisions of any applicable local, regional or state comprehensive plan. The Conditions of Certification establish operational safeguards for the Project that are technically sufficient for the protection of the public health and welfare, with a wide margin of safety. Agency Positions and Conditions of Certification On December 11, 2001, the PSC issued an order concluding that the Project was exempt from the PSC's "determination of need" process, pursuant to Section 377.709(6), Florida Statutes. DEP, DOT, DCA, and SFWMD all recommend certification of the Project, subject to the Conditions of Certification. The SWFRPC determined that the Project is "Regionally Significant and Consistent with the Regional Strategy Plan," but did not recommend any conditions of certification for the Project. Lee County has accepted, and has provided reasonable assurance that it will comply with, the Conditions of Certification.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Governor and Cabinet, sitting as the Siting Board, enter a Final Order granting a supplemental site certification for the construction and operation of Unit No. 3 at the Lee County Solid Waste Energy Recovery Facility, in accordance with the Conditions of Certification contained in Appendix 1 to DEP Exhibit 2. DONE AND ENTERED this 19th day of August, 2003, in Tallahassee, Leon County, Florida. S _________________________________ RICHARD A. HIXSON 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 19th day of August, 2003.
The Issue This is a license discipline case in which the Department of Health and Rehabilitative Services seeks to impose an administrative fine in the amount of $350.00 on the basis of allegations that the Respondent, failed to report visible and accessible evidence of dry wood termite fecal pellets.
Findings Of Fact At all times material to this case, the Respondent, James M. Dodds has been licensed to conduct residential termite inspections. On June 12, 1990, he conducted a termite inspection at the residence of a Mrs. Mitchell, located at 7420 W. 15 Court, Hialeah, Florida. During the course of that inspection, Dodds did not inspect the attic of the residence. The reason he did not inspect the attic was because the access to the attic (which was through a crawlspace in the ceiling of a small bedroom closet) was blocked by a large number of boxes stacked in the closet. During the course of the inspection Dodds told the owner of the house that unless she arranged to move all the boxes out of the way, he would have to indicate on his report that the attic was not inspected. The owner did not arrange to get the boxes moved and Dodds did not inspect the attic. At the conclusion of his inspection of the property described above, Dodds filled out an inspection report form and left a copy of the inspection report with the property owner. Dodds placed some check marks in some preprinted boxes on the back of the inspection report form. Those check marks included one that indicated "attic not available for inspection." Shortly thereafter, the house was sold to a new owner who, shortly after moving in, discovered what appeared to him to be evidence of possible termite infestation. Subsequent inspections of the premises by another pest control company and by an inspector of the Department of Health and Rehabilitative Services revealed the presence of fecal pellets left behind by dry wood termites. The termite fecal pellets were discovered in the attic near the crawl space opening. There was no other evidence of the presence of termites. No live termites were seen on either of the follow-up inspections.
Recommendation For all of the foregoing reasons, it is recommended that the Department of Health and Rehabilitative Services issue a final order in this case dismissing all charges against the Respondent, James M. Dodds. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 11th day of March, 1991. MICHAEL M. PARRISH, 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 11th day of March, 1991. COPIES FURNISHED: Martha F. Barrera, Esquire, Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, FL 33301 Mr. James M. Dodds Creative Construction Services, Inc. P. O. Box 38-1996, Miami, Florida 33138 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda K. Harris Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact The Respondent, Philip G. Nicholson, does business as Allstate Termite Control. The Respondent holds a pest control identification card issued by the Office of Entomology of the Department of Health and Rehabilitative Services. On or about September 23, 1977, the Respondent entered into a subterranean termite control contract and service agreement with Roland E. Cooley and Alma P. Cooley with respect to the Cooleys' residence in Lake Worth, Florida. The chemical specified for use on the contract was chlordane. On or about that same date, the Respondent entered into a contract with Roland E. Cooley and Alma P. Cooley to perform a dry wood termite attic prevention treatment on the Cooley's residence. The chemical specified in the dry wood contract was "dri die". Only hearsay testimony was offered to establish what, if any, representations the Respondent made to the Cooleys to induce them to enter into the contracts. The work performed by the Respondent on the Cooleys' residence was not sufficient to provide the protection specified in the contracts, and in the case of the dry wood treatment, was unnecessary. The Cooleys' residence is constructed on a concrete slab. With such structures, the chlordane label, which governs use of the chemical, requires that all voids in hollow masonry units of the foundation be treated at the rate of at least one gallon per five linear feet of wall. It is thus necessary to drill each masonry block so that the chemical can be injected into it. Hollow masonry blocks were used in constructing the foundation of the Cooley house. Only one drill hole was made on the north side of the house into the masonry blocks, and none were made on the south side. If each of the masonry units had been treated as required, drill holes would have been placed at every eighteen inches along the foundation. This was not done, and the treatment for subterranean termite control was thus not in accordance with the label on the chemical, and was substandard. The treatment was inadequate to provide the Cooleys with the protection provided in the subterranean termite control contract. As to the dri die treatment at the Cooley house, the sort of treatment specified would not give the Cooleys any significant termite protection, since it would only protect them from dry wood termites in their attic. It is not a sort of treatment that is ordinarily performed. In order to be performed effectively, however, the dri die must be applied in accordance with the label which gives directions for its use. It is required that all wood surfaces be covered with the chemical at a recommended rate of one pound per one thousand square feet of area. At the Cooley residence, dri die was placed in the area, however, it was placed in a small pile in one part of the attic. It was not evenly spread, all wood surfaces were not covered, and insufficient chemical was utilized. The treatment specified would have provided the Cooleys only with dry wood termite prevention in the one part of the attic where the chemical was piled. The treatment was not in accordance with the label instructions, and was substandard. On or about September 27, 1977, the Respondent entered into a subterranean termite control contract and service agreement with Mr. and Mrs. Walter J. Delaney, for their residence in Lake Worth, Florida. The type of chemical specified for use in the contract was chlordane. The contract sets out the street address and zip code of the Delaneys' residence, but does not state the city. The address set out on the contract is sufficient to establish the location of the Delaneys' residence. Only hearsay evidence was offered at the final hearing to indicate what, if any, representations the Respondent made to the Delaneys in order to induce them to enter into the contract. The work performed by the Respondent on the Delaney home was insufficient to comport with the label instructions for application of chlordane, was