98-004539 Robert P. Ackert vs. Department Of Environmental Protection Status: Closed Recommended Order on Thursday, December 16, 1999.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL PROTECTION

CLOYD TONEY (Facility 0668502540);

JAMES F. JENNINGS (Facility 128626716);

JAMES SCELFO (Facility 018500049);

DARREL HANEY (Facility 128503387); OGC CASE NOS. 98-1208

LEO COHEN and MARK GROSBY (Facility) 96-2930

498627087); LEO COHEN and JOHN H 96-3405

ROTH (Facility 498627088); ROBERT C. 98-1974

ACKERT (Facility 498627087); CLOYD 98-2544

TONEY (Facility 538628774); LUELLA R 98-2440

CEASER (Facility 068501883); JACK A. 96-3404

HARKNESS (Facility 158506545); and 98-2050

PETER D. KLEIST (Facility 058500923), 97-0117

98-1774

Petitioners, 98-2035

and DOAH CASE NOS. 98-2021

98-2030

ENVIRONMENTAL CORPORATION OF 98-4535

AMERICA, INC., 98-4536

98-4537

Intervenor, 98-4538

98-4539

vs. 98-4540

98-4541

DEPARTMENT OF ENVIRONMENTAL 98-4542

PROTECTION, 98-4543

Respondent.

_____________________________________/

FINAL ORDER

An Administrative Law Judge with the Division of

Administrative Hearings (" DOAH") submitted his Recommended Order

to the Department of Environmental Protection ("Department") in

these consolidated cases. The Recommended Order indicated that

copies were served upon counsel for Petitioners, Cloyd Toney, et

al. ("Petitioners"), and upon counsel for Intervenor,

Environmental Corporation of America (" ECA"). A copy of the

Recommended Order is attached as Exhibit A. Exceptions to the

Recommended Order were filed on behalf of Petitioners, ECA and

the Department. The Department subsequently filed its Responses

to the Exceptions of Petitioner and ECA. The matter is now

before the Secretary of the Department for final agency action.

BACKGROUND

Petitioners funded efforts to cleanup petroleum and

petroleum product contamination at various "Joy Food Stores"

(some, formerly "Coastal Mart") facilities involved in these

cases. Petitioners also filed applications with the Department

for reimbursement of the cleanup costs under an amnesty program

created by § 376.3071, Florida Statutes. This statutory amnesty

program applies to owners or operators who notified the

Department that their property was contaminated by petroleum or

petroleum products. Under the statutory reimbursement program,

the facility owner or operator would usually hire a contractor to

cleanup petroleum contaminated sites. The contractor would then

perform certain petroleum contamination cleanup program tasks

("program tasks") required by the Department, often through

subcontractors and suppliers.

The first program task is an Initial Remedial Action

("IRA"). The typical IRA consists of conducting soil borings and

taking samples of soil at the site, removal of all contaminated

soil identified by the soil samples, and back-filling the

excavated area with uncontaminated soil. The next program task

is the preparation of a Contamination Assessment Report ("CAR").

The purpose of a CAR is to determine the vertical and horizontal

extent of groundwater contamination. The determination of

groundwater contamination requires installation and sampling of

groundwater wells. The third program task is a Remedial Action

Plan ("RAP") whereby a system to remediate the. groundwater at a

site is designed and submitted to the Department for approval.

The final program task is the Remedial Action (" RA") implementing

the system designed and approved in the RAP. Upon completion of

a program task, the facility owner, operator, or their designee

submits an application to the Department for reimbursement of the

cleanup costs at the various sites.

ECA entered into contracts with " funders" to finance the

petroleum contamination cleanup costs at the sites involved in

the consolidated cases now on review. ECA, purportedly acting on

behalf of its "investors," also entered into a series of

agreements with Gurr/Omega (an environmental consulting firm) for

cleanup of petroleum contamination at the sites. Under these

agreements, Gurr/Omega was required to provide all labor,

equipment, and materials and to perform all work needed to

complete the remediation of the sites selected and approved by

ECA. Gurr/Omega was to "complete such performance in strict

compliance with all applicable statutes rules and regulations and

to the satisfaction of FDEP". Gurr-Omega would submit its

invoices for the petroleum cleanup work to ECA, and ECA would pay

Gurr/Omega with money obtained from its investors. ECA would

then receive an assignment of Gurr/Omega's right to reimbursement

of cleanup costs from the Department.

