11-006495 Finr Ii, Inc. vs. Cf Industries, Inc., And Department Of Environmental Protection Status: Closed Recommended Order on Monday, April 30, 2012.

Summary: Applications for ERP, CRP, & WRP modifications to conduct phosphate mining and reclamation activities in Hardee County approved.

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

FINR II, INC., )

)

Petitioner, )

)

vs. ) OGC CASE NO. 11-1756

) DOAH CASE NO. 11-6495

CF INDUSTRIES, INC. and DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, ) )

Respondents. )

)

FINAL ORDER

An Administrative Law Judge ("AU") with the Division of Administrative Hearings

("DOAH"), on April 30, 2012. submitted his Recommended Order ("RO") to the

Department of Environmental Protection ("DEP" or "Department") in the above

captioned proceeding. A copy of the RO is attached as Exhibit A. The RO shows that

copies were sent to counsel for the Pelitioner, FINR II, Inc. ("FINR"), and to counsel for

the Respondents, CF Industries, Inc. ("CF"), and the Department. The Petitioner FINR

filed Exceptions to the RO on May 15, 2012.' The Respondents filed a joint response

on May 25. 2012. This matter is now before the Secretary of the Department for final

agency action.

, On May 9, 2012, FINR filed a Motion to Stay Proceedings Pending Outcome of

Petition for Review of Non-Final Agency Action, seeking to stay entry of this Final Order.

The Department denied the motion by separate order.

BACKGROUND

CF first began mining for phosphate in Hardee County in 1 978 at what was then

known as the North Pasture mine. Mining operations at the North Pasture mine

concluded in the middle of the 1990s, and the lands associated with that mine were

compietely reclaimed. Pursuant to locai, state, and federal permits, CF relocated its

beneficiation plant (Which separates the phosphate ore matrix into phosphate rock,

waste clay, and sand) to its present location south of State Road 62 in 1993, and began

operation of its South Pasture mine in 1995. The South Pasture mine encompasses

about 15,390 acres. After the startup of the South Pasture mine, CF acquired three

addifionalland parcels totaling approximately 7,512.8 acres with mineable reserves

contiguous to and immediately south of the South Pasture mine. These parcels are

collectively referred to as the South Pasture Extension tract or the Project site. CF

applied to the Department for permits and approvals to conduct phosphate mining,

reciamation, and associated activities on the South Pasture Extension tract. Approval

of the applications for the Project will extend the life of the current South Pasture mine

and beneficiation plant by ten years.

The Department issued proposed agency actions, on November 21, 2011 ,

approving CF's applications for the Project's Environmental Resource Permit ("ERP")

and Conceptual Reclamation Plan ("CRP"), the South Pasture Wetiand Resource

Permit Modification ("WRP"), and South Pasture Conceptual Reclamation Plan

Modification. On December 12, 2011, FINR timely filed a Petition challenging the

proposed agency actions. FINR owns approximately 875 acres of land east of County

Road 663 and immediately south of and adjacent to the Project site, which it leases to

two affiliated companies, Florida Institute of Neurological Rehabilitation, Inc. (FINR I,

Inc.) and FINR III, LLC. FINR I, Inc., operates the Florida Institute of Neurological

which is a post-acute, state-licensed Inpatient rehabilitation facility

accredited by the Commission on Accreditation of Rehabilitation Facilities. It

specializes in the treatment of children and adults who have sustained brain injury or

some other form of neurologic trauma.

The was referred by the Department, on December 29, 2011, to the

DOAH. The ALJ granted CF's motion for a summary hearing under section 120.574,

FloridaStatutes, which it was authorized to request under Section 378.205(3), Florida

Statutes ("F.S."). CF also filed a motion to strike portions of the petition and motion in

limine. The ALJ granted the motions on February 16, 2012, ("the non-final order") and

proceeded with the accelerated hearing schedule in Section 120.574, F.S. Prior to the

final hearing, FINR sought review of the non-final order in the First District Court of

Appeal (1012-1308)2

On March 12,2012, the Department issued a revised proposed agency action

incorporating a new modeling report prepared by CFwhich provided further support for

the Department's proposed action. FINR also submitted a written proffer on matters

2 FINR's Petition for Review of Non-Final Agency Order remains pending as of the

date of this Final Order.

previously excluded by the February 16, 2012, Order. The final hearing was held March

26-28, 2012, and on April 30, 2012, the AU entered his RO.

RECOMMENDED ORDER

In the RO the AU recommended that the Department enter a final order

approving CF's applications. The AU determined that FINR did not offer credible

evidence of adverse environmental or water resources impacts to its property as a

result of mining or reclamation within the footprint authorized by the ERP or CRP. (RO

at page 47). The AU concluded that a preponderance of competent substantial

evidence, including the entirety of the application,engineering studies and reports,

scientific testimony, and a voluminous application, all support the Department's

detemnination of reasonable assurance of CF's entitlement to the approvals at issue.

(RO 1[97).

The Project ERP

The ALJ found that CF and the Department thoroughly investigated the Project's

potential for causing adverse fiooding and dewatering impacts on adjacent properties.

(RO 1[ 33). Event-based stormwater runoff modeling provided reasonable assurance

that peak discharge rates and outflow volumes at exit points from the Project site under

post-reclamation would not cause adverse offsite flood impacts. (RO 1[34).

The AU also found that CF and the Department evaluated the Project's potential

for causing adverse fiooding and dewatering impacts on adjacent properties during

mining. (RO 1[37). He found thatCF's application contained during-mining water

balance analyses that specifically evaluated the biological integrity of on-site and off-site

preserved areas, streams, and wetlands during mining and after reclamation. There will

be no substantial change in the during-mining water balance as a result of the extension

of mining into the Project site. The AU found that the application, past practices and

experience, and evidence presented at hearing all indicate that CF has more than a

sufficient amount of water available to conduct the Project while simultaneously

maintaining or improving the biological integrity of downstream systems. (RO 1m 38, 39).

The AU concluded that CF demonstrated its ability to manage large amounts of water

within Its mine recirculation system and store or discharge water as required in order to

maintain downstream flows or reduce flooding potential. Thus, the risk of adverse

floodin9 during mining was minimal. (RO 1140). The ALJ found that once CF constructs

the proposed perimeter ditch and berm system, the area of the drainage basin

contributing flow to FINR's property would be reduced by approximately one-half,

resulting in significantly less water flowing onto FINR's property during flood events. In

addition, a reroute ditch would be installed in concert with the ditch and berm system

that will reduce peak flood flows downstream in Troublesome Creek. (RO 1151).