substandard, and did not provide the Delaneys with the protection specified in the contract. The Delaneys' home is of concrete slab on-ground construction. The foundation is constructed of hollow masonry units. The voids in the hollow masonry units were not each treated as required on the chlordane label. Only one drill hole was made on the south side of the house and none were made on the north side. Several drill holes were made on the other sides of the house, however, four of them were fake, in other words they did not go all the way through the slab. On or about September 28, 1977, the Respondent entered into a subterranean termite control contract and service agreement with Mrs. Ann Sahlem, for her residence in West Palm Beach, Florida. The chemical specified for use in the contract was chlordane. Only hearsay evidence was offered to establish what representations, if any, were made by the Respondent to induce Mrs. Sahlem to enter into the contract. The work performed by the Respondent on the Sahlem residence did not comport with the label instructions for us of chlordane, was substandard, and was not sufficient to provide Mrs. Sahlem with the protection specified in the contract. The Sahlem residence is constructed on an on-ground concrete slab. The foundation is constructed of hollow masonry units. The voids in each of the hollow masonry units were not filled as required by the chlordane label. No drill holes were made on the west side of the home, and only one was made on the east side. On the north side of the home the holes were too far apart to treat all of the voids. The address set out on the Sahlem contract does not give the city of Mrs. Sahlem's residence although it does give the street address and zip code. The address as given is sufficient to identify the residence. On or about September 30, 1977, the Respondent entered into a subterranean termite control contract and service agreement, and a dry wood termite attic prevention treatment agreement with Mrs. Elizabeth A. Hughes. The chemical specified for use in the subterranean termite control contract was chlordane. The chemical specified in the dry wood termite prevention treatment was "dri die". The contracts were for Mrs. Hughes' residence in Lake Worth, Florida. The contracts do not specify the city of Mrs. Hughes' residence, although the street address and zip code are set out. The address as set out is sufficient to adequately identify the location of Mrs. Hughes' residence. No evidence was offered from which it could be concluded that the Respondent made any misrepresentations to Mrs. Hughes to induce her to enter into the contracts. The work performed under the contracts was, however, not in accordance with the label instructions for chlordane and dri die treatments, was substandard, and was not sufficient to provide the treatment specified in the contracts. Mrs. Hughes' home is constructed on a concrete slab. The foundation is constructed of hollow masonry units. The voids in the masonry units were not each treated as required on the chlordane directions. Furthermore, the drill holes were made three feet above the ground along one wall, and five feet above the ground along another wall, which would be insufficient to allow introduction of the chemicals below the concrete slab. The dri die was not distributed evenly over the attic wood surfaces as required on the dri die label. An insufficient amount of the chemical was utilized, and it was placed at one spot in the attic. The dri die treatment was unnecessary, and even if it had been advisable, it was not accomplished in a manner which would provide any useful protection to Mrs. Hughes. On or about October 27, 1977, the Respondent entered into a subterranean termite control contract and service agreement with Mrs.. Fred J. Schultz. The contract was for Mrs. Schultz's residence in Lake Worth, Florida. No direct evidence was offered to establish what, if any, representations were made by the Respondent to induce Mrs. Schultz to enter into the contract. It appears that the contract was solicited and performed by employees of the Respondent, and not by him directly, although he signed the contract and was responsible for the work. The chemical specified for use in the contract is Gold Crest, 72%, which is a trade name for chlordane. The work performed by the Respondent did not comport with the label instructions for use of chlordane, was substandard, and was not sufficient to provide the protection specified in the contract. The Sdchultz's home is constructed on piers with a crawl space. The instructions for application of chlordane contained in the label provide that in treating such structures it is necessary to either rod or dig a narrow trench to the top of the footing along the inside of the foundation walls, around all piers, sewers, pipes, and conduits; and to rod or dig a narrow trench to the top of the footing along the outside of the foundation wall. The Respondent, or his employees who performed the work at the Schultz residence did not make any trenches whatever, and did not even enter the crawl space below the Schultz's home in order to treat the piers. No evidence was presented from which it could be determined that the Respondent performed any dry wood termite treatment on the Schultz's residence. No evidence was presented from which it could be determined that any such work that may have been performed was done improperly, or that it was accomplished with or without a contract. On or about October 21, 1977, the Respondent entered into a subterranean termite control contract and service agreement with Mrs. Hulda Radke. The contract related to Mrs. Radke's residence in West Palm Beach, Florida. The chemical specified for use in the contract was chlordane. The Respondent also entered into contracts to perform home repairs for Mrs. Radke. No evidence was offered from which it could be concluded that the Respondent made any misrepresentations in order to induce Mrs. Radke to enter into the contract for termite control. The termite control work performed by the Respondent on Mrs. Radke's residence did not comport with the label instructions for use of chlordane, was substandard, and was not sufficient to provide the protection specified in the contract. Mrs. Radke's home was of pier constructions with a crawl space. No trenches were made, and the chemical was not trenched or rodded around each pier, and around each foundation wall. The chemical was broadcast along the top of the soil, but was not placed below the surface. The label instructions specify that a chemical should not be broadcast sprayed. On or about October 26, 1977 the Respondent entered into a subterranean termite control contract and service agreement with Mrs. Charles Thompson, for her residence in West Palm Beach, Florida. The chemical specified for use in the contract was chlordane. No direct evidence was offered to establish what, if any, representations were made by the Respondent to induce Mrs. Thompson to enter into the contract. The work performed by the Respondent on the Thompson residence did not comport with the label instructions for use of chlordane, was substandard, and was insufficient to provide the protection specified in the contract. The Thompson residence is of pier and crawl space construction. No trenches or rodding was done as specified on the chlordane label, and each pier was not treated. The address set out on the Thompson contract is insufficient. It gives only a street address, and no city or zip code. The Respondent testified that he used a process known as "long rodding" to treat under concrete slabs. Long rodding is a method whereby the end of a spray assembly is extended, and chemicals introduced under a slab. It is used typically where hollow masonry is not used in constructing the foundation. The process does not work well because the end of the rod cannot be adequately controlled. Even if this process were utilized, the chlordane label would required that all voids in hollow masonry units be treated. Failure to treat each of the voids would render the treatment substandard. It appears that since these incidents occurred, the Respondent has performed numerous termite control contracts in Hillsborough and Pinellas counties without complaint.