Each of the Petitioners in these consolidated cases claimed

a 15% "second-tier" markup on funds paid to ECA. The payments to

ECA also included a 15% "first-tier" markup on sums which ECA

indicated were paid to subcontractors for cleanup activities

conducted at the various sites. In October of 1996 or later, the

Department denied the portions of numerous reimbursement

applications filed by Petitioners relating to the 15% "first-

tier" markups paid to ECA. Petitioners then filed their

petitions challenging the Department's denials of reimbursement

for the "first-tier" markups, and the petitions were referred to

DOAH for formal administrative proceedings.

The above-captioned cases were consolidated by DOAH, and

Administrative Law Judge J. Lawrence Johnston (" ALJ") was

assigned to conduct a formal administrative hearing. A DOAH

final hearing was held before the ALJ on August 17 20, 1999, in

Tampa, Florida. Testimony of witnesses and documentary evidence

was presented on behalf of Petitioners and the Department. The

ALJ subsequently entered a Recommended Order ("RO") in these

consolidated cases on December 16, 1999.

RECOMMENDED ORDER

Based on his retrospective application of Ch. 99-379, § 4,

Laws of Florida (1999), the ALJ concluded that the Department's

1998 amendments to Rules 62-773.200(9) and 62-773.350(9)-(10),

F.A.C., were not applicable to Petitioners' applications for

reimbursement of the petroleum contamination cleanup costs at the

sites involved in these cases. The ALJ also concluded that

Petitioners had established that ECA's activities were integral

and essential to site rehabilitation under the applicable rule

provisions in effect at the time Petitioners' subject

applications for reimbursements of petroleum cleanup costs were

filed with the Department. However, the ALJ did conclude that

"interest" payments made by ECA to Petitioners, together with

ECA's 15% markups thereon and Petitioners' 15% markups on ECA's

markups, were not allowable under Rules 62-773.200(12), 62-

773.350(4)(e), and 62-773.650(1), F.A.C. (1993).

The ALJ ultimately recommended that the Department enter a

final order granting specified claims of Petitioners as set forth

on page 62 of the RO for reimbursement of ECA's 15% "first tier"

markups, together with Petitioners' 15% markups thereon. The ALJ

also recommended that the final order in these cases direct

Petitioners to repay to the Department overpayments made to them

of interest paid by ECA, together with ECA's 15% markups on the

interest and Petitioners' markups thereon, as specified on page

63 of the RO.

RULINGS ON PETITIONERS' EXCEPTIONS

Exception 1

Petitioners' first Exception takes issue with Findings of

Fact 41 of the RO wherein the ALJ found that the subject

reimbursement applications submitted to the Department contained

no evidence that Petitioners were seeking reimbursement of

"interest" payments being made to Petitioners by ECA. In his

related Finding of Fact 42, the ALJ also found that the

Department first obtained evidence that the reimbursement

applications contained interest payments from ECA to Petitioners

during the course of prehearing discovery in these consolidated

cases. The ALJ further found that, upon such discovery, the

Department sought to recover those interest payments, together

with any markups thereon. The challenged factual findings of the

ALJ in paragraph 41 of the RO are affirmed in this Final Order.

An agency reviewing a DOAH recommended order may not reject

or modify the findings of fact of an administrative law judge

(formerly "hearing officer") unless the agency first determines

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. See subsection 120.57(1)(1),

Florida Statutes. Accord Dunham v. Highlands County School

Board, 652 So.2d 894 (Fla. 2d DCA 1995); Dietz v. Florida

Unemployment Appeals Commission, 634 So.2d 272 (Fla. 4th DCA

1994); Florida Dept. of Corrections v. Bradley , 510 So.2d 1122

(Fla. 1st DCA 1987). I conclude that the ALJ's Finding of Facts

41 and 42 are based on competent substantial evidence of record.