The AU found that CF thoroughly assessed the ability of the recharge ditch to

maintain recharge to wetlands and adjacent properties during active mining of the

Project. CF demonstrated that it would meet the goal of the recharge ditch design to

maintain the water table during mining operations, within the normal range of seasonai

high and seasonal low water along preserve and property boundaries, including FINR's

property. (RO mr 52 - 58, 72).

The ALJ found that, in addition to the above analyses, CF and the Department

also thoroughly evaluated potential on-site and off-stte water quality issues associated

with the Project. The ALJ found that discharges would occur only through permitted

outfalls. Additional water quality protection for adjacent undisturbed surface waters and

wetlands would be provided by the perimeter ditch and berm systems and other

proposed best management practices ("BMPs"), such as silt fences and stormwater

collection systems. The ALJ determined that during mining and reclamation, these

practices would preclude uncontrolled releases of water to adjacent un-mined and

downstream areas. (RO mr 60, 61). The ALJ found that CF prepared a Stormwater

Pollution Prevention Plan ("SPPP") to identify BMPs and controls for the Project during

land preparation, mining, backfilling, and reclamation. The SPPP also incorporated by

reference other documents already in place on the South Pasture mine pursuant to CF's

National Pollutant Discharge Elimination System ("NPDES") permit for the South

Pasture mine. Among these documents are a Best Management

Practices/Pollution/Prevention ("BMP3") Plan that generally describes BMPs for waste

management, spill reporting and response, and other specific measures to prevent

pollution, and a memorandum of agreement ("MOA") between CF and the Department

that describes general design and construction BMPs. The ALJ found that by using

these measures at the South Pasture mine, CF has never had any issues with

stormwater discharges causing water quality violations. (RO W62, 63). The AU also

found that FINR failed to present any competent substantial evidence that the Project

willcause adverse water quality impacts during mining. (RO If 64,88).

As to ecological issues, the AU found that the level of detail and analysis

prOVided by CF in its application to the Department for the Project ERP and CRP, and

the South Pasture WRP and CRP Modifications, was more than adequate. The AU

determined that CF provided substantially more baseline information in terms of existing

site conditions, wetland conditions, and wildlife information than is provided in typical

ERP applications. (RO If 65). The AU noted that CF's expert's evidence as to the local

and regional ecological, hydrological, and wildlife benefits expected to result from the

proposed reclamation was not disputed. Thus, he concluded that CF's wetlands

reclamation activities maintained or improved the water quality and the function of the

biological systems present at the sile prior to the commencement of mining activities as

required under Section 373.414(6)(b), F.S. (RO W66 - 68, 88).

The ALJ found that CF considered the potential impacts to off-site wetlands from

the Project both during mining and after reclamation, particularly those wetlands that

straddle CF's shared property boundary with FINR. The AU also found that the

wetlands on FINR's property are similar to nearby wetlands on the Project site, in that

historically they have been impacted by agricultural activities, including ditching. (RO If

69, 70 - 72). The ALJ concluded that no dewatering would occur that would have an

adverse ecological effect on FINR's wetlands. (RO W 69 - 77).

The Project GRP

The ALJ found that CF analyzed whether it would have sufficient materials

available to it to accomplish the objectives of the CRP, and sufficient capacity in the

existing South Pasture mine and proposed Project site clay settling areas ("GSAs") to

dispose of waste clays generated by phosphate matrix processing. (RO 'I! 78). The ALJ

found that based upon CF's calculations as reflected in the Life of Mine Backfill Plan

("LOMBP"), infonmation contained in the Mine Production Plan ("MPP"), and testimony

from CF's expert witness, CF would have sufficient materials to achieve its mining and

reclamation objectives; and sufficient capacity to dispose of waste clays in existing

GSAs located on the South Pasture mine and proposed CSAs on the Project site.

Thus, the ALJ concluded that CF would be able to accomplish the mining and

reclamation as proposed. (RO 'Il'Il79 -82).

The ALJ detenmined that with respect to phosphate mining reclamation criteria

contained in chapter 378, F.S., and rule 62C-16.0051, Florida Administrative Code

("FAC."), CF provided reasonable assurances that the Project will meet the

reclamation criteria contained in the rule. (RO 'Il'Il87, 89).

South Pasture WRP and CRP Modifications

The ALJ noted that, as set forth in the Order Granting the Motion to Strike and

Motion in Limine issued on February 16, 2012, the Petition did not contain any factual

allegations relative to the compliance with appiicable regulatory requirements regarding,

or potential for hanm resulting from, the South Pasture Modifications (as opposed to the

ERP or CRP for the Project). Therefore, the allegations relating to the South Pasture

Modifications were stricken. (RO '1[90). The ALJ found that the prima facie case

provided by CF and the Department at the final hearing of CF's entitlement to the South

Pasture mine Modifications was not refuted, and FINR did not make a proffer relative to

the South Pasture mine Modifications prior to the close of the evidentiary proceedings.

Thus, the ALJ reaffirmed his ruling at the final hearing to receive into evidence the

pemnit application and the Department's proposed agency action on these two items.

(RO'l[90).

Motion in Limine and Motion to Strike

The ALJ concluded and reaffimned that FINR's assertions regarding Hardee

County's quarter-mile setback requirement had no legal basis in any environmental

factors that are cognizable under the ERP or CRP pemnitting programs. (RO'l[98). The

ALJ further concluded that FINR did not offer any credible evidence of adverse

environmental or water resources impacts to FINR's property as a result of mining or

reclamation within the footprint authorized by the ERP or CRP. (RO'l[98).

STANDARDS OF REVIEW OF DOAH RECOMMENDED ORDERS

Section 120.57(1)(1), Florida Statutes, prescribes that an agency reViewing a

recommended order may not reject or modify the findings of fact of an ALJ, "unless the

agency first detemnines from a review of the entire record, and states with particularity in

the order, that the findings of fact were not based on competent substantial evidence."