The Issue There are three legal issues which remain for determination: (1) Whether Florida Petroleum has standing in this case; (2) Whether proposed rule 62-770.220(3)(b), requiring constructive notice to residents or business tenants of real property into which the temporary point of compliance is allowed to extend is an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8)(c), Florida Statutes; and (3) Whether proposed rule 62-770.220(4), requiring additional constructive notice of the status of site rehabilitation is an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8)(c), Florida Statutes.i
Findings Of Fact On December 23, 2004, the Department published a Notice of Proposed Rulemaking regarding amendments to Florida Administrative Code Chapter 62-770. In particular, proposed rule 62-770.220(3)(b) and (4), provides: Subsequent Notice of Contamination Beyond Source Property Boundaries for Establishment of a Temporary Point of Compliance (TPOC) - Prior to the Department authorizing a temporary extension of the point of compliance beyond the boundary of the source property (i.e., the location from which the contamination originates) in conjunction with Natural Attenuation Monitoring pursuant to Rule 62-770.690, F.A.C., or Active Remediation pursuant to Rule 62-770.700, F.A.C., the PRSP shall provide the following notices: * * * (b) Constructive notice to residents [if different from the real property owner(s) notified pursuant to paragraph 62- 770.220(3)(a), F.A.C.] and business tenants of any real property into which the point of compliance is allowed to extend. Such constructive notice, which shall include the same information as required in the actual notice, shall be provided by complying with the following: * * * Status Update 5-Year Notice - When utilizing a TPOC beyond the boundary of the source property to facilitate natural attenuation monitoring or active remediation, an additional notice concerning the status of the site rehabilitation shall be similarly provided every five years to [the classes of] those persons who received notice pursuant to subsection 62-770.220(3), F.A.C., unless in the intervening time, such persons have been informed that the contamination no longer affects the property into which the point of compliance was allowed to extend. * * * (The language in brackets was added pursuant to the Department's Notice of Change and "those" was deleted.) The proposed rule implements Section 376.3071, Florida Statutes. The specific authority for the proposed rule is Sections 376.303 and 376.3071, Florida Statutes. On February 2, 2005, the Environmental Regulation Commission held a public hearing on the proposed rules and approved the proposed rules with certain amendments. On February 14, 2005, Florida Petroleum filed a Petition for Determination of Invalidity of Proposed Rule (Petition) challenging the validity of proposed amendments to proposed rule 62-770.220(3)(b) and (4). The Petition was filed pursuant to Section 120.56(1) and (2), Florida Statutes, and in each instance, Florida Petroleum alleges that the proposed rule violates Section 120.52(8)(c), Florida Statutes. On March 4, 2005, the Department published a Notice of Change regarding the above-referenced Notice of Proposed Rulemaking. With respect to the pending proceeding, the Notice of Change reflects revisions to language of proposed rule 62- 770.220(4), which are not subject to challenge. See Finding of Fact 1. On May 16, 2005, without objection, official recognition was taken of the Department's Notice of Proposed Rulemaking and Notice of Change. Florida Petroleum is a Florida voluntary, non-profit trade association, which comprise, in part, approximately 194 Marketer Members who own and/or operate petroleum storage system facilities in Florida. Florida Petroleum’s purposes include providing representation on behalf of its members in legislative and regulatory matters before the Florida legislature and agencies. Florida Petroleum routinely represents its members in rule development proceeding and other regulatory matters before the Department of Environmental Protection, Department of Revenue, and Department of Agriculture and Consumer Services. Florida Petroleum’s By-Laws state that its purposes include advancing the business concerns of its members, pooling the energy and resources of its members, and communicating with elected officials at the national, state, and local levels of government. Towards those ends, Florida Petroleum has represented it members before the Florida Legislature in matters relating to the regulation of petroleum facilities under Chapter 376, Florida Statutes, and has appeared before the Department in rulemaking proceedings involving the regulation of petroleum cleanups, and the various state restoration funding assistance programs. The subject matter of the rule at issue is within the general scope of interest and activity of Florida Petroleum, in particular, its marketer members, who own or operate facilities that store petroleum products for consumption, use, or sale. Florida Petroleum submitted oral and written comments, recommendations, objections, and proposed amendments to the Department and the Environmental Regulation Commission in connection with the rules at issue in this case. A substantial number of Florida Petroleum marketer members are "persons responsible" for assessment and remediation of one or more petroleum-contaminated sites. Florida Administrative Code Chapter 62-770, governs the remediation of petroleum-contaminated sites. A substantial number of Florida Petroleum’s marketer members are "persons responsible" for assessment and remediation of sites identified by the Department as "confirmed" or "suspected" sources of contamination beyond the boundary of the facility (i.e., "off-site contamination"). In certain instances, the Department's rules allow for the use of No Further Action with Conditions procedures in cases of petroleum contamination where applicable regulatory requirements are met because the use of conditions, such as institutional and engineering controls, may be more cost- effective than active remediation. As of February 2005, the Department estimated that it had reports of approximately 23,000 petroleum-contaminated sites. In 2004, the Department received an estimated 539 Discharge Report Forms in connection with petroleum storage facilities. As of March 2005, the Department had information indicating that approximately 2,000 "off-site" properties have been affected by contamination. Assessment Reports filed with the Department indicate that a substantial number of these sites may have been affected by discharges of petroleum or petroleum products. Petroleum discharges will in all likelihood continue to occur in the future at petroleum facilities. Petroleum discharges will in all likelihood continue to affect off-site properties in the future.
The Issue The issue to be determined in this case is whether the Notice of Intent to Issue Order Requiring Access to Property (“Access Order”) issued by the Department of Environmental Protection (“Department”) and directed to Glenda Mahaney, as the property owner, is a valid exercise of the Department’s authority.