This competent substantial evidence includes the expert testimony

at the DOAH final hearing of Charles Williams, an environmental

administrator in the Department's Bureau of Petroleum Storage

Systems. (Tr. Vol. IV, pages 112-215)

In addition, the case law of Florida holds that it is the

ALJ's responsibility to weigh the evidence presented in these

DOAH proceedings, resolve conflicts therein, judge the

credibility of witnesses, and draw permissible inferences from

the evidence. Heifetz v. Dept. of Business Regulation , 475 So.2d

1277 (Fla. 1st DCA 1985). Thus, a reviewing agency may not

reweigh the evidence presented at a DOAH formal hearing, attempt

to resolve conflicts therein, or judge the credibility of

witnesses. Belleau v Dept. of Environmental Protection , 695

So.2d 1305,1307 (Fla. 1st DCA 1997); Mavnard v. Unemployment

Appeals Commission , 609 So.2d 143, 145 (Fla. 4th DCA 1992).

I decline to substitute my judgment for that of the ALJ on

this evidentiary challenge raised by Petitioners. Accordingly,

Petitioners' Exception 1 is denied.

Exception 2a

Petitioner's second Exception does not take exception to

any factual findings or legal conclusions in the RO on review.

Instead, this exception challenges the ALJ's prehearing ruling

denying Petitioners' Motion In Limine requesting that evidence

bearing on the Department's claims for recovery of alleged

"interest" overpayments to Petitioners be excluded at the DOAH

final hearing.

Petitioners first argue that the ALJ lacked jurisdiction to

hear the Department's claims for recovery of alleged overpayments

of interest to Petitioners based on information obtained during

the discovery phase of these proceedings. Petitioners

essentially conclude that the scope of these proceedings is

limited to matters set forth in their reimbursement applications

and in the Department's related Orders of Determinations. This

argument of Petitioners overlooks a basic tenet of administrative

law that a DOAH formal proceeding wherein an agency action is

contested is not merely an administrative review of prior

preliminary agency action, but is a de novo proceeding intended

to formulate final agency action. See , e.g., Hamilton County

Commissioners v. State Dept. of Environmental Regulation , 587 So.

2d 1378,1387 (Fla. 1st DCA 1991); Florida Dept. of Transportation

v. J.W.C. Company. Inc. , 396 So 2d 778, 785 (Fla. 1st DCA 1981);

and McDonald v. Dept. of Banking and Finance, 346 So. 2d 569, 584

(Fla. 1st DCA 1977).

In such de novo formal hearings, neither the Department nor

the parties challenging the agency actions are restricted to the

matters set forth in the application documents or in the

Department's written notices of intent to issue or deny the

requested permits or reimbursements. See , e.g. , Hamilton County

Commissioners , supra, at 1387-1388; DeCarion v. Dept. of

Environmental Regulation, 445 So. 2d 619, 621 (Fla. 1st DCA

1984). Therefore, it was not beyond the ALJ's jurisdiction to

have considered evidence in these proceedings of alleged

overpayments of interest by the Department to Petitioners, even

though the interest overpayment issue was not apparent in the

"four corners" of the reimbursement applications or the

Department's related Orders of Determinations. Hamilton County

Commissioners, supra , at 1387 1388; McDonald , supra , at 584.

Petitioners further contend that the ALJ erred, as a matter

of law, by ruling that the Department's interest overpayment

claims were "analogous to compulsory counterclaims which should

be determined in these proceedings". Petitioners suggest that

the Department should be required to commence separate audit

proceedings to recover the alleged interest overpayments. I

conclude, however, that the challenged prehearing ruling of the

ALJ refusing to limit the scope of the DOAH final hearing as

requested by Petitioners does not appear to be a matter over

which the Department has "substantive jurisdiction" under §

120.57(1)(1), Florida Statutes (1999).