§ 120.57(1 )(1), Fla. Stat. (2011); Charlotte County v. IMC Phosphates Co., 18 So.3d

1089 (Fla. 2d DCA 2009); Wills v. Fla. Elections Comm'n, 955 So.2d 61 (Fla. 1st DCA

2007). The tenn "competent substantial evidence" does not relate to the quality,

character, convincing power, probative value or weight of the evidence. Rather,

"competent substantial evidence" refers to the existence of some evidence (quantity) as

to each essential element and as to its admissibility under legal rules of evidence. See

e.g., Scholastic Book Fairs, Inc. v. Unemployment Appeals Comm'n, 671 So.2d 287,

289 n.3 (Fla. 5th DCA 1996); Nunez v. Nunez, 29 So.3d 1191, 1192 (Fla. 5th DCA

2010).

A reviewing agency may not reweigh the evidence presented at a DOAH final

hearing, attempt to resolve conflicts therein, or judge the credibility of witnesses. See

e.g., Rogers v. DepY of Health, 920 SO.2d 27, 30 (Fla. 1st DCA 2005); Balleau v. DepY

of Envt/. Prot., 695 So.2d 1305, 1307 (Fla. 1st DCA 1997); Dunham v. Highlands

County Sch. Bd., 652 SO.2d 894 (Fla. 2d. DCA 1995). These evidentiary-related

matters are within the province of the ALJ, as the '1act-finder" in these administrative

proceedings. See e.g., Tedder v. Fla. Parole Comm'n, 842 So.2d 1022, 1025 (Fla. 1st

DCA 2003); Heifetz v. DepY of Bus. Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA

1985). Also, the ALJ's decision to accept the testimony of one expert witness over that

of another expert is an evidentiary ruling that cannot be altered by a reviewing agency,

absent a complete lack of any competent substantial evidence of record supporting this

decision. See e.g., Peace RiverlManasota Regional Water Supply Authority v. IMC

Phosphates Co., 18 SO.3d 1079, 1088 (Fla. 2d DCA 2009); ColliarMed. Glr. v. State,

DepYofHRS, 462 So.2d 83, 85 (Fla. 1st DCA 1985); Fla. Chapter of Sierra Club v.

Orlando Utils. Comm'n, 436 So.2d 383, 389 (Fla. 5th DCA 1983). Therefore, if the

DOAH record discloses any competent substantial evidence supporting a challenged

factual finding of the ALJ, the agency is bound by such factual finding in preparing the

Final Order. See, e.g., Walker v. Bd. of Prof. Eng'rs, 946 So.2d 604 (Fla. 1st DCA

2006); Fla. DepYofCorr. v. Bradley, 510 So.2d 1122, 1123 (Fla.1stDCA 1987). In

addition, an agency has no authority to make independent or supplemental findings of

fact. See, e.g., North Port, Fla. v. Consol. Minerals, 645 So. 2d 485,487 (Fla. 2d DCA

1994).

Section 120.57(1 )(1), Florida Statutes, authorizes an agency to reject or modify

an ALJ's conclusions of law and interpretations of administrative rules ·over which it has

substantive jurisdiction." See Barfield V. DepYof Health, 805 SO.2d 1008 (Fla. 1st DCA

2001); L.B. Bryan & CO. V. Sch. Bd. ofBroward County, 746 So.2d 1194 (Fla. 1st DCA

1999); Deep Lagoon Boat ClUb, Ltd. V. Sheridan, 784 So.2d 1140 (Fla. 2d DCA 2001).

If an ALJ improperly labels a conclusion of law as a finding of fact, the label should be

disregarded and the item treated as though it were actually a conclusion of law. See,

e.g., Battaglia Properties V. Fla. Land and Water Adjudicatory Comm'n, 629 So.2d 161,

168 (Fla. 5th DCA 1994). However, neither should the agency label what is essentially

an factual determination as a "conclusion of law· in order to modify or overturn

what it may view as an unfavorable finding of fact. See, e.g., Stokes V. State, Bd. of

Prof'l Eng'rs, 952 So.2d 1224 (Fla. 1 st DCA 2007).

An agency's review of the legal conclusions in a recommended order is restricted

to those that concern matters within the agency's field of expertise. See, e.g., Charlotte

County v. IMC Phosphates Co., 18 SO.3d 1089 (Fia. 2d DCA 2009); GEL. Corp. v.

DepY of Envtl. Prot., 875 So.2d 1257, 1264 (Fla. 5th DCA 2004). An agency has the

primary responsibility of interpreting statutes and rules within its regulatory jurisdiction

and expertise. See, e.g., Pub. Employees Relations Comm'n v. Dade County Police

Benevolent Ass'n, 467 So.2d 987, 989 (Fla. 1985); Fla. Public Employee CounCil, 79 v.

Daniels, 646 So.2d 813, 816 (Fla. 1st DCA 1994). Considerable deference shouid be

accorded to these agency interpretations of statutes and rules within their regulatory

jurisdiction, and such agency interpretations should not be overturned unless "clearly

erroneous." See, e.g., Falk v. Beard, 614 SO.2d 1086, 1089 (Fla. 1993); DepY of EnvtJ.

Regulation v. Goldring, 477 SO.2d 532, 534 (Fla. 1985). Furthermore, agency

interpretations of statutes and rules within their regulatory jurisdielion do not have to be

the oniy reasonable interpretations. It is enough if such agency interpretations are

"permissible" ones. See, e.g., Suddath Van Lines, Inc. v. DepY of Envtl. Prot., 668 SO.2d

209, 212 (Fla. 1st DCA 1996).

However, agencies do not have jurisdiction to modify or rejeel rulings on the

admissibility of evidence. Evidentiary rulings of the ALJ that deai with 'lactual issues

susceptibie to ordinary methods of proof that are not infused with [agency] policy

considerations," are not matters over which the agency has "substantive jurisdielion.·

See Martuccio v. DepY of Prof'1 Regulation, 622 SO.2d 607, 609 (Fla. 1st DCA 1993);

Heifetz v. Dep1 of Bus. Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985); Fla.

Power & Light Co. v. Fia. Siting Bd., 693 SO.2d 1025, 1028 (Fla. 1 st DCA 1997).

Evidentiary rulings are matters within the ALJ's sound "prerogative ... as the finder of

fact" and may not be reversed on agency review. See Martuccio, 622 SO.2d at 609.

Agencies do not have the authority to modify or reject conclusions of law that apply

general legal concepts typically resolved by judicial or quasi-judicial officers. See, e.g.,

Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So.2d 1140, 1142 (Fla. 2d DCA 2001).

RULINGS ON EXCEPTIONS

The case law of Florida holds that parties to formal administrative proceedings

must alert reviewing agencies to any perceived defects in DOAH hearing procedures or

in the findings of fact of ALJs by filing exceptions to DOAH recommended orders. See,

e.g., Comm'n on Ethics v. Barl

of Health, Bd. of Nursing, 954 So.2d 77 (Fla. 5th DCA 2007); Fla. Dap1 of Com. v.