Findings Of Fact Petitioner Glenda Mahaney is a natural person and the owner of the property identified in the Access Order. The Department is the state agency which has been granted powers and assigned duties under chapters 376 and 403, Florida Statutes, for the protection and restoration of air and water quality and to adopt rules and issue orders in furtherance of these powers and duties. Background The groundwater beneath a parcel of land adjacent to Petitioner’s property was contaminated with petroleum when the land was used in the past for auto salvage operations. Initial groundwater sampling near the border of Petitioner’s property showed groundwater contamination by gasoline constituents which exceeded Groundwater Cleanup Target Levels (“GCTLs”). In other words, the contamination was at levels that required cleanup. However, later sampling showed the concentration of contaminants had decreased below GCTLs, probably as a result of natural attenuation. The existing data suggests that any groundwater contamination beneath Petitioner’s property is probably now at a level that would not require cleanup. However, the Department issued the Access Order because the Department is not certain about the contamination beneath Petitioner’s property and because Petitioner has continually requested further investigation. Petitioner believes contamination from the auto salvage site has caused illness in a tenant and even contributed to other persons’ deaths. However, no expert testimony was received on this subject and no finding is made about whether contamination exists on Petitioner’s property which has caused illness or death. The Department’s Site Investigation Section wants access to Petitioner’s property in order to determine whether contamination has migrated beneath Petitioner’s property and, if it has, the extent and concentration of the contaminants. The Department wants to: (a) install up to five temporary groundwater monitoring wells, (b) collect groundwater samples from the wells, (c) collect a groundwater sample from Petitioner’s potable water well, and (d) remove the monitoring wells after the sampling. The Access Order includes terms related to advance notice, scheduling, and related matters. Liability Although Petitioner believes petroleum contamination is present and wants it cleaned up, she objects to the provision of the Access Order related to liability. Paragraph 9(e) of the Access Order provides: Ms. Mahaney shall not be liable for any injury, damage or loss on the property suffered by the Department, its agents, or employees which is not caused by the [sic] negligence or intentional acts. Petitioner insists that she should not be liable under any circumstances for injuries or damages suffered by Department’s agents or employees who come on her property for these purposes. She demands that the Department come onto her property “at their own risk.” At the final hearing, the Department stated that it did not intend to impose on Petitioner a level of liability different than the liability that would already be applicable under Florida law. The Department offered to amend Paragraph 9(e) of the Access Order to indicate that Petitioner’s “liability, if any, shall be determined in accordance with Florida law.” Scope of the Investigation Petitioner objects to the proposed groundwater sampling because she does not believe it is extensive enough. Petitioner also believes the Department should test for soil contamination. The Department’s expert, David Phillips, testified that the proposed monitoring well locations were selected based on the direction of groundwater flow in the area and the wells are along the likely path of migration of any contaminated groundwater from the former auto salvage site. Another Department witness, Tracy Jewsbury, testified that no soil contamination was found on the auto salvage site, so the Department has no reason to expect there would be soil contamination on Petitioner’s property that came from the auto salvage operation. The Department will use the data collected from the wells to determine if contamination is present and whether future contamination assessment and/or remediation activities are necessary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection withdraw the Access Order or, alternatively, that Paragraph 9(e) of the Access Order be amended to provide that Ms. Mahaney’s potential liability, if any, shall be determined in accordance with Florida law. DONE AND ENTERED this 15th day of November, 2017, 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 COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2017. William W. Gwaltney, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Glenda Q. Mahaney Post Office Box 123 Mount Dora, Florida 32756 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Robert A. Williams, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed
Findings Of Fact Radon is a naturally occurring, chemically inert, radioactive gas. It is part of the uranium-238K series of decay and is a direct decay product of radium-226. The decay of radon occurs through a quantum process which results in its own decay products known as radon progeny or radon daughters. Radon is generally found in the soil. As a gas, radon is both colorless and odorless. Prolonged exposure to radon gas is a known cause of lung cancer in humans. The problem posed by radon gas is that it will enter a building through cracks or pores in the building's floors and foundation and accumulate inside, thereby increasing the risk of exposure to humans occupying the building. Such radon infiltration is generally caused by lower atmospheric pressure inside a building than outside a building. Put simply, radon gas flows out of the soil in the direction of the lower pressure inside a building. Once inside a building, the radon gas and the radon progeny may remain in the air or may interact with surfaces inside the building. The amount of accumulation or concentration of radon inside a structure is directly affected by several chaotic, nonlinear factors such as weather. Given the public health threat posed by the accumulation of radon in buildings occupied by humans and given the mechanics of radon infiltration, the development of methods of construction to control or mitigate radon infiltration has become a goal in the state and has had a significant impact on the construction industry. Petitioners, the Concrete Association and the Home Builders Association, are both trade associations. The Concrete Association has approximately 70 members in the state and the Home Builders has approximately 1,800 members in the state. Both of the Associations' members are involved in the Florida construction industry. One of the purposes of each organization is to forward the interests of its membership, including participation in rulemaking proceedings such as the present proceeding. Given both Associations' members and their interests, there is no question that the Associations' members are impacted by any rule or standard developed by an agency dealing with construction. In this case, the evidence demonstrated that both Associations' members will be substantially affected by the Proposed Rules and Building Standard. Therefore, since one purpose of each Association is to forward its members' interests, both Associations' have standing to challenge the Proposed Rules and Building Standard at issue in this case. 1/ Section 553.98, Florida Statutes (1991), obligates the Department of Community Affairs to promulgate standards for building codes for the prevention of radon in new construction and for the mitigation of radon in existing construction. Section 553.98, Florida Statutes, was adopted as part of a multi- agency radon control program established in Chapter 88-285, Laws of Florida (1988). Chapter 88-285, Laws Of Florida, divided responsibility for various aspects of the radon control program between various agencies and co-ordinating councils. Importantly, Chapter 88-285, Laws of Florida, by amending Section 404.056, Florida Statutes, gave the Department of Health and Rehabilitative Services the authority to develop and adopt a radiation standard for buildings. The Department of Community Affairs was not given the authority to adopt a radiation standard for buildings. DCA was however given the authority to develop and adopt standards for building codes for radon-resistant buildings and mitigation of radon infiltration in existing buildings. In furtherance of its statutory mandate, the Department, promulgated Proposed Rules 9B-52.001 through 9B-52.004 and created a building standard entitled "the Florida Standard for Radon Resistant Building Construction". According to the Notice of Rulemaking, published on November 15, 1991, in the Florida Administrative Weekly, the Proposed Rules were intended "[t]o initiate a rule which adopts the Florida Standard for building codes for radon-resistant buildings." The actual adoption of a Florida building