The Florida courts have indicated that, subsequent to the

1996 amendments to the Administrative Procedure Act, an agency

reviewing a DOAH recommended order is precluded from overruling

procedural or evidentiary rulings by an administrative law judge,

except "in the most extreme cases" where the proceedings "did not

comply with the essential requirements of law". See Florida

Power & Light Company v. State of Florida Siting Board , 693 So.2d

1025,1028 (Fla. 1st DCA 1997) (Benson, J., concurring). Based on

my review of the record, l am unable to conclude that the cases

now on review are among those "extreme cases" where procedural or

evidentiary rulings of administrative law judges are so egregious

as to violate the essential requirements of law.

Consequently, Petitioners' Exception 2a is denied.

Exception 2b

This Exception takes issue with Conclusion of Law 94 of the

RO wherein the ALJ rejects Petitioners' attempt to distinguish

the seemingly adverse rulings of the Court in Environmental Trust

v. Dept. of Environmental Protection , 714 So.2d 493 (Fla. 1st DCA

1998). In Environmental Trust , the court upheld the Department's

final order denying reimbursements of sums representing

"factoring discounts" for providing funding for the cleanup costs

of petroleum contamination at various sites.

The Environmental Trust court upheld the Department's

position that the cost of the factoring discounts amounted-to

interest on the face amount of the invoices and observed that

"[ i] nterest is not transformed into a reimbursable item merely

because the claimant elects to characterize it as a discount."

Id. at 497-498. At page 497 of the Environmental Trust opinion,

the court ruled that the "cost represented by the series of

discounts for providing capital is not an actual cost of the site

rehabilitation work" under § 376.3071 (12)(d), Florida Statutes.

At page 500 of the Environmental Trust opinion, the court also

ruled that the existing provisions of Rule 62-773 prohibited

reimbursement for "interest or carrying charges of any kind",

except for certain interest payments designated in the

Department's rules which were not applicable to the reimbursement

applications in that case. See Rule 62-773.350(4)(e), F.A.C.

In the challenged Conclusion of Law 94, the ALJ concluded

in these proceedings that Petitioners' attempt "to distinguish

interest payments made nearly simultaneously with receipt of

invoice payments from discounts is to elevate form over

substance. The two [payments] are equivalent." I concur with

these conclusions of the ALJ and conclude that the interest

payments at issue here are not distinguishable in substance to

the "factoring discounts" ruled to be nonreimbursable in the

Environmental Trust decision. I also concur with the ALJ's

related conclusions in paragraph 96 of the RO that the subject

interest payments made by ECA to Petitioners (and the markups

thereon) are not included within those permissible interest

payments designated in Rule 62-773.650(1), F.A.C., and are thus

not "interest costs incurred" under Rule 62 773.200(12), F.A.C.

In view of the above, Petitioners' Exception 2b is denied.

Request for Oral Presentation

Petitioners' Exception ends with a Request for Oral

Presentation to the Secretary. This request of Petitioners has

been previously denied in a separate "Order Denying Request for

Oral Argument" entered on January 10, 2000. This Order Denying

Request for Oral Argument is affirmed and incorporated by

reference herein. Accordingly, the portion of Petitioners'

Exceptions requesting permission to make an oral presentation to

the Secretary in these proceedings is denied for the reasons set

forth in the prior Order Denying Request for Oral Argument.

RULINGS ON DEPARTMENT'S EXCEPTIONS

Exception 1

The Department's first Exception takes issue with paragraph

89 of the RO containing the ALJ's legal conclusion that Chapter

99-379, § 4, Laws of Florida (1999), should be given

retrospective application to the Department's 1998 amendments to

Chapter 62-773, F.A.C. I conclude that this Exception of the

Department is well taken for the following reasons:

1. Section 4 of Chapter 99-379 amended § 120.54(1)(f),

Florida Statutes ( Supp. 1998), by adding a sentence thereto that:

An agency may not adopt retroactive rules,

including retroactive rules intended to

clarify existing law, unless that power is

expressly authorized by statute.