Bradley, 510 SO.2d 1122, 1124 (Fla. 1st DCA 1987). Having filed no exceptions to

certain findings of fact the party "has thereby expressed its agreement with, or at least

waived any objection to, those findings of fact." Envtl. Coalition of Fla., Inc. v. Broward

County, 586 So.2d 1212, 1213 (Fla. 1st DCA 1991); see also Colonnade Medical Gtr.,

Inc. v. State of Fla., Agency for Haalth Care Admin., 847 So.2d 540, 542 (Fla. 4th DCA

2003). However, even when exceptions are not fiied, an agency head reviewing a

recommended order is free to modify or reject any enroneous conclusions of law over

which the agency has substantive jurisdiction. Sea § 120.57(1 )(I), Fla. Stat. (2011);

Barfield v. DepY of Health, 805 So.2d 1008 (Fla. 1st DCA 2001); Fla. Public Employee

Council, 79 v. Daniels, 646 SO.2d 813, 816 (Fla. 1st DCA 1994).

Finally. in reviewing a recommended order and any written exceptions, the

agency's final order "shall include an explicit ruling on each exception."

See § 120.57(1 )(k), Fla. Stal. (2011). However, the agency need not rule on an

exception that "does not identify the disputed portion of the recommended order

by page number or paragraph, that does not identify the legal basis for the exception, or

that does not include appropriate and specific citations to the record." Id.

PETITIONER'S EXCEPTiONS

I. Exception concerning ALJ's Febnuary 16, 2012 Order.

FINR's first exception is to the AU's reaffirmation andlor incorporation by

reference of the AU's February 16, 2012 Order granting CF's motion to strike and

motion in limine (the "Order") as a conclusion of law. See Exceptions 1111. FINR

presents three arguments to support Its contention that the Order was unauthorized and

departed from the essential requirements of law because, (1) the AU lacked statutory

authority to grant themotion to strike and motion in limine and to proceed in the manner

contemplated by the Order; (2) the Order did not permit FINR to amend its Petition; and

(3) the Petition was proper as pled. See Exceptions 1114.

Contrary to FINR's contention in this exception, the Department does not have

the authority to modify or reject the AU's procedural and evidentiary rulings under the

summary hearing provisions of Section 120.574, F.S. Essentially, FINR is unhappy that

the AU complied with Section 373.205(3), F.S.; and in the context of conducting the

summary hearing under section 120.574 he exercised his sole discretion to rule on

procedural and evidentiary issues. See Lee Cty. v. Mosaic Fertilizer, LLC, DOAH Case

No. 08-3886, 2009 WL 736931 (Fla. Dept. Env. Prot. February 1, 2009). It is well

established that eVidentiary rulings are matters within the AU's substantive jurisdiction

and may not be reversed on agency review. See, e.g., Barfield v. DepY of Health, 805

So.2d 1008, 1011-12 (Fia. 1st DCA 2001); Martuccio v. DepYof Prof! Regulation, 622

So.2d 607, 609 (Fla. 1st DCA 1993).

Section 378.205(3), F.S., provides:

Administrative challenges to proposed state agency actions

regarding phosphate mines and reclamation pursuant to this

chapter or part IV of chapter 373 are subject to the summary

hearing provisions of s. 120.574, except that the summary

proceeding must be conducted within 90 days after a party

files a motion for summary hearing, negardless of whether

the parties agree to the summary proceeding and the

administrative law judge's decision is a recommended order

and not a final order.

By motion CF requested a summary hearing, which the AU granted, and he conducted

the finalhearing within the 90 days as provided in the statute. FiNR's first two

arguments are that the AU's actions and rulings "departed from the essential

requirements of law." See Exception 1117. This agency does not have substantive

jurisdiction, however, over the matters that comprise the essence of FINR's lengthy

exception. (d.

As to FINR's third argument, the Department adopts in this Final Order the ALJ's

ruling that allegations concerning local land use criteria, air impacts, noise, dust, odor,

and airborne radioactive particles were immaterial and irrelevant in this proceeding. See

Exceptions at Appendix A and RO 1[98.

Loca/land use criteria.

First, FINR asserts that the ALJ should have allowed evidence and testimony

regarding local land use criteria. See Exceptions 111125-34. FINR does not provide,

however, any applicable statute or rule that would make the land use criteria relevant in

the ERP and CRP context. When determining whether or not to issue a pemnit, an

agency may only consider the proposed project and the statutes and rules applicable to

the project. See, e.g., Save the St. Johns River v. St. Johns River Water Mgmt. Dist.,

623 So. 2d 1193, 1198 (Fla. 1st DCA 1993) ("compliance or noncompliance wrth

another agency's pemnilting program should not be Irtigated in this administrative

proceeding that must be conducted under statutes and rules relating solely to the

District's pemnitting authority"). "rnhe Department is nerther required nor authorized to

deny or modify water pollution pemnits based on alleged noncompliance with local land

use restrictions and long-range development plans, because the issuance of the pemnit

must be based only on the applicable pollution control standards and rules.· Taylor v.

Cedar Key Special Water & Sewerage Dist., 590 So. 2d 481, 482 (Fla. 1 st DCA 1991);

see a/so Council of Lower Keys v. Charley Toppino & Sons, Inc., 429 So. 2d 67, 68

(Fla. 3d DCA 1983).

The Southwest Florida Water Management District Basis of Review (the "BOR")

also provides that local land use criteria of the type alleged in the FINR Petition are not

ERP regulatory criteria. The BOR expressly states that, "[t]he proposed land use to be

served by a surface water management system for which an Environmental Resource

Permit is requested is not required to be consistent with the affected local government's

comprehensive plan and/or existing zoning for the site." See Joint Ex. 21 § 2.2.

likeWise, the reclamation rules governing CRP approval, at rule chapter 62G-16,

FAC., do not contain any criteria concerning mine setbacks or buffers, and do not

require the Department to consider local land use approvais in its decision-making. See

Fia. Admin. Code R. 62C-16.003; see also Fla. Admin. Code R. 62C-16.0041 and 62C­

16.0051. Contrary to FINR's contentions, the Department cannot, by including a

statement in a permitting document, extend its permilling authority beyond what is

authorized by statute. Sea Sava the st. Johns River, 623 So. 2d at 1198.