standard occurred in Proposed Rule 9B-52.004 by incorporating the newly created "Florida Standard for Radon Resistent Building Construction" by reference. Proposed Rules 9B-52.001 through 9B-52.003 generally provide various types of administrative and definitional support for the Building Standard. As indicated, the Florida Standard for Radon Resistant Building Construction was promulgated as a building standard for future radon-resistant building codes. In construction usage, a "code" or "building code" is a binding set of building principles imposed by governmental authority to ensure construction is safe and achieves a certain standard. On the other hand, a "standard" or "building standard" is a generally accepted and recognized criteria or building method which attains a specified goal, level of excellence, measure of adequacy or attainment. A standard is more than a consensual guideline, rule of thumb or rough idea. It must have a history of demonstrated effectiveness. Standards in general are classified as "prescriptive" standards, in which the standard specifies the way a building or building system is to be constructed, and "performance" standards, in which the standard quantifies the range of performance of the material or construction technique by reference to limits. A standard is generally recognized as authoritative but does not necessarily have to be incorporated in a building code. However, standards are usually and frequently made part of building codes or underlie a building code's requirements. In this case, none of the model building codes codified in Section 553.73(2), Florida Statutes (1991), nor any other local building codes incorporate the Florida Standard for Radon Resistant Building Construction. In fact, Section 553.98(3), Florida Statutes, places a moratorium on local governments enacting or enforcing any building codes dealing with radon. However, under Section 553.98, Florida Statutes, the Department is to provide training during the moratorium to those who will presumably be responsible in the future for implementation of the Department's radon-resistant Building Standard and Proposed Rules. Additionally, Chapter 88-285, Laws of Florida, makes it clear that any building standard developed by the Department is intended to serve as the technical underpinnings of a future building code or be directly incorporated into a future building code. Clearly, given this statutory scheme and the testimony at the hearing, the Proposed Rules and Building Standard are intended to, either directly or indirectly, become mandatory and will have a significant impact on the construction industry and in turn on both Petitioners and their members. Moreover, while technically a standard which is not incorporated in a code is not mandatory, standards, especially those promulgated as agency rules, are frequently the criteria which determines whether a builder has prudently performed his duties if accused of negligence. 2/ In essence standards, whether or not they are incorporated in building codes have the effect of being de facto mandates and as such have significant impact on both Associations' members. In this case, the Building Standard itself expressly describes its purpose as follows: The following building standards have been developed in accordance with Section 553.98, Florida Statutes, to decrease the exposure of occupants to indoor radon concentrations in newly constructed buildings. The standard targets the state health standard for exposure to radon indoors established by the Department of Health and Rehabilitative Services in accordance with Section 404.056, Florida Statutes. Pursuant to Section 404.056, Florida Statutes, as amended by Chapter 88-285, Laws of Florida, the Florida Department of Health and Rehabilitative Services (HRS), in Rule 10D-91, Florida Administrative Code, established a maximum acceptable radiation exposure concentration in buildings of 0.02 working levels (WL) on an annual average. Clearly, this annual average is not a short term measurement. In fact, in order to accurately measure the average annual radon concentration inside a building, the deployment of reliable testing instruments in a given building for one year is required. In developing its indoor radiation standard, HRS used an "as low as reasonably achievable" (ALARA) type of analysis. ALARA takes into account reasonableness, social benefits, the state of technology and economics. See Section 404.056(1), Florida Statutes. In fact, the legislative staff analysis of Chapter 88-285, Laws of Florida, indicates that the legislature was well aware of the then proposed HRS standard of as low as reasonably achievable not to exceed 0.02 WL and that HRS recommended that the standard remain the same until better radon mitigation and radon-resistant construction technology was developed. As indicated above, the HRS rule measures radon in terms of working levels. A "working level" is the amount of concentration of short-lived radon progeny that results in 130,000 million electron volts of potential alpha particle energy per liter of air. An alpha particle is an electrically charged particle which is emitted by the decay of radon or various subsequent decays. As can be seen from the above definition, a working level does not measure the presence of radon itself, but is a measure of the air borne daughter elements or radon progeny generated by the decay of radon. Rule 10D-91.1303(16), Florida Administrative Code (1992). The Proposed Rules and Building Standard are intended to apply to all new residential buildings and additions or renovations to existing residential buildings. The Building Standard provides two construction options for achieving radon resistant construction. The two construction options are referred to as active mitigation and passive mitigation. Active mitigation requires the use of the passive mitigation construction practices contained in Chapter 3 of the Building Standard in combination with an active mechanical or electrical depressurization system for the removal of radon gas installed sub-slab for slab-on-grade construction, and either sub-membrane or in the crawl space for off-grade construction. Active mitigation is usually considerably more expensive to construct than passive mitigation. However, active mitigation systems have been proven effective in preventing radon infiltration into homes and are generally accepted in the industry as an appropriate method for reducing radon concentrations. Given the proven efficacy and general acceptance of active mitigation systems, such systems may appropriately form the basis of a building standard for the control or mitigation of radon in buildings. Therefore, due to the track record and industry acceptance of active mitigation systems as methods for actually reducing radon concentrations, the Department included active mitigation systems in its Building Standard as a prescriptive standard and did not define the required level of performance for such active mitigation systems. Also since active mitigation systems are proven, generally accepted in the industry and are directly related to the statutory obligation of the Department to develop, publish and adopt standards for building codes for radon-resistant buildings and mitigation of radon in existing buildings, inclusion of such systems in the Department's Proposed Rules and Building Standard was well within the delegated legislative authority of the Department. On the other hand, under the Proposed Rules and Building Standard, construction of buildings utilizing passive mitigation involves only the passive mitigation building practices contained in Chapter 3 of the Building Standard. These passive mitigation building construction practices were derived from what is currently known about the physical factors affecting the infiltration of radon into a building and are based on extrapolations from fundamental engineering principles. In general, passive mitigation controls mitigates the infiltration of radon by increasing the resistance of a building's shell to radon entry through the use of some type of barrier or sealant for cracks and porous materials and limiting building depresurization forces. However, unlike active mitigation construction techniques, there is no reliable evidence that passive mitigation construction techniques, by themselves, are effective as a method of reducing radon infiltration in buildings and such techniques have not been generally accepted by the construction industry as effective controls of radon infiltration into buildings. In fact, the Department is currently engaged in research to determine whether passive mitigation construction techniques actually control the infilatration of radon into buildings and control it to the extent that the HRS maximum acceptable level of radon is met. The Department recognizes that it has no authority to create a building standard based on technology which is not generally accepted in the