This 1999 amendment to § 120.54(1)(f) was enacted by the

Legislature effective June 18,1999. It is undisputed that there

is no language in Chapter 99-379 expressing the intent of the

Legislature that the provisions of section 4 thereof should be

given retrospective application to agency rules adopted prior to

the effective date of this act.

2. Absent a clear legislative intent to the contrary, a

substantive statute is presumed to act prospectively and to apply

only to conduct occurring after the effective date of the

statute. See State v. Lavazzoli , 434 So. 2d 321, 323 (Fla.

1983); Fleeman v. Case , 342 So.2d 815 (Fla. 1976); Life Care

Centers v. Sawqrass Care Center 683 So.2d 609, 613 (Fla. 1st DCA

1996). A "substantive" statute is one which "creates or imposes

a new obligation or duty". See , e.g . L, Gupton v. Villane Key

and Saw Shop. Inc. , 656 So.2d 475, 477 (Fla. 1995); Young v.

Altenhaus , 472 So.2d 1152, 1154 (Fla. 1985). The subject

provisions of Section 4 of Ch. 99-379 impose a new obligation or

duty on state agencies to not adopt retroactive rules.

Therefore, the 1999 amendment to § 120.54(1)(f), F.S., is a

substantive statutory provisions which should be applied

prospectively only to agency rules adopted after June 18,1999.

It is undisputed that the amendments to the petroleum cleanup

reimbursement provisions of Rule 62-773, F.A.C., at issue in

these proceedings were adopted on August 11, 1998.

3. In addition, section 8 of Chapter 99-379 expresses the

clear intent of the Legislature that "[t]his act shall take

effect upon becoming a law." It is also undisputed that all

sections of Chapter 99-379 became law effective June 18,1999,

when the act was approved by the Governor. The Florida Supreme

Court has ruled that the Legislature's inclusion of an effective

date of a law " effectively rebuts any argument that retroactive

application of the law was intended ". Dept. of Revenue v.

Zuckerman Vernon Corp. , 354 So. 2d 353, 358 (Fla. 1977 (emphasis

supplied). Accord Foreman v. Russo , 624 So.2d 333, 336 (Fla. 4th

DCA 1993); Middlebrooks v. Dept. of State, 565 So.2d 727, 728

(Fla. 1st DCA 1990).

4. Finally, l would note that the ALJ's legal conclusions

in paragraph 89 of the RO are inconsistent. The ALJ first cited

cases approving the general rule of law that administrative rules

are presumed to operate prospectively, in the absence of express

language to the contrary. However, the ALJ then concluded in the

last sentence of his Conclusion of Law 89 that: "[u] nder these

circumstances, Section 4 of Chapter 99-379 is not considered to

have truly retroactive effect and may be applied retroactively to

control these cases." If Section 4 of Chapter 99-379 "is not

considered to have truly retroactive effect" as the ALJ correctly

concluded, then it is inconsistent for the ALJ to also conclude

in the same sentence that these provisions "may be applied

retroactively to control these cases" dealing with Department

rule amendments adopted in 1998.

Based on the above rulings, the Department's Exception 1 is

granted. Accordingly, the ALJ's legal conclusions in paragraphs

89 and 90 of the RO that the provisions of Section 4 of Chapter

99-379 should be given retroactive application to the

Department's 1998 amendments to Rule 62-773 are rejected.

Exception 2

The Department's second and final Exception takes exception

to the ALJ's Conclusion of Law 92. In paragraph 92 of the RO,

the ALJ concludes that ECA acted in the role of a project

coordinator similar to a general contractor in connection with

the remediation of the petroleum contamination at the various

sites designated in these proceedings. The ALJ further concludes

that ECA's contributions were "integral to" and "essential to

completion of" site rehabilitation under the pertinent Department

rules. The ALJ ultimately concludes in this paragraph that ECA's

contributions "were enough to justify ECA's markups under these

rules and under Section 376.3071 (4)(c), Florida Statutes".