Air impacts, noise, dust, odor, and airborne radioactivaparficlas.

Second, FINR's allegations regarding air impacts, noise,dust, odor, and alrbome

radioactive particles are likewise beyond the scope of the Department's permitting

criteria for ERPs and CRPs. See, e.g., Fla. Chapter of the Siarra Club, et al v.

Suwannee Am. Cement, Inc., et al., 2000 WL 1185499, at '16-17 (Fla. Dept. Env. Prot.

2000); Royal Palm Beach Colony, L.P. v. South Fla. Water Mgmt. Dist., 21. F.A.L.R.

3663, 3674 (DOAH 1999); In re Fla. Power & Light Co., Manatee Orimulsion Project, 21

F.A.L.R. 2569, 2587-88 (Siting Board 1998).

FINR argues that the public interest test makes these allegations relevant. See

Exceptions 1m 36-37. When applying the public interest factors, the Department is

limited to environmental impacts associated with the proposed activities in wetlands and

surface waters. See § 373.414(1 )(a), Fla. Stat. (2011); see also Save Anna Maria, Inc.

v. DepY of Transp., 700 So. 2d 113, 116 (Fla. 2d DCA 1997); Millerv. State, DepYof

Envtl. Reg., 504 So. 2d 1325, 1327 (Fla. 1st DCA 1987).

WRP and CRP Modifications.

Third, FINR asserts that since CF is modifying its current South Pasture mine

WRP and CRP to include the new ERP and CRP for the additional mine area, then its

substantial interests are automatically affected by the South Pasture mine proposed

agency actions. See Exceptions 1139. FINR's argument, however, does not provide a

basis to modify or reject the ALJ's factual finding in paragraph 90 of the RO that, "the

Petition contained no factual allegations relative to the compliance with applicable

regulatory requirements regarding, or potential for harm resulting from, the South

Pasture Modifications (as opposed to the ERP or CRP for the Project)." See, e.g., St.

Johns Riverkeeper, Inc. v. St. Johns River Water Mgm!. Dis!., 54 So. 3d 1051, 1054

(Fla. 5th DCA 2011). Therefore, the allegations relating to the South Pasture

Modifications were properly stricken. See Exceptions at Appendix A.

Due process.

FINR also argues that tt has been "effectively denied ... an administrative hearing

concerning the [South Pasture] WRP and CRP Modifications" and that its "statutory and

constitutional due process rights [have been] irreparably hanned." See Exceptions 1111

21,26. It is well established that administrative agencies lack jurisdiction to consider

the alleged unconsmutionality at the actions of administrative officials. See, e.g., Hays v.

DepT of Business Regulation, 418 So.2d 331 (Fla. 3d DCA 1982); Harmon Brothers

Rock Co. v. DepT of Envtl. Regulation, 15 FAL.R. 2183, 2186 (Fla. DER 1993).

As to statutory due process, the record of this proceeding shows that issuance of

the South Pasture Modifications (challenged in Counts III and IV of the Petition) were

dependent upon issuance of the new ERP and CRP for the South Pasture Extension

(Counts I and II of the A full evidentiary hearing was held and a

recommended order was issued on all Counts. See Ruling on FINR's second exception

below. Although FINR further complains that much of Ceunts I and II were stricken, the

paragraphs that remained of those counts included a recitation of all the ERP and CRP

regulatory criteria. See Exceptions at Appendix A and FINR's Petition for Hearing at

pages 17 through 52. Thus, the record reflects that FiNR had a full and fair opportunity

to be heard on all of the relevant allegations related to its substantial interests that

reasonably could be affected by the ERP and CRP proposed agency actions. See

Exceptions at Appendix A.

Therefore, based on the foregoing reasons, FINR's first exception to the ALJ's

reaffirmation andlor incorporation by reference of the ALJ's February 16, 2012 Order, is

denied. FINR's request for a remand is also denied.

II. Exception to RO Paragraphs 90 and 97 (SPM WRP Modification and SPM CRP

Modification Exceptions).

FINR takes exception to the findings in paragraph 90 of the RO, where the ALJ

determined that the Petition failed to include "factual allegations relative to the

compliance with appiicable regulatory requirements regarding, or potential for harm

resulting from, the South Pasture Modifications" and that FINR failed to refute "[tJhe

prima facie case provided by CF and the Department at hearing of CF's entitlement to

the associated WRP and CRP Modifications for the South Pasture mine (South Pasture

Modifications)." (RO 90). FINR also takes exception to the ALJ's conciusion in

paragraph 97 that, "a preponderance of competent substantial evidence ... all support

the Department's determination of reasonable assurance of entitlement to the approvals

at issue." (RO 97).

First, FINR contends that Counts III and IV of the Petition regarding the South

Pasture WRP and CRP Modifications are in a "state of administrative limbo from which

[the Department] cannot legally extract them without overtuming the ALJ's February 16,

2012 Order and remanding the matter back to DOAH for a further administrative

hearing." See Exceptions 45-47. FINR argues that the Department currently lacks

jurisdiction to "take action" on the South Pasture WRP and CRP Modifications because

the ALJ severed his own subject matter jurisdiction when he struck the Petition's

immaterial and irrelevant allegations in his February 16, 2012 Order, but did not enter a

separate order of dismissal within 30 days. See Exceptions 45-51.

FINR's confusing argument is based upon the premise that Sections

120.569(2)(p) and 378.205(3), F.S., required that the ALJ issue his RO as to Counts III

and IV within 30 days from the February 16, 2012 Order. See Exceptions \f.

Contrary to FINR's argument, it is Section 120.574(2)(1), F.S. - not Sections

120.569(2)(p) or 378.205(3), F.S. - that requires the ALJ to render his decision ''within

30 days after the conclusion of the final hearing or the filing of the transcript thereof,

whichever is later." § 120.574(2)(1), Fla. Stat.(2011). The RO in this case complied

with that requirement. FINR did not cite any authority that the ALJ from

entering a single RO withhis recommendation to the Department regarding all four

approvals challenged by the Petition (two of which he can rule upon because there are

no longer valid challenges against them and two of which he can rule upon because a

full evidentiary hearing was held on the cognizable challenges). In fact, the ALJ is

reqUired to provide the agency with all "information required by law to be contained In

the final order." See § 120.57(1 )(k), Fla. Stat. (2011)( ''The presiding officer shall

complete and to the agency and all parties a recommended order consisting of

findings of fact, conclusions of law, and recommended or penalty, if

applicable, and any other information required by law to be contained in the final

order.").