construction industry and does not have a proven history of achieving the purpose for which it is being required. In short, the Department correctly recognizes that it cannot require as a prescriptive building standard or rule, construction methods or techniques for radon control that are not recognized and proven as effective controls of radon infiltration. Such unrecognized techniques do not rise to the level of certainty of performance required for a prescriptive building standard or for any type building standard. However, due to the expense of active mitigation construction techniques, the Department felt compelled to provide for the use of stand alone passive mitigation construction techniques in its Proposed Rules and Building Standard even though such techniques are not recognized as effective controls of radon infiltration. Therefore, in an attempt to meet the perceived need to provide a Building Standard which contains a cheaper method of radon control than active mitigation, the Department determined that a performence based building standard for buildings constructed solely with the passive mitigation construction techniques contained in Chapter 3 of the Building Standard should be developed. In essence, under the Proposed Rules and the Building Standard, buildings constructed solely with passive mitigation construction techniques would be required to meet or achieve a certain level of performance before such buildings would be deemed in compliance with the Department's Proposed Rules and Building Standard. In this case, the Department determined that the level of performance the Building Standard should incorporate would be defined by the amount of radon in a structure considered safe for human habitation. In this case, the maximum allowable safe level of indoor radon concentration was established by HRS to be a an annual average not exceeding 0.02 WL. The immediate problem faced by the Department in regards to requiring passive mitigation to meet the HRS level of performance was that the certificate of occupancy of a given building would be dependent on compliance with the Proposed Rules and Building Standard adopted by the Department. A certificate of occupancy is necessary before any building may be permanently occupied by human beings. Clearly, the longer it takes a certificate of occupancy to be issued the more expense will be incurred by a contractor or home owner during the time the structure cannot be occupied. In short, the cost of housing goes up. As indicated earlier, the HRS standard is a long term standard based on an annual average. HRS has not established or developed any short term standard for radon control. HRS does recognize the use of short-term screening tests, but only as a precursor to determining whether a long-term test should be performed. See Rule 10D-91.1317, Florida Administrative Code. In order for a builder to demonstrate compliance with the HRS standard, he or she would have to test a building for radon infiltration for one year to determine that structure's annual average. During the year of testing, the Department felt that a certificate of occupancy could not be issued and that such a delay would increase the cost of housing therby eroding the purpose of including passive mitigation as a cheaper alternative to active mitigation in its Proposed Rules and Building Standard. To solve this problem, the Proposed Rules and Building Standard specify the use of post-construction/preoccupancy, short-term testing of houses constructed solely with passive mitigation techniques. The post-construction testing and compliance criteria constitute the performence standard for such passive mitigation. Curiously, even though the Department's stated purpose for the Rule is to "target" the HRS standard, neither the Proposed Rules or the Building Standard provide for compliance with the performance standard when a post-construction long-term test is completed by a builder and demonstrates a long-term radon level of 0.02 WL or 4.0 pCi/L. The post-construction testing required by the Proposed Rules and Building Standard provide approximately seven different short-term tests from which a builder may choose. The tests vary according to the testing device and period of measurement. Descriptions of the various tests are contained in Chapter 5 of the Building Standard. The tests were intended to determine on a short-term, one time-one test basis whether a home will meet the long-term standard for the annual average radon concentration established by HRS of 0.02 WL. Chapter 5 of the Building Standard contains specific compliance criteria for the post-construction test required for houses constructed solely with passive mitigation construction techniques. Table 5.1, states as follows: Device Measurement Period Concentration (pCi/L) Continuous Radon 5 days to 10 days 3.4 Monitor 11 days or longer 3.5 Electret-Ion Chambers 5 days to 10 days 2.7 (High Sensitivity) 11 days or longer 2.4 Electret-Ion Chambers 26 days or longer 2.6 (Low Sensitivity) Charcoal (open Canister face) 47 hr. to 73 hr. 2.5 Charcoal Canister 5 days to 10 days 2.7 (barrier) As can be seen from the above table, the Proposed Rules and Building Standard require measurements of radon to be expressed in terms of picocuries per liter (pCi/L). "Picocuries per liter" is a measure of the number of disintegrations per minute of a radioactive material per liter. The measure can be used as a measure of the concentration of radon gas in the air. Rule 10D- 91.1303(11), Florida Administrative Code. The Proposed Rules and Building Standard assume that a radon progeny concentration of 0.02 WL is equivalent to a radon gas concentration of 4 picocuries per liter (pCi/L). 3/ The equivalency of 0.02 WL to 4 pCi/L is based upon an assumed equilibrium ratio of 50 percent. In other words, for each unit of radon gas measured at a given time, it is assumed that 50 percent of the radon progeny are lost to surfaces and 50 percent remain in the air available for measurement. Because the equilibrium ratio of 50 percent is only a handy assumption, the actual equilibrium ratio of radon progeny can be more or less than the assumed 50 percent equilibrium. In fact, the range of ratios measured in Florida has been between 20 percent and 70 percent equilibrium. Such a variation in the equilibrium ratios can result in significant differences in the amount of radon gas present in a building at any given time. However, the assumed equivalency of 50 percent is the scientifically accepted, universal working assumption for computing radon levels in a given location and converting WL to pCi/L. The basis of the assumption is that any variation in the actual equilibrium ratios of radon gas can be presumed to approach 50 percent when radon measurements are taken over a lengthy period of time such as a year. However, the evidence did not demonstrate that an assumed ratio of 50 percent is a valid assumption when measurements of radon are taken over the relatively short periods of time indicated in Chapter 5 of the Building Standard. In short the evidence did not demonstrate that the hills and valleys of the actual equilibrium ratios occurring during a short-term measurement of radon gas would offset one another and average out to a 50 percent equilibrium ratio. 4/ Irrespective of whether the 50 percent equilibrium ratio is an appropriate assumption when short-term measurements are involved, the values contained in Chapter 5 of the Building Standard were developed from Department sponsored research through the Environmental Protection Agency, as contractor for the Department. The research was conducted by the Southern Research Institute to provide technical support for the performance standard required of buildings constructed solely with the passive mitigation construction practices contained in the Proposed Rules and Building Standard. To date, the study represents the most comprehensive examination on the time variation of indoor radon concentrations in a significant number of houses having moderately elevated radon concentrations. In fact, there is only one other study which addresses the time variation of radon concentrations in Florida houses. 5/ The Southern Research study expanded the scope of the Roessler, et. al. study in area studied number of devices deployed, inclusion of candidate samples as a control method, and control for house operational and structural variables. The Southern Research study involved 80 homes in four different regions of Florida. All of the study homes had the following characteristics: They were all located in geographic areas of elevated radon potential, namely Dade County, Polk County, Alachua County and Leon County; They all had shown measured radon levels between 2 and 20 pCi/L; They were all existing, occupied homes 6/ and; They were all single-story, slab-on-grade construction. Sixty-five of the 80 test houses finished the study. Out of those 65 houses, 26 were closed to outside ventilation all the time, 8 were closed to outside ventilation more than 95 percent of the time, and the remaining 31 were closed to outside ventilation 95 percent of the time or less. The study involved comparative sampling using the radon measurement technologies listed in Chapter 5 of the Building Standard. The object of the research was to compare the reading from the screening test instruments used in each house to the actual annual average radon concentration. In order to measure the annual average radon concentration in each of the study houses, an alpha track detector was deployed in a house for the entire year. A second alpha track detector was deployed in the same house and exchanged for another alpha track detector at the beginning of each calendar quarter. Simultaneously, with the exception of the continuous radon monitors, which were only deployed in 20 of the study houses, each test device listed in Table 5.1 of the Building Standard was deployed in each of the study houses for the periods specified in Table 5.1 for that type of test instrument. The measurements generally extended over the period of a year but included both short-term (measurements of less than a year) and long-term measurements (measurements of a year or longer). The short-term and long-term measurements were also compared to determine whether short-term measurements were predictive of its associated long-term measurement. The data obtained from these side by side comparisons yielded more than 8,760 individual measurements, of which 1,431 were discarded as quality assurance samples, 224 were discarded due to instrument malfunction or sample losses and 91 were discarded as being under the lower limits of detection. The remaining 7,014 individual measurements were used to derive the values listed in Table 5.1 of the Standard for each test instrument. These values constitute the short-term measurement in picocuries per liter necessary to achieve an 80 percent level of confidence that the average annual concentration of radon is less than 4.0 picocuries per liter. An explanation of the 80 percent level of confidence relationship was provided at hearing by Dr. Ashley Williamson, who directed the research effort which led to the development of Table 5.1. Using the 3.4 pCi/L threshold level established in Table 5.1 for a Continuous Radon Monitor as an example, Dr. Williamson stated that of 100 homes measuring 3.4 pCi/L, one would predict that 80 of those homes would have an annual average radon concentration less than 4 pCi/L while 20 would have an annual average radon concentration greater than 4 pCi/L. The level of confidence is only valuable for any given group of 100 homes. The level of confidence is not necessarily predictive of the annual average of an individual house. Indeed, a significant percentage of homes which measure above 3.4 pCi/L would be predicted to have annual averages below 4 pCi/L. However, all such houses would fail to comply with Chapter 5 and would not meet the performance standard established in the Proposed Rules and Building Standard. Conversely, the data establishes the prediction that at short-term radon levels lower than 3.4 pCi/L, a certain percentage of the homes, though in compliance with Chapter 5, will have actual annual averages of radon concentrations which violate the HRS standard of 4 pCi/L (0.02 WL). These houses would meet the performance standard contained in the Proposed Rules and Building Standard even though they would be in violation of the HRS standard. Moreover, since Section 502.2 states that only those buildings which measure less than the threshold values in Table 5.1 of the Building Standard will be in compliance, none of the 100 homes which measure 3.4 pCi/L will be in compliance with Chapter 5 even though the homes might meet the HRS annual average of 4 pCi/L. Similar results apply to all the values contained in Chapter 5 of the Building Standard. Only a predictive measure with a level of confidence could be developed from the study because short-term levels of radon are highly variable. They vary in accordance with a number of different factors, including environmental factors such as geology, soil moisture, location of the underlying water table, temperature, pressure and other meteorological changes. Short-term levels of radon also vary with construction type; e.g., block, wood, slab-on- grade, basement or crawl space. The variation between different homes can be quite large. Additionally, individual homes also have distinctive diurnal or daily variations in their radon levels, as well as weekly and seasonal variations. Some of the variations within a given structure often are the result of the type of air handler systems in the structure and whether natural ventilation is used for cooling. Variations also occur as a result of sampling locations in different rooms or on different floors. As with all predictive measures, a short-term measurement of radon will not establish with absolute certainty what the annual average concentration of radon of a home will be. Short-term measurements of radon can yield results which are either higher or lower than the homes' true annual average radon concentration. Screening tests, which are tests of much shorter duration, are also available, but screening tests are less accurate than tests performed over longer periods of time. Additionally, test instruments used for screening measurements are prone to both false negatives, or readings which underestimate the true annual average concentration, and false positives, which overestimate the true annual average concentration. Even the EPA testing protocols contained in EPA 520/1-89-009, "Indoor Radon and Radon Decay Product Measurement Protocols" (EPA 1989) and mandated by the Proposed Rules and Building Standard recognize the unreliability and inaccuracy of single short-term measurements. The EPA test protocol document states: [b]ecause of these temporal and spacial variations [in radon concentrations], the EPA does not know of a way to use the result of a single measurement to provide an accurate estimate of health estimates or make a well informed decision on the need for remedial action. The EPA in the same document recommends use of short-term measurements as a screening device only. If a short-term screening test reflects a radon concentration exceeding 4 pCi/L, a longer term, follow-up test should be conducted. Even when a short-term measurement exceeds 4 pCi/L, the EPA test protocol document states that: the screening measurement alone . . . does not provide sufficient information to decide on the need for remedial action. . . . [A]ny decision on permanent corrective action to reduce indoor radon concentrations [should] be made only after the completion of follow-up measurements. Because all types of testing devices have some variation in their ability to measure radon and routinely measure levels either higher or lower than the actual radon concentration, the coefficient of variation for each screening device in each test house was determined from the variability of the individual readings on that device. The coefficients of variation from all the test houses for that individual screening device were then averaged to determine the degree of variability for each type of screening device listed in Table 5.1. In general, the difference between the respective values in Table 5.1 and 4.0 picocuries per liter is an inverse function of the overall variability for that type of screening instrument. In other words, the closer to 4.0 the value specified for a given type of screening instrument, the smaller the overall variability for that type of instrument. Analysis of the data revealed that, there was no overall significant increase in variability attributable to the type of slab-on-grade construction used in the test houses. The study also revealed that the overall variability of the measurements in the houses with higher radon concentrations did not exceed the variability in those with lower radon concentrations. Additionally, there was no evidence that the procedures used in the study increased variability of a specific type of testing instrument or within a particular house. Similarly, there was no evidence that the procedures used in the study increased variability between the various testing instruments or among the various houses. However, analysis of the data revealed that there were conditions inherent in the nature of radon and radon infiltration which tended to increase the degree of variability in individual test houses. The most significant variation and the one causing the most variation involved the seasons along with some meteorological factors. Quarterly averages relative to the annual average increased in the order of spring (82%) < summer (93%) < fall (97%) < winter (123%). The study also revealed that the degree of variation of the short-term measuremnts of radon varies roughly in proportion to the long-term mean consentration, with