These legal conclusions of the ALJ, based on his

interpretations of statutory and rules provisions which the

Department has the duty to implement and enforce, are rejected on

the following grounds

1. These statutory and rule interpretations in Conclusion

of Law 92 are expressly based on the ALJ's erroneous conclusion

that ECA's contributions or actions were "not limited by [the

1998 amendments to] Rule 62-773.350(9)-(11)". In the preceding

ruling, I rejected the ALJ's retrospective application of the

provisions of Section 4 of Chapter 99-379 to preclude the

Department from applying the 1998 amendments to Rule 62-773 to

Petitioners' pending reimbursement applications. I thus conclude

that the decision in Environmental Trust , supra , is controlling

precedent as to these proceedings.

2. In the Environmental Trust opinion, the court observed

that reviewing courts "must give great weight to the intent

expressed by the agency in determining whether a revised rule

imposes new requirements or merely clarifies existing

requirements". Id. at 714 So.2d 501. The court then upheld the

Department's position that the "revised version" of Rule 62-773

did not establish any new requirements, but only clarified the

existing rules relied upon by the Department in reviewing

reimbursement applications for petroleum contamination cleanup 1

costs. The court held in Environmental Trust that "the revised

version of Rule 62-773 can be applied retroactively because it

merely restates the Department's settled interpretation of the

existing rule." Id. at 501.

3. The court ruled in Environmental Trust that "[n] othing

in section 376.3071, Florida Statutes (1995), creates an

entitlement to recover these expenses." Id. at 501. The court

also approved the rule of statutory construction that statutes

establishing economic grants or entitlements are strictly

construed in favor of the government and against the grantee.

Id. at 501. Accord 3 Sutherland Statutory Construction , § 63.02

(5th Ed. 1992). Therefore, any doubts as to whether a particular

claim for reimbursement in these proceedings represents an

activity integral or essential to the rehabilitation of the

subject contaminated sites should be resolved against

Petitioners.

4. It is an established rule of administrative law in this

state that considerable deference should be accorded to an

agency's interpretation of its own rules which it is required to

enforce, and that such rule interpretations should not be

overturned unless clearly erroneous. See , e.g., Falk v. Beard ,

614 So.2d 1086, 1089 (Fla. 1993); State Contracting v. Dept. of

Transportation , 709 So 2d 607, 610 (Fla. 1st DCA 1998).

Furthermore, an agency's interpretation of its own administrative

rules does not have to be the only reasonable interpretation; it

is enough if the agency interpretation is a permissible one.

Suddath Van Lines, inc. v. Dept. of Environmental Protection, 668

So.2d 209,212 (Fla. 1st DCA 1996); Golfcrest Nursing Home v.

State, Aqencv for Health Care Administration, 662 So.2d 1330,1333

(Fla. 1st DCA 1995).

5. Charles Williams, an Environmental Administrator in the

Department's Bureau of Petroleum Storage Systems, interpreted the

provisions of Rule 62-773, as amended in 1998, at the DOAH final

hearing. Mr. Williams testified that ECA must act in the

capacity of a general contractor responsible for the project

planning and the supervision of subcontractors and vendors while

the cleanup activities were being performed in order to be

entitled to the markups claimed in these proceedings. (Tr. Vol.

IV, pages 123-127) This rule interpretation is supported by the

plain language of current Rule 62 2 773.350(9)(e), as amended in

1998. Mr. Williams was of the opinion that, under the

Department's rules, ECA was essentially acting in the role of a

" funder arranger" rather than a "general contractor". (Tr. Vol.

IV, page 125) Mr. Williams also testified that it was Gurr/Omega,

not ECA, who acted in the role of general contractor in the 3

cleanup of the subject contaminated sites. (Tr. Vol. IV, page

127) The fact that Gurr/Omega, not ECA, was the "full service

contractor" ultimately responsible for employing and supervising

the subcontractors and vendors at the subject contaminated sites

is clearly evidenced in the ALJ's unchallenged Findings of Fact

43-48.

Based on the above, the Department's Exception 2 is granted.