In addition, FINR asserts that, "overtuming the ALJ's February 16, 2012 Order

and remanding the matter back to DOAH for a further administrative hearing" is

necessary to solve the alleged "administrative limbo" problem. See Exceptions \g. A

remand, however, would not resolve any alleged problem with respect to the South

Pasture WRP and CRP Modifications. As noted above, the South Pasture WRP and

CRP Modifications (Counts III and IV) were entirely dependent upon issuance of the

new ERP and CRP (Counts I and II), and FINR had a full and fair opportunity to be

heard on the material and relevant allegations contained in those counts. A new

hearing on remand regarding Counts III and IV would not yield new factual information

regarding potential impacts to FINR. ThUS, a remand is not necessary. See infra ­

Conclusion.

Second, FINR takes exception to RO paragraphs gO and 97 because the ALJ

"erroneously conclude[d] that CF successfully proved a prima facie case in support of

the [South Pasture WRP and CRP Modifications] by introducing into evidence its permit

applications and the [Department's] proposed agency actions." See Exceptions 1153;

see also T. 67-70 (indicating that Joint Exhibits 16-19 were received into evidence at

hearing by the ALJ, notwithstanding Petitioner's objections based upon relevancy). In

support of this claim, FINR argues that the ALJ's February 16, 2012 Order "prohibited

all evidence related to FINR's stricken allegations regarding the [South Pasture WRP

and CRP Modifications]; not just evidence tendered by FINR." See Exceptions 1153.

As described above, it is well established that procedural and evidentiary rulings are

mailers within the ALJ's substantive jurisdiction and may not be reversed on agency

review. See, e.g., Barfield v. DepY of Health, 805 SO.2d 1008, 1011-12 (Fla. 1st DCA

2001); Marluccio v. DepY of Prof! Regulation, 622 SO.2d 607, 609 (Fla. 1st DCA 1993).

Therefore, based on the foregoing reasons, FINR's exception to RO paragraphs

90 and 97 is denied, FINR's remand request is also denied.

III. Exception to RO Paragraphs 84 and 86 (BOR 2.8 Exception).

FINR takes excepUon to the findings in paragraphs 84 and 86 of the RO, where

the ALJ construed both expert testimony" and Section 2.8 of the BOR to determine that

CF did not need to submit a separate document titled "Construction Surface Water

Management Plan." See ExceptionsW 57-67.

FINR contends in this exception that the ALJ found "as a matter of law that CF

does not have to provide reasonable assurance of compliance with BOR 2.8" See

Exceptions 1l59. Contrary to FINR's contention, the ALJ found that the evidence

presented by CF demonstrated reasonable assurance of compliance with Section 2.8 of

the BOR. (RO 1l84). The ALJ rejected FINR's argument that CF's applications should

be denied because CF failed to submIT at hearing a separate document entitled

"Construction Surface Water Management Plan. (RO 1l84). The ALJ recognized that

although CF did not submit a separate document entitled "Construction Surface Water

Management Pian," the primary goal of the BOR criteria is to meet water resource

objectives, and to that end the criteria were designed to be flexible. See RO 1l86; see

also Joint Ex. 21, BOR §§ 1.1, 1.3. The BOR provides:

3 Paragraph 84, reiying on the ALJ's discussion of expert testimony in paragraph 64,

opens by stating: "For the reasons expressed in Finding of Fact 64, a contention by

Petitioner that the SPE mine application must be denied because CF failed to submit at

hearing a separate document entitied 'Construction Surface Water Management Plan' is

rejected."

1.1 Objectives - Under Part IV of Chapter 373. Florida

Statutes (F.S.) and Chapters 40D-4. 40, and 400. Florida

Administrative Code (FAC.), the [Department] is

responsible for permitting construction and operation of

surface water management systems within its jurisdictional

boundaries. The objective of this document is to identify the

usual procedures and information used by the [Department]

staff in permit application review. The objective of the review

Is to ensure that the permit will authorize activities or

situations which are not harmful to the water resources of

the District or inconsistent with the public interest.

•••

1.3 Criteria Flexibility - The primary goal of the review

criteria is to meet District water resource objectives.

However, the criteria are designed to be flexible.

Performance criteria are used where possible. Other

methods of meeting overall objectives will be considered

depending on the of specific or cumulative

impacts. (Emphasis added.)

The ALJ's reading of the BaR's plain language is reasonable and is adopted in this

Finai Order. See, e.g., Pub. Employees Relations Comm'n v. Dade County Police

Benevolent Ass'n, 467 So.2d 987, 989 (Fla. 1985); Fla. Public Employee Council, 79 v.

Daniels, 646 SO.2d 813, 816 (Fla. 1st DCA 1994).

Based on the competent substantial evidence adduced at the hearing, the ALJ

properly concluded that CF provided reasonable assurances that the Project will comply

Section 2.8 of the BaR. Expert witnesses for CF and the Department, testified that

based upon their reviews of the entire application and the documents prepared and

submitted in support of the application, CF demonstrated reasonable assurance that all

stormwater discharges would satisfy state water quality standards. (RO mI 61, 62,64;

Wuitschick alT. 187-190; Joint Ex. 8B, #96; CF Ex. 17; Durbin alT. 274-277; Owete at

T. 324; Rivera alT. 370-371, 381-382).

Therefore, since the ALJ's determinations in paragraphs 84 and 86 are

supported by competent substantiai record evidence and correctly appiy the BaR's

plain language, FINR's exception is denied. FINR's request to remand this case back to

DOAH to correct the ALJ's alleged "misinterpretation of BaR 2.8," is also denied. See

Exceptions 1175.

IV. Exception to RO Paragraph 64 (Water Quality Exception).

FINR takes exception to paragraph 64 of the RO, on the basis that the generic

stormwater permit reference in Section 2.8.2(b) of the BaR ("Generic Permit for

Stormwater Discharge from Construction Activities that Disturb Five or More Acres of

Land" (effective October 22,2000)) applies to CF; and that CF's SPPP failed to satisfy

certain requirements contained in the generic stormwater permit concerning "the

generation of dusr and "local waste disposal, sanitary sewer or septic tank regulations."

See Excepfions, 11 80.

The competent substantial record evidence established that CF is required to

have (and does have) an individual NPDES permit for its mining operations. (T. 49-50,

117, 187-188,274-275); see also FINR Ex. 52, at 2 (indicating that "[t]he following

stormwater discharges from construction are not authorized by this permit: ...

stormwater discharges associated with construction activity that are subject to an

existing generic or individual that are issued pursuant to Section 403.0885,

F.S."); Fla. Admin. Code R. 62-621.100 (indicating that authorization under a generic

permit is "[a]s an alternative to individual permits"); Fla. Admin. Code R. 62-620.100

(indicating, in the ruie authorizing individual NPDES permits, that "[w]here there are

conflicts with other existing specific or general rules of the Department, the

requirements and procedures set forth in this chapter shail supersede ail other

procedures and requirements for wastewater facilities or activities").

Therefore. based on the foregoingreasons and the ruling on FINR's third

exception above, this exception is denied. FINR's request to remand is also denied.

V. Exception to RO Paragraphs 50 and 58 (Dewatering Exception).

FINR takes exception paragraphs 50 and 58 of the RO, where the ALJ found that

the reroute ditch would not cause adverse water quantity impacts to Wetland 10E-40 on

FINR's property. FINR argues that CF's plans to armor the reroute ditch "bottom" and

instail an overland weir are not supported by competent substantial evidence in the

record. See Exceptions, mI 82-83.

First, FINR argues that "there is no competent substantial evidence that the

armoring of the reroute ditch bottom or the instailation [of an] overland weir in the

portion of the reroute ditch crossing Wetland 10E-40 is part of any plan submitted as

part of the SPEM ERP." See Exceptions 1183. FINR asserts, apparently based upon

Mr. Burleson's testimony alone, that the "uncontroverted evidence indicates the

overland weir is not part of the [Troublesome Creek Reroute Ditch Modeling and

Conceptual Design Report ("RDMR")] and the RMDR only discusses the armoring of

sides, but not the bollom of the reroute ditch as tt traverses Wetland 10E-40: 'd. FINR

also asserts that "[t]he overland weir was only mentioned in the RDMR Errata Sheet in

describing the corrected modeling conducted by CF in support of the RDMR." 'd.

As to FINR's argument that there is no competent substantial evidence in the

record regarding armoring the reroute ditch "bollom," FINR has apparently misread the

ALJ's findings in paragraph 50. See Exceptions '1182. The entire finding of fact states

that:

CF assessed the potential that the reroute dttch could result

in dewatering during non-fiood events. To address this

concem, CF designed the reroute ditch with a bollom

elevation that would match the bollom elevation of the

existing ditch, meaning the water table will intersect the

reroute ditch in the same manner tt currently intersects the

Troublesome Creek dttch. Adjacent to Wetland 10E-40 in

the southeast corner between Petitioner's property and the

Project property, however, the reroute dttch received special

design consideration because the reroute ditch bollom will

be below the bollom of the wetiand at that location. There,

the reroute ditch will be armored, an overland weir will

regulate fiow, and an impermeable geotextile liner will be

instalied.

See RO '1150 (emphases added). A plain reading of the entire finding of fact reveals

that the ALJ generally found that "the reroute dttch will be armored: not that the reroute

ditch "bollom" will be armored. 'd. Competent substantial record evidence supports the

ALJ's actual finding of fact. (T. 134,241-243; Joint Ex. 8B, #105, § 1.0, at 3).

Second, as to FINR's assertion that the "uncontroverted evidence indicates the

overland weir is not part of the RDMR," FINR seems to ignore the follOWing language in

the RDMR:

An overland weir (S-3) (Figure TC4) will be constructed on

the eastern edge of marsh bisected by theproperty line to

allow flow to exit the marsh and spill over into the reroute

ditch. This is necessary because the existing grade at that

location is higher than the bottom by about three feet. ...

See Joint Ex. 8B, #105, § 1.0, at 3. CF's experts, Mr. Blitch and Mr. Beriswill, also

testified at the hearing regarding the need for this overland weir, which was also

referenced in the RDMR Errata Sheet as noted by FINR. (T. 134, 241-243; Joint Ex.

8B, #106).

Therefore, since the ALJ's findings in paragraphs 50 and 58 that the reroute ditch

would not cause adverse water quantity impacts to Weiland 10E-40 on FINR's property

aresupported by competent substantial record evidence, this exception is denied.

VI. Exception to RO Paragraph 48 (Lettis Creek Exception).

FINR takes exception to paragraph 48 of the RO, where the ALJ rejected Mr.

Burleson's modeling regarding alleged flooding at Lettis Creek. FINR argues that the

ALJ's rejection was "on the basis the modeling assumed the County-maintained culverts

would be closed," even though FINR contends that there is no competent substantial

evidence to support that finding. See Exceptions 1184.

FINR appears to mischaracterize the ALJ's finding of fact in paragraph 48. The

ALJ did not reject Mr. Burleson's modeling regarding alleged flooding at Lettis Creek 'on

the basis the modeling assumed the County-maintained culverts would be closed" (see

Exceptions 1184), but because "Mr. Burleson's modeling assumed that County-

maintained culverts between the properties would be blocked during mining." RO '1148

(emphasis added).

Mr. Burleson testified that his modeling assumed that "[t]he outfall from FINR

across County Road 663 and the railroad track would be blocked by the ditch and berm

system." See T. 492 (emphasis added). Further, when asked to describe the modeling

he performed to assess the potential for off-site flooding in the Lettis Branch Basin

during mining, Mr. Burleson indicated that he "cut[ ] off that outfall over by County Road

663 to where no flow could exit from FINR[,j" because his modeling was intended to

evaluate existing and during-mining conditions "if the outfall was blocked, what would be

the effect." See T. 493 (emphasis added). Thus, competent substantial record

evidence supports the ALJ's finding. In addition, competent substantial record evidence

establishes that CF is in fact "committed to maintaining the hydrologic connection

through culverts at County Road 663 and Lettis Creek during mining" (T. 716). Mr.

Burleson's modeling assumption that flow wouid be blocked was not credited by the

ALJ. Therefore, based on the foregoing reasons, this exception is denied.

VII. Exception to RO Paragraph 89 (Reclamation Criteria Exception).

FINR takes exception to paragraph 89 of the RO, where the ALJ found that "[n]o

evidence concerning the reclamation criteria was presented by Petitioner." See

Exceptions '11'1185-87. FINR contends that paragraph 89 is not supported by competent

substantial evidence. See id.