coefficient of variation within a calendar quarter of approximately 25 percent of the quarterly mean and 35 percent of the annual mean. Clearly, given the above facts, the compliance thresholds reflected in Table 5.1 do not establish a reasonably accurate indicator of compliance with the HRS standard. Put simply, the proposed rules attempt to establish a performance standard based on an estimate of an estimate based on an assumption all of which has its roots in highly variable data. Such stacking of estimates and assumptions fails to provide the accuracy required of a standard especially when the variability is as large as the coefficient of variation in this case. In short, the compliance criteria contained in Chapter 5 of the Building Standard provide the value for short-term measurements of radon concentrations for a given type test which are only predictive of an annual average radon concentration which is less than the HRS maximum acceptable annual average. The values contained in Chapter 5 are not predictive of whether a structure will have an annual average radon concentration equal to the HRS maximum acceptable annual average. Moreover, under the Proposed Rules and Building Standard, a house constructed solely with passive mitigation techniques complies with the Proposed Rule and Building Standard only if a post- construction screening test utilyzing a specified test instrument yields a short-term measured radon concentration lower than the values contained in Table 5.1 of the Building Standard Given the level of confidence applicable to the values in Table 5.1 of the Building Standard, such short-term measurements will likely exclude a building which meets the permissable HRS annual average. In essence, the Department, in domino fashion, has established a performance level which is more restrictive than the level determined by HRS to be safe for human habitation. The establishment of such a level has not been delegated to the Department and therefore is outside the Department's delegated statutory authority. In addition, the data collected and utilized in the development of Table 5.1 does not specifically address homes which fall outside of the construction type of the test houses. It is unclear, therefore, whether the short-term/long-term relationships reflected in Table 5.1 has any applicability to homes which fall outside of the test house categories and may have a wider range of variability than do concrete slab-on-grade homes. Given the differences in the performance between construction types, the applicability of data and analysis which were derived from research on one type of construction is of questionable value for the other. Lastly, the performance standard contained in the Proposed Rules and Building Standard and the compliance criteria contained in Chapter 5 of the Building Standard are based on one study which only partially agrees with or replicates the results of other studies and, in certain respects, does not reproduce the results contained in other studies. Admittedly, the Southern Research study represents a much more detailed study than other studies in the same field. In fact, the Southern Research study is the next logical step in radon research and except for charcoal canisters which were used in the Roessler study, it is the only study which covers the types of radon detection devices contained in Chapter 5 of the Building Standard. However, the development of a performance standard from a study which has no follow-up or which has not been reproduced in other studies is a far cry from a building standard based on data that has a proven track record and is generally accepted in the industry. Even the report of the Southern Research study recognizes that the study is in need of reproduction in order to establish the validity of the study's results beyond the immediate conditions of the study. Additionally, EPA in its test protocol document recognizes that research involving measurements of radon should be shown to be reproducible by other studies or research before the results can be used in other settings or for predictive purposes. Put simply, validation of the Southern Research study has not been done or completed and it would be inappropriate to consider the studies results beyond the confines of the study. For the same reason, it would be inappropriate to formulate a building standard on a study which has not been so validated because the results of one study even assuming those results were accurate enough for a building standard, have not been shown to be reflective of the general population of houses; and therefore, no proven track record for the limits in the performance standard have been established. In sum, the threshold levels set forth in Table 5.1 of the Building Standard do not establish whether the homes to be tested under the Proposed Rules and Building Standard will meet the HRS standard for radon concentrations. The threshold levels do not establish an accurate relationship between a single short-term measurement and an annual average radon concentration. The data upon which they are based is not universally applicable among construction types and the compliance criteria set forth in Table 5.1 lack the accuracy, proven track record and general acceptance required for a measure of the performance of passive mitigation construction practices. Given these facts, the Department has acted outside the scope of its delegated legislative authority in promulgating the portions of the Proposed Rules and Building Standard involving passive mitigation and post-construction testing. Therefore, the portions of the Proposed Rules and the Building Standard related to passive mitigation and post-construction testing are invalid as rules. Finally, Section 102.1 of the Building Standard applies to construction of new residential buildings and additions to or renovations of existing residential buildings throughout the state. However, certain areas of the State have a known low potential for radon, while other areas of the state are known for having a high potential for radon. Radon potential is delineated by near surface geology, with areas predominated by sand having a low potential for radon. In fact, approximately 32 out of the 67 counties in Florida have been identified as having high radon potentials. The Department recognizes that there are areas of low radon potential as well as high radon potential in the State and acquiesces that a delineation of these low and high areas can be achieved based upon geography and geology. To date, the only unified statewide mapping project was the one performed in 1986 by GeoMet Technologies. The Geomet project failed to detect a number of locations in the state which have elevated radon potentials. However, since completion of the Geomet project, there has been extensive data developed regarding the potential for radon in specific areas of the State which are in addition to the Geomet project. Given this additional mapping data, it appears possible that geological mapping for radon with an acceptable degree of reliability is feasible. Importantly, the short-term testing required by Chapter 5 is not intended to, nor will it, demonstrate compliance or noncompliance with the passive mitigation techniques or the effectiveness of the passive mitigation construction practices contained in Chapter 3 of the Building Standard. Therefore, if a home complies with Table 5.1 of the Building Standard, there is no way of knowing whether such compliance is because the home is in a low radon area or, rather, because passive construction has been used and is effective. The Department itself has recommended that radon-resistant building standards should minimize unnecessary housing costs in Florida and that application of radon-resistant standards should be indexed to the level of risk in each area of the state. In this case, the evidence showed that active mitigation is considerably more expensive than passive mitigation and that even passive mitigation would add an additional cost to new homes ranging from $506 to $1,950. Clearly, there is no public benefit to requiring radon-resistant construction techniques in areas of low radon potential. Given the Department's goal of minimizing costs and the expense of mitigation, a statewide standard is unwarranted, particularly in the areas of low radon potential where the increased costs of mitigation need not be incurred. At a minimum, the Department's goal of minimizing unnecessary housing costs would require that the Proposed Rules and Building Standard should contain a provision that exempts a house from the Building Standard where low radon potential can be demonstrated by the builder or the owner. Such a provision would address the potential problem of contaminated fill being brought into a low radon area. Without such a limitation, all of the Proposed Rules and Building Standard are arbitrary and therefore are invalid exercises of the Department's authority.