CONCLUSION

An agency has the principal responsibility of interpreting

statutes and rules within its regulatory jurisdiction and

expertise. Public Employees Relations Commission v. Dade County

Police Benevolent Association , 467 So.2d 987, 989 (Fla. 1985);

Florida Public Employee Council, 79 v. Daniels , 646 So.2d 813,

816 (Fla. 1st DCA 1994). The Department is the state agency

charged by the Legislature with the duty of enforcing the

provisions of § 376.3071, Florida Statutes, and of adopting rules

implementing this statutory section. Consequently, the

interpretation of the provisions of § 376.3071 and Rule 62-773

are the primary responsibility of the Department.

I conclude that the Department's statutory and rule

interpretations challenged in these cases are not "clearly

erroneous". To the contrary, these statutory and rule

interpretations viewed in light of the Environmental Trust

decision and the "strict construction" requirement are

permissible interpretations which should not be overturned. It

is therefore ORDERED:

A. The portion of the last sentence of Conclusion of Law

89 concluding that Section 4 of Chapter 99-379 "may be applied

retroactively to control these cases" is rejected, and all of 4

Conclusions of Law 90, 92, and 93 of the RO are rejected.

B. As modified above, the RO is adopted and incorporated

herein by reference.

C. Petitioners' claims for reimbursements of ECA's 15%

markups, together with Petitioners' 15% markups thereon, as

specified on page 62 of the RO are DENIED.

D. The Department's claims for recovery from Petitioners

of interest overpayments made as specified on pages 62-63 of the

RO are GRANTED.

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 Rule

9.110, 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 of the 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 13th day of March, 2000, in

Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

_________________________________

DAVID B. STRUMS, Secretary

Marjory Stoneman Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

ENDNOTES

1/ The "revised version" of Rule 62-773 construed by the court

in the Environmental Trust decision is the same version now found

in Rule 62-773, F.A.C., as amended effective August 11, 1998.

Thus, the revised version of Rule 62-773 at issue in the

Environmental Trust case is the same version of Rule 62 773 at

issue in these proceedings.

2/ Rule 62-773.350(9)(e), as amended in 1998, reads as follows:

(e) No markup shall be applied by any entity, other than

an unrelated third party designated as the person responsible for

conducting site rehabilitation, that did not provide a necessary

and documented service that is integral to site rehabilitation by

actively managing and overseeing the activities of the

subcontractors and vendors while the site rehabilitation work was

being performed. Necessary services integral to site

rehabilitation include: negotiation of contracts with

subcontrators and vendors; development of specifications and

solicitation of quotes for equipment and supplies; scheduling and

coordination of subcontrator activities; and on-site supervision

of activities performed by subcontrators.

3/ Mr. Williams further testified that the Department's review

of the reimbursement documentation provided by Petitioners

revealed that ECA did virtually nothing related to the site

cleanups, "other than a cover letter or invoice". (Tr. Vol. IV,

page 172)

4/ These legal conclusions of the ALJ are rejected for the

reasons set forth in detail in the above rulings granting the

Department's Exceptions. I find that my substituted legal

conclusions are as reasonable or more reasonable than those legal

conclusions of the ALJ that were rejected in this Final Order.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Final Order

has been sent by United States Postal Service to:

Bradford C. Vassey, Esquire

Environmental Corporation of America

205 South Hoover Street, Suite 101

Tampa, FL 33609

Carter B. McCain, Esquire

MacFarlane, Ferguson & McMullen

400 North Tampa Street, Suite 2300

Tampa, FL 33601

Ann Cole, Clerk and

J. Lawrence Johnston, Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

and by hand delivery to:

J. A. Spejenkowski, Esquire

Department of Environmental Protection

3900 Commonwealth Blvd., M.S. 35

Tallahassee, FL 32399-3000

this 14th day of March, 2000.

STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

________________________________

TERRELL WILLIAMS

Assistant General Counsel

3900 Commonwealth Blvd., M.S. 35

Tallahassee, FL 32399-3000

Telephone [phone]