FINR asserts that the testimony of Mr. Burleson and other evidence in support of

its allegations that the SPPP did not "provide reasonable assurance that water quality

standards would be met during construction," and that CF did not '1ake all reasonable

steps to eliminate the risk of fiooding on FINR's property caused by damming of the

Troublesome Creek stream channel and Lellis Creek with the ditch and berm system;"

constitutes the evidence conceming the reclamation criteria in Rule 62C-16.0051,

FAC. (the "Reclamation Rule"). See Exceptions m 85-87 (emphases added). This

eVidence, however, addressed mining and during mining activities, not the reclamation

standards.

Applicable law clearly distinguishes "reclamation" activities from mining

operations. means "the reshaping of lands in a manner that meets the

reclamation criteria and standards contained in this part." § 378.203(9), Fla. Stat.

(2011). Those standards are contained in Rule 62C-16.0051, FAC. By contrast,

mining operations are '1hose physical activities, other than prospecting and site

preparation, which are necessarv for extraction, waste disposal, storage, or dam

maintenance prior to abandonment." § 378.203(6), Fla. Stat. (2011 )(emphasis added).

The Reclamation Rule govems reclamation not mining operations. See §

378.207(1 )-(2), Fla. Stat. (2011 )(refiecting lhatthe Department is only authorized to

adopt rules containing "statewide criteria and standards for reclamation," which "shall

govem performance of reclamation and not ... the manner in which mining and

associated activities are conducted.") (Emphases added); see also § 378.205(1 lId), Fla.

Stat. (2011 )(also authorizing the Department to adopt rules implementing the provisions

of Chapter 378, Part II, F.S.).

Therefore, since the AU property found that "[n]o evidence conceming the

reclamation was presented by Petitioner,". this exception is denied.

VIII. Exception to RO Paragraph 29 (Envfronmental Impact Exception).

FINR takes exception to paragraph 29 of the RO, where the ALJ found that FINR

was "permitted to pursue its water resource and environmental impact issues and

express[ ] its concems regarding the Project's impact on Pemione(s property and

development potential as weil as on the health, safety, and welfare of residents or

inhabitants of Petitioners property." See Exceptions 1188. FINR contends that the

February 16, 2012 Order prevented it from pursuing its claims related to "environmental

impacts such as dust,noise, air poilution, and airbome radioactive particles" and

prohibited the parties from introducing evidence related to those issues, and therefore

the AU's finding is not based upon competent substantial evidence. {d.

For the reasons discussed in the ruling on FINR's first exception above, the AU

properly struck FINR's immaterial ailegations conceming dust, noise, air pollution, and

airborne radioactive particles, and property prohibited the introduction of evidence

conceming same. FINR was permitted to pursue ail of relevant claims, including

claims relating to ail the ERP and CRP criteria. Therefore, for the reasons discussed in

the ruling in FINR's first exception above, this exception to paragraph 88 is denied.

RULING ON PETITIONER'S REQUEST FOR REMAND

The Florida courts have held that there are some circumstances under which

agency remand to DOAH is not only appropriate, but is actually "dictated." See, e.g.,

Miller v. DepY of Envtl. Regulation, 504 So.2d 1325, 1327 (Fla. 1st DCA 1987); Cohn v.

DepY of Envtl. Regulation, 477 So.2d 1039, 1047 (Fla. 3d DCA1985). The subject

proceeding does not constitute one of those circumstances where remand to DOAH is

dictated. The ALJ fulfilled his role as to factual findings and the Department is able to

enter a coherent final order. Cohn, 477 So.2d at 1047.

The AU recommended that the Department enter a final order granting CF's

applications for the Project ERP and CRP, and the South Pasture mine WRP and CRP

Modifications. He Ultimately determined that CF established its entitlement to the

requested approvals by a preponderance of the evidence in the administrative hearing,

and that FINR failed to meet its burden of showing that the permits and approvals

should not be issued. (RO 1M196 and 97). This Final Order adopts the AU's

recommendation and denies FINR's remand request.

CONCLUSION

Having considered the applicable law and standards of review in light of the

findings and conclusions set forth in the RO, and being otherwise duly advised,

It is therefore ORDERED:

A. The AU's Recommended Order (Exhibit A) is adopted and incorporated by

reference herein.

B. Petitioner FINR II, Inc.'s request for remand to DOAH is denied.

C. Respondent CF Industries, Inc.'s application for Environmental Resource

Permit No. 0294666-001 is granted.

D. Respondent CF Industries, Inc.'s Conceptual Reclamation Plan Application

No. 0294666-002 is approved.

E. Respondent CF Industries, Inc.'s application for Wetland Resource Permit

Modification No. 0151551-017 is granted.

F. Respondent CF Industries, Inc.'s Conceptual Reclamation Plan Modification

No. 0151551-818 is approved.

JUDICIAL REVIEW

Any party to this proceeding has the right to seek judicial review of the Final

Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal

pursuant to Rules 9.110 and 9.190, Florida Rules of Appellate Procedure, with the clerk

of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard,

M.S. 35, Tallahassee, Florida 32399-3000; and by filing a copy olthe Notice of Appeal

accompanied by the applicable filing fees with the appropriate District Court of Appeal.

The Notice of Appeal must be filed within 30 days from the date this Final Order is filed

with the clerk of the Department.

DONE AND ORDERED this day of June, 2012, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

JR.

Marjory Stoneman Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

FILED ON THIS DATE PURSUANT TO § 120.52,

FLORIDA STATUTES, WITH THE DESIGNATED

DEPARTMENT CLERK. RECEIPT OF WHICH IS

HEREBY ACKNOWLEDGED.

tp·g·tz.

DATE

CERTIFICATE OF SERVICE

I CERTIFY that a copy of the foregoing Final Order has been sent by United

States Postal Service to:

Edward P. de la Parte, Jr. Frank E. Matthews, Esq.

de la Parte & Gilbert, P.A. Hopping Green & Sams, PA

PO Box 2350 PO Box 6526

Tampa, FL 33601-2350 Tallahassee, FL 32314-6526

by electronic filing to:

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

and by handdelivery to:

Brynna R. Ross, Esquire

Department of Environmental Protection

3900 Commonwealth Blvd., M.S. 35

Tallahassee, FL 32399-3000

this 51 day of June, 2012.

STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

.... ,

FRANCINE M. S

Administrative Law Counsel

3900 Commonwealth Blvd., M.S. 35

Tallahassee, FL 32399-3000

Telephone